Arvind Kumar Tripathi (II), J. – This revision has been filed challenging the order dated 16.7.2013 passed by the learned Sessions Judge, Pratapgarh and for quashing the charge framed under sections 363 and 366 IPC against the revisionist in Sessions Trial No. 135 of 2013. 2. Heard Shri S.K. Ojha, learned Counsel for the revisionists, and Shri M.P. Yadav, learned AGA for the State respondent. 3. The brief facts of the case are that FIR was lodged by Smt. Noor Jahan in Police Station Lalganj, District Pratapgarh on 12.11.2010 at about 11.05 a.m. alleging that his daughter, the victim, aged about 15 years, was being teased by Mohd. Sohrab. On 10.11.2010, at about 9 a.m., she was alone in the house, and the victim has gone to the Aamla grove towards west of the house, then Mohd. Sohram came and enticed away the victim. After some time, she went to search her daughter, but she could not find in trace of her. Mohd. Aqib and his family members are also involved in this. On this, as case under sections 363 and 366 IPC, Crime No. 444 of 2010 was registered. During investigation, the victim was recovered and charge-sheet under sections 363, 366, 376 IPC was submitted. After committal of case charges under sections 363 and 366 IPC was framed against Mohd. Aqib and Ahmad Ullah. After committal, Mohd. Sohrab moved an application before the trial Court for discharge under section 227 Cr.P.C. The application for discharge was rejected by the Court below and charge under section 363, 366 IPC was framed against the accused Mohd. Aqib and Ahmad Ullah. Feeling aggrieved, this criminal revision has been filed by the revisionist Ahmad Ullah. 4. It is argued from the side of the revisionist that the revisionist is not named in the FIR. His name was not mentioned by any witness in their statement under section 161 Cr.P.C. It was further argued that the victim herself has, in her statement, under section 164 Cr.P.C. not named the revisionist, as person, who has enticed away, or was instrumental in enticing away the victim. It was also submitted that while framing the charge the judge has undoubted power to sift and weigh the evidence for limited purpose that finding could be whether or not a prima facie case against the accused is made out.
It was also submitted that while framing the charge the judge has undoubted power to sift and weigh the evidence for limited purpose that finding could be whether or not a prima facie case against the accused is made out. For that, learned Counsel for the revisionist has relied upon the decision in the case of Dilwar Balu Kurane v. State of Maharashtra. 2002 (44) ACC 447 (SC). It was further submitted that the statement given by the victim under section 164 Cr.P.C. can be relied upon as corroborating their subsequent evidence before the committal Court and relied upon the decision in the case of Dhanbal and another v. State of Tamil Nadu, AIR 1980 SC 628 = 1980 (17) ACC 115 (SC). 5. Learned AGA argued that the learned Court below was prima facie satisfied that the offence under sections 363, 366 IPC is made out against the revisionist, hence the Court below has rightly framed the charge. 6. The case relied upon by the learned Counsel for the revisionist in the case of Dhanbal and another (supra) is a case of old Cr.P.C. in which the evidence was recorded by the Magistrate before committing the case. In paras 13 and 14 the Apex Court has held as under: - "The second legal contention raised by the Learned Counsel was that the High Court was in error in taking into account the statements recorded from the witnesses under section 164 of the Code of Criminal Procedure in coming to the conclusion that the evidence given by them in the Committal Court could be relied upon. The High Court stated "we are satisfied having regard to 164 statements of P.Ws. 1 to 3 and 5 that the statements given by those witnesses before the Committing Court are true and could be relied on" and proceeded to observe "that as there are more statements admitted in evidence under section 288 of the Code of Criminal Procedure than one, the evidence of one witness before the Committing Court is corroborated by that given by others". Mr. Mulla, Learned Counsel, submitted that a statement recorded under section 164 of the Code of Criminal Procedure indicates that the Police thought that the witnesses could not be relied on as he was likely to change and, therefore, resorted to securing a statement under section 164 of the Code of Criminal Procedure.
Mr. Mulla, Learned Counsel, submitted that a statement recorded under section 164 of the Code of Criminal Procedure indicates that the Police thought that the witnesses could not be relied on as he was likely to change and, therefore, resorted to securing a statement under section 164 of the Code of Criminal Procedure. The statement thus recorded, cannot be used to corroborate a statement made by witness in the Committal Court. In support of this contention the learned Counsel relied on certain observations of this Court in Ram Chandra and others v. State of U.P. In that case, in a statement recorded from the witness under section 164 of the Code of Criminal Procedure, the Magistrate appended a certificate in the following terms: - "Certified that the statement has been made voluntarily. The deponent was warned that he is making the statement before the 1st Class Magistrate and can be used against him. Recorded in my presence. There is no Police here. The witness did not go out until all the witnesses had given the statement." The Court observed that the endorsement made is not proper but declined to infer from the endorsement that any threat was given to those witnesses or that it necessarily makes the evidence given by the witness in Court suspect or less believable. The view of the Patna High Court in Emperor v. Mann Chik, where the observations made by the Calcutta High Court in Queen Empress v. Jadub Das, that statements of the witnesses obtained under this section always raises a suspicion that it has not been voluntarily made was referred to, was relied on by the Learned Counsel. This Court did not agree with the view expressed in the Patna case but agreed with the view of Subba Rao, J. (as he then was) in Gopisetti Chinna Venkata Subbiah, where he preferred the view expressed by Nagpur High Court in Parmanand v. Emperor, It was observed that the mere fact that the witnesses statement was previously recorded under section 164 will not be sufficient to discard it. It was observed that the Court ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witnesses, it can be acted upon.
It was observed that the Court ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witnesses, it can be acted upon. During the investigation the Police Officer, sometimes feels it expedient to have the statement of a witness recorded under section 164, Code of Criminal Procedure. This happens when the witnesses to a crime are closely connected with the accused or where the accused are very influential which may, result in the witnesses being gained over. The 164 statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness. The mere fact that the Police had reasons to suspect that the witness might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted. If the witness sticks to the statement given by him to the Magistrate under section 164, Code of Criminal Procedure, no problem arises. If the witness resiles from the statement given by him under section 164 in the Committal Court, the witness can be cross-examined on his earlier statement. But if he sticks to the statement given by him under section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288, Code of Criminal Procedure, will have to be observed. It is for the Coutt to consider taking into account all the circumstances including the fact that the witness had resiled in coming to the conclusion as to whether the witness should be believed or not. The fact that the Police had section 164 statement recorded by the Magistrate, would not by itself make his evidence tainted, (para 13) Section 157 of the Evidence Act makes it clear that the statement recorded under section 164 of the Code of Criminal Procedure can be relied on for corroborating the statements made by the witnesses in the Committal Court. This Court has expressed its view that though the statements made under section 164 of the Code of Criminal Procedure, is not evidence, it is corroborative of what has been stated earlier in the Committal Court vide (1971) 1 SCR 56 .
This Court has expressed its view that though the statements made under section 164 of the Code of Criminal Procedure, is not evidence, it is corroborative of what has been stated earlier in the Committal Court vide (1971) 1 SCR 56 . The High Court was right in relying on the statement of the witnesses under section 164 as corroborating their subsequent evidence before the Committal Court. Equally unsustainable is the plea of the Learned Counsel that a statement recorded under section 288 of the Code of Criminal Procedure of one witness cannot corroborate the statement of another witness under section 288. The statements are treated as substantive evidence in law and we do not see any flaw in treating the statement of one witness as corroborative of the other. The result in the question of law raised by the Learned Counsel fail. The appeal of the first appellant is rejected and his conviction and sentence confirmed. The appeal of the second appellant is allowed and his conviction and sentence set aside. He is directed to be set at liberty forthwith." (para 14) 7. Now, Cr.P.C. was amended in 1973, and the provision for recording the evidence before the committal of the case was deleted, -and in view of the above change in law, the principle laid down by the Apex Court in the case of Dhanbal and another (supra) is now of no help to the cause of the revisionist. 8. The statement under section 164 Cr.P.C. is a previous statement in writing. If the witness stick to the statement given by him/her to the Magistrate under section 164 Cr.P.C. while giving evidence in the sessions trial, then no problem arises. If the witness resiles from the statement given by him/her under section 164 Cr.P.C. before the Magistrate, the witness can be cross-examined on his/her earlier statement under section 145 of the Evidence Act. 9. While framing charge, no doubt, the judge while considering the question of framing charge has power to sift and weigh the evidence for limited purpose for finding out whether or not a prima facie case against the accused is made out. There are catena of decisions by the Apex Court that the courts, at the time of framing of charge, should not make roving inquiry into the pros and cons of the matter, and weigh the evidence, as if he is conducting a trial.
There are catena of decisions by the Apex Court that the courts, at the time of framing of charge, should not make roving inquiry into the pros and cons of the matter, and weigh the evidence, as if he is conducting a trial. The Apex Court decision provided by the learned Counsel for the revisionist also supports this version. 10. In the case of Sajjan Kumar v. Central Bureau of Investigation, 2010 (71) ACC 611 (SC). the Apex Court has given some guide lines about the scope of sections 227 and 228 of the Code, which are reproduced below: - "On consideration of the authorities about the scope of sections 227 and 228 of the Code, the following principles emerge: -- (i) The Judge while considering the question of framing the charges under section 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, .the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 11. The procedure of framing of charge has been given in Chapter 18 of the Cr.P.C. Section 226 of the Cr.P.C. lays down that when the accused appears, or is brought before the Court in pursuance of a commitment of a case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what offence he proposes to prove the guilt of the accused. 12. Section 227 of the Cr.P.C. reads as follows: - "227. Discharge. -- If, upon consideration of the record of the case and the 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." 13. Section 228 of the Cr.P.C. reads as follows: - "228. Framing of charge.
Section 228 of the Cr.P.C. 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 Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such 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 charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (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." 14. In view of the above guidelines and principles, the impugned order has to be judged. 15. In the case of Dilwar Balu Kurane v. State of Maharashtra (supra) the Apex Court has held as under: - "Now the next question is whether a prima facie case has been made out against the appellant.
In view of the above guidelines and principles, the impugned order has to be judged. 15. In the case of Dilwar Balu Kurane v. State of Maharashtra (supra) the Apex Court has held as under: - "Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India v. Prafulla Kumar Samal and another]. 1979 (3) SCC 5." (para 12) 16. Learned Counsel for the revisionist has also relied upon decision in the case of Sawal Das v. State of Bihar, AIR 1974 SC 778 . in which the Apex Court has held as under: - "Neither an application of section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.
It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is : as the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?" 17. In the instant case, the revisionist is not named in the FIR. Smt. Noor Jahan, Maria Bano, Israr, Madina have also not named the revisionist in their statement under section 161 Cr.P.C. before the Investigating Officer on 14.11.2010, but when they were again interrogated by the Investigating Officer on 16.11.2010, they have named the revisionist also instrumental to be in the. commission of offence. Maria Bano and Furkan Ahmad, daughter and son of Amwar Ahmad have also named the revisionist in their statement under section 161 Cr.P.C. to be involved in the offence. The victim has also, in her statement under section 161 Cr.P.C. dated 3.12.2010, named the revisionist, but in her statement under section 164 Cr.P.C. she has not named the revisionist. 18. In the case of Dhanbal and another (supra) the Apex Court too has held that "If the witness resiles from the statement given by him under section 164 in the Committal Court, the witness can be cross-examined on his earlier statement. But if he sticks to the statement given by him under section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288, Code of Criminal Procedure, will have to be observed. It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled in coming to the conclusion as to whether the witness should be believed or not. The fact that the Police had section 164 statement recorded by the Magistrate, would not by itself make his evidence tainted." 19. At this stage, the guidelines, mentioned by the Apex Court in the case of Sajjan Kumar v. Central Bureau of Investigation (supra), will come into play.
The fact that the Police had section 164 statement recorded by the Magistrate, would not by itself make his evidence tainted." 19. At this stage, the guidelines, mentioned by the Apex Court in the case of Sajjan Kumar v. Central Bureau of Investigation (supra), will come into play. The second guideline is very important, which is again reproduced below: - "(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial." 20. It is also settled view that at the time of framing charge the probative value of the material on record cannot be gone into, but before framing a charge, the Court must apply its judicial mind on the material placed on record, and must be satisfied that the commission of offence by the accused was possible. It is also settled view that the sift of evidence is for very limited purpose, and the Court is not to make a roving inquiry into the correctness or genuineness of the evidence. 21. The Court below after going through the judgments of the Apex Court in State of Karnataka v. L. Mimiswamy and others, 1977 Cr.L.J. 1125. and Union of India v. Prafulla Kumar Samal and others 1979 Cr.L.J. 154. has held that from the evidence collected by the Investigating Officer there is sufficient ground to frame charge against the revisionist under sections 120-B read with sections 420, 468, 471 IPC and section 13 (2) read with section 13 (1) (d) of the Act and on that basis the trial Court has rejected an application for discharge. 22. The contradiction, embellishment and discrepancies in the evidence collected by the Investigating Officer will be of no help to the revisionist, at this stage. These things will be considered at the time of trial in the Court. 23. Considering the entire circumstances and legal position, as discussed above, I do not find any illegality, or irregularity, or perversity, in the impugned order. 24. In the result, the criminal revision is liable to be dismissed, and is hereby dismissed. Revision Dismissed. ____________