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2007 DIGILAW 666 (PAT)

Dharmbeer Prasad v. State Of Bihar

2007-04-03

J.N.SINGH

body2007
Judgment 1. Accused petitioner has filed this application for quashing of the order dated 25.8.2006 passed by the learned 2nd Additional Sessions Judge, Hilsa in Sessions Trial No. 532 of 2005, whereby the petition filed by the petitioner under Sections 227 and 228 of the Code of Criminal Procedure for his discharge from the charges under Section 376 of the Indian Penal Code has been dismissed. 2. Prosecution was launched on the information of the informant opposite-party No. 2 recorded by the Sub-Inspector of Perswcai Police Station and forwarded to the Officer-in-Charge of Hilsa Police Station under Section 376 of the Indian Penal Code registered on 19.5.2004. As per fardbeyan, informant alleged that in the night of 18.5.2004 while she was sleeping on the roof of the house along with her children and husband was sleeping in the khalihan, at about 12.00 in the night petitioner scaled the roof and forcibly raped her. Initially she thought that it was her husband but later on petitioner himself disclosed his identity. On being asked by the informant, petitioner told that he had come by scaling the roof. At that time informant did not raise any alarm. Informant further stated that there was scuffle between the mother of the petitioner and the informant at the time of taking water from the Government Hand pipe in front of the house of the petitioner. Due to that scuffle petitioner had come out and assaulted the informant with slaps and fists and had removed the handle of the hand pipe. Informant further stated that due to that reason petitioner had come in the night and had raped her. She further stated that when she told this fact to herhusband, her husband forbade her from raising any alarm. However, husband of the informant was not in a fit mental condition and as such informant came to the Police Station and lodged the information. Petitioner has brought on record the statement of the informant recorded under Section 164 of the Code of Criminal Procedure on 21.5.2004 as Annexure-2 to this petition. 3. Learned counsel for the petitioner has pointed out that in the statement under Section 164 of the Code of Criminal Procedure recorded on 21.5.2004 the informant claimed that she was raped only last night. 3. Learned counsel for the petitioner has pointed out that in the statement under Section 164 of the Code of Criminal Procedure recorded on 21.5.2004 the informant claimed that she was raped only last night. She had further stated that she came to the police station a day earlier and had stayed there whole night which shows that either she was raped at the police station or no occurrence as claimed in the First Information Report had happened. Learned counsel for the petitioner further pointed out the supervision note of the Sub-Divisional S.P., Hilsa, annexed as Annexure-3 to the petition. The Sub-Divisional S.P. supervised the case on 20.6.2004 and concluded that no occurrence of rape had happened. Learned counsel for the petitioner further pointed out that the case was supervised by the Superintendent of Police, Nalanda also, a copy of which is annexed as Annexure-4 to the petition. In his supervision note the Superintendent of Police, Nalanda found the case true under Sections 341, 323 and 354 of the Indian Penal Code only and did not find the story of rape as made out in the FIR true. Accordingly, charge- sheet was submitted in the case under Sections 341, 323 and 354 of the Indian Penal Code only which has been annexed as Annexure-5 to the petition. Learned counsel for the petitioner further pointed out that the family members of the informant were examined during investigation and their statements were recorded but no family member of the informant supported the case of rape except for the statement of the husband who claimed the same to have been told by the informant. It was further contended on behalf of the petitioner that during investigation it has come that the victim lady was of bad character and false case has been instituted by her against the petitioner. It was further contended that the husband, father-in-law, mother-in-law, bhaisur, dewar, gotni and other independent witnesses, who gave statement before the police, did not support the case of rape at all. One informatory petition of the bhaisur of the informant has been referred to by the learned counsel for the petitioner, as contained in Annexure-7 to the petition, the canvass that the family members were also apprehending false implication at the instance of the informant. 4. One informatory petition of the bhaisur of the informant has been referred to by the learned counsel for the petitioner, as contained in Annexure-7 to the petition, the canvass that the family members were also apprehending false implication at the instance of the informant. 4. However, after submission of the charge-sheet, learned A.C.J.M., Hilsa (Nalanda) took cognizance against the petitioner under Section 376 of the Indian Penal Code, also. Thereafter, case was transferred to the Court of Sessions as the charge under Section 376 of the Indian Penal Code was triable by the Court of Sessions. Accordingly, at the time of framing of charge, petitioner filed a petition under Sections 227 and 228 of the Code of Criminal Procedure in the Court of Sessions for his discharge in view of the materials available on the record and for transfer of the case to the A.C.J.M., Hilsa for his trial under Sections 241, 323 and 354 of the Indian Penal Code as the same was triable by the Court of Magistrate. Said petition of the petitioner was rejected as aforesaid and hence this petition. 5. Learned counsel for the petitioner submitted that in view of the materials available on record, learned trial Court ought to have applied its judicial mind and ought to have considered the materials on record and discharged the petitioner from the offence under Section 376 of the Indian Penal Code. Learned counsel submitted that the trial Court has acted mechanically while considering the petition of the petitioner under Section 376 of the Indian Penal Code. 6. On the other hand, learned counsel for the opposite-party No. 2 submitted that at the stage of consideration of case under Sections 227 and 228 of the Code of Criminal Procedure, the Court was not required to meticulously examine the case and materials on record. It has to just scrutinise the materials available on record to come to the conclusion as to whether a prima facie case is made out or not. The test of materials available on record were not to be as rigorous as during trial and therefore, learned trial Court has rightly rejected the petition of the petitioner under Sections 227 and 228 of the Code of Criminal Procedure and no interference is called for from this Court in the matter. 7. The test of materials available on record were not to be as rigorous as during trial and therefore, learned trial Court has rightly rejected the petition of the petitioner under Sections 227 and 228 of the Code of Criminal Procedure and no interference is called for from this Court in the matter. 7. In support of his contention, learned counsel for the petitioner referred to the following judgments : 1. (1996) 9 SCC 766 : 1997 (2) East Cr C 607 (SC), Satish Mehra V/s. Delhi Administration. 2. 1997 (1) East Cr C 459 : 1997 (1) PLJR 466 , Sunil Kumar V/s. State of Bihar. 3. 1999 (3) PLJR 875, Bhagwan Das V/s. Rita Kumari. 4. 2000 (4) PLJR 90 (SC) : 2000 (3) East Cr C 945 (SC), State of Madhya Pradesh V/s. Mohan Lal Soni. As against this learned counsel appearing for opposite-party No. 2 referred to the following judgment : 1. (1997) 4 SCC 393 : 1997 (2) East Cr C 94 (SC), State of Maharashtra V/s. Priya Sharan Maharaj. 8. From the observations made by the different Courts as referred to by the learned counsel for the petitioner and learned counsel for opposite-party No. 2, the ratio of the judgments appears that at the time of exercising its power under Sections 227 and 228 of the Code of Criminal Procedure the Court has to apply its judicial mind. The Court has to take into account the materials available on record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution and then to come to a judicious decision as to whether sufficient grounds were made out for proceeding against the accused or not. For this purpose the Court can take into account whether gross suspicion against the accused arises in the matter or not; whether evidence produced was sufficient and whether accusation made out against the accused were reasonable and believable or not. For this limited purpose the Court can look into the materials collected during investigation and hear the submissions of the parties. For this limited purpose the Court can look into the materials collected during investigation and hear the submissions of the parties. It is true that the Court has not to apply the strict test of proof as is to be applied at the time of trial of the case for proving the charge but for coming to a judicious decision the Court has to apply its mind as to whether accusations made out by the prosecution are prima facie believable and probable or not. The Court is not to appraise the materials at this stage so as to assess the worth and come to a finding on the merits of the case. 9. Now coming to this case, it appears that while considering the application of the petitioner under Sections 227 and 228 of the Code of Criminal Procedure for his discharge from Section 376 of the Indian Penal Code and for remanding back the matter to the learned Magistrate for his trial under Sections 341, 323 and 354 of the Indian Penal Code, the trial Court has referred to/the statement made by the victim and has come to the conclusion that same is sufficient for framing of the charge against the petitioner under Section 376 of the Indian Penal Code. He further observed that the plea raised by the accused is fit to be seen at the stage of trial. I do not find any error in the same so as to call for interference at this stage. 10. In the result, this application is devoid of any merit and is dismissed accordingly.