IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.38635 of 2019

Arising Out of PS. Case No.-176 Year-2016 Thana- AIRPORT District- Patna

======================================================

Nilesh Kumar Singh @ Nilesh Kumar S/o Krishna Murari Singh R/o Prashya

Sadan, Riding Road, P.S.- Hawai Adda, District- Patna

... ... Petitioner

Versus

1.The State of Bihar

2.Pankaj Kumar Singh S/O Shri Raj Kishore Singh R/O Sanjay Gandhi Nagar,

Road NO-6, Hanuman Nagar, P.S.- Patrakar Nagar, District- Patna

... ... Opposite Party/s

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Appearance :

For the Petitioner/s: Mr. Naresh Dixit, Advocate

Mr. Binod Kumar Mishra, Advocate

Mr. Sanjay Pandey, Advocate

For the State : Mr. Nirmal Kumar Sinha, APP

For the Informant: Mr. Shubesh Pandey, Advocate

Mr. Amit Kumar Mishra, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR

ORAL JUDGMENT

Date : 10.04.2024

The present petition has been filed on behalf of the

Petitioner under Section 482 of Cr.PC for quashing the

impugned order dated 29.03.2019 passed by Additional Sessions

Judge-II, Patna in Sessions Trial No. 467/2018 arising out of

Hawai Adda P.S. Case No. 176/2016 registered for offence

punishable under Section 304(B) read with Section 34 of the

Indian Penal Code against the husband/Petitioner Nilesh Kumar

Singh, brother-in-law Ratnesh Kumar and wife of Ratnesh

Kumar. By the impugned order, Ld. Trial Court has rejected the

petition of the Accused/Petitioner Nilesh Kumar Singh filed

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under Section 227 of Cr.PC for discharge finding sufficient

material on record to frame charge under Section 304(B) of

Indian Penal Code.

2. The prosecution case as emerging from the First

Information Report is that the deceased, Rani Devi, daughter of

informant, Sri Pankaj Kumar Singh, was married with

the petitioner, Nilesh Kumar Singh @ Nilesh Kumar son of

Krishna Murari Singh about three years back. About after two

months of the marriage, the petitioner/husband, his brother,

Ratnesh Kumar son of Late Shyam Bihari Singh and wife of

Ratnesh Kumar started torturing the deceased stating that she

should ask her father to open a medical company for the

petitioner, failing which, she would not be allowed to live in her

matrimonial home. The informant was called by the petitioner

and his brother, Ratnesh Kumar to their home to be asked to

open a medical company for him. However, the informant

expressed his inability to open such a company saying that too

much money has already been spent on the marriage of his

daughter. Thereafter, all the accused persons stopped talking

with the deceased and started torturing her for dowry and

exerted pressure upon him to open a medical company. Then in

the month of September 2015, the petitioner who is son-in-law

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of the informant called him at his home by phone through his

friend, namely, Manish and again asked him to open medical

company for him and also demanded his house, upon which, the

informant told him that the house is in the name of three

brothers and he is unable to give this house to him. On such

statement, all the accused got angry. On 31.10.2016 at about

4:20 AM, a phone call came from Ratnesh Kumar, brother of

son-in-law, giving information that his daughter is ill and

admitted in PARAS Hospital. However, when the informant

wanted to know about the illness, he was informed that there

was a serious heart attack. When the informant reached PARAS

Hospital, he found his daughter, Rani Devi already dead. He has

claimed that the death of his daughter is unnatural. The

Fardbeyan was given at 7:30 AM at PARAS HMRI Hospital,

Patna.

3. After investigation, the police submitted charge-

sheet on 28.01.2017 bearing charge sheet No. 04/2017 for

offence punishable under Section 304(B)/34 of the IPC. As per

record, supplementary charge-sheet bearing charge-sheet No.

168/2017 dated 15.12.2017 was also submitted against two co-

accused, Ratnesh Kumar, son of Late Shyam Bihari Singh and

wife of Ratnesh Kumar for offence punishable under Sections

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304(B)/302/34 of the Indian Penal Code.

4. In course of trial, the petitioner moved an

application under Section 227 of the Cr.PC before the trial court

for his discharge. However, Ld. trial court vide its order dated

29.03.2019 rejected the aforesaid application against which the

petitioner has preferred the present petition under Section

482 Cr.PC for setting aside/quashing the impugned order dated

29.03.2019.

5. Heard Ld. counsel for the petitioner, Ld. counsel

for the informant and Ld. APP for the State.

6. Ld. Counsel for the petitioner submits that the

deceased, Rani Devi was an educated lady having degree of

M.Sc and she was an outgoing lady, though she was not in job.

However, there is no complaint on her part against her husband

or against any of her in-laws ever. He also submits that there is

no allegation of any demand of dowry or torture soon before the

death which is one of the essential ingredients of Section 304(B)

of the Indian Penal Code. Therefore, offence under Section

304(B) of the Indian Penal Code is not made out against the

petitioner. He further submits that even going by the FIR, the

last call for opening a medical company for the petitioner was

received way back in the month of September, 2015 by the

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informant i.e., much before death in the month of October of

2016. He further submits that the deceased was never tortured

by the petitioner and on her complaint of chest pain and

vomiting, she was admitted to the best hospital available at

Patna i.e., PARAS HMRI Hospital, where in course of

treatment, she was subjected to cardiopulmonary resuscitation

(CPR) for about 45 minutes in course of which

there is every possibility of fracture of chest ribs. Hence, she

died natural death on account of illness she was suffering from.

7. He further refers to report of PARAS Hospital

which is a part of the case diary. He points out that there is no

injury on the person of the deceased as per the report. He further

submits that as per the medical report of PARAS HMRI

Hospital, Patna, there is no physical injury on the person of the

deceased. Even postmortem report does not mention any

external injury on the person of the deceased. He further

submits that the fracture of sternum at 3rd rib label was on

account of CPR given by PARAS Hospital in course of the

treatment. He has also annexed a copy of medical article on

CPR in which it has been mentioned that Dr. Michael Sayre, a

spokesperson for the American Heart Association and a

professor at the University of Washington in Seattle, said broken

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ribs are to be expected when doing CPR and the worry of

causing a break shouldn't deter people from helping someone in

cardiac arrest. He also submits referring to the same article, that

women come under high risk groups to suffer fracture of ribs

during CPR.

8. Referring to viscera report, learned counsel for the

petitioner submits that even viscera report does not suggest any

culpability of the petitioner or any of the accused persons

because as per viscera report no metalic, alkaloidal, glycosidal,

pesticidal and volatile poison could be detected in the contents

of glass jar.

9. Ld. Counsel further submits that one of the

essential ingredients, amongst others, is that the woman must

have been, soon before her death, subjected to cruelty or

harassment for, or in connection with, any demand for dowry.

This ingredient is missing in the whole case against the

petitioner. He further submits that, as per the allegation, there is

no demand of dowry and torturing soon before death, because

last call for opening a medical company was made in

September, 2015 i.e., much prior to the death of the alleged

victim on 30.12.2016 and there is no allegation of torturing soon

before her death. There is no allegation that she was

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administered any poisonous substance or subjected to any

physical assault causing external injury. He also submits that

prerequisites for framing of charge are not fulfilled.

10. Ld. APP for the State and Ld. Counsel for the

informant submit that the Fardbeyan as well as material

collected by police during investigation clearly manifest that

there was demand for opening a medical company for the

petitioner and on account of non fulfillment of the same, the

victim was continuously subjected to torture. He also submits,

referring to the inquest report that there was injury on the person

of the deceased, like bleeding from mouth and nose, spot of

blood on shoulder, mark of injury on chest. He further submits

that the deceased as per version of the petitioner/accused

himself as emerging from para-12 of the case diary, there was

complaint of stomach pain. However, it has been wrongly

mentioned in the medical report that there was complaint of

vomiting. He further submits that in case of stomach pain or

vomiting there is no occasion for any CPR. It is also submitted

that as per postmortem report, postmortem commenced at 11:00

AM and rigor mortis was present all over the body at the time of

examination. He further submits that average duration of onset

of rigor mortis is about eight hours and rigor mortis develops in

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full body in about eighteen hours. He further points out that as

per the report of PARAS Hospital, she was brought to the

Hospital at 4:10 AM in gasping condition and there was no

carotid pulse palpable and she was declared dead at 4:55 AM.

But, he submits that in view of the rigor mortis at 11:00 AM

when postmortem was conducted, she must have died much

prior to her bringing to PARAS Hospital at 4:10 AM. He claims

that, in fact, the victim was already dead at home and the whole

treatment at PARAS was stage-managed to show that she has

died at hospital in course of treatment. He points out that as per

the postmortem report death is due to hemorrhage caused by

ante mortem injury caused by hard and blunt substance.

11. He further submits that all the ingredients of

Section 304(B) IPC are present as per material on record. At the

time of framing of charges, only prima facie case is to be seen;

proof of the alleged offence beyond reasonable doubt, is not to

be seen at this stage. He also submits that at the stage of framing

of charge, there is limited scope to weigh the probative value of

the material on record. A mini trial cannot be conducted at the

stage of framing of charge.

12. Before I proceed to consider the rival submissions

of the parties on merits, it would be pertinent to see the scope

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and ambit of Section 482 of the Cr.PC.

13. Section 482 Cr.PC saves inherent power of High

Court and it reads as follows:-

“482. Saving of inherent powers of High Court.-

Nothing in this Code shall be deemed to limit or affect the

inherent powers of the High Court to make such orders as

may be necessary to give effect to any order under this

Code, or to prevent abuse of the process of any Court or

otherwise to secure the ends of justice.”

14. In Madhavrao Jiwajirao Scindia Vs.

Sambhajirao Chandrojirao Angre, [(1988) 1 SCC 692],

Hon’ble three-Judge Bench of Supreme Court has laid down the

law as to quashment of proceedings under Section 482 Cr.PC as

follows :

“7. The legal position is well settled that when a

prosecution at the initial stage is asked to be quashed, the

test to be applied by the court is as to whether the

uncontroverted allegations as made prima facie establish

the offence. It is also for the court to take into

consideration any special features which appear in a

particular case to consider whether it is expedient and in

the interest of justice to permit a prosecution to continue.

This is so on the basis that the court cannot be utilised for

any oblique purpose and where in the opinion of the court

chances of an ultimate conviction are bleak and, therefore,

no useful purpose is likely to be served by allowing a

criminal prosecution to continue, the court may while

taking into consideration the special facts of a case also

quash the proceeding even though it may be at a

preliminary stage.”

15. Hon’ble Supreme Court in State of Haryana

Vs. Bhajan Lal [1992 Suppl (1) SCC 335], delivered the land

mark judgment on the scope and extent of the jurisdiction of

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High Court under Section 482 Cr.PC It is still holding the field

and being consistently followed and relied upon by all Courts

including the Apex Court.

16. Hon’ble Apex Court in Bhajan Lal case (supra)

held as follows:-

“102. In the backdrop of the interpretation of the

various relevant provisions of the Code under Chapter

XIV and of the principles of law enunciated by this Court

in a series of decisions relating to the exercise of the

extraordinary power under Article 226 or the inherent

powers under Section 482 of the Code which we have

extracted and reproduced above, we give the following

categories of cases by way of illustration wherein such

power could be exercised either to prevent abuse of the

process of any court or otherwise to secure the ends of

justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and

inflexible guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein such

power should be exercised.

(1) Where the allegations made in the first

information report or the complaint, even if they are taken

at their face value and accepted in their entirety do not

prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information

report and other materials, if any, accompanying the FIR

do not disclose a cognizable offence, justifying an

investigation by police officers under Section 156(1) of

the Code except under an order of a Magistrate within the

purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in support

of the same do not disclose the commission of any offence

and make out a case against the accused.

(4) Where, the allegations in the FIR do not

constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a

police officer without an order of a Magistrate as

contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or

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complaint are so absurd and inherently improbable on the

basis of which no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar engrafted in

any of the provisions of the Code or the concerned Act

(under which a criminal proceeding is instituted) to the

institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the

concerned Act, providing efficacious redress for the

grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly

attended with mala fide and/or where the proceeding is

maliciously instituted with an ulterior motive for wreaking

vengeance on the accused and with a view to spite him

due to private and personal grudge.

103. We also give a note of caution to the effect that

the power of quashing a criminal proceeding should be

exercised very sparingly and with circumspection and that

too in the rarest of rare cases; that the court will not be

justified in embarking upon an enquiry as to the reliability

or genuineness or otherwise of the allegations made in the

FIR or the complaint and that the extraordinary or inherent

powers do not confer an arbitrary jurisdiction on the court

to act according to its whim or caprice.”

17. Hon’ble Supreme Court in State of Orissa Vs.

Saroj Kumar Sahoo, (2005) 13 SCC 540 explaining the ambit

and scope of Section 482 Cr.PC observed as follows:

“8. ………. While exercising the powers under the

section, the court does not function as a court of appeal or

revision. Inherent jurisdiction under the section, though

wide, has to be exercised sparingly, carefully and with

caution and only when such exercise is justified by the

tests specifically laid down in the section itself. It is to be

exercised ex debito justitiae to do real and substantial

justice for the administration of which alone the courts

exist. Authority of the court exists for advancement of

justice and if any attempt is made to abuse that authority

so as to produce injustice, the court has the power to

prevent abuse. It would be an abuse of process of the court

to allow any action which would result in injustice and

prevent promotion of justice. In exercise of the powers the

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court would be justified to quash any proceeding if it finds

that initiation/continuance of it amounts to abuse of the

process of court or quashing of these proceedings would

otherwise serve the ends of justice. When no offence is

disclosed by the report, the court may examine the

question of fact. When a report is sought to be quashed, it

is permissible to look into the materials to assess what the

report has alleged and whether any offence is made out

even if the allegations are accepted in toto.”

18. Now let us refer to what Hon’ble Apex Court has

observed from time to time in regard to application of Section

482 Cr.PC at the stage of framing of charge.

19. In the case of State of Bihar Vs. Ramesh Singh,

(1977) 4 SCC 39, Hon’ble Supreme Court held as follows:-

“4. Under Section 226 of the Code while opening the

case for the prosecution the Prosecutor has got to describe

the charge against the accused and state by what evidence

he proposes to prove the guilt of the accused. Thereafter

comes at the initial stage the duty of the Court to consider

the record of the case and the documents submitted

therewith and to hear the submissions of the accused and

the prosecution in that behalf. The Judge has to pass

thereafter an order either under Section 227 or Section 228

of the Code. If “the Judge considers that there is no

sufficient ground for proceeding against the accused, he

shall discharge the accused and record his reasons for so

doing”, as enjoined by Section 227. If, on the other hand,

“the Judge is of opinion that there is ground for presuming

that the accused has committed an offence which— …

(b) is exclusively triable by the Court, he shall

frame in writing a charge against the accused”, as

provided in Section 228. Reading the two provisions

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

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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.

……... ”

(Emphasis supplied)

20. Hon’ble Supreme Court in the case of Union of

India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, has held as

follows:

“7…………The words “not sufficient ground for

proceeding against the accused” clearly show that the

Judge is not a mere post office to frame the charge at the

behest of the prosecution, but has to exercise his judicial

mind to the facts of the case in order to determine whether

a case for trial has been made out by the prosecution. In

assessing this fact, it is not necessary for the court to enter

into the pros and cons of the matter or into a weighing and

balancing of evidence and probabilities which is really his

function after the trial starts. At the stage of Section 227,

the Judge has merely to sift the evidence in order to find

out whether or not there is sufficient ground for

proceeding against the accused. The sufficiency of ground

would take within its fold the nature of the evidence

recorded by the police or the documents produced before

the court which ex facie disclose that there are suspicious

circumstances against the accused so as to frame a charge

against him.

………………………………………………………

10. Thus, on a consideration of the authorities

mentioned above, the following principles emerge:

(1) That the Judge while considering the question of

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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) That in exercising his jurisdiction under Section

227 of the Code the Judge which under the present Code

is a senior and experienced 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 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.”

(Emphasis supplied)

21. Hon’ble Supreme Court, in the case of State of

Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, has

held as follows :-

“32. The aforesaid shows that if on the basis of

materials on record, a court could come to the conclusion

that commission of the offence is a probable consequence,

a case for framing of charge exists. To put it differently, if

the court were to think that the accused might have

committed the offence it can frame the charge, though for

conviction the conclusion is required to be that the

accused has committed the offence. It is apparent that at

the stage of framing of a charge, probative value of the

materials on record cannot be gone into; the materials

brought on record by the prosecution has to be accepted as

true at that stage.”

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22. Hon’ble Supreme court in the case of State of

M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, has held as

follows :

“7. The crystallised judicial view is that at the

stage of framing charge, the court has to prima facie

consider whether there is sufficient ground for proceeding

against the accused. The court is not required to appreciate

evidence to conclude whether the materials produced are

sufficient or not for convicting the accused.”

23. Hon’ble Supreme court in the case of K.

Ramakrishna Vs. State of Bihar, (2000) 8 SCC 547, has held

as follows:-

“4. The trial court under Section 239 and the High

Court under Section 482 of the Code of Criminal

Procedure is not called upon to embark upon an inquiry as

to whether evidence in question is reliable or not or

evidence relied upon is sufficient to proceed further or not.

However, if upon the admitted facts and the documents

relied upon by the complainant or the prosecution and

without weighing or sifting of evidence, no case is made

out, the criminal proceedings instituted against the

accused are required to be dropped or quashed. As

observed by this Court in Rajesh Bajaj v. State NCT of

Delhi (1999) 3 SCC 259, the High Court or the Magistrate

are also not supposed to adopt a strict hypertechnical

approach to sieve the complaint through a colander of

finest gauzes for testing the ingredients of offence with

which the accused is charged. Such an endeavour may be

justified during trial but not during the initial stage”

(Emphasis supplied)

24. Hon’ble Supreme court in the case of State of

Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, has held

as follows:

“8. What is the meaning of the expression “the record

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of the case” as used in Section 227 of the Code. Though

the word “case” is not defined in the Code but Section 209

throws light on the interpretation to be placed on the said

word. …….. It is evident that the record of the case and

documents submitted therewith as postulated in Section

227 relate to the case and the documents referred in

Section 209. That is the plain meaning of Section 227 read

with Section 209 of the Code. No provision in the Code

grants to the accused any right to file any material or

document at the stage of framing of charge. That right is

granted only at the stage of the trial.

………………………………………………………

16. ………….This aspect, however, has been adverted to

in State Anti-Corruption Bureau v. P. Suryaprakasam

[1999 SCC (Cri) 373] where considering the scope of

Sections 239 and 240 of the Code it was held that at the

time of framing of charge, what the trial court is required

to, and can consider are only the police report referred to

under Section 173 of the Code and the documents sent

with it. The only right the accused has at that stage is of

being heard and nothing beyond that. (emphasis supplied)

The judgment of the High Court quashing the proceedings

by looking into the documents filed by the accused in

support of his claim that no case was made out against

him even before the trial had commenced was reversed by

this Court. It may be noticed here that learned counsel for

the parties addressed the arguments on the basis that the

principles applicable would be same — whether the case

be under Sections 227 and 228 or under Sections 239 and

240 of the Code.”

25. Hon’ble Supreme Court in the case of Soma

Chakravarty Vs. State, (2007) 5 SCC 403, has held as follows:

“10. It may be mentioned that the settled legal

position, as mentioned in the above decisions, is that if on

the basis of 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. At the

time of framing of the charges the probative value of the

material on record cannot be gone into, and the material

brought on record by the prosecution has to be accepted as

true at that stage. Before framing a charge the court must

apply its judicial mind on the material placed on record

and must be satisfied that the commitment of offence by

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the accused was possible. Whether, in fact, the accused

committed the offence, can only be decided in the trial.”

(Emphasis supplied)

26. Hon’ble Supreme court in the case of Onkar

Nath Mishra Vs. State (NCT of Delhi), (2008) 2 SCC 561, has

held as follows:-

“11. It is trite that at the stage of framing of charge

the court is required to evaluate the material and

documents on record with a view to finding out if the facts

emerging therefrom, taken at their face value, disclosed

the existence of all the ingredients constituting the alleged

offence. At that stage, the court is not expected to go deep

into the probative value of the material on record. What

needs to be considered is whether there is a ground for

presuming that the offence has been committed and not a

ground for convicting the accused has been made out. At

that stage, even strong suspicion founded on material

which leads the court to form a presumptive opinion as to

the existence of the factual ingredients constituting the

offence alleged would justify the framing of charge

against the accused in respect of the commission of that

offence.”

(Emphasis supplied)

27. Hon’ble Supreme Court in the case of P.

Vijayan Vs. State of Kerala, (2010) 2 SCC 398, has held as

follows:

“11. At the stage of Section 227, the Judge has

merely to sift the evidence in order to find out whether or

not there is sufficient ground for proceeding against the

accused. In other words, the sufficiency of ground would

take within its fold the nature of the evidence recorded by

the police or the documents produced before the court

which ex facie disclose that there are suspicious

circumstances against the accused so as to frame a charge

against him.

12. …..This Court has thus held that whereas strong

suspicion may not take the place of the proof at the trial

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stage, yet it may be sufficient for the satisfaction of the

trial Judge in order to frame a charge against the accused.”

(Emphasis supplied)

28. In Sajjan Kumar Vs. CBI, (2010) 9 SCC 368,

Hon’ble Supreme Court has observed as follows:

“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 227CrPC 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.

(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

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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.”

(Emphasis supplied)

29. In the case of Amit Kapoor Vs. Ramesh

Chander, (2012) 9 SCC 460 Hon’ble Supreme Court held as

follows:-

“19. At the initial stage of framing of a charge, the

court is concerned not with proof but with a strong

suspicion that the accused has committed an offence,

which, if put to trial, could prove him guilty. All that the

court has to see is that the material on record and the facts

would be compatible with the innocence of the accused or

not. The final test of guilt is not to be applied at that

stage………….

……………………………………………………

27. …….... At best and upon objective analysis of

various judgments of this Court, we are able to cull out

some of the principles to be considered for proper exercise

of jurisdiction, particularly, with regard to quashing of

charge either in exercise of jurisdiction under Section 397

or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of

the Court under Section 482 of the Code but the more the

power, the more due care and caution is to be exercised in

invoking these powers. The power of quashing criminal

proceedings, particularly, the charge framed in terms of

Section 228 of the Code should be exercised very

sparingly and with circumspection and that too in the

rarest of rare cases.

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

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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.

27.4. Where the exercise of such power is

absolutely essential to prevent patent miscarriage of

justice and for correcting some grave error that might be

committed by the subordinate courts even in such cases,

the High Court should be loath to interfere, at the

threshold, to throttle the prosecution in exercise of its

inherent powers.

27.5. Where there is an express legal bar enacted in

any of the provisions of the Code or any specific law in

force to the very initiation or institution and continuance

of such criminal proceedings, such a bar is intended to

provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom

of a person and the right of the complainant or prosecution

to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted

to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they

appeared from the record and documents annexed

therewith to predominantly give rise and constitute a

“civil wrong” with no “element of criminality” and does

not satisfy the basic ingredients of a criminal offence, the

court may be justified in quashing the charge. Even in

such cases, the court would not embark upon the critical

analysis of the evidence.

27.9. Another very significant caution that the

courts have to observe is that it cannot examine the facts,

evidence 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 full-fledged 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

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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.

27.13. Quashing of a charge is an exception to the

rule of continuous prosecution. Where the offence is even

broadly satisfied, the Court should be more inclined to

permit continuation of prosecution rather than its quashing

at that initial stage. The Court is not expected to marshal

the records with a view to decide admissibility and

reliability of the documents or records but is an opinion

formed prima facie.

27.14. Where the charge-sheet, report under Section

173(2) of the Code, suffers from fundamental legal

defects, the Court may be well within its jurisdiction to

frame a charge.

27.15. Coupled with any or all of the above, where

the Court finds that it would amount to abuse of process of

the Code or that the interest of justice favours, otherwise it

may quash the charge. The power is to be exercised ex

debito justitiae i.e. to do real and substantial justice for

administration of which alone, the courts exist…...

27.16. These are the principles which individually

and preferably cumulatively (one or more) be taken into

consideration as precepts to exercise of extraordinary and

wide plenitude and jurisdiction under Section 482 of the

Code by the High Court. Where the factual foundation for

an offence has been laid down, the courts should be

reluctant and should not hasten to quash the proceedings

even on the premise that one or two ingredients have not

been stated or do not appear to be satisfied if there is

substantial compliance with the requirements of the

offence.”

(Emphasis supplied)

30. Hon’ble Supreme Court in the case of State of

T.N. Vs. N. Suresh Rajan, (2014) 11 SCC 709, has held as

follows:

“29. … At this stage, probative value of the materials

has to be gone into and the court is not expected to go

deep into the matter and hold that the materials would not

warrant a conviction. In our opinion, what needs to be

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considered is whether there is a ground for presuming that

the offence has been committed and not whether a ground

for convicting the accused has been made out. To put it

differently, if the court thinks that the accused might have

committed the offence on the basis of the materials on

record on its probative value, it can frame the charge;

though for conviction, the court has to come to the

conclusion that the accused has committed the offence.

The law does not permit a mini trial at this stage.”

(Emphasis supplied)

31. In State of Karnataka Vs. M.R. Hiremath,

(2019)7 SCC 515, Hon’ble Supreme Court has observed as

follows:

“25. The High Court ought to have been cognizant of

the fact that the trial court was dealing with an application

for discharge under the provisions of Section 239CrPC.

The parameters which govern the exercise of this

jurisdiction have found expression in several decisions of

this Court. It is a settled principle of law that at the stage

of considering an application for discharge the court must

proceed on the assumption that the material which has

been brought on the record by the prosecution is true and

evaluate the material in order to determine whether the

facts emerging from the material, taken on its face value,

disclose the existence of the ingredients necessary to

constitute the offence. .....”

(Emphasis supplied)

32. In Dipakbhai Jagdishchandra Patel Vs. State of

Gujarat, (2019) 16 SCC 547], Hon’ble Supreme Court has

observed as follows:

“ 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

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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.”

(Emphasis supplied)

33. Hon’ble Supreme Court in the case of State of

Odisha Vs. Pratima Mohanty, 2021 SCC OnLine SC 1222,

has held as follows:

“16...........At the stage of discharge and/or

considering the application under Section 482 Cr.P.C. the

courts are not required to go into the merits of the

allegations and/or evidence in detail as if conducing the

mini-trial. As held by this Court the powers under Section

482 Cr.P.C. is very wide, but conferment of wide power

requires the court to be more cautious. It casts an onerous

and more diligent duty on the Court.

......................................................................................

18. Therefore, considering the aforesaid it cannot be

said that the criminal proceedings against the respondents

- accused were in any way an abuse of process of law

and/or the Court.......”

(Emphasis supplied)

34. Hon’ble Supreme Court in the case of Saranya

v. Bharathi, (2021) 8 SCC 583, has held as follows:

“11. ……..it is observed and held that at the stage of

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framing of charges, the Court has to consider the material

only with a view to find out if there is a ground for

“presuming” that the accused had committed the offence.

It is observed and held that at that stage, the High Court is

required to evaluate the material and documents on record

with a view to finding out if the facts emerging therefrom,

taken at their face value, disclose the existence of all the

ingredients constituting the alleged offence or offences. It

is further observed and held that at this stage the High

Court is not required to appreciate the evidence on record

and consider the allegations on merits and to find out on

the basis of the evidence recorded the accused

chargesheeted or against whom the charge is framed is

likely to be convicted or not.”

(Emphasis supplied)

35. In Ghulam Hassan Beigh Vs. Mohd. Maqbool

Magrey, (2022) 12 SCC 657, Hon’ble Supreme Court has

observed as follows:

“27. Thus from the aforesaid, it is evident that the

trial court is enjoined with the duty to apply its mind at the

time of framing of charge and should not act as a mere

post office. The endorsement on the charge-sheet

presented by the police as it is without applying its mind

and without recording brief reasons in support of its

opinion is not countenanced by law. However, the material

which is required to be evaluated by the court at the time

of framing charge should be the material which is

produced and relied upon by the prosecution. The sifting

of such material is not to be so meticulous as would render

the exercise a mini trial to find out the guilt or otherwise

of the accused. All that is required at this stage is that the

court must be satisfied that the evidence collected by the

prosecution is sufficient to presume that the accused has

committed an offence. Even a strong suspicion would

suffice. Undoubtedly, apart from the material that is

placed before the court by the prosecution in the shape of

final report in terms of Section 173CrPC, the court may

also rely upon any other evidence or material which is of

sterling quality and has direct bearing on the charge laid

before it by the prosecution. .....”

(Emphasis supplied)

36. Hon’ble Supreme Court in the case of CBI Vs.

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Aryan Singh, 2023 SCC OnLine SC 379, has held as follows:

“10. From the impugned common judgment and

order passed by the High Court, it appears that the High

Court has dealt with the proceedings before it, as if, the

High Court was conducting a mini trial and/or the High

Court was considering the applications against the

judgment and order passed by the learned Trial Court on

conclusion of trial. As per the cardinal principle of law, at

the stage of discharge and/or quashing of the criminal

proceedings, while exercising the powers under Section

482 Cr. P.C. , the Court is not required to conduct the mini

trial. The High Court in the common impugned judgment

and order has observed that the charges against the

accused are not proved. This is not the stage where the

prosecution/investigating agency is/are required to prove

the charges. The charges are required to be proved during

the trial on the basis of the evidence led by the

prosecution/investigating agency. Therefore, the High

Court has materially erred in going in detail in the

allegations and the material collected during the course of

the investigation against the accused, at this stage. At the

stage of discharge and/or while exercising the powers

under Section 482 Cr. P.C. , the Court has a very limited

jurisdiction and is required to consider “whether any

sufficient material is available to proceed further against

the accused for which the accused is required to be tried or

not”.

(Emphasis supplied)

37. Hon’ble Supreme court in the case of State of

T.N. Vs. R. Soundirarasu, (2023) 6 SCC 768, has held as

follows:

“69. The suspicion referred to by this Court must be

founded upon the materials placed before the Magistrate

which leads him to form a presumptive opinion as to the

existence of the factual ingredients constituting the

offence alleged. Therefore, the words “a very strong

suspicion” used by this Court must not be a strong

suspicion of a vacillating mind of a Judge. That suspicion

must be founded upon the materials placed before the

Magistrate which leads him to form a presumptive opinion

about the existence of the factual ingredients constituting

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the offence alleged.

......................................................................................

84. In the overall view of the matter, we are

convinced that the impugned orders passed by the High

Court are not sustainable in law and deserve to be set

aside. The circumstances emerging from the record of the

case, prima facie, indicate the involvement of the accused

persons in the alleged offence. Having regard to the

materials on record, it cannot be said that the charge

against the accused persons is groundless. There are

triable issues in the matter. If there are triable issues, the

court is not expected to go into the veracity of the rival

versions.”

(Emphasis supplied)

38. From the aforesaid discussions of law, it clearly

emerges that the power of this Court under Section 482 Cr.PC,

for quashing the criminal proceedings, particularly, the charge

framed in course of trial is required to be exercised very

sparingly and with circumspection and that too in the rarest of

rare cases. 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. The Court can interfere only if the allegations are

found to be so patently absurd and inherently improbable that no

prudent person can believe such an allegation or where the basic

ingredients of a criminal offence are not satisfied as per the

material on record.

39. It also emerges that at the stage of framing charge,

the Court is required to conduct a mini trial. It is required to

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consider the material on record only with a view to find out if

there is a ground for presuming that accused had committed the

offence, and not to see whether prosecution has made out a case

for conviction of the accused. At this stage, the probative value

of the material on record cannot be gone into, and the material

brought on record by the prosecution has to be accepted as true.

The truth, veracity and effect of the evidence which the

Prosecutor proposes to adduce are not to be meticulously

examined. Nor is any weight to be attached to the probable

defence of the accused. 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.

Even strong suspicion based on material on record is sufficient

to frame charge.

40. Now coming to the case on hand, the question for

this Court to consider is whether there is sufficient material on

record to frame charge against the Petitioner under Section

304B of the Indian Penal Code.

41. Before I proceed, it would be pertinent to refer to

Section 304B of the Indian Penal Code which reads as follows:

“304B. Dowry death.— (1) Where the death of a

woman is caused by any burns or bodily injury or occurs

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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”, and such husband or relative

shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section,

“dowry” shall have the same meaning as in Section 2 of

the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished

with imprisonment for a term which shall not be less than

seven years but which may extend to imprisonment for

life.”

42. The ingredients of Section 304B of the Indian

Penal Code as pointed by Hon’ble Supreme Court in

Paranagouda & Anr Vs. State of Karnataka & Anr, 2023

SCC Online SC 1369, are as follows:

“ 20. ………………………...

(i) The death of a woman should be caused by burns

or bodily injury or otherwise than under a normal

circumstance.

(ii) Such a death should have occurred within seven

years of her marriage.

(iii) She must have been subjected to cruelty or

harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in

connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been

meted out to the woman soon before her death.”

43. Hon’ble Supreme Court in Bansilal Vs. State of

Haryana, (2011) 11 SCC 359, has held that, to attract the

provision of Section 304B of the IPC, one of the main

ingredients of the offence which is required to be established is

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that “soon before her death”, she was subjected to cruelty and

harassment “in connection with the demand of dowry”. It has

been also held that the expression “soon before her death” has

not been defined in either of the statutes. Therefore, in each

case, the Court has to analyse the facts and circumstances

leading to the death of the victim and decide if there is any

proximate connection between the demand of dowry and act of

cruelty or harassment and the death.

44. In regard to import of the word “Soon” used in

Section 304 B IPC, Hon’ble Supreme Court in Sher Singh

Alias Partapa Vs. State of Haryana, (2015) 3 SCC 724, has

held as follows:

“16. ……..We are aware that the word “soon” finds

place in Section 304-B; but we would prefer to interpret

its use not in terms of days or months or years, but as

necessarily indicating that the demand for dowry should

not be stale or an aberration of the past, but should be the

continuing cause for the death under Section 304-B or the

suicide under Section 306 IPC. ……..”

45. It would would be also relevant to refer to Section

113B of the Indian Evidence Act which deals with

presumption as to the dowry death. It reads as follows:

“113 B. Presumption as to dowry death.— When

the question is whether a person has committed the dowry

death of a woman and it is shown that soon before her

death such woman had been subjected by such person to

cruelty or harassment for, or in connection with, any

demand for dowry, the Court shall presume that such

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person had caused the dowry death.

Explanation.—For the purposes of this section,

“dowry death” shall have the same meaning as in Section

304-B of Penal Code, 1860 (45 of 1860)”

46. In regard to Section 304 B of IPC and Section 113

B of the Evidence Act, Hon’ble Supreme Court in Baijnath

Vs. State of M.P., (2017) 1 SCC 101, has also held as follows:

“29. Noticeably this presumption as well is founded

on the proof of cruelty or harassment of the woman dead

for or in connection with any demand for dowry by the

person charged with the offence. The presumption as to

dowry death thus would get activated only upon the proof

of the fact that the deceased lady had been subjected to

cruelty or harassment for or in connection with any

demand for dowry by the accused and that too in the

reasonable contiguity of death. ..........

.................................................................................

32. This Court while often dwelling on the scope and

purport of Section 304-B of the Code and Section 113-B

of the Act have propounded that the presumption is

contingent on the fact that the prosecution first spell out

the ingredients of the offence of Section 304-B as in

Shindo v. State of Punjab [Shindo v. State of Punjab,

(2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and echoed

in Rajeev Kumar v. State of Haryana [Rajeev Kumar v.

State of Haryana, (2013) 16 SCC 640 : (2014) 6 SCC

(Cri) 346] . In the latter pronouncement, this Court

propounded that one of the essential ingredients of dowry

death under Section 304-B of the Code is that the accused

must have subjected the woman to cruelty in connection

with demand for dowry soon before her death and that this

ingredient has to be proved by the prosecution beyond

reasonable doubt and only then the Court will presume

that the accused has committed the offence of dowry death

under Section 113-B of the Act. It referred to with

approval, the earlier decision of this Court in K. Prema S.

Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla

Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271]

to the effect that to attract the provision of Section 304-B

of the Code, one of the main ingredients of the offence

which is required to be established is that “soon before her

death” she was subjected to cruelty and harassment “in

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connection with the demand for dowry”.

47. Coming back to the case on hand, I find that

deceased Rani Devi was married with the Accused-Petitioner

Nilesh Kumar Singh @ Nilesh Kumar about three years back

and as per the allegation, after two months of the marriage, the

petitioner and his brother Ratnesh Kumar and wife of Ratnesh

Kumar started torturing the deceased on account of non-

fulfilment of their demand to open a medical company by the

father of the deceased for the Petitioner. However, the father of

the deceased, who is informant herein kept expressing his

incapability to open such a company. On 31

st

October, 2016 at

about 4:20 AM, the informant was informed by Accused-

Petitioner that his daughter was ill and admitted in PARAS

Hospital on account of serious heart attack. When the informant

reached PARAS Hospital, his daughter Rani Devi was found to

be already dead. As per the inquest report, there was injury on

the chest besides bleeding from mouth and nose and spot of

blood on shoulder. As per the postmortem report, amongst other

things, there is ante mortem fracture of sternum at third rib label

caused by hard and blunt substance and cause of death is on

account of haemorrhage due to injury ante mortem injury. Rigor

mortis was also found to be present all over the body. As per the

postmortem report, postmortem had commenced at 11 AM on

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31.10.2016.

48. As per Ld. Counsel for the Petitioner, there was no

demand of dowry, nor was any torturing for dowry, much less

there was any torturing soon before her death. It is on account of

chest pain and vomiting, she was admitted to the Paras Hospital

at about 4:10 AM on 31.10.2016, where in course of treatment,

she was subjected to cardiopulmonary resuscitation (CPR) for

about 45 minutes, in course of which chest ribs were fractured.

Hence, she died natural death and no offence of dowry death has

been committed by the Petitioner.

49. However, Ld. APP for the State and Ld. Counsel

for the Informant vehemently submit that there was demand of

dowry in the form of opening of medical company for the

Petitioner-Husband and on account of non-fulfilment of the

same the victim/wife of the Petitioner was subjected to torturing

since after two months of the marriage and such torturing

continued resulting into her death. As such, all the ingredients of

Section 304B of the Indian Penal Code read with Section 113B

of the Indian Evidence Act are present and there is no illegality

or infirmity in the impugned order, whereby discharge petition

filed by the Petitioner has been rejected by Ld. Trial Court

finding that there are sufficient material to frame charge under

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Section 304(B).

50. To substantiate their claim, Ld. APP for the State

and Ld. Counsel for the Informant point out that initially the

Informant-Father of the deceased, was informed that his

daughter was admitted to Paras Hospital on account of heart

attack, whereas during course of investigation, the accused have

stated to the police that she was making a complaint of stomach

pain and vomiting. In both situations, there was no occasion for

any CPR and there was no reason for fracture of the ribs. They

also point out that at the time of commencement of the

postmortem, rigor mortis was present all over the body which

means that the victim was dead prior to her admission in the

Paras Hospital at 4:10 AM on 31.10.2016, because and at 11:00

AM on the same day when postmortem commenced, rigor

mortis was found to be present all over the body of the victim

and as per Medical Science, rigor mortis develops in full body

in about 18 hours, which shows that she must have died much

earlier to her bringing to Paras Hospital. Admission and

treatment of the victim at Paras Hospital was stage - managed to

show that she had died at hospital in course of treatment.

51. Considering the aforesaid facts and circumstances,

there is no hesitation to hold that there is sufficient material on

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record to frame charge against the petitioner under Section 304

B of IPC. Hence, there is no illegality or infirmity in the

impugned order, nor is any abuse of the process of Court or

miscarriage of justice.

52. The present petition is dismissed, accordingly,

upholding the impugned order.

chandan/ravisha

nkar/shoaib

(Jitendra Kumar, J.)

AFR/NAFR AFR

CAV DATE NA

Uploading Date 29.04.2024

Transmission Date 29.04.2024