UTPAL SUBARNA v. STATE OF WEST BENGAL — 1996 DIGILAW 59 (CAL)

N. K. BATABYAL, J. ( 1 ) THIS revisional application is directed against the Order dated 26-8-92, passed by the Ld. Asst. Sessions Judge, Purulia, framing charge under Secs. 376/420/493 of the I. P. C. in SC Case No. 75 of 1991, arising out of Purulia Town, P. S. Case No. 143/1989 dated 2-8-89 under Section 376 and 420 of the IPC. ( 2 ) ON 2nd August, 1989, Ratna Chatterjee of Dulmi, Purulia lodged a petition of complaint before the Ld. Chief Judicial Magistrate at Purulia and the said complaint was sent to Purulia Town, P. S. Case for treating same as F. I. R. The petitioner who is a young man, gainfully employed, in Tata Yodogawa Ltd. is a resident of Vill. Muri of P. S.- Silli, Dist. Ranchi. Smt. Ratna Chatterjee and the petitioner were known to each other from before and the petitioner used to come to the house of the complainant. Ratna, O. P. No. 2 who is a graduate with Honours in Economics from Chaibasa College. In December, 1987, the petitioner came to the house of Ratna. He often visited in the absence of her father. Her mother was working at Muri. On 26th April, 1989 Ratna was alone in her house at mid-day and the maid servant was engaged in house-work; taking advantage of the situation the petitioner stealthily entered the room of Ratna and committed rape upon her by putting a pillow cover in her mouth and terrorising her by showing a knife. She tried to resist but in vain. Thereafter, the accused person twice committed inter course with her. He also told Ratna not to disclose the matter to any third person and assured her that he would marry her. She became pregnant and had been carrying for some weeks, when she went to Muri to tell her mother about the thing, and disclosed everything to her, then the mother told her father about it. Both of them informed the matter to the parents of the accused person when they agreed to the marriage of the petitioner with Ratna after his appointment at Gomaria. Thereafter, the accused petitioner and his parents refused to solemnize the marriage and there was thus a delay in filing the F. I. R. ( 3 ) THE Police after investigation submitted chargesheet on 30-1-90, u/secs. 376 and 420 of the IPC against the accused petitioner. Thereafter, the accused petitioner and his parents refused to solemnize the marriage and there was thus a delay in filing the F. I. R. ( 3 ) THE Police after investigation submitted chargesheet on 30-1-90, u/secs. 376 and 420 of the IPC against the accused petitioner. The Ld. Trial Judge by the impugned order has come to the findings that there are sufficient materials for the framing of charge u/s. 376/420/493 of the IPC. The main contention of the revisionist is that the impugned order passed by the Ld. Trial Judge is the result of non-application of mind and that materials on record do not make out any case under Sections 376, 420 and 493 of the IPC. The stand of the petitioner is that there was a love-affair between the petitioner and the Ratna and she was a consenting party to the alleged incident of co-habitation and therefore, the question of rape does not arise and she was also more than 18 years of age at the material time. According to the petitioner, there is no element for constitution an offence under Sections 420, 493 and 376 of the IPC. ( 4 ) NO one has appeared on behalf of the State, the ld. advocate on behalf of the opposite party No. 2 has hotly contested the matter. ( 5 ) IT appears from the certified copy of the statement of Ratna Chatterjee, Opposite Party No. 2 recorded under Section 164 Cr. P. C. that she gave out her age as 24 years on 5-8-89 and the occurrence took place on 26th April, 1989. It is prima facie obvious that the alleged victim girl was more than 18 years. The ld. advocate for the revisionist has submitted that there is absolutely no material for framing of a charge under Section 493 of IPC. The said Section contains two ingredients :- (I) deceit issuing false belief in the existence of lawful marriage;and (ii) co-habitation with the person causing such belief, ( 6 ) IN the instant case, it has been submitted that there is no whisper either in the FIR or in the statement of the victim girl recorded under Section 164, Cr. P. C. that the revisionist deceitfully caused a false belief in the existence of a lawful marriage with the victim girl. ( 7 ) THE ld. P. C. that the revisionist deceitfully caused a false belief in the existence of a lawful marriage with the victim girl. ( 7 ) THE ld. advocate for the revisionist has also submitted that for an offence under Section 420 IPC, there must be cheating and resulting delivery of property dishonestly. Therefore only cheating without dishonest inducement took part with property cannot make out prima facie case under Section 420 IPC. ( 8 ) THE ld. advocate for the revisionist has further framed that as the alleged victim girl was a consenting party and as she was a major at the material time, therefore, there is no element for framing of charge under Section 376 ICP. ( 9 ) MR. Sekhar Bose, ld. advocate appearing on behalf of the revisionist has banked upon the principles laid down in Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra ( AIR 1972 SC 545 : (1972 Cri LJ 329) and has submitted that it cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not, there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecution authorities by relying upon the documents REFERRED TO in Section 173 Cr. P. C. considered it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to consider judicially, the question of doing so. Without fully adverting to the material on record, it must not blindly adopt the decision of the prosecution. ( 10 ) MR. Bose has also REFERRED TO the law laid down instead of Karnataka v. L. Muniswami ( AIR 1977 SC 1489 ) : (1977 Cri LJ 1125 ). In that case, it was held, it is clear from Section 227 of the Cr. P. C. that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties, the Court comes to the conclusion, for reasons to be recorded, that there is no sufficient ground, for proceeding against the accused. In that case, it was held, it is clear from Section 227 of the Cr. P. C. that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties, the Court comes to the conclusion, for reasons to be recorded, that there is no sufficient ground, for proceeding against the accused. The object of the provision which requires the Sessions Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. In the exercise of the power under Section 482 Cr. P. C. the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. ( 11 ) IT has been further held, in that case, that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted is such on the basis of a conviction can be said reasonably to be possible. ( 12 ) MR. Bose has also drawn upon the law laid down in Niranjan Singh Karan Singh Panjabi v. Jitendra Bhimraj Bijjo ( AIR 1990 SC 1962 ) : (1990 Cri LJ 1869 ). Held; it seems well-settled that at the stage of the case under Section 227 and 228 of Cr. P. C. i. e. , stage of framing the charge, the Court is required to evaluate the material and document on record with a view to finding out if the facts emerging therefrom taken at the face-value disclose the existence of all the ingredients constituting the alleged offence. P. C. i. e. , stage of framing the charge, the Court is required to evaluate the material and document on record with a view to finding out if the facts emerging therefrom taken at the face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecutions states as Gospel truth even if it is opposed to common-sense or the broad probabilities of the case. ( 13 ) MR. D. Sengupta, ld. advocate appearing on behalf of the opposite party No. 2 has strongly opposed the contention of Mr. Bose. He has submitted that there are sufficient materials for framing of charge against the accused person in this case. In support of his contention Mr. Sengupta has cited State of Bihar v. Ramesh Singh ( AIR 1977 SC 2018 ) : (1977 Cri LJ 1606 ). Held, reading Sections 227 and 228 Cr. P. C. together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial, the truth, veracity, effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at the stage of the trial to consider any detail and sensitive balance whether the facts, it proved, would be incompatible with the innocence of the accused or not. The standard of test and judgement which is, to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 228 of the Code. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. ( 14 ) FURTHER held, strong suspicion against the accused, if the matter remains in the reason of suspicion, cannot take the place of the proof of guilt at the conclusion of trial. ( 14 ) FURTHER held, strong suspicion against the accused, if the matter remains in the reason of suspicion, cannot take the place of the proof of guilt at the conclusion of trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce, to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. ( 15 ) MR. Sengupta has also relied upon the principles laid down in Mrs. Dhanalakshmi v. R. Prasanna Kumar ( AIR 1990 SC 494 ) : (1990 Cri LJ 320 ). Held, Section 482 Cr. P. C. empowers the High Court to exercise its inherent powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate. It is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however; necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would need any conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations in the light of the statement on oath of the complainant that ingredients of the offence are disclosed and there is no material to show that the complaint is malafide, frivolous or vexatious, in that event, there would be no justification for interference by the High Court. ( 16 ) IT appears from a consideration of the submissions made by ld. ( 16 ) IT appears from a consideration of the submissions made by ld. advocates of both sides that even at the stage of framing the charge, the Court has undoubtedly to apply its mind judicially and it cannot be said that the Court must automatically frame the charge merely because the prosecution side relying upon the documents REFERRED TO in Section 173 Cr. P. C. considered it proper to institute the cases. The responsibility of framing the charge cannot be abdicated by the Court. The most important thing at the stage of the framing of the charge is to see whether it would be proper for the proceeding to continue on the basis of the material placed before the Court; if the materials do not justify the continuation of the proceeding then the framing of the charge would undoubtedly be an abuse of the process of the Court. Certainly, the Court, at that stage, can sift the material but only for a limited purpose. The Court cannot even at that stage accept all that the prosecution side states as Gospel truth, even if i. e. repulsive to the commonsense or to the probabilities of the case. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At the initial stage, if there is a strong suspicion (which cannot take the place of proof of guilt at the time of trial) which leads to Court to think that there is ground for presuming that the accused has committed an offence then it is open to the Court to hold that there is sufficient ground for proceeding against the accused. ( 17 ) IT is clear from the material on record and on the submissions made by the ld. advocates on both sides in this case that the essential ingredients of offence under Section 493 I. P. C. are not prima facie present. It is nobody's case that the accused-person deceitfully caused a false belief in the existence of a lawful marriage with the alleged victim girl. advocates on both sides in this case that the essential ingredients of offence under Section 493 I. P. C. are not prima facie present. It is nobody's case that the accused-person deceitfully caused a false belief in the existence of a lawful marriage with the alleged victim girl. So far as the offence under Section 420 is concerned, it appears that where there is delivery of destruction of any property or alteration or destruction of any valuable security resulting from the Act of the person deceiving, then Section 420 IPC comes into operation. For an offence under this Section it must be proved that the compliment parted with his property acting on a representation which was false to the knowledge of the accused and the accused had dishonest intention from the very outset. (vide Mobarick Ali's Case, 1958 SCR 328 : (1957 Cri LJ 1346 ). On the materials on record in this case, there was any parting with any property by the cheated person to the accused person. Therefore, the essential elements of an offence under Section 420 IPC are not present here. ( 18 ) SO far as the offence under Section 376 is concerned. The ld. advocate for the revisionist has submitted that the alleged victim girl was 24 years old at the material time and she did not complain to anyone immediately after the occurrence and in the context of the occurrence, there is a story of intimacy between the revisionist and the alleged victim girl spreading over quite a few years before the alleged occurrence. Be that as it may, the victim girl has stated in her statement recorded under Section 164 Cr. P. C. that she was raped against her will and when she tried to resist, she was over-powered and threatened with a knife. An explanation has also sought to be given why there was a delay in disclosing the material to the mother of the alleged victim girl. How far, these things will be proved at the time of trial is not the question to be decided at the stage. The general principle is that if the prosecution evidence is fully accepted before it is challenged in cross-examination cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial but that is not the case here. The general principle is that if the prosecution evidence is fully accepted before it is challenged in cross-examination cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial but that is not the case here. Therefore, it cannot be said that there in no material for framing any change under Section 376 I. P. C. against the accused-person. ( 19 ) IN view of the findings made above, the revisional application succeeds in part. Only the charges framed under Sections 420 and 493 I. P. C. are quashed and the remaining portion of the charge will stand. Order accordingly.