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2023 DIGILAW 1935 (ALL)

Anil Kumar v. State of U. P.

2023-08-10

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. As per office report dated 27.05.2022, notice was served on opposite party No. 2, as per report of C.J.M. Ghaziabad, but none appeared on his behalf to contest present revision. 2. Revisionist appeared in-person before the Court. 3. Heard the submissions of revisionist learned A.G.A. for the State and perused the record. 4. Instant criminal revision has been preferred against order dated 02.03.2022, passed by learned Special Judge (POCSO Act) Court No. 2/Additional Sessions Judge, District-Ghaziabad in Criminal Case No. 162 of 2017, arising out of Case Crime No. 483 of 2017, under Sections 342, 376, 511, 506 I.P.C. and Section 5/6 POCSO Act, P.S. Modi Nagar, District-Ghaziabad, whereby the learned court rejected the application 14Kh by impugned order wherein the revisionist-accused had prayed for his discharge under Section 227 Cr.P.C. The F.I.R. has not been lodged in the case by parents of the victim but by one Brijendra Kumar Tomar, Fufa of the victim. The case has been concocted against the revisionist by said uncle of victim, the victim was around 8 years of age at the time of incident and presently, she is around 15 years, in fact, she has been used by her said uncle to depose against the revisionist during investigation. But after dismissal of discharge application by impugned order, case was fixed for evidence and the victim in her statement as P.W. 3 recorded on 03.03.2023 by trial court, has deposed that at the time of incident, she was of 9 years of age, the incident occurred on 17.07.2017 at 12:00 hours in the noon. She had not identified the accused person in the court, she also stated that he did nothing against her, he never threatened her with life, her medico-legal examination was conducted at the instance of police. She was confronted with statement under Section 164 Cr.P.C. wherein she acknowledged her signature and photograph. The witness has been declared hostile at the instance of prosecution. He next submitted that learned court below framed charges against him initially under Sections 342, 376, 511, 506 I.P.C. and Section 5/6 POCSO Act on 19.01.2021. This Court vide order dated 07.12.2021 in Application under Section 482 No. 12347 of 2021 set aside order dated 19.01.2021 for framing of charge and directed the learned trial court to pass a speaking order on the application filed on behalf of the accused persons on 12.01.2021. This Court vide order dated 07.12.2021 in Application under Section 482 No. 12347 of 2021 set aside order dated 19.01.2021 for framing of charge and directed the learned trial court to pass a speaking order on the application filed on behalf of the accused persons on 12.01.2021. But learned trial court has dismissed the discharge application vide impugned order dated 02.03.2022 without considering the grounds taken in said application. The informant side engaged in Maar Peet with the revisionist and damaged the car of the revisionist and got a false F.I.R. lodged by misusing data of another person, only to save themselves. There are material contradiction in the statement of victim recorded under Section 161 Cr.P.C. and statement under Section 164 Cr.P.C. during investigation. Her medico-legal examination report did not supported the prosecution version. On the plot of revisionist two gates are situated and if one gate is closed children/persons can easily get access into his plot through second gate. The complainant has framed the victim to depose against the applicant during investigation by issuing threat to her, the present case has been lodged at the instance of the complainant only to extort money from the revisionist. Learned trial court while dismissing application for discharge has not applied its judicial mind, no case is made out against the revisionist for which he has been charged by the court below, therefore, the impugned order dated 02.03.2022 is liable to be set aside and revisionist may be discharged of those charges. 5. Per contra, learned A.G.A., Sri Deepak Kapoor, submitted that there are ample evidence collected during investigation against the revisionist on the basis of which charge has been framed against the revisionist and discharge application was dismissed by learned court below by impugned order, the victim has stated complicity of the accused revisionist for said charges in her statement under Section 161 and 164 Cr.P.C. and for the purpose of framing of charge, the evidence and material collected during investigation can only be relied upon. An opinion regarding merits of the case on basis of some evidence adduced during trial after framing of charge is not warranted in the present revision, as the statement of P.W.3 has been recorded after passing of impugned order and during trial. There is no illegality or irregularity in impugned order passed by learned court below and revision should be dismissed. 6. There is no illegality or irregularity in impugned order passed by learned court below and revision should be dismissed. 6. In present case, F.I.R. was lodged by one Brijendra Kumar against revisionist on 17.07.2017 under Sections 342, 376, 511, 506 and Section 5/4 POCSO Act at P.S.-Modinagar, District-Ghaziabad with averment that his daughter aged around 10 years got missing since 02:00 P.M. and in course of her search, he came to know that his daughter has been kept as hostage by accused, who had detained her for 5 hours in his house by gagging her mouth by clothes and tethering her hands and feet with intention to commit rape on her. When the informant came to know about the incident, he knocked at the door of the house of accused and found his daughter in frightened condition. The statement of victim was recorded on 18.07.2017, wherein she supported F.I.R. version and she stated that her neighbouring uncle Anil, took her at his home by closing her mouth and got her sit on a chair by tethering her hands and feet, however, he freed her from bondage and laid her down on bed. He intended to commit some wrong act with her. One Chanchal Madam had seen this, but she was not allowed to come out. The incident was further elaborated by the victim in her statement under Section 164 Cr.P.C. recorded by Magistrate on 24.07.2017, wherein she made specific allegations against the accused regarding attempt to commit rape on her, although there are some factual variations in both the statements. Kumari Chanchal, the witness of fact also corroborated some factual aspects of the case revealed in medico-legal examination report of the victim dated 18.07.2017. It is stated that Anil had wrongly confined the victim and molested her. However, in medico-legal examination report, no external injury was found on her person. The accused was chargesheeted after investigation under Sections 342, 376, 511, 506 I.P.C. and Section 5/4 POCSO Act, on the basis of evidence collected during investigation. The case of accused is that there is property dispute between accused and the informant, who is relative of the victim and got false F.I.R. against the accused with a view to exert pressure on accused and to grab the disputed property. The learned trial court framed charge against the accused after rejection of discharge application by impugned order. The case of accused is that there is property dispute between accused and the informant, who is relative of the victim and got false F.I.R. against the accused with a view to exert pressure on accused and to grab the disputed property. The learned trial court framed charge against the accused after rejection of discharge application by impugned order. The informant is husband of sister of the father of victim. In present case, trial had already commenced and the victim has been examined in which she has not supported prosecution case and turned hostile. The revisionist has also alleged that the victim and complainant used to demand illegal money by adopting blackmailing tactics against the revisionist for settlement of the case before court below and also threatened him that the revisionist has some audio recording in support of this version as stated in supplementary affidavit dated 24.03.2022. The audio recording of conversation of the victim and appellant exculpates him. The revisionist has filed various letters, documents and photographs in support of his version that he has been falsely framed by the victim at the instance of the informant due to personal grudge against the accused. The informant has stated in his evidence that he had adopted the victim as he was not having any daughter. The date of birth of victim is 24.11.2009, the parents of victim are alive. The victim was examined as P.W. 3 by the trial court. 7. In instant case discharge application was moved by the revisionist before court below under Section 227 of Cr.P.C. which reads as under : 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 an record his reasons for so doing. 8. The discharge application is allowed usually in those cases where there is no evidence collected during investigation, which in any manner connect the accused with the commission of alleged crime. No charge can be framed in absence of even a prima facie material (oral/documentary) being adduced by the prosecution in the charge-sheet. In other words, the accused can be discharged where no connection is found between the accused and commission of crime. No charge can be framed in absence of even a prima facie material (oral/documentary) being adduced by the prosecution in the charge-sheet. In other words, the accused can be discharged where no connection is found between the accused and commission of crime. Undoubtedly, the right to seek discharge by an accused is valuable statutory right and same cannot be taken lightly by the trial court. The accused can also be discharged in frivolous cases with a view to nip in a bud in such cases by discharging the accused before trial, because a litigant, caught in a frivolous case, loses a self of himself in the legal battle to protect himself and his reputation. This would not only save judicial time but also cost of public money and would also protect the right to liberty enshrined under Article 21 of the Constitution of India. However, this is settled law that truthfulness, sufficiency and acceptability of the material produced can be determined only at the stage of trial. Framing of charge is an exercise of jurisdiction by trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. 9. Hon'ble Apex Court in leading case of Madhu Limaye vs. State of Maharashtra (1977) 4 SCC 551 held that the orders framing charges or refusing charges are not interlocutory or final and thus are not affected by section 397(2) of Cr.P.C. The High Court should invoke the same carefully and judiciously for the effective administration of the criminal justice system. The High court must prevent the abuse of the process of law especially when the material and on record evidence show a brazen attempt to persecute an innocent. Trial court while addressing a discharge application must sift through the evidence and find if there are sufficient grounds to suspect. It is imperative for the High Court in criminal revision to revisit the case while deciding the revision petition filed against an order rejecting discharge application by the trial court. 10. It is settled law by catena of judicial authority that the Judge while considering the question of framing of charge under Section 227 Cr.P.C. has undoubted power to sift and weigh evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 10. It is settled law by catena of judicial authority that the Judge while considering the question of framing of charge under Section 227 Cr.P.C. has undoubted power to sift and weigh 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 facts of each case, 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. The court cannot act merely as a Post-office or 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. If on the basis of the material on record, the court could form an opinion that the accused might have committed the offence, it can frame the charge, though for conviction the opinion is required to be proved beyond reasonable doubt that the accused has committed the offence. 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. Even at the stage of framing of charge, the sufficiency of material for the purpose of conviction is not required to be gone into and a prayer of discharge can be allowed only if, the court finds that the material is wholly insufficient for purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law, so that case of both the sides may be considered appropriately on conclusion of trial. 11. 11. In the present case, the order passed by learned trial court dismissing application of the accused-revisionist for discharge, has been assailed through filing instant criminal revision, whereas the factual position is that after dismissal of discharge application on 07.12.2021, the trial court framed the charges against the accused revisionist and evidence has been recorded. Inasmuch as three witnesses of fact have already been examined in the case. Hon'ble Supreme Court in Ratilal Bhanji Mithani vs. The State of Maharashtra, 1979 SC 94, held that after framing of charge, the question of discharge does not arise. The same view was taken in the case of Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia, 1989 SCC (1715). Once the charges are framed, the accused is put to trial and thereafter the accused may either be acquitted or convicted, but he cannot be discharged. Discharge post framing of charge is not recognized in the Criminal Procedure Code. So far as the electronic and documentary evidence propounded by the revisionist in support of his claim of innocence and false implication by the informant is concerned, Hon'ble Supreme Court in State of Orissa vs. Debendra Nath Padhi, AIR 2005 SC 359 , held that defence of the accused is not looked into at the stage when the accused seeks to be discharged under Section 227 Cr.P.C. "The record of the case", used in Section 227CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police. 12. On the basis of foregoing discussions and judicial authorities, I find no fault with the finding and reasoning of learned trial court while dismissing the application of discharge moved by the revisionist vide impugned order dated 02.03.2022. The victim has supported F.I.R. version under Sections 161 and 164 Cr.P.C., who is admittedly minor and was aged around 10 years at the time of incident which dates back to year 2017. The victim has supported F.I.R. version under Sections 161 and 164 Cr.P.C., who is admittedly minor and was aged around 10 years at the time of incident which dates back to year 2017. The sworn testimony of the victim before the Court during trial as P.W. 3, in which she has exculpated the accused cannot be considered as a material, which was available before the Court while considering the discharge application as provided under Section 227 of the Code. The grounds taken by the revisionist before this Court and the documents relied upon can be brought before trial court by the accused-revisionist at the stage of defence evidence as trial is in progress. There is no irregularity, illegality and perversity in impugned order passed by learned court below. The revision is devoid of merits and deserves to be dismissed. 13. Accordingly, the revision stands dismissed with above observations.