Criminal Appeal Nos 486 to 489 of 1984
From the Judgment and Order dated 541984 of the Bombay High Court in Criminal Revision Application No 16683 and Criminal Revision No 234 of 1983 respectively
MC Bhandare AM Khanwilkar and Mrs H Wahi for the Appellants
SB Bhasme and RA Gupta for the Respondents
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 230 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 900 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 sec34 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 vs Ramesh Singh   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 vs Prafulla Kumar Samal  Anr  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 PSS Appeals allowed partly


Summary:
Under articles 4 81 and 82 of the Articles of Associa tion of the respondent assessee company there was restric tion on the transfer of the shares of the company by the shareholders to the other members of the public
These articles were deleted at an extraordinary general meeting of the Company held on 26th March 1951 and consequently the shares of the Company acquired free transferability
For the accounting year ending 31st March 1951 the assessee company claimed tax benefit us 23A1 on the ground that by reason of the fact that its shares had acquired free transferabili ty in the course of the previous year  the company had become a company in which public are substantially inter ested 
The Income Tax Officer rejected the claim of the asses see company by holding that while Explanation to Section 23A1 requires that the shares should have been freely transferable by the shareholders to the other members of the public at every point of time during the previous year and transferability should be established by actual transfer the Company satisfied the requirement only for four or five days of the previous year
571 On appeal the Appellate Assistant Commissioner affirmed the view taken by the Income Tax Officer
The assessee company appealed to the Tribunal against the decision of the Appellate Assistant Commissioner
The Tribunal accepted the contention of the assessee and allowed the appeal
A reference under Section 661 of the Income Tax Act 1922 was made to the High Court at the instance of the Revenue which approved the view taken by the Appellate Tribunal and held that the conditions required by the Explanation to Section 23A1 were satisfied and the benefit thereunder was available to the assessee company
In the appeal by Special leave by the Revenue to this Court on the question whether the assessee had satisfied the requirements of the Explanation to Section 23A1 of the Act and was entitled to the tax benefit claimed
Allowing the appeal and setting aside the order of the High Court HELD 1
The Tribunal and the High Court went wrong in holding that the conditions required by the Explanation to Section 23A1 were satisfied and the benefit under the said section was available to the assessee
575F 2
The assessee company could not be held to be a compa ny in which the public were substantially interested within the meaning of the Explanation to Section 23A1 by reason of the fact that for a large part of the previous year the shares were not freely transferable though they were so transferable at the end of the previous year
574G1 3
The word Course  ordinarily conveys the meaning of a continuous progress from one point to the next in time or space and conveys the idea of a period of time duration and not a fixed point of time
The expression in the course of such previous year  would refer to the period commencing with the beginning of the previous year and terminating with the end of the previous year
Therefore it would necessarily mean that free transferability of the shares by the holders to other members of the public should be present throughout the previous year
This was not the position in the instant case as the transferability was acquired only on the 26th of March 1951
575D F 4
The Explanation to Section 23A1 has reference to the point of time at two places the first one has been stated as at the end of the 572 previous year  and the second is in the course of such previous year 
When the situation has been differently expressed the legislature must be taken to have intended to express a different intention
575B D CITv
Arco P Ltd  referred to