STREE ATYACHAR VIRODHI PARISHAD ETC. ETC. v.

DILIP NATHUMAL CHORDIA & ANR.

FEBRUARY 8, 1989

IB.C. RAY AND K. JAGANNATHA SHETTY, JJ.]

Criminal Procedure Code, 1973: ss. 227 & 228: 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 penetrate every dark corner and collect all evidence-Courts to display greater sensibility to criminality • and avoid soft justice. o

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 flrst floor was seen coming E down the stairs. The deceased succumbed to the buru 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 investigation.of the case revealed that the deceased had met hostile atmosphere soon after her marriage.

The parents gave statements 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 withs. 34 I.P.C. The trial court came to a prima fade conclusion that it was not a suicide but homicidal death. Accordingly, a charge under s. 302 I.P .C. was framed against the respondent. The respon- H dent's father was, however, discharged.

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STREE ATYACHAR v. D.N. CHORDIA 561

The High Court dismissed the revision petition of the State against the respondent's father. While 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 individual 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: l. The High Court was not justified in interfering with the charge framed by the trial court against . the respondent accused.

2. The trial court had considered every material on recqrd 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 prevent harassment to an innocent person by the arduous trial or the F ordeal of prosecution. The power has been entrusted to the Sessions Judge who brings to bear 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] l SCR 257 and union of India v. Prafulla Kumar Sama/ & Anr., [1979] 2 SCR .229 at 234-35, referred to.

3. Self restraint on the part of the High Court should be the rule unless there is glaring injustice staring the Court in the face. In the H

A instant case, it had discharged the respondent mainly relying 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 contusions B 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 consideration. 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 C bring him credit. The approach made by the High Court, therefore, cannot be accepted. [569C; 5668; 567 A-Cl

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 obligation, that by itself without D 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]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 486 to 489of1984.

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. 234of1983 respectively.

M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for the

J~,·,.,.

F Appellants. 1...,.

S.B. Bhasme and R.A. Gupta for the Respondents.

The Judgment of the Court was delivered by

G 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 atrocities on women. Criminal H Appeal Nos. 488 and 489 of 1984 are by the State of Maharashtra.

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STREE ATYACHAR v. D.N. CHORDIA.ISHETTY, J.] 563

The case relates to the death of a newly married girl called Chanda. On Jue 15, 1981, Chanda was married to Ramesh. The elder brother of Ramesh is called Dilip and Nathumal is their father. The marriage of Ramesh and Chanda took place at N.erparsopant, 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 Tample. They came back in the same evening. The day following w.s a fateful day. At about 2.30 PM on June 20, 1981, Chanda was seen with flames on the first floor of the residential 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 t.he 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 unconscious 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. re~ corded 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 bum 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 outc-0me 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 committed suicide by burning herself and Dilip and Nathumal abetted 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

A 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 -Oeath of Chanda could not be by accidental fire.

The trial court afte; considering all the facts and circumstances appearing on record and after hearing the counsel for accused and Public Prosecutor was of prima 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 C 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 questioned the correctness of the charge framed against him and demanded his discharge also. The D 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.

E 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. 1

_; t . .41 We have perused the judgments of the courts below and heard l' counsel on both sides. We gave our anxious consideration.to the material on record.

Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:

"227. Discharge-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

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STREE ATYACHAR v: D.N. CHORDIA (SHETfY, J.] 565 +

Section 228 requires the judge to frame charge if he consider that A there is ground for presuming that the accused has committed the offence. The interaction of these !Wo sections has alfeady been the subject matter of consideration 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):

J..

B "Reading the two .provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity ·--r

and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the judge at that stage of c

the trial to consider in any detail and weigh in. a sensitive balance whether the facts, if provec(, would be incompatible with the innocence of the accused or not. The standard finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter D 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.

E 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." .

I'.

In Union of India v. Prafulla Kumar Sama/ & Anr., [ 1979) 2 SCR 229 at234-35, Fazal Ali, J., summarised some of the principles:

"(1) That the Judge while considering the question of framing the charges under sec. 227 of the Code has the undoubted power to sift and weigh the evidence for the G h.

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 H

A framing a charge and proceeding with the trial. cf

(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 'qually possible and the B 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 the prei-' c sent 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, 1' 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 D 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 principles. 4 Prafulla Kumar case has only reiterated what has been stated in E Ramesh Singh case. In fact, sec. 227 itself contains 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

-,,.·~ F 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 G enquired into.

So much is, we think, established law. To be fair to the accused,

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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 kerosene residue was found on each and H every garment of the deceased. The post-mortem report also indicates,

::<:

• STREE ATYACHAR v. D.N. CHORDIA [SHETTY, J.J 567 t besides bum injuries, that Chanda had sustained contusions on the A 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 t.o these facts although the contention of the Public Prosecutor in this regard has been noticed. Not merely that, the events that preceeded

.~ the death of Chanda did not receive any consideration. The statements B of brother and father of Chanda and also that of Kamala Bai-the maid se_rvant of Chanda have been ignored. The conduct of Dilip which was highlighted in the context and circumstances, was brushed

i 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: c

~ "That the accu.sed was passive is neither here nor there. It all depends upon the mental response and reaction of an individual whether he faces the risk and attempt to extinguish the flames or quietly watches the incident. By no D interpretation could it be stretched to show that the accused either actively committed the act of burning or actively 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 E 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 . '--t"'- It is generally committed inside the house and more often with a F circumstance to give an impression 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 1961) was passed prohibiting the taking or giving dowry. By G

,.\-<. 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 H

. A

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 !PC 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 presumption 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 burns 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 that such husband or relative shall be deemed to have caused her death and shall be punished with D 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 'orward for protection of E women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The investigating 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 greater sensitivity to criminality and avoid on all counts "soft justice".

F 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 !PC is warranted against Dilip even though the police charge sheeted him under sec. 306 lPC.

The High Court has gone on a tangent mainly relying on the dying G declaration as if it has been conclusively proved to be the true and faithful 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 H against a charge framed by the Sessions Court. Section 227 which

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STREE ATYACHAR v. D.k CHORDIA [SHETTY, J.[ 569

confers power to discharge an accused was designed to prevent harass- A ment 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 i,, df. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials.

Sesides, he has the assistance of counsel for the accused and Public B 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 in justice stares the Court in the face. The opinion on any matter may differ depending upon the person who C 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 C:are 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, therefore, 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 , rappeals to the extent indicated only as against Dilip: We set aside the F ) order of the High Court and restore that of the trial cotirt. 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 Parishad' in this.case. It is a social welfare organisation; It has come up to this Court spending its own money by preferring the appeals. We very much appreciate the· object of the organisation and the assistance rendered ..

P.S.S.

Appeals allowed partly.