HIGH COURT OF CHATTISGARH AT BILASPUR
Misc. Criminal Case No.877 of 2002
1. Gulabrao
2. Mukesh
3. Ramesh
...Petitioners
Versus
State of Chhattisgarh
...Respondents
{Petition under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. P.K.C. Tiwary, Senior Advocate with Mr. Shashi Bhushan, Advocate for the applicants
^ Mr. Akhil Mishra, Deputy Govt. Advocate with Mr. Rajendra Tripathi, Panel Lawyer for the State
Honble Mr. T.P. Sharma, J
Dated:24/04/2009
: Judgment
ORAL ORDER
(24-4-2009)
1. This is a petition for quashment of the order framing
charge dated 6-9-2001 passed by the Judicial Magistrate First
Class, Durg, in Criminal Case No.559/99 which has been
affirmed by the 1st Additional Sessions Judge, Durg in
Criminal Revision No.410/2001 vide order dated 19-1-2002.
2. Quashment of the order framing charge is prayed on the
ground that without any whisper of evidence against Mukesh &
Ramesh the Court below has framed charge and without any
prima facie material against the applicants relating to dowry
or its demand the Court below has framed charge against them
for offence punishable under Sections 3 & 4 of the Dowry
Prohibition Act, 1961 (for short `the Act’).
3. I have heard learned counsel for the parties, perused
the order impugned and records of the Courts below.
4. Learned Senior Advocate appearing on behalf of the
applicants submits that applicant No.2 Mukesh is bridegroom,
applicant No.1 Gulabrao is father of Mukesh and applicant
No.3 Ramesh is brother-in-law of Mukesh. Applicant No.1
Gulabrao agreed to marry his son with Mukesh with the
daughter of Rambhau namely, Meenakshi. According to the
F.I.R. it was decided that the bride party will give
Rs.75,000/- to the bridegroom party as the cost of marriage
on 1-11-1998. The applicants namely Gulabrao, Mukesh & Ramesh
along with Chandrakala and two other relatives went to the
house of Rambhau where they took their meals and thereafter,
Rambhau gave Rs.75,000/- to them. Again on 3-11-1998
applicant No.1 Gulabrao and another person i.e. mother of
Mukesh namely Chandrakalavati demanded Rs.1 lakh by
telephone. Ultimately the marriage was not solemnized
between the parties and Rambhau lodged the first information
report on 19-1-1999 after lapse of 2 + months against the
present applicants and others for offence punishable under
Sections 3 & 4 of the Act. Learned Senior Advocate further
submits that according to the definition of dowry under the
Dowry Prohibition Act, 1961, cost of marriage is not dowry,
therefore, even if cost of marriage was paid to the
applicants it would not come within the purview of dowry.
Even the allegation of demand of Rs.1 lakh is against
applicant No.1 Gulabrao, however, no telephone details have
been collected by the prosecution to substantiate the charge.
At the time of framing charge in terms of Sections 227 & 228
of the Cr.P.C. the prosecution is required to show prima
facie material for framing of charge although at the time of
framing charge no meticulous scrutiny is required. But in
this case the prosecution has utterly failed to collect the
material to show prima facie ground for framing of charge.
Learned Senior Counsel placed reliance in the matter of State
of M.P. v. S.B. Johari and others1 in which it has been held
by the Apex Court that at the time of framing 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 disclose the existence of
all the ingredients constituting the alleged offence.
Learned Senior Counsel further placed reliance in the matter
of Sunil Bajaj v. State of M.P.2 in which it has been held by
the Apex Court that the prosecution is required to adduce
cogent & reliable evidence and in the case of conversation on
telephone, it is required to collect evidence relating to
conversation by telephone. Learned Senior Counsel also
placed reliance in the matter State of Madhya Pradesh v.
Ashwinkumar Vishnudutta Jha and others3 in which it has been
held by the Madhya Pradesh High Court that “Framing of charge
– Court is bound to consider documents referred by
prosecution under section 173 of the Cr.P.C. – Material, if
un-rebutted, not sufficient to carry conviction – Court
justified in discharging accused.”
5. On the other hand, learned counsel for the State opposed
the petition and submitted that the prosecution has collected
sufficient material against the present applicants for
framing of charge for offence punishable under Sections 3 & 4
of the Act. Learned State Counsel further submits that even
according to the F.I.R. both the parties agreed that bride
party will pay Rs.75,000/- to bridegroom party as cost of
marriage and the said cost was paid to the applicants on 1-11-
1998 in the house of bride party before the witnesses and at
that time, the applicants namely Gulabrao, Mukesh, Ramesh &
others were present before whom the money was paid. Learned
State Counsel also submits that even according to the F.I.R.
Gulabrao & his wife have demanded Rs.1 lakh by telephone. At
the stage of framing charge detail scrutiny is not required
and the prosecution is required to adduce evidence which
substantiates the charge so framed. Learned counsel for the
State further submits that any money or valuable thing agreed
for marriage or at the time of marriage would come under the
definition of dowry, under the Act.
6. The word `dowry’ is defined in Section 2 of the Act
which reads as follows: –
“In this Act, “dowry” means any property or
valuable security given or agreed to be given
either directly or indirectly-
(a) by one party to a marriage to the other party to the
marriage; or
(b) by the parent of either party to a marriage or by any
other person, to either party to the marriage or to any other
person,
at or before or any time after the marriage
in connection with the marriage of the said
parties, but does not include dower or mahr
in the case of persons to whom the Muslim
Personal Law (Shariat) applies.
Explanation II.-The expression “valuable
security” has the same meaning as in section
30 of the Indian Penal Code (45 of 1860).”
7. According to the definition of `dowry’ any property or
valuable security given or agreed to be given either directly
or indirectly by one party to a marriage to the other party
to the marriage will come under the ambit of dowry. Rs.1
lakh demanded by the applicants will definitely come under
the ambit of the definition of dowry. As regards the
question that Rs.75,000/-, which was agreed to be paid on
behalf of bride party to bridegroom party as the entire cost
of marriage, is dowry or not, the F.I.R. shows that it was
agreed to be paid as cost of marriage and it was required to
be paid on behalf of bride party to bridegroom party. This
shows that this is a consideration for marriage and it will
come under the definition of dowry under Section 2 of the
Act. At the stage of framing charge no meticulous scrutiny
of evidence is required and 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 or not. As has been held by the Apex
Court in S.B. Johari’s case,
“It is settled law that at the stage of
framing the charge, the court has to prima
facie consider whether there is sufficient
ground for proceeding against the accused.
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
the accused committed the particular offence.
In such case, there would be no sufficient
ground for proceeding with the trial. In
Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjayya4 after considering
the provisions of Sections 227 and 228
Cr.P.C., the court posed a question, whether
at the stage of framing the charge, the 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 peruse the
records for that limited purpose, but it is
not required to marshal it with a view to
decide the reliability thereof. The Court
referred to earlier decisions in State of
Bihar v. Ramesh Singh5, Union of India v.
Prafulla Kumar Samal6 and Supdt. &
Remembrancer of Legal Affairs, W.B. v. Anil
Kumar Bhunja7 and held thus: (SCC p. 85, para
7)
“From the above discussion it seems
well settled that at the Sections 227-
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 sift 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)
8. At the stage of framing charge the Court is required to
see the telephone call and by which mode the demand is made.
It is specifically mentioned in the F.I.R. that applicant
No.1 has demanded Rs.1 lakh by telephone. First information
report clearly shows that the present applicants visited the
house of Rambhau and after taking their meals Rs.75,000/- was
given by Rambhau to the bridegroom party where the present
applicants & other persons were present. At this stage it
cannot be said that the present applicants at that time were
not members of bridegroom party. This is not the case in
which applicants Ramesh or Mukesh have objected or have
resisted that the bridegroom party will not receive money
especially Rs.75,000/-.
9. On careful examination of the charge sheet it reveals
that all the applicants were party to the proceeding in which
Rs.75,000/- was agreed to be paid and was paid, and applicant
No.1 Gulabrao also demanded Rs.1 lakh in connection with the
said marriage. On the basis of the material collected on
behalf of the prosecution the Court below has framed charge
against the applicants for offence punishable under Sections
3 & 4 of the Act. The Court below has neither committed any
illegality or any irregularly in framing charge against the
present applicants. I do not find any scope for interference
in exercise of inherent jurisdiction in terms of Section 482
of the Cr.P.C. Consequently, the petition is liable to be
dismissed and it is hereby dismissed.
10. Interim order dated 29-10-2002 stands vacated. As the
case is pending since 1999, the Court below is directed to
expedite the trial and decide the case as early possible.
JUDGE