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
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.
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
