The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 670 of 2023 An application under Sections 397 read with Section 401 of the Code of Criminal Procedure challenging the order passed by the learned Sessions Judge (Special Judge), Kuchinda, in Special G.R. Case No. 04 of 2023 which arises out of Kuchinda PS Case No. 95 of 2023. -------------- Sanjit Kumar Nayak ..…. Petitioner -versus- State of Orissa and another …… Opp. Parties --------------------------------------------------------------------------- For Petitioner : Mr. Byomokesh Sahoo, Advocate For Opp. Party : Ms. S. Mishra, A.S.C. ---------------------------------------------------------------------------- CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 18.04.2024 Savitri Ratho, J. This application under Section 397 read with 401 of Cr.P.C. has been filed challenging the order passed by the learned Sessions Judge (Special Court), Kuchinda in in Special G.R. Case No. 04 of 2023 which arises out of Kuchinda P.S. Case No. 95 of 2023, rejecting the application of the petitioner under Section 227 of the Cr.P.C. to discharge him from all the offences. CRLREV No. 670 of 2023 Page1 of 11 2. The prosecution allegation in brief is that the victim passed +3 in the year 2012, where the petitioner was serving as a lecturer in zoology. Thereafter, she was employed by him in his coaching institute as a data entry operator. The accused took advantage of her while she was working there and against her wishes has shot videos and photographs and subsequently by using those has kept physical relationship with her against her wishes on a number of occasions. When her marriage was fixed in the year 2018, he threatened to make her photographs and videos viral, for which her marriage negotiations failed. Again, in the year 2023, when her marriage had been fixed, he threatened her and then sent photographs and videos of the intimate moments to her would be groom in order to break the marriage. Initially the investigation had
Legal Reasoning
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 possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C., it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record.” In the case of State of Karnataka vrs. M.R. Hiremath: (2019) 7 SCC 515, the Supreme Court has held as follows:- “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. CRLREV No. 670 of 2023 Page8 of 11 The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan: (2014)1 SCC 709 , adverting to the earlier decisions on the subject; this Court held : “29... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”” The Hon’ble Apex Court in the case of Ghulam Hassan Beigh vrs. Mohd. Maqbool Magrey: (2022) 12 SCC 657 has elaborately discussed the issue of framing of charge and has held as follows: CRLREV No. 670 of 2023 Page9 of 11 “27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution.” 8.
Arguments
been conducted by Mr. S. Seth, IIC, Kuchinda PS. After his transfer Inspector Chandramohan Singh conducted the investigation. Preliminary charge sheet had been filed on 04.08.2023 by the IIC, Kuchinda Police Station, against the petitioner for commission of offences under Section 354-A,354-C,354-D, 376(2)(n),506 of the IPC and Section 67A of the IT Act. During the investigation, after receipt of the caste certificate, it was found that the victim belongs CRLREV No. 670 of 2023 Page2 of 11 to a Schedule Tribe, so under instruction of the Superintendent of Police, Sambalpur, charge of investigation was taken up by DSP, Sambalpur. After taking charge of investigation, DSP has conducted joint inquiry and examined the victim, one Sukesh Kumar Majhi and recorded their statements under Section 164 of the Cr.P.C. He has seized the mobile phones, used by the accused and the mobile phones of witnesses to which the petitioner had allegedly sent the photographs and videos of the victim and these phones were sent to the State Forensic Laboratory for examination, and it was found that the victim belongs to Oraon caste, which comes under the ST category. After completion of the investigation the DSP had submitted the charge sheet dated 29.10.2023 against the petitioner for commission of offences punishable under Section 354-A,354-C,354-D, 376(2)(n),506 of the IPC and Section 67a of the IT Act and read with Section 3(1)(r)(w), 3(2)(v)(va) of the SC and ST (Prevention of Attrocities) Act, 1989. 3. In the impugned order, the learned Additional Sessions Judge-cum-Special Judge, Kuchinda, Sambalpur has observed that on perusal of the record it is seen that the informant/victim lady has described the whole incident in the F.I.R, statement before the CRLREV No. 670 of 2023 Page3 of 11 police and her statement recorded under Section 164 Cr.P.C. According to her, the accused first employed her in his coaching center and taking advantage of her poverty, induced her to keep physical relationship with her. Thereafter, the accused took videos and photographs of their relationships and subsequently by blackmailing her repeatedly kept physical relationship for a long period. The investigating agency has collected sufficient evidence to satisfy the court that the allegation made by the victim is not baseless at all. C.D.R of both the parties and their conversations in chatting App have also been filed by the investigating agency. The victim is a tribal lady, but her religion has not yet been confirmed by the investigating agency. In such situation, the defence has sufficient opportunity to place their matter at the time of trial to defuse the allegation, if any, wrongly made against the accused. This is not a fit case at all where the accused is liable to be discharged. 4. Mr. B. Sahoo, learned Counsel for the petitioner has challenged the impugned order on the following grounds: i) investigation in respect of the offences under Section SC and ST (Prevention of Attrocities) Act is vitiated, in the absence of case CRLREV No. 670 of 2023 Page4 of 11 diary indicating what investigation has been conducted by the DSP. ii) the offence under Section 376(2)(n) of the IPC is not made out against the petitioner as there is no material on record that the victim was repeatedly subjected to forcible sexual intercourse against her wishes. As she has not stated that she has objected to having physical relationship with the petitioner, the allegation of forcible sexual intercourse cannot be accepted. iii) the offence under Section 67A of the IT Act is not made out against the petitioner as the mobile phone which was allegedly seized from the petitioner does not belong to him. iv) There has been a huge and unexplained delay in lodging the FIR as the victim had stated that the petitioner had forcibly raped her in the year 2012 but she has lodged FIR in the year 2023, and v) Even accepting the materials on record, since the victim is a major, the facts point to a case of consent on her part for which the offence under Section 376(2)(n) is made out against the petitioner. 5. Ms. S. Mishra, learned Additional Standing counsel referring to the statement of the victim recorded under section 161 of the Cr.P.C. has submitted that the victim has stated that she was CRLREV No. 670 of 2023 Page5 of 11 subjected to forcible sexual intercourse on different occasions under the threat that her intimate photographs and video would be made viral, for which she had not complained to the police. But, subsequently in the year 2023, when the petitioner had sent her photographs and videos to her would be husband, she gathered the courage to lodge FIR. So, the delay has been explained. She further submits that the victim has stated that the accused had sexual intercourse with her on a number of occasions under threat of making her photos and videos viral for which the offence under Section 376(2)(n) of the IPC is made out against her. As regards the submission that the case diary pertaining to investigation carried out by the DSP has not been provided, she submits that the DSP has mentioned what investigation has been carried out by him and the contention of the learned Counsel for the petitioner can be tested/examined during trial and this Court is not required to examine the case diary for deciding his application. As investigation has been conducted by the DSP in accordance with rule 5(3) of the SC and ST (Prevention of Attrocities) Rules, 1995 before submitting charge sheet for the offences under Section SC and ST Act, there is no scope for interference with the impugned CRLREV No. 670 of 2023 Page6 of 11 order. 6. Section 227 of the Code of Criminal Procedure is extracted below: 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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 7. It is no more res integra that at the time of considering an application for discharge or framing of charge, meticulous examination of the materials is not required. The trial court can sift the materials to find out if a prima facie case is made out for the purpose of framing of charge but it is not required to discuss the materials threadbare as this is to be done at the time of hearing of the case after evidence has been recorded. It is also well settled that at the stage of framing of charge, the probable defence of the accused is not to be considered. The Supreme Court in the case of Asim Shariff v. National Investigation Agency: (2019) 7 SCC 148, has held that the trial court should not conduct a mini trial at the time framing of charge, while holding as follows: CRLREV No. 670 of 2023 Page7 of 11 “18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 Cr.P.C in sessions cases(which is akin to Section 239 Cr.P.C pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose
Decision
In view of the above discussion, I do not consider that the impugned order calls for any interference. I also do not consider this is the proper stage to consider the contention of petitioner that he should be discharged from the offence punishable under Section CRLREV No. 670 of 2023 Page10 of 11 – 376(2) (n) of the IPC as it is a case of consent; and from the offence punishable under Section-3 of SC and ST (Prevention of Atrocities) Act as this is to be proved in the trial. These contentions can be considered by the learned trial Court in the trial after analyzing the evidence on record. I do not think it would be proper to step into the shoes of the learned trial Court and conduct a mini trial. 9. The Criminal Revision is accordingly dismissed granting liberty to the petitioner to raise all his contentions before the trial Court which shall be considered during hearing, in accordance with law. 10. Urgent certified copy of this order be granted on proper application. Orissa High Court, Cuttack. The 18th April, 2024. Subhalaxmi, Junior Stenographer. ……………………… (Savitri Ratho, J.) Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jun-2024 17:07:08 CRLREV No. 670 of 2023 Page11 of 11