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Bhoomika Saroha vs Ramesh Malik And Ors on 5 December, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRM-M No.4018 of 2018 (OM)
Date of decision: 5th December, 2018

Bhoomika Saroha
… Petitioner
Versus
Ramesh Malik others
… Respondents

CORAM: HON’BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. KDS Hooda, Advocate for the petitioner.
Mr. Arun Khatri, Advocate for respondents No.1 to 4.
Mr. Gaurav Bansal, Asstt. Advocate General, Haryana
for respondent No.5/State.

FATEH DEEP SINGH, J.

The petitioner wife Bhoomika Saroha has come up with this

petition under Section 482 Cr.P.C. seeking quashment of judgment and

order dated 15.01.2018 (Annexure P4) passed by the Court of learned

Additional Sessions Judge, Sonipat whereby the Court below had set

aside an order dated 01.07.2017 (Annexure P3) of the Court of learned

Judicial Magistrate 1st Class, Sonipat chargesheeting the accused and

thereby partly allowing the revision had directed the trial Court to pass

fresh order regarding framing of charges against the accused namely

Ramesh Malik, Mamta Malik, Rohit Malik and Rahul Malik.

The brief grounds that form part of the this assailment are

that an FIR No.84 dated 14.10.2015 under Sections 323, 498A, 406, 506,

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34 IPC was registered at Police Station Women Cell, Sonepat (Annexure

P1) by the wife. Upon completion of investigations, report under Section

173 Cr.P.C. was filed against all the four accused (Annexure P2). The

allegations that fall within the factual compass are demand of dowry,

cash and physical and mental abuse at the hands of the accused, of the

complainant, and which need not be reiterated here. Learned trial Court

vide orders dated 01.07.2017 (Annexure P3) framed charges under

Sections 498-A, 406, 34 IPC against all the accused and against accused

No.2, 3 and 4 under Sections 323/34 IPC besides charging accused No.2

and 4 for offence under Sections 506/34 IPC. The same was challenged

by the accused in revision and accordingly the impugned orders were

passed and that is how the parties are before this Court with the aid of

Section 482 Cr.P.C.

Upon hearing Mr. KDS Hooda, Advocate for the petitioner;

Mr. Arun Khatri, Advocate for respondents No.1 to 4; Mr.Gaurav Bansal,

Asstt. Advocate General, Haryana for respondent No.5/State and on

perusal of the records.

The petitioner wife Bhoomika Saroha has come up before

this Court by invoking the provisions of Section 482 Cr.P.C. which are

reproduced below to lay emphasis:-

“482. Saying of inherent powers of High Court:-
Nothing in this Code shall be deemed to limit or

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affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends
of justice.”

It needs to be put up as a mark of caution in the light of

lengthy arguments that have sought to be put forth by learned counsel for

the petitioner whereby the evidence is sought to be highlighted and is

sought to be questioned by learned counsel for the respondents/accused

and is even otherwise a well settled proposition of law that the High

Court in exercise of its powers under Section 482 Cr.P.C. would not

ordinarily embark upon an enquiry whether the evidence in question is

reliable or not, or there is reasonable appreciation of accusation which

cannot be sustained. Appreciation of evidence at this juncture would

certainly be not the correct approach of this Court in the exercise of its

powers under Section 482 Cr.P.C. It needs to be reiterated here that

inherent jurisdiction of powers under Section 482 Cr.P.C. has to be

exercised sparingly, carefully and with caution where the same is

justified.

Reverting back to the present case, it needs to be kept in mind

as has been sought to be put forth before this Court in the submissions of

the two sides, that the parties entered into this wedlock on 12.02.2012

and that the husband had filed divorce petition on 18.05.2015 and as is

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there before this Court, undisputedly the present case has been got

registered by the wife on 14.10.2015, almost after five months of the

petition, are matters of much relevance. However, the same is subject

matter of evidence to be appreciated at the time of trial. Scanning the

records of the case, the premise that is sought to be raised on behalf of

the petitioner before this Court by resorting to statement under Section

161 Cr.P.C. regarding demand of car is not a matter to be gone into at

this juncture and the very legal value of statement under Section 161

Cr.P.C. is not to be considered at this stage and is purely for the purpose

of confrontation and contradiction of a witness during the course of

cross-examination. The claim that learned revisional Court also ignored

the evidence that has come on the record regarding demand of flat at

Delhi that it should be transferred from the name of the wife to that of the

husband, do not hold much water at this stage and one has to appreciate

the impugned judgment on the touchstone of legality and validity. The

learned Magistrate while passing order (Annexure P3) in para No.10 has

observed as under:-

“10. The present FIR was lodged at the complaint of
the complainant. In her complaint, she has levelled
allegations against all the accused persons regarding
demand of dowry and consequent cruelty upon her.
However, from the perusal of the complaint, it is
revealed that there is no specific allegation levelled
against the accused No.1 with regard to the beatings

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allegedly given and hence he cannot be
chargesheeted under Section 323 IPC. Further there
is no allegation against the accused No.1 and 3 with
regard to the allegations of criminal intimidation and
no prima-facie charge under Section 506 IPC is
made out against them.”

Learned Magistrate in para No.11 further observed as

follows:-

“11. Accordingly, all the accused persons charge
sheeted for the commission of offences punishable
under Sections 498-A and 406 r/w 34 IPC. Accused
No.2, 3, and 4 are also charge sheeted for the
commission of offences punishable under Sections
323 r/w 34 IPC. Accused No.2 and 4 are charge
sheeted for the commission of offences punishable
under Sections 506 r/w 34 IPC. The charge was read
over and explained to the accused persons who
pleaded not guilty and claimed trial.”

Following are the observations of learned Additional

Sessions Judge, Sonipat in the impugned order:

“10. However, with regard to other accused, who
are mother, father and brother of the accused Rahul
a deeper consideration is required. Perusal of the
complaint shows that there are general allegations
against Ramesh Malik, father-in-law of the
complainant. His name has nowhere been specified.

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11. So far as accused Rohit, brother-in-law of the
complainant is concerned two instances have been
quoted against him. One in November, 2012 when he
gave beatings to complainant and asked Rahul to kill
her and another dated 12.02.2013 when they had
gone to village Jati on the death of their relative
Ankur, where Rohit, Guddi and Nirmala alias Kalo
misbehaved with her.

12. Regarding accused Mamta, mother-in-law of
complainant, there are allegations of misbehaviour
and beatings in Jammu and Kashmir and at Khera,
Delhi, misbehaviour at Jati and taunting for not
giving anything and her position to get her son
(Rahul) married five times as he is IPS officer.”

XXXX XXXX XXXX
XXXX XXXX XXXX

16. The record reveals that there is no allegation of
the complainant in her complaint regarding specific
entrustment of any dowry articles to the accused and
then her demand for return of her dowry articles and
refusal by the accused to return. Therefore, no
offence under Section 406 of IPC is made out.
Regarding Section 506 IPC it is relevant to note that
there is no direct threat to the complainant either by
Rohit or by Ramesh Malik. Allegations of beatings by
accused Mamta and Rohit are in routine, vague and
general in nature.”

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Discussing the various case laws, it has been concluded as

follows:-

“20. Taking into consideration the facts and
circumstances discussed above, I am of the view that
the learned trial Court has not properly considered
the law, which resulted into illegality and infirmity in
the impugned order. Therefore, the present appeal is
hereby partly allowed. Trial Court is directed to pass
fresh order with regard to the charge against the
accused persons namely Ramesh Malik, Mamta
Malik and Rohit Malik and make consequent
amendments in charge against Rahul Malik, if any
keeping in view the observations made by this
Court… … …”

The arguments and counter-arguments that have been made

before this Court over the legality and validity, have been the rallying

point in the lengthy arguments of the two sides. However, the Hon’ble

Supreme Court in ‘R.S. Nayak vs. A.R. Antulay and another’ 1986

AIR (SC) 2045 considered the very ambit of power of the Court in

framing a charge/discharging a person and have observed as follows:-

“43. As pointed out by the Constitution Bench in the
judgment to which reference has been made, the relevant
sections of the Code of Criminal Procedure (‘Code’ for
short) for the trial of a case of this type are sections 244,
245 and 246. Section 245(1) provides:

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“If upon taking of the evidence referred to in
Section 244, the Magistrate considers, for reasons to
be recovered, that no case against the accused has
been made out which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him.”

While Section 246(1), on the other hand, requires:
“If when such evidence has been taken or at any
previous stage of the case 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 should be adequately
punished by him, he shall frame in writing a charge
against the accused.”

The Code contemplates discharge of the accused by
the Court of Sessions under Section 227 in a case triable by
it; cases instituted upon a police report are covered by
Section 239 and cases instituted otherwise than on police
report are dealt with in Section 245. The three sections
contain some what different provisions in regard to
discharge of the accused. Under Section 227, the trial
Judge is required to discharge the accused if he ‘considers
that there is not sufficient ground for proceeding against
the accused.’ Obligation to discharge the accused under
Section 239 arises when “the Magistrate considers the
charge against the accused to be groundless.” The power to

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discharge is exercisable under Section 245(1) when “the
Magistrate considers, for reasons to be recorded, that no
case against the accused has been made out which, if
unrebutted, would warrant his conviction…” It is a fact that
Sections 227 and 239 provide for discharge being ordered
before the recording of evidence and the consideration as
to whether charge has to be framed or not is required to be
made on the basis of the record of the case, including
documents and oral hearing of the accused and the
prosecution or the police report, the documents sent along
with it and examination of the accused and after affording
an opportunity to the two parties to be heard. The stage for
discharge under Section 245, on the other hand, is reached
only after the evidence referred to in Section 244 has been
taken. Not-withstanding this difference in the position there
is no scope for doubt that the stage at which the Magistrate
is required to consider the question of framing of charge
under Section 245(1) is a preliminary one and the test of
“prima facie” case has to be applied. In spite of the
difference in the language of the three sections, the legal
position is that if the trial Court is satisfied that a prima
facie case is made out, charge has to be framed.”

Furthermore, in ‘Niranjan Singh Karam Singh Punjabi,

Advocate vs. Jitendra Bhimraj Bijja and others’ 1991(1)

RCR(Criminal) 89 Hon’ble the Supreme Court placed reliance on

‘Supdt. Remembrancer of Legal Affairs, West Bengal vs. Anil

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Kumar Bhunja others’ 1979(4) SCC 274, wherein it was observed as

under:

“The standard of test, proof and judgment which is to
be applied finally before finding, the accused guilty or
otherwise, is not exactly to be applied at the stage of
Section 227 or 228 of the Code of Criminal Procedure,
1973. At this stage, even a very strong suspicion rounded
upon materials before the Magistrate which leads him to
form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged, may
justify the framing of charge against the accused in respect
of the commission of that offence.”

Thus, it was held by their Lordships that the Court is required

to evaluate the material and documents on record to find out if the facts

emerging therefrom taken at their face value disclose the existence of all

the ingredients constituting the alleged offence.

In another view of the Hon’ble Apex Court in ‘State of

Bihar vs. Ramesh Singh’ 1977 AIR (SC) 2018 it was held that if a

Judge considers that there is not sufficient ground for proceeding against

the accused, he shall discharge the accused and record his reasons for

doing so, as enjoined by Section 227 Cr.P.C. If on the other hand, the

Judge is of the opinion that there is ground for presuming that the

accused has committed an offence which is exclusively triable by a

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Court, he shall frame in writing charge against the accused and therefore

all these ratios enunciate “test of prima facie case”.

Going a step further, the ambit of revisional jurisdiction of a

Court is well settled and the provisions of Section 397 Cr.P.C. empower

Sessions Judge to call for and examine the record of any proceeding

before any subordinate criminal Court situated within its jurisdiction for

the purpose of satisfying itself as to the correctness, legality or propriety

of any finding, sentence or order and as to the regularity of any

proceedings of any such subordinate Court; and the most important

observation by their Lordships of Hon’ble the Supreme Court has come

about in ‘Rajendra Rajoriya vs. Jagat Narain Thapak and another’

2018(5) RCR(Criminal) 103, which is reproduced below to lay

emphasis:-

“On bare perusal of this provision, it is clear that the
impugned order cannot be passed under Section 398 of the
Code. The word ‘may direct’ has been used by the
legislation in this provision. It gives wide discretion to the
Court to order further enquiry. Sessions Court has no
power to take cognizance of the offence, assess the offence
and reach its own conclusion whether there is ground for
proceeding with complaint or not and further to direct a
Magistrate with regard to registration of a complaint on
finding a prima facie case.”

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Reverting back to the instant case, precisely in the impugned

order, the learned revisional Court has simply holding that the learned

trial Court has not properly considered the law which resulted in illegality

and infirmity of the order, has partially allowed the revision (appeal-sic.)

and directed the trial Court to pass a fresh order with regard to the charge

against the accused persons and therefore, has rightly did not exercise

any power to take cognizance of the offence and did not observe anything

which has its implication on the case of the parties on merits before it.

The learned counsel for the petitioner could in no manner

convince this Court how there has been wrong assumption of jurisdiction

by the revisional Court or there has been any illegality or impropriety in

the order or the findings so recorded by it which could necessitate

intervention by this Court. By the impugned order, no prejudice is likely

to be caused to either of the parties nor it has in any manner resulted in

miscarriage of justice. Thus, the same does not necessitates exercise of

inherent jurisdiction by this Court. The petition being hopelessly without

any merit, stands dismissed.

(FATEH DEEP SINGH)
JUDGE
December 5, 2018
rps
Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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