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SMT. LAXMI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Laxmi v. State Of U.P. And Others - APPLICATION U/s 482 No. 14642 of 2005 [2005] RD-AH 4152 (6 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT No.54

CRIMINAL MISC. APPLICATION NO. 14642 OF 2005

Smt. Laxmi....................................Applicant.

                                  Versus

State of U.P. and another.....................Opposite parties.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri R.P. Tripathi, learned counsel appearing for the applicant and learned A.G.A. for the State.

The prayer in this application is to quash the order dated 30.8.2005 passed in Session Trial No. 1418 of 2005 State Vs. Smt. Laxmi under Sections 498-A, 304-B I.P.C. read with Section 3/4 Dowry Prohibition Act alternate 302/34 I.P.C.  P.S. Sahibabad, District Ghaziabad.  The main objection on behalf of the applicant is that by means of the order dated 30.8.2005, which is a memorandum of charge, is against specific provision of the Code.  Learned counsel for the applicant has placed Sections 212, 213, 228 (2) Cr.P.C, the relevant provision of the Code is enumerated herein below:

Section 212. Particulars as to time, place and person.- (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219:

Provided that the time included between the first and last of such dates shall not exceed one year.

Section 213. When manner of committing offence must be stated.- When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.

                                    Illustrations

(a) A is accused of the theft of a certain article at a certain time and place.  The charge need not set out the manner in which the theft was effected.

(b) A is accused of cheating B at a given time and place.  The charge must set out the manner in which A cheated B.

(c) A is accused of giving false evidence at a given time and place.  The charge must set out that portion of the evidence given by A which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place.  The charge must set out the manner in which A obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place.  The charge need not state the manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save B from punishment.  The charge must set out the disobedience charged and the law infringed.

Section 228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Sessions, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

The objection is that provisions relating to framing of the charge prescribe that charge shall contain specific particulars regarding the time and place of the alleged offence and name of the person and also in respect of which an offence is alleged and the Judge shall also read and explain charge to the accused and shall ask whether he pleads guilty of the offence charged or claims to be tried.  Perusal of the order dated 30.8.2005 clearly shows that it starts from " Patravali Prastut Huyee" it does not appear that the memorandum of charge has yet been framed against the applicant.  It is only an order whereby the Additional Sessions Judge, Ghaziabad has expressed his opinion that prima facie he is of the view that a charge under Sections 498-A, 304-B or alternatively a charge under Section 302/34 will be made out as sufficient evidence is available.  The concluding line of the order clearly states that a charge under Section 498-A, 304-B I.P.C. is to be considered.  In view of the specific recital of the order, I do not feel that this is a memorandum of charge.  In fact, the Additional Sessions Judge, Ghaziabad has only passed an order to the effect that first question as to whether death of the deceased will be covered within the ambit of "Dowry death" or not and alternatively if the court comes to a conclusion that the deceased was not done to death within seven year of the marriage and was subjected to cruelty  for demand of dowry and the death is unnatural one, then alternatively the question of charge under Section 302 read with Section 34 I.P.C. will be considered.  In the circumstances, though I am in agreement with the argument of the counsel for the applicant that charge has to be necessarily framed in confirmation with Sections 212, 213 Cr.P.C.,  but I do not agree with the submission that the order dated 30.8.2005 is a memorandum of charge.  

Looking to the facts and circumstances of the case, I dispose of this application with a direction to the Additional Sessions Judge, Ghaziabad to proceed in Session Trial No. 1418 of 2005 and frame charge in accordance with law after going through the entire record available.

Dt. 6.10.2005

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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