Ss. 239 and 240 - Discharge of accused - Refusal of, on ground that inconsistency in materials produced by
prosecution cannot be looked into for discharge of accused in absence of full-fledged trial - Validity of - In her complaint,
Respondent 2-complainant alleging that Appellant 3-accused (her husband) and Appellants 1 & 2 (her parents-in-law)
subjected her to cruelty, harassment and demanded dowry - Appellants-accused filing application for discharge based on
contradictions in statement of witnesses - Trial court rejecting their application concluding that discharge could be
considered after prosecution adducing evidence - High Court also declined to discharge appellant-accused - Tenability of
- Held, allegations against all appellant-accused were specific - Truthfulness of those allegations could not be determined
while framing charges and that can be ascertained only after conclusion of trial - Court cannot speculate truthfulness of
falsity of allegations made against accused while framing of charge - Contradictions and inconsistencies in statement of
witnesses cannot be looked into at this stage for discharge of appellant-accused, though they may be considered after
completion of trial - Though unscrupulous litigants take advantage of legal process and such measure might subject
innocent persons, falsely implicated in criminal cases, to harassment but as long as legal requirement and settled
principles do not permit discharge of accused, he cannot be discharged - As allegations against appellant-accused were
very specific, refusal of discharge was proper,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1803 OF 2012
(Arising out of S.L.P. (Crl.) No.4649 of 2010)
Sheoraj Singh Ahlawat & Ors. …Appellants
Versus
State of Uttar Pradesh & Anr. …Respondents
T.S. THAKUR, J.
1. Leave granted.
2. This appeal is directed against a judgement and order
dated 6th May, 2010, passed by the High Court of
Judicature at Allahabad whereby Criminal Revision No.1241
of 2010 filed by the appellants has been dismissed and
order dated 9th March, 2010 passed by the Additional
1
Page 2
Judicial Magistrate, Bulandshahar dismissing an application
for discharge affirmed. The factual backdrop in which the
matter arises may be summarised as under:
3. Appellant No.3-Naveen Ahlawat and respondent no.2-
Smt. Renu Ahlawat tied the matrimonial knot on 28th
September, 1998. Appellant No.3 was, at that time, serving
in Indian Army as a Captain. The couple were blessed with
a daughter three years after marriage. According to the
wife-Smt. Renu Ahlawat, the addition to the family did not
make much of a difference in terms of cordiality of her
relations with her husband Captain Naveen Ahlawat and
appellants No.1 and 2 who happen to be her parents in-law
as they kept harassing her for dowry ever since the
marriage was solemnised. These demands, according to
her, continued even after her father had paid a sum of
rupees four lakhs to the appellants. Physical and mental
torture of respondent No.2-Renu Ahlawat, it is alleged, also
did not stop even after the said payment, for the sake of a
luxury car as an additional item of dowry. Respondent
No.2-Smt. Renu Ahlawat’s further case is that on 10th
2
Page 3
December, 2006 she was forced into a car by the
appellants who then abandoned her at a deserted place on
a lonely road near Sihi village at around 8 p.m. and
threatened to kill her if she returned to her matrimonial
home. When Jitendar Singh and Brijvir Singh two villagers
saw respondent No.2-Renu Ahlawat weeping by the side of
the road, besides the car they tried to confront the
appellants whereupon appellant No.3-Naveen is alleged to
have pulled out a revolver and threatened to shoot them.
4. A complaint about the incident was lodged on 13th
December, 2006, by respondent No.2-Renu Ahlawat with
SSP, Bulandshahar in which she gave details regarding her
marriage with the appellant No.3-Naveen Ahlawat and the
mental and physical harassment faced by her at their hands
as also repeated demands for dowry. She also accused her
sisters-in-law, Neena and Meghna for indulging in such
harassment along with the appellants.
5. The jurisdictional police started investigation into the
incident, in the course whereof complainant-Smt. Renu
3
Page 4
Ahlawat came to know about her husband-Naveen Ahlawat
having obtained an ex parte decree for divorce against her.
A copy of the said judgment and decree was collected by
Smt. Renu Ahlawat on 28th November, 2006 and steps
taken to have the same set aside. The decree was
eventually set aside by the Court concerned.
6. The police, in the meantime, filed a closure report to
which Renu Ahlawat filed a protest petition. It was on the
basis of the protest petition that Judicial Magistrate,
Bulandshahar, took cognizance of an offence punishable
under Section 498-A of the I.P.C. against the appellants as
also against Neena and Meghna sisters-in-law of the
complainant. By an order dated 13th February, 2009 Neena
and Meghna were discharged by the High Court of
Allahabad on the ground that no specific allegations were
made against them. The appellants then filed an application
for discharge under Section 239 of the Code of Civil
Procedure, 1973 before learned Additional Chief Judicial
Magistrate, Bulandshahar in which they alleged that the
accusations of dowry harassment levelled against them
4
Page 5
were false and so was the incident alleged to have taken
place on 10th December, 2006 on which date both
appellants No.1 and his son appellant No.3 claimed to be
otherwise engaged which according to them belied Renu
Ahlawat’s story of their having abandoned her on a
deserted road as alleged by her. The application for
discharge was, however, dismissed by the Court by order
dated 9th March, 2010 holding that the grounds urged for
discharge could be considered only after evidence was
adduced in the case and that appellant No.2 could not be
discharged on the basis of minor contradictions in the
depositions recorded in the course of the investigation.
7. Aggrieved by the order passed by the Trial Court the
appellants preferred Criminal Revision No.1241 of 2010
which was dismissed by the High Court on the ground that
the same did not make out a case for quashing of the
proceedings against the appellants. The present appeal
assails the correctness of the said order of dismissal.
5
Page 6
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 Bureau of
Investigation (2010) 9 SCC 368, State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath
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
6
Page 7
presented 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 protect
the appellants against harassment and the ignominy of a
criminal trial.
7
Page 8
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
8
Page 9
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.
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.”
9
Page 10
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 parentsin-
law of the complainant-wife. The Magistrate had in that
case discharged the accused under Section 239 of the
10
Page 11
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 materia l
which leads the court to form a presumptive opinion as
to the existence o f the factua l ingredients constituting
the offence alleged would justify the framing o f charge
against the accused in respect o f the commission o f
that offence .”
(emphasis supplied)
11
Page 12
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 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
o f framing o f a charge, probative value o f 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
12
Page 13
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 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 o f framing o f charge the defence o f the
accused cannot be put forth. The acceptance o f the
contention o f the learned counse l for the accused would
mean permitting the accused to adduce his defence at
the stage o f framing o f charge and for examination
thereo f at that stage which is against the crimina l
jurisprudence. By way o f illustration, it may be noted
that the plea o f alib i taken by the accused may have to
be examined at the stage o f framing o f charge i f the
contention o f the accused is accepted despite the wel l
settled proposition that it is for the accused to lead
evidence at the tria l to sustain such a plea. The
accused would be entitled to produce materials and
documents in proo f o f such a plea at the stage o f
framing o f the charge, in case we accept the contention
put forth on behal f o f the accused. That has never been
the intention o f the law wel l 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 changing the settled law. At
the state o f framing o f charge hearing the submissions
o f the accused has to be confined to the materia l
produced by the police ...
23. As a result o f aforesaid discussion, in our view,
clearly the law is that at the time o f framing charge or
taking cognizance the accused has no right to produce
any materia l...”
(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 :
(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.”
17. Coming then to the case at hand, the allegations made
against the appellants are specific not only against the
husband but also against the parents-in-law of the
complainant-wife. Whether or not those allegations are true
is a matter which cannot be determined at the stage of
framing of charges. Any such determination can take place
only at the conclusion of the trial. This may at times put an
innocent party, falsely accused of commission of an offence
to avoidable harassment but so long as the legal
requirement and the settled principles do not permit a
discharge the Court would find it difficult to do much,
conceding that legal process at times is abused by
unscrupulous litigants especially in matrimonial cases
where the tendency has been to involve as many members
of the family of the opposite party as possible. While such
tendency needs to be curbed, the Court will not be able to
speculate whether the allegations made against the
accused are true or false at the preliminary stage to be able
to direct a discharge. Two of the appellants in this case
happen to be parents-in-law of the complainant who are
senior citizens. Appellant No.1 who happens to be the
father-in-law of the complainant-wife has been a Major
General, by all means, a respectable position in the Army.
But the nature of the allegations made against the couple
and those against the husband, appear to be much too
specific to be ignored at least at the stage of framing of
charges. The Courts below, therefore, did not commit any
mistake in refusing a discharge.
18. In the result, this appeal fails and is hereby dismissed.
Keeping, however, in view the facts and circumstances of
the case, we direct that appellant Nos. 1 and 2 shall stand
exempted from personal appearance before the trial Court
except when the trial Court considers it necessary to direct
their presence. The said appellants shall, however, make
sure that they are duly represented by a counsel on all
dates of hearing and that they cooperate with the progress
of the case failing which the trial Court shall be free to
direct their personal appearance. No costs.
……………………….……………………..…….…J.
(T.S. THAKUR)
……………………….………………….…..……….J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
November 9, 2012
Print Page
prosecution cannot be looked into for discharge of accused in absence of full-fledged trial - Validity of - In her complaint,
Respondent 2-complainant alleging that Appellant 3-accused (her husband) and Appellants 1 & 2 (her parents-in-law)
subjected her to cruelty, harassment and demanded dowry - Appellants-accused filing application for discharge based on
contradictions in statement of witnesses - Trial court rejecting their application concluding that discharge could be
considered after prosecution adducing evidence - High Court also declined to discharge appellant-accused - Tenability of
- Held, allegations against all appellant-accused were specific - Truthfulness of those allegations could not be determined
while framing charges and that can be ascertained only after conclusion of trial - Court cannot speculate truthfulness of
falsity of allegations made against accused while framing of charge - Contradictions and inconsistencies in statement of
witnesses cannot be looked into at this stage for discharge of appellant-accused, though they may be considered after
completion of trial - Though unscrupulous litigants take advantage of legal process and such measure might subject
innocent persons, falsely implicated in criminal cases, to harassment but as long as legal requirement and settled
principles do not permit discharge of accused, he cannot be discharged - As allegations against appellant-accused were
very specific, refusal of discharge was proper,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1803 OF 2012
(Arising out of S.L.P. (Crl.) No.4649 of 2010)
Sheoraj Singh Ahlawat & Ors. …Appellants
Versus
State of Uttar Pradesh & Anr. …Respondents
T.S. THAKUR, J.
1. Leave granted.
2. This appeal is directed against a judgement and order
dated 6th May, 2010, passed by the High Court of
Judicature at Allahabad whereby Criminal Revision No.1241
of 2010 filed by the appellants has been dismissed and
order dated 9th March, 2010 passed by the Additional
1
Page 2
Judicial Magistrate, Bulandshahar dismissing an application
for discharge affirmed. The factual backdrop in which the
matter arises may be summarised as under:
3. Appellant No.3-Naveen Ahlawat and respondent no.2-
Smt. Renu Ahlawat tied the matrimonial knot on 28th
September, 1998. Appellant No.3 was, at that time, serving
in Indian Army as a Captain. The couple were blessed with
a daughter three years after marriage. According to the
wife-Smt. Renu Ahlawat, the addition to the family did not
make much of a difference in terms of cordiality of her
relations with her husband Captain Naveen Ahlawat and
appellants No.1 and 2 who happen to be her parents in-law
as they kept harassing her for dowry ever since the
marriage was solemnised. These demands, according to
her, continued even after her father had paid a sum of
rupees four lakhs to the appellants. Physical and mental
torture of respondent No.2-Renu Ahlawat, it is alleged, also
did not stop even after the said payment, for the sake of a
luxury car as an additional item of dowry. Respondent
No.2-Smt. Renu Ahlawat’s further case is that on 10th
2
Page 3
December, 2006 she was forced into a car by the
appellants who then abandoned her at a deserted place on
a lonely road near Sihi village at around 8 p.m. and
threatened to kill her if she returned to her matrimonial
home. When Jitendar Singh and Brijvir Singh two villagers
saw respondent No.2-Renu Ahlawat weeping by the side of
the road, besides the car they tried to confront the
appellants whereupon appellant No.3-Naveen is alleged to
have pulled out a revolver and threatened to shoot them.
4. A complaint about the incident was lodged on 13th
December, 2006, by respondent No.2-Renu Ahlawat with
SSP, Bulandshahar in which she gave details regarding her
marriage with the appellant No.3-Naveen Ahlawat and the
mental and physical harassment faced by her at their hands
as also repeated demands for dowry. She also accused her
sisters-in-law, Neena and Meghna for indulging in such
harassment along with the appellants.
5. The jurisdictional police started investigation into the
incident, in the course whereof complainant-Smt. Renu
3
Page 4
Ahlawat came to know about her husband-Naveen Ahlawat
having obtained an ex parte decree for divorce against her.
A copy of the said judgment and decree was collected by
Smt. Renu Ahlawat on 28th November, 2006 and steps
taken to have the same set aside. The decree was
eventually set aside by the Court concerned.
6. The police, in the meantime, filed a closure report to
which Renu Ahlawat filed a protest petition. It was on the
basis of the protest petition that Judicial Magistrate,
Bulandshahar, took cognizance of an offence punishable
under Section 498-A of the I.P.C. against the appellants as
also against Neena and Meghna sisters-in-law of the
complainant. By an order dated 13th February, 2009 Neena
and Meghna were discharged by the High Court of
Allahabad on the ground that no specific allegations were
made against them. The appellants then filed an application
for discharge under Section 239 of the Code of Civil
Procedure, 1973 before learned Additional Chief Judicial
Magistrate, Bulandshahar in which they alleged that the
accusations of dowry harassment levelled against them
4
Page 5
were false and so was the incident alleged to have taken
place on 10th December, 2006 on which date both
appellants No.1 and his son appellant No.3 claimed to be
otherwise engaged which according to them belied Renu
Ahlawat’s story of their having abandoned her on a
deserted road as alleged by her. The application for
discharge was, however, dismissed by the Court by order
dated 9th March, 2010 holding that the grounds urged for
discharge could be considered only after evidence was
adduced in the case and that appellant No.2 could not be
discharged on the basis of minor contradictions in the
depositions recorded in the course of the investigation.
7. Aggrieved by the order passed by the Trial Court the
appellants preferred Criminal Revision No.1241 of 2010
which was dismissed by the High Court on the ground that
the same did not make out a case for quashing of the
proceedings against the appellants. The present appeal
assails the correctness of the said order of dismissal.
5
Page 6
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 Bureau of
Investigation (2010) 9 SCC 368, State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath
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
6
Page 7
presented 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 protect
the appellants against harassment and the ignominy of a
criminal trial.
7
Page 8
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
8
Page 9
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.
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.”
9
Page 10
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 parentsin-
law of the complainant-wife. The Magistrate had in that
case discharged the accused under Section 239 of the
10
Page 11
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 materia l
which leads the court to form a presumptive opinion as
to the existence o f the factua l ingredients constituting
the offence alleged would justify the framing o f charge
against the accused in respect o f the commission o f
that offence .”
(emphasis supplied)
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Page 12
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 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
o f framing o f a charge, probative value o f 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
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Page 13
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 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 o f framing o f charge the defence o f the
accused cannot be put forth. The acceptance o f the
contention o f the learned counse l for the accused would
mean permitting the accused to adduce his defence at
the stage o f framing o f charge and for examination
thereo f at that stage which is against the crimina l
jurisprudence. By way o f illustration, it may be noted
that the plea o f alib i taken by the accused may have to
be examined at the stage o f framing o f charge i f the
contention o f the accused is accepted despite the wel l
settled proposition that it is for the accused to lead
evidence at the tria l to sustain such a plea. The
accused would be entitled to produce materials and
documents in proo f o f such a plea at the stage o f
framing o f the charge, in case we accept the contention
put forth on behal f o f the accused. That has never been
the intention o f the law wel l 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 changing the settled law. At
the state o f framing o f charge hearing the submissions
o f the accused has to be confined to the materia l
produced by the police ...
23. As a result o f aforesaid discussion, in our view,
clearly the law is that at the time o f framing charge or
taking cognizance the accused has no right to produce
any materia l...”
(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 :
(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.”
17. Coming then to the case at hand, the allegations made
against the appellants are specific not only against the
husband but also against the parents-in-law of the
complainant-wife. Whether or not those allegations are true
is a matter which cannot be determined at the stage of
framing of charges. Any such determination can take place
only at the conclusion of the trial. This may at times put an
innocent party, falsely accused of commission of an offence
to avoidable harassment but so long as the legal
requirement and the settled principles do not permit a
discharge the Court would find it difficult to do much,
conceding that legal process at times is abused by
unscrupulous litigants especially in matrimonial cases
where the tendency has been to involve as many members
of the family of the opposite party as possible. While such
tendency needs to be curbed, the Court will not be able to
speculate whether the allegations made against the
accused are true or false at the preliminary stage to be able
to direct a discharge. Two of the appellants in this case
happen to be parents-in-law of the complainant who are
senior citizens. Appellant No.1 who happens to be the
father-in-law of the complainant-wife has been a Major
General, by all means, a respectable position in the Army.
But the nature of the allegations made against the couple
and those against the husband, appear to be much too
specific to be ignored at least at the stage of framing of
charges. The Courts below, therefore, did not commit any
mistake in refusing a discharge.
18. In the result, this appeal fails and is hereby dismissed.
Keeping, however, in view the facts and circumstances of
the case, we direct that appellant Nos. 1 and 2 shall stand
exempted from personal appearance before the trial Court
except when the trial Court considers it necessary to direct
their presence. The said appellants shall, however, make
sure that they are duly represented by a counsel on all
dates of hearing and that they cooperate with the progress
of the case failing which the trial Court shall be free to
direct their personal appearance. No costs.
……………………….……………………..…….…J.
(T.S. THAKUR)
……………………….………………….…..……….J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
November 9, 2012
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