Dismissed

Gopal Prasad Gupta And Anr. v. The State Of Jharkhand And Anr.

Jharkhand HC5 Jul 2023Cr.Rev./323/2017

Case brief

AI extract

What is this about?

In a criminal revision, the Jharkhand High Court dismissed the petition challenging an order rejecting the respondents' discharge application in a dowry and cruelty case. The court held that the lower court correctly framed charges as the prosecution witnesses supported allegations, stating that defence submissions and credibility are not for consideration at the charge-framing stage under Section

What did the court decide?

The criminal revision application was dismissed, and the impugned order rejecting the discharge petition was affirmed.

Gopal Prasad Gupta And Anr. Vs The State Of Jharkhand… — Dowry and Cruelty | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No.323 of 2017

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Gopal Prasad Gupta

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Mahesh Prasad Gupta

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..… Petitioners

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Versus

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The State of Jharkhand

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Puja Gupta ….. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Arun Kumar, Advcoate For the State : Mr. Priya Shrestha, Spl.P.P. For the O.P. No. 2 : Mr. Vikash Kumar, A.P.P.

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ORAL JUDGMENT IN COURT

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23/05.07.2023 This criminal revision has been filed on behalf of the petitioners challenging the order dated 18.01.2017, passed by Shri Deepak Kumar, learned Judicial Magistrate, 1^st class, Gumla by which Discharge Petition filed under Section 245 Cr.P.C. on behalf of the petitioners has been rejected in connection with Complaint Case No. 147/2009 filed under Sections 323/498 (A)/506/34 I.P.C. and Section 4 of the Dowry Prohibition Act.

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2. The case of the complainant-O.P. No.2, in brief, is that the O.P. No.2 was married with the petitioner No. 1 on 26.4.2001 as per the Hindu Rites and Customs and they have got one son aged about six years from their matrimonial wedlock. However, after marriage, the Petitioner No.1 started assaulting the complainant-O.P. No.2 and he used to torture her and even stopped giving her food and other essential items at the instigation of his mother and brother. It is also alleged that the complainant-O.P. No.2 was ousted from her matrimonial home along with her children.

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3. Heard Mr. Arun Kumar, learned counsel for the petitioners, Ms. Priya Shrestha, learned Spl.P.P. and Mr. Vikash Kumar, learned counsel for O.P. No.2. 4. Learned counsel for the petitioners has submitted that the impugned order passed by the court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioners have never demanded any dowry from O.P. No.2, however, O.P. No. 2 has filed a false and concocted case against them as O.P.No.2 does not want to live with the petitioner No.1. It is submitted that there is general and omnibus allegation against the petitioners for demanding dowry. It is further submitted that as a matter of fact, the complainant-O.P. No. 2 is residing in Ranchi, but she has filed the complaint case before learned C.J.M., Gumla and as such the Civil Court, Gumla has no territorial jurisdiction to try the case against the petitioners. It is submitted that petitioners are living in Kolkata and they are working in Gita Press and no occurrence has taken place in Kolkata and there is no demand of dowry in Kolkata and hence the impugned order may be set aside.

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5. Learned counsel for the petitioners placed reliance upon the following judgments:

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1. Over Siar Dwivedi Vs. The State of Jharkhand & Anr. reported in 2009 (1) JLJR 578,

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2. Bhushan Kumar Meen Versus State of Punjab & Ors. reported in 2011(4) Eastern Criminal Cases 113 (Supreme Court) and

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3. Vijay Prasad Versus State of Bihar & Anr. reported in 2012 (1) East Cr C 494

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(Pat)

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It is submitted that in view of law settled in aforesaid criminal cases, the impugned order may be quashed and set aside and this criminal revision application may be allowed.

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6. On the other hand, learned Special P.P. has submitted that this criminal revision application is devoid of merit. It is submitted that both the petitioners have tortured and demanded dowry from the complainant- O.P. No. 2 and the complainant and her witnesses have fully supported the case and as such no illegality has been committed by the learned court below while dismissing the discharge petition.

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7. Learned counsel for O.P. No. 2, after adopting the submissions of the learned Spl.P.P., has submitted that the impugned order passed by the learned court below is fit and proper and no interference is required from this court. It is submitted that both the petitioners have tortured and assaulted O.P. No. 2 and ousted her from her matrimonial home.

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8. It is further submitted that after filing of the complaint case by the O.P. No. 2, the Petitioner No. 1 had preferred A.B.P. No. 85 of 2010 before the Civil Court, Gumla and the matter was referred to mediation and Petitioner No. 1 has given Undertaking that he will take care of both wife and children, however, no step was taken by the Petitioner No.1. It is further submitted that even Petitioner No.1 has filed a case for divorce, bearing Matrimonial Suit No. 56 of 2017 before

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the learned Principal Judge, Family Court at Kolkata. It is further submitted that even the O.P. No.2 was not aware of the ex-parte order passed against her in said Matrimonial Suit filed under Section 9 of the Hindu Marriage Act by the Petitioner No.1.

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9. Learned counsel for the O.P. No. 2 has placed reliance upon the judgment passed by the Hon’ble Supreme Court of India in the case of GHULAM HASSAN BEIGH versus MOHAMMAD MAQBOOL MAGREY & ORS. reported in 2022 SCC Online 913 and submitted that as meticulous examination of statement of witnesses is not required to be seen at the time of framing of charges and the defence of the accused persons cannot be looked into at the stage of framing of charges, hence this criminal revision may be dismissed.

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10. Perused records of this case and considered the submissions of both sides.

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11. It transpires that complainant-O.P. No. 2 had filed Complaint Case No. 147 of 2009 before the learned C.J.M., Gumla on 06.7.2009. 12. It transpires that after examining the complainant on solemn affirmation and after recording the statement of witnesses under Section 202 Cr.P.C., the learned Court below had issued summons against the petitioners for committing the offences under Sections 323, 498(A), 506 read with Section 34 of the I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. 13. It transpires from the Lower Court Record that petitioners were granted anticipatory bail by the learned Sessions Judge.

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14. Although the learned counsel for O.P. No. 2 has submitted that bail was granted to the petitioner on the basis of compromise, but no such bail order has been produced before the Court at the time of filing counter affidavit and even till date no such order has been produced before this Court.

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15. It transpires from perusal of statement of witnesses before charge that C.W.I. is Puja Gupta, i.e. O.P. No. 2, who has stated that after her marriage with Petitioner No. 1 on 26.4.2001 she went to her matrimonial home at Kolkata where she stayed for three months. Thereafter, the Petitioner No. 1, his mother and his brother, i.e. petitioner no. 2 started assaulting her and they even stopped giving her food and clothes. She has also alleged that they have also demanded bike at the time of marriage of her brother and due to non fulfilment of demand of dowry she was ousted from her matrimonial home.

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During cross examination she has stated that she is living in the house of her maternal uncle at Karanjtoli, Sisai since the year 2009. Although she has stated that her son is studying in D.A.V. Dhurwa at Ranchi, but she has come from Sisai, (Gumla-District). 16. C.W.2 is one Dhaneshwar Sahu. He has also supported the case of the complainant-O.P. No. 2 and stated that both the petitioners have assaulted the complainant at Karanjtoli P.S., Sisai, (Gumla District).

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C.W. 3-Manoj Sahu has also supported the case of complainant-O.P. No. 2.

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17. It further reveals from the deposition of C.W. No. 2 and C.W. No.3 that the petitioners had taken O.P. No.2, after compromise of the case, before the court

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below but again she was ousted. Therefore, it would appear that both C.W. 1, 2 and 3 have stated that both petitioners have assaulted and tortured her at Sisai in Gumla.

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18. So far as the judgment in the case of Over Siar Dwivedi Vs. The State of Jharkhand & Anr. reported in 2009 (1) JLJR 578 is concerned, the same is not applicable on the facts and in the circumstances of this case as above Case was disposed of by the High Court of Jharkhand with liberty to the petitioner to raise all the points before the trial court and no decision has been passed on the merit of the said case.

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19. So far as judgment passed in the case of Bhushan Kumar Meen Versus State of Punjab & Ors. reported in 2011(4) Eastern Criminal Cases 113 (Supreme Court) is concerned, it is also not applicable in the facts and circumstances of the case as in the above case the allegation of demand of dowry was found exaggerated by the Women’s Cell at Patiala and thereafter it was enquired by the Senior Superintendent of Police, Patiala and who did not find the said case to be a case of demand of dowry. In this view of the matter, the Hon’ble Supreme Court has set aside the order of cognizance.

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However, in the present case, there is no such report of Women’s Cell or the Superintendent of Police rather this is a complaint case in which witnesses have supported the allegations. Thus, the above judgment is also not applicable in the present case.

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20. Sofar as judgment passed in Vijay Prasad Versus State of Bihar & Anr. reported in 2012 (1) East Cr C 494 (Pat) is concerned, the same was related to alleged illicit relation of the husband and the Patna High Court has quashed the case of the petitioner by placing reliance upon the judgment of the Hon’ble Supreme Court mainly on the ground that brother-inlaw, sister-in-law and mother-in-law have been implicated.

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In the present case, Petitioner No.1 is the husband himself and Petitioner No. 2 is Dewar and therefore, the judgment rendered by Hon’ble Patna High Court is not applicable on the facts and in the circumstances of the present case.

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21. Further, It is well settled from a catena of decisions that the defence of the accused persons cannot be looked into at the stage of framing of charges.

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22. It is also well settled from a catena of decisions that meticulous examination of statement of witnesses is not required to be seen at the time framing of charges.

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23. The question of territorial jurisdiction of an offence in a case is a mixed question of facts and laws and which can be seen only at the time of trial. 24. When the matter was taken up before this court, then an effort for reconciliation was made in the month of June, 2022 and vide order dated 08.6.2022 it has been recorded on behalf of the petitioners that the Petitioner No. 1 is still ready to keep his wife with full

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honour and dignity and again learned counsel for O.P. No. 2 has also submitted that the wife (O.P. No.2) is also willing and may live with this Petitioner No. 1.

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Accordingly, This Court directed that the Petitioner No.1 and O.P.No.2 may remain physically present before this Court on 24.6.2022.

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Although the wife-O.P. No. 2 was present on that day, i.e. on 24.6.2022, but Petitioner No. 1 was not present. However, on 06.7.2022, both the sides were present and with consent of both sides, matter was referred to JHALSA for mediation and for amicable settlement between both the sides. However, mediation has failed between the parties and the case has been fixed for final argument.

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25. From perusal of Annexure 2 of the Criminal Revision Application filed on behalf of the petitioner, it appears that the learned Addl. Principal Judge, Family Court No. 2, Kolkata has decreed matrimonial Suit No. 2006 of 2012 ex-parte. However, it was also observed by the learned Additional Principal Judge that the Petitioner (Petitioner No. 1 of this criminal revision application) and the respondent, i.e. complainant-Opp. Party No. 2 herein had amicably settled the dispute before the D.L.S.A., Gumla.

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26. Therefore, it is evident that the conduct of the petitioners, particularly Petitioner No. 1 is not fair. On one hand, Petitioner No. 1 has given an undertaking before D.L.S.A., Gumla that he will keep his wife properly and on the other hand he has failed to comply with the Undertaking.

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27. It has been held in the case of Anup Kumar Lakhotia Vs. The Union of India through Central

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Bureau of Investigation reported in 2022 (1) JLJR in page 127 and Para-25 as follows:

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“Para-25:- The learned court below, while considering the petition for discharge considered the scope of Section 227 of Cr. P. C. and recorded that hearing the submissions of the accused as postulated by Section 227 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 is to be granted to the accused. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.”

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28. It has been held that in the case of State By The Inspector Of Police, Chennai vs. S. Selvi and Another reported in 2018 (13) SCC 455 at paragraph No.10 as follows:-

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“Para-10:- If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed the offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record 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 conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that materials brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence.”

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29. It has been held by the Hon’ble Supreme Court in the case of M. E. Shivalingamurthy Versus Central Bureau of Investigation, Bengaluru

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reported in (2020) 2 SCC 768 at para17.3 , 17.6 and 18 as follows:-

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“Para-17.3:-The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

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Para-17.6:- The court has to consider the broad probabilities, 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, would not entitle the court make a roving inquiry into the pros and cons.

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Para-18:- The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar). The expression. "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any. produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge. the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).”

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30. It has been held by the Hon’ble Supreme Court

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in the case of State (NCT of Delhi) Vs. Shiv Charan Bansal and Ors and in the case of Kanta Devi Vs. State (NCT of Delhi) and Ors. reported in (2020) 2 SCC 290 at para-39 as follows:-

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“Para-39:- The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. 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 ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in

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State of Bihar v. Ramesh Singh where it has been held that at the stage of framing charges under Sections 227 or 228 Cr.P.C., if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.

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31. Thus, in view of the discussions made above, it is evident that this Criminal Revision Application filed on behalf of the petitioners is devoid of merit. 32. Therefore, on the facts and in the circumstances of the case and in the light of the aforesaid judgments, this Criminal Revision Application is, hereby, dismissed.

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(Sanjay Prasad, J.)

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sm/

Gopal Prasad Gupta And Anr. v. The State Of Jharkhand And Anr.

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Gopal Prasad Gupta And Anr. v. The State Of Jharkhand And Anr.

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