SAKEENA BANO Vs. STATE OF U P

JUDGEMENT

(1.) THE instant criminal revision has been preferred by the accused-revisionists against the order dated 3.12.2010 passed by the Chief Metropolitan Magistrate, Kanpur Nagar in criminal case No. 22000 of 2009 relating to case crime No. 267 of 2009, State v. Sakeehna and others, under sections 498- A, 323 and 504, IPC, P.S. Rail Bazar, District Kanpur Nagar, Vide impugned order the learned Chief Metropolitan Magistrate, Kanpur Nagar has rejected the application of the accused- revisionist for discharge.

(2.) THE brief facts leading to the filing of the instant revision are that on 25.6.2009 an FIR was lodged by Smt. Daraksha Bano in police station, Rail Bazar District Kanpur Nagar with the allegations that her marriage was solemnised with co-accused Syed Gaffar Ali on 2.11 2006, Her in-laws were not satisfied with the dowry given in the (marriage She made the allegations against her mother-in-law Smt, Shakeela @ luhi, J,K,Ajad, bother-in-law (Jeth) and Smt. Shahida sister-in-law (Jethani) also for demanding additional dowry and subjecting her to physical and mental cruelty. Allegations for physically desalting her by kicks and fists and also giving her blows with belt were also made, On the basis of the Tahrir a case at crime No, 267 of 2009, under section 322, 504 and 498-A, IPC and 3/4 UP Act was registered, After Investigation charge-sheet was submitted against all the named accused persons. An application was moved on behalf of the revisionists praying that on the basis of facts of the matter and evidence collected by the police and on the basis of statement of the witnesses recorded in the case diary the applicants be discharged. Vide impugned order learned C.M.M. Kanpur Nagar has rejected the application.

(3.) LEARNED Counsel for the revisionist has submitted that the Hon'ble Supreme Court in Rukmini Narvekar v. Vijaya Satardekar, 2009 (66) ACC 480 (SC), has held that there cannot be an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of charges and the Court has further held that accused may be discharged in criminal proceedings even if a prima facie offence was made out. The order for discharge of an accused has to be passed taking all the facts and circumstances of the case into consideration. LEARNED Counsel has further submitted that on the basis of strong suspicion alone it cannot be concluded that the prosecution will succeed in proving the case against him and suspicion cannot take place of proof of the guilt. Now the Courts are not bound to follow the old practice of looking into the evidence proposed to be adduced by prosecution alone and not taking into account any defence evidence at all at the stage of framing of charge. Further submission of learned Counsel for the revisionist is that no specific allegation has been made against the revisionist in the case against them. Their implication has been made simply to harass and humiliate them. Further revisionist No. 1 is an aged lady and prosecuting her on the basis of vague allegations would amount to abuse of process of law. Reliance has been placed in support of the argument upon preeti Gupta and another v. State of Jharkhand and another,2011 (72) ACC 686 (SC) - 2011 (99) AIC 149 (SC). Neelu Chopra am another v, Bharti 2009 (SC) ACC 923 (SQ - 2009 (84) AIC 232 (SC), and P, Vijayan v. State of Kerala and another,2010 (68) ACC 744 (SC) - 2010 (87) AIC 167 (SC),