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2019 DIGILAW 604 (RAJ)

Anil Kumar v. State

2019-02-20

MANOJ KUMAR GARG

body2019
JUDGMENT Manoj Kumar Garg, J. - Instant criminal revision petition has been filed under Section 397 & 401 Cr.P.C against the order dated 24.09.2018 passed by the learned Additional Sessions Judge (Women atrocities Cases), Bikaner in Sessions Case No. 55/2018 whereby, the learned trial court has framed charges against the petitioner for offences under Section 450, 420 and 376(2)(n) IPC. 2. Brief facts of the case are that the complainant respondent no.2 'M' filed a complaint before the Police Station Jai Narain Vyas Colony, Bikaner stating therein that she was a permanent resident of Budro Ki Dhani, Nokha, Distt. Bikaner and that she was preparing for competitive exams of police department. It was stated that from January, 2017 she was residing in a rented house where she was introduced to the petitioner Anil Kumar who was posted as a Constable at Kota. They exchanged their mobile number and started conversation on mobile and whatsapp. It was mentioned that on 28.02.2018, petitioner Anil Kumar came to her house and made a proposal for marriage upon which she said that she would talk to her family members and inform him. The respondent took consent from her mother and the petitioner told her that he had also taken consent from his mother and maternal grandfather. On 28.04.2017, petitioner Anil Kumar came to her house and on 29.04.2017, the petitioner filled her forehead with 'sindoor' and told her that they are now married and ceremonies shall be conducted by their family members. Thereafter, the petitioner committed sexual intercourse with her and thereafter, she went back to Kota. It was stated that Anil Kumar assured her that he would soon fix the date of their marriage after reaching his house. However, on 08.06.2017 when petitioner Anil Kumar reached Kota and respondent contacted him, she felt that that there was something wrong with him and on asking several times, petitioner told her that his maternal uncle Ramni was not ready for the marriage and thereafter, he broke up his relation with the respondent no.2 and refused to marry her. 3. On this report, FIR No. 297/2017 was registered at Police Station, Jai Narain Vyas Colony, Bikaner for offence under Section 420 and 376 IPC. After thorough investigation, police submitted charge sheet against the petitioner and now charges have been framed against him. 4. 3. On this report, FIR No. 297/2017 was registered at Police Station, Jai Narain Vyas Colony, Bikaner for offence under Section 420 and 376 IPC. After thorough investigation, police submitted charge sheet against the petitioner and now charges have been framed against him. 4. Counsel for the petitioner submits that no offence whatsoever is made out against the petitioner as stated in the FIR, as from the FIR it is clear that the respondent no.2 was a consenting party and she herself admitted that she resided with the petitioner on so many occasions. It is submitted that since the respondent no.2 was a consenting party, the same does not fall within the definition of rape. Learned counsel placed reliance on a judgment of Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra (SLP (Crimnial) No. 6532/2018) decided on 22.11.2018, Prashant Bharti vs. State reported in, (2013) 9 SCC 293 so also of co-ordinate Bench of this Court in the case of Gangaram vs. State & Anr. (S.B. Criminal MISC. Petition No. 3064/2017 decided on 09.01.2018 and S.B. Criminal MISC. Petition No. 2556/2014 (Anup K Paul vs. State of Rajasthan & Anr.) decided on 24.07.2015 and prayed that the charges framed against the petitioner are liable to be quashed and set aside. 5. Per contra, learned Public Prosecutor and counsel for the complainant supported the order passed by the learned Trial Court dated 24.09.2018. It is submitted that after registration of the FIR, the petitioner filed a criminal MISC. Petition before this Court for quashing the FIR being S.B. Criminal MISC. Petition NO. 4330/2017 which was dismissed as not pressed. Thereafter, the police after thorough investigation submitted challan against the petitioner and the trial court after going through the entire record, has framed charges against the petitioner. It is further argued that this Court had granted interim relief to the petitioner on 26.11.2018, however before that date, the prosecutrix respondent no. 2 was already examined before the trial court as PW/1 on 14.11.2018 and this fact was not disclosed by the petitioner. Therefore, the order of framing charge passed by the learned Court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned Trial Court at the appropriate stage. 6. Therefore, the order of framing charge passed by the learned Court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned Trial Court at the appropriate stage. 6. I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record. 7. From the perusal of documents on record, it is evident that the respondent no.2 has already been examined as PW/1 before the trial court and in her Court statement also, she has clearly stated that on the basis of false promise made by the petitioner to marry, the petitioner committed rape with her and later on he refused to marry her. It is also evident that after registration of the FIR, the petitioner filed a criminal MISC. Petition before this Court for quashing the FIR being S.B. Criminal MISC. Petition NO. 4330/2017 which was dismissed as not pressed and later on prosecutrix respondent no. 2 was examined before the trial court as PW/1 on 14.11.2018 and this fact was not brought to the notice of this Court on 26.11.2018 when interim order was granted to the petitioner by this Court. The police after thorough investigation submitted challan against the petitioner and the trial court after considering the entire facts and circumstances, has framed charges against the petitioner. This Court is of the opinion that the case set up by the complainant that the accused induced her under a false promise of marriage and thereafter fraudulently established physical relations with her, is not without any basis. After perusing the challan papers and statement of prosecutrix respondent no.2 as PW/1, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 450, 420, 376(2)(n) IPC. 8. It is settled law that at the time of framing the charges, the truth, veracity and the effect of the evidence, which the prosecution proposes to produce are not to be meticulously examined. At this stage, the Court has only to see whether the un rebutted evidence, which the prosecution is to adduce, make way for conviction and if it is so then the charge can be framed. At this stage, the Court has only to see whether the un rebutted evidence, which the prosecution is to adduce, make way for conviction and if it is so then the charge can be framed. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom disclose the presence of all the ingredients constituting the alleged offence. 9. As far as the judgments relied upon by the petitioner are concerned, in the case of Prashant Bharti (supra), the Hon'ble supreme Court quashed the criminal proceedings as the police after investigation could not find any proof in support of the offences alleged, which is not the case in hand. The other cases relied upon by the counsel for the petitioner relates to quashing of the FIR which are not applicable to the present set of facts as the petitioner had not pressed the MISC. petition filed before this Court for quashing of the FIR. In fact, now the trial has commenced and statement of prosecutrix has also been recorded in Court as PW/1 wherein, she has reiterated her statement made in the FIR. 10. In the case of Sajjan Kumar vs. Central Bureau of Investigation reported in, (2010) 9 SCC 368 , Hon'ble Supreme Court in para 21 of the judgment has laid down the principles which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr.P.C., which are as below : "(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C., 1973 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. (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. (vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose 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 al 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 at this stage, he is not to see whether the trial will end in conviction or acquittal." 11. In the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in, (2012) 9 SCC 460 , Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with the proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. reported in, (2012) 9 SCC 460 , Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with the 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. 12. In the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar Pradesh & Anr. reported in, (2013) 11 SCC 476 , the Hon'ble Apex Court has held as below : "While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge." 13. Recently, the Hon'ble Apex Court in the case of 'State of Rajasthan vs. Fatehkaran Mehdu' reported in, AIR 2017 SC 796 , while dealing with the scope of interference under Section 397 Cr.P.C , 1973when the charges had been framed, has held as under :- "26. The scope of interference and exercise of jurisdiction Under section 397 of Code of Criminal Procedure, 1973 has been time and again explained by this Court. Further, the scope of interference Under section 397 Code of Criminal Procedure, 1973 at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the Accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the Accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 27. Now, reverting to the limit of the scope of jurisdiction Under section 397 Code of Criminal Procedure, 1973 which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. 29. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. 29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under section 228 Code of Criminal Procedure, 1973 Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: "27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be: 27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2) The Court should apply the test as to whether the un controverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously." 14. Thus, it is well settled legal position that at the stage of framing charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings evidence is not required to be analysed, as it is required to be done at the final stage after trial. 15. It is also well settled that at this stage of the proceedings only the charge-sheet and evidence collected during investigation which has been produced along with the charge-sheet is required to be considered. In the present case, now trial has commenced and statement of prosecutrix has also been recorded in Court as PW/1 wherein, she has reiterated her statement made in the FIR. 16. In the present case, now trial has commenced and statement of prosecutrix has also been recorded in Court as PW/1 wherein, she has reiterated her statement made in the FIR. 16. In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 450, 420, 376 (2)(n) IPC. The revision thus being bereft of any force, is hereby rejected. The stay petition also stands rejected.