Hassan Ali And Another v. The State (Through The Public Prosecutor)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION CIRCUIT BENCH AT PORT BLAIR *** CRR No. 009 of 2021 Hassan Ali and another ... Petitioners Vs.
State (Through the Public Prosecutor) ... Respondents Mr. Gopala Binnu Kumar, Advocate ... for the petitioners Mr. Sumit Karmakar, Advocate ... for the State Mr. K.M.B.Jayapal, Advocate ... for the defacto complainant September 16, 2021 [SR] Item No.4 The petitioners, being the father-in-law and mother-in-law, have assailed the order dated 24.10.2019 passed by the Additional Session Judge, South Andaman District, Port Blair in Sessions Case No. 31/17 whereby the learned Judge was pleased to reject the prayer for their discharge under Section 227 of Code of Criminal Procedure. At the outset it appears on perusal of the application under Section 227 of the CrPC that all the three accused persons had sought for sending the case to the Magistrate for trial, but having regard to the contention made in the application and the prayer specifically on behalf of the present petitioners it would reflect that the petitioners really sought for their discharge from the case under the said provision on the contention that no case is made out against them.
It is submitted on behalf of the learned advocate for the petitioners that there is no material available on record to bring home the charge under Section 313 of IPC against any of the accused persons. Bambooflat P.S. case No. 110/2016 was started under Section 498 (A)/313/504/323 IPC on the complaint of Aktharun Begum who alleged that she was illtreated by the accused persons who subjected to torture. It is averred that she got married to the accused on 01.04.2016 as per Muslim rights and customs and she was assaulted by the accusedhusband from the very night of their marriage. It is also alleged that her
husband had extra marital affairs with one lady police constable. This fact was informed to her in-laws, the petitioners herein but they have not paid any heed to that. It is further alleged that the mother-in-law had abused and tortured her and had imposed restriction upon her towards visiting her parents home and not to go for any work. It is in her complaint that after few months she became pregnant but her husband started assaulting her and caused her to swallow tablets for which her pregnancy got terminated and that she was not provided with amenities. It is further submitted that there is no allegation against them and the allegation as averred in the complaint are ominous and in general term.
In the impugned order, the learned Judge took note of the statement of the defacto complainant daughter-in-law of the present petitioners recorded under Section 161 CrPC during investigation wherein she stated that she got acquainted with the accused through Facebook in the year 2011 and with passage of time, their friendship converted to love in between them. On pretext of such relation, the accused used to enter into physical relationship with her at Lillipur and every time after having physical relation, he used to administer I-pills tablet to avoid her pregnancy. On 09.09.2014, they entered into physical relation and the tablet that was supplied by the accused was not swallowed by her as she vomited at that time.
She became pregnant and the same was communicated to the accused who assured her to marry and then she was taken to Amrita Hospital on 17.11.2014 where the accused introduced her as his wife by stating that they got married on 15.01.2014. Her pregnancy was terminated in the hospital. Subsequently on 31.03.2015, the accused stated that his mother is not agreeable to their marriage as she does not belong to the sect of her choice. She thereafter contacted his mother over phone but she expressed ignorance about their relation. Finding no other option, she filed complaint before women cell and on an interference of police authority, the accused agreed to marry her and their marriage was solemnized on 01.04.2016. From the record, it transpires that the victim was medically treated at Amrita Health Centre on 17.11.
2014 where it is stated that she experienced LMP on 26.10.2014 and LLMP on 26.09.2014. She was also advised for USG by the doctor.
Learned Judge has also categorically found on police paper that there is no medical report suggesting that she was subjected to abortion of her pregnancy. But from her version recorded in her complaint and her statement under Section 161 of CrPC, it was in the wishful thinking of the learned court to hold that she had suffered the agony at the behest of the accused. The document of her treatment at Amrita Hospital dated 17.11.2014 clearly suggested that she conceived prior to her marriage and was taken to hospital for treatment. It is not in dispute that she had not given birth to any child. Other document suggested that the victim found
to have communicated to police authority about such incident on earlier occasion. Then the learned Judge makes observation that facts may be proved by adducing the oral or documentary evidence in the trial and failure of the investigation authority to collect such document pertaining to the miscarriage cannot negate the vivid version of the victim in that regard at that stage and that cannot be the sole ground for discharge of accused for such offence under Section 313 CrPC. It is pointed out that the said issue can be adequately dealt with at the appropriate stage where the accused will be provided with every opportunity to rebut the version of the victim. With these observations, the learned Judge rejected the application for discharge preferred by the accused persons including the present petitions under Section 227 of CrPC.
In the impugned order, learned Judge took notice of the decision in Om Wati vs. State reported in 2001 (4) SCC 333 wherein it was held that at the stage of passing order in terms of section 227 Cr.P.C, the court has merely to peruse the evidence in order to find out whether or not there is sufficient ground to proceed against the accused and, if any, prima facie case is made out, charge is to be framed in terms of section 228 of Cr.P.C, if not, an order of discharge shall follow. The learned Judge also took note of the observation made in Dilwar vs. State reported in 2002(2) SCC 135 wherein it has been observed that the learned Judge cannot act merely as post office or a mouthpiece of the prosecution but has to consider the broad probability of the case, the total effect of the evidence and the documents produced before the Court but he should not make a roving inquiry into the pros and cons of matter and weigh the evidence as if he was conducting a trial.
It appears the learned Judge has failed to appreciate basic facts which transpires on the papers placed in the case diary, though he has clearly observed that he does not find any medical report to suggest that the defacto complainant was subjected to abortion of her pregnancy but from her version recorded in her complaint and her statement under Section 161 CrPC. It appears to me that the learned Judge was in his wishful thinking that there was a prima facie case made out even against the present petitioners parents-in-law of the defacto complainant whereas on bare reading of the documents, it is clear that prima facie allegation levelled by the defacto complainant is against her husband. Learned Judge further observed having regard to the document relating to treatment of the opposite party at Amrita Hospital dated 17.11.
2014, that they are suggestive of the fact that prior to marriage she was hospitalized for treatment. Even considering that there was a prima facie case pertaining to miscarriage, that can only be considered as against her husband but this Court must take note of the fact that it relates to premarital episode.
I am of the considered view in regard to object and reason of the provision under section 227 Cr.P.C for the discharge of an accused from a criminal proceeding before framing of the charge is a remedy that should be granted to a person who has been falsely or maliciously arraigned as an accused in a case. If the allegations made against the petitioners are false, the provision is very clear under section 227 Cr.P.C for the discharge of the petitioners in such situation.
In a sessions trial, the discharge of an accused is considered under section 227 of the Cr.P.C which provides that if the Judge considers that there is no sufficient grounds for proceeding against the accused upon hearing the submissions of the prosecution and the accused and on consideration of the record of the case together with the documents placed in the case diary, it is expedient on the part of the learned Judge to discharge the accused with the reasons for doing so. The Hon'ble Supreme Court in case of Vijayan Vs. State of Kerala and another reported in 2010 (2) SCC 398 has broadly formulated four guiding principles in the matter of discharge of an accused person and relating to framing of charge. They are - 1.
Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2.
Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
3.
The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 4.
That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
Thus, in respectful consideration of the above noted guiding principles, on the basis of material on record, if the court could form an opinion that the accused might have committed the offence it can frame the charge. However, at the time of framing the charge, probative value of the material on record cannot be gone into but before framing of charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission by the accused was possible and at the stage of section 227 and 228 of Cr.P.
C, the court is required to evaluate the material documents on record with a view to find out the existence of all the ingredients constituting the alleged offence but the court cannot be expected to presume that the prosecution story is gospel truth and if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused irrespective of the result of the trial, however, the jurisdiction of Sessions Judge is very limited at the stage of consideration of an application for discharge of an accused, but charge can also be framed on the basis of a strong suspicion on marshalling of facts and appreciation of evidence is not within the domain of the learned court at that point of time to avoid any mini trial.
It is settled principles of law by the Hon'ble Supreme Court that the provision of section 227 of Cr.P.C was enacted in the Code of Criminal Procedure for the purpose of saving the accused from unnecessary harassment by prolong trial. (see State of Orissa vs. Devendanath Padhi ( 2005(1) SCC p.568). In the context of the above, upon hearing learned advocate for the petitioners, defacto complaint and for the State, this Court finds that learned Judge has committed a serious error in his decision which is opposed to his own observation made in the body of the impugned order.
Thus, having perused the case diary placed before this Court, and on bare reading of the complaint, in my considered view, I find bald, ominous and general allegation against these two petitioners, who happen to be father-in-law and mother-in-law of the defacto complainant and there appears serious suspicion with regard to the investigation carried out which culminated in final report/ charge sheet under Section 498(A)/34 IPC read with Section 313 Cr.PC qua the petitioners. Accordingly, I hold that continuation of the proceeding against the petitioners would amount to misuse of the power of the court ergo, the revisional application being CRR/9/2021 is allowed and disposed of. Consequently, Bambooflat P.S. case No.
and P.Sura is hereby quashed, however, the prosecution will proceed as against the husband of the defacto complainant. The learned Trial Judge is accordingly requested to take steps for expeditious trial of the case. Parties are directed act on the basis of server copy of this order downloaded from the official website of this Court. (Shivakant Prasad, J.)