BEGUM Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicants and learned A.G.A.

(2.) NOTICES were issued to the opposite party no. 2 and office report dated 28.4.2005 shows that it has been returned back after service. The opposite party no. 2 has not put in appearance despite notices having been served. In the circumstances, I proceed to decide this application finally.

(3.) I have gone through the judgment passed in Sessions Trial No. 889 of 1999 and on perusal of the same, it appears that all the witnesses produced by the prosecution were declared hostile and the learned Sessions Judge passed the judgment of acquittal coming to a conclusion that Smt. Gulshan died on account of illness and not in any abnormal circumstances, as such a clear order of acquittal was recorded. After hearing counsel for the applicants and learned A.G.A., it is evident that the police has submitted a charge sheet against the present applicants which is sought to be quashed in this application arising out of same F.I.R. in respect of which a judgment of acquittal has been passed in favour of the husband. In fact the evidence, which was produced in the Sessions Trial No. 889 of 1999, is common in the case of the applicants vide case No.13723/9/99. Previously the sessions court could consider the defence evidence at the stage of framing of the charge and if the court was of the view that there are sufficient grounds which goes to show that eventually the trial will end into an order of acquittal, the court could discharge. The position is not the same, the Apex Court has overruled the decision in the case of Satish Mehta Vs. Delhi Administration (1996) 9, SCC 766. It was ruled in the case of Satish Mehta (Supra) which was the decision of the two Judges Bench that if the accused succeeds in producing any reliable material at the stage of taking cognizance or framing of charge, which might fatally effect even the very sustainability of the case, then the court should look into those materials. It was ruled that Section 227 of the Code do enable the court to decide whether it is necessary to proceed to conduct the trial, meaning thereby the accused was not debarred from showing any material which could be said to be a defence at the stage of framing of the charge and in case the court was of the view that the accused were liable to be discharged on the basis of such material, it was fully competent to do so.