AKASH DEEP v. STATE

as “State Vs. Akash Deep etc.”, FIR No.86/2008 registered under Sections 498-A/306/34 of Indian Penal Code, 1860 (hereinafter referred to as, ―IPC‖) at Police Station Shahdara, Delhi. CRL.REV.P. 192/2009

2. The relevant facts for the disposal of the present revision petition are that a marriage between the petitioner and one Deepa was solemnized on 24.11.2007. Barely after nineteen (19) days of her marriage, Deepa committed suicide at her parental place. On

12.12.2007, a D.D. Entry was recorded at Police Station Shahdara, Delhi, regarding suicide/hanging by a girl, whereupon the police rushed at the spot and found dead body of a female, namely, Deepa Kapoor, having ligature marks on her neck. The body was lying in a room on the first floor of the house. The police did not find any case property/hanging material at the spot. Neither the same was produced by the family members of the deceased.

3. On the next day of incident i.e. 13.12.2007, statement of the father of the deceased was recorded by the SDM. In the statement, the father of the deceased did not make any allegation in respect of any demand of dowry, ill-treatment or harassment at the hands of the petitioner or his family members. Rather the father of the deceased had categorically stated that the deceased had no complaints from her in-laws as she was living happily with them and he had also specifically stated that he does not want any action against the petitioner and his family members on account of their being innocent.

4. On 27.03.2008, an FIR was registered on a subsequent complaint made by the father of the deceased wherein allegations were levelled against the petitioner and his family members upon finding a suicide note written by his daughter (deceased) CRL.REV.P. 192/2009 narrating the harassment and ill-treatment meted out to her at the hands of the petitioner and his family members. The complainant categorically stated that earlier when he gave the statement to the SDM on 13.12.2007, he did not make any allegations against the petitioner and his family members as he did not find the suicide note.

5. Vide order dated 17.01.2009, learned trial court passed an order on charge whereby the sister of the petitioner was discharged and a charge under Section 498-A/306 of the IPC was framed against the petitioner. Aggrieved by the aforesaid order, the present revision petition has been filed.

6. Learned counsel for the petitioner has strongly urged before this Court that no allegations were made against the petitioner and his family members in the first statement of the complainant dated 13.12.2007. In fact the complainant had given a complete clean chit to the petitioner and his family members and it had been categorically stated that there was no demand of dowry, ill- treatment or harassment at the hands of the petitioner or his family members. The father of the deceased had also stated that the deceased had no complaints from her in-laws and she was living happily with them. The father specifically stated that he did not want any action against the petitioner as they were innocent. Counsel for the petitioner further submits even otherwise, there is a gross delay in filing the FIR, which is based on a suicide note. It is stated that the suicide note was not in the handwriting of the deceased. The said suicide note was sent to the CFSL with the CRL.REV.P. 192/2009 admitted writing of the deceased and on careful examination of the same, the forensic expert has opined that the alleged suicide note is not written under the hand of the deceased, and thus, it is only an attempt to falsely implicate the petitioner in this case. In the light of the CFSL report, it can be safely said that the suicide note produced by the father of the deceased is forged and a fabricated document and, thus, no reliance can be placed thereupon. In support of his submissions, learned counsel for the petitioner relies upon Suraj Prakash Vs. State of Delhi, reported at 2007 [1] JCC 354. Counsel further relies upon Sanjy @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, reported at 2002 (2) RCR (Criminal) 687. Counsel for the petitioner also submits that no case is made out against the petitioner under Section 306 of the IPC as the ingredients of Section 107 (abetment) are not made out. There is nothing on record to show that there was any instigation or abetment on the part of the petitioner which led the deceased to commit suicide and moreover the deceased committed suicide at her parental home. Learned counsel further submits that at the stage of framing the charge, the Court is to consider whether a strong suspicion is made out against the accused persons or not, and which is certainly not made out herein.

7. This petition has been opposed by learned counsel for the State, primarily, on the ground that there is a strong prima facie case against the petitioner and there is every likelihood it would result in a conviction. Learned counsel for the State submits that at the CRL.REV.P. 192/2009 stage of framing of charge the Court is not to go into the evidence but may only sift the evidence and form a prima facie view of the matter. Counsel further submits that the CFSL report is only with respect to signatures on the suicide note. Further in the absence of admitted hand writing of the deceased, an opinion could not be formulated by the CFSL with regard to the handwriting in the note itself. Counsel also submits that as per the statement of the father of the deceased, the suicide note was in the handwriting of his daughter. The father of the deceased has also alleged that the accused had threatened the complainant in not making any complaint to the police. Counsel lastly submits that it has come on record that soon before the incident, the deceased had made a phone call to her husband. Counsel submits that all these factors are to be taken into consideration, at this stage.

8. I have heard learned counsel for the parties and given my thoughtful consideration to the matter. The law with regard to framing of charge and the revisional jurisdiction of this Court is well-settled. In the case of Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court laid broad contours on the point of framing of charge: ―10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the 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. CRL.REV.P. 192/2009 (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.

9. Similar opinion was expressed in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein the Apex Court held: “6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. These two sections read as under: Section 227 CrPC ―227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.‖ Section 228 CrPC CRL.REV.P. 192/2009 ―228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.‖

7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate to consider ―the police report and the documents sent with it under Section 173‖ and, if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers accused to be groundless, the accused is liable to be discharged by recording reasons thereof. the charge against throws light on

8. What is the meaning of the expression ―the record of the case‖ as used in Section 227 of the Code. Though the word ―case‖ is not defined in the Code but Section 209 interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit ―the case‖ to the Court of Session and send to that court ―the record of the case‖ and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of CRL.REV.P. 192/2009 Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.

9. Further, the scheme of the Code when examined in the light of the provisions of the old Code of 1898, makes the position more clear. In the old Code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207-A was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207-A. Under Section 207-A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under sub-section (1), to take evidence as provided in sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in sub-section (6) and to commit the accused for trial after framing of charge as provided in sub- section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in sub-section (14). The aforesaid Sections 207 and 207-A have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of the committal Magistrate framing the charge, it is now to be framed by the Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge. CRL.REV.P. 192/2009

10. Now, let us examine the decisions which have a bearing on the point in issue.

11. In State of Bihar v. Ramesh Singh1 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.

12. In Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja22 a three-Judge Bench held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. (emphasis supplied) Though in this case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer.

13. In State of Delhi v. Gyan Devi3 this Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.

14. In State of M.P. v. S.B. Johari4 it was held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.

15. In State of Maharashtra v. Priya Sharan Maharaj5 it was held that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out 1 2 3 4 5