Sripal & Ors vs State & Anr on 9 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1160 / 2017

1. Sripal S/o Late Shri Bhanwarlal Dharmawat

2. Smt. Vimla Devi W/o Sripal Dharmawat

3. Mahesh S/o Sripal Dharmawat, All R/o Sarvaritu Vilas, Udaipur,
Rajasthan.

—-Petitioners
Versus

1. State of Rajasthan

2. Niraj Jain S/o Bhanwar Lal Jain, Takiyon Ki Badli, P.S. Bindar,
Village Bhindar, District Udaipur.

—-Respondents
__
For Petitioner(s) : Mr. Mahesh Bora, Senior Advocate with Mr.
Nishant Bora.

For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
For Complainant(s): Mr. Shreeji Bhavsar.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
09/01/2018

Accused-petitioners have preferred this revision petition

under Section 397/401 Cr.P.C. to assail order dated 31 st of August

2017, passed by Addl. Sessions Judge (Women Atrocities Cases),

Udaipur (for short, ‘learned trial Court’), framing charge against

them for offence under Section 498-A, 406, 304-B read with

Section 34 IPC.

The facts, apposite for the purpose of this revision petition,

are that, at the threshold, respondent-complainant lodged an FIR
(2 of 7)
[CRLR-1160/2017]

against Manish and all the three petitioners castigating them for

offence under Section 304-B, 498-A IPC. Police, after

investigation, submitted charge-sheet against Manish – husband of

deceased Monika, under Sections 498-A, 406 IPC. Feeling

dissatisfied with the charge-sheet, complainant submitted a

petition under Section 190 Cr.P.C. for taking cognizance against

petitioners. Thereupon, learned Addl. Chief Judicial Magistrate

No.2, Udaipur took cognizance against all the petitioners for

offence under Sections 498A and 406 IPC. Being aggrieved by

the same, petitioners preferred a revision petition before Sessions

Court, Udaipur and the learned Sessions Judge set aside the order

of cognizance.

Feeling aggrieved by the order of learned Sessions Judge,

complainant laid a revision petition before this Court, which was

registered as S.B. Cr. Revision Petition No.423/2008. While

allowing the said revision petition, the Court observed that learned

trial Court should have taken cognizance against petitioners for

offence under Sections 304-B, 498-A and 406 IPC as well as

Section 120-B IPC. In compliance of the order passed by this

Court, learned trial Court took cognizance against the petitioners

for aforesaid offences and committed the case to the Court of

Sessions by resorting to Section 209 Cr.P.C.

Subsequently, at the stage of framing charge, the accused-

petitioners were not heard and thereupon again at their behest

revision petition was filed before this Court, which was registered
(3 of 7)
[CRLR-1160/2017]

as S.B. Cr. Revision Petition No.968/17. While disposing of the

said revision petition, the Court observed that petitioners be

afforded opportunity of being heard before framing charges. Later

on, the learned trial Court heard arguments and by the impugned

order framed charges against petitioners for the aforesaid offences

by resorting to Section 228 Cr.P.C.

I have heard learned Senior Counsel for the petitioners,

learned Public Prosecutor and learned counsel for the complainant

at length and perused the materials available on record.

The crucial question, which requires judicial scrutiny in the

instant case, is, what is the scope of judicial review in exercise of

revisional jurisdiction against the order framing charge. The legal

position is no more res integra that purpose of a charge is to tell

an accused as precisely and concisely as possible of the matter

with which he is charged and must convey to him with sufficient

clearness and certainty what the prosecution intends to prove

against him of which he will have to clear himself. Therefore,

indisputably, at the time of framing charge, the Court is not

required to screen evidence or to apply the standard whether the

prosecution will be able to prove the case against accused at the

trial. The purpose of Sections 227 and 228 Cr.P.C. is to ensure

that the Court should be satisfied that the accusation made

against an accused is not frivolous and there is some material for

proceeding against him. Even a strong suspicion, of course

founded upon material and presumptive opinion, would enable the

Court in framing charge against the accused.

(4 of 7)
[CRLR-1160/2017]

The Supreme Court in case of Sajjan Kumar Vs. Central

Bureau of Investigation [(2010) 9 SCC 368], while examining the

jurisdiction under Sections 227 and 228 Cr.P.C., held:

“On consideration of the authorities about the
scope of Section 227 and 228 of the Code, the
following principles emerge:-

(i) The Judge while considering the question of
framing the charges under
Section 227 of the
Cr.P.C. 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. The test to determine
prima facie case would depend upon the facts of
each case.

ii) 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.

iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider
the broad probabilities of the case, the total effect
of the evidence and the documents produced before
the Court, any basic infirmities etc. However, at this
stage, there cannot be a roving enquiry into the
pros and cons of the matter and weigh the evidence
as if he was conducting a trial.

iv) If on the basis of the material on record, the
Court could form an opinion that the accused might
have committed offence, it can frame the charge,
though for conviction the conclusion is required to
be proved beyond reasonable doubt that the
accused has committed the offence.

v) At the time of framing of the charges, the
probative value of the material on record cannot be
gone into but before framing a charge the Court
must apply its judicial mind on the material placed
on record and must be satisfied that the
commission of offence by the accused was possible.

vi) At the stage of Sections 227 and 228, the Court
is required to evaluate the material and documents
on record with a view to find out if the facts
emerging therefrom taken at their face value
discloses the existence of all the ingredients
constituting the alleged offence. For this limited
purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the
prosecution states as gospel truth even if it is
(5 of 7)
[CRLR-1160/2017]

opposed to common sense or the broad probabilities
of the case.

vii) If two views are possible and one of them gives
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to
discharge the accused and at this stage, he is not to
see whether the trial will end in conviction or
acquittal.”

While examining the power of the Court at the stage of

framing charge under Section 228 Cr.P.C. or while considering

discharge petition under Section 227 Cr.P.C., the Court further

held:

“At the stage of framing of charge under
Section 228 of the Cr.P.C. or while considering the
discharge petition filed under
Section 227, it is not
for the Magistrate or a Judge concerned to analyse
all the materials including pros and cons, reliability
or acceptability etc. It is at the trial, the Judge
concerned has to appreciate their evidentiary value,
credibility or otherwise of the statement, veracity of
various documents and free to take a decision one
way or the other.”

The same principle is further reiterated by the Supreme

Court in a later judgment in case of State through Inspector of

Police Vs. A. Arun Kumar Anr.[(2015) 2 SCC 417].

Thus, for interfering with the charge in exercise of revisional

jurisdiction, pre-requisite is that there is no prima facie material

for framing charge.

In the instant matter, without entering into checkered history

of the case, suffice it to observe that deceased Monika died after

six months of matrimony at her matrimonial home under alleged
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[CRLR-1160/2017]

suspicious circumstances. As per FIR, Monika was subjected to

cruelty or harassment by the petitioners in connection with

demand for dowry and after her death she was hurriedly cremated

without any autopsy of the dead body. Therefore, the allegations

in the FIR about unnatural death of Ms. Monika within seven years

during subsistence of matrimony is clearly discernible from the

FIR. Apart from it, during investigation, some incriminating

material and evidence has also been collected by the investigating

agency which includes initial police statements of some of the

witnesses and their supplementary statements.

While passing the impugned order, learned trial Court has

made sincere endeavour to prima facie examine the incriminating

evidence. The learned trial Court, while framing the charge, has

also examined the police statements of complainant Neeraj Jain,

his father Bhanwarlal, mother Smt. Pushpa Jain and sister Ms.

Sweta besides other relatives. Apart from it, the learned trial

Court also considered a very vital fact that it is a case of unnatural

death within seven years of marriage for prima facie applying

presumption under Section 113-B of the Evidence Act to frame

charge under Section 304-B IPC against accused-petitioners. The

learned trial Court has also observed that accused persons are

well within their right to dislodge the said presumption during

trial. A close scrutiny of the impugned order, in my considered

opinion, makes it clear that it does not suffer from any illegality or

impropriety warranting interference in exercise of revisional

jurisdiction.

(7 of 7)
[CRLR-1160/2017]

As observed hereinabove, the learned trial Court has

examined the materials available on record including the prima

facie inculpatory evidence against petitioners in the backdrop of

peculiar facts and circumstances of the case, therefore,

unhesitatingly, I feel dissuaded to interfere with the impugned

order.

Resultantly, the petition fails and same is hereby dismissed.

(P.K. LOHRA),J.

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