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2015 DIGILAW 787 (RAJ)

Naveen Bairwa v. State of Rajasthan

2015-04-08

KANWALJIT SINGH AHLUWALIA

body2015
JUDGMENT 1. - By this common order, S.B. Criminal Revision Petition No.384/2014 preferred by Naveen Bairwa, as well as, S.B. Criminal Revision Petition No.794/2014 instituted by Ramavtar @ Ajay, shall be decided together, along with S.B. Criminal Miscellaneous 2nd Bail Application No.6843/2014 filed by Ramavtar @ Ajay. 2. Aforementioned revision petitions have been preferred under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order dated 22.02.2014 rendered by the Court of Additional District & Sessions Judge, Camp Court at Dudu, District Jaipur Rural, whereby charges were framed against the accused- petitioner for offences punishable under Sections 363, 366-A, 376, 368, 384 and 120-B I.P.C. 3. The above said two revision petitions have been assigned to this Court, because of specific orders passed by Hon'ble the Acting Chief Justice. 4. Mr. Rajesh Sharma, the learned counsel appearing for the accused-petitioners, has submitted that in the present case, prima-facie, no offence under Sections 376, 363 and 366-A of Indian Penal Code is made out against the accused-petitioners. It is further submitted by the learned counsel that the prosecutrix (name withheld to protect her identity) is legally wedded wife of petitioner, Ramavatar @ Ajay. 5. Counsel appearing for the accused-petitioners has contended that prosecutrix had performed marriage with petitioner, Ramavtar on 14.02.2011 at Arya Samaj, New Bazar, Purani Basti, Ajmer. It is further contended by the learned counsel that the Municipal Corporation, Ajmer had issued Marriage Registration Certificate. 6. Counsel appearing for the accused-petitioners has relied upon the affidavit given by the prosecutrix on 14.02.2011, wherein she has stated that her date-of-birth is 24.01.1991. 7. Counsel appearing for the accused-petitioners has also drawn attention of this Court towards the marksheet of 6th Standard of the prosecutrix issued from Shiv Shakti Vidhya Mandir, Secondary School, Phagi (Jaipur), wherein the date-of-birth of the prosecutrix has also been noted as 24.01.1991. 8. Counsel appearing for the accused-petitioner has referred to the various love letters written by the prosecutrix, to contend that the prosecutrix, being major had herself performed love marriage. 9. Attention of this Court has also been drawn towards various photographs depicting the marriage between the petitioner and the prosecutrix. 10. Counsel appearing for the accused-petitioners has also referred to intimate photographs between the petitioner and the prosecutrix. 11. 9. Attention of this Court has also been drawn towards various photographs depicting the marriage between the petitioner and the prosecutrix. 10. Counsel appearing for the accused-petitioners has also referred to intimate photographs between the petitioner and the prosecutrix. 11. On the basis of above documents, it is argued by the learned counsel that in the present case, prima-facie, no offence of rape is made out. 12. Thus, the trial court has committed a grave error in framing charges for offences punishable under Sections 363, 366-A and 376 of Indian Penal Code. 13. A perusal of the impugned order, which has been assailed in the present revision petitions, clearly reveals that the trial Court has held the date-of-birth of the prosecutrix as 01.01.1996 and thus, the prosecutrix was a minor on the alleged date when physical relationship was established between petitioner Ramavtar @ Ajay and prosecutrix. 14. It was held by the Hon'ble Apex Court in the case of State of Orissa v. Debendra Nath Padhi, reported in A.I.R. 2005 S.C. 359 that the documents relied upon by the accused cannot be taken into consideration by the trial Court, at the time of framing of charges. The accused, if so advised, may prove documents, during cross-examination of the witness or by leading defence evidence. 15. Thus, charges framed by the trial Court cannot be quashed on the basis of the documents relied upon by the accused, at the time of framing of charges. 16. In the case of State of Orissa v. Debendra Nath Padhi (supra), the Larger Bench of the Hon'ble Apex Court had set aside the earlier view of the Hon'ble Supreme Court in the case of Satish Mehta v. Delhi Administration, reported in 1996 (6) S.C.C. 766 . 17. Lastly, it has been submitted by the learned counsel that having come to a conclusion that the charges under Sections 366, 366-A and 376 I.P.C. are made out against petitioner, Ramavtar @ Ajay, and charges under Sections 368, 384 and 120-B I.P.C. are made out against Navin Bairwa, the trial Court had not framed charges in consonance with the order framing charges. 18. Having gone through Section 215 and 216 of Code of Criminal Procedure, a direction is, hereby, issued to the trial Court to correct charges in consonance with the order framing charges. 19. 18. Having gone through Section 215 and 216 of Code of Criminal Procedure, a direction is, hereby, issued to the trial Court to correct charges in consonance with the order framing charges. 19. In view of the authoritative pronouncement of the Hon'ble Apex Court in the case of State of Orrisa v. Debendra Nath Padhi (supra), the present revision petitions preferred by petitioners are, hereby, dismissed with liberty to the petitioners to take recourse to lawful remedy in accordance with the provisions of the law before the trial Court. 20. Consequent upon dismissal of the main petitions, the stay application, filed therewith, do not survive; the same are also dismissed. 21. Having dismissed the revision petitions preferred by the accused-petitioners, so far as the present bail application is concerned, it is to be noted here that earlier bail application filed by the petitioner was dismissed as withdrawn on 14.03.2014 by passing the following order:- "The learned counsel appearing for the petitioner submitted that he has been specifically instructed by the petitioner not to pursue the present application and, therefore, the same may be dismissed as withdrawn. As prayed, the present application is, hereby, dismissed as withdrawn." 22. Thus, it is apparent that earlier bail application of the petitioner was not decided on merits. 23. Considering the love letters purportedly written by the prosecutrix, marriage certificate relied and the fact that the trial Court may determine the age of prosecutrix otherwise, this Court is of the view that in the present case, continuous detention of the petitioner, who is stated to be custody since 16.03.2013, is not warranted. 24. Consequently, the application for bail is accepted and the petitioner is ordered to be released on bail during the pendency of the trial, to the satisfaction of the trial Court.Let a copy of this order be placed in the connected petitions.Revision dismissed and Bail Application allowed. *******