Framing of Charges; Om Prakash Shyamdasani Vs. State of U.P. [Allahabad High Court, 08-07-2016]

Indian Penal Code, 1860 – Section 202 – Intentional omission to give information of offence by person bound to inform – A bare perusal of Section 202 I.P.C. would disclose the knowledge of commission of offence and furnishing this information are all questions of facts which cannot be adjudicated in the petition under Section 482 Cr.P.C. or even at the stage of framing of charges. [Om Prakash Shyamdasani Vs. State of U.P.]


HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble Bharat Bhushan,J.

08.07.2016

APPLICATION U/S 482 No. – 25234 of 2015

Applicant :- Om Prakash Shyamdasani And 3 Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Sharique Ahmed,Dileep Kumar

Counsel for Opposite Party :- Govt. Advocate,Sangam Lal Kesarwani,Vinay Saran

1. Applicants Om Prakash Shyamdasani, Smt. Poonam Shyamdasani, Mukesh Shyamdasani and Kamlesh Shyamdasani have directed this application under Section 482 Cr.P.C. against the impugned order dated 3.8.2015 passed by the Sessions Judge, Kanpur Nagar in Sessions Trial No.36 of 2015 (State Vs. Piyush Shyamdasani and others) whereby discharge application moved by the applicants has been rejected and subsequently they have been charged under Section 202 I.P.C. on 4.8.2015.

2. Brief facts in the nut shell are that marriage of co-accused Piyush Shyamdasani was solemnized with deceased Jyoti Shyamdasani on 28.11.2012 according to Hindu rites and on 27.7.2014 co-accused Piyush Shyamdasani took his deceased wife Jyoti Shyamdasani for dinner at restaurant in Kanpur Nagar. After sometime Piyush Shyamdasani lodged an F.I.R. at Police Station Swaroop Nagar, District Kanpur Nagar bearing Crime No.151 of 2014 under Sections 323, 147, 392, 364I.P.C. alleging that some 7-8 unknown miscreants had attacked his wife while he was coming back in his Honda Accord Car (U.P. 78 BR 5009) from restaurant. The miscreants abducted his wife and ran away with his car.

3. In the intervening night of 27-28.7.2014 the corpse of Jyoti Shyamdasani was recovered during investigation and some persons namely, Awadhesh Chaturvedi, Renu @ Akhilesh Kanaujia, Sonu Kashyap and Ashish Kashyap etc. were arrested from whom weapon as well as some articles of jewelry belonging to deceased Jyoti Shyamdasani were allegedly recovered. Therefore, Section 302 and 120 B I.P.C. etc were added in the case.

4. The report was lodged by the husband Piyush Shyamdasani but investigation took interesting turn. Police concluded that the entire episode was managed by husband Piyush Shyamdasani and some of the family members and deceased Jyoti Shyamdasani was done to death at their instance.

5. Subsequent to investigation a charge sheet was filed under Sections 302 I.P.C against co-accused persons while charge sheet under Section 202 I.P.C. was submitted against the applicants. The case was committed to the court of Sessions. State as well as respondent no. 2 Shanker Nath Dev, father of deceased moved application for framing of charges under Sections 302, 120-B,201 and 202 I.P.C. against the applicants also. A discharge application was moved on behalf of applicants even under Section 202 Cr.P.C. claiming that they have been roped in merely because they are helping their son Piyush Shyamdasani and they have been falsely implicated in order to deter them from conducting the pairavi of co-accused Piyush Shyamdasani.

6. The trial court considered the arguments of both parties and thereafter concluded that there are sufficient material against the applicants for framing of charges under Section 202 I.P.C. The court also concluded that there is no material to support charges under other section, so discharge application was dismissed. By the same order the trial court also concluded that there is sufficient material to frame charges against Piyush Shyamdasani under Sections 364, 302, 201,203 and 120-B I.P.C. Co-accused were also charged under Sections 364, 302, 201, 203 and 120-BI.P.C. read with Section 34 I.P.C. The charges were framed on next date i.e. on 4.8.2015. This order is under challenge before this Court at the instance of applicants.

7. Heard Sri Dileep Kumar for applicants, Sri Vinay Saran and Sri Sangam Lal Kesarwani for respondent no. 2 and learned A.G.A. on behalf of State.

8. Learned counsel for applicants has argued that applicants have been falsely implicated merely because they are related to co-accused Piyush Shyamdasani, the husband of deceased Jyoti Shyamdasani. They were neither present at the place of occurrence nor is any evidence against them. Om Prakash Shyamdasani is father and Smt. Poonam Shyamdasani is mother of co-accused Piyush Shyamdasani. They have been falsely implicated at the instance of respondent no. 2 while there is virtually no evidence against them.

9. It is submitted that ingredients of Section 202 I.P.C. are that the intentional omission to give information of offence by person bound to inform, is not fulfilled in the instant case for the simple reason that as soon as the applicant no. 1 received information from his son Piyush Shyamdasani, he immediately informed the Police by way of dialing No. 100 within short span of time. It is also stated that on the date of incident Sri Om Prakash Shyamdasani and his other son Mukesh Shyamdasani, applicant no. 3 had gone to railway station, Kanpur Central for boarding Shramshakti train for traveling to New Delhi on their prior reservation. They occupied the berth coupe. The information was received by them while sitting in Shramshakti train. As soon as information was received by them from Piyush Shyamdasani about the abduction of deceased Joyti Shyamdasani by unknown miscreants, both Om Prakash Shyamdasani and Mukesh Shyamdasani immediately left the train along with their luggage and boarded their car which was already parked at the railway station.

10. Learned counsel for applicants have further argued that they informed the Police by dialing No. 100 though this information was communicated by them in a distressed mental state. It has been further submitted that ingredients of Section 202 I.P.C. are not available in the case and they have been falsely implicated despite the fact that both of them were not present at the place of occurrence.

11. Per contra Sri Vinay Saran, learned counsel for respondent no. 2 and learned A.G.A. have submitted that disputed questions of fact and evidence and disputed defence of accused cannot be taken into consideration at this stage. It is settled position of law that charges can be framed by the competent court of law on the basis of strong suspicion alone. They have drawn the attention of this Court towards the call details, other relevant evidence and conduct of entire family to demonstrate that the entire family was involved completely in the murder of deceased Jyoti Shyamdasani.

12. Learned counsel for respondent no. 2 has submitted that co-accused Piyush Shyamdasani was involved with another woman and still married Jyoti Shyamdasani in arranged marriage and that; Piyush Shyamdasani and his family conspired with his paramour to assassinate Jyoti Shyamdasani. The attempt to create the evidence of alibi by presenting railway tickets etc. is nothing but an evidence of mens-rea. Sri Saran has also drawn the attention of this Court towards the call details of accused persons which indicate that co-accused Piyush Shyamdasani communicated them at 23:42:54 yet they waited for about an hour to lodge the F.I.R. The call to Police at 100 number was made at 00:09:15. It is relevant to submit that only single call was made at 100 number whereas all accused persons got the information of the alleged incident through Piyush Shyamdasani on their respective mobiles but none of them made any phone call on 100 number till 12:09 hours. Applicant Om Prakash Shyamdasani made call only on 12:09 hours. Sri Saran has further argued that the call details and the conduct of applicants indicate that despite the abduction of daughter-in-law Jyoti Shyamdasani, they did not show any sigh of panic and strangely did not go to Police Station for lodging F.I.R. or made any attempt for recovery of Jyoti Shyamdasani from the clutches of alleged kidnappers. The family is admittedly very wealthy owning several vehicles and drivers at their disposal. They could have easily made attempts to search young and newly married daughter-in-law yet no attempt was made and no information was furnished on time to the Police.

13. Law regarding framing of charges is now well settled. It is permissible for a trial Judge to sift and weigh the evidence for the limited purpose of finding out whether or not prima facie case against the accused has been made out or not. The material to determine prima facie case would depend upon the facts of each case. However it is not expected to decide the credibility and truthfulness of the available material at the stage of charge. The disputed defence of accused cannot be taken into consideration at this stage. Sufficiency of material or evidence is not required for framing of charges unless court finds that the materials are completely and absolutely absent for the purpose of trial. It is well settled that when there is evidence indicating strong suspicion against accused, the trial court will be justified in framing of charge and granting an opportunity to the prosecution to bring on record the entire evidence for the purposes of trial.

14. The Courts are not expected to conduct roving and fishing inquiry into credibility of material at this stage. The trial court is also not required to evaluate the available evidence on merits at this stage or to conclude on the merits of defence case at this stage.

15. In