PETITIONER:
STREE ATYACHAR VIRODHI PARISHAD ETC. ETC.
Vs.
RESPONDENT:
DILIP NATHUMAL CHORDIA & ANR.
DATE OF JUDGMENT08/02/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)
CITATION:
1989 SCR (1) 560 1989 SCC (1) 715
JT 1989 (1) 247 1989 SCALE (1)330
ACT:
Criminal Procedure Code, 1973: ss. 227 & 22.8: 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 pene-
trate every dark corner and collect all evidence--Courts to
display greater sensibility to criminality and avoid soft
justice.
HEADNOTE:
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 first floor was seen coming down
the stairs. The deceased succumbed to the burn 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 investiga-
tion.of the case revealed that the deceased had met hostile
atmosphere soon after her marriage. The parents gave state-
ments 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 with s. 34 I.P.C. The trial court came to a
prima facie conclusion that it was not a suicide but homici-
dal death. Accordingly, a charge under s. 302 I.P.C. was
framed against the respondent. The respondent's father was,
however, discharged.
561
The High Court dismissed the revision petition of the
State against the respondent's father. Wile 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 individ-
ual 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: 1. The High Court was not justified in interfering
with the charge framed by the trial court against the re-
spondent accused.
2. The trial court had considered every material on
record 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 pre-
vent harassment to an innocent person by the arduous trial
or the ordeal of prosecution. The power has been entrusted
to the Sessions Judge who brings to hear 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] 1 SCR 257 and
Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR
229 at 234-35, referred to.
3. Self restraint on the part of the High Court should
he the rule unless there is glaring injustice staring the
Court in the face. In the
562
instant case, it had discharged the respondent mainly rely-
ing 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 contu-
sions 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 considera-
tion. 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 bring him credit. The approach made by the
High Court, therefore, cannot be accepted. [569C; 566H;
567A-C]
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 obliga-
tion, that by itself without 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]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
486 to 489 of 1984.
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. 234 of 1983 respectively.
M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for the
Appellants.
S.B. Bhasme and R.A. Gupta for the Respondents.
The Judgment of the Court was delivered by .
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 atroci-
ties on women. Criminal Appeal Nos. 488 and 489 of 1984 are
by the State of Maharashtra.
563
The case relates to the death of a newly married girl
called Chanda. On June 15, 1981, Chanda was married to
Ramesh. The eider brother of Ramesh is called Dilip and
Nathumal is their father. The marriage of Ramesh and Chanda
took place at Nerparsopant, 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
Tampie. They came back in the same evening. The day follow-
ing was a fateful day. At about 2.30 PM on June 20, 1981,
Chanda was seen with flames on the first floor of the resi-
dential 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 the
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 uncon-
scious 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 recorded 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 burn 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 outcome 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 commit-
ted suicide by burning herself and Dilip and Nathumal abet-
ted 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
564
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 death of Chanda could not be by
accidental fire.
The trial court after considering all the facts and
circumstances appearing on record and after heating the
counsel for accused and Public Prosecutor was of priraa
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 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 ques-
tioned the correctness of the charge framed against him and
demanded his discharge also. The 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.
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.
We have perused the judgments of the courts below and
heard counsel on both sides. We gave our anxious considera-
tion to the material on record.
Section 227 of the Code of Criminal Procedure having
beating on the contentions urged for the parties, provides:
“227. Discharge–If, upon considera-
tion of the record of the case and the docu-
ments submitted therewith, and after hearing
the submissions of the accused and the prose-
cution in this behalf, the judge considers
that there is no sufficient ground for pro-
ceeding against the accused, he shall dis-
charge the accused and record his reasons for
so doing.”
565
Section 228 requires the judge to frame charge if he
consider that there is ground for presuming that the accused
has committed the offence. The interaction of these two
sections has already been the subject matter of considera-
tion 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):
“Reading the two provisions together
in juxta pesition, as they have got to be, it
would be clear that at the beginning and the
initial stage of the trial the truth, veracity
and effect of the evidence which the Prosecu-
tor proposes to adduce are not to be meticu-
lously judged. Nor is any weight to be at-
tached 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 finding regarding the guilt or other-
wise of the accused is not exactly to be
applied at the stage of deciding the matter
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. 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.”
In Union of India v. Prafulla Kumar Samal & Anr., [1979]
2 SCR 229 at 234-35, Fazal Ali, J., summarised some of the
principles:
“(1) That the Judge while consider-
ing the question of flaming the charges under
sec. 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 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
566
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 jurisdic-
tion under the present 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, 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.”
These two decisions do not lay down different princi-
ples. Prafulla Kumar case has only reiterated what has been
stated in Ramesh Singh case. In fact, sec. 227 itself con-
tains 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 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 enquired into.
So much is, we think, established law. To be fair to the
accused, 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 kero-
sene residue was found on each and every garment of the
deceased. The post-mortem report also indicates,
567
besides burn injuries, that Chanda had sustained contusions
on the 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 to these facts although the conten-
tion of the Public Prosecutor in this regard has been no-
ticed. Not merely that, the events that proceeded the death
of Chanda did not receive any consideration. The statements
of brother and father of Chanda and also that of Kamala
Bai–the maid servant of Chanda have been ignored. The
conduct of Dilip which was highlighted in the context and
circumstances, was brushed 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:
“That the accused was passive is
neither here nor there. It all depends upon
the mental response and reaction of an indi-
vidual whether he faces the risk and attempt
to extinguish the flames or quietly watches
the incident. By no interpretation could it be
stretched to show that the accused either
actively committed the act of burning or ac-
tively 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 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. It is generally committed inside the
house and more often with a circumstance to give an impres-
sion 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 196 1) was passed prohibit-
ing the taking or giving dowry. By 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
568
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 IPC 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 presump-
tion 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 bums 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 hat such husband or relative
shall be deemed to have caused her death and shall be pun-
ished with 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 forward for protection of women and preservation of
societal values. The criminal justice system must equally
respond to the needs and notions of the society. The inves-
tigating 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 great-
er sensitivity to criminality and avoid on all counts “soft
justice”.
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 IPC is warranted against Dilip even though the police
charge sheeted him under sec. 306 IPC. The High Court has
gone on a tangent mainly relying on the dying declaration as
if it has been conclusively proved to be the true and faith-
ful 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 against a charge framed by the Sessions Court. Section
227 which
569
confers power to discharge an accused was designed to pre-
vent harassment 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 itself. The
power has been entrusted to the Sessions Judge who brings to
bear his knowledge and experience in criminal trials. Be-
sides, he has the assistance of counsel for the accused and
Public 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 injustice stares the Court in the face. The
opinion on any matter may differ depending upon the person
who 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 care 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, there-
fore, 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 appeals to the extent indicated only as against
Dilip. We set aside the order of the High Court and restore
that of the trial court. 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 Pari-
shad’ in this case. It is a social welfare organisation. It
has come up to this Court spending its own money by prefer-
ring the appeals. We very much appreciate the object of the
organisation and the assistance rendered-
P.S.S. Appeals allowed
partly.
570
