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2016 DIGILAW 68 (JHR)

Chandan Ram v. State of Jharkhand

2016-01-08

RAVI NATH VERMA

body2016
ORDER : Challenge in this revision application is to the order dated 18.05.2013 passed by Additional Sessions Judge-III, Giridih in S.T. No.323 of 2011 whereby and whereunder the petition filed by the petitioner under Section 227 of the Code of Criminal Procedure (in short ‘the Code’) for his discharge, has been rejected. 2. The facts of the case, which is relevant for the proper adjudication of the revision application, in short, is that at the instance of the informant Madan Rana, Dhanwar P.S. Case No.138 of 2011 was instituted under Section 366(A)/34 of the Indian Penal Code against the petitioner with the allegation that on 15.08.2011 at about 3.30 p.m. his daughter Hemanti Kumari aged about 14 years studying in Class VIII was enticed away by two persons namely Chandan Ram (the petitioner) aged about 22 years and Akash Ram aged about 15 years with some ulterior motive. 3. It appears from the record that during investigation the police recovered the girl from bus stand in Giridih and thereafter her statement under Section 164 of the Code was recorded by the court and in the statement she has denied the allegation of kidnapping by the present petitioner or by any other person rather she has stated that she herself left her home scared by the fear of being scolded by her mother and came near the school of village and called Chandan Ram of her own village, who was known to her prior to the incidence and when he came she requested him to accompany her to Banaras but the said Chandan Ram refused to accompany her. However, after persuasion and threatening that she will commit suicide, they took a bus and came to Gaya and from Gaya they came to Banaras by a train. She has also stated in her statement that she had assured Chandan to return all his money which he has spent on her. Thereafter, she gave Rupees One thousand to Chandan, who had to go to Surat (Gujarat) where he works. In Banaras, she met with two unknown ladies and lived there but those two ladies took her to Madhupur where she met with two persons of her own village and thereafter came to Giridih. She was planning to go to her own house but in the meantime police came and caught her. In Banaras, she met with two unknown ladies and lived there but those two ladies took her to Madhupur where she met with two persons of her own village and thereafter came to Giridih. She was planning to go to her own house but in the meantime police came and caught her. It appears from the record that after investigation the police submitted the chargesheet under Section 366(A)/34 of the Indian Penal Code against the two accused whereafter the cognizance of the offence was taken and the case was committed to the court of Sessions where the petitioner filed a petition under Section 227 of the Code for his discharge but the same was rejected by the order impugned holding that sufficient material is available on record to frame charge against the petitioner. Hence, this revision. 4. Mr. Shri Nivas Roy, learned counsel appearing for the petitioner assailing the order impugned as perverse and bad in law, seriously contended that the court below erred in not discharging the petitioner as no offence under Section 366(A) or any other provision of Indian Penal Code is made out against this petitioner. It was also submitted that except that the girl was below 18 years of age, no other ingredient responsible to constitute the offence under Section 366 of the Indian Penal Code is made out against the petitioner and even in her statement recorded under Section 164 of the Code, girl has nowhere alleged of either seducing her or that she was forced or seduced to illicit intercourse with any other person rather she had left her house out of fear of being scolded. Hence, the petitioner deserves to be discharged. 5. Contrary to the aforesaid submission, the learned counsel representing the State contended that the court below while rejecting the petition for his discharge has appreciated the evidence available on record in right perspective and at this initial stage, the truth, veracity and effect of evidence are not to be meticulously examined rather presently strong prima facie case is sufficient to frame charge against the petitioner. 6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or discharged, I would like to examine the scope of Section of 227 of the Code. 6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or discharged, I would like to examine the scope of Section of 227 of the Code. The law at this point is succinctly analysed by the Hon’ble Supreme Court in Sajjan Kumar Vs. CBI; (2010) 9 SCC 368 wherein the Hon’ble Court has observed in Para 19 as under: “19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 7. Kidnapping of a minor girl or to induce a minor girl under the age of 18 years with an intention to seduce her is the most morally and physically reprehensible crime in society as it is an insult on the body, mind and privacy of the victim. The Hon’ble Supreme Court in the above case and in catena of decisions has clearly mandated that at the initial stage, if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed offence the court shall frame charge and proceed but if the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or revealed by the defence evidence, cannot show that accused committed the offence, then there will be no sufficient ground for proceeding with the trial. For better appreciation of the case, a reference of Section 366(A) of the Indian Penal Code is necessary which is given herein below: 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.” 8. From mere perusal of the Section, it appears that to establish offence under Section 366(A) of the Indian Penal Code, the prosecution has to prove that: (a) the victim of the offence is a girl below 18 years of age. (b) the accused induced the victim to go from one place to another, or, (c) to do any overt act. (d) this inducement was made with the intent or knowing it to be likely that the victim might be forced or seduced to illicit sexual intercourse with another person. 9. In the instant case, the victim girl, whose statement under Section 164 of the Code was recorded, has completely denied any role played by this petitioner and even she has said that there was no inducement on the part of the petitioner rather she had left her house on her own out of fear and by putting pressure on the petitioner or even giving threatening of committing suicide, she came to Banaras alongwith this petitioner and there she handed over Rupees One thousand to the petitioner who had to go to Surat (Gujarat). Apparently, the only ingredient which is available on record is that the victim girl was below 18 years and besides that none of the ingredient responsible to constitute offence under the aforesaid Section is available on record. There was no inducement on the part of the petitioner or any force was used or seduced to illicit sexual intercourse with another person rather the petitioner only accompanied the victim upto Banaras and thereafter left for Surat (Gujarat). The court below, in the order impugned has not at all considered the above aspect of the case and it appears that merely relying upon the allegation made in the F.I.R. rejected the prayer for discharge of the petitioner. The court below, in the order impugned has not at all considered the above aspect of the case and it appears that merely relying upon the allegation made in the F.I.R. rejected the prayer for discharge of the petitioner. There is absolutely no evidence on record that the accused petitioner committed the alleged offence. 10. In view of the discussion made above, I find substance in the submission of the learned counsel for the petitioner that no case under Section 366(A) of the Indian Penal Code is made out against the petitioner. Hence, the order impugned dated 18.05.2013 passed by Additional Sessions Judge-III, Giridih in S.T. No.323 of 2011 is, hereby, set aside. This revision application is, thus, allowed.