IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.103 of 2003. Date of decision: 24.02.2010. State of H.P. …Petitioner Versus Prem Singh & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Ms.Ruma Kaushik, Additional Advocate General. For Respondents No.1: Mr.Rajiv Jiwan, Advocate. 2, 3 and 7. For Respondents No.4: Mr.Ajay Dhiman, Advocate. and 8. For Respondent No.5: Mr.Jagdish Vats, Advocate. For Respondent No.6: Mr.D.K. Sharma, Advocate. For Respondent No.9: Ms.Archana Dutt, Advocate. Dev Darshan Sud,J. This Revision Petition has been instituted by the State against the judgment and order of the learned Sessions Judge, Bilaspur, discharging all the respondents herein who had been charged for offences under Sections 420, 498-A, 493, 465, 467, 383, 365, 406, 366, 464 and 120-B of the Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 The prosecution case in brief was that one Manju Devi who is the daughter of Ram Rakha, resident of village Tarer, Police Station Sadar, District Bilaspur, had filed a complaint that she was married to Prem Singh, respondent, for 10/12 years and they lived happily for 2/3 years after their marriage. She alleged that after sometime, her husband, Kalan Devi, (mother-in-law) and her “Jethani” (sister-in-law), Satya Devi, started maltreating and harassing her and she was thrown out of the matrimonial home but lateron she was brought back by her husband. After sometime she was again subjected to the same treatment. All of them even went to the extent of leveling false allegations of sexual infidelity against her accusing her that the child in her womb was that of somebody else and not of her husband. She then continues that to overcome this humiliation and insults, her maternal grandfather paid a sum of Rs.12,000/- to Kalan Devi in the presence of Sohan Singh, son of Kalu Ram and accused Sohan Singh, son of Shiv Ram (since dead). On 25.02.1995, the complainant was asked to come to Bilaspur on the pretext that her ailing daughter was required to be checked up and examined in the hospital by a doctor. Instead, she was brought to the District Court where Kalawati (sic Kalan Devi), Prem Singh and Munshi Ram (husband of the complainant) accompanied her. Sohan Singh and Sonu, accused, were also present in the Court premises. Respondent, K.K. 3 Kaushal, Advocate, had already got some documents prepared and instead of taking her back to her matrimonial home, she was sent by the respondents with one Kashmir Singh, son of Jai Singh (who is also an accused). She stated that her signatures were taken in a deceitful manner and by misrepresentation of facts. On a prima facie consideration of the material on record and after hearing the parties, the learned Court discharged all the accused holding that the case put up by the prosecution was improbable and inherently impossible. The Court concluded not on a meticulous examination of the evidence but on a prima facie scrutiny of the material on record. Learned Court holds that no case is made out against the respondents because the complainant accompanied Kashmir Singh and resided with him happily in Village Boharwin till 25.03.1995, i.e., for about a month. Learned Court holds that the story put up by the complainant that she was forcibly made to sign documents under coercion; threat etc. cannot be countenanced and is inherently improbable. She resided happily with Kashmir Singh as his wife. To reach at this conclusion, the learned Court considers the entire sequence of events from the time when the documents were purportedly signed, the complainant willingly accompanied Kashmir Singh in the bus and stayed in the house of one Joginder Singh for the 4 first two days and thereafter with Kashmir Singh. The learned Court further strengthens its conclusions by the statement of the complainant under Section 161 of the Code of Criminal Procedure (hereinafter referred to as the `Code’). The Court holds: “4. … … … … … … … Had Manju been compelled to sign the documents and to accompany the accused in the bus forcibly and against her will, there is no earthly reason why she should have stayed in the house of Joginder Singh for first two days and thereafter to reside in the house of accused Kashmir Singh as his wife for more than a month without any murmur. Curiously enough, what bils-down on record is that in her statement recorded under Section 161 Cr.P.C., on 25.3.1995, she says that she is very happy with accused Kashmir Singh in his house, when she will go to her parents house she will call Kashmir Singh accused and she signed the memos alongwith her father. Even in the recovery memo vide which she was recovered from the house of Kashmir Singh, there is recital to the effect that Manju wants to live with Kashmir Singh of her own. If this is so, then the question of her being compelled to sign affidavits divorcing her previous husband and marrying accused Kashmir Singh, or, the accused Prem Singh, his mother Kalan Devi and his brother’s wife Satya Devi maltreating and harassing her or compelling her to go 5 out of their house does not arise. Rather, a copy of the order dated 21.10.1992 rendered by learned Chief Judicial Magistrate, Bilaspur in a maintenance application, which was filed by Manju, shows that Manju’s plea that she was beaten or treated with cruelty by the accused-husband and the accused turned her out from the matrimonial house was found baseless and, therefore, her application for maintenance was also dismissed, against which she filed no appeal and remained complacent. Also, her statement recorded under Section 161 Cr.P.C. as well as her recovery memo whereby she shows her complete willingness to live with accused Kashmir Singh of her own once again belies such allegation of cruelty on the part of accused Prem Singh, his mother Kalan Devi and Jethani Satya Devi as also the allegation of all the accused getting the signatures of Manju Devi on the affidavits under mis-representation and then compelling her to marry Kashmir Singh against her will . For the same reason, accused K.K. Kaushal who has put his signatures on the affidavits as an identifier, accused Sita Ram who attested the documents as a Notary Public and accused Brij Mohan who only scribed the said documents, cannot, therefore, be said to have had any intention, much less mensrea, to commit the offences punishable under Sections 420, 465, 467 or 120-B I.P.C., 6 especially, when no grievance was ventilated against them in the original complaint filed by Ram Rakha.” The circumstances, namely, her statement and the fact that complainant wants to cohabit with Kashmir Singh of her own will has remained un-rebutted on record. The very foundation of the case filed by the prosecution is falsified by the statement made by the complainant herself. Learned Court also considered that in proceedings under Section 125 of the Code, the learned Chief Judicial Magistrate vide his order dated 01.10.1992 had dismissed the plea of the complainant that she was entitled to maintenance on the ground that she had been beaten up and turned out of the house by the accused. The leaned Court found that this plea was untrue. In the totality of the facts and circumstances of the case, the learned Court holds that there is no ground for proceeding against the accused. Learned Additional Advocate General, Ms.Ruma Kaushik, submits that the learned Court below has committed an error of jurisdiction while pronouncing on the innocence or guilt of the accused at the stage of framing of charge. She submits that it is not for the Court, at this stage, to consider the evidence in detail and to sift it with a fine tooth comb or to ascertain the veracity of the truth or otherwise of the material on record. There is no dispute to this 7 proposition. At the stage of framing of charge, the Court cannot undertake a meticulous examination of the evidence. But, at the same time, it is also the established law that the Court cannot be expected to act as a mouthpiece of the prosecution. The Court has all the power to prima facie scrutinize the evidence and material on the record to ascertain as to whether the offences alleged are prima facie established from the material on the record of the case. In Union of India vs. Prafulla Kumar Samal and another, AIR 1979 SC 366, on the question of framing of charge, the Supreme Court held: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the 8 Court will be fully justified in framing a charge and proceeding with the trial. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the 9 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 principles were lateron reaffirmed in Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijja and others, 1990 Crl.L.J. 1869, where the Supreme Court holds that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to ascertain if the facts disclosed and taken on the face value constitute the ingredients of the alleged offence. In State of Karnataka vs. L.Muniswamy and others, (1977 )2 SCC 699, the Supreme Court held: “10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning & Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial 10 mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons' liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. … … … …” This judgment was lateron reaffirmed in State of M.P. vs. S.B. Johari and Others, (2000)2 SCC 57, wherein the Court holds:- “4. … … … … … … … 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 11 committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya etc., reported in (1990) 4 SCC 76 : (AIR 1990 SC 1962 : 1990 Cri LJ 1869), after considering the provisions of Ss. 227 and 228, Cr. P.C. Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may persue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : (AIR 1977 SC 2018 : 1977 Cri LJ 1606), Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 : (AIR 1979 SC 366 : 1979 Cri LJ 154) and Supdt. of Remembencer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 : 12 (AIR 1980 SC 52 : 1979 Cri LJ 1390), and held thus :- "From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value 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 the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied) In Dilwar Balu Kurane vs. State of Maharashtra, (2002)2 SCC 135, the entire case law has been summed up by the Supreme Court. The Court reiterates the earlier proposition and holds:- “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Sec. 227 of the Code of Criminal Procedure, 13 the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Sec. 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See 14 Union of India vs. Prafulla Kumar Samal & Anr., (1979) 3 SCC 5)].” (Emphasis supplied) This is the important principle which is to be noted. The Court is not expected to act as the mouthpiece or the Post Office for the prosecution and to accept everything which the prosecution states as the gospel truth. From what has been considered by the Court below it is plain and evident that the learned Court has not exceeded its jurisdiction in considering the case for framing of charge, holding no case is made out and in discharging the accused. Applying this principle to the facts of the present case, I do not find that the Court below has exceeded its jurisdiction or has embarked upon a meticulous inquiry. This petition is, therefore, dismissed. There shall be no order as to costs. February 24, 2010 (Dev Darshan Sud) (aks) Judge.