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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) No. 68 of 2015

Sandeep Oberai another …… Applicants

versus

State of Uttarakhand another …… Respondents

Mr. N.S. Pundir, Advocate for the applicants.
Mr. S.S. Adhikari, Brief Holder for the respondent State.
Mr. Siddhartha Sah, Advocate for respondent no. 2.

U.C. Dhyani, J.(Oral)

By means of present application under Section 482
Cr.P.C., the applicants seek to set aside the judgment and order
dated 20.12.2014, passed by learned Addl. District Judge,
Dehradun in criminal revision no. 133 of 2014, Sandeep Oberai
another vs State of Uttarakhand another, under Sections
120B, 420, 467, 468, 471, 447 and 448 IPC and further, set
aside the order dated 27.01.2014, passed by learned Judicial
Magistrate I, Dehradun, in criminal case no. 1887 of 2012,
State vs Sandeep Oberai another, in respect of selfsame
offences.

2) An FIR was lodged by the complainant
(respondent no. 2) against two named accused (applicants
herein) on 14.03.2011, for the offences punishable under
Sections 120B, 420, 467, 468, 471 IPC. After the investigation,
charge sheet was submitted against the accused-applicants for
the selfsame offences. An additional charge sheet was also
submitted against the accused-applicants for the offences
punishable under Sections 447, 448 IPC. At the time of
framing of charge, written submissions were given on behalf of
the accused-applicants. The said application was dismissed by
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giving cogent reasons by learned Judicial Magistrate I,
Dehradun, vide order dated 27.01.2014. Charges were directed
to be framed against the accused-applicants. Aggrieved against
the same, a criminal revision was filed, which was dismissed by
learned Addl. Sessions Judge on 20.12.2014. Still feeling
aggrieved, present application under Section 482 Cr.P.C. has
been filed by the accused-applicants.

3) The scope of discharge has been highlighted by the
Hon’ble Apex Court in a catena of decisions, including the one
in Shoraj Singh Ahlawat others vs State of U.P. another,
AIR 2013 SC 52.

4) First of all, the Court has to see what is the scope
of interference in framing of charge? The Hon’ble Supreme
Court in Shoraj Singh Ahlawat (supra) while relying upon
various decisions rendered in Preeti Gupta another vs.
State of Jharkhand another (2010) 7 SCC 667, Union of
India vs. Prafulla Kumar Samal another, (1979) 3 SCC 4;
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9
SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005)
1 SCC 568; Onkar Nath Mishra others vs. State (NCT of
Delhi) another, (2008) 2 SCC 561; Shakson Belthissor vs.
State of Kerala another, (2009) 14 SCC 466 and Rumi
Dhar (Smt.) vs. State of West Bengal another, (2009) 6
SCC 364, has observed as follows:

“8. On behalf of the appellant it was argued on the
authority of the decisions of this Court in Preeti Gupta
and Anr. v. State of Jharkhand Anr. (2010) 7 SCC
667, Union of India v. Prafulla Kumar Samal and Anr.
(1979) 3 SCC 4, Sajjan Kumar v. Central ureau of
Investigation (2010) 9 SCC 368, State of Orissa v.

Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath
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Mishra and Ors. v. State (NCT of Delhi) and Anr.
(2008) 2 SCC 561, Shakson Belthissor v. State of Kerala
and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v.
State of West Bengal and Anr. (2009) 6 SCC 364, that
while considering an application for discharge the
Court can examine the evidence on record and
discharge the accused persons if there is no possibility
of the accused being found guilty on the basis of such
evidence specially in cases where the accused produces
unimpeachable evidence in support of his defence. It
was also contended that while examining whether the
Court should or should not discharge the accused, it
must be remembered, that Section 498-A of the IPC is a
much abused provision and that exaggerated versions
of small incidents are often resented to falsely
implicate, harass and humiliate the husband and his
relatives. Applying the principles set out in the above
decisions the appellants were, according to Ms. Geeta
Luthra, learned counsel appearing for them, entitled to
a discharge not only because there was an inordinate
delay in the filing of the complaint by respondent No.1
but also because the statements made under Section 161
Cr.P.C. by the witnesses who were either planted or
merely chance witnesses were contradictory in nature.
It was argued that two Investigating Officers having
investigated the matter and found the allegations to be
false, there was no reason for the Court to believe the
story set up by the wife who had suffered a decree for
divorce in regard to which she had written to the Army
Authorities a letter dated 2nd October, 2006 stating that
she was not pursuing the matter in any Court.
Appellant No.3-Naveen Ahlawat having got re-
married on 30th October, 2006 the incident referred in
the complaint was a fabrication which aspect the
Courts below had failed to consider thus failing to
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protect the appellants against harassment and the
ignominy of a criminal trial.

9. On behalf of respondent No.2, it was per contra
argued that her husband had filed a divorce petition
against her in the Family Court, Meerut showing
respondent No.2 to be residing with her parents at 327,
Prabhat Nagar, Meerut, whereas she was actually
residing with the appellants along with her daughter at
No. 9, Tigris Road, Delhi Cantt, Delhi. It was further
argued that appellant No.3 had obtained an ex parte
decree order of divorce by fraudulent means and by
forging signatures of respondent No.2, acknowledging
receipt of the notice which she had never received from
the concerned Court. This was conclusively established
by the fact that the ex parte decree dated 31st May,
2006 had been eventually set aside by the Court in
terms of order dated 28th July, 2007. Allegations
regarding physical torture of respondent No.2 and her
being abandoned on the road on the date of incident in
question as also the allegation about dowry
harassment were factually correct and made out a
clear case for prosecuting the appellants. Appellant
No.3 had, according to the counsel for the respondent,
married one Aditi on 30th October, 2006. It was also
argued that letter referred to by appellant No.3 as also
letter dated 2nd November, 2006 allegedly written by
respondent No.2 were forgeries committed by the
appellants. The trial Court was, in the light of the
available material, justified in refusing to discharge the
accused persons and that the grounds for discharge set
up by the appellants could be examined only after the
case had gone through full-fledged trial. Reliance was
placed upon a decision of this Court in Union of India
v. Prafulla Kumar Samala and Anr. (1979) 3
SCC 5.

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10. The case at hand being a warrant case is governed
by Section 239 of the Cr.P.C. 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.”

11. 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. 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. The ambit of Section 239
Cr.P.C. 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 and Ors. v. State (NCT of Delhi)
and Anr. (2008) 2 SCC 561. That too was a case in
which a complaint under Sections 498-A and 406 read
with Section 34 of the I.P.C. was filed against the
husband and parents in-law of the complainant-wife.
The Magistrate had in that case discharged the accused
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under Section 239 of the Cr.P.C, 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. 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 .”

(emphasis supplied)

12. Support for the above view was drawn by this
Court from earlier decisions rendered in State of
Karnataka v. L. Muniswamy 1977 Cri.LJ 1125,
State of Maharashtra Ors. v. Som Nath
Thapa and Ors. 1996 Cri.LJ 2448 and State of
M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In
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Som Nath’s case (supra) the legal position was
summed up as under:

“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. ”

(emphasis supplied)

13. So also in Mohanlal’s case (supra) this Court
referred to several previous decisions and held that the
judicial opinion regarding the approach to be adopted
for framing of charge is that such charges should be
framed if the Court prima facie finds that there is
sufficient ground for proceeding against the accused.
The Court is not required to appreciate evidence as if to
determine whether the material produced was
sufficient to convict the accused. The following passage
from the decision in Mohanlal’s case (supra) is in this
regard apposite:

“8. The crystallized judicial view is that at the stage of
framing 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 evidence to conclude whether the materials
produced are sufficient or not for convicting the
accused.”

14. In State of Orissa v. Debendra Nath Pandhi
(2005) 1 SCC 568, this Court was considering
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whether the trial Court can at the time of framing of
charges consider material filed by the accused. The
question was answered in the negative by this Court in
the following words:

“18. We are unable to accept the aforesaid contention.
The reliance on Articles 14 and 21 is misplaced……
Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini-trial at the
stage of framing of charge. That would defeat the
object of the Code. It is well-settled that at the stage of
framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the
learned counsel for the accused would mean permitting
the accused to adduce his defence at the stage of
framing of charge and for examination thereof at that
stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of
alibi taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled proposition
that it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled to
produce materials and documents in proof of such a
plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more. The expression ‘hearing the submissions
of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby
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changing the settled law. At the state of framing of
charge hearing the submissions of the accused has to be
confined to the material produced by the police………

xx xx xx xx

23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or
taking cognizance the accused has no right to produce
any material…”

(emphasis supplied)

15. Even in Smt. Rumi Dhar v. State of West
Bengal Anr. (2009) 6 SCC 364, reliance
whereupon was placed by counsel for the appellants
the tests to be applied at the stage of discharge of the
accused person under Section 239 of the Cr.P.C., were
found to be no different. Far from readily encouraging
discharge, the Court held that even a strong suspicion
in regard to the commission of the offence would be
sufficient to justify framing of charges. The Court
observed:

“…While considering an application for discharge filed
in terms of Section 239 of the Code, it was for the
learned Judge to go into the details of the allegations
made against each of the accused persons so as to form
an opinion as to whether any case at all has been made
out or not as a strong suspicion in regard thereto shall
subserve the requirements of law…

16. To the same effect is the decision of this Court in
Union of India v. Prafulla Kumar Samal and
Anr. v. (1979) 3 SCC 4, where this Court was
examining a similar question in the context of Section
227 of the Code of Criminal Procedure. The legal
position was summed up as under:

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge :

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(1) That the Judge while considering the question
of framing the charges under Section 227 of the
Code 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:

(2) 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.

(3) The test to determine a prima facie case
would naturally depend upon the facts of each
case and it is difficult 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
while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which under
the present Code is a senior and experienced
Judge cannot act merely as a Post Office or a
mouth-piece 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
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.”

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5) Judging by the same yardstick, the Court does not
find any merit in the grounds which have been taken on behalf
of the applicants in present application under Section 482
Cr.P.C. The Court need not reproduce those grounds which
have been taken by the applicants, as the same are part of the
record.

6) Hon’ble Apex Court in Amit Kapoor vs Ramesh
Chander and another, (2013) 1 SCC (Cri) 986, has laid down
certain principles in respect of exercise of jurisdiction under
Section 482 of Cr.P.C. One of the principle is that the Court
should apply the test as to whether the uncontroverted
allegations as made from the record of the case and the
documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach
such a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the court may interfere. Where the
factual foundation for an offence has been laid down, the courts
should be reluctant and should not hasten to quash the
proceedings even on the premise that one or two ingredients
have not been stated or do not appear to be satisfied if there is
substantial compliance with the requirements of the offence.
The power is to be exercised ex debito justitiae, i.e., to do real
and substantial justice for administration of which alone, the
courts exists.

7) Hon’ble Supreme Court, in Rajiv Thapar and
others vs. Madan Lal Kapoor (2013) 3 SCC 330 has observed
in paragraph no. 28 of the said ruling as under:

“28. The High Court, in exercise of its jurisdiction under
Section 482 of the Cr.P.C., must make a just and rightful
choice. This is not a stage of evaluating the truthfulness
or otherwise of allegations levelled by the
prosecution/complainant against the accused. Likewise,
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it is not a stage for determining how weighty the
defences raised on behalf of the accused is. Even if the
accused is successful in showing some suspicion or
doubt, in the allegations levelled by the
prosecution/complainant, it would be impermissible to
discharge the accused before trial. This is so, because it
would result in giving finality to the accusations levelled
by the prosecution/complainant, without allowing the
prosecution or the complainant to adduce evidence to
substantiate the same. The converse is, however, not
true, because even if trial is proceeded with, the accused
is not subjected to any irreparable consequences. The
accused would still be in a position to succeed, by
establishing his defences by producing evidence in
accordance with law. There is an endless list of
judgments rendered by this Court declaring the legal
position, that in a case where the
prosecution/complainant has levelled allegations
bringing out all ingredients of the charge(s) levelled,
and have placed material before the Court, prima facie
evidencing the truthfulness of the allegations levelled,
trial must be held.”

8) From a bare perusal of the FIR, it is apparent that
foundation of criminal offence is laid against the present
applicants. When the foundation of criminal offence is laid
against the accused-applicants, this Court is unable to interfere
with the order under challenge. There is no illegality and
infirmity in the order under judicial review before this Court.
The reasons have been assigned by the trial court in coming to
the conclusion as to why charge should be framed against the
accused-applicants.

9) When factual foundation of any offence is laid
against the accused-applicants, then this Court should not
intervene in exercise of its inherent jurisdiction, unless, of
course, this Court, on the basis of cogent reason, finds that the
same will be abuse of the process of the Court.

10) It is also the settled law that the factual
controversy need not be gone into by this Court in exercise of
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its inherent jurisdiction. Inherent jurisdiction under Section 482
Cr.P.C. has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the Section. In the instant case, the
accused-applicants are unable to pass those tests.

11) No interference is called for in the order under
challenge. The application under Section 482 Cr.P.C.,
therefore, fails and is dismissed. Liberty is, however, granted to
the applicants to raise the pleas, which they have raised in this
Court before the trial court also for seeking their acquittal at an
appropriate stage.

[Urgency application no. 1138 of 2017 also stands
disposed of.]

(U.C. Dhyani, J.)

Dt. March 15, 2017.

Negi