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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

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   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

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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

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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.

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             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-

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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

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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

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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