Dilip Kumar Agarwal v. The State of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding in connection with Protest-cum-Complaint Petition No.532 of 2019 arising out of Bokaro Mahila P.S. Case No.07 of 2018 registered for the offences punishable under Sections 376, 328, 343, 420, 506 of the Indian Penal Code and Section 67/68 of the Information Technology Act, to quash the order dated 21.09.2019 passed by Judicial Magistrate-1st Class, Bokaro wherein after finding prima facie case for the offence punishable under Sections 376, 328, 343, 420, 506, 493, 386 of the Indian Penal Code and Section 67/68 of the Information Technology Act; summons were issues and also the order dated 29.01.2020 passed in Criminal 1 Cr. M.P. No.2780 of 2021 Revision No.425 of 2019 by which the Criminal Revision was dismissed by the learned Additional Sessions Judge-1st Special Judge, F.T.C., Bokaro; in which challenge was made to the cognizance order dated 21.09.2019.

3. The brief facts of the case is that the complainant is an advocate of Bokaro Civil Court and the petitioner used to engage the complainant for several legal work. The petitioner on the fateful day offered lift in his car to the complainant and on the way the petitioner offerred some drinks which was taken by the complainant. After taking drinks, the complainant became senseless. After regaining sense, the complainant found herself at Ranchi. It is alleged that the complainant was raped by the petitioner in a hotel at Ranchi against her will and desire. On the next day on 30.03.2018, the petitioner brought the complainant from Ranchi to Rajrappa forcibly and the complainant was brought from Ranchi to Rajrappa where the petitioner forcibly and falsely made the drama of marriage with the complainant and got the photograph taken by the mobile phone with him. Thereafter, the complainant was taken from Ranchi to Dhanbad and kept in a hotel on the basis of Aadhar Card of the petitioner. There also the petitioner forcibly made physical relationship with the complainant. It is then alleged that the petitioner was carrying the complainant somewhere from Dhanbad but somehow the complainant seeing an opportunity, fled away and came back to Bokaro and narrated the occurrence to her family members.

4. In connection with the said occurrence, Bokaro Mahila P.S. Case No.07 of 2018 was registered but after investigation of the case, police submitted Final Form by mentioning that the allegations were untrue. Thereafter, the complainant filed Protest-cum-Complaint Petition basing upon the statement 2 Cr. M.P. No.2780 of 2021 on solemn affirmation of the complainant, complaint petition and the statement of inquiry witnesses, the learned Magistrate found prima facie case for the offences punishable under Sections 376, 328, 343, 420, 506, 493, 386 of the Indian Penal Code and Section 67/68 of the Information Technology Act. The petitioner challenged the said cognizance order by filing Criminal Revision No.425 of 2019 in the court of Sessions Judge, Bokaro which was ultimately heard and dismissed by the learned Additional Sessions Judge-1st, Bokaro vide order dated 29.01.2020. The learned Additional Sessions Judge observed that the revisionist may agitate his defence at appropriate stage of the trial and the learned Magistrate after concluding the enquiry took cognizance of the offence and the learned Sessions Judge held that there is no perversity or illegality in the said order of cognizance passed by the Magistrate and dismissed the Criminal Revision. Thereafter, charge has been framed against the petitioner for having committed the offences punishable under Sections 376 (2) (n), 328, 343, 420, 506, 493, 386 of the Indian Penal Code and Section 67/68 of the Information Technology Act on 13.12.2021 and two witnesses have already been examined in the trial.

5. Learned counsel for the petitioner submits that there is lack of application of mind in the orders passed by both the learned Magistrate and the learned Additional Sessions Judge-1st; as they both passed the respective orders mechanically without application of mind. It is next submitted that the supply of copies of the statement and other documents to the accused person the case, which is mandatory for the trial court, as envisaged under Section 208 of the Cr.P.C. was not complied with and the copies of such documents was not supplied to the petitioner; though the copy of the complaint petition was 3 Cr. M.P. No.2780 of 2021 supplied to the petitioner and though the petitioner filed an application on

30.09.2021 to supply all the relevant documents but he has not been supplied with the desired documents and in this respect, learned counsel for the petitioner has filed a photocopy; purported to be a certified copy of the petition filed by him in Sessions Trial No.106 of 2020, wherein it has been mentioned that at the time of commitment of the case record by the Judicial Magistrate, the provisions under Section 208 of the Cr.P.C. has not been complied with but the petitioner has not produced the certified copy of the order-sheet of the relevant date to show as to what orders have been passed in such petition. Learned counsel for the petitioner relies upon an order of a co-ordinate Bench of this Court in the case of Kripanandan Prasad & Others vs. State of Jharkhand & Others passed in W.P. (Cr.) No.01 of 2012 vide order No.3 dated 13.01.2012 wherein the co-ordinate Bench of this Court passed orders for issuance direction to all the Courts of the Magistrates, in the entire State of Jharkhand to see compliance of the provisions under Section 208 of the Cr.P.C. for supply of copy of documents. It is next submitted that there is breach of Section 225 of the Cr.P.C. as Section 225 of the Cr.P.C. speaks about a trial to be conducted by a public prosecutor before a court of Sessions while as per order dated 13.12.2021 passed in S.T. Case No.106 of 2020 at the time of the framing of the charge, the counsel of the victim was present but the counsel of the petitioner was not present; though the petitioner was present in the court. It is next submitted that the learned Additional Sessions Judge-IV-cum-Special Court (CAW), Bokaro proceeded to frame charge against the petitioner without following the provisions of Sections 226 and 227 of the Cr.P.C. 4 Cr. M.P. No.2780 of 2021

6. It is next submitted that the case of the petitioner is squarely covered by Clause 5 and 6 of the judgment of the Hon’ble Supreme Court of India in the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 Supp (1) SCC 335 paragraph-102 of which reads as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal 5 Cr. M.P. No.2780 of 2021 grudge.”

7. Hence, it is submitted that the entire criminal proceeding in connection with Protest-cum-Complaint Petition No.532 of 2019 arising out of Bokaro Mahila P.S. Case No.07 of 2018, the order dated 21.09.2019 passed by Judicial Magistrate-1st Class, Bokaro and also the order dated 29.01.2020 passed in Criminal Revision No.425 of 2019 which was dismissed by the learned Additional Sessions Judge-1st Special Judge, F.T.C., Bokaro in which challenge was made to the cognizance order dated 21.09.2019, as prayed for by the petitioner, be quashed and set aside.

8. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer for quashing the entire criminal proceeding in connection with Protest-cum-Complaint Petition No.532 of 2019 arising out of Bokaro Mahila P.S. Case No.07 of 2018, the order dated

21.09.2019 passed by Judicial Magistrate-1st Class, Bokaro also the order dated

29.01.2020 passed in Criminal Revision No.425 of 2019, which was dismissed by the learned Additional Sessions Judge-1st Special Judge, F.T.C., Bokaro, in which challenge was made to the cognizance order dated 21.09.2019. Learned counsel for the opposite party No.2 submits that there has been compliance of the provisions of Sections 208 of Cr.P.C. before framing of charge and the counsel for the informant/victim was present only to intimate the court that there is no stay passed by any competent court of law as the accused person was delaying the trial of the case unnecessarily by falsely submitting before the trial court that there is order of stay. Hence, it is submitted that this Cr.M.P, being without any merit, be dismissed. 6 Cr. M.P. No.2780 of 2021

9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record it is pertinent to mention here that careful perusal of the record reveals that the petitioner has not produced any order-sheet of the court to show as to what order was passed upon a petition filed by him before the court in para-2 of which it was mentioned that there has not been compliance of the Section 208 of the Cr.P.C.

10. Now, coming to the facts of the case; the perusal of the record reveals that the contents of the Complaint-cum-Protest Petition, statement on solemn affirmation of the prosecutrix, statement of inquiry witness goes to show that there is commission of the offence under the penal provisions of law in respect of which ultimately charge has been framed by the court of Additional Sessions Judge-IV-cum-Special Court (CAW), Bokaro.

11. So far as the non-compliance of the Section 226 and 227 of the Cr.P.C. is concerned, it is a settled principle of law that the trial court has to frame charge if the judge is of the opinion that there is ground for presuming that the accused has committed an offence. If the offence is exclusively triable by the Sessions Court, the Sessions Court shall frame in writing the charge concerned against the accused and if the charge is framed by the Sessions Judge under Clause (b) of Sub Section 1 of Section 228, the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claimed to be trial. When such a question is asked and if there is any difficulty on the part of the accused for answering whether he pleads guilty of the offence charged or claims to be tried, he can very well say that in the absence of his counsel, he has not been supplied with 7 Cr. M.P. No.2780 of 2021 the copies of the relevant documents, hence, he is unable to take his stand in case there has not been any compliance of the Section 208 of the Cr.P.C.

12. After going through the materials available in the record, this Court is of the considered view that there is no conclusive material in the record to come to a conclusion that the learned trial court framed the charge without complying the provisions of Sections 208 of the Cr.P.C.

13. So far as the order dated 29.01.2020 passed by the learned Additional Sessions Judge-1st, Special Judge, F.T.C., Bokaro in Criminal Revision No.425 of 2019 is concerned, perusal of the same reveals that the learned Additional Sessions Judge-1st, Special Judge, F.T.C., Bokaro has not found any illegality or perversity in the order passed by the learned Magistrate in taking cognizance. This Court, as already indicated above, also found that the materials in the record i.e. the complaint, statement on solemn affirmation of the complaint and the statement of the inquiry witnesses; if treated to be true in their entirety then the offences punishable in law in respect of which charge has been framed by the learned trial court, is made out.

14. Under such circumstances, this Court is not inclined to quash the entire criminal proceeding in connection with Protest-cum-Complaint Petition No.532 of 2019 arising out of Bokaro Mahila P.S. Case No.07 of 2018, the order dated

21.09.2019 passed by Judicial Magistrate-1st Class, Bokaro and also the order dated 29.01.2020 passed in Criminal Revision No.425 of 2019 which was dismissed by the learned Additional Sessions Judge-1st Special Judge, F.T.C., Bokaro in which challenge was made to the cognizance order dated 21.09.2019 more so when the trial has already begun and two of the witnesses have already been examined. 8 Cr. M.P. No.2780 of 2021

15. Accordingly, this Cr.M.P, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th of July, 2023 AFR/ Animesh 9