IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1617 of 2007 Date of Decision : February 15, 2010 Sunil Mehta ....Petitioner Versus State of Punjab and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Akshay Bhan, Advocate for the petitioner. Mr. P.S. Grewal, Assistant Advocate General, Punjab for respondent No.1. Mr. G.S. Sandhawalia, Advocate for respondent No.2. T.P.S. MANN, J. (Oral) The petitioner was initially charged by the trial Court for an offence under Section 306 IPC. The order passed in that regard by the trial Court was challenged by complainant/respondent No.2 by filing Criminal Revision No.2527 of 2006, whereby he prayed that the petitioner be charged for an offence under Section 304-B IPC. During its pendency, an application was filed by the complainant for staying further proceedings before the trial Court. The said application came up for hearing before this Court on May 07, 2007, when notice of the same was issued for the date already fixed, i.e. August 02, 2007. In the meanwhile, the complainant was given liberty to move an application under Section 216 Cr.P.C. before the trial Court. It was ordered that in case such an application was filed, it be considered by the trial Court in the light of the evidence (emphasis supplied) produced before it. Criminal Revision No.1617 of 2007 -2- Consequent to the passing of the order dated 7.5.2007, the complainant filed an application before the trial Court on 23.7.2007. The said application was accepted by the trial Court vide impugned order dated 23.7.2007 directing the framing of charge against the petitioner under Section 304-B IPC. Learned counsel for the petitioner states that while passing the order dated 7.5.2007, this Court had granted liberty to the complainant to move an application under Section 216 Cr.P.C. before the trial Court and in case any such application was to be filed, it was to be considered in light of the evidence before the trial Court. However, instead of taking into consideration the evidence produced by the prosecution, the trial Court referred to the documents sent alongwith the police report and relied upon by the prosecution so as to conclude that there were sufficient grounds for presuming that the petitioner had committed the offence under Section 304-B IPC. In this regard, he has drawn the attention of the Court to the following observations made by the trial Court :- “From the documents, sent alongwith the police report and relied on by the prosecution, there are sufficient grounds for presuming that the accused committed the offence under Section 304-B IPC, as it was categorically stated by the complainant in his statement on the basis of which FIR has been recorded, that the accused use to harass Renu deceased on the ground of demand of dowry and she was treated as such soon before her death.” Criminal Revision No.1617 of 2007 -3- Though this Court vide order dated 7.5.2007 had required the trial Court to consider the application under Section 216 Cr.P.C. in light of the evidence produced before it yet no such evidence was available before the trial Court or referred to by it while accepting the application filed by the complainant. Therefore, the impugned order is liable to be set aside. Learned counsel for complainant/respondent No.2 submits that on 23.7.2007, the case was fixed before the trial Court for recording of the prosecution evidence in respect of the charge under Section 306 IPC. The complainant was examined on that day by the prosecution as PW7. In his examination-in-chief, he specifically stated that the petitioner and his mother had been taunting his daughter for bringing insufficient dowry. His daughter had been telling him that the petitioner and his mother have been asking her to ask her parents to bring the car or money for purchasing the same. The aforementioned evidence was available before the trial Court on 23.7.2007 and, consequently, the application filed by the complainant under Section 216 Cr.P.C. had rightly been accepted by the trial Court by charging the petitioner for the offence under Section 304-B IPC. It is apparent from the order dated 7.5.2007 passed by this Court, as reproduced in para 6 of the grounds of revision, that the application to be so filed by the complainant before the trial Court under Section 216 Cr.P.C. was to be considered in light of the evidence produced before the said Court. Under these circumstances, the trial Criminal Revision No.1617 of 2007 -4- Court could not have, once again, referred to the documents sent alongwith the police report and relied upon by the prosecution so as to hold that there were sufficient grounds to presume that the accused had committed the offence under Section 304-B IPC. In the opening para of the impugned order, the trial Court did mention that statement of one prosecution witness stood recorded partly. Despite the same, the trial Court did not refer to the said statement of the prosecution witness, who was examined by the trial Court on 23.7.2007 or to any other evidence which was already on the file. Mere fact that, while filing application under Section 216 Cr.P.C. before the trial Court, the complainant had mentioned that it had come in his statement before the Court that the deceased before her death was harassed by the accused on account of dowry, is not sufficient to conclude that the said piece of evidence was ever considered by the trial Court while passing the impugned order. Resultantly, the revision is accepted, impugned order is set aside and the matter is remanded to the trial Court to consider and dispose of the application moved by the complainant under Section 216 Cr.P.C. in light of the evidence available on the record. Nothing observed above shall be construed as an expression on the merits of the case. (T.P.S.MANN) February 15, 2010 JUDGE satish