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2023 DIGILAW 2898 (ALL)

Rajkumar @ Raju v. State Of U. P.

2023-12-22

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Challenge in this revision is to the order dated 17.5.20223 passed by learned Special Judge (POCSO Act)/ Additional Sessions Judge, Bareilly, in Case Crime No.368 of 2019, under Sections 147, 148, 323, 504, 506, 452, 354-Ka IPC and Section 8 of POCSO Act, Police Station Aonla, District Bareilly, wheeby the discharge application moved by the accused-revisionists in said case under Section 227 Cr.P.C. has been dismissed and case was fixed for framing of charge. 2. Heard learned counsel for the revisionists, learned AGA for the State and perused the material placed on record. 3. Factual matrix of the case in brief are that the FIR was lodged at the instance of respondent No.2 at police station concerned on 27.7.2019, at 16:16 hours on the basis of order passed by learned Special Judge, POCSO Act, Bareilly on application under Section 156(3) Cr.P.C. filed by the informant on 16.7.2019, with averment that on 4.9.2019, at around 6:20 AM, accused persons namely Raju, Pappi, Guddu, Darpan and Veer Singh, who are resident of her mohalla had mercilessly beaten and threatened him with life. The son and husband of the informant went somewhere else due to fear of accused persons. As informant had made a complaint at police station concerned regarding that incident, the accused-persons were bearing grudge against her. The accused persons appeared at the door of the house of informant at 2.6.2019, at about 11:30 PM due to previous enmity and knocked at her door. The informant opened door in impression that her son and husband would have come to home. The accused persons barged into her house and accused Veer Singh and Pappi grabbed and molested her minor daughter with bad intention. When the informant objected to this, they engaged in maar-peet with her and threatened her that they would compel her to leave the place like her husband and son and will grab her house and take her daughter with them. When the informant and her children shouted for help, the accused persons left the place after hurling threats of life to them. The informant tried to lodge her report at police station concerned but due to influence of accused persons, her report had not been lodged and ultimately she had to take recourse of the court for lodging her FIR, under Section 156(3) Cr.P.C. 4. The informant tried to lodge her report at police station concerned but due to influence of accused persons, her report had not been lodged and ultimately she had to take recourse of the court for lodging her FIR, under Section 156(3) Cr.P.C. 4. The police investigated the case, recorded statements of victim, informant and witnesses, inspected the place of incident and Investigating Officer prepared site plan of the place of occurrence and after investigation submitted a final report in favour of the accused persons with conclusion that matter enquired into by approaching respectable people of locality and daughter-in-law of the informant, who was present on the spot but no such type of incident was found to have occurred. This fact emerged that the informant and her husband had borrowed money from accused persons for marriage of their son but they did not intent to pay back the money and a false case was lodged against accused persons with malafide. The informant appeared before the trial court and filed her protest petition against final report submitted by the Investigating Officer. Learned trial court heard the informant on final report and protest petition and placing reliance on statement of victim recorded under Section 164 Cr.P.C. before the Magistrate as well as the statement of informant recorded under Section 161 Cr.P.C. as well as FIR version rejected the final report and allowed the protest petition vide order dated 6.12.2021 and summon the accused Veer Singh and Pappi for said charges and accused Raju, Guddu and Darpan were also summoned for said charges except charge under Section 8 of POCSO Act. 5. The accused persons assailed the summoning order before this Court by moving an Application U/S 482 No.2702 of 2022, wherein they submitted that in fact, no such incident took place as mentioned in the F.I.R. and due to the personal grudges, entire family of the applicants has been roped in the present matter. It is further submitted that no offence against applicants is disclosed and present prosecution has been instituted with a malafide intention for the purposes of harassment. This Court disposed of the application under Section 482 Cr.P.C., vide order dated 9.2.2022 with observation that the disputed defence of the accused cannot be considered at this stage. The Court did not see any abuse of the court's process either. This Court disposed of the application under Section 482 Cr.P.C., vide order dated 9.2.2022 with observation that the disputed defence of the accused cannot be considered at this stage. The Court did not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded, it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. The Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law. 6. In the light of observations of this Court on Application U/S 482 Cr.P.C. filed by the accused persons, they moved an application under Section 227 Cr.P.C. before the trial court praying for their discharge from alleged charges, wherein, they place reliance on the statements of independent witnesses given through affidavits to S.H.O., concerned, in which they have stated that no such type of incident occurred as alleged in the FIR. The accused persons are respectable people of the locality and they have been falsely implicated in the case with ulterior motive and with a view to grab their money lent to the husband of the informant. They have also stated in the application that they have been released on bail vide order dated 31.3.2022 by the Court. The FIR has been lodged by the informant with a view to blackmail the accused persons and avoid repayment of their money borrowed by him. It was also stated therein that in fact, the informant wanted to get her daughter (victim) married with accused Darpan but her offer was declined by accused persons. Accused Ajay @ Guddu and Rajkumar @ Raju are afflicted with serious ailment and they could not participate in such type of incident. The informant has stated the date of incident as 2.6.2019 whereas the victim, in her statement under Section 164 Cr.P.C., has stated the incident had occurred on 2.8.2019. Accused Ajay @ Guddu and Rajkumar @ Raju are afflicted with serious ailment and they could not participate in such type of incident. The informant has stated the date of incident as 2.6.2019 whereas the victim, in her statement under Section 164 Cr.P.C., has stated the incident had occurred on 2.8.2019. The victim has implicated only accused Veer Singh and Pappi in the incident. Learned court below rejected the application for discharge moved by the accused persons with observation that the accused persons were summoned on protest petition, vide order dated 6.12.2021. They filed discharge application at belated stage after order of High Court in this respect. No fresh evidence appeared after summoning of the accused persons on the basis of which accused persons can be discharged. The discharge application has been moved on the basis of same evidence which was available at the time of summoning of the accused. No such type of evidence is found on record on basis of which, the accused persons could be discharged. 7. Feeling aggrieved by the impugned order, the accused persons/revisionists preferred present criminal revision. 8. Learned counsel for the revisionists submitted that learned trial court has wrongly observed in the impugned order that no fresh evidence or material has appeared on record after summoning of the accused-persons, which could form basis for the discharge as this Court while deciding Application U/S 482 Cr.P.C. No. 2702 of 2022, vide order dated 9.2.2022, has clearly observed that “If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application.” 9. Learned counsel for the revisionists further submitted that where informant has implicated all the five accused persons in the FIR as well as in her statement under Section 161 Cr.P.C., the victim has made allegations only against two accused namely, Pappi and Veer Singh in the incident. Even, daughter-in-law of the informant has not supported FIR version in her statement under Section 161 Cr.P.C. The victim or informant suffered no injury in the incident as no injury report has been brought on record. The affidavits of the witnesses is part of case diary. 10. Even, daughter-in-law of the informant has not supported FIR version in her statement under Section 161 Cr.P.C. The victim or informant suffered no injury in the incident as no injury report has been brought on record. The affidavits of the witnesses is part of case diary. 10. Per contra, learned AGA submitted that the offence is of serious nature. Learned court below has rightly dismissed the discharge application moved by the applicants/revisionists by impugned order while considering the material on record and submissions of learned counsels appearing for the parties. No case for discharge has been made out in the matter. 11. From perusal of record, it appears that the FIR in the case was lodged on the basis of order of Special Judge, POCSO Act, Bareilly, on 27.7.2019 regarding the incident dated 2.6.2019, time 11:30 PM. It is stated in the FIR that the accused-persons assaulted her and molested her minor daughter on date and time of incident by committing house trespass, due to previous enmity and incident dated 4.5.2019. The informant has supported FIR version against all the accused persons in her statement recorded under Section 161 Cr.P.C., wherein specific allegation of molestation of her minor daughter are attributed to accused namely, Veer Singh and Pappi. The victim in her statement under Section 161 Cr.P.C. recorded on 20.6.2019 has implicated only two accused person namely Pappi and Veer Singh, who knocked at her door in the fateful night, which was opened by her mother and they tried to outrage her modesty. She has also stated that there were no other person at that time except these two people. The victim in her statement under Section 164 Cr.P.C. recorded by the Magistrate on 26.7.2019 has also implicated only two accused namely Pappi and Veer Singh. She has sated nothing about other accused-persons. 12. She has also stated that there were no other person at that time except these two people. The victim in her statement under Section 164 Cr.P.C. recorded by the Magistrate on 26.7.2019 has also implicated only two accused namely Pappi and Veer Singh. She has sated nothing about other accused-persons. 12. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [ (2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52 ], in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [ (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [ (2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52 ], SCC p. 482, para 15) “15. ‘11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.’ (Onkar Nath case [ (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507], SCC p. 565, para 11)” (emphasis in original) 13. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310], relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused: 1. Under Section 227 of the Code, the trial court is required to discharge the accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 can be ordered when “the Magistrate considers the charge against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction”. 2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken. 3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [ (1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 75556, para 43) “43. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [ (1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 75556, para 43) “43. … Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of ‘prima facie’ case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.” 9.2 In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under: “6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal, [ (1979) 3 SCC 4 : 1979 SCC (Cri) 609], Dilawar Balu Kurane v. State of Maharashtra, [ (2002) 2 SCC 135 : 2002 SCC (Cri) 310], Sajjan Kumar v. CBI, [ (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], State v. A. Arun Kumar, [ (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505], Sonu Gupta v. Deepak Gupta, [ (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265], State of Orissa v. Debendra Nath Padhi, [ (2003) 2 SCC 711 : 2003 SCC (Cri) 688], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, [ (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, [ (1979) 4 SCC 274 : 1979] SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge 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 statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial. 14. Hon’ble Apex Court in Tarun Jit Tejpal vs. State of Goa, (2019), SCC OnLine 1053, placed reliance on a previous judgement of Apex Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 , wherein Apex Court on consideration of various decision about scope of Section 227 and 228 Cr.P.C. laid following principles:- “(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. 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. 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 stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom 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 all 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 and at this stage, he is not to see whether the trial will end in conviction or acquittal.”” In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC 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. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under:- “11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides: “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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject-matter of consideration by this Court. In State of Biharv. Ramesh Singh [ (1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257 ], Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 4142 : SCC (Cri) pp. 53536, para 4] 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. 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. 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. 13. In Union of India v. Prafulla Kumar Samal [ (1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229 ], Fazal Ali, J., summarised some of the principles: [SCR pp. 23435 : SCC p. 9 : SCC (Cri) pp. 61314, para 10] “(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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 had been made out. (2) 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 15. In present case, the victim, who is minor daughter of the informant/defacto complainant has stated in her statement under Section 161 as well as 164 Cr.P.C. that only accused Veer Singh and Pappi committed house trespass in the fateful night in presence of her mother and molested her. Even she has not attributed any role to other accused persons namely, Raju, Guddu and Darpan. She has not even stated their presence on the spot. Therefore, there is clear contradiction in stand of the informant and that of victim regarding presence and participation of these three accused namely, Raju, Guddu and Darpan in the incident. There is no reason as to why the victim had not stated anything regarding presence of these three persons on date, time and place of incident. Therefore, the complicity of these three accused persons in the alleged incident appears highly doubtful. Accused persons are said to have belonged to same family and there is allegation of enmity in the FIR itself between informant and accused persons. The offence was not investigated with regard to incident dated 4.5.2019, which allegedly happened with husband and son of the informant and present FIR was lodged only with regard to incident dated 2.6.2019. Accused persons are said to have belonged to same family and there is allegation of enmity in the FIR itself between informant and accused persons. The offence was not investigated with regard to incident dated 4.5.2019, which allegedly happened with husband and son of the informant and present FIR was lodged only with regard to incident dated 2.6.2019. Therefore, learned court below has rejected the discharge application moved by the accused revisionists without considering the apparent conflict between stand of the victim and the informant in their statements recorded during investigation. The court below while dismissing discharge application has not considered the observations made by this Court while disposing off the Application U/S 482 Cr.P.C. as mentioned above. Seeking discharge on cogent grounds is a valuable right of the accused. Therefore, the revision is liable to be allowed and impugned order, whereby the discharge application moved by the revisionists has been dismissed, is liable to be set aside. 16. Accordingly, present criminal revision stands allowed and the impugned order dated 17.5.2022, passed by learned trial court is set aside and the matter is remitted to trial court with direction to hear and decide the discharge applicable moved by the revisionists afresh in the light of observation made in present order, after giving opportunity of hearing to both sides and passed a reasoned and speaking order based on material on record, in accordance with law.