SC – Citation for Discharge U/s 239 CrPC Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

SC – Citation for Discharge U/s 239 CrPC  Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

CITATION - , 1989( 1  )SCR 560, 1989( 1  )SCC 715, 1989( 1  )SCALE330 , 1989( 1  )JT 247

 

PETITIONER:
STREE ATYACHAR VIRODHI PARISHAD ETC. ETC.

    Vs.

RESPONDENT:
DILIP NATHUMAL CHORDIA & ANR.

DATE OF JUDGMENT08/02/1989

BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)

CITATION:
1989 SCR  (1) 560      1989 SCC  (1) 715
JT 1989 (1)   247      1989 SCALE  (1)330

ACT:
    Criminal Procedure Code, 1973: ss. 227 & 22.8:  Sessions
Judge    framing      charge  and  making    order    in   support
thereof--High     Court     whether   has      jurisdiction      to
interfere--Law must be allowed to take its own course unless
glaring injustice found.
    Indian   Penal  Code,  1860:  ss.  304B  &     498A--Dowry
offence-All round attempt to cover up by family members than
to  expose it-Necessity .for investigating agency  to  pene-
trate every dark corner and collect all evidence--Courts  to
display     greater sensibility to criminality and     avoid    soft
justice.

HEADNOTE:
    The     deceased was seen in flames on the first  floor  of
her  in-laws house crying for help within five days  of     her
marriage  with the younger brother of the respondent.  While
neighbours rushed to her rescue and extinguished the flames,
the  inmates of the house did not render any such help.     The
respondent  who was on the first floor was seen coming    down
the  stairs. The deceased succumbed to the burn injuries  in
the  hospital  on  the same day. In  her  dying     declaration
recorded  by the Executive Magistrate, she stated that    when
she  was preparing tea in the kitchen her saree caught    fire
accidently.
    The     parents of the deceased suspected foul play by     her
in-laws     and lodged a report with the police. An  investiga-
tion.of the case revealed that the deceased had met  hostile
atmosphere soon after her marriage. The parents gave  state-
ments  that  the in-laws demanded unreasonable    dowry  which
could not be complied with and that at the wedding  ceremony
they had behaved badly on the payment of insufficient dowry.
Her  brother  who had gone to bring her back  home  was     not
permitted to meet her. The maid servant sent along with     her
was also sent back.
     The respondent and his father were charge sheeted under
s.  306     read with s. 34 I.P.C. The trial court     came  to  a
prima facie conclusion that it was not a suicide but homici-
dal  death.  Accordingly, a charge under s. 302     I.P.C.     was
framed against the respondent. The respondent's father    was,
however, discharged.
561
    The     High Court dismissed the revision petition  of     the
State  against the respondent's father. Wile  accepting     the
respondent's  revision it took the view that the  fact    that
the  accused was passive was of no consequence that  it     all
depends upon the mental response and reaction of an individ-
ual whether he faces the risk and attempts to extinguish the
flames    or  quietly watches the incident, that it  does     not
show that the accused actively committed the act of  burning
or  actively added the commission of suicide, and held    that
the  charge under s. 302 against him was not made  out,     and
there was not even a case against him to frame charge  under
s. 306 I.P.C.
    The     appellant,  a social welfare organisation  and     the
State preferred appeals to the Supreme Court.
    On the question: Whether the High Court was justified in
interfering  with  the    charge framed  by  the    trial  court
against the respondent, and whether it was necessary to     put
his father also on trial with
the material on record.
Partly allowing the criminal appeals,
    HELD: 1. The High Court was not justified in interfering
with  the charge framed by the trial court against  the     re-
spondent accused.
    2.    The  trial court had considered     every    material  on
record    in support of the charge framed. It had     also  given
reasons     why  a     charge under s. 302  I.P.C.  was  warranted
against     the respondent even though the police    had  charge-
sheeted     him under s. 306 I.P.C. Section 227  Cr.P.C.  which
confers     power to discharge an accused was designed to    pre-
vent  harassment to an innocent person by the arduous  trial
or  the ordeal of prosecution. The power has been  entrusted
to  the Sessions Judge who brings to hear his knowledge     and
experience  in    criminal  trials. If he     after    hearing     the
parties     frames a charge and also makes an order in  support
thereof, the law must be allowed to take its own
course.
    State  of  Bihar v. Ramesh Singh, [1978] 1 SCR  257     and
Union of India v. Prafulla Kumar Samal & Anr., [1979] 2     SCR
229 at 234-35, referred to.
    3.    Self restraint on the part of the High Court  should
he  the rule unless there is glaring injustice    staring     the
Court in the face. In the
562
instant case, it had discharged the respondent mainly  rely-
ing on the dying declaration as if it has been    conclusively
proved to be the true and faithful version of the  deceased.
It did not advert to the report of the Chemical Analyser  in
which he found kerosene residue on each and every garment of
the  deceased,    and the post-mortem report  which  indicated
that besides burn injuries the deceased had sustained contu-
sions  on  the back shoulders which might have    been  caused
with  a     blunt round object. The events     that  preceded     the
death  of the deceased also did not receive  any  considera-
tion. The statements of brother, father and the maid servant
of  the deceased have been ignored. The respondent was    seen
coming down from the staircase when the deceased was  crying
for  help. The manner in which he went on at that  time,  if
true,  did  not bring him credit. The approach made  by     the
High  Court,  therefore, cannot be  accepted.  [569C;  566H;
567A-C]
    4. Although it was the moral obligation of    respondent's
father as manager of the family to protect the deceased     and
safeguard her life and he had failed to perform that obliga-
tion, that by itself without anything more is not sufficient
to  frame a charge against him. The discretion exercised  by
the trial court in discharging him was, therefore,  correct.
[569E]

JUDGMENT:
    CRIMINAL  APPELLATE JURISDICTION: Criminal    Appeal    Nos.
486 to 489 of 1984.
    From the Judgment and Order dated 5.4.1984 of the Bombay
High  Court in Criminal Revision Application No. 166/83     and
Criminal Revision No. 234 of 1983 respectively.
    M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for     the
Appellants.
S.B. Bhasme and R.A. Gupta for the Respondents.
The Judgment of the Court was delivered by        .
    K.    JAGANNATHA SHETTY, J. These four appeals, by  leave,
arise out of the common judgment of Bombay High Court  dated
April 5, 1984 in Criminal Revision Applications 166 and     234
of 1983. Criminal Appeal Nos. 486 and 487 of 1984 have    been
preferred by an Organisation called "Stree Atyachaar Virodhi
Parishad". It is an association committed to prevent atroci-
ties on women. Criminal Appeal Nos. 488 and 489 of 1984     are
by the State of Maharashtra.
563
    The     case relates to the death of a newly  married    girl
called    Chanda.     On  June 15, 1981, Chanda  was     married  to
Ramesh.     The  eider brother of Ramesh is  called  Dilip     and
Nathumal is their father. The marriage of Ramesh and  Chanda
took place at Nerparsopant, District Yavatmal.
    On    the  next day of the marriage, the bride  and  groom
returned  to  the house of the latter at Arvi. On  June     19,
1981, they had gone to Amravati to have prayers in the    Devi
Tampie. They came back in the same evening. The day  follow-
ing  was a fateful day. At about 2.30 PM on June  20,  1981,
Chanda was seen with flames on the first floor of the  resi-
dential     building,  with frantically crying for     help.    That
attracted some of the neighbours from the ground floor. They
rushed    to rescue Chanda. Three of them are: Bhanrao,  Ballu
alias  Nandu and Ramdas. They extinguished the    flame  which
was practically engulfing Chanda. The inmates in the  house,
however, did not render any such help. Dilip who was on     the
first  floor  was  seen coming down  the  stairs..  Shortly,
thereafter  two     doctors came and the police  also  arrived.
Chanda was taken to Ervin Hospital at Amravati in an  uncon-
scious condition. She died in the hospital at about 9.00  pm
on the same day. Before the death, her dying declaration was
said  to have been recorded by the Executive Magistrate.  It
was  stated therein that when she was preparing tea  in     the
kitchen, her saree caught fire accidentally and consequently
she received the burn injuries.
    The     parents of Chanda were informed of the death.    They
suspected foul play by the in-laws of Chanda. They lodged  a
report at Amravati Police Station complaining that  Chanda's
death  might have been the outcome of tension due to  demand
of dowry. The Crime Branch of the CID investigated the    case
and  charge-sheeted Dilip and Nathumal under sec.  306    read
with sec.34 IPC. It was alleged that the Chanda has  commit-
ted suicide by burning herself and Dilip and Nathumal  abet-
ted her.
    An    investigation of the case revealed that     Chanda     had
hostile     atmosphere  soon after her marriage.  She  was     not
treated well in her husband's house. Vijay, her brother     and
Mani  Chand, father have given statements that    the  in-laws
demanded  unreasonable    dowry which could  not    be  complied
with.  Even  at the wedding ceremony, it  seems,  that    they
behaved     badly on the payment of insufficient  dowry.  After
the  marriage, when Vijay came to take his sister back    home
as per custom, he was not even permitted to meet her. Kamala
Bai,  the  maid servant accompanying Chanda  was  also    sent
back. She has also
564
given  detailed     version about the  unfavourable  atmosphere
around Chanda.
    In    addition to the statements of witnesses, there is  a
report    of  the Chemical Analyser  and    post-mortem  report.
These  indicate     that the death of Chanda could     not  be  by
accidental fire.
    The     trial    court after considering all  the  facts     and
circumstances  appearing  on record and     after    heating     the
counsel     for  accused and Public Prosecutor  was  of  priraa
facie opinion that it was not a suicide but homicidal death.
Accordingly,  the  charge  under sec.  302  IPC     was  framed
against     Dilip.     Nathumal, however, was     discharged  holding
that the allegations against him do not justify the  framing
of any charge.
    There  were     two revision applications before  the    High
Court of Bombay. The State filed a revision challenging     the
validity  of discharge of Nathumal. Dilip on his part  ques-
tioned the correctness of the charge framed against him     and
demanded  his discharge also. The High Court  dismissed     the
revision preferred by the State while accepting the revision
of  Dilip.  The High Court was of opinion  that     the  charge
under  sec. 302 against Dilip was misconceived and there  is
not  even a case against him to frame charge under sec.     306
IPC. He was accordingly discharged.
    The     primary  question for consideration before  us,  is
whether the High Court was justified in interfering with the
charge    framed    by the trial court against Dilip?  The    next
question to be considered is whether it is necessary to     put
Nathumal also on trial with the material on record.
    We    have perused the judgments of the courts  below     and
heard counsel on both sides. We gave our anxious  considera-
tion to the material on record.
    Section  227  of the Code of Criminal  Procedure  having
beating on the contentions urged for the parties, provides:
            "227. Discharge--If, upon considera-
          tion  of the record of the case and the  docu-
          ments  submitted therewith, and after  hearing
          the submissions of the accused and the  prose-
          cution  in  this behalf, the  judge  considers
          that  there is no sufficient ground  for    pro-
          ceeding  against    the accused, he     shall    dis-
          charge the accused and record his reasons     for
          so doing."
565
    Section  228  requires the judge to frame charge  if  he
consider that there is ground for presuming that the accused
has  committed    the offence. The interaction  of  these     two
sections  has already been the subject matter of  considera-
tion  by  this    Court. In State of Bihar  v.  Ramesh  Singh,
[1978]    1 SCR 257, Untwalia, J., while explaining the  scope
of the said sections observed (at 259):
               "Reading the two provisions  together
          in juxta pesition, as they have got to be,  it
          would  be clear that at the beginning and     the
          initial stage of the trial the truth, veracity
          and effect of the evidence which the  Prosecu-
          tor  proposes to adduce are not to be  meticu-
          lously  judged.  Nor is any weight to  be     at-
          tached to the probable defence of the accused.
          It  is  not obligatory for the judge  at    that
          stage  of the trial to consider in any  detail
          and  weigh in a sensitive balance whether     the
          facts,  if proved, would be incompatible    with
          the  innocence  of  the accused  or  not.     The
          standard finding regarding the guilt or other-
          wise  of    the  accused is not  exactly  to  be
          applied  at the stage of deciding     the  matter
          under  sec.  227 or sec. 228 of the  Code.  At
          that  stage  the court is not to    see  whether
          there  is sufficient ground for conviction  of
          the  accused or whether the trial is  sure  to
          end   in    his  conviction.  Strong   suspicion
          against the accused, if the matter remains  in
          the region of suspicion, cannot take the place
          of proof of his guilt at the conclusion of the
          trial. But at the initial stage if there is  a
          strong  suspicion     which leads  the  court  to
          think that there is ground for presuming    that
          the  accused has committed an offence then  it
          is not open to the court to say that there  is
          no  sufficient ground for     proceeding  against
          the accused."
    In Union of India v. Prafulla Kumar Samal & Anr., [1979]
2  SCR 229 at 234-35, Fazal Ali, J., summarised some of     the
principles:
            "(1) That the Judge while  consider-
          ing the question of flaming the charges  under
          sec.  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 had been    made
          out.
            (2) Where the material placed before
          the Court disclose grave suspicion against the
          accused which has not been properly explained,
          the Court will be fully justified in
          566
          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 jurisdic-
          tion  under the present Code is a     senior     and
          experienced Judge cannot act merely as a    Post
          Officer  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."
    These  two decisions do not lay down  different  princi-
ples. Prafulla Kumar case has only reiterated what has    been
stated    in Ramesh Singh case. In fact, sec. 227 itself    con-
tains  enough guidelines as to the scope of enquiry for     the
purpose     of  discharging an accused. It provides  that    "the
Judge  shall  discharge when he considers that there  is  no
sufficient  ground for proceeding against the accused".     The
'ground' in the context is not a ground for conviction,     but
a  ground  for putting the accused on trial. It     is  in     the
trial,    the  guilt or the innocence of the accused  will  be
determined  and     not at the time of framing of    charge.     The
Court, therefore, need not undertake an elaborate enquiry in
sifting     and weighing the material. Nor it is  necessary  to
delve  deep into various aspects. All that the Court has  to
consider  is whether the evidenciary material on  record  if
generally  accepted,  would reasonably connect    the  accused
with the crime. No more need be enquired into.
    So much is, we think, established law. To be fair to the
accused,  we have examined the material on record  and    also
perused     the statements of some of the witnesses.  From     the
report of the Chemical Analyser, it will be seen that  kero-
sene  residue  was found on each and every  garment  of     the
deceased. The post-mortem report also indicates,
567
besides burn injuries, that Chanda had sustained  contusions
on the back shoulders. According to the doctor who conducted
the postmortem, those contusions might have been caused with
the  blunt  rounded object. The learned Judge  of  the    High
Court  has not adverted to these facts although the  conten-
tion  of the Public Prosecutor in this regard has  been     no-
ticed. Not merely that, the events that proceeded the  death
of Chanda did not receive any consideration. The  statements
of  brother  and father of Chanda and also  that  of  Kamala
Bai--the  maid    servant     of Chanda have     been  ignored.     The
conduct     of Dilip which was highlighted in the    context     and
circumstances,    was brushed aside with little  significance.
It  is    said that Dilip was coming down from  the  staircase
when Chanda was crying for help. The manner in which he went
on at that time, if true, did not bring him credit. The High
Court, however, said:
            "That  the  accused was     passive  is
          neither  here nor there. It all  depends    upon
          the  mental response and reaction of an  indi-
          vidual  whether he faces the risk and  attempt
          to  extinguish the flames or  quietly  watches
          the incident. By no interpretation could it be
          stretched     to  show that    the  accused  either
          actively    committed the act of burning or     ac-
          tively aided the commission of suicide."
    Counsel for the State was very critical of the  attitude
adopted     by  the High Court in dealing with  the  case.     His
criticism to some extent is not unjustified.
    It may not be out of place to mention that "dowry" which
is a deep rooted social evil appears to be the cause of ever
so many unfortunate death of young ladies. It is an  offence
brutal    and barbaric. It is generally committed     inside     the
house and more often with a circumstance to give an  impres-
sion  that it was a suicidal death. There will be all  round
attempt     to  cover  up such offence by    the  family  members
rather    than to expose it. The Government has  come  forward
with legislations from time to time to protect women and  to
punish    those  who commit attrocities on them. In  1961     the
Dowry Prohibition Act (Act 28 of 196 1) was passed prohibit-
ing the taking or giving dowry. By the Criminal Law  (Second
Amendment)  Act,  1983    (Act 46 of 1983)  Chapter  XX-A     was
introduced in the Penal Code with sec. 498-A creating a     new
offence of cruelty. It provides for punishment to husband or
his  relatives if they harass a woman with a view to  coerce
her to meet any unlawful demand for property. Section 174 of
the  Criminal  Procedure  Code was also     amended  to  secure
post-mortem in
568
case  of suicide or death of a woman within seven  years  of
her  marriage.    Section     113-A has been     introduced  in     the
Evidence Act, 1872 raising presumption of cruelty as defined
under sec. 498-A IPC against the husband or his relatives if
the wife commits suicide within a period of seven years from
the  date  of  her marriage. These  provisions    reflect     the
anxiety of the representatives of our people to deal  firmly
the  menace  of     dowry deaths.    Again,    there  are  sweeping
changes made in the Dowry Prohibition (Amendment) Act, 1984.
A  new    offence     called 'Dowry death' has  been     created  by
introducing sec. 304-B in the Penal Code. It raised presump-
tion of culpability against the husband or relative hitherto
unknown     to  our jurisprudence. It provides that  where     the
death  of a woman is caused by any bums or bodily injury  or
otherwise than under normal circumstances within seven years
of  her marriage and it is shown that soon before her  death
she was subjected to cruelty or harassment by her husband or
any  relative of her husband for or in connection  with     any
demand for dowry, such death shall be called 'dowry  death'.
The  section  also provides  hat such  husband    or  relative
shall  be deemed to have caused her death and shall be    pun-
ished  with  imprisonment for a minimum of seven  years     but
which may extend to life imprisonment.
    We    are referring to these provisions not that they     are
attracted to the present case. It is only to emphasize    that
it  is    not enough if the legal order  with  sanction  alone
moves  forward for protection of women and  preservation  of
societal  values. The criminal justice system  must  equally
respond to the needs and notions of the society. The  inves-
tigating  agency  must display a live  concern    and  sharpen
their  wits. They must penetrate into every dark corner     and
collect all the evidence. The Court must also display great-
er sensitivity to criminality and avoid on all counts  "soft
justice".
    In the instant case the trial court has considered every
material  on  record in support of the    charge    framed.     The
trial  court has also given reasons why a charge under    sec.
302  IPC is warranted against Dilip even though     the  police
charge    sheeted him under sec. 306 IPC. The High  Court     has
gone on a tangent mainly relying on the dying declaration as
if it has been conclusively proved to be the true and faith-
ful version of the deceased. Apart from that, we are  unable
to  compromise    ourselves  with the approach  made  and     the
opinion     expressed by the High Court in respect of  many  of
the matters.
    We wish to add a word regarding interference by the High
court against a charge framed by the Sessions Court. Section
227 which
569
confers     power to discharge an accused was designed to    pre-
vent  harassment to an innocent person by the arduous  trial
or  the ordeal of prosecution. How that intention is  to  be
achieved  is  reasonably clear in the  section    itself.     The
power has been entrusted to the Sessions Judge who brings to
bear  his knowledge and experience in criminal    trials.     Be-
sides, he has the assistance of counsel for the accused     and
Public Prosecutor. He is required to hear both sides  before
framing     any charge against the accused or  for     discharging
him. If the Sessions Judge after hearing the parties  frames
a charge and also makes an order in support thereof, the law
must  be allowed to take its own course. Self  restraint  on
the  part of the High Court should be the rule unless  there
is  a  glaring injustice stares the Court in the  face.     The
opinion     on any matter may differ depending upon the  person
who views it. There may be as many opinions on a  particular
matter as there are courts but it is no ground for the    High
Court  to  interdict the trial. It would be better  for     the
High Court to allow the trial to proceed.
    The counsel for the State was equally critical upon     the
discharge of Nathumal. It was argued that Nathumal being the
manager of the family ought to have taken care of Chanda and
without     his connivance, none would have demanded dowry     and
put Chanda on fire. It is true that it is his obligation  as
manager     of the family to protect Chanda and  safeguard     her
rights.     We have no doubt that he has failed to perform     his
moral  obligation. But that by itself without anything    more
is not sufficient to frame a charge against him. We,  there-
fore, agree with the discretion exercised by the trial court
and leave it at that.
    In    the result and for the reasons stated, we allow     the
criminal  appeals  to the extent indicated only     as  against
Dilip. We set aside the order of the High Court and  restore
that  of the trial court. The appeals against  Nathumal     are
dismissed.  His discharge is confirmed. We direct the  court
to proceed with the trial expeditiously.
    Before  parting with the case, we must place  on  record
the useful service rendered by 'Stri Atyachar Virodhi  Pari-
shad' in this case. It is a social welfare organisation.  It
has come up to this Court spending its own money by  prefer-
ring the appeals. We very much appreciate the object of     the
organisation and the assistance rendered-
P.S.S.                      Appeals    allowed
partly.
570