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2017 DIGILAW 304 (UTT)

AKASH KUMAR @ SEHJAZ KHAN v. STATE OF UTTARAKHAND

2017-06-02

LOK PAL SINGH

body2017
JUDGMENT : LOK PAL SINGH, J. 1. Heard. 2. Present revision has been filed under section 401 Cr.P.C., 1973 against the order dated 01.04.2017, passed by the learned 7th Additional Sessions Judge, Dehradun in Session Trial No. 14 of 2017, State v. Akash @ Sehjad, whereby the learned Trial Judge had declined to discharge the revisionist and fixed the date for framing of the charges against the revisionist. 3. Brief facts, of the case, are that prosecutrix has lodged the FIR against the revisionist with the allegation that prosecutrix is a staff nurse in the Health Department. In the month of April she came to Dehradun to attend the Biochemist Hazard Conference. The booking was in the Hotel Shubham. When she was enquiring about hotel Shubham, one person stop nearby her and told the address of Shubham hotel. In general conversation he got the mobile number of the prosecutrix. Thereafter, many times he used to talk with her and introduced himself Aakash and proposed her to marry with him. On 08.05.2015, she came to Dehradun for one week and stayed in her sister's house then revisionist called her and pressurize her to get marry. On the next day, he took the prosecutrix to the court to get marry, on her refusal, he offered her to roam outside with him and took her to Rajpur via Doon Barfi in to the double story house situated in between the jungle and offered her toxic cold drink and after having that drink she become unconscious and thereafter, revisionist committed rape with her. When she become conscious and objected, the revisionist told the prosecutrix that he will marry with her. Again, he called the prosecutrix and took her to same house and developed physical relation with the prosecutrix and grabbed eight lakhs rupees for the plot and did not even provide the plot. 4. The Investigating Officer after collecting the material evidence against the revisionist submitted the charge sheet. After submission of the charge sheet, the case was committed by the learned Magistrate to trial court and is pending. 5. 4. The Investigating Officer after collecting the material evidence against the revisionist submitted the charge sheet. After submission of the charge sheet, the case was committed by the learned Magistrate to trial court and is pending. 5. Learned counsel for the revisionist submitted that there is variation in the evidence, FIR and statement of the prosecutrix recorded under section 161 Cr.P.C, 1973 as well as 164 Cr.P.C. It is further submitted that if two views are equally possible and Judge is satisfied that the evidence giving rise to some suspicion is not grave, then he will be fully justified in discharging the accused. 6. The powers of discharge have been defined under section 227 of Code of Criminal Procedure, 1973. Same is reproduced hereunder:- "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". 7. From bare reading of section 227 of Cr.P.C., 1973 it reveals that the powers lies with the trial court to discharge the accused, when upon hearing the trial judge comes to the conclusion that there is no sufficient ground for proceedings against accused, then trial judge shall discharge the accused and record his reason for doing so. 8. In the present case, the learned Judge has not found any suspicion circumstances rather the learned Judge has examined the FIR, statement under section 161 as well as under section 164 recorded by the Magistrate, and after considering the contents of the FIR, statement of the prosecutrix, the learned Judge passed the impugned order and declined to discharge the revisionist. 9. Learned Judge has placed reliance on the judgment of Hon'ble Supreme Court reported in Hon'ble Supreme court in the case of State of M.P. v. S.B. Johari and others, AIR 2000 SC 665 . The relevant para is reproduced below:- "4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. 9. Learned Judge has placed reliance on the judgment of Hon'ble Supreme Court reported in Hon'ble Supreme court in the case of State of M.P. v. S.B. Johari and others, AIR 2000 SC 665 . The relevant para is reproduced below:- "4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence". 10. Learned Judge has also placed reliance on the judgment of Hon'ble Supreme Court in the case of Dinesh Tiwari v. State of Uttar Pradesh AIR 2014 SC 3502 . The relevant paragraph of the judgment is reproduced below:- "8. Section 227 deals with Discharge and it 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." As per the aforesaid provision, upon consideration of the records of the case and the documents submitted before him and after hearing the submissions of the party accused and the prosecution if the Judge is of the opinion that no sufficient ground is made out to proceed against the accused, he is required to discharge the accused and record his reasons for doing so. 10. 10. Relative scope of sections 227 and 228 Cr.P.C., 1973 was noticed and considered by this Court in Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460 . This Court held as follows: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code." "19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp. 41-42, para 4) "4. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp. 41-42, para 4) "4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If 'the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', as enjoined by Section 227. If, on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a 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 not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227." 11. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227." 11. After relying upon the aforesaid judgment, the learned Judge has categorically recorded the findings that he did not find any suspicion in the statement of the prosecutrix and denied to discharge the accused and fixed the case for framing of the charges. 12. The Hon'ble Supreme Court in the case of State of Bihar v. Ramesh Singh, reported in AIR 1977 Supreme Court 2018, held as follows:- "3. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the material and the evidence which may be produced by he prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the order of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may nave to be said in support of our order in this judgment is meant and should be understood o prejudice in the least the case of either party at the trial. 4. Under section 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The judge has to ass thereafter an order wither under section 227 or Section 228 of the code. If "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", as enjoined by Section 227. The judge has to ass thereafter an order wither under section 227 or Section 228 of the code. If "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", as enjoined by Section 227. If, on the other hand, "the Judge if of opinion that there is ground for presuming that eh accused has committed an offence which- ....... ....... ....... ....... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposed to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trail to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads that 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. But at the initial stage if there is a strong suspicion which leads that 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 not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trail or not. If the evidence which the Prosecutor proposes to adduce to 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. An exhaustive list of the circumstances to indicate as to what will leas to one conclusion or the other is neither possible not advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand it is so at the initial stage of making an order under Section 227 or Section 228 then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. 13. Perusal of the impugned order suggests that trial Judge has recorded categorical findings while denied to discharge the accused under section 227 of Cr.P.C., 1973 The counsel for the revisionist could not point out to this Court that no material evidence is available against the accused while hearing on discharge. The trial Judge is not supposed to give detailed reason for prosecuting the accused. The trial Judge is not supposed to give detailed reason for prosecuting the accused. Section 227 Cr.P.C., 1973 caste duty upon the trial Judge to scrutinize the matter, if there is no reason to continue the prosecution against the accused, in that eventuality, discharge is justified but when there is some evidence available against the accused, discharge is no proper. 14. This Court is of the view that the learned trial court has rightly denied to discharge the accused in the said case. This Court also does not find any illegality, perversity and jurisdictional error in the impugned order. 15. The revision lack merits, dismissed. 16. No order as to costs.