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2009 DIGILAW 3765 (ALL)

AKSHAY KUMAR SHUKLA v. STATE OF U. P.

2009-12-15

AMAR SARAN

body2009
JUDGMENT AMAR SARAN, J. – Heard learned Counsel for the revisionists and Shri Rajendra Kumar Dwivedi, learned Additional Government Advocate. An order dated 9.10.2009 passed by the Additional Sessions Judge, Court No. 5 Gonda framing charges in S.T. No. 245 of 2009 has been challenged by means of this criminal revision. It is argued by the learned Counsel for the revisionists that the said order was passed without giving proper hearing to the revisionists as the revisionists did not have any Counsel and the order was passed in breach of the requirements of sections 227, 228 and 229 of the Code of Criminal Procedure. 2. It was submitted by the learned Counsel that the revisionist Akshay Kumar Shukla had prayed for, appointing an amicus curiae to defend him on 9.10.2009, but no order was passed on the said application on the said date. But only an order framing the charge as aforesaid was passed. There was no material on record for framing the charge against the revisionists under section 376 IPC, which was not made out on the allegations. The medical evidence does not corroborate the charge of rape. So far as the revisionist Jagat Ram Tiwari was concerned, the victim had not nominated him as having committed rape on her in her 161 Cr.P.C statement and in her 164 Cr.P.C. statement, she has stated that she had fainted after she was raped by Akshay Kumar, hence she could not say affirmatively whether she had been raped by Jagat Ram. 3. In support of his case, learned Counsel for the revisionists has relied upon the following decisions: Basltira v. State of U.P.William Slaney v. State of M.P. Hareram Satpatlty v. Tikaram Agarwala and otlters Union of India v. Prafulla Kumar Samal, R.S. Nayak v. A.R. Antule and others, Dilawar Babu Kurane v. State of Maharashtra, Moly v. State of Kerala and Pradeep Kumar alias Pradeep Kumar Verma v. State of Billar and otlters.8 It may be noted that in Bashira's (supra) case a final judgment and order convicting the appellant and awarding him a sentence of death was set aside, because after appointing' amicus curiae during the trial, no time was allowed to him for preparing the case. The evidence of two P.W.s was recorded on the same day and the remaining evidence on the next day, on which day, the accused was also examined under section 342 IPC. The evidence of two P.W.s was recorded on the same day and the remaining evidence on the next day, on which day, the accused was also examined under section 342 IPC. It was observed that the amicus curie appointed in the case, was not provided with proper opportunity to prepare the case and the conviction was set aside and the matter remanded to the Trial Court for re-trial. The fact situation in the present case is clearly distinguishable. Learned AGA has drawn my attention in this regard to an order of the Additional Sessions Judge, Court No.5, Gonda dated 27.10.2009 where the trial was initially pending who rejected the application (Kha-7) moved by the revisionists Akshay Kumar for appointing an amicus curiae. It was noted in the said order that Akshay Kumar owned six bighas of land. He had a house in the village and used to practice agriculture, his parents were residing at Bulandshahr in a rented house and his younger brother was a teacher. The other accused was related to him. It therefore appears that the application for appointing an amicus Curiae for the revisionist-Akshay Kumar was moved in a mala fide manner only for creating a ground for challenging the order framing the charge at a subsequent stage. It may be noted that by a subsequent order dated 2.12.2009 the revisionist Akshay Kumar Shukla was, in any case, provided for an amiclls cllriae after the case was transferred to the third Additional Sessions Judge, Gonda. Also under section 215 Cr.P.C, it has been clarified that unless any error or omission in framing the charge has in fact misled the accused and occasioned a failure of justice, no other error will be regarded as material. 4. Even in William Slaney’s case (supra) a minor error in framing of the charge has been held to be a curable irregularity. Therefore, the mere fact that detailed hearing was not given on the discharge application could not render the framing of the charge illegal if the Trial Judge has found a prima facie case of framing of charge on the basis of the material on record, and there was no ground to think that by this procedure the accused has been prejudiced in any significant manner, or that failure of justice has been thereby occasioned. 5. 5. In Hareram Satpathy's case (supra) also where the Magistrate has found a prima facie case for proceeding against the accused, it was observed that the Trial Court as the High Court in its revisional jurisdiction were precluded from entering into a meticulous examination of the matter on merits. It was only observed that under section 227 of the Code of Criminal Procedure the Court of Sessions could consider the matter of discharging the accused, where no material showing his complicity was disclosed. In P. K. Samal’s case what was high-lighted was that the Court was not to act as a post office, but was required to apply its mind before framing of the charge. In R.S. Nayak's case it was also held that if a prima facie consideration of the material against the accused suggested that there was material for framing of the charge, it was sufficient, and the Trial Court could sift and weigh the evidence only for the limited purpose for considering whether on the unrebutted prosecution allegations the accused could be convicted. The Court could not consider the defence of the accused at this stage. A pronouncement regarding the guilt or innocence of the accused could only be reached at the final adjudication of the trial, and not at the preliminary stage under section 227 Cr.P,C when only a prima facie case needed to be disclosed, whereupon the Court was restrained from discharging an accused. 6. In Kurane’s case, it was only observed that every part of the statute should be given effect to. I have no quarrel with the proposition, but it cannot be denied that the only a preliminary sifting of the evidence is permissible at this stag 7. In Moly's case it was only observed that the accused could raise their pleas at the stage of seeking discharge under section 227 Cr.P.C. Likewise, similar observations were made in Pradeep Kumar's case (supra) where it was observed that if on a bare perusal of the FIR, no offence was disclosed, the Court could not have considered the matter at any length. Per contra, learned AGA argued that the revisionists were given ample opportunity for making submissions against the charge and the order was passed in the presence of the revisionists and they denied the charges and claimed to be tried. Per contra, learned AGA argued that the revisionists were given ample opportunity for making submissions against the charge and the order was passed in the presence of the revisionists and they denied the charges and claimed to be tried. The order sheet dated 9.10.2009 notes that the revisionist Akshay Kumar Shukla was produced in judicial custody and the other revisionist Jagat Ram Tewari had appeared through Counsel. Both of them denied the charges against them and claimed to be tried. Although the prosecution's prayer for framing the charge also under sections 354 and 506 IPC was rejected, but it was noted in the impugned order that in the FIR, it was mentioned that both the accused abducted the victim at 12.00 mid-night on 19.8.2008. She was recovered only on 26.9.2008. So far as the revisionist Akshay Kumar Shukla was concerned, there was specific allegation of rape against him and against Jagat Ram Tewari. 8. The allegations in this case as revealed in the FIR, sections 161 and 164 Cr.P.C. statements of the victim were that she was studying in Class 9, and was 16 years in age and married. In the night of 19/20.9.2008 when she was lying on her roof, at about 12 mid-night, the two revisionists came there. The revisionist Akshay was carrying a country made pistol. They forcibly abducted the victim who was locked in a hotel room and raped there. She was eventually recovered with the aid of the Pradhan. Minor contradictions in the versions set out in the FIR, sections 161 and 164 Cr.P.C. statements, with which the witness is required to be confronted in exercise of powers under section 145 of the Evidence Act during cross-examination at the appropriate stage in the trial, cannot provide a ground for quashing the charges. Likewise whether the medical evidence provided sufficient corroboration or whether the statement of the prosecutrix could be relied upon without medical corroboration because there was no reason for her to have made such a charge of rape against the accused, particularly as such a charge is humiliating even for the maker are all matters for eventual adjudication at the trial. 9. 9. It was also argued by the learned AGA that no ground for discharging the accused Jagat Ram existed simply because the victim has stated in her section 164 Cr.P.C. statement that she has become unconscious after the rape perpetrated on her by the revisionist-Akshay Kumar Shukla and she could not affirmatively say whether she was raped by Jagat Ram Tewari or not. Also, if any offence was disclosed no ground for discharging the accused was made out. Another application was moved on 5.12.2009 by the revisionist-Akshay Kumar Shukla for discharging him, which was rejected by the Sessions Judge on the same date observing that the charge had already been framed on 9.10.2009 and that he had no power to review the said order being a co-equal Court and the date was fixed for evidence on 8.12.2009. 10. In support of the prosecution's case, the learned AGA has placed reliance on the decision of Supreme Court in Bharat Parikh v. Central Bureau of Investigation and another,' wherein it has been held that once the charges have been framed, the Court will have to proceed in the matter and decide whether acquittal or conviction will result on final adjudication of the trial and merely because some technical objections could be raised, such as non-presentation of the papers before the Court under section 207 Cr.P.C., can provide no ground for setting aside the order framing charges either by the Trial Court in exercise of powers under section 227 Cr.P.C or by the High Court under section 482 of the Code of Criminal Procedure after the stage of framing of the charges. It was also observed in the said ruling that defence evidence cannot be considered at this stage and it is only in the exceptional circumstances mentioned in the case of State of Haryana v. Bhajan Lal, that criminal proceedings maybe quashed to secure the ends of justice. But that can only be done after the evidence has been led particularly when the prosecution had produced sufficient material for framing the charge. 11. In the present case, it is apparent that there was an FIR and the statements of the prosecutrix and the material collected by the investigating officer during investigation and it cannot be said that there was no prima facie material for framing charges against the accused. 11. In the present case, it is apparent that there was an FIR and the statements of the prosecutrix and the material collected by the investigating officer during investigation and it cannot be said that there was no prima facie material for framing charges against the accused. Another case cited by the learned AGA is Kanti Bhadra Shah and another v. State of W.B. wherein it is observed that detailed reasons are not required when the charges are framed, but only if the Court decides to discharge the accused a reasoned order needs to be passed. For the reasons indicated hereinabove, I see no illegality in the impugned order. The Revision is therefore devoid of merit and is accordingly dismissed. Revision Dismissed.