# Mukesh Bansal Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 1112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-13
- **Case number:** Criminal Revision No. 1126 of 2022
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-bansal-revisionist-v-state-of-u-p-anr-48633
- **Pages:** 19

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 227-Discharge
application of the husband and in laws rejectedtypical sweeping remark by informant-only
exaggeration and magnifying the incident to
thousands
fold
for
obvious
reasons
and
purpose-trial court ought to weigh entire
material on record specially for in laws-no arrest
or police action without concluding the "cooling
period" of two months from lodging of FIR;
cases be immediately referred to Family Welfare
Committee.

Criminal Revision no. 1126 of 2022 and
1187 of 2022 allowed.(E-9)

Criminal
Revision
no.
567
of
2019
(husband's revision ) rejected. (E-9)

List of Cases cited:

## Text

_Characters 0–39,805 of 63,436. This is a partial read: ask again with offset=39805 for what follows._

1112 INDIAN LAW REPORTS ALLAHABAD SERIES
claiming juvenility, on the basis of medical
opinion from a duly constituted medical
board. In view of the provision of Section
94 (2) of the Act, 2015 while making
enquiry for determining the age of an
accused/juvenile who is involved in a grave
and heinous offence, the Board/Court
should be more careful and conscious and
once the the date of birth certificate from
the
school,
or
the
matriculation
or
equivalent certificate from the concerned
examination Board, if available and is
proved then there was no justification to
consider the age certificate issued by
Municipal Corporation, Moradabad for
determining the age of the accusedopposite party No.2 or determining the age
by the medical Board.

In the present case in the school
certificate from Class UKG to XI the date
of birth of the opposite party No.2 is
recorded
as
16.11.1999,
therefore,
undoubtedly opposite party No.2 was
juvenile on the date of incident, therefore,
objection of the revisionist has no force that
she is not juvenile on the date of incident.

The Court below has rightly
considered the certificate issued by the
Board from where the opposite party No.2
has passed her matriculation examination in
which her date of birth is recorded as
16.11.1999 and the court below has passed
the
impugned
order
considering
the
provision of Section 94 (2) of the Act,
2015.

19. In view of the aforesaid
discussion and considering the above
proposition of law laid down by the
Hon'ble Apex Court, I am in full agreement
and I find no illegality or perversity in the
impugned order dated 09.03.2017 passed
by Special Judge (POCSO Act) Additional
Sessions Judge Court No. 12 Moradabad in
Appeal No. 207/2016 (Shane Abbas Vs.
Kumar Fiza Zaidi) dismissing the appeal of
the present revisionist and confirmed the
order dated 20.10.2016 passed by Juvenile
Justice Board Moradabad in Case No.
77/2016 arising out of Case Crime No.
237/2016, under Sections 302, 120B I.P.C.
Police
Station
Civil
Lines,
District
Moradabad.

20. Accordingly, the revision does
not require any interference by this Court
and is hereby dismissed.

21. The file is consigned to record.

22. Let the copy of this judgment and
order be placed before he Registrar
General,
High
Court,
Allahabad
to
communicate the same to all the District
Judges and the Presiding Officer of all the
Juvenile Justice Board of the districts for its
necessary compliance.
----------
(2022)06ILR A1112
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.06.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Revision No. 1126 of 2022
With
Criminal Revision No. 1187 of 2022
With
Criminal Revision No. 1122 of 2022

Mukesh Bansal ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajeev Nayan Singh, Sri Ritukar Gupta, Sri
Vinod Prakash Srivastava (Senior Adv.), Ms.
Diksha Gupta, Sri Siddharh Srivastava
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1113
Counsel for the Opposite Parties:
Govt. Advocate, Sri Raj Kumar Kesari, Sri Ajay
Kumar Sharma (AGA), Sri Raj Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 227-Discharge
application of the husband and in laws rejectedtypical sweeping remark by informant-only
exaggeration and magnifying the incident to
thousands
fold
for
obvious
reasons
and
purpose-trial court ought to weigh entire
material on record specially for in laws-no arrest
or police action without concluding the "cooling
period" of two months from lodging of FIR;
cases be immediately referred to Family Welfare
Committee.

Criminal Revision no. 1126 of 2022 and
1187 of 2022 allowed.(E-9)

Criminal
Revision
no.
567
of
2019
(husband's revision ) rejected. (E-9)

List of Cases cited:

1. St. of Karnataka Vs L. Munishwamy & ors.
Reported in 1977 AIR 1489

2. Sanjay Kumar Rai Vs St. of Uttar Pradesh and
another reported in 2021 AIR(SC) 2351

3. Union of India Vs PrafullaKumar Samal
reported in 1979 3 SCC 4

4. Dilwar Balu Kurane Vs St. of Maharashtra
reported in (2002) 2 SCC 135

5.
Sajjan
Kumar
Vs
Central
Bureau
of
Investigation, reported in 2010 (9) SCC 368

6. Tarun Ji Tejpal Vs St. of Goa reported in
(2015) 14 SCC 481

7. K. Subba Rao Vs St. of Telangana reported in
2018 (14) SCC 452

8. Kahkashan Kausar@Sonam (17) Vs St. of
Bihar in Criminal Appeal No.195 of 2022 decided
on 01.02.2022

9. Priti Gupta Vs St. of Jharkhand, 2010(71) SCC
667

10. Social Action Forum for Manav Adhikar Vs
Union of India reported in 2018 (10) SCC 443
(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Rajiv
Nayan Singh and Sri Ritukar Gupta learned
counsel for the revisionists, Sri Raj Kumar
Kesari, learned counsel for opposite party
no. 2 and learned A.G.A for the State.

[2] Pleadings have been exchanged
between the parties in all the above
captioned revisions and as such, all the
matters has ripe for final submissions to be
adjudicated on merits.

[3] Coincidentally, all the aforesaid
three revisionists, are assailing the legality
and validity of the order dated 03.03.2022
through their respective revisions mentioned
above whereby learned Additional Sessions
Judge (Fast Track Court-I), Hapur, by three
different orders of the same date i.e
03.03.2022, have rejected all the discharge
applications of the revisionists under section
227 Cr.P.C. in S.T. No. 19 of 2020 (State v.
Manju Bansal and others) arising out of Case
Crime No. 567 of 2018, under sections 498A, 504, 506, 307 and 120-B IPC and 3⁄4 of the
Dowry Prohibition Act, P.S. Pilakhuwa,
District Hapur.

Since, order dated 03.03.2022 has
been passed on three different applications
in the same Sessions Trial, therefore, for
the sake of brevity and convenience, all the
aforesaid three revisions are clubbed
together and decided by a common
judgement by this Court.

FACTS
OF
THE
CASE
&
SUBMISSIONS BY THE COUNSEL
FOR THE REVISIONISTS:-
1114 INDIAN LAW REPORTS ALLAHABAD SERIES

[4] As per prevailing practice
nowadays in the society mostly in the cases
of matrimonial discord, misunderstanding
and incompatibility between the married
couples, results into ever abhorring FIR.
Here too, it seems to be a repetition of the
same practice. In the instant case, the FIR
was lodged by none other than the wife Ms.
Shivangi
Bansal
herself
against
her
husband as well as her in-laws. From the
perusal of the FIR, it is borne out that for
the incident of 04.10.2018, the present FIR
came into existence on 22.10.2018 lodged
at
Police
Station-Pilkhua,
DistrictHapur(native place of Ms. Shivani Bansal)
against five named accused including
husband and his relatives. In addition to
above named accused persons, two more
namely
Chirag
Bansal
brother-inlaw(devar) and Smt. Shipra Jain, married
sister-in-law(nanad) were also roped in
these offences. From the text of the FIR,
following salient factual features of the
case are apparent :-

[5] The written complaint signed by
the informant Ms. Shivangi Bansal was
sent to the office of the Prime Minister,
Government of India, Chief Minister, State
of U.P., Police Commissioner, New Delhi,
D.G.P. Lucknow, Superintendent of Police,
Hapur and Circle Officer, Police StationPilkhua, District-Hapur with the allegations
that opposite party no.2 Ms. Shivangi
Bansal was married with Sahib Bansal on
05.12.2015 according to Hindu rites and
rituals. It seems that there was a deep
rooted misunderstanding, and thorough
incompatibility
and
discord
between
husband and wife, in fact, both of them
were fierce-foe of each other.

[6] It is alleged that in the marriage,
her parents have spent about Rs.2 crores in
the shape of cash, jwellery, clothing,
utensils, furniture and other gifts worth
Rs.50 lacs. But, all the above named five
persons were not happy by the aforesaid
dowry and were demanding Rs.20 lacs
more as an additional dowry which later on
swelled to the figure of Rs.50 lacs. It is
alleged that (a) the informant's father-inlaw Mukesh Bansal wanted to have sexual
favours from opposite party no.2 and not
only this, her devar Chirag Bansal also
have tried to ravish her physically. (b) The
husband-Sahib Bansal used to lock her in
the bathroom after taking away her mobile
phone.(c)
When
the
informant
got
pregnant, then they asked some astronomer
to predict the sex of 'still born' baby. Then,
her
mother-in-law
and
sister-in-law
pressurized her to get aborted. On making
refusal, all the family members became
physical with her. (d) During the stage of
pregnancy, her husband tried to establish
sexual relationship per-force. Not only this,
he tried to have unnatural and oral sex and
even, pissed in her mouth. (e) There was
constant demand of additional dowry and
on refusal by opposite party no.2 to oblige
them, she was assaulted brutally by fists
and kicks and maltreated and humiliated to
its optimum.

[7] On 03.04.2017, Mukesh Bansal,
(father-in-law) tried to distance with the
warring couple and they shifted to some
other
rented
accommodation,
leaving
behind the husband & wife to 130, First
Floor, Rajdhani Enclave, Pithampura, New
Delhi. In the month of September, 2017,
when the informant was impregnated for
the second time, the family members got
her aborted in 2017 itself. On 03.10.2018,
there was again demand of additional
dowry of Rs.50 lacs and again on refusal,
her husband attempted to strangulate her by
'chunni' and to further humiliate her, got
her head into the commode of the toilet. On
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1115
04.10.2018, she dialed '100' and thereafter,
gave written tehrir to A.S.P., Women Cell,
New Delhi and then, left the company of
her husband and returned to her place at
Hapur.

[8] The story narrated in the FIR is
not only abhorring, full of dirt, filth and
venomous accusations where the informant
fiercely abused her own husband and inlaws by using all the ways and means in the
tone, tenor and texture in the extreme
manner. The graphic and vivid descriptions
of the incident without any shame or hitch
of any sort which, speaks out volume of
mental condition and amount of venom and
poison in the mind of the informant. She
without
mincing
any
word,
rather
exaggerating the incident to manifolds, had
vomitted the snide before the Court.
Interestingly,
general
and
sweeping
allegations have been fastened against all
the
family
members
for
committing
sodomy, attempt to rape and illegal
abortion etc. upon all the family members
with special focus upon her husband, Sahib
Bansal.

[9] As such, it is clear that the couple
Sahib Bansal and Shivangi Bansal was
married in December, 2015. Parents-in-law
of the informant withdrew themselves from
the company of their son and daughter-inlaw keeping in view the growing acrimony
between them and started residing to some
other place in a rented accommodation.
Thus, in-fact Mukesh Bansal and Smt.
Manju Bansal(parent-in-law) remained in
the company of warring Sahib Bansal (son)
and daughter-in-law Shivangi Bansal, for
almost one year and four months only and
in order to achieve larger good, they came
out silently from the lines of their son and
daughter-in-law with hope and trust that
bitterness between them would be diluted
and the relationship between them would
congenial.

[10]

Learned
counsel
for
the
revisionist drew attention of this Court to
GD Entry 027-A dated 04.10.2018, a call
received by PCR that, in House No. 130
First Floor, Rajdhani Enclave, Peetampura,
New Delhi, the husband is beating his wife.
On
04.10.2018
at
10.10
P.M.
an
endorsement was made to the Police
personnels, after meeting Ms. Shivangi
Bansal, it was disclosed that the informant
got married with Sahib Bansal about three
years back, who constantly used to tease,
beat and assault her for additional dowry.
Thereafter, Ms. Shivangi Bansal after
collecting her belongings along with her
daughter's clothes and toys, proceeded to
the house of her father Rajesh Goyal and
mother-Sandhya Goyal at Pilkhuwa, Hapur.
She
has
also
given
a
handwritten
application, enclosing a photostat copy of
her complaint filed in the office of ACP,
Women Cell, Rani Bagh, New Delhi and
then proceeded to Pilakhuwa, District
Hapur. On the same breath, she made
similar allegations that her husband made
demand for additional dowry of Rs. 50
Lacs and sought sexual favours in the shape
of anal and oral sex and various other cruel
acts of sex. She has also reiterated all the
versions of the FIR in this application too.
In the same application, she, in no
uncertain terms, have stated that "I do not
want to live with him(husband)." "I am not
physically hurt." "I am not going for
medical examination." It is crystal clear
that despite all allegations of marpeet, she
has made a candid statement that she was
not physically assaulted, therefore, does not
want to undergo any medical examination.
On the same date, husband-Sahib Bansal
also gave a detailed application with the
allegation, exploiting the ugly situation that
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
Shivangi Bansal has demanded Rs.5 crore
else she would make the life of Sahib
Bansal(husband) and his family members
miserable like hell. The detailed application
running into five pages is at Page-54
onwards of the affidavit.

[11]

Interestingly,
by
giving
application on 04.10.2018 as mentioned
above,
Shivangi
Bansal
categorically
denying any physical assault upon her by
her husband and she does not want to get
herself medically examined. On the other
hand, she appeared before the police on
22.10.2018
to
get
herself
medically
examined in C.H.C. Hapur wherein the
doctor in the medical report, has candidly
mentioned that she has sustained no injury
on her person, annexure-3 to the petition.

However, in the counter affidavit
filed by learned counsel for the opposite
party no.2 and injury report issued by
Bhagwan Mahavir Hospital, Pitampura,
New Delhi dated 04.10.2018 at 9:11 pm is
annexed whereby, it discloses certain
injuries over her persons. It is alleged that
these injuries were sustained by her
husband who was present at his flat. She
has made a complaint to the doctor that she
was assaulted by her husband who tried to
strangulate her and she made a complaint
of pain around her neck and also nausea
and vomitting. The condition of the patient
was conscious and oriented and making a
physical investigation, the doctor has
opined that there is linear transverse bruise
seen over lateral part of the neck. There is
small burn sign seen at left forearm and
tenderness in the backside. Thus, in totality,
it is alleged that the husband had tried to
strangulate her by a scarf resulting into a
bruise over the neck. Except this, there is
no vital injury over her person. Thus, it is
quite clear that the instant is a no injury
case wherein the informant has sustained a
single scratch over her person and so far as
strangulating her neck by chunni is
concerned, there is sign and mark of
struggle over her neck suggestive of the
fact that husband has made an effort to gag
her neck.

[12] The police, after probing the
matter in depth, has submitted the charge
sheet dropping all the offences, wherein the
informant had made wild accusations in the
FIR against her husband and his family
members. The aforesaid charge sheet has
been filed only under sections 498A, 323,
504, 506, 307 IPC and 3⁄4 of D.P. Act. Thus,
it is explicitly clear that the FIR is nothing
but a virtual canard and full of venom
where the informant unmindful of the fact
to its far-reaching repercussions, pasted all
the filth upon revisionist in wild manner
but
was
unable
to
produce
any
documentary evidence/proof to substantiate
the levelled allegations and thus, all the
sections of unnatural/oral sex, forcible
abortion have gone to haywire resultantly
dropped from charge sheet. Not only this,
names of Chirag Bansal and Ms. Shipra
Jain finds no place in the charge sheet, so
filed by the police.

[13] It is also relevant to point out
here that under the auspices of Hon'ble the
Apex Court and this Court as well, the
matter was referred twice for mediation and
conciliation proceeding so as to sort out
and patch up the matter outside the court in
an amicable way. But, unfortunately its
ultimate result was a big zero. The parties
failed to avail the advantage of the
opportunity offered by the Apex Court as
well as this Court. Eventually, after getting
themselves bailed out from the court
concerned, the husband Sahib Bansal,
Mukesh Bansal, father-in-law, and Manju
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1117
Bansal, mother-in-law moved the different
discharge applications and vide order dated
03.03.2020, all the three applications stood
dismissed by the learned sessions Judge,
Hapur. On this factual backdrop of the
case, the present three different revisions
have been tabled before this Court by Sahib
Bansal(husband), Mukesh Bansal(father-inlaw) and Manju Bansal(mother-in-law).

[14] This Court has perused the order
impugned and the submissions advanced by
the respective parties and the grounds taken
by the learned counsel for the revisionists,
is that the order impugned passed by the
court below which was canvassed as an
illegal, perverse and without application of
judicial mind, besides, it is a misuse of the
procedure of the court.

[15] It is further urged by learned
counsel for the revisionist that so far as
Mukesh Bansal and Manju Bansal are
concerned, they are parents-in-law of the
opposite party no.2, informant who got
married in December, 2015 with the son,
Sahib Bansal. They remained in the
company of the son and daughter-in-law
upto 30.04.2017, to be precise 1 year, 4
months and 25 days from the date of
marriage. During this, they repeatedly tried
to pacify and get the rifts patched up but
sensing that situation, heated up from bad
to worse, they themselves decided to resile
from the company of their son and
daughter-in-law and started to reside in a
distant place i.e. 44, Kapil Vihar, Northwest, Delhi, a rented accommodation.
Thus, from 30.04.2017, the physical
presence of the old and pained couple from
the site of the plagued situation on the
place of said occurrence is completely cut
off. The opposite party no.2 is a furious
lady who wants to level the score with her
husband as well as in-laws and the tone,
texture and tenor of the FIR speaks volume
about her mental condition. Her psyche and
amount of venom in the mind of the
informant goes to show that in order to take
revenge from her husband and in-laws, she
has gone to any extent, crossing all the
limits of decency. On making an inquiry,
except one small bruise over her neck,
there is no other scratch over her person.
The injuries shown may or may not touch
the four corners of Section 307 IPC only
against her husband who was residing with
her at relevant point of time. On top of it, it
has been contended by learned counsel for
the revisionist that it is true, that there are
certain specific allegations against the
husband who resides with opposite party
no.2 in the same flat and it is just possible
that relationship between the husband and
wife may be sore but so far as parent-inlaw are concerned, they are out of canvass
since 30.04.2017. The parent-in-law and
other family members are roped in just
because they are the parent, brother and
sister of the husband-Sahib Bansal.

Lastly, learned counsel for the
revisionist has drawn the attention of the
Court to the allegations of the FIR whereby
it is mentioned that parents of the informant
spent Rs.two crores on her marriage and
has given gifts worth Rs.50 lacs.

Learned
counsel
for
the
revisionist has drawn the attention of the
Court to the annexure 3 and 4 of the
rejoinder affidavit which are Income Tax
Return of the opposite party no.2. The ITR
of assessment year of 2014-15 shows that
Shivangi Bansal has a gross total income of
Rs.2,24,542/- whereas in the year 2015-16,
she has shown her gross total income of
Rs.2,75,246/- whereas her father's ITR of
2015-16, 2016-17, gross total income is
Rs.3,53,693/-
and
Rs.5,54,772/-
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
respectively and after having deduction, the
total income was Rs.3,85,500/-. Their
financial health on which they have given
tax, clearly indicates their financial status
and to suggest that the amount of Rs.2
crore was spent in the marriage and gifts of
Rs.50 lacs were given, is simply cock and
bull story. The informant has mentioned
astronomical figures without any basis for
which she is required to give a reasonable
justification. The ITRs of father and
daughter indicates that both of them
belongs to upper middle-class, a well-to-do
businessman.

[16] Thus, in the instant revision,
judicial scrutiny of order dated 03.03.2022
passed by the Additional District and
Sessions Judge/F.T.C.-I, Hapur is required
to be done by this Court.

[17] Section 227 of Cr.P.C. has to be
read with Section 228 of the Code of
Criminal Procedure is indeed precious safeguard for the defence to have a pre-battle
protection conferred by the legislation
under chapter XVI of Cr.P.C. There is no
provision which empowers the Magistrate
to discharge the accused. This extraordinary power can only be exercised by
the trial Court and not by the Magistrate for
the offences which are exclusively tried by
the Court of Sessions itself. It is settled law
that charge sheet constitute prima facie
evidence constituting the offence for the
proceedings and it is only the learned trial
Judge after assessing the material on record
and after affording the opportunity of
hearing to the contesting parties, framed
charges against the accused persons. Prior
to this, the avenue has been created by the
legislation giving a weapon of discharge in
the hands of accused so as to rely upon the
material collected by the police during
investigation and citing the loopholes and
pitfalls in the prosecution story and the
material collected by the Investigating
Officer of the case during investigation,
and
after
assessing
those
materials
collected during investigation and critically
examined them, if the court finds that there
is no sufficient or confidence generating
material collected in the investigation, the
trial court well within its power to
discharge the accused and record the
reasons for doing so.

In the instant case, except a
typical sweeping remark by the informant
and her parent that entire family used to
harass her for the additional dowry of
Rs.20 lacs or Rs.50 lacs ?? Thereafter, the
applicant and his son Chirag Bansal used to
seek sexual favours from her, putting her
head in the commode, pissing in her mouth,
all these are nothing but exaggaration and
magnifying the incident to thousands fold
for obvious reasons and purpose. Learned
trial Judge ought to have weighed entire
material on record specifically the fact that
the Mukesh Bansal and his wife since
30.04.2017 are out of scene and they have
got feeble reason or occasion for them to
demand additional dowry.

[18] For the purpose of determining
that whether there is sufficient ground for
proceeding against the accused, the Court
assess compartively wider discretion in
exercise of which it can determine the
question, whether the material on record, if
undisputed is such on the basis of which
conviction can be of such reasonable
possibility. Only the prima facie case is to
be seen whether the case is beyond
reasonable doubt or not, cannot be assessed
at this stage. If the Court comes to the
conclusion that the commission of the
offence, is probable consequence, prima
facie case of framing charge exist then the
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1119
charges would be framed. At the stage of
framing the charge, probative value of
materials cannot be gone into. The basic
underline idea behind section 227 and 228
Cr.P.C. is to ensure that the court should be
satisfied that the accusation made against
the accused is not frivolous and fictitious
but on the contrary, some material for
proceeding against the named accused
persons.

[19] It would be hazardous to act
upon the discrepancies in the material
collected during investigation unless they
are so apparent and glaring as to adversly
affect the credibility of the prosecution case
in its totality, without affording the
reasonable opportunity to the prosecution
to substantiate the allegations. The only
prima facie case is to be seen while
assessing all the facts and circumstances,
materials collected during investigation,
strict standard or proof while evaluating the
material to ascertain, whether there is prima
facie case against the accused or not.

Sri Srivastava, learned Senior
Counsel appearing on behalf of the
revisionist
in
order
to
buttress
his
submissions, has relied upon the celebrated
judgment of Hon'ble the Apex Court in the
case of State of Karnataka Vs. L.
Munishwamy and others reported in 1977
AIR 1489, paragraph nos.7 and 8 of which
are quoted hereinbelow :-

"The
second
limb
of
Mr.
Mookerjee's argument is that in any event
the High Court could not take upon itself
the task of assessing or appreciating the
weight of material on the record in order to
find whether any charges could be legiti-
mately framed against the respondents.
So long as there is some material on the
record to connect the accused with the
crime, says. the learned counsel, the case
must go on and the High Court has no
jurisdiction. to put a precipitate or
premature end to the proceedings on the
belief that the prosecution is not likely to
succeed. This, in our opinion, is too broad
a proposition to accept.

-Section 227 of the Code of
Criminal Procedure, 2 of 1974, provides
that:

"If, upon consideration of the
record of the case and the documents
submitted there- with, and after hearing the
submissions of the accused and the
prosecution in this be- half, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he
shall discharge the accused and record his
reasons for so doing."

This section is contained in
Chapter XVIII called "Trial Before a
Court of Sessions". It is clear from the
provi- sion that the Sessions Court has
the power to discharge an accused if
after perusing the record and hearing the
parties he comes to the conclusion, for
reasons to be re- corded, that there is not
sufficient ground for proceeding against
the accused. The object of the provision
which requires the Sessions Judge to
record his reasons is to enable the
superior court to examine the correctness
of the reasons for which the Sessions
Judge has held that there is of is not
sufficient ground for proceeding against
the accused. The High Court therefore is
entitled to go into the reasons given by
the Sessions Judge in support of his order
and to determine for itself whether the
order is justified by the facts and
circumstances
of
the
case.................................
1120 INDIAN LAW REPORTS ALLAHABAD SERIES

Let us then turn to the facts of the
case to see, wheth- er the High Court was
justified in holding that the proceed- ings
against the respondents ought to be
quashed in order to prevent abuse of the
process of the court and in order to secure
the ends of justice. We asked the State
counsel time and again to point out any
data or material on the basis of which a
reasonable likelihood of the respondents
being
convicted
of
any
offence
in
connection with the attempted murder of
the complainant could be predicated. A few
bits here and a few bits there on which the
prosecution proposes to rely are woefully
inadequate for connecting the respond-
ents with the crime, howsoever, skilfully
one may attempt to weave those bits into a
presentable whole. There is no material on
the record on which any tribunal could
reason- ably convict the respondents for
any offence connected with the assault on
the complainant. It is undisputed that the
respondents were nowhere near the scene
of offence at the time of the assault. What is
alleged against them is, that they had
conspired to commit that assault. This, we
think, is one of those cases in which a
charge of conspiracy is hit upon for the
mere reason that evidence of direct
involvement of the accused is lacking. we
have been taken through the statements
recorded by the police during the course of
investigation and the other material. The
worst that can be said against the
respondents on the basis thereof is that they
used to meet one another frequently after
the dismissal of accused No. 1 and prior to
the commission of the assault on the
complainant. Why they met, what they said,
and whether they held any deliberations at
all, are matters on which no witness has
said a word. In the circumstances, it would
be a sheer waste of public time and money
to permit the proceedings to continue
against the respondents. The High Court
was therefore justified in holding that for
meeting the ends of justice the proceedings
against the respondents ought to be
quashed."

[20] Hammering further, learned
Senior Counsel, Sri Srivastava has relied
upon the recent judgment of Hon'ble the
Apex Court in the case of Sanjay Kumar
Rai Vs. State of Uttar Pradesh and
another reported in 2021 AIR(SC) 2351 in
which three Judges Bench of the Court has
pointed out and underlined need of
Discharge in the Cr.P.C., paragraph no.16
of which is quoted hereinbelow :-

"16. Further, it is well settled that
the trial court while considering the
discharge application is not to act as a
mere post office or mouth piece to the
prosecution. The Court has to sift through
the evidence in order to find out whether
there are sufficient grounds to try the
suspect. The court has to consider the
broad probabilities, total effect of evidence
and documents produced and the basic
infirmities appearing in the case and so on.
[Union of India v. Prafulla Kumar
Samal]. Likewise, the Court has sufficient
discretion to order further investigation in
appropriate cases, if need be. "

[21] In this regard, there are two
earlier celebrated judgment of Hon'ble the
Apex Court on the issue of Discharge i.e.
(i) Union of India Vs. Prafulla Kumar
Samal reported in 1979 3 SCC 4 ; (ii)
Dilwar
Balu
Kurane
Vs.
State
of
Maharashtra reported in (2002) 2 SCC
135. In Prafulla Kumar Samal's case,
scope of Section 227 of Cr.P.C. was
considered and after adverting to various
judgments, the Court has enumerated
following principles :-
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1121

(i) The Judge while considering
the question of framing the charges under
section 227 of the Code has the
undoubted powers 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.

(ii) 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.

(iii) 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.

[22] Similarly, in the case of
Dilawar Balu Kurane (supra), the
principle enunciated in Prafull Kumar
Samal case has been reiterated as held
that the jurisdiction under section 227 of
the Cr.P.C., "Judge which under the
present Code, an experience Court,
cannot act merely as a postoffice or a
mouthpiece of the prosecution but has to
consider the broad prababilities of the
case, the total impact of the evidence and
the documents produced before the court,
the basic infirmities appearing in the case
and so on. It is however, does not mean
that Judge should make a roving inquiry
into the pros and cons of the matter and
weigh the evidence as if he is conducting
a trial. The Court is not required to hold a
mini-trial at the state of Discharge.

[23] After evaluating the material and
various
case
laws
discussed
in
the
judgment of Sajjan Kumar VS. Central
Bureau of Investigation, reported in 2010
(9) SCC 368 Hon'ble the Apex Court has
broadly formulated the parameters to be
exercised while dealing the case under
section 227 and 228 of Cr.P.C. Paragraph
no.17 of the aforesaid judgment is quoted
as under :-

"17) Exercise of jurisdiction
under Sections 227 & 228 of Cr.P.C.

On
consideration
of
the
authorities about the scope of Section 227
and 228 of the Code, the following
principles emerge:-

(i) The Judge while considering
the question of framing the charges under
Section 227 of the Cr.P.C. 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.
The test to determine prima facie case
would depend upon the facts of each case.

ii) 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.

iii) The Court 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 etc.
However, at this stage, there cannot be a
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.

iv) If on the basis of the material
on record, the Court could form an opinion
that the accused might have committed
offence, it can frame the charge, though for
conviction the conclusion is required to be
proved beyond reasonable doubt that the
accused has committed the offence.

v) At the time of framing of the
charges, the probative value of the material
on record cannot be gone into but before
framing a charge the Court must apply its
judicial mind on the material placed on
record and must be satisfied that the
commission of offence by the accused was
possible.

vi) At the stage of Sections 227
and 228, the Court is required to evaluate
the material and documents on record with
a view to find out if the facts emerging
therefrom taken at their face value
discloses the existence of all the ingredients
constituting the alleged offence. For this
limited purpose, sift the evidence as it
cannot be expected even at that 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.

vii) If two views are possible and one of
them gives rise to suspicion only, as
distinguished from grave suspicion, the
trial Judge will be empowered to discharge
the accused and at this stage, he is not to
see whether the trial will end in conviction
or acquittal."

Toing the similar lines in recent
judgment of Tarun Ji Tejpal Vs. State of
Goa reported in (2015) 14 SCC 481, same
ratio has been reiterated as in the case of
Sajjan Kumar's case(supra).

[24] Now, coming to the precise
question involved in the present case has to
level the omnibus allegations of dowry
related harassment of all the family
members connected with the husband in
recent judgment of Hon'ble the Apex Court
in the case of K. Subba Rao Vs. State of
Telangana reported in 2018 (14) SCC 452 ,
it was observed by Hon'ble the Apex Court
that the Court should be extremely careful
and vigilant in proceeding against the
distant relative of the husband in the crimes
pertaining to the dispute even in dowry
deaths. All the relatives of the husband
should not be roped in on the basis of
omnibus
allegations
unless
Specific
Instances of the involvement in the crime
as alleged and surfaced during investigation
with materials certainty. The sweeping and
general allegations are very frequent nowa-days and if such people are put to trial on
such a casual and omnibus allegations, it
would bound to lead the disastreous result
and
unwarranted
hardships
to
those
persons.

In the instant case where her inlaws Mukesh Bansal and Manju Bansal
remained in the company of their warring
son and daughter-in-law barely for one year
and four months and 25 days, left their
company on 30.04.2017. Since, thereafter,
the affair is between son and the victim
alone. In addition to this, in their respective
statement under section 161 Cr.P.C., a
casual and sweeping allegations were
fastened against them also when they are
not in position to demand any additional
dowry. It was further argued that victim
priot to 03.10.2018, has not made a single
whisper
regarding
dowry
relatedd
6 All. Mukesh Bansal Vs. State of U.P. & Anr.
1123
harassment and atrocities upon her by her
parent-in-law. Then, the court has got no
reason to presume that the in-laws were
also active participants in extending dowry
related harassment from the distance. It is
urged by learned counsel for the revisionist
that obnoxious allegations are motivated
one, driven by a sheer retaliation without
any iota of any sanctity to it.

Sri Srivastava, learned Senior
Counsel also relied upon the latest
judgment of Hon'ble the Apex Court in the
case of Kahkashan Kausar@Sonam Vs.
State of Bihar in Criminal Appeal No.195
of 2022 decided on 01.02.2022, following
observations were made by the Apex Court
:-

"18.
The
above-mentioned
decisions clearly demonstrate that this
court has at numerous instances expressed
concern
over
the
misuse
of section
498A IPC and the increased tendency of
implicating relatives of the husband in
matrimonial disputes, without analysing the
long term ramifications of a trial on the
complainant as well as the accused. It is
further manifest from the said judgments
that false implication by way of general
omnibus allegations made in the course of
matrimonial dispute, if left unchecked
would result in misuse of the process of
law. Therefore, this court by way of its
judgments has warned the courts from
proceeding against the relatives and inlaws of the husband when no prima facie
case is made out against them."

SUBMISSIONS ADVANCED BY
OPPOSITE PARTY NO.2 :-

[25] Per contra, Sri Raj Kumar
Kesari, learned counsel for the complainant
has drawn the attention of the Court to the
161 and 164 Cr.P.C. statements of the
victim annexed as Annexure-4 to the
revision. The most interesting feature of the
entire counter affidavit is that there is not a
single averment in the entire affidavit
which is dedicated exclusively to parent-inlaw Mukesh and Manju Bansal. As usual,
vague and sweeping allegations are made
not only in the FIR but also in the
averments of the counter affidavit qua her
parent-in-law.

[26] I have perused the statement
carefully. Being the youngest among the
children of Rajesh Kumar Goyal and
Sandhya
Goyal,
opposite
party
no.2
completed her B.Com Hons. from Sri Ram
College
of
Commerce,
New
Delhi
University. She is aged about 28 years and
got
married
with
Sahib
Bansal
on
05.12.2015. Besides Mukesh Bansal and
Manju Bansal, she has included Chirag
Bansal, unmarried devar and Shipra Jain,
married nanad(sister-in-law). The couple
were blessed with daughter Raina Bansal.
The date of incident is 03.04.2018 and from
the 161 Cr.P.C. statement, its questionaire
and 164 Cr.P.C.