In Amit Kapoor v. Ramesh Chander and another
Case Details
Neutral Citation No. - 2024:AHC:153331 Court No. - 76 Case :- APPLICATION U/S 482 No. - 24251 of 2024 Applicant :- Keshauram @ Chedalal Maurya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhisht Jaiswal,Atharva Dixit Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 482 Cr.P.C. has been preferred against order dated 03.06.2024, passed by the learned Additional Sessions Judge/FTC, Bareilly, in S.T. No. 182 of 2024 (State Vs. Amit Maurya @ Tejpal Maurya and others), arising out of case crime no. 0147 of 2019, under Sections 498A, 323, 376, 504, 506 IPC and Section 3/4 of D.P. Act, P.S.- Prem Nagar, District- Bareilly, whereby the application filed by applicant for discharge has been rejected.
Legal Reasoning
This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence is an approach which is impermissible in terms of Section 228 of the Code." 8. In case of Sajjan Kumar Vs. Central Bureau of Investigation 2010(9) SCC 368, Hon’ble Apex Court had an occasion to consider the scope of Section 227 and 228 CrPC. The principles which emerged therefrom have been taken note of in para 21 as under: 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (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. (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.” 9. Thus, it is well settled position that while considering the question of framing the charges or considering application of discharge under section 227 CrPC the court has power to shift 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 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 has to consider broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc but there can not be a roving enquiry into the pros and cons of the matter and weigh the evidence. 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. It is also settled that the probative value of the material on record can not be gone into before framing a charge. At the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true, and evaluate the materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At this stage, the court is not expected to go deep into the matter to hold a mini-trial. The standard of test and judgment which is finally applied before recording a finding of conviction against an accused is not to be applied at the stage of framing the charge. It is just a very strong suspicion, that would be sufficient to frame a charge but such suspicion should be the one emerging from the materials on record brought by the prosecution. 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. 10. In the case in hand, it appears from record that the applicant is father-in-law of informant. The marriage of informant with son of applicant has taken place on 22.04.2015. The informant has made allegations of rape against the applicant. Though, it is not uncommon that in some cases, victim of matrimonial dispute tries to implicate family members of her husband and goes to the extent of making false allegation of molestation against relatives of husband like father-in-law and brother-in-law in order to settle score but while considering a discharge application, the Court has to exercise its judicial mind to determine whether a case for trial is made out or not and at that stage a mini trial can not be held. As held earlier the Court can shift and weigh the evidence for a limited purpose and finding out whether a prima-facie case against applicant is made out or not. Where material placed on record discloses grave suspicion against accused, which has not been properly explained, the Court will be justified in rejecting application for discharge. In the instant matter, in the first information report, the informant made clear allegations that she was harassed by the accused persons on account of dowry and that on 05.02.2017 at 6:30 PM while she was alone at the home, applicant caught her and committed rape upon her and threatened that in case she disclosed the incident to anyone, he would kill her. Similarly, in her statement under Section 164 Cr.P.C., victim has reiterated that on 05.02.2017, while she was alone, applicant has committed rape upon her and threatened to kill her. Mere delay in lodging of the first information report or in medical examination of victim, is not sufficient to discharge the applicant-accused. The discharge application filed by the applicant has been rejected by the trial Court by a reasoned order. Applying aforesaid
Arguments
3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus, liable to be set aside. The applicant is father-in-law of informant and the allegations levelled against applicant are wholly false. Further, the alleged incident has been shown of 05.02.2017 but the first information report has been lodged with long delay on 27.04.2019, which has not been explained. Similarly, there is long and undue delay in medical examination of informant and the version of informant is not supported by medical evidence. It was submitted that the allegations of rape levelled against applicant are wholly improbable and the impugned proceedings are malicious and thus, the applicant deserves to be discharged. 4. Learned A.G.A. has opposed the application and submitted that in the first information report as well as in the statement of informant, there are clear allegations that applicant and co-accused persons have harassed the informant and that applicant has committed rape upon her. It was submitted that the effect of delay in first information report and in medical examination of informant, can be considered during trial. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. Before proceeding further it would be apt to refer provisions of section 227 CrPC, which read as under: ‘‘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. In Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460, the Apex Court held as follows: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly.
Decision
position of law, it can not be said that the impugned order is suffering from any such material illegality or perversity so as to require any interference by this Court by invoking extraordinary jurisdiction under Section 482 Cr.P.C. This application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed. 11. The application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 20.9.2024 SP/-