Virodhi Parishad Vs. Dilip Nathumal Chordia & Anr  INSC 46 (8 February 1989)
K.J. (J) Shetty, K.J. (J) Ray, B.C. (J)
1989 SCR (1) 560 1989 SCC (1) 715 JT 1989 (1) 247 1989 SCALE (1)330
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
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.
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.
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
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.
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,
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.
appellant, a social welfare organisation and the State preferred appeals to 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.
allowing the criminal appeals,
1. The High Court was not justified in interfering with the charge framed by
the trial court against the re- spondent accused.
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.
of Bihar v. Ramesh Singh,  1 SCR 257
and Union of India v. Prafulla Kumar Samal & Anr.,  2 SCR 229 at
234-35, referred to.
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
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]
Although it was the moral obligation of respondent's father as manager of the
family to protect the deceased and safeguard her life and he had failed to
perform that obliga- tion, that by itself without anything more is not
sufficient to frame a charge against him. The discretion exercised by the trial
court in discharging him was, therefore, correct.
APPELLATE JURISDICTION: Criminal Appeal Nos. 486 to 489 of 1984.
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
A.M. Khanwilkar and Mrs. H. Wahi for the Appellants.
and R.A. Gupta for the Respondents.
Judgment of the Court was delivered by .
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.
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.
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.
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.
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
investigation of the case revealed that Chanda had hostile atmosphere soon
after her marriage. She was not treated well in her husband's house. Vijay, her
brother and Mani Chand, father have given statements that the in-laws demanded
unreasonable dowry which could not be complied with. Even at the wedding
ceremony, it seems, that they behaved badly on the payment of insufficient
dowry. After the marriage, when Vijay came to take his sister back home as per
custom, he was not even permitted to meet her. Kamala Bai, the maid servant
accompanying Chanda was also sent back. She has also 564 given detailed version
about the unfavourable atmosphere around Chanda.
addition to the statements of witnesses, there is a report of the Chemical Analyser
and post-mortem report.
indicate that the death of Chanda could not be by accidental fire.
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.
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.
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
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.
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.
227 of the Code of Criminal Procedure having beating on the contentions urged
for the parties, provides:
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,  1 SCR 257, Untwalia,
J., while explaining the scope of the said sections observed (at 259):
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.
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.,  2
SCR 229 at 234-35, Fazal Ali, J., summarised some of the principles:
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.
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.
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.
That in exercising his jurisdic- tion under the present Code is a senior and
experienced Judge cannot act merely as a Post Officer or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however, does not mean that
the Judge should make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial." These two decisions
do not lay down different princi- ples. Prafulla Kumar case has only reiterated
what has been stated in Ramesh Singh case. In fact, sec. 227 itself con- tains
enough guidelines as to the scope of enquiry for the purpose of discharging an
accused. It provides that "the Judge shall discharge when he considers
that there is no sufficient ground for proceeding against the accused".
The 'ground' in the context is not a ground for conviction, but a ground for
putting the accused on trial. It is in the trial, the guilt or the innocence of
the accused will be determined and not at the time of framing of charge. The
Court, therefore, need not undertake an elaborate enquiry in sifting and
weighing the material. Nor it is necessary to delve deep into various aspects.
All that the Court has to consider is whether the evidenciary material on
record if generally accepted, would reasonably connect the accused with the
crime. No more need be enquired into.
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.
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:
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
not be out of place to mention that "dowry" which is a deep rooted
social evil appears to be the cause of ever so many unfortunate death of young
ladies. It is an offence brutal and barbaric. It is generally committed inside
the house and more often with a circumstance to give an impres- sion that it
was a suicidal death. There will be all round attempt to cover up such offence
by the family members rather than to expose it. The Government has come forward
with legislations from time to time to protect women and to punish those who
commit attrocities on them. In 1961 the Dowry Prohibition Act (Act 28 of 196 1)
was passed prohibit- ing the taking or giving dowry. By the Criminal Law
(Second Amendment) Act, 1983 (Act 46 of 1983) Chapter XX-A was introduced in
the Penal Code with sec. 498-A creating a new offence of cruelty. It provides
for punishment to husband or his relatives if they harass a woman with a view
to coerce her to meet any unlawful demand for property. Section 174 of the
Criminal Procedure Code was also amended to secure post-mortem in 568 case of
suicide or death of a woman within seven years of her marriage. Section 113-A
has been introduced in the Evidence Act, 1872 raising presumption of cruelty as
defined under sec. 498-A IPC against the husband or his relatives if the wife
commits suicide within a period of seven years from the date of her marriage.
These provisions reflect the anxiety of the representatives of our people to
deal firmly the menace of dowry deaths. Again, there are sweeping changes made
in the Dowry Prohibition (Amendment) Act, 1984.
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'.
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.
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 greater sensitivity to criminality and
avoid on all counts "soft justice".
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
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.
wish to add a word regarding interference by the High court against a charge
framed by the Sessions Court. Section 227 which 569 confers power to discharge
an accused was designed to pre- vent harassment to an innocent person by the
arduous trial or the ordeal of prosecution. How that intention is to be
achieved is reasonably clear in the section itself. The power has been
entrusted to the Sessions Judge who brings to bear his knowledge and experience
in criminal trials. Be- sides, he has the assistance of counsel for the accused
and Public Prosecutor. He is required to hear both sides before framing any
charge against the accused or for discharging him. If the Sessions Judge after
hearing the parties frames a charge and also makes an order in support thereof,
the law must be allowed to take its own course. Self restraint on the part of
the High Court should be the rule unless there is a glaring injustice stares
the Court in the face. The opinion on any matter may differ depending upon the
person who views it. There may be as many opinions on a particular matter as
there are courts but it is no ground for the High Court to interdict the trial.
It would be better for the High Court to allow the trial to proceed.
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.
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
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.