Hemlata v. State & Others

240. Framing of charge (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9.[1] The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial as observed in V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The prosecution is required to establish a prima facie before a charge can be framed. The Supreme Court in Union of India V Prafulla Kumar Samal & another, (1979)3SCC[4] considered scope of inquiry at the stage of framing of charge as per section 227 of the Code in Sessions criminal trial and observed as under:- (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 Court will be, fully justified in 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 jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced 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, 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. 9.[2] The Supreme Court in Onkar Nath Mishra & others V State (NCT of Delhi) & another, Appeal (Crl.)1716 of 2007 decided on 14th December, 2007 regarding framing of charge observed as under:- It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 9.[3] The Supreme Court Dipakbhai Jagdishchndra Patel V State of Gujarat, (2019) 16 SCC 547 discussed law relating to the framing of charge and discharge and observed as under:-

15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows: 4…..Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity 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 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 of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial…. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a fullfledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. 9.[4] The Supreme Court in Asim Shariff V National Investigation Agency, (2019) 7 SCC 148 expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. The Supreme Court in State of Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. The Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool Magrey & others, Criminal Appeal No. 001041 of 2022 (Arising Out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July, 2022 observed as under:- Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

10. Let’s examine offences punishable under sections 498A/406 IPC which are subject matter of present FIR. Section 498A IPC deals with provision when husband or his relative subjected a woman to cruelty for dowry demands. The consequences of cruelty as per mandate of section 498A IPC are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand and are required to be established in order to bring home an offence under Section 498A IPC. Section 498A IPC reads as under:- 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 10.[1] Section 405 IPC defines criminal breach of trust and provides that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust. Section 406 IPC provides punishment for committing offence under section 405 IPC. Section 405 IPC creates an obligation in relation to the property over which dominion or control is acquired by the accused and thereafter misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.

11. In relation to offence punishable under section 498A, the Supreme Court in Sushil Kumar Sharma V Union of India and others,

Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work. 11.[1] The Supreme Court in Kahkashan Kausar @ Sonam & others V State of Bihar & others, Criminal Appeal No 195 of 2022 decided on 08th February, 2022 observed that section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. The Supreme Court in Arnesh Kumar V State of Bihar and another, (2014) 8 SCC 273 observed as under:-

4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. 11.[2] The Supreme Court in Preeti Gupta & another V State of Jharkhand & another, (2010) 7 SCC 667 observed that it is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations and large number of such complaints which are not even bona fide and are filed with oblique motive. However, rapid increase in genuine cases of dowry harassment is also a matter of serious concern. It was further observed that at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant and such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. The Supreme Court cast a duty on courts that the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. The Supreme Court in Geeta Mehrotra & another V State of UP & another, (2012) 10 SCC 741 after referring G.V. Rao V L.H.V. Prasad &others, (2000) 3 SCC 693 observed that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation. The Supreme Court recently in K. Subba Rao V The State of Telangana, (2018) 14 SCC 452 also observed that the Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths and relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.The Supreme Court in Kahkashan Kausar @ Sonam& others V State of Bihar & others quashed FIR for offence punishable under section 498A IPC besides other offences on ground that the contents of the FIR revealed that general allegations are levelled against the appellants and no specific and distinct allegations have been made against either of the appellants and no specific role is attributed to any of the appellant. It was also observed that the allegations are general and omnibus and can at best be said to have been made out on account of small skirmishes.

12. The Supreme Court in Onkar Nath Mishra & others V State (NCT of Delhi) & another quashed framing of charge under section 406 IPC by observing that from plain reading of the complaint filed by the complainant, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under section 406 IPC. It was further observed that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. The Supreme Court also observed that as noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer and as such very pre- requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. 12.[1] The Supreme Court in Rashmi Kumar V Mahesh Kumar Bhada, (1997) 2 SCC 397 while considering whether the fact of a wife's having been driven out from the matrimonial home without taking along with her stridhana properties amount to entrustment with the husband within the meaning of Section 405, IPC? The Supreme Court responded as under:-

13. Thus when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406, IPC with sentence for a period upto three years or with fine or with both, are: [i] entrusting any person with property or with any dominion over property; [ii] the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law……In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. 12.[2] The Supreme Court recently in Deepak Gaba & others V State of Uttar Pradesh & another, Criminal Appeal no 2328/2022 decided on 02nd January, 2023 regarding ingredients of section 405 and 406 IPC observed as under:-

13. Section 406 of the IPC[8] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405 of the IPC are satisfied. For Section 406 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC. For Section 405 of the IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and

(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.

13. It is well established proposition of law that the general allegations which are not specific in nature regarding harassment caused to a wife for dowry demands cannot be basis of framing of charge for offence punishable under section 498A IPC. The husband and his other family members cannot be subjected to prosecution on basis of general allegations regarding dowry demands. Now coming to the facts of the case, the petitioner in complaint dated 21.11.2014 primarily alleged that at the time of marriage one bullet motorcycle was given to her husband, Subhash on his demand and the father of the petitioner also spent Rs.[7] to 8 lakhs in the marriage but respondents no.2 to 5 and her husband, Subhash were not happy with the dowry articles given at the time of marriage. The petitioner was also taunted for not bringing sufficient dowry and was asked to bring cash amount from her father. The petitioner was also beaten as the dowry demands were not fulfilled by her father. The petitioner was also not happy with the drinking habit of her husband, Subhash and her proper care was not taken at the time of delivery of son. The respondents no 2 to 5 and Subhash were not happy with gifts given by the father of the petitioner on occasion of birth of son on 30.11.2009 and expected one gold article as gift on that occasion. Subhash also purchased a car after selling the motorcycle given at the time of marriage and father of the petitioner also contributed Rs.1,00,000/-. The petitioner also stated about the ill treatment alleged to have been given to her on 18.01.2012 and thereafter assurance given by her husband, Subhash that her proper care would be taken. The petitioner also mentioned that she was beaten on 08.05.2014 when the respondents no 2 to 5 and Subhash pressurised her to bring Rs.5,00,000/- from her father for repair of house. The petitioner in statement recorded under section 161 of the Code on 07.09.2016 also stated/repeated above mentioned facts. The petitioner also stated that her jewellery was in possession of her mother in-law i.e. the respondent no 3.

14. The deeper analysis of allegations made by the petitioner in complaint dated 21.11.2014 and statement under section 161 of the Code are appearing to be general in nature and without any specification and do not reflect that the petitioner was subjected to the harassment/cruelty due to dowry demands. The petitioner was having grievances primarily against her husband, Subhash who had already expired on 20.10.2016. The petitioner was not happy with drinking habit of her husband, Subhash and his conduct towards the petitioner during pregnancy. The petitioner was also not happy with selling of motorcycle by her husband, Subhash which was given at the time of marriage and demand of Rs.5,00,000/- for repair of house. It is reflecting that the petitioner and her husband, Subhash were not enjoying healthy matrimonial relationship and petitioner was not happy with conduct of husband, Subhash and the respondent no.2 to 5 towards her. The allegations levelled by the petitioner do not reflect that she was harassed by her in-laws for dowry demands and are general in nature and originated due to sour matrimonial relations.

15. The Trial Court vide order dated 22.02.2019 and the Revisional Court vide order dated 03.09.2019 have considered allegations of the petitioner in detail and have rightly observed that the allegations made by the petitioner in the complaint dated 21.11.2014 and statement under section 161 of the Code are vague and not specific. The respondents no 2 to 5 cannot be subjected to trial arising out of FIR bearing no 0089/16 on the basis of vague and general allegations. The Trial Court as well as the Revisional Court rightly held that the offence under section 498A IPC is not made out against the respondent nos.[2] to 5.

16. The Trial Court has also discharged the respondents no.2 to 5 for the offence punishable under section 406 IPC as the petitioner has refused to take back even the admitted articles and to join the search for recovery of articles and after referring judgment delivered in Onkar Nath Mishra & others V State (NCT of Delhi) & another. However the Revisional Court on the basis of the statement under section 161 of the Code dated 07.09.2016 ordered that the respondent no.3/mother-in-law is liable for the offence punishable under section 406 IPC as the petitioner in the statement under section 161 of the Code stated that she had entrusted the jewellery articles to the respondent no.3. The respondent no 3/mother in-law did not challenge order dated 03.09.2019 passed by the Revisional Court and stated to be expired.

17. The statement under section 161 of the Code only reflects that jewellery of the petitioner were possessed by the respondent no.3 but there is no allegations that the respondent no.3 was entrusted with the jewellery by the petitioner and thereafter the respondent no.3 has misappropriated the jewellery of the petitioner which are essential ingredients for offence punishable under section 406 IPC. The order dated 22.02.2019 passed by the Trial Court and impugned order dated 03.09.2019 passed by the Revisional Court do not call for any interference. The material collected during investigation including complaint dated 22.11.2014 and the statement of the petitioner under section 161 of the Code does not reflect commission of offences punishable under sections 406/498A IPC qua the respondents no.2 to 5.

18. The present petition is devoid of any merit, hence dismissed along with pending application if any.

JUDGE AUGUST 07, 2023 j/sd