Jai Kishan Datwani v. State, Govt. of NCT Delhi

1. This petition under Section 482 Cr.P.C. has been filed by the accused in FIR No.1009/2011 under Section 498A IPC, registered at PS Shakarpur, against the order dated 29th June, 2020, passed by the learned Additional Sessions Judge-04 („ASJ‟, for short), East District, Karkardooma Courts, allowing the revision petition filed by the State against the order dated 27th March, 2019 of the learned Metropolitan Magistrate („MM‟, for short) East in State Vs. Jai Kishan Datwani.

2. It may be mentioned here that the petitioner got married to the daughter of respondent No.2 on 15th May, 2005. A child was born to them on 12th March, 2007. Thereafter, when she conceived again, she was carrying twins and was under the supervision of a doctor at Lifeline Hospital at Priyadarshini Vihar, Delhi. She was given some injection at 2022:DHC:1774 the Lifeline Hospital on 18th July, 2011, allegedly an injection for iron (Ferikind). She developed complications and died.

3. On a complaint made by the respondent No.2, the FIR was registered on 26th December, 2011 for an offence under Section 498A of the IPC against the petitioner, who was arrested and subsequently granted bail. The learned MM while hearing arguments on charge, came to the conclusion that no prima-facie case has been made out for framing of charge against the petitioner, not only because there were two views that were possible, but also because the prosecution‟s version was less probable than the version espoused by the defence. Accordingly, the petitioner was discharged of the offence under Section 498A IPC also holding that no case under Section 304B IPC, was also disclosed.

4. Being aggrieved by this discharge, the State preferred a revision before the learned ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568. It held that the learned MM had no jurisdiction to consider the charge under Section 304B IPC which was triable only by the Sessions Court. Furthermore, it was observed that the postmortem examination report dated 20th July, 2011 had recorded antemortem injuries by blunt force trauma, consistent with being 2-7 days old in duration. This could be explained only by the doctors during trial. Accordingly, the learned ASJ allowed the revision and set aside the order of the learned MM and directed the learned Trial Court to proceed against the present petitioner being accused as per law.

5. Mr. Hitendra Kumar Nahata, learned counsel for the petitioner before this Court submitted that the learned ASJ has proceeded on a wrong premise. It overlooked the fact that immediately after the death, in statements made before the learned SDM, neither the father nor the mother of the deceased had levelled any accusations against the petitioner. Thereafter, only the father had given a fresh statement. There was delay in the registration of the FIR by two months which gave scope for the complainant to manipulate facts. It was further submitted that even the postmortem report does not attach any culpability upon the petitioner, as the cause of death was natural. It was submitted that the judgments relied upon by the learned ASJ were not applicable to the facts of the present case. Ultimately, there was no cogent evidence that can be brought against the petitioner and the learned MM had rightly concluded that there was no case made out against the petitioner for the offence under Section 498A IPC.

6. It was submitted that the offence under Section 304B IPC was not included in the charge-sheet and yet the learned ASJ seems to have gone that way, without cause or material. Hence, it was submitted that the impugned order be set aside. Reliance has been placed on the decision of the Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 and on the guidelines issued by the Supreme Court in the Suo Moto Writ (CRL.) No(s).1/2017 titled In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Vs. The State of Andhra Pradesh & Ors. to submit that the documents collected by the Investigating Officer which supported the version of the accused were to be filed before the Magistrate and the court would then consider the documents at the time of framing of charge. Therefore, the learned MM had taken a holistic view which the learned ASJ failed to do and thus, passed the erroneous order. Hence, it was submitted that the Trial Court‟s order be upheld by quashing the order of the learned ASJ and thus, discharging the accused by allowing the present petition.

7. Mr. G.M. Farooqui, learned APP for the State on the other hand, submitted that the injuries were antemortem and 7 days old. These old injuries have remained unexplained. The difference in the statements made by the father of the deceased is something that can be explained naturally. Further, the offence under Section 304B IPC was also made out prima-facie and, therefore, the Sessions Court should be directed to frame charge under Sections 498A and 304B IPC. In fact, it is the contention of the learned APP for the State that the learned MM ought to have committed the case in the first place to the Sessions Court and not have discharged the petitioner for the offence under Section 498A.

8. In rejoinder, the learned counsel for the petitioner submitted that the injuries were not attributable to the petitioner but to some medical procedures. The ribs were broken during the process of resuscitation which is what the postmortem report observed.

9. It may be mentioned here that the respondent No.2 had also appeared in person and had submitted that the petitioner had been subjecting his deceased daughter to physical harm for dowry and the petitioner was required to face trial for what he had done.

10. I have heard the submissions and have perused the record as also the guidelines.

11. In the order of discharge passed by the learned MM, it is recorded that the petitioner herein had opposed the complainant pressing for framing of charge both under Section 498A IPC as well as under Section 304B IPC. Clearly, the question of framing of charge under Section 304B IPC was beyond the ken of the learned Magistrate. Instead of considering whether the material disclosed grounds for committal, the learned MM chose to look into the material for the purposes of “deciding whether charge under Section 304B IPC is made out or not..…”. If prima-facie a case had been disclosed as to the commission of offence under Section 304B IPC, the appropriate action to be taken by the learned MM was to commit the case to the Sessions Court. It would then have been open to the Sessions Court to determine whether the offences under Section 498A read with Section 304B IPC were made out or not or only the offence under Section 498A IPC was made out in which event, the matter then would have been remitted back to the learned MM for trial. That fallacy in the order has been noted by the learned Sessions Court.

12. The learned MM had referred to two judgements of the Supreme Court in State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 and Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 and noted that the court was not required to undertake an elaborate inquiry in sifting and weighing material or delving into the various aspects of the material on record, whereas, it appears to have done precisely that, while at the same time, overlooking certain material evidences.

13. For instance, the postmortem report recording bruises has not been properly considered by the learned MM, which is what the learned Sessions Court has highlighted. The learned MM had considered only the prick marks and the injuries to the ribs as being part of the medical treatment, without noticing that the bruises that were recorded in the postmortem report were 2-7 days old and were located on the thighs. These bruises have been recorded in the postmortem report as follows: