IN THE COURT OF SH. DHARMESH SHARMA

ADDITIONAL SESSIONS JUDGE-II, NORTH DISTRICT : DELHI

CRIMINAL REVISION NO: 38/08

SMT. MADHU BHALLA
W/O SH. SANDEEP BHALLA
D/O LT. SH. S. K. BAGGA
R/O 133/10, D.C.M. RAILWAY COLONY,
KISHAN GANJ, DELHI-110006 …. REVISIONIST

VERSUS

1. SH. SANDEEP BHALLA
S/O SH. R. R. P. S. BHALLA

2. SMT. RENU BHALLA
W/O SH. R. R. P. S. BHALLA

3. BOBBY BHALLA
S/O SH. R. R. P. S. BHALLA

4. JAISMEEN
W/O BOBBY BHALLA

ALL RESIDENT OF

C-2/292, 2ND FLOOR, JANAKPURI, NEW DELHI-110058 ………..RESPONDENTS

APPEARANCE:-

Sh. S. K. Badhwar, Advocate for the petitioner / revisionist. Sh. Biju Shanker, Advocate for Respondents ORDER :-

1. This Criminal Revision is directed against an order dated 14.02.2008 passed by Ms. Preeti Aggarwal Gupta, Learned Metropolitan Magistrate, Delhi whereby she has been pleased to discharge accused / respondents no. 2 to 4 for an offence u/s 498A/406/34 IPC.

2. The facts giving rise to the present case in a nutshell are : that the petitioner got married to respondent no. 1 on 03.02.2001 as per Hindu Rites and Ceremonies; as per the complainant they resided together till about 28.06.2001 when the present complaint was lodged with the police. There is no issue from this marriage. It is alleged by the complainant wife that despite bringing handsome dowry in the marriage she has been ill treated by her husband and in laws for more and more demand of dowry; that soon after the marriage Rs.20,000/- was taken from her for the honeymoon trip to Himanchal Pradesh which was misappropriated; that the accused husband allegedly demanded a Car and an air conditioner; that she was given mercilessly beating by her husband and mother in law when her licence as Oath Commissioner expired; that on 06.06.2001 when licence of Oath Commissioner was granted for two years, they demanded a diamond ring; that earlier she had to borrow Rs.10,000/- from a colleague to give it to the accused persons; that the accused persons taunted and humiliated her, so much so that on 16.06.2001 the accused persons mercilessly beat her and her brother in law Boby i.e. accused no. 3 attempted to burn her alive by putting his saree on a burning gas stove but somehow she was saved; that on 17.06.2001 she was abused and humiliated by using vulgar and derogatory language for her and her family members; She was locked in a room and was not given any food and this continued up to 19.06.2001 on which date accused no. 4 Jaismeen put a cloth in her mouth and her (Devar) accused no. 3 Bobby Bhalla hit her hard on her head and she fell unconscious but somehow in the nick of time she was able to regain her consciousness and called her parents consequent to which DD no. 14 A was recorded on 19.06.2001 with Police Station Janakpuri, Delhi; she was taken to St. Stephen hospital for treatment of internal bleedings but the hospital finding that it is a police case, referred her to HR Hospital and due to her unstable mental and physical condition she could not state the entire account of the incident to the police. She, therefore, sought action against the accused persons u/s 498A/406/34 IPC.

3. Learned Metropolitan Magistrate, Delhi after considering the entire material produced by the prosecution found that there was no sufficient material to substantiate the allegations of the complainant in regard to 16.06.2001, 17.06.2001 and 19.06.2001 and relying on observations of their lordship in Ms. Anu Gil v. State & Ors, 2001 (2) JCC (Delhi) 86, she was pleased to discharge all the accused sans the husband.

4. I have given my thoughtful consideration to the submissions made by Ld. counsel for the parties. I have also gone through the oral and documentary evidence including the Trial Court Record.

5. First thing first, the impugned order discharging the accused/respondent nos. 2 to 4 is not an interlocutory order within the meaning of Section 397 (2) of Cr.P.C and there could be no doubt that the present revision petition is maintainable. Reference can be had to decision in Haryana Land Declamation & Development Corporation v. State of Haryana, 1990 (2) PLR 702, 1990 (2) RCR (Crl.) 189.

6. The Second issue that concerns this Court is that it is not the State which has come in the revision but the complainant herself. There is no bar in law that the complainant cannot come in the revision against an order passed in a State case.

7. The Third thing that concerns this Court is whether the impugned order passed by the Ld. Trial Court suffers from any illegality, incorrectness or impropriety in reference to Section 239 of the Cr.P.C. Section 239 of the Cr.P.C. provides that the Magistrate shall consider the police report and the documents filed there with and after giving an opportunity of hearing with the prosecution and the accused, he shall discharge the accused, if the charge against him appeared to be groundless. Section 240 of the Cr.P.C. further provides that if upon consideration of the material on the record, examination if any, and after the hearing, the Magistrate may frame the charge where there is a ground for presuming that the accused has committed an offence triable under this Chapter.

8. In an old case Sudhir Kumar Jain v. State (Delhi), 1994 (3) RCR Criminal 42; 1994 (2) Crimes 954 in reference to an earlier decision by the Apex Court in C. S. & Mfg. Co. v. State of Maharashtra, AIR 1972 SC 545 it was observed as under:

An Accused is to be discharged under Section 239 of the Code of Criminal Procedure only if the Magistrate considers the charge against him to be groundless. The work “groundless” connotes absence of any ground for presuming that the accused has committed an offence. It would mean a case where the materials collected by the investigation agency are found to be not even remotely sufficient to raise strong suspicion against the accused. The Apex Court in C. S. & Maf. Co. v. State of Maharashtra, AIR 1972 SC 545 held that when the provisions says that the charges must be considered to be groundless, it means “the same thing as saying that there is no ground for framing the charges’. Section 239 of the Code has to be read along with Section 240 of the Code according to which, it after considering the documents and haring the accused the Magistrate things that there is ground for presuming that the accused has committed an offence triable as a warrant case which he is competent to try and adequately punished, he has to frame in writing a charge against the accused. Surety at the stage envisaged by Sections 239 and 240 of the Code of Court has to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. It cannot and must not blindly adopt what the prosecution claims. However, at the same time while looking into the matter the court is not to apply the standard of test and judgment which is to be finally applied before recording a finding of guilt or otherwise. At the stage of Sections 239 and 240 of the Code if there is a strong suspicion which makes the court think that thee is ground for presuming that the accused has committed an offence, the court would not be justified in saying that there was no sufficient ground for proceeding against the accused. This being the law can it be said that the learned trial Magistrate has violated it? The answer, to my mind, must be in the negative.
9. It is also well settled that the Court has power to sift and weigh the evidence for the limited purpose to find out whether there is prima facie case against the accused and if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but does not raise grave suspicion against the accused, he will be fully within his right to discharge the accused. Reference can be held to decision in State v. Rupinder Kumar (Delhi), 2008 (1) RCR Crl. 493, Rajiv Mehta v. State (Delhi), 2002 (1) RCR (Crl.) 38, 2001 FJCC

46.

10. Now, in a matrimonial case arising out of proceedings u/s 498A/406/34 IPC, if the recent case law is of any indication, the courts have become more and more circumspect in carefully examining the material on record at the stage of framing of charge since there has been rampant misuse of such provisions for all of us to see. In the case of Ms. Anu Gil v. State & Ors, 2001 (2) JCC (Delhi) 86 it was noted with concern that “it has almost become a practice that whenever a police report is lodged consequent upon a matrimonial discord, there is always a tendency on the part of the complainant to involve practically all the relations of her in-laws’ family either out of vengeance or to curl out appropriate settlement. Such a tendency ought to be deprecated.”

11. While it would be a rule of caution and prudence not to generalize the situation and deal with the issues on case to case basis, to my mind what becomes rule of guidance is that the evidence brought on record at the time of framing of charge must be carefully sifted and weighed for a limited purpose to find out whether or not there are prima facie grounds to proceed against the accused persons. In the case in hand, bare perusal of the entire complaint of the wife would indicate that she remained in the matrimonial home hardly for four months and ten days during which period she had constant bickering with her husband resulting in loss of faith and trust for each other. In the process, it may be that her in laws supported her husband but as a whole the only allegations that comes out is that her in laws instigated her husband and made her life miserable in the matrimonial home. This is exemplified from the allegations that her brother in law and sister in law accused/respondent no. 3 and 4 called her “Moti Aurat, Pagal, 35-40 Years Lady etc.” such words alone cannot bring the case within the ambit of Section 498 A of IPC.

12. Learned Metropolitan Magistrate has rightly observed in her detailed order that the specific instance are of dated 16.06.2001, 17.06.2001 and 19.06.2001. Complainant is an Advocate and it is not believable that if there was made an attempt to burn her alive, why she did not make a report to the police. There is no medical report placed on record which would indicate that she sustained any burn injuries at the hands of the accused on 16.06.2001. It is alleged that on 17.06.2001 she was hit as a result of which she became unconscious but again such allegations are not supported by any medical evidence. The last incident is of 19.06.2001 when she alleged that she was locked inside in a room after being beaten up mercilessly. It is strange that there was no report made to the police immediately and the nature of injuries again are not corroborated by her medical examination.

13. It may also be indicated that there are no specific allegations regarding the entrustment of any items of stridhan to accused / respondent nos. 2 to 4 at any point of time during her stay in the matrimonial home or its misappropriation by them. A reading of the complaint as a whole leads to an irresistible inference that the accusation against accused / respondent no. 2-4 are absolutely groundless and there is no presumption that they have committed any offence. It appears to be a case where the complainant out of ill Will against her husband has tried to rope in all the family members of her husband.

14. In the said view of the matter, I do not find that the impugned order suffers from any illegality, impropriety or incorrectness. Revision petition is accordingly dismissed. Trial Court Record be sent back along with a copy of this order. File be consigned to Record Room.

ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY: ON 01.10.2009. ASJ-II, NORTH DISTRICT,
DELHI.

CR 38/08

01.10.2009

Present: Sh. S. K. Badhwar, Advocate for the petitioner / revisionist.

Sh. Biju Shanker, Advocate for Respondents Vide separate order of even date, the revision petition is dismissed. Trial court record be sent back along with a copy of this order. File be consigned to record room.

(DHARMESH SHARMA) ASJ-II, NORTH DISTRICT, DELHI.