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2009 DIGILAW 239 (GAU)

Bikash Das @ Ranadhir Das v. State of Tripura

2009-04-06

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. The challenge in this criminal revision petition is to the order dated 2.8.2008 passed by the learned Sessions Judge. South Tripura, Udaipur in S.T. No. 16 (S.T/U) of 2008 rejecting the prayer made under Section 227 of the Criminal Procedure Code ('Cr.PC') and thereby deciding to frame charges under Section 376(1) and 366A of the Indian Penal Code ('IPC'). 2. Heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. S. Ghosh, Learned Counsel for the accused-petitioner, Mr. A. Ghosh, learned Additional Public Prosecutor for the State-respondent and Mr. D. Bhattacharjee, Learned Counsel for the private-respondent (informant). 3. The prosecution case, in brief, is that on 12.3.2003 the informant Mr. Amal Kumar Nandy lodged an FIR with the R.K. Pur Police Station, South Tripura, Udaipur alleging that on 10.3.2007 while his minor daughter Smt. Jayasree Nandy, aged about 16(sixteen) years 6(six) months was returning home from her school, namely, Hariananda School, Shri Bikash Das, the accused-petitioner had forcibly taken her in a Maruti Car. On receipt of the said information, police registered a case and launched investigation into the matter. At the close of the investigation, police submitted charge sheet against the present accused-petitioner for the offence under Section 366 of IPC. 4. The offence being exclusively triable by the Court of Sessions, was committed to the court of Sessions and the learned Sessions Judge, having heard both the sides and considering the petition under Section 227 of Cr.PC, by the impugned order dated 2.8.2008 decided that there was sufficient materials to proceed against the accused-petitioner for the offence under Sections 366A and 376(1) of IPC. Accordingly, the learned Sessions Judge fixed the matter for framing charge under the said sections of IPC. 5. Being aggrieved by the impugned order, the accused-petitioner has come up with this revision petition under Section 397 of Cr.PC seeking, an order for setting aside and quashing the impugned order aforesaid. 6. Mr. Accordingly, the learned Sessions Judge fixed the matter for framing charge under the said sections of IPC. 5. Being aggrieved by the impugned order, the accused-petitioner has come up with this revision petition under Section 397 of Cr.PC seeking, an order for setting aside and quashing the impugned order aforesaid. 6. Mr. A.K. Bhowmik, learned senior Counsel appearing for the accused-petitioner, taking this Court through the FIR and the statements of the witnesses recorded under Section 161 of Cr.PC and the statement of the victim girl recorded under Section 164 of Cr.PC submitted that there was no material on record to presume that the accused had committed the offence under Sections 366A and376 of IPC, and that the learned Sessions Judge committed gross illegality by deciding to frame charges under Sections 366A and 376(1) of IPC. The learned senior Counsel further submitted that the girl, at her own will, went with the accused-petitioner and that was no element of inducement promise or force from the side of the accused-petitioner and as such the accused-petitioner was entitled to be discharged. In support of his contention, the learned senior Counsel has placed reliance on the following decisions: 1. Golapi Bibi and Anr. v. State of Assam (2004) Cri.LJ 2009. 2. State of Kerala v. Rajayyan and Ors. (1996) Crl LJ 145. 3. Union of India v. Prafulla Kumar Samal and Anr. AIR 1979 SC 366 . 4. Satish Mehra v. Delhi Administration and Anr. (1996) 9 SCC 766 . 5. Santi Prasad Goenka and Anr. v. Union of India (CBI) (2006) 4 GLT 448. 6. Biswanath Ghosh v. The State AIR 1957 Cal. 589 . 7. S. Varadarajan v. State of Madras AIR 1965 SC 942 . 7. In reply to the said contention of the learned senior Counsel for the petitioner, Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the State-respondent submitted that under the provision of Sections 227 and 228 of Cr.PC, existence of suspicion towards the commission of an offence was sufficient to frame charge under Section 228 of Cr.PC. Referring to the FIR, the earned Addl. Public Prosecutor submitted that in the FIR, the father of the minor girl, who was the lawful guardian of the girl, clearly stated that his daughter was forcibly taken away by the accused-petitioner in a Maruti Car. Referring to the FIR, the earned Addl. Public Prosecutor submitted that in the FIR, the father of the minor girl, who was the lawful guardian of the girl, clearly stated that his daughter was forcibly taken away by the accused-petitioner in a Maruti Car. It is further submitted by him that the accused-petitioner by taking the minor girl in the alleged way committed the offence of kidnapping and that there was sufficient reasons to believe that he committed the offences under Sections 366A and 376(1), IPC. It is also submitted by him that the cases referred to by the learned senior Counsel for the petitioner relate to cases of acquittal after full trial and that as there is sufficient ground to presume commission of the offences aforesaid it will be too early a stage to hold that there is no incriminating evidence against the accused. Supporting the contention of the learned Additional Public Prosecutor, Mr. D. Bhattacharjee, Learned Counsel appearing for the private-respondent submitted that there is sufficient material to presume that the accused-petitioner had taken away the minor girl from the keeping/protection of the natural guardian inasmuch as there is material to show that the accused had brought the vehicle and took the girl to his house, wherein he married her. He placed reliance on Prakash v. State of Haryana (2004) 1 SCC 339 . 8. By the impugned order the learned Sessions Judge has decided that there is sufficient materials for framing of charge under Sections 366A and 376(1) of IPC. Section 227 of Cr.PC, provides the provision for discharge which reads as follows: 227. Discharge. - If, upon consideration of the record of the case and documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this, behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 of Cr.PC provides the provision under which the charge can be framed and the said provision reads as follows: 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. Section 228 of Cr.PC provides the provision under which the charge can be framed and the said provision reads as follows: 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 change 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. 9. In the case of Santi Prasad Goenka (supra), this Court held that the only acceptable test for discharging the accused at the stage of framing of charge is whether there was sufficient ground for proceeding against the accused or presuming that the accused has committed an offence. In the case of Satish Mehra (1996) 9 SCC 766 , the Apex Court held that for framing of charge under Section 288 of Cr.PC there should be sufficient ground for proceeding against the accused. In the case of Prafulla Kumar Samal (supra) the Apex Court held that while considering the question of framing the charges under Section 277 of Cr.PC the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. If the materials placed before the court lead grave suspicion against the accused which cannot be properly explained, the Judge will be justified in framing a charge and proceeding with the trial. The test to be applied to finding out a prima facie case, the fact of each case is to be considered and there cannot be any rule of universal application in this regard. If there is grave suspicion indicating involvement of the accused, charge can be framed. The test to be applied to finding out a prima facie case, the fact of each case is to be considered and there cannot be any rule of universal application in this regard. If there is grave suspicion indicating involvement of the accused, charge can be framed. In the case aforesaid the Apex Court also held that the Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as it he was conducting a trial. 10. A careful reading of Sections 227 and 228 of Cr.PC reveal that order for discharge may be made if there is no sufficient ground for proceeding against the accused-petitioner and under the provision of Section 228 of Cr.PC, charge can be framed if there is ground for presuming that the accused-petitioner had committed an offence. In view of the above, charge can be framed if there exist ground for presumption that the accused had committed the offence proposed to be charged. 11. Keeping in mind the above principle, let me examine if there is prima facie case indicating involvement of the accused-petitioner in commission of the offences under Section 366A/376(1) of IPC. Section 366 of IPC provides penal prevision for procuration of minor girl under the age of eighteen years. Section 366A reads as follows: 366A. Procuration of minor girl. - Whoever, by any means whatsoever induces, any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. 12. In the case of State of Kerala v. Rajayyan and Ors. 1996 Crl. LJ 145, at paragraph 6 it was held in order to hold guilty of offence under Section 366A of IPC, a prosecution has to show that the minor girl was induced to go from any place or to do any act with intent that such girl may be, knowing, that it is likely that she will be, forced or seduced to illicit intercourse with another person. 13. 13. In the case of Prakash v. State of Haryana (2004) 1 SCC 339 , the Apex Court held that the words "takes or entices any minor...out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of word "keeping" connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises. It was held "on plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview." There is essential distinction between "taking" and "enticing". In the case of State of Kerala v. Rajayyan (supra) it was held that the mental attitude of the minor is not of relevance in the case of taking and the word "take" means to cause to go, to escort or to get into possession. In the case of Biswanath Ghosh (supra) it was held that to hold an accused person guilty under Section 366 of IPC there must be active participation of the accused in taking the girl. In the case of S. Varadarajan, (supra) the girl telephonically called the accused to a particular place and there from she went with him in his car to the Registrar's Office for marriage. Thereafter an agreement to many was written and the same was registered. While dealing with the criminal appeal the Apex Court held that as the girl had herself gone with the accused, there was no element of taking her by the accused from her lawful guardian. It was also held that the girl, who was at the verge of attaining majority willingly accompanied the accused-appellant and as such no offence under Section 366 of IPC was established against the accused-appellant. In the case of Khalandar Saheb In re AIR 1955 AP 59 , it was held that when the accused took the minor with him, whether she was willing or not, the act of taking was complete and the condition was satisfied. In the case of Shabir Rashid v. The State 1969 Crl. In the case of Khalandar Saheb In re AIR 1955 AP 59 , it was held that when the accused took the minor with him, whether she was willing or not, the act of taking was complete and the condition was satisfied. In the case of Shabir Rashid v. The State 1969 Crl. LJ 1282 (Del.), it was held that as the prosecutrix was a minor girl of thirteen and half years old, her consent was not material and as such the conviction under Sections 366/376 of IPC was maintained. 14. A clear reading of Section 366A of IPC indicates that in order to hold a person guilty under Section 366A it must be proved that he had procured the minor girl by any means whatsoever and induced the said minor girl under the age of eighteen years to go from any place with the intention that she would be forced or seduced to illicit intercourse with another person. Therefore, it a person takes a minor girl either by inducement or otherwise for being seduced by himself or for having sexual intercourse with him, such person can be booked under Section 366A of IPC. The meaning of "inducement" has been discussed by this Court in the case of Santi Prasad Goenka (supra). To hold a person guilty there must be elements of persuasion, influence, prevailing upon or allurement to do something. In the FIR, the father of the victim stated that the accused had forcibly taken away his minor daughter. The FIR is silent regarding any such inducement. In her statement under Section 161of Cr.PC the victim girl stated that the accused was known to her for the last one year and that she had sent a letter to the sister of the accused requesting her to inform the accused to come with a vehicle on 10.3.2007 to take her along with him. Accordingly, on 10.3.2007 the accused and his brother came with a Maruti Car and took her to Bishalgarh where they stayed in the house of the aunt of the accused and got married. In her statement under Section 164 of Cr.PC the victim girl stated that on the basis of the message sent by her the accused went near their school, wherefrom she went with the accused. In her statement under Section 164 of Cr.PC the victim girl stated that on the basis of the message sent by her the accused went near their school, wherefrom she went with the accused. She stated that she went to the house of the accused with the accused and stayed in the house of the accused for the night and thereafter they got married. A careful reading of the statement made under Sections 161 and 164, Cr.PC will indicate that on being requested by the minor girl the accused had come with a Maruti Car and she was taken to the house of the accused in the said Maruti Car, where they got married. Smt. Shatabdi Majumder, Smt. Bulti Debnath and Smt. Hira Das, all students of the same school, who also accompanied the victim girl on the fateful day from the school stated that the victim girl had boarded a Maruti Car. None of them stated anything regarding inducement or force applied by the accused-petitioner. In view of the above, it appears that there was no material on record indicating existence of a prima face case for presuming that the accused had committed an offence under Section 366A of IPC. Taking of a minor girl from the custody of the lawful guardian does not itself amount to commission of an offence under Section 366A of IPC if such faking is not preceded by inducement to go from one place with the intent that such girl may be or knowing that such girl is likely to be forced or seduced to illicit intercourse with another person. The ingredient of inducement or intention to seduce to illicit intercourse with another person is not at all available in the present case. Therefore, the learned Sessions Judge failed to apply his mind to the provision of Section 366A of IPC while deciding to frame charge under Section 366A of IPC. Thus, the learned Sessions Judge committed error and illegality by deciding to frame charge under Section 366A, IPC without sufficient ground to presume that the accused committed the said offence the learned Sessions Judge further decided to frame charge under Section 376(1) of IPC also. Section 376(1) of IPC is a penal provision for committing rape. Section 375 of IPC defines the rape as follows: 375. Rape. Section 376(1) of IPC is a penal provision for committing rape. Section 375 of IPC defines the rape as follows: 375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following, descriptions: First. - Against her will. Secondly. - Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. - With or without her consent, when she is under sixteen years of age. 15. In the FIR it was mentioned that the age of the victim girl was 16 years 6(six) months and the school certificate indicates that her date of birth was 15.7.1990. Therefore, her age on the date of occurrence was 16 years 7 months. The victim girl, in her statement under Section 161 as well as under Section 164, Cr.PC nowhere stated that the accused had sexual intercourse with her against her will or consent. Rather, she did not whisper anything regarding rape. The learned Sessions Judge came to finding that as the accused had married the victim girl he had committed the offence under Section 376(1) of IPC and therefore decided to frame charge under Section 376(1) of IPC. Fact remains that the girl though a minor was aged about 16 years 7 months, i.e., not under the age of 16 years. Therefore, the decision to frame charge under Section 376(1) of IPC is without any material on record to presume that the offence under Section 376(1)), IPC was committed. Therefore, the same cannot stand the test of scrutiny to presume that the accused committed the offence under Section 376(1), IPC. Therefore, the decision to frame charge under Section 376(1) of IPC is without any material on record to presume that the offence under Section 376(1)), IPC was committed. Therefore, the same cannot stand the test of scrutiny to presume that the accused committed the offence under Section 376(1), IPC. In view of the above discussion, I am of the considered view that the decision of the learned Sessions Judge to frame charges under Sections 366A and 376(1) was not lawful and as such the impugned order is liable to be set aside, which I do. 16. The learned Additional Public Prosecutor and the Learned Counsel appearing for the private-respondent have submitted that this was not a case without any evidence. It is submitted that there is sufficient materials on record to presume that the accused committed the offence under Section361 or IPC. Section 366 of IPC provides the punishment for kidnapping. The offence "kidnapping" has been defined in Section 359 of IPC, which indicates, that the kidnapping may be of two kinds, i.e., kidnapping from India and kidnapping from lawful guardianship. The Learned Counsel for the private-respondent strenuously argued that the accused-petitioner by bringing the Maruti Car, even at the request of the victim girl, assisted the girl to go with him from the custody/keeping of her father and took her to his residence in the said vehicle and got her married there and thus committed the offence of taking the minor girl from the keeping/custody and protection of her lawful guardian. In reply to the contention, the learned senior Counsel appearing for the petitioner argued that as the girl went with the accused at her own will, the accused Cannot be held liable for committing any offence. Section 361 of IPC reads as follows: Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of Unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 17. In our present case in hand, the father of the victim girl in his FIR alleged that the accused-petitioner had forcefully taken away his minor girl. 17. In our present case in hand, the father of the victim girl in his FIR alleged that the accused-petitioner had forcefully taken away his minor girl. In her statement made under Section 161 of Cr.PC the victim girl stated that the accused had brought a Maruti Car and she was taken to Bishalgarh. Of course, she stated that she had voluntarily boarded the vehicle. In the statement under Sections 161and 164, Cr.PC it was stated that the accused-petitioner had taken the victim girl in the vehicle brought by him and married her. 18. In the facts and circumstances of the case and on the basis of the materials on record, the learned Trial Judge may examine the matter regarding framing of charge, if any, under the appropriate provision of law if sufficient ground is found for presuming that the accused-petitioner had committed any offence. 19. In the light of the above, this revision is allowed and the impugned order dated 2.8.2009, aforesaid is set aside. The case is remanded to the trial court for reconsideration regarding framing of charge. Accordingly, this revision petition stands disposed. Petition allowed.