IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 190 of 2016
SAVITABEN MANILAL NAYAK.
STATE OF GUJARAT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 29/06/2016.
Citation:2017 CRLJ(NOC)115 Guj
1.Heard learned advocate Mr.Kamlesh Mehta for the petitioners, learned advocate Mr.Nikul
Soni for the respondent No.2 and learned APP Mr.K.P.Raval for the respondent No.1 – State.
2.Perused the record. The petitioners herein are in-laws of the victim, who committed suicide because of matrimonial dispute with her husband. At present, we are not entering into the minute details of matrimonial dispute or reason for suicide by the victim, for the simple reason that practically, at present, husband of the victim is not before us and therefore, so far as personal matrimonial dispute and details of such disputes are concerned, it would not be appropriate to discuss all such details in absence of any submission on behalf of the husband, who is not before us, so also for the simple reason that discussion and determination on such factual details may otherwise prejudice the trial where evidence is yet to be recorded.
3.The only issue to be resolved in this petition at this stage is regarding continuity of criminal proceedings against the present petitioners viz. petitioner No.1 is mother-in-law, petitioner No.2 is sisterin-law i.e. sister of the husband of the victim, petitioner No.3 is brother-in-law i.e. brother of the victim’s husband and petitioner No.4 is brother-in-law of petitioner No.2 i.e. brother of husband of petitioner No.2, and to that extent, he is altogether in a remote situation since he can never be termed as a family member or even member of family of in-laws of the victim. It is also to be recorded that victim and her husband are residing separately from all these petitioners since long and to be more precise, at the time of incident, practically, all the petitioners were residing separately at different places from the residence of victim and her husband. Thereby, petitioners No.1 and 3 being mother and son, they are residing together at Suncity Society in Mehsana town, whereas victim was residing in police line at Mehsana, similarly, petitioners No.2 and 4 are residing at Basana Village, Taluka Visnanagar, District Mehsana and thereby, all the petitioners are residing at some distance from the residence of the victim and her husband.
4.However, when victim has committed suicide because of her matrimonial problem with her husband, though marriage of the victim with her husband was solemnised before 28 years, the investigating agency has while investigating the case thought it proper to file chargesheet against present petitioners also with the husband of the victim and therefore, petitioners have filed an application at Exh.5 before the Sessions Court, Mehsana in Sessions Case No.69 of 2015.
5.At present, the order dated 30.11.2015 below such application, Exh.5, whereby application to discharge present petitioners has been dismissed by the Sessions Court, Mehsana is under challenge.
6.The learned advocate for the petitioners has rightly annexed all relevant statements with its typed copy on record so as to ascertain that whether there is any allegation against the petitioners in the police papers so as to file chargesheet against them and thereafter, to frame charges against them. If we peruse such record, it becomes clear that except the statement of brother of the victim, namely, Rameshbhai Haribhai Solanki, copy of which is on page 31 to 33D, makes it clear that the brother of the victim has in clear words disclosed only to the effect that when they came to know about the dispute between the victim and her husband, they have tried to convince the parents and brother of the victim. To substantiate such statement, the witness has stated before the investigating agency in his statement that when he, with his parents and brothers had been to the parents of the husband of the victim, amongst whom petitioner No.1 is residing in town – city with petitioner No.3, instead of supporting them and instead of convincing the husband of the victim not to continue the family dispute with the victim, all the present petitioners have came at his house and abused them. Therefore, even if we take the statement of the victim’s brother as it is, then, practically, there is no disclosure or statement of the witness, which in any manner can be construed as a statement against the victim or instigating the victim in any manner whatsoever to commit suicide. In other words, if statement of such witness is accepted as it is, then, it is in the form of abuse of the witness and nothing more than that. In any case, when there is no evidence to confirm that any of such person has in any manner whatsoever abused the victim, which resulted into committing suicide by her, such statement cannot be considered as a sufficient statement to charge present petitioners as per the chargesheet filed by the investigating agency. One more fact is also quite clear that all of the petitioners are residing at a far distance from the place of witness so also from the place of victim and therefore, there is no direct nexus whatsoever between the parties and the victim so as to consider that petitioners have instigated the victim to commit suicide. It cannot be ignored that marriage life of the victim and her husband is of 28 years and they have aged children.
7.The second such witness is Mr.Manibhai Jivabhai Solanki, uncle of the victim and previous witness, namely, Rameshbhai Haribhai Solanki. However, if we peruse his statement, which is at pages 50 – 51 on record, now, it has been clear on record that practically, there is material contradiction even in the version of Rameshbhai Haribhai Solanki and Manibhai Jivabhai Solanki inasmuch as though Rameshbhai Haribhai Solanki, brother of the victim has stated in his statement that petitioners have came to his place and abused them, now, uncle of the victim states that petitioners have abused them when they had gone to their place. Whereas, Rameshbhai H.Solanki has never confirmed that Manibhai was with him at any point of time and if we believe the statement of Manibhai, then is it unbelievable that a person residing at different place i.e. Mehsana and Basana have abused the witness Manibhai at the same time.
8.In addition to such material contradiction in the statement of near relatives of the petitioners, the fact remains that the law is now well settled by the Hon’ble Supreme Court of India in following judgments :-
(1) Preeti Gupta Anr. Vs. State of Jharkhand Anr. reported in AIR 2010 SC 3363(1);
(2) Arnesh Kumar Vs. State of Bihar Anr. Reported in AIR 2014 SC 2756;
(3) Geeta Mehrotra Vs. State of U.P. Anr. Reported in AIR 2013 SC 181;
(4) Kans Raj Vs. State of Punjab Ors. reported in AIR 2000 SC 2324(1);
(5) Ghusabhai Raisangbhai Chorasiya Ors. Vs. State of Gujarat reported in AIR 2015 SC 2670;
9.The said judgments make it clear that when members of the family of in-laws are not residing together with the victim and her husband and if there is no direct allegations against them regarding ill-treatment by them, and when they have never lived with the victim or when there is no evidence regarding their visit to the place when the incident had taken place, the complaint is to be treated as nothing but means to harass and humiliate husband’s relatives and thereby, permitting such complainant to pursue the complaint, would be an abuse of process of law. Serious observations are made by Hon’ble Supreme Court of India in the case of Preeti Gupta (supra), which need not be reproduced in all such cases, whereas in the case of Geeta Mehrotra (supra), the Hon’ble Supreme Court of India has categorically confirmed that casual reference of some relatives in FIR or other statements are not sufficient to take cognizance against all such family members. Therefore, in such case, practically, Supreme Court has to circulate copy of the judgment to the Law Commission and the Central Government to do the needful and advice the investigating agency not to include all the family members as accused.
10. Whereas, in the case of Arnesh Kumar (supra), the Hon’ble Supreme Court of India has categorically stated that police officers should not harass family members or automatically arrest and should not mechanically reproduce all the statements.
11. Whereas in the case of Kans Raj, the Hon’ble Supreme Court of India has stated that overt acts attributed to the relatives of the victim should be proved beyond reasonable doubt.
12. As against that, learned advocate for the respondent No.2 is relying upon the decision of this Court in the following cases:-
(1) Balubhai Takhaji Jadeja Vs.State of Gujarat reported in 2012(30) GHJ 531;
(2) Solanki Babulal Atmaram Vs.State of Gujarat reported in 2013 JX(Guj) 893.
13.However, if we peruse the case of Solanki Babulal (supra), it becomes clear that this Court has mainly relied upon the provisions of Sections 227 and 228 of the Criminal Procedure Code and there was no issue as discussed with reference to the decisions of Hon’ble Supreme Court of India mentioned herein above. Therefore, only because of dismissal of an application for discharge in some cases, it cannot be stated that in all cases, discharge application cannot be allowed. Therefore, the present Criminal Revision Application deserves to be allowed.
14. Though there may be proof of commission of any offence, since there is no categorical and specific evidence in the chargesheet, which can even prima-facie show the involvement of the petitioner – accused in commission of such offence, there is no reason to ask the petitioner to face the trial for couple of years. If at all it is so allowed, practically it would help the original culprit to get free from trial and punishment, because the entire machinery will unnecessarily waste their energy, to prove the case against the present petitioner, even in absence of any prima-facie evidence against him.
15.Therefore, though it is certain that any accused cannot be discharged if there is any prima-facie evidence against him, it is also certain that thereby presence of minimum and prima-facie evidence is must to frame charge and, therefore, there is provision regarding discharge of accused in Cr.P.C. that in absence of prima-facie evidence against any person, the Court may discharge such person from the alleged offences.
16. In support of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under.
(1) AIR 1997 S.C. 2041: State of Maharashtra vs. Priya Sharan Maharaj –
It is held that at the stage of framing the
charge, the Court has to consider the
material with a view to find out if there is
ground for presuming that accused has
committed an offence or that there is no
sufficient ground for proceeding against him
and not for the charges by arriving at the
conclusion that it is not likely to lead to a
(2) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari –
It was held that, the Court at the stage of
S.227 and S.228 is not required to appreciate
the evidence and arrive at the conclusion
that the materials produced are sufficient or
not for convicting the accused. Only prima
facie case is to be looked into. The charge
can be quashed if the evidence which the
prosecutor proposes to prove the guilt of the
accused, even if fully accepted, it cannot
show that accused committed that particular
offence. Thus it is settled law that at the
stage of framing the 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 the evidence and arrive at the
conclusion that the materials produced are
sufficient or not for convicting the accused.
If the Court is satisfied that a prima facie
case is made out for proceeding further then
a charge has to be framed. The charge can be
quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged by cross-examination or rebutted
by defence evidence, if any, cannot show that
accused committed the particular offence. In
such case there would be no sufficient ground
for proceeding with the trial.
(3) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi –
The Apex Court has held that, it is seen from
S.227 of the Code that in a case triable
before the Court of Session, if the Court on
consideration of the record of the case and
the documents submitted therewith and after
hearing the submission of the prosecution and
the accused if the Judge considers that there
is no sufficient ground for proceeding
against the accused, he shall discharge the
accused after recording reasons for doing so
(4) (1997) 4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj –
Referring to the case of Niranjan Singh Karam
Singh Punjabi (supra) held that 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 there from taken at
their face value disclose the existence of
all the ingredients constituting the alleged
offence. The Court may, 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 and even if it is opposed to common
sense or the broad probabilities of the case.
Therefore, at the stage of framing of the
charge, the Court has to consider the
material with a view to find out that whether
there is any ground for presuming that the
accused has committed the offence or that
there is not sufficient ground for proceeding
against him and not for the purpose of
arriving at the conclusion that it is not
likely to lead to a conviction.
(5) AIR 2007 SC 2149 = 2007 AIR SCW 3683 – Soma Chakravarty v. State -It is held as under:
Before framing a charge the court must apply
its judicial mind on the material placed on
record and must be satisfied that the
commitment of offence by the accused was
(6) AIR 2012 SC 1890 – General Officer
Commanding Vs.CBI – It is held as under:
The cognizance has to be taken of the offence
and not of the offender and that it is the
duty of the investigating agency to collect
and to produce cogent evidence against the
accused for framing charge and Court can
convict the accused only if such charges i.e.
evidence is proved on record without
reasonable doubt. Therefore, if there is no
chance to prove a commission of offence by
the accused, charge cannot be framed.
(7) AIR 2009 SC Supplimentary 1744 – State
of M.P. Vs.Sheetla Sahai
It is held as under: if the Court arrives at
only opinion, there is no evidence against
the accused, the Court shall not put accused
to harassment by asking him to face a trial.
17. Thus, the law on the subject is now well settled, that under Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, shift 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 opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
18.However it cannot be ignored that what is to be looked into is “a very strong suspicion founded upon materials, which leads to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged”; therefore only because Apex Court has held so, it cannot be said that even in absence of suspicion, presumptive opinion of the commission of offence as alleged; charge must be framed. Suffice to say that when enactment / statute provides for discharging accused, basically accused has a right to get discharge, which may be subject to fulfilment of certain criteria, that may be laid down either in the statute as well as its interpretation by the Apex Court and not otherwise. Therefore there can be order of discharge if there is no evidence with charge sheet which gives rise to even little suspicion to presume the commission of offence by the accused. Needless to say that even if there is suspicion regarding commission of offence, what is required to refuse discharge is suspicion of commission of offence by the accused against whom charge sheet is filed. Thus, even if suspicion is possible for commission of offence, and if there is no evidence to link such suspicion with the accused, there cannot be a presumption against the accused that he had committed the offence and he may be entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results in to the commission of offence. For more clarity, commission of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person. If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be some one else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down merely by filing charge sheet against any one suspect or any innocent person. In such cases, trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, after considering the available prima facie evidenced on record – which is only in the form of charge sheet, not only tabular charge sheet but list of witnesses and their statement before the investigating agency (police papers). It can not be ignored that the ratio of conviction is quite low only because of the reason that though police papers supports the charge sheet, at the time of trail witnesses does not support their statement; this happens because of the possibility that in most of the crimes against the person/body under the Penal Code, the statement of witnesses are common to the effect that accused had acted in particular manner. However when crime is pertaining to some documents or properties – intellectual and real, the investigating agency has to find out the real culprit with probable cogent evidence, rather than only oral evidence that accused had committed crime as alleged. This is the area when its Courts duty to frame independent suspicion regarding not only commission of crime but involvement or role of the accused against whom charge sheet is filed and if there is no possibility of even little suspicion against the accused regarding commission of offence by him, there is no bar to discharge such person from the charges levied against him. In such cases, it would be open for the original complainant and the investigating agency to keep such person under suspicion but to investigate further so as to find out real culprit, else filing of charge against a person only on suspicion but without sufficient evidence against him would be a futile exercise and it will not only increase unnecessary workload but crime in the society also, since real culprits are able to get secluded them from the trial.
19.In view of above discussion, all citations which confirm rejection of discharge is to be read and understood in its real sense, rather than to consider that only because in given case, order of discharge was refused, there cannot be any order to discharge any accused in any case. If it is so, the statute book would not have the provisions of Section 227 in Cr PC. In light of such discussion if we peruse AIR 2008 SC 2991 – Yogesh Vs.State of Maharashtra on the issue, the relevant observation will make above concept more clear, which are as under
13. Before adverting to the rival submissions, we
may briefly notice the scope and ambit of powers of
the Trial Judge under Section 227 of the Code.
14. Chapter XVIII of the Code lays down the
procedure for trial before the Court of Sessions,
pursuant to an order of commitment under Section 209
of the Code. Section 227 contemplates the
circumstances whereunder there could be a discharge
of an accused at a stage anterior in point of time
to framing of charge under Section 228. It provides
that upon consideration of the record ofthe case,
the documents submitted with the police report and
after hearing the accused and the prosecution, the
Court is expected, nay bound to decide whether there
is “sufficient ground” to proceed against the
accused and as a consequence thereof either
discharge the accused or proceed to frame charge
15.It is trite that the words “not sufficient ground
for proceeding against the accused” appearing in
the Section postulate exercise of judicial mind on
the part of the Judge to the facts of the case in
order to determine whether a case for trial has
been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift
and weigh the material 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 a prima facie case depends upon the facts
of each case and in this regard it is neither
feasible nor desirable 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
gives rise to suspicion only as distinguished
from grave suspicion, he will be fully within his
right to discharge the accused. At this stage, he is
not to see as to whether the trial will end in
conviction or not.The broad test to be applied is
whether the materials on record, if unrebutted,
makes a conviction reasonably possible. [See: State
of Bihar vs. Ramesh Singh, (1977) 4 SCC 39 and Union
of India vs. Prafulla Kumar Samal and Anr, (1979) 3
16. In the light of the aforenoted principles, we
may now consider whether or not in the present
case the High Court was justified in declining to
discharge the appellant.
27. For the reasons aforesaid, we are constrained to
allow the appeals. Consequently, the impugned
orders are set aside and the appellant is discharged
from the charges levelled against him in the chargesheet.
20. Considering the above discussions, both on facts and on law point, it becomes clear that investigating agency, has squarely failed to properly investigate the incident so as to find out the real culprit and to collect cogent and reliable evidence so as to confirm conviction against such culprit.
21.I have scrutinized the prima facie evidence on record which categorically fails to prove the involvement of the accused in commission of crime and that there is no prima facie evidence against him for framing the charges, Hence, the revision applications deserves to be allowed, thereby allowing the application for discharge by the petitioner.
22.In view of above facts and circumstances, this is a fit case to allow the application seeking discharge by the present applicant, when there is no evidence against him with regard to commission the alleged offence.
23.The law regarding power to discharge an accused is well settled, wherein it is clear that if there is no prima facie evidence against a person in the papers of chargesheet, then, the Court has got ample jurisdiction to pass an order to discharge such person. In view of such facts and circumstances, the impugned order certainly results into illegality and therefore, needs to be quashed and set-aside by allowing such revision application.
24. The present Criminal Revision Application is allowed. Thereby, the impugned order dated 30.11.2015 is quashed and setaside. Thereby, discharge application at Exh.5 in Sessions Case No.69 of 2015 is allowed as prayed for.