Vikashchandra Mishra vs The State Of Madhya Pradesh on 17 November, 2017

1 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

M.Cr.C. No.4591/2017

………Applicant: Vikashchandra Mishra

Versus

………Respondents : State of M.P. and another
—————————————————————————————-
Shri H.S. Dubey, Senior Counsel with Shri Abhinav Dubey,
Counsel for the applicant.
Shri Sourabh Shrivastava, Deputy Government Advocate for
respondent no.1/State.
Applicant-Vikashchandra Mishra and respondent-Smt. Anupama
Mishra are present in person.
—————————————————————————————-
Date of hearing : 16/11/2017
Date of order : 17/11/2017
Whether approved for reporting : No
ORDER

(17/11/2017)
Per Justice G.S. Ahluwalia,
This application under Section 482 of Cr.P.C. has been filed
against the order dated 1-3-2017 passed by Sessions Judge,
Shahdol in Criminal Revision No.6/2017, thereby affirming the
order dated 26-12-2006 passed by J.M.F.C. Shahdol in Criminal
Case No.529/2016 by which the Trial Court has framed charge
under
Section 498-A of I.P.C. against the applicant.

The undisputed facts are that the applicant and the
respondent no.2 were married on 30-1-2013 and have one child
out of wedlock.

2 M.Cr.C. No.4591/2017

[Vikashchandra Mishra Vs. State of M.P. and another]

The respondent no.2 has lodged a F.I.R. on 15-5-2016 on
the allegations that she is working on the post of Sub-Inspector in
Railway Department. She was married to the applicant in the year
2013 as per Hindu Rites and Rituals. One boy was born who died
immediately after his birth. They have one daughter aged about
10 months. On 15-5-2016, she had gone on her duty. When she
came back, she was having high fever and requested the
applicant to serve food, otherwise she would go back to her
parents’ house. The applicant replied that she may go anywhere,
but she will have to leave the child with him and on trivial issues,
he is pressurizing her to give divorce by mutual consent. From the
date of marriage, the applicant is harassing her mentally. On this
complaint, the police registered the F.I.R. for offence under
Section 498-A of I.P.C.

The police after completing the investigation, filed the
charge sheet for offence under
Section 498-A of I.P.C.

The Trial Court by order dated 26-12-2016 framed charge
under
Section 498-A of I.P.C.

Being aggrieved by the order framing charge, the applicant
filed a criminal revision, which too has suffered dismissal by order
dated 1-3-2017.

Hence, this application has been filed challenging the order
dated 26-12-2016 and 1-3-2017 passed by the Trial Court and the
Revisional Court respectively.

This Court by order dated 2-11-2017, directed the parties to
remain present before this Court so as to find out the possibility of
compromise between the parties.

The applicant and the respondent no.2 are present before
the Court. The respondent no.2, in an unequivocal terms
submitted that she wants to reside with the applicant, whereas the
applicant has refused to keep the respondent no.2 with him.
Thus, it is clear that in view of adamant attitude of the husband,
3 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

compromise is not possible.

The case was thereafter heard on merits.

It is submitted by the Counsel for the applicant that the
behaviour of the respondent no.2 was cruel towards the applicant
and his family members. Therefore, the applicant had filed a
petition under
Section 13 of Hindu Marriage Act and the
respondent no.2 after appearing before the Trial Court, filed her
written statement and admitted all the allegations. However, there
was compromise between the parties and thereafter the petition
for divorce was withdrawn and the parties started residing
together. However, the respondent no.2 resided with the applicant
for near about 3-4 months and thereafter, she lodged the F.I.R.
This clearly shows that it is the respondent no.2 who is cruel
towards the applicant and his family members and the F.I.R. has
been lodged just in order to harass the applicant. The Counsel for
the applicant has relied upon the judgment passed by the co-
ordinate Bench of this Court in the case of Dashrath P. Bundela
and others Vs. State of M.P. reported in (2011) ILR (MP) 2923
and Kailashchandra Maheshwari and others Vs. State of M.P.
and others reported in (2006) 1 MPHT 349.

Per contra, it is submitted by the Counsel for the respondent
no.2 that the behavior of the applicant had been cruel towards the
respondent no.2 right from the date of marriage. The respondent
no.2 with an intention to resolve the dispute, as she always wants
to reside with the applicant, admitted all the allegations which
were made in the divorce petition, as it was the condition imposed
by the applicant that in case the respondent wants to reside with
him, then she will have to admit all the allegations. With an
intention to save her married life, the respondent no.2 accepted all
his conditions and accepted the allegations and thereafter the
divorce petition was withdrawn by the applicant and they started
residing together. However, the conduct of the applicant did not
4 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

improve and therefore, the F.I.R. was lodged. The respondent
no.2 is still ready and willing to reside with the applicant. It is
further submitted that the F.I.R. is not the encyclopaedia of the
offence. The respondent no.2 has stated in detail about the
harassment by the applicant in her statement recorded under
Section 161 of Cr.P.C. Prima facie offence is made out. For
framing charges, only strong suspicion is required and the
possibility of conviction cannot be a criteria for framing charges.
The possibility that the accused might have committed an offence,
is sufficient to frame charges. The allegations made against the
applicant prima facie make out an offence under
Section 498-A of
I.P.C.

Heard the learned Counsel for the parties.
The respondent no.2 in her statement recorded under
Section 161 of Cr.P.C. has stated that after the marriage, the
applicant had taken her to Manali along with his other relatives
and it was decided that the rent of the Hotel shall be payable by
his relatives. However, at the time of check-out, the applicant
demanded Rs.20,000/- from the respondent no.2 for payment of
the rent of the Hotel. As the respondent no.2 was neither having
sufficient amount nor was having her A.T.M. card, therefore, the
applicant had made the issue. After coming back from Manali, he
compelled her to handover her ornaments to her mother-in-law.
The applicant used to ask for every detail of her salary and also
used to pressurize that the respondent no.2 should handover the
entire salary to her mother-in-law. By keeping her in dark, the
applicant had also got his mobile number registered in the bank
account of the respondent no.2 for receiving the SMS alerts. For
every expenditure, out of her own salary, the applicant used to ask
for the details of expenditure. He used to quarrel with her for every
withdrawal. On 15-5-2016, when she came back from her duty,
she was having high fever. she requested the applicant to serve
5 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

the food as she was not well, otherwise, she would go back to her
parents’ home. In reply, the applicant said that she may go
wherever she wants, however, she will have to leave the child with
him. He also used to pressurize her to grant divorce by mutual
consent.

The applicant is also present in the Court. On query, he
accepted that for near about 2 ½ years he was getting the SMS
alert of every transaction done by the respondent no.2 in her own
bank account. He also stated that the respondent no.2 was giving
money out of her salary to her relatives.

Be that whatever it may be. The moot question for
determination is that whether the allegations made by the
respondent no.2 against the applicant are sufficient to frame
charge under
Section 498-A of I.P.C. or not?

Before adverting to the facts of the case, it would be
apposite to consider the scope of power under
Section 239 and
240 of the Criminal Procedure Code.

Section 239 of Cr.P.C. reads 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.

Section 240 of Cr.P.C. reads as under :

240. Framing of charge.– (1) If, upon such
consideration, examination, if any, and hearing,
the Magistrate is of opinion that there is ground
for presuming that the accused has committed
an offence triable under this Chapter, which
such Magistrate is competent to try and which,
in his opinion, could be adequately punished by
him, he shall frame in writing a charge against
6 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

the accused.

(2) The charge shall then be read and
explained to the accused, and he shall be
asked whether he pleads guilty of the offence
charged or claims to be tried.

The Supreme Court in the case of Sheoraj Singh Ahlawat
Vs. State of U.P. reported in (2013) 11 SCC 476 held as under :

12. The case at hand being a warrant case is
governed by
Section 239 CrPC 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.”
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.

13. 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.

14. The ambit of Section 239 CrPC 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 v. State (NCT of Delhi). That
too was a case in which a complaint under
Sections 498-A and 406 read with Section 34
7 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

IPC 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 CrPC, 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.

15. 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.”

The Supreme Court in the case of State of Maharashtra Vs.
Som Nath Thapa reported in (1996) 4 SCC 659 has held as
under :

30. In Antulay case Bhagwati, C.J., opined, after
noting the difference in the language of the
three pairs of sections, that despite the
difference there is no scope for doubt that at the
stage at which the court is required to consider
the question of framing of charge, the test of
“prima facie” case has to be applied. According
8 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

to Shri Jethmalani, a prima facie case can be
said to have been made out when the evidence,
unless rebutted, would make the accused liable
to conviction. In our view, a better and clearer
statement of law would be that if there is ground
for presuming that the accused has committed
the offence, a court can justifiably say that a
prima facie case against him exists, and so,
frame a charge against him for committing that
offence.

31. Let us note the meaning of the word
‘presume’. In Black’s Law Dictionary it has been
defined to mean “to believe or accept upon
probable evidence”. (emphasis ours). In Shorter
Oxford English Dictionary it has been
mentioned that in law ‘presume’ means “to take
as proved until evidence to the contrary is
forthcoming”, Stroud’s Legal Dictionary has
quoted in this context a certain judgment
according to which “A presumption is a
probable consequence drawn from facts (either
certain, or proved by direct testimony) as to the
truth of a fact alleged.” (emphasis supplied). In
Law Lexicon by P. Ramanath Aiyer the same
quotation finds place at p. 1007 of 1987 Edn.

32. The aforesaid shows that 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.

In the case of State of Tamil Nadu Vs. Suresh Rajan reported in
(2014) 11 SCCC 709, it has been held by the Supreme Court as
under :

29. We have bestowed our consideration to
the rival submissions and the submissions
made by Mr Ranjit Kumar commend us. True it
9 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

is that at the time of consideration of the
applications for discharge, the court cannot act
as a mouthpiece of the prosecution or act as a
post office and may sift evidence in order to find
out whether or not the allegations made are
groundless so as to pass an order of discharge.
It is trite that at the stage of consideration of an
application for discharge, the court has to
proceed with an assumption that the materials
brought on record by the prosecution are true
and evaluate the said materials and documents
with a view to find out whether the facts
emerging therefrom taken at their face value
disclose the existence of all the ingredients
constituting the alleged offence. At this stage,
probative value of the materials has to be gone
into and the court is not expected to go deep
into the matter and hold that the materials would
not warrant a conviction. In our opinion, what
needs to be considered is whether there is a
ground for presuming that the offence has been
committed and not whether a ground for
convicting the accused has been made out. To
put it differently, if the court thinks that the
accused might have committed the offence on
the basis of the materials on record on its
probative value, it can frame the charge; though
for conviction, the court has to come to the
conclusion that the accused has committed the
offence. The law does not permit a mini trial at
this stage.

If the allegations made against the applicant are considered
in the light of the judgments passed by the Supreme Court, then it
is clear as noon day that there is a sufficient material on record to
presume that the applicant has committed an offence and the
allegations are not groundless. So far as the divorce proceedings
are concerned, whether the respondent no.2 had admitted the
allegations in order to save her married life or not and what would
be the effect of admission made by the respondent no.2 in
another proceedings are some of the questions which can be
decided only after recording of evidence at the trial.

Hence, this Court is of the considered opinion that the Trial
10 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

Court did not commit any mistake by framing charge under
Section 498-A of I.P.C. and accordingly, the order dated 26-12-
2016 passed by J.M.F.C., Shahdol in Criminal Trial No.529/2016
and the order dated 1-3-2017 passed by the Sessions Judge,
Shahdol in Criminal Revision No.6/2017 are hereby affirmed.

The application fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

Arun*
11 M.Cr.C. No.4591/2017
[Vikashchandra Mishra Vs. State of M.P. and another]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
PRINCIPAL SEAT JABALPUR

M.Cr.C. No.4591/2017

………Applicant: Vikashchandra Mishra

Versus

………Respondents : State of M.P. and another

ORDER post for 17/11/2017

(G.S. Ahluwalia)
Judge
16/11/2017

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