Vishal Jaiswal & Ors vs State Of West Bengal & Anr

Bibhas Ranjan De, J.

Challenge of this revision application is the order dated 11.12.2023 passed in connection with Sessions Case No. 16 (06) of 2019 arising out of Tala Police Station Case No. 116 of 2016 dated 08.10.2016 under Sections 498A/307/406/34 of the Indian Penal Code (hereinafter IPC) read with Section 3 & 4 of the Dowry Prohibition Act (hereinafter DP Act) corresponding to G.R. Case No. 3379 of 2016, presently pending before the Court of Additional Sessions Judge, Fast Track, 2nd Court, Sealdah.

The case was put into motion initially on a written complaint filed by the opposite party no. 2 herein alleging inter alia that the opposite party no. 2 got married with the petitioner no.2 on 25.04.2012 but soon after she was subjected to immense torture by the accused persons with demand for dowry. On 15.06.2014 she was forcefully assaulted by her brother in-law and there was even an attempt to administer poison to her. Thereafter, the level of torture kept on increasing and sometime around March, 2015 the mother in-law of the defacto complainant /opposite party no. 2 herein tried to strangulate her by pressing her neck. Due to which the opposite party no. 2 had to undergo medical treatment. Being so victimized both physically and mentally at the hands of her in-laws, the opposite party no. 2 lodged a written compliant on 08.10.2016 with the officer-in-charge Tala Police Station, pursuant to which Tala P.S. Case No. 116 of 2016 was registered against the petitioners.

After investigation charge sheet was submitted under Sections 498A/307/406/34 of IPC. Thereafter, Ld. Additional Chief Judicial Magistrate (hereinafter ACJM), Sealdah, committed the case to the Court of Ld. Additional Sessions Judge, 1st Court, Sealdah, who in tern transferred the case to the Court of Additional Sessions Judge, Fast Track Court II, Sealdah.

On 11.11. 2019 on behalf of the accused/petitioner herein one application under Section 227 of the Code of Criminal Procedure (hereinafter CrPC) was made with a prayer for discharge of the accused for the offence under Section 307 of the IPC.

On 09.10.2023 Ld. Judge heard the application dated 11.11.2019 filed on behalf of the accused/petitioners and reserved the order till 11.12.2023.

By the order dated 11.12.2023, Ld. Judge considered the prayer for deletion of charge under Section 307 of IPC and rejected the same on the ground of allegation made in the complaint as well as evidence collected during investigation that too relying on several judgments of Hon’ble Apex Court with regard to the duty of the Ld. Judge at the time of framing charge against the accused.

By the application for deletion of charge under Section 307 IPC petitioners stated that the Section 307 IPC was added only in order to make the case triable by the Court of Sessions.

Argument advanced:-

Mr. Indranuj Dutta, Ld. Counsel, appearing on behalf of the petitioners has submitted that there are vague and omnibus allegations made in the written complaint which were put into motion by the police through investigation that ended with charge sheet.

Mr. Pawan Kumar Gupta, Ld. Counsel, appearing on behalf of the opposite party no. 2 has strenuously argued that at the time of consideration of charge Ld. Judge only considered the prima facie materials collected during investigation and credibility of the evidence collected cannot be considered at the stage of framing of charge.

Per contra, Ms. Faria Hossain, Ld. Counsel, appearing on behalf of the State has relied on the evidence collected during investigation particularly the statement recorded under Section 161 of the CrPC as well as medical examination report.

Analysis:-

Considered the rival contentions of the parties.

I have gone through the First Information Report very carefully which vividly unveils the grave allegations of strangulation as well as administering poison which were prima facie corroborated by the statement and the medical examination report gathered during course of investigation.

In this regard, it would be axiomatic to add the well settled principles that emerge for consideration of the authorities about the scope of Section 227 of the Code, which are:-

(i) The judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to shift 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 pro’s and con’s 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 consideration under 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, the Court may shift 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.

In the light of the above principle, I do not find any infirmity in the order impugned in this revision application. Therefore, the instant application being devoid of merits stands dismissed.

Connected applications, if any, stand disposed of accordingly.

Interim order, if there be any, stands vacated.

Case diary be returned at once.

All parties to this revisional application shall act on the server copy of this order duly downloaded from the official website of this Court.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.