# Smt. Mewati Devi & Anr. Revisionists v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 4 ILRA 933
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Criminal Revision No. 3867 of 2019
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mewati-devi-anr-revisionists-v-state-of-u-p-anr-opp-parties-51872
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Code
of Criminal Procedure, 1973 - Sections
161 & 227 - Against framing of charge -
From perusal of trial court records, it
transpired
that
on
application
of
informant,
trial
court
vide
directed
framing of charges u/s 498-A, 304-B IPC
and Section 3/4 D.P. Act - Against this,
accused filed Application U/s 482, wherein
High Court directed applicants to file
discharge application before trial court for
decision as per law - In compliance of
order
of
High
Court,
accused
filed
application for discharge from charge, trial
court vide impugned order held that
charge u/s 304-B is not made out and
modified charge after dropping Section
304-B IPC and passed order by framing
charge u/s 498-A and 302 IPC - Held,
death of deceased took place after more
than seven years of her marriage with
934 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and trial court rightly dropped
charge u/s 304-B and directed for framing
charge u/s 302 IPC and in impugned
order, trial court gave reasons for framing
charge u/s 498-A against accused - Since
trial court has not prima facie considered
St.ment of witnesses and contents of
postmortem report regarding death of
deceased
and
nature
of
injuries
of
deceased given in postmortem report, trial
court has not given sufficient reason for
framing charge u/s 302 IPC - Thus,
criminal
revision
partly
allowed
-
Impugned order directing framing of
charge u/s 302 IPC set aside, matter
remanded. (Para 16,18,19)

Revision partly allowed. (E-13)

List of Cases cited:

## Text

4 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
933
Das, according to which, his gross salary is
Rs.97,227.45/- and from that monthly
salary, house rent recovery, furniture
recovery, housing loan, car loan, income
tax, contributory pension fund and income
tax is being deducted.

21. It is settled law that only statutory
deductions as well as income tax can be
taken into consideration while determining
the net salary of the revisionist no. 1. The
payments made on other heads cannot be
deducted
from
his
gross
salary.
Considering the maintenance of opposite
party no. 2, Smt. Bharti Devi and
educational expenses of her son, the trial
court has fixed Rs.3000/- per month to the
opposite party no. 2 and Rs. 2,000/- to her
minor
son
as
interim
maintenance
allowance.

22. From the above, the provision for
interim maintenance is a social welfare
measure. It is provided to protect the minor
children and old parents from hunger
destitution and vagrancy.

23. From above discussion, I am of the
considered view that while granting Rs.
3000/- to opposite party no. 2, Smt. Bharti
Devi and Rs. 2000/- to her son,Harshit, as
maintenance allowance, the trial court has
not committed any illegality or irregularity
or jurisdictional error. There is no merit in
the criminal revision. The criminal revision
is dismissed. However, I clarify that the
present order as well as orders which have
been passed by the appellate court shall not
come in the way of a final adjudication on
the merits of the complaint by the
Magistrate in accordance with law. The
interim maintenance allowance shall be paid
till 10th of each month. The arrears shall be
paid over within a period of four months
from today by equal monthly instalments.

24. Let the copy of this order be sent
to the trial court/court concerned for
communication.
----------
(2024) 4 ILRA 933
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 3867 of 2019

Smt. Mewati Devi & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Satyendra Narayan Singh, Sri Atmaram
Nadiwal, Sri Dinesh Kumar Yadav, Sri
Ravindra Prakash Srivastava, Sri Shesh
Narain Mishra

Counsel for the Opp. Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Code
of Criminal Procedure, 1973 - Sections
161 & 227 - Against framing of charge -
From perusal of trial court records, it
transpired
that
on
application
of
informant,
trial
court
vide
directed
framing of charges u/s 498-A, 304-B IPC
and Section 3/4 D.P. Act - Against this,
accused filed Application U/s 482, wherein
High Court directed applicants to file
discharge application before trial court for
decision as per law - In compliance of
order
of
High
Court,
accused
filed
application for discharge from charge, trial
court vide impugned order held that
charge u/s 304-B is not made out and
modified charge after dropping Section
304-B IPC and passed order by framing
charge u/s 498-A and 302 IPC - Held,
death of deceased took place after more
than seven years of her marriage with
934 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and trial court rightly dropped
charge u/s 304-B and directed for framing
charge u/s 302 IPC and in impugned
order, trial court gave reasons for framing
charge u/s 498-A against accused - Since
trial court has not prima facie considered
St.ment of witnesses and contents of
postmortem report regarding death of
deceased
and
nature
of
injuries
of
deceased given in postmortem report, trial
court has not given sufficient reason for
framing charge u/s 302 IPC - Thus,
criminal
revision
partly
allowed
-
Impugned order directing framing of
charge u/s 302 IPC set aside, matter
remanded. (Para 16,18,19)

Revision partly allowed. (E-13)

List of Cases cited:

1. Amit Kapoor Vs Ramesh Chander & anr.,
(2012) 9 SCC 460, (Paras 12, 13, 28 to 30)

2. Ghulam Hassan Beigh Vs Mohammad
Maqbool Magrey & ors. in S.L.P. (Crl.) No. 4599
of 2021, (Paras 15 to 17, 25)

3. Union of India Vs Prafulla Kumar Samal &
anr., (1979) 3 SCC 4, (Paras 10)

4. Dipakbhai Jagdishchandra Patel Vs St. of
Guj., (2019) 16 SCC 547, (Paras 15, 23)

5. Sajjan Kumar Vs C.B.I, (2010) 9 SCC 368,
(Para 21)

6. St. of Karn. Vs M.R. Hiremath, (2019) 7 SCC
515

(Delivered by Hon'ble Surendra Singh-I, J.)

1. The present criminal revision has
been filed under Section 397/401 Cr.P.C.,
the revisionists have assailed the impugned
order dated 3.9.2019 passed by the Ist
Additional Sessions Judge Basti in Sessions
Trial No. 35 of 2015 (State Vs. Ram Suresh
and others) arising out of Case Crime No.
627 of 2014 under Section 498-A, 304-B
and Section 3/4 of D.P.Act P.S. Paikoliya,
District- Basti. By the impugned order, the
trial court has rejected the application
under
Section
227
Cr.P.C.
of
the
revisionists Smt. Mewati Devi and Ram
Suresh and has directed to frame charge
under Section 498-A and 302 IPC against
them.

2. It has been submitted by learned
counsel
for
the
revisionist
that
the
Investigating Officer had found that the
occurrence has taken place after more than
seven years of marriage and therefore
charge-sheet has been submitted under
Section 306 IPC against them. The learned
trial court vide order dated 20.5.2019
instead of Section 306 IPC altered the
charge under Sections 498-A, 304-B and
Section 3/4 of D.P. Act, subsequently,
revisionist filed a discharge application
under Section 227 Cr.P.C. in compliance of
the order dated 27.6.2019 passed by the coordinate Bench of this court in Application
u/s 482 No. 23601 of 2001, then the trial
court vide impugned order dated 3.9.2019
held that charge under Section 304-B is not
made out and modified the charge after
dropping Section 304-B IPC and passed the
order by framing the charge under Section
498-A and 302 IPC.

3. It has been further submitted that
the trial court passed the impugned order
against the weight of evidence on record
and without application of judicial mind
which is liable to be quashed.

4. Learned AGA as well as learned
counsel for the informant have opposed the
criminal revision and submitted that the
revisionist no.1 is the mother-in-law and
revisionist no.2 is husband of the deceased
Chandrakanti. In the FIR their direct role
has been assigned in committing the
4 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
935
murder of deceased-Chandrakani for not
providing the additional demand of dowry.
During
investigation,
the
prosecution
witnesses
have
also
supported
the
prosecution case as well as during trial,
P.W.-1 Mani Ram Verma and P.W.-2
Harishchandra . The revisionist harassed
the deceased for obtaining additional dowry
during non-fulfillment of the demand of
additional dowry. They have murdered her
by burning.

5. From the perusal of the FIR, which
is annexed as annexure no.1 to the revision
No. 324 of 2023, it transpires that the
Maniram Verma submitted a written report
in police station Paikoliya, District Basti on
9.9.2014
at
20:03
o'clock
regarding
occurrence dated 31.8.2014 alleging that
her daughter Chandrak29anti was married
to RamSuresh s/o Chhotelal five years
earlier. He had given dowry as per his
status but her daughter's husband and his
family member were not satisfied with the
dowry and they used to harass his daughter
to obtain golden chain and motorcycle. Her
daughter had told him about the dowry
demand made by her husband, mother-inlaw, father-in-law and devars. Due to non-
fulfilment of their demand for additional
dowry,
on
31.8.2014
her
husband
Ramsuresh, her father-in-law Chhotelal and
mother-in-law Mewati Devi and Devar
Umesh and Gopal sprinkled kerosene oil on
the Chandrkali and brutally burned her.
Due to the burn injury she died on 1.9.2014
at about 8 p.m. in Dr. Shyama Prasad
Mukharji Hospital, Lucknow, and on
receiving information the informant visited
the
hospital
and
to
participated
in
postmortem and cremation ceremony of his
daughter. He lodged an FIR on 9.9.2014.

6. Before examining the merits of the
present case, the ambit, scope and power of
the Sessions Court as well as the High
Court u/s 397 Cr.P.C. should be discussed
and ascertained.

7. The Hon'ble Apex Court in Amit
Kapoor
Vs.
Ramesh
Chander
and
Another, (2012) 9 SCC 460 in paragraph
nos. 12 and 13 of its judgement has
narrated the ambit and scope of revision by
the High Court u/s 397 Cr.P.C. which are
as follows :

12. Section 397 of the Code vests
the court with the power to call for and
examine the records of an inferior court
for the purposes of satisfying itself as to
the
legality
and
regularity
of
any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well-founded error
and it may not be appropriate for the court
to scrutinise the orders, which upon the
face of it bears a token of careful
consideration and appear to be in
accordance with law. If one looks into the
various judgments of this Court, it
emerges that the revisional jurisdiction
can be invoked where the decisions under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.

13. Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
cannot be exercised in a routine manner.
One of the inbuilt restrictions is that it
should not be against an interim or
936 INDIAN LAW REPORTS ALLAHABAD SERIES
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether
the charge has been framed properly and
in accordance with law in a given case, it
may be reluctant to interfere in exercise of
its revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the CrPC.

10. In paragraph nos. 17 and 19
of the aforesaid judgement, the Apex
Court has narrated that before framing a
charge,
what
documents
should
be
considered by the trial court. It has also
provided about the extent of evidence
required for framing of a charge. In
paragraph no. 20 of the aforesaid
judgement, the Apex Court has compared
the power and extent of jurisdiction of the
High Court u/s 397 Cr.P.C. which is given
hereunder: :

20. The jurisdiction of the court
under Section 397 can be exercised so as
to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
be.
Though
the
section
does
not
specifically use the expression "prevent
abuse of process of any court or otherwise
to secure the ends of justice", the
jurisdiction under Section 397 is a very
limited one. The legality, propriety or
correctness of an order passed by a court
is the very foundation of exercise of
jurisdiction
under
Section
397
but
ultimately it also requires justice to be
done. The jurisdiction could be exercised
where there is palpable error, noncompliance with the provisions of law, the
decision is completely erroneous or where
the
judicial
discretion
is
exercised
arbitrarily. On the other hand, Section
482 is based upon the maxim quando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it
also gives all those things without which
the thing itself would be unavoidable.
T29he section confers very wide power on
the Court to do justice and to ensure that
the process of the court is not permitted
to be abused.

8. After comprehensive survey and
discussion of the judgements of the
Hon'ble Supreme Court has mentioned the
factors to be considered by the trial court
while disposing of application u/s 227
Cr.P.C. and framing charge u/s 228 Cr.P.C.
The Apex Court in Amit Kapoor (supra)
has given following directions :

27.2. The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion
and
where
the
basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3. The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing
of charge or quashing of charge.

27.9. Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
4 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
937
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction;
the
court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10. It is neither necessary nor
is the court called upon to hold a fullfledged enquiry or to appreciate evidence
collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.

27.11. Where allegations give
rise to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

27.12.
In
exercise
of
its
jurisdiction under Section 228 and/or
under Section 482, the Court cannot take
into
consideration
external
materials
given by an accused for reaching the
conclusion that no offence was disclosed
or that there was possibility of his
acquittal. The Court has to consider the
record and documents annexed therewith
by the prosecution.

9. The statutory provisions to be
considered in the case with a view to
framing of charge or discharging the
accused as given in Sections 226, 227 and
228 Cr.P.C. has been laid down by the
Hon'ble Supreme Court in the case of
Ghulam Hassan Beigh Vs. Mohammad
Maqbool Magrey & Ors. in S.L.P. (Crl.)
No. 4599 of 2021 :

15. Section 226 of the CrPC
corresponds to sub-section (1) of the old
Section 286 with verbal changes owing to
the abolition of the jury. Section 286 of the
1898 Code reads as under:-

"286.(1) In a case triable by jury,
when the jurors have been in chosen or, in
any other case, when the Judge is ready to
hear the case, the prosecutor shall open his
case by reading from the Indian Penal or
other law the description of the offence
charged, and stating shortly by what
evidence he expects to prove the guilt of the
accused. (2) The prosecutor shall then
examine his witnesses."

Section 226 of the 1973 Code
reads thus:

"226.
Opening
case
for
prosecution.─ When the accused appears
or is brought before the Court in
pursuance of a commitment of the case
under section 209, the prosecutor shall
open his case by describing the charge
brought against the accused and stating
by what evidence he proposes to prove the
guilt of the accused."

Section 226 of the CrPC permits
the prosecution to make the first impression
regards a case, one which might be difficult
to dispel. In not insisting upon its right
under Section 226 of the CrPC, the
prosecution would be doing itself a
disfavour. If the accused is to contend that
the case against him has not been
explained owing to the non-compliance
with Section 226 of the CrPC, the answer
would be that the Section 173(2) of the
CrPC report in the case would give a fair
idea thereof, and that the stage of framing
of charges under Section 228 of the CrPC
is reached after crossing the stage of
Section 227 of the CrPC, which affords
both the prosecution and accused a fair
938 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity to put forward their rival
contentions.

16. Section 227 of the CrPC
reads thus:

"227.
Discharge.─
If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this behalf,
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."

17. Section 228 of the CrPC
reads thus:

"228. Framing of charge.- (1) If,
after such consideration and hearing as
aforesaid,the Judge is of opinion that there
is ground for presuming that the accused
has committed an offence which-

(a) is not exclusively triable by the
Court of Session, he may frame a charge
against the accused and, by order, transfer
the case for trial to the Chief Judicial
Magistrate, or any other Judicial Magistrate
of the first class and direct the accused to
appear before the Chief Judicial Magistrate,
or as the case may be, the Judicial
Magistrate of the first class, on such date as
he deems fit, and thereupon such Magistrate
shall try the offence in accordance with the
procedure for the trial of warrant cases
instituted on a police report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the Judge frames any
charge under clause (b) of sub-section (1),
the charge shall be read and explained to
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

10. While framing charge, the Court
has to ensure that a prima facie case must
be made out against the accused. The
Hon'ble Apex Court in Union of India Vs.
Prafulla Kumar Samal and another,
(1979) 3 SCC 4, considered the scope of
enquiry a judge is required to make while
considering the question of framing of
charges. After an exhaustive survey of the
case law on the point, in paragraph no. 10
of the judgement, has laid down the
following principles :

(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 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
939

(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.

11. The Hon'ble Apex Court in
paragraph nos. 15 and 23 of its judgement
in Dipakbhai Jagdishchandra Patel Vs.
State of Gujarat, (2019) 16 SCC 547, has
elaborately discussed the law relating to the
framing of charge and discharge of the
accused which is as under :

15. We may profitably, in this
regard, refer to the judgment of this
Court in State of Bihar v. Ramesh Singh
[State of Bihar v. Ramesh Singh, (1977) 4
SCC 39 : 1977 SCC (Cri) 533 : AIR 1977
SC 2018] wherein this Court has laid
down the principles relating to framing
of charge and discharge as follows: (SCC
pp. 41-42, para 4)

"4. ... Reading Sections 227 and
228 together in juxtaposition, 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 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.
940 INDIAN LAW REPORTS ALLAHABAD SERIES
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 full-fledged 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 the
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.

12. In Sajjan Kumar Vs. C.B.I,
(2010) 9 SCC 368, the Hon'ble Apex
Court after elaborately discussing the scope
29 of Sections 227 and 228 Cr.P.C. has laid
down principles which emerge therefrom in
paragraph no. 21 which is as under :

21. On consideration of the
authorities about the scope of Sections
227 and 228 of the Code, the following
principles emerge:

(i) The Judge while considering
the question of framing the charges under
Section 227 CrPC 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
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.
4 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
941

(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 disclose 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.

13. In the case of State of
Karnataka Vs. M.R. Hiremath, (2019) 7
SCC 515, the Hon'ble Apex Court has
laid down principles to be considered by
the
Magistrate
while
dealing
with
discharge application of the accused u/s
239 Cr.P.C. in warrant trial case. The
directions given by the Apex Court is
equally applicable to the discharge of
accused u/s 227 Cr.P.C.

14. In paragraph no. 25 of Ghulam
Hassan Beigh (supra), the Apex Court
held as under :

25. In the case of Asim Shariff
v. National Investigation Agency, (2019)
7 SCC 148, this Court, to which one of us
(A.M. Khanwilkar, J.) was a party, in so
many words has expressed that the trial
court is not expected or supposed to hold
a
mini
trial
for
the
purpose
of
marshalling the evidence on record. We
quote the relevant observations as
under:-

"18.
Taking
note
of
the
exposition of law on the subject laid down
by this Court, it is settled that the Judge
while considering the question of framing
charge under Section 227 CrPC in
sessions cases(which is akin to Section
239 CrPC pertaining to warrant cases)
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; where the material placed before the
Court discloses grave suspicion against
the accused which has not been properly
explained, the Court will be fully justified
in framing the charge; by and large if
two views are possible and one of them
giving
rise
to
suspicion
only,
as
distinguished
from
grave
suspicion
against the accused, 3 2018(13) SCC 455
4 2019(6) SCALE 794 the trial Judge will
be justified in discharging him. It is thus
clear that while examining the discharge
application filed under Section 227
CrPC, it is expected from the trial Judge
to exercise its judicial mind to determine
as to whether a case for trial has been
made out or not. It is true that in such
proceedings, the Court is not supposed to
hold a mini trial by marshalling the
evidence on record.

15. In paragraph nos. 28, 29 and 30 of
the judgement in Amit Kapoor (supra),
942 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Supreme Court has held as
hereunder :

28. At this stage, we may also
notice that the principle stated by this
Court
in
Madhavrao
Jiwajirao
Scindia[(1988) 1 SCC 692 : 1988 SCC
(Cri)
234]
was
reconsidered
and
explained in two subsequent judgments
of this Court in State of Bihar v. P.P.
Sharma [1992 Supp (1) SCC 222 : 1992
SCC (Cri) 192 : AIR 1991 SC 1260] and
M.N. Damani v. S.K. Sinha [(2001) 5
SCC 156 : 2001 SCC (Cri) 823 : AIR
2001 SC 2037] . In the subsequent
judgment, the Court held that, that
judgment did not declare a law of
universal application and what was the
principle relating to disputes involving
cases of a predominantly civil nature
with or without criminal intent.

29. In the light of the above
principles, now if we examine the findings
recorded by the High Court, then it is
evident that what weighed with the High
Court was that firstly it was an abuse of
the process of court and, secondly, it was a
case of civil nature and that the facts, as
stated, would not constitute an offence
under Section 306 read with Section 107
IPC. Interestingly and as is evident from
the findings recorded by the High Court
reproduced supra that "this aspect of the
matter will get unravelled only after a fullfledged trial", once the High Court itself
was of the opinion that clear facts and
correctness of the allegations made can be
examined only upon full trial, where was
the need for the Court to quash the charge
under Section 306 at that stage. Framing
of charge is a kind of tentative view that
the trial court forms in terms of Section
228 which is subject to final culmination
of the proceedings.

30. We have already noticed that
the legislature in its wisdom has used the
expression "there is ground for presuming
that the accused has committed an
offence". This has an inbuilt element of
presumption once the ingredients of an
offence with reference to the allegations
made are satisfied, the Court would not
doubt the case of the prosecution unduly
and extend its jurisdiction to quash the
charge in haste. A Bench of this Court in
State of Maharashtra v. Som Nath Thapa
[(1996) 4 SCC 659 : 1996 SCC (Cri) 820]
referred to the meaning of the word
"presume" while relying upon Black's
Law Dictionary. It was defined to mean
"to believe or accept upon probable
evidence"; "to take as proved until
evidence to the contrary is forthcoming".
In other words, the truth of the matter has
to come out when the prosecution
evidence is led, the witnesses are crossexamined
by
the
defence,
the
incriminating material and evidence is put
to the accused in terms of Section 313 of
the Code and then the accused is provided
an opportunity to lead defence, if any. It is
only upon completion of such steps that
the trial concludes with the court forming
its final opinion and delivering its
judgment. Merely because there was a
civil transaction between the parties would
not by itself alter the status of the
allegations
constituting
the
criminal
offence.

16. From the perusal of the trial court
records it transpired that on the application
of informant the trial court vide order dated
20.5.2019 passed the order for framing the
charge under Section 498-A 304-B and
Section 3⁄4 D.P. Act. Against this order the
accused filed an Application u/s 482 No.
23601 of 2019 (Ram Suresh Verma And
Another Vs. State of U.P. And Another) in
4 All. Smt. Mewati Devi & Anr. Vs. State of U.P. & Anr.
943
this Court. The High Court vide its order
dated 27.6.2019 directed the applicants/
accused that since the charges under
Sections- 304-B, 498-A and 3/4 of D.P. Act
has not yet been framed, they shall submit
discharge application before the trial court
and the trial shall dispose of the application
in accordance with law.

17. In compliance of the order of this
Court dated 27.6.2019, the accused filed an
application 72 (kha) for discharge from the
charge under Sections- 304-B, 498-A and
3/4 of D.P. Act which was disposed of vide
order dated 3.9.2019. In the impugned
order, the trial court has mentioned that
while passing the order dated 20.5.2019 the
predecessor of the present judge had not
considered the caste certificate, domicile
certificate, marriage certificate and date of
birth certificate, the inquest report of the
deceased, Chandrakanti presuming that the
deceased died within seven years of her
marriage, the trial court has directed to
frame charges against accused Ram Suresh
under Sections- 304-B, 498-A and 3/4 of
D.P. Act. In the impugned order dated
3.2.2019, the trial court has mentioned that
Informant/P.W.1 Mani Ram Verma as well
as P.W.-2 Harish Chadra were witness in
the inquest report. The Investigating
Officer has mentioned that the date of
marriage of the deceased in the year 1999
and year of her Vidai ceremony to
matrimonial home in 2004,. The deceased
has a daughter of six years. The trial court
has taken taken into consideration the caste
certificate and domicile certificate of the
deceased Chandrakanti which was issued in
2007 and the birth certificate dated
24.10.2008 of her daughter Sneha and the
statement of the witnesses recorded under
Section 161 CrP.C. to the effect that the
deceased Chandrakanti had not conceived
any child for sometime after marriage and
therefore, she was under depression and
had committed suicide. She did after more
than seven years of her marriage to O.P.
No.2 and since no presumption under
Section 113 B of Indian Evidence Act
regarding dowry death can be made and
altered the charge and directed that instead
of Sections- 304-B, 498-A and 3/4 of D.P.
Act. Charge under Sections 498-A, 302
IPC was framed against the accused. In the
impugned order
the
trial
court
has
mentioned that since that P.W. 1 Maniram
Verma and P.W. -2 Harish Chandra in their
deposition in the Court has stated that
accused sprayed kerosene oil on the
deceased resulting into her death and other
evidence regarding death of the deceased is
yet to be recorded. The trial court directed
the charge under Section 302 IPC along
Section 498-A IPC be framed against the
accused. In the impugned order, the trial
court has not discussed the statement of
other witness recording under Section 161
Cr.P.C. regarding involvement of the
accused in commission of murder of the
deceased and also not discussed the
postmortem
report
and
whether
postmortem report supports framing of
charge under Section 302 IPC, the
postmortem report of the deceased is not on
record of the revision petition.

18. From the aforesaid discussion, I
am of the considered view the death of the
deceased took place after more than seven
years of her marriage with the accused
RamSuresh and the trial court has rightly
dropped the charge under Section 304-B
and directed for framing charge under
Section 302 IPC and in the impugned, the
trial court has given reasons for framing
charge under Section 498-A against the
accused. Since the trial court has not prima
facie considered the statement of the
witnesses under Section 161 Cr.P.C. and
944 INDIAN LAW REPORTS ALLAHABAD SERIES
the
contents
of
postmortem
report
regarding death of the deceased and nature
of injuries of the deceased given in the
postmortem report, the trial court has not
given sufficient reason for framing charge
under Section 302 IPC.

19. From the above discussion, this
Court is of the opinion that the criminal
revision should be partially allowed. The
criminal revision is partially allowed and
the portion of the impugned order directing
the framing of charge under Section 302
IPC is set aside. The trial court in light of
the above discussion shall pass reasoned
order observing that apart from Section
498-A, the charge against the accused
should be framed under Section 306 IPC or
302 IPC.

20. Since much time has passed from
the date of filing of the charge-sheet, the
trial shall pass an order for framing of
charges within a period of two months in
accordance with law from the date of the
productions of a certified copy of this
order.
----------
(2024) 4 ILRA 944
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.03.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 3953 of 2023

Smt. Maya Devi ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Narendra Kumar

Counsel for the Respondents:
G.A., Sri Dev Prakash Sharma, G.A., Ms.
Priyanka Devi

Criminal Law - Indian Penal Code, 1860 -
498-A,
323,
504
&
506
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Code
of Criminal Procedure, 1973 - Section 125
- Against maintenance order - From
perusal
of
revisional
court
record
disclosed that revisionist, filed complaint
case against opposite party no.2 and his
family members -Trial court, summoned
opposite party no.2, his father, mother,
elder brother, sister-in-law, and younger
brother to face trial - Perusal of record
further reveals that complaint was filed
prior to impugned order - Trial court's
finding denying dowry harassment is
perverse - Unrebutted evidence of P.W.1
and
P.W.2
proves
revisionist
was
expelled from her matrimonial home for
non - fulfillment of additional dowry
demand - She had just and reasonable
cause to live separately - Opposite party
no. 2 has neither pleaded nor deposed
any special circumstance disabling him
from maintaining his wife and daughters,
hence, it is inferred that his earnings
from manual labour are enough to
discharge
his legal obligation
- On
perusal of evidence adduced by both
parties, it emerges that revisionist has no
independent source of income - P.W.1
and P.W.2 St.d that opposite party no. 2
is engaged as contractor,
possesses
about 15-16 bighas of agricultural land,
and owns two houses - D.W.1 and D.W.2
deposed that opposite party no. 2 is not a
contractor but a labourer and agricultural
land stands in his father's name, yielding
approximately Rs. 60,000/- p.a, on which
three persons are dependent - However,
neither party produced any documentary
evidence substantiating their respective
claims regarding earning
- Hence,
impugned order is erroneous, set aside -
Directions accordingly. (Para 11, 12, 18,
19)

Revision allowed. (E-13)

List of Cases cited: