RAMESHBHAI SURCHANDBHAI MEHDANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE applicants being original accused Nos.2 to 7 in Criminal Case No.2606 of 2004 pending before the Judicial Magistrate First Class at Surat are respectively father-in-law, mother-in-law, brother-in-law, sister-in-law, brother-in-law and sister-in-law of the original complainant, who is respondent No.2 in present application. The private complaint is filed by respondent No.2 u/ss.498, 323, 504, 506(2) and 114 of the Indian Penal Code r/w.Sections 3 and 7 of Dowry Prohibition Act. The present Revision Application is against the order dated 18.2.2008 below Exhs.9 and 16 in such Criminal Case No.2606 of 2004, whereby the learned Magistrate has rejected the request of discharging such accused u/s.245(2) of the Code of Criminal Procedure by dismissing such application.

(2.) THE scope of consideration in such Revision Application against the order u/s.245(2) of Cr.P.C. is quite narrow, whereby what Court has to examine is the only question that whether there is prima-facie allegation against the accused in the complaint and whether there is prima-facie evidence regarding commission of such offence by the accused persons. If there is prima-facie allegations and evidence as stated herein above against any person, then, it would not be appropriate either for the trial Court or for this Court to discharge any accused without facing the trial, because, ultimately, it would be decided during such trial only that whether accused has committed any offence or not. In other words, decision regarding commission of offence by the accused cannot be arrived at without a trial against such person, if there is prima-facie allegation and evidence against him. Otherwise, it is quite clear that every accused is innocent unless his guilt is proved without reasonable doubt. In view of such settled legal position, it is also clear that a person can be discharged from any criminal trial if there is no allegation or prima-facie evidence against him, either in the FIR or during investigation and in the chargesheet.

(3.) THE original complaint is dated 22.09.2004, copy of which is on record at Annexure-B. Perusal of such complaint, makes it clear that the paternal house of the respondent No.2 is at Surat and her father is doing the business of diamonds and, thereby, they seem to be well to do people, if not extra rich. It further reveals that in the complaint itself, the respondent No.2 has specifically admitted that all the main members of his in-law s family i.e. his father-in-law and two brother-in-laws are residing separately with their families and that her sister-in-law petitioner No.4 is residing at Mumbai with petitioner No.3. It is also admitted fact that one of the brother-in-law is residing at Aligarh in Uttarpradesh whereas only one brother-in-law is residing at Vijayawada in Andhra Pradesh, whereas father-in-law of the respondent No.2 is residing with his family at Vijayawada. It is also not disputed that the marriage of the complainant was solemnised in the year 2002 with Sandip R.Mehdani, son of petitioner No.1 herein and, thereafter, she has started to reside at Vijayawada, Andhra Pradesh with her in-laws where she was being tortured by petitioner No.2 and petitioner No.6. It is also alleged in the complaint that even her husband as well as petitioners No.1 and 5 were torturing her and, therefore, she has left the matrimonial house within a month and, thereafter, she has to stay at her father s house for more than two months. After two months, her husband has taken her to their house where again for one year, she was tortured and mishandled by petitioners No.1, 2, 5 and 6 and her husband Sandip R.Mehdani. There is one line allegation against petitioners No.3 and 4 that she was instigating the family members at Vijayawada to harass the complainant. Whereas, there are clear allegations regarding ill-treatment, harassment, physical torturing and demand of dowry by petitioners No.1,2,5 and 6. Complainant/respondent No.2 has specifically alleged in the complaint that there was a demand of more than Rs.5 Lacs with a threat that if such amount is not paid, she may be dragged out of the house. There is also specific averment that the demand was also for a shop with threat to kill the complainant on