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