High Court · 2025
Facts
Cri.Revn.217.2015-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 217 OF 2015Madiha W/o. Rehan Shaikh,Aged : 20 years, Occu. : Household, R/o. Flat No. 202, 2nd Floor,Vishal Residency, Near GCC Club,Hatkesh Road, Mira Road, Thane,Taluka & District Thane.… Applicant Versus1.State of Maharashtra,2.Rehan S/o. Abdul Karim Salar (Shaikh),Aged : 25 years, Occu. : Business,R/o. 387, Shani Peth, Jalgaon,Taluka & District Jalgaon. … Respondents.…..Mr. Naseem R. Shaikh, Advocate for Applicant.Mr. S. M. Ganachari, APP for Respondent – State.Mr. N. E. Deshmukh, Advocate for Respondent No.2.…..WITHCRIMINAL REVISION APPLICATION NO.8 OF 20161 Rehan S/o Abdul Karim Salar,Age : 25 years, Occu. : Business,2.Abdul Karim S/o Abdul Majid Salar,Age : 60 years; Occu. : Business/Social worker;3.Ruksanabi W/o Abdul Karim Salar,Age : 57 years; Occu. : Household;4.Irfan S/o Abdul Karim Salar,Age : 31 years; Occu. : Business;5. Javed S/o Latif Salar,Age : 43 years, Occu. : Business;
Legal Reasoning
Cri.Revn.217.2015-7-intercourse in the backdrop of promise of marriage. However, sheherself reported that he took her to Masjid and performed marriagewith her and has spent couple of months with her. After allegedepisodes of physical intimacy and marriage in July 2012, report ofcommission of offence is apparently lodged in January 2013. In spiteof being charge-sheet, there does not seems to be any evidence aboutany video clips of alleged intimacy on the basis of which she wasallegedly threatened to be defamed.8.It would be fruitful to give a brief account of the settledlegal position regarding objects and scope of Section 227 of Cr.P.C.In the case of Sajjan Kumar v. CBI MANU/SC/0741/2010 :(2010) 9 SCC 368, on the scope of Section 227 of Cr.P.C., the Hon’bleApex Court observed in para 21 as under :"21. On consideration of the authorities about scope of Sections 227and 228 of the Code, the following principles emerge:(i) The Judge while considering the question of framing the chargesunder Section 227 of the Cr.P.C. has the undoubted power to sift andweigh the evidence for the limited purpose of finding out whether ornot a prima facie case against the accused has been made out. Thetest to determine prima facie case would depend upon the facts ofeach case.(ii) Where the materials placed before the Court disclose gravesuspicion against the accused which has not been properlyexplained, the Court will be fully justified in framing a charge andproceeding with the trial. Cri.Revn.217.2015-8-(iii) The Court cannot act merely as a Post Office or a mouthpiece ofthe prosecution but has to consider the broad probabilities of thecase, the total effect of the evidence and the documents producedbefore the Court, any basic infirmities etc. However, at this stage,there cannot be a roving enquiry into the pros and cons of the matterand weigh the evidence as if he was conducting a trial.(iv) If on the basis of the material on record, the Court could form anopinion that the accused might have committed offence, it can framethe charge, though for conviction the conclusion is required to beproved beyond reasonable doubt that the accused has committed theoffence.(v) At the time of framing of the charges, the probative value of thematerial on record cannot be gone into but before framing a chargethe Court must apply its judicial mind on the material placed onrecord and must be satisfied that the commission of offence by theaccused was possible.(vi) At the stage of Sections 227 and 228, the Court is required toevaluate the material and documents on record with a view to findout if the facts emerging therefrom taken at their face value disclosesthe existence of all the ingredients constituting the alleged offence.For this limited purpose, sift the evidence as it cannot be expectedeven at that initial stage to accept all that the prosecution states asgospel truth even if it is opposed to common sense or the broadprobabilities of the case.(vii) If two views are possible and one of them gives rise to suspiciononly, as distinguished from grave suspicion, the trial Judge will beempowered to discharge the accused and at this stage, he is not tosee whether the trial will end in conviction or acquittal."The Hon'ble Apex Court, on the limited power of siftingthe material on record at the stage of charge, in case of DipakbhaiJagdishchandra Patel v. State of Gujarat MANU/SC/0595/2019 :(2019) 16 SCC 547, observed as under : Cri.Revn.217.2015-9-"23. At the stage of framing the charge in accordance with theprinciples which have been laid down by this Court, what theCourt is expected to do is, it does not act as a mere post office.The Court must indeed sift the material before it. The material tobe sifted would be the material which is produced and reliedupon by the prosecution. The sifting is not to be meticulous inthe sense that the Court dons the mantle of the Trial Judgehearing arguments after the entire evidence has been adducedafter a full-fledged trial and the question is not whether theprosecution has made out the case for the conviction of theaccused. All that is required is, the Court must be satisfied thatwith the materials available, a case is made out for the accusedto stand trial..."In Asim Shariff v. National Investigation Agency MANU/SC/0863/2019 : (2019) 7 SCC 148 the Hon'ble Apex Court has observedthat at the stage of framing of charge, the trial court is not expectedor supposed to hold a mini trial for the purpose of marshalling theevidence on record. The relevant observations in this regard read asunder:"18. Taking note of the exposition of law on the subject laid downby this Court, it is settled that the Judge while considering thequestion of framing charge under Section 227 CrPC in sessionscases(which is akin to Section 239 CrPC pertaining to warrantcases) has the undoubted power to sift and weigh the evidencefor the limited purpose of finding out whether or not a primafacie case against the accused has been made out; where thematerial placed before the Court discloses grave suspicion againstthe accused which has not been properly explained, the Court willbe fully justified in framing the charge; by and large if two viewsare possible and one of them giving rise to suspicion only, asdistinguished from grave suspicion against the accused, the trialJudge will be justified in discharging him. It is thus clear that Cri.Revn.217.2015-10-while examining the discharge application filed under Section227 CrPC, it is expected from the trial Judge to exercise itsjudicial mind to determine as to whether a case for trial has beenmade out or not. It is true that in such proceedings, the Court isnot supposed to hold a mini trial by marshalling the evidence onrecord."Some other rulings on this aspect can be named as Stateof Maharashtra and others v. Som Nath Thapa and others (1996) 4SCC 659; State of M.P. v. Mohanlal Soni (2000) 6 SCC 338; AmitKapoor v. Ramesh Chander and another (2012) 9 SCC 460; AsimShariff v. National Investigation Agency (2019) 7 SCC 148.9.Here, though there were allegations of commission ofoffence under section 376 of IPC, in the light of discussion made inaforesaid paras, it is apparently emerging that, there seems to beacquaintance between revisionist and respondent Rehan beingneighbours. Talks regarding marriage proposal seem to be known toher mother and sister also. She admits that she got married in aMasjid on or around 14.07.2012. Thereafter, there seems to beallegation of demand of money and then finally in January, 2013 i.eafter almost six months also allegations are made for commission ofoffence under section 376 of IPC. 10.Thus, initially, revisionist alleges threats of defamation,but subsequently gets married and also spends considerable time Cri.Revn.217.2015-11-with respondent. Therefore, with such material, allegations asregards to, more particularly section 376 of IPC, accusations do notinspire confidence. There is no material in the charge-sheet forprosecuting respondent for said charge. Therefore, learned trial courthas not committed any error in discharging respondent Rehan fromsaid charge amongst other charges. For above reasons, no case is made out for interference.11.Even husband and in-laws have preferred CriminalRevision Application No.08 of 2016 praying for quashing theimpugned order dated 31.10.2015 passed below Exh.22 to the extentof refusing to grant discharge for offence punishable under sections498-A, 504, 506 r/w 34 of IPC. However, after going through the available papers and theFIR, even this court is of opinion that, at this stage it cannot be saidthat, there was no cruelty or demand. Such aspects needs to be goneinto only on full-fledged trial. Therefore, as like trial court, in theconsidered opinion of this court, application for discharge fromoffence under sections 498-A, 504, 506 r/w 34 of IPC cannot beentertained and no relief as prayed can be granted. Cri.Revn.217.2015-12- There is no reason to interfere. Hence, both revisionshave no substance and are devoid of merits. Accordingly, thefollowing order is passed :-ORDERBoth revision applications stand dismissed. (ABHAY S. WAGHWASE, J.) Tandale
Arguments
Cri.Revn.217.2015-2-Applicant Nos.1 to 5 are R/o : 387 Shani Peth, Tal & Dist. Jalgaon.6.Abdul Aziz S/o Abdul Majid Salar,Age : 56 years, Occu. : Business,R/o : Balirampeth, Jalgaon… ApplicantsVersus1.The State of Maharashtra,2.Madiha S/o. Rehan Shaikh,Age : 23 years, Occu. : Nil, R/o. : Plot No.202, 2nd Floor, Vishal Residency, Near Hudkeshwar, Meera Road, Thane (East),At present camping at 375 Shani Peth, Jalgaon.… Respondents.…..Mr. N. E. Deshmukh, Advocate for Applicants.Mr. S. M. Ganachari, APP for Respondent – State.Mr. Naseem R. Shaikh, Advocate for Respondent No.2.…..CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 18 DECEMBER 2024PRONOUNCED ON : 07 JANUARY 2025JUDGMENT : 1.In this revision, exception has been taken to the orderdated 31.10.2015 passed by learned Additional Sessions Judge,Jalgaon on Exh.22 in Sessions Case No.148 of 2013 partly allowingthe application, thereby discharging the present respondent no.2(original accused) from charge under section 376 of Indian PenalCode. Cri.Revn.217.2015-3-BRIEF BACKGROUND2.Applicant Madiha approached Shanipeth Police Station,Jalgaon lodging a report on 11.01.2013 alleging that, presentrespondent no.2 Rehan, who was her neighbour, developedacquaintance with her, started visiting her house on some or othercount and lured her with promise of marriage and against her willand wish developed physical intimacy on several occasions. He alsotook her to a Mosque at Bandra, Mumbai performed marriage withher. During cohabitation, he subjected her to maltreatment anddemanded Rs.5,00,000/-. Therefore, on above acquisitions, made inthe report, Shanipeth Police registered crime bearing No.4 of 2013for offence punishable under sections 376, 498-A, 504 and 506 ofIndian Penal Code. Present respondent no.2 stood charge-sheeted and casewas on the file of learned Additional Sessions Judge, Jalgaon. During pendency of trial, respondents invoked provisionunder section 227 of Cr.P.C. seeking discharge. After hearing bothsides, learned Additional Sessions Judge by order dated 31.10.2015partly allowed the application Exh.22, thereby discharging presentrespondent No.2 Rehan only from the charge under section 376 ofIPC amongst above other charges. Cri.Revn.217.2015-4- Feeling aggrieved by the above order dated 31.10.2015on Exh.22, original complainant has approached this court byinstituting present revision thereby praying to set aside theimpugned order.SUBMISSIONS3.Learned counsel for applicant in Criminal RevisionApplication No. 217 of 2015 apprised the court about above factualmatrix regarding relations, gaining access and acquaintance and onpromise of marriage, but against her wish, being sexually ravishedand performing marriage and further setting up demands, ill treatingher and finally disowning her, resulting into registration of crime. 4.Learned counsel further pointed out that, there is sexualexploitation of victim by playing deceit i.e. by the respondent Rehansince February 2012. It is pointed out that, revisionist wasthreatened to be defamed and blackmailed. That, therefore, offencewas registered. That, after thorough investigation, investigatingmachinery found sufficient material to make respondent face trial.That, required ingredients for each of the offence, for which crimewas registered, were available in the evidence. That, statements of 7to 8 witnesses, which are consistent, were recorded by policemachinery and only on satisfaction of sufficiency of material,respondent was charge-sheeted. That, learned trial court failed to Cri.Revn.217.2015-5-consider and appreciate the contents of the charge-sheet. That,learned trial court even ignored the settled legal position whiledealing with application for discharge and passed impugned order.That, no sound reasons are assigned while discharging respondentfrom charge under section 376 of IPC. Learned counsel furtherpointed out that, grave offence was committed, but accused isdischarged from the same. That, there is improper appreciation ofcharge-sheet as well as law and hence, learned counsel seeksindulgence by setting aside the impugned judgment. He seeksreliance on following rulings :- (i)Vaibhav S/o. Gajanan Tekam v. State of Maharashtra Criminal Appeal No.437 of 2021 (High Court of Bombay Nagpur Bench); (ii)Manendra Prasad Tiwari v. Amit Kumar Tiwari & Anr. Criminal Appeal No.1210 of 2022 (Arising out of S.L.P. (Criminal ) No.3015 of 2022; (iii)Ravindra Laxman Ghogardare v. State of Maharashtra, AIR Online 2019 Bom 177;5.Per contra, learned counsel for respondent No.2 wouldsubmit that, there was apparently false implication. That, allaccusations are motivated. That, apart from immense delay inlodging false report, it was a clear attempt to implicate respondentwith ulterior motive. That, learned trial court below scrupulouslyexamined the charge-sheet and on getting convinced regarding casebeing made out for invoking section 227 of Cr.P.C. order has beenpassed. That, it is in consonance with the settled legal position. That, Cri.Revn.217.2015-6-impugned order is infallible and hence prays for not to disturb it. ANALYSIS6.Here, on going through the material gathered byprosecution and tendered by way of charge-sheet, it is emerging that,revisionist and respondent no.2 were neighbours. In report to policein 2013, it was informed by her that, since February 2012,respondent Rehan was trying to allegedly come close to her and evenhe expressed his desire to marry her. Such information was evenpassed to her mother through her sister. She informed that in April2012, respondent had physically intercourse with her and thenpromised to perform marriage with her. She claims that, whensubsequent attempts to have physically intimacy were turned downby her, he threatened to defame her saying that, he had video clips ofphysical intimacy. It has also come in her report that, when she hadbeen to Mumbai, in July 2012, he called her near carter road, in amasjid and performed marriage with her. This was subsequentlyinformed to her mother. However, subsequently, later on he informedthat his family members are asking him to seek divorce from her.Thereafter she has reported about demand of Rs.5,00,000/- foraccepting her as his wife.7.Apparently, as pointed out there is inordinate delay. Herabove report clearly shows that she merely speaks that he had