The Lucknow Bench of the Allahabad High Court while dismissing the petition said that once the court comes to the conclusion to frame the charges, reasons are not required to be recorded, but, as soon as the court decides to discharge an accused, it is incumbent upon the trial court to record the reasons in writing.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing a petition filed by Smt Sangeeta Shukla.
By means of the application, the applicant has assailed the orders dated 26-06-2023 passed by the Additional District and Sessions Judge/Special Judge, POCSO Act, Lucknow, by which, the charges were framed against the applicant under sections 323 & 506 of I.P.C and Section 10 of the POCSO Act, in Sessions Trial arising out of first information report Police Station-Cantt, District-Lucknow.
Further has assailed the charge sheet submitted in first information report with the paper book as well as the summoning order dated 24-08-2022.
The facts of the case are that the applicant and her husband namely Lt Colonel, Shiv Narain Shukla,(opposite party no 3), were known to each other since before their marriage and the marriage was solemnized on 23-03-2006 at Pathankot. Soon after their marriage, the applicant and her husband started living at Pathankot in army camp and thereafter two daughters, one aged about 14 years and her younger sister aged about 13 years, were born out of their wedlock on 13-01-2008 and on 12-09-2009 respectively.
After the marriage, the husband of the applicant was posted at different places and when he was posted at Pune, in-laws of the applicant visited over there and started humiliating the applicant while taunting that the applicant is failed to give birth to a male child and she was also beaten by them.
He added that on the instigation of in-laws, the husband of the applicant had also become hostile and he usually beat the applicant and also started assassinating her character and when this became unbearable, the applicant made a complaint to the nearest police station at Barabanki and narrated the entire incident and both were called upon, wherein, the husband of the applicant apologized before the police officials and assured that he will mend his ways.
Thereafter, the opposite party no 3 was posted at IIT Bombay for pursuing his M.Tech Course, but, the husband of the applicant refused to take the applicant and her minor children and thus, the applicant took a flat on rent at Ansal API, Lucknow and stayed there with her minor daughters. Further a flat was purchased in the joint names of the applicant and her husband, wherein; most of the amount was paid by the applicant and the E.M.I’s against the loan amount has been paid by her.
Further argued that in the year 2017, the husband of the applicant took signatures of the applicant on the blank paper with ill motive and in the year 2019, misusing those papers, he succeeded to get decree of divorce and he started torturing minor daughters and instigated them against their own mother. The applicant narrated her plight to the senior officials before the Army Wives Welfare Association. He added that in the month of April,2021, the opposite party no 3 i.e the husband of the applicant, took away the children from the school and pressurized the applicant to resign from school. Thereafter, the children again got admissions in the month of October, 2021, in the A.P.S, Bhatinda on the several request of the applicant.
It has also been said that on 21-12-2021, the husband of the applicant tried to kill her by pressing a quilt over her mouth and tried to smother her. On 25- 12-2021, the applicant gave an application at one Staff Centre/Asha Jyoti Kendra, Lucknow and to the Regional President, Army Wives Welfare Association, narrating her plight and the immense physical and mental harassment caused by her husband, but, due to the influence of her husband, the applicant was denied any maintenance from AWWA .
He contended that being puzzled and harassed by the opposite party no 3, the applicant lodged the first information report on 27-12-2021, which was registered as First Information Report at Police Station-Cantt, District-Lucknow under sections 498-A,323,504 & 506 of I.P.C and Section 3/4 of the Dowry Prohibition Act, thereby stating that she is being mentally tortured and dowry is also being demanded.
The Court observed that,
Having heard counsel for the parties and after perusal of material placed on record, it transpires that the first information report was lodged on 10-02-2022, under sections 323, 354, 506,120-B of I.P.C and Section 7/8 of the POCSO Act, 2012 at Police StationCantt., District-Lucknow, on the orders of U.P State Commission for Protection of Children’s Rights and thereafter, the statement of the prosecutrix was recorded under section 161 of Cr.P.C on 14-02-2022 and on 15-03-2022, the statement of the prosecutrix was recorded under section 164 of Cr.P.C and in both the statements, the prosecutrix has fully supported the version of the prosecution.
The charge sheet was filed by the Investigating Officer on 19-08-2022, under Sections 323 & 506 of I.P.C and section 9/10 of the POCSO Act, and thereafter, on 24-08-2022, the trial court took cognizance and summoned the accused persons for facing trial and in case of non appearance, the non bailable warrant was issued, wherein the applicant was arrested and sent to jail. For faster disposal of the matter, the Special POCSO Court separated the file of the applicant from the other co accused persons on 31-05-2023.
The Court noted that,
From perusal of the order, it transpires that in case of the non appearance of the applicant before the trial court, the non bailable warrant was issued, wherein an application was moved by the applicant for recall of the order of issuance of non bailable warrant and she was heard, after taking her in judicial custody and thereafter, the compliance of provisions of Section 207 of the Cr.P.C, has been done and the matter was directed to be posted after lunch session.
The court is aware of the fact that the charges have been framed against the applicant under the provisions of POCSO Act, wherein under section 35(2) of the Act, there is a provision that the Special Court dealing with the matters of the offences under the POCSO Act, shall complete the trial, as far as possible, within a period of one year, from the date of taking cognizance of the offence and therefore, the trial court very well proceeded in the matter, following the mandate abovesaid.
It is also evident that the applicant was avoiding her appearance before the trial court after issuance of the summons in the month of August, 2022, uptill she was arrested in the month of December, 2022 and the matter could very hardly put into motion by the trial court and the applicant appeared, after issuance of the non bailable warrant, which itself is overt that the applicant is trying to delay the matter, so that she could escape from the clutches of the law.
When the court examines the crux of the matter, as to whether the proper opportunity was accorded to the applicant or not; it emerges from the order dated 26-06-2023 that the compliance of the provision of Section 207 of the Cr.P.C is done by the trial court and thereafter, the matter was posted for after lunch session, wherein the applicant along with her counsel appeared and the counsel for the applicant was heard, which is apparent from the order itself. It also reveals that neither any application for adjournment of the case nor any objection was filed, regarding grant of further time and the applicant along with her counsel appeared before the trial court and opted for arguments on framing of charges.
The Court said that it is trite law that discharge is a valuable right of an accused and that cannot be circumvented, but, at the same time, there can be no straight jacket formula for examining that opportunity of discharge is in fact been accorded or not and this can be looked into as per it’s facts and circumstances, in each and every case.
“So far as the case is concerned, it is apparent from the impugned order itself, that the provisions of the Code including the provisions of Section 207 of Cr.P.C have very well been complied with and it is not the case of the applicant that even after an application for granting further time, the court has proceeded to frame the charges, contrary to it, the applicant along with her counsel was present before the trial court and counsel for the applicant was properly heard and therefore, there seems to be no merit in the contentions of the counsel for the applicant that the applicant was not afforded an opportunity to be heard on discharge.
The court has also prima-facie noticed that the endorsement, which has been shown on the order dated 26-06-2023, at pre lunch session, is not genuine and that has perhaps subsequently, been made as after having at a glance, on the order dated 26-06- 2023, it is evident that the applicant and her counsel appeared before the trial court in the post lunch session. Therefore, no prejudice is caused to the applicant as such.
In view of aforesaid submissions and discussions, the court finds no merit in the application”, the Court further observed while dismissing the petition.