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Saturday, November 23, 2013

Code of Criminal Procedure, 1973 - s.239 - Ambit of - Approach to be adopted by the Court while exercising the powers vested in it u/s.239 CrPC - Discussed - Matrimonial case - Allegations of harassment for dowry and mental and physical torture by wife against husband (appellant no.3) and parents-in-law (appellant nos.1 and 2) - Cognizance by Court u/s.498A - Application by appellants for discharge u/s.239 CrPC - Dismissed by trial Court - Justification of - Held: Justified = The case at hand being a warrant case is governed by Section 239 Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. A plain reading of Section 239 CrPC would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.- It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The submissions of the accused has to be confined to the material produced by the police. Clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material.= Sheoraj Singh Ahlawat & Ors. …Appellants Versus State of Uttar Pradesh & Anr. …Respondents = Pulished in http://judis.nic.in/supremecourt/helddis.aspx

      Code of Criminal Procedure, 1973 - s.239 - Ambit of - Approach to be
adopted by the Court while exercising the powers vested in it u/s.239 CrPC
- Discussed - Matrimonial case - Allegations of harassment for dowry and
mental and physical torture by wife against husband (appellant no.3) and
parents-in-law (appellant nos.1 and 2)  - Cognizance by Court u/s.498A -
Application by appellants for discharge u/s.239 CrPC - Dismissed by trial
Court - Justification of - Held: Justified - Whether or not the allegations
were true is a matter which could not be determined at the stage of framing
of charges - Any such determination can take place only at the conclusion
of the trial - Nature of the allegations against the appellants too
specific to be ignored at least at the stage of framing of charges - Courts
below therefore justified in refusing to discharge the appellants.

Appellant No.3 is the husband and appellants No.1 and 2 are the parents-in-
law of respondent no.2. Respondent no.2 alleged that the appellants were
harassing her for dowry and subjecting her to physical and mental torture.
Respondent No.2's further case is that on 10th December, 2006 she was
forced into a car by the appellants who then abandoned her at a deserted
place on a lonely road at night and threatened to kill her if she returned
to her matrimonial home. The jurisdictional police filed closure report to
which respondent no.2 filed a protest petition. On the basis of the
protest petition, the Judicial Magistrate took cognizance against the
appellants under Section 498A IPC.

The appellants thereafter filed application for discharge under Section 239
CrPC contending that the accusations of dowry harassment as also the
alleged incident of 10th December, 2006 were false. The application for
discharge was dismissed by the trial Court holding that the grounds urged
for discharge could be considered only after evidence was adduced in the
case. Aggrieved, the appellants preferred Criminal Revision which was
dismissed by the High Court and therefore the instant appeal.

                    Dismissing the appeal, the Court

HELD:1.1. The case at hand being a warrant case is governed by Section 239
Cr.P.C. for purposes of determining whether the accused or any one of them
deserved to be discharged.  A plain reading of Section 239 CrPC would show
that the Court trying the case can direct discharge only for reasons to be
recorded by it and only if it considers the charge against the accused to
be groundless. Section 240 CrPC provides for framing of a charge if, upon
consideration of the police report and the documents sent therewith and
making such examination, if any, of the accused as the Magistrate thinks
necessary, the   Magistrate is of the  opinion  that there  is
ground for presuming that the accused has committed an offence triable
under Chapter XIX, which such Magistrate is competent to try and which can
be adequately punished by him. [Paras 10, 11]

1.2. It is trite that at the stage of framing of charge the court is
required to evaluate the material and documents on record with a view to
finding out if the facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients constituting the alleged
offence. At that stage, the court is not expected to go deep into the
probative value of the material on record. What needs to be considered is
whether there is a ground for presuming that the offence has been committed
and not a ground for convicting the accused has been made out. At that
stage, even strong suspicion founded on material which leads the court to
form a presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of charge
against the accused in respect of the commission of that offence. [Para 11]

1.3. It is well-settled that at the stage of framing of charge the defence
of the accused cannot be put forth. The submissions of the accused has to
be confined to the material produced by the police. Clearly the law is that
at the time of framing charge or taking cognizance the accused has no right
to produce any material. [Para 14]

Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC
561: 2007 (13) SCR 716; State of Karnataka v. L. Muniswamy 1977 Cri.LJ
1125; State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ
2448; State of M.P. v. Mohanlal Soni  2000 Cri.LJ 3504; State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568: 2004 (6) Suppl. SCR 460; Smt. Rumi
Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364: 2009 (5) SCR 553 and
Union of India v. Prafulla Kumar Samal and Anr. v.  (1979) 3 SCC 4: 1979
(2) SCR 229 - relied on.

Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667: 2010
(9) SCR 1168; Sajjan Kumar v. Central Bureau of Investigation (2010) 9 SCC
368: 2010 (11) SCR 669; Shakson Belthissor v. State of Kerala and Anr.
(2009) 14 SCC 466 - cited.

2. In the case at hand, the allegations made are specific not only against
the husband-appellant no.3 but also against the parents-in-law (appellant
nos. 1 and 2) of the complainant-wife. Whether or not those allegations are
true is a matter which cannot be determined at the stage of framing of
charges.  Any such determination can take place only at the conclusion of
the trial. This may at times put an innocent party, falsely accused of
commission of an offence to avoidable harassment but so long as the legal
requirement and the settled principles do not permit a discharge the Court
would find it difficult to do much, conceding that legal process at times
is abused by unscrupulous litigants especially in matrimonial cases where
the tendency has been to involve as many members of the family of the
opposite party as possible.  While such tendency needs to be curbed, the
Court will not be able to speculate whether the allegations made against
the accused are true or false at the preliminary stage to be able to direct
a discharge. Two of the appellants in this case happen to be parents-in-law
of the complainant who are senior citizens. Appellant No.1 who happens to
be the father-in-law of the complainant-wife has been a Major General, by
all means, a respectable position in the Army. But the nature of the
allegations made against the couple and those against the husband, appear
to be much too specific to be ignored at least at the stage of framing of
charges. The Courts below, therefore, did not commit any mistake in
refusing a discharge.  [Para 17]

3. Keeping, however, in view the facts and circumstances of the case, it is
directed that appellant Nos. 1 and 2 shall stand exempted from personal
appearance before the trial Court except when the trial Court considers it
necessary to direct their presence.  The said appellants shall, however,
make sure that they are duly represented by a counsel on all dates of
hearing and that they cooperate with the progress of the case failing which
the trial Court shall be free to direct their personal appearance. [Para
18]

                          Case Law Reference

2010 (9) SCR 1168 cited Para 8
2010 (11) SCR 669 cited Para 8
2004 (6) Suppl. SCR 460 relied on Paras 8, 14
2007 (13) SCR 716 relied on Paras 8, 11
(2009) 14 SCC 466 cited Para 8
2009 (5) SCR 553 relied on Paras 8, 15
1979 (2) SCR 229 relied on Paras 9, 16
1977 Cri.LJ 1125 relied on Para 12
1996 Cri.LJ 2448 relied on Para 12
2000 Cri.LJ 3504 relied on Para 12, 13

                         REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
               CRIMINAL APPEAL NO.   1803              OF 2012
               (Arising out of S.L.P. (Crl.) No.4649 of 2010)


Sheoraj Singh Ahlawat & Ors.                 …Appellants

      Versus

State of Uttar Pradesh & Anr.                      …Respondents



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.


2.    This appeal is directed against a judgement and order dated  6th  May,
2010, passed by the High Court of Judicature at Allahabad  whereby  Criminal
Revision No.1241 of 2010 filed by the  appellants  has  been  dismissed  and
order dated 9th March, 2010 passed by the  Additional  Judicial  Magistrate,
Bulandshahar dismissing an application for discharge affirmed.  The  factual
backdrop in which the matter arises may be summarised as under:

3.    Appellant No.3-Naveen Ahlawat and respondent  no.2-Smt.  Renu  Ahlawat
tied the matrimonial knot on 28th September, 1998. Appellant  No.3  was,  at
that time, serving in Indian Army as a  Captain.  The  couple  were  blessed
with a daughter three years after marriage. According to the wife-Smt.  Renu
Ahlawat, the addition to the family did not make much  of  a  difference  in
terms of cordiality  of  her  relations  with  her  husband  Captain  Naveen
Ahlawat and appellants No.1 and 2 who happen to be  her  parents  in-law  as
they kept harassing her for dowry ever since the  marriage  was  solemnised.
These demands, according to her, continued even after her father had paid  a
sum of rupees four lakhs to the appellants. Physical and mental  torture  of
respondent No.2-Renu Ahlawat, it is alleged, also did not  stop  even  after
the said payment, for the sake of a luxury car  as  an  additional  item  of
dowry. Respondent No.2-Smt. Renu Ahlawat’s further  case  is  that  on  10th
December, 2006 she was  forced  into  a  car  by  the  appellants  who  then
abandoned her at a deserted place on a lonely  road  near  Sihi  village  at
around 8 p.m. and threatened to kill her if she returned to her  matrimonial
home. When Jitendar Singh and Brijvir Singh  two  villagers  saw  respondent
No.2-Renu Ahlawat weeping by the side of the  road,  besides  the  car  they
tried to confront the appellants whereupon appellant No.3-Naveen is  alleged
to have pulled out a revolver and threatened to shoot them.

4.    A complaint about the incident was lodged on 13th December,  2006,  by
respondent No.2-Renu Ahlawat  with  SSP,  Bulandshahar  in  which  she  gave
details regarding her marriage with the appellant  No.3-Naveen  Ahlawat  and
the mental and physical harassment faced by  her  at  their  hands  as  also
repeated demands for dowry. She also accused her sisters-in-law,  Neena  and
Meghna for indulging in such harassment along with the appellants.

5.    The jurisdictional police started investigation into the incident,  in
the course whereof complainant-Smt. Renu Ahlawat  came  to  know  about  her
husband-Naveen Ahlawat having  obtained  an  ex  parte  decree  for  divorce
against her.  A copy of the said judgment and decree was collected  by  Smt.
Renu Ahlawat on 28th November, 2006 and steps taken to  have  the  same  set
aside. The decree was eventually set aside by the Court concerned.

6.    The police, in the meantime, filed a  closure  report  to  which  Renu
Ahlawat filed a protest petition.  It  was  on  the  basis  of  the  protest
petition that Judicial  Magistrate,  Bulandshahar,  took  cognizance  of  an
offence punishable under Section 498-A of the I.P.C. against the  appellants
as also against Neena and Meghna sisters-in-law of the complainant.   By  an
order dated 13th February, 2009 Neena and  Meghna  were  discharged  by  the
High Court of Allahabad on the ground  that  no  specific  allegations  were
made against them. The appellants then filed an  application  for  discharge
under Section 239 of the  Code  of  Civil  Procedure,  1973  before  learned
Additional Chief Judicial Magistrate, Bulandshahar  in  which  they  alleged
that the accusations of dowry harassment levelled against  them  were  false
and so was the incident alleged to have taken place on 10th  December,  2006
on which date both appellants No.1 and his son appellant No.3 claimed to  be
otherwise engaged which according to them belied  Renu  Ahlawat’s  story  of
their having abandoned her on  a  deserted  road  as  alleged  by  her.  The
application for discharge was, however, dismissed  by  the  Court  by  order
dated 9th March, 2010 holding that the grounds urged for discharge could  be
considered only after evidence was adduced in the case  and  that  appellant
No.2 could not be discharged on the basis of  minor  contradictions  in  the
depositions recorded in the course of the investigation.

7.    Aggrieved by the order  passed  by  the  Trial  Court  the  appellants
preferred Criminal Revision No.1241 of 2010 which was dismissed by the  High
Court on the ground that the same did not make out a case  for  quashing  of
the proceedings against the  appellants.  The  present  appeal  assails  the
correctness of the said order of dismissal.

8.    On behalf of the appellant it was  argued  on  the  authority  of  the
decisions of this Court in Preeti Gupta and Anr. v.  State  of  Jharkhand  &
Anr. (2010) 7 SCC 667,  Union of India v.  Prafulla  Kumar  Samal  and  Anr.
(1979) 3 SCC 4, Sajjan Kumar v. Central Bureau  of  Investigation  (2010)  9
SCC 368, State of Orissa v. Debendra Nath Pandhi (2005)  1  SCC  568,  Onkar
Nath Mishra and Ors. v. State (NCT of Delhi) and  Anr.  (2008)  2  SCC  561,
Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466,  and  Rumi
Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC  364,  that  while
considering an application for discharge the Court can examine the  evidence
on record and discharge the accused persons if there is  no  possibility  of
the accused being found guilty on the basis of such  evidence  specially  in
cases where the accused produces unimpeachable evidence in  support  of  his
defence. It was also  contended  that  while  examining  whether  the  Court
should or should not discharge the accused,  it  must  be  remembered,  that
Section 498-A of the IPC is a much abused  provision  and  that  exaggerated
versions of small  incidents  are  often  presented  to  falsely  implicate,
harass and humiliate the husband and his relatives. Applying the  principles
set out in the above decisions the appellants were, according to  Ms.  Geeta
Luthra, learned counsel appearing for them,  entitled  to  a  discharge  not
only because there was an inordinate delay in the filing  of  the  complaint
by respondent No.1 but also because the statements made  under  Section  161
Cr.P.C. by the witnesses who were either planted or merely chance  witnesses
were  contradictory  in  nature.   It  was  argued  that  two  Investigating
Officers having investigated the matter and  found  the  allegations  to  be
false, there was no reason for the Court to believe the story set up by  the
wife who had suffered a decree for  divorce  in  regard  to  which  she  had
written to the Army Authorities a letter dated  2nd  October,  2006  stating
that she was not pursuing the matter in  any  Court.  Appellant  No.3-Naveen
Ahlawat having got re-married on 30th October, 2006  the  incident  referred
in the complaint was a fabrication which aspect the Courts below had  failed
to consider thus failing to protect the appellants  against  harassment  and
the ignominy of a criminal trial.
9.    On behalf of respondent No.2,  it  was  per  contra  argued  that  her
husband had filed a divorce  petition  against  her  in  the  Family  Court,
Meerut showing respondent No.2 to be  residing  with  her  parents  at  327,
Prabhat  Nagar,  Meerut,  whereas  she  was  actually  residing   with   the
appellants along with her daughter at  No.  9,  Tigris  Road,  Delhi  Cantt,
Delhi. It was further argued that appellant No.3 had obtained  an  ex  parte
decree order of divorce by fraudulent means and  by  forging  signatures  of
respondent No.2, acknowledging receipt of the notice  which  she  had  never
received from the concerned Court.  This  was  conclusively  established  by
the fact that the ex parte decree dated 31st May, 2006 had  been  eventually
set aside by the Court in terms of order dated 28th July, 2007.  Allegations
regarding physical torture of respondent No.2 and  her  being  abandoned  on
the road on the date of incident in question as also  the  allegation  about
dowry harassment were factually correct  and  made  out  a  clear  case  for
prosecuting the appellants. Appellant No.3 had,  according  to  the  counsel
for the respondent, married one Aditi on 30th October, 2006.   It  was  also
argued that letter referred to by appellant No.3 as also  letter  dated  2nd
November,  2006  allegedly  written  by  respondent  No.2   were   forgeries
committed by the appellants. The trial  Court  was,  in  the  light  of  the
available material, justified in refusing to discharge the  accused  persons
and that the grounds for  discharge  set  up  by  the  appellants  could  be
examined only after the case had gone through full-fledged  trial.  Reliance
was placed upon a decision of this Court  in  Union  of  India  v.  Prafulla
Kumar Samala and Anr. (1979) 3 SCC 5.

10.   The case at hand being a warrant case is governed by  Section  239  of
the Cr.P.C. for purposes of determining whether the accused or  any  one  of
them deserved to be discharged.  Section 239 is as under:




         “239. When accused shall be discharged.


         If, upon considering the police report  and  the    documents  sent
         with it under section 173 and making such examination, if  any,  of
         the accused as the Magistrate thinks necessary and after giving the
         prosecution and the accused an  opportunity  of  being  heard,  the
         Magistrate  considers  the  charge  against  the  accused   to   be
         groundless, he shall discharge the accused, and record his  reasons
         for so doing.”


11.   A plain reading of the above would show  that  the  Court  trying  the
case can direct discharge only for reasons to be recorded by it and only  if
it considers the charge against the accused to be  groundless.  Section  240
of the Code provides for framing of a charge if, upon consideration  of  the
police report and the documents sent therewith and making such  examination,
if any, of the accused as the Magistrate thinks  necessary,  the  Magistrate
is of the opinion that there is ground for presuming that  the  accused  has
committed an offence triable under Chapter XIX,  which  such  Magistrate  is
competent to try and which can be adequately punished by him. The  ambit  of
Section 239 Cr.P.C. and the approach  to  be  adopted  by  the  Court  while
exercising the powers vested  in  it  under  the  said  provision  fell  for
consideration of this Court in Onkar Nath Mishra and Ors. v. State  (NCT  of
Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which  a  complaint
under Sections 498-A and 406 read with Section 34 of the  I.P.C.  was  filed
against  the  husband  and  parents-in-law  of  the  complainant-wife.   The
Magistrate had in that case discharged the accused under Section 239 of  the
Cr.P.C, holding that the charge was groundless. The  complainant  questioned
that order before the Revisional Court which directed  the  trial  Court  to
frame charges against the accused persons. The High  Court  having  affirmed
that order, the matter was brought up  to  this  Court.  This  Court  partly
allowed the appeal qua the parents-in-law while dismissing the same qua  the
husband. This Court explained the legal position  and  the  approach  to  be
adopted by the Court at  the  stage  of  framing  of  charges  or  directing
discharge in the following words:



         “11. It is trite that at the stage of framing of charge  the  court
         is required to evaluate the material and documents on record with a
         view to finding out if the facts emerging therefrom, taken at their
         face  value,  disclosed  the  existence  of  all  the   ingredients
         constituting the alleged offence. At that stage, the court  is  not
         expected to go deep into the probative value  of  the  material  on
         record. What needs to be considered is whether there  is  a  ground
         for presuming that the offence has been committed and not a  ground
         for convicting the accused has been made out. At that  stage,  even
         strong suspicion founded on material which leads the court to  form
         a  presumptive  opinion  as  to  the  existence  of   the   factual
         ingredients constituting the  offence  alleged  would  justify  the
         framing of charge against the accused in respect of the  commission
         of that offence.”

                                        (emphasis supplied)

12.   Support for the above view  was  drawn  by  this  Court  from  earlier
decisions rendered in State of Karnataka v. L. Muniswamy 1977  Cri.LJ  1125,
State of Maharashtra & Ors. v. Som Nath Thapa and  Ors.   1996  Cri.LJ  2448
and State of M.P. v. Mohanlal Soni  2000 Cri.LJ 3504.  In  Som  Nath’s  case
(supra) the legal position was summed up as under:

         “if on the basis of materials on record, a court could come to  the
         conclusion  that  commission  of  the   offence   is   a   probable
         consequence, a case  for  framing  of  charge  exists.  To  put  it
         differently, if the court were to think that the accused might have
         committed  the  offence  it  can  frame  the  charge,  though   for
         conviction the conclusion is required to be that  the  accused  has
         committed the offence. It is apparent that at the stage of  framing
         of a charge, probative value of the materials on record  cannot  be
         gone into; the materials brought on record by the  prosecution  has
         to be accepted as true at that stage.”

                                        (emphasis supplied)




13.   So also in Mohanlal’s case (supra)  this  Court  referred  to  several
previous  decisions  and  held  that  the  judicial  opinion  regarding  the
approach to be adopted for framing of charge is that such charges should  be
framed if the Court prima facie finds that there is  sufficient  ground  for
proceeding against the accused. The Court  is  not  required  to  appreciate
evidence as if to determine whether the material produced was sufficient  to
convict the accused.  The following passage from the decision in  Mohanlal’s
case (supra) is in this regard apposite:

         “8. The crystallized judicial view is that at the stage of  framing
         charge, the court has to prima  facie  consider  whether  there  is
         sufficient ground for proceeding against the accused. The court  is
         not  required  to  appreciate  evidence  to  conclude  whether  the
         materials  produced  are  sufficient  or  not  for  convicting  the
         accused.”







14.   In State of Orissa v. Debendra Nath Pandhi  (2005)  1  SCC  568,  this
Court was considering whether the trial Court can at the time of framing  of
charges consider material filed by the accused.  The question  was  answered
in the negative by this Court in the following words:

         “18. We are unable to accept the aforesaid contention. The reliance
         on Articles 14 and  21 is  misplaced...Further,  at  the  stage  of
         framing of charge roving and fishing inquiry is  impermissible.  If
         the contention of the accused is accepted, there would  be  a  mini
         trial at the stage of framing of  charge.  That  would  defeat  the
         object of the Code. It is well-settled that at the stage of framing
         of charge the defence of the  accused  cannot  be  put  forth.  The
         acceptance of the contention of the learned counsel for the accused
         would mean permitting the accused to  adduce  his  defence  at  the
         stage of framing of charge and  for  examination  thereof  at  that
         stage which is  against  the  criminal  jurisprudence.  By  way  of
         illustration, it may be noted that the plea of alibi taken  by  the
         accused may have to be examined at the stage of framing  of  charge
         if the contention of the  accused  is  accepted  despite  the  well
         settled proposition that it is for the accused to lead evidence  at
         the trial to sustain such a plea. The accused would be entitled  to
         produce materials and documents in proof of  such  a  plea  at  the
         stage of framing of the charge, in case we  accept  the  contention
         put forth on behalf  of  the  accused.  That  has  never  been  the
         intention of the law well settled for over one hundred  years  now.
         It  is  in  this  light  that  the  provision  about  hearing   the
         submissions of the accused as postulated by Section  227 is  to  be
         understood. It only means hearing the submissions of the accused on
         the record of the case as filed by the  prosecution  and  documents
         submitted therewith and nothing more. The expression  'hearing  the
         submissions  of  the  accused'  cannot  mean  opportunity  to  file
         material to be granted to the  accused  and  thereby  changing  the
         settled law.  At  the  state  of  framing  of  charge  hearing  the
         submissions of the accused has  to  be  confined  to  the  material
         produced by the police...

         xx xx xx xx

         23. As a result of aforesaid discussion, in our view,  clearly  the
         law is that at the time of framing charge or taking cognizance  the
         accused has no right to produce any material...”

                                        (emphasis supplied)



15.   Even in Smt. Rumi Dhar v. State of West Bengal &  Anr.  (2009)  6  SCC
364, reliance whereupon was placed by counsel for the appellants  the  tests
to be applied at the stage of discharge of the accused person under  Section
239 of the Cr.P.C.,  were  found  to  be  no  different.  Far  from  readily
encouraging discharge, the Court  held  that  even  a  strong  suspicion  in
regard to the commission of the  offence  would  be  sufficient  to  justify
framing of charges. The Court observed:

         “...While considering an application for discharge filed  in  terms
         of Section 239 of the Code, it was for the learned Judge to go into
         the details of the allegations made against  each  of  the  accused
         persons so as to form an opinion as to whether any case at all  has
         been made out or not as a strong suspicion in regard thereto  shall
         subserve the requirements of law...



16.   To the same effect is the decision of this Court in Union of India  v.
Prafulla Kumar Samal and Anr. v.  (1979) 3  SCC  4,  where  this  Court  was
examining a similar question in the context of Section 227 of  the  Code  of
Criminal Procedure.  The legal position was summed up as under:

         “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:


         (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 Judge cannot act merely as a Post Office  or  a  mouth-
         piece  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.”









17.   Coming then to the case at hand,  the  allegations  made  against  the
appellants are specific not only against the husband but  also  against  the
parents-in-law of the complainant-wife. Whether  or  not  those  allegations
are true is a matter which cannot be determined at the stage of  framing  of
charges.  Any such determination can take place only at  the  conclusion  of
the trial. This may at times put  an  innocent  party,  falsely  accused  of
commission of an offence to avoidable harassment but so long  as  the  legal
requirement and the settled principles do not permit a discharge  the  Court
would find it difficult to do much, conceding that legal  process  at  times
is abused by unscrupulous litigants especially in  matrimonial  cases  where
the tendency has been to involve as  many  members  of  the  family  of  the
opposite party as possible.  While such tendency needs  to  be  curbed,  the
Court will not be able to speculate whether  the  allegations  made  against
the accused are true or false at the preliminary stage to be able to  direct
a discharge. Two of the appellants in this case happen to be  parents-in-law
of the complainant who are senior citizens. Appellant No.1  who  happens  to
be the father-in-law of the complainant-wife has been a  Major  General,  by
all means, a respectable position  in  the  Army.  But  the  nature  of  the
allegations made against the couple and those against  the  husband,  appear
to be much too specific to be ignored at least at the stage  of  framing  of
charges. The  Courts  below,  therefore,  did  not  commit  any  mistake  in
refusing a discharge.

18.   In the result, this appeal fails and  is  hereby  dismissed.  Keeping,
however, in view the facts and circumstances of the  case,  we  direct  that
appellant Nos. 1 and 2 shall stand exempted from personal appearance  before
the trial Court except when  the  trial  Court  considers  it  necessary  to
direct their presence.  The said appellants shall, however, make  sure  that
they are duly represented by a counsel on all  dates  of  hearing  and  that
they cooperate with the progress of the case failing which the  trial  Court
shall  be  free   to   direct   their   personal   appearance.   No   costs.






                                                  ……………………….……………………..…….…J.
                                                               (T.S. THAKUR)


                                                 ……………………….………………….…..……….J.
                                          (FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
November 9, 2012

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