State of Rajasthan, Through P.P v. Gunjan Kumawat S/o

Gunjan Kumawat S/o Shri Gyanchand, Aged About 38 Years, R/o House No. 13, Gopi Nagar, Jaisinghpura, Khor, Jaipur At Present House No. 6, Khandela House Behind Amber Tower Sansar Chandra Road, P.S. Jalupura Jaipur ----Respondents For Petitioner(s) : Mr. Parveen Balwada with Mr. Mohit Balwada, Ms. Bhawna Choudhary & Mr. Sunil Shekhawat Mr. Vijay Punia For Respondent(s) : Mr. Shantnu Bansal Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 18/03/2025 Order [2025:RJ-JP:13507] (2 of 7) [CRLR-1322/2022]

1. These two revision petitions were preferred by petitioners accused Mamraj and Rohit Kumar aggrieved from order dated

27.06.2022 in Sessions Case No.17/2022 arising out of FIR No.63/2022 registered at PS Jaisinghpura Khor, District Jaipur City (North), Jaipur.

2. Both the petitioners accused have challenged impugned order dated 27.06.2022 in sessions case No.17/2022 passed by learned Special Judge (POCSO Act Cases) No.1, Jaipur Metropolitan-II, Jaipur, whereby both the accused were charged along with Sunil Gaur under Section 11(iv)/12 of POCSO Act, alternatively, Section 354D IPC and Section 67, 67B of IT Act. The counsel for petitioners has referred order dated 25.07.2022 in SB Criminal Revision Petition No.1083/2022 titled as ‘Sunil Gaur Vs. State of Rajasthan’ wherein a Co-ordinate Bench while allowing the revision petition has discharged Sunil Gaur from the offence charged against him.

3. Learned counsel for the petitioners while referring order dated 25.07.2022, wherein a co-accused Sunil Gaur who was also charged was discharged, has submitted that the case of present petitioners is on better footing than Sunil Gaur. He also submitted that no recovery was effected form the conscious possession of both the petitioners which would be sufficient to frame a charge under sections 67 and 67-B of IT Act. He also referred the finding recorded by police and submitted that on basis of a communication detail between victim and present petitioners, a charge-sheet was filed against petitioners by police. He also referred the statement of victim recorded before the trial court [2025:RJ-JP:13507] (3 of 7) [CRLR-1322/2022] during trial and submitted that even in her statement before the trial court, victim has not substantiated any allegation made in charge-sheet. He further referred the conduct of complainant and submitted that the complainant has registered a complaint after an extraordinary delay of three months but without any explanation. He also referred the material available on record and submitted that even the ownership of sim was not established from the material available on record. He further referred the material and submitted that mere texting or calling anyone by any means is not sufficient to invoke provision either under the POCSO Act or the IT Act. At last, he submitted that the trial court has ignored the settled principle of law while framing the charge and without considering the FSL report or any other material has just framed the charge in mechanical manner.

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for the complainant.

5. Learned counsel for the complainant has submitted that till date more than eight witnesses were recorded and only few formal witnesses are left. He also submitted that at the stage of charge, this court cannot consider merits of the case.

6. Heard learned counsel for the parties and learned Public Prosecutor and perused entire material available on record.

7. On basis of a written report submitted by complainant on

25.02.2022, an FIR No.63/2022 was registered at PS Jaisinghpura Khor, District Jaipur City (North). In this report, some allegations were made upon a person whose mobile numbers were mentioned along with involvement of other individuals. [2025:RJ-JP:13507] (4 of 7) [CRLR-1322/2022]

8. The Police has investigated the matter and identified the accused, involved in the incident. After investigation Banwari Lal S/o Jai Singh was arrested as charge under Sections 363, 354D, 376 IPC and 3/4, 11/12 POCSO Act was made out. During investigation, police has found that Rohit Kumar (present petitioner) has also made multiple calls and texts to victim and arrested Rohit Kumar for charge under Section 11/12 of POCSO Act, 354D IPC. Thereafter, police has found that Sunil Gaur has also followed victim and text her. During investigation, it was revealed that one of the mobile number used to text and call belongs to petitioner Mamraj and arrested Mamraj under Section 11/12 of POCSO Act, Section 354D of IPC and Sections 67, 67B of IT Act. Ultimately, police has filed charge-sheet against all four accused persons.

9. Learned trial court by impugned order has framed charges under Sections 376 IPC, 3/4 of POCSO Act, alternatively 376 of IPC, 11/12 POCSO Act alternatively 354D IPC and 67, 67B of IT Act against Banwari Lal but as per report, the main accused Banwari has expired during pendency of sessions case and proceedings were dropped against him on 24.05.2024.

10. By impugned order, three accused Sunil Kumar, Rohit Kumar and Mamraj were charged under Section 11/12 of POCSO Act alternatively Section 354-D IPC and 67, 67B of IT Act. The revision petition preferred by Sunil Gaur was allowed by a Co- ordinate Bench on 25.07.2022 and Sunil Gaur was discharged from offence charged by learned trial court. [2025:RJ-JP:13507] (5 of 7) [CRLR-1322/2022]

11. The principles of law at the stage of charge were considered by Hon’ble Supreme Court in case of State of Bihar Vs. Ramesh Singh : (1977) 4 SCC 39 and Union of India Vs. Prafulla Kumar Samal & Anr. :(1979) 3 SCC 4 and were referred and relied in case of P. Vijayan Vs. State of Kerala & Anr. : (2010) 2 SCC 398. It was held that 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. 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.

12. Again in case of State By Karnataka Lokayukta Police Station, Bengaluru Vs. M. R. Hiremath : (2019) 7 SCC 515, Hon’ble Supreme Court while considering several judgments on the issue in a matter relating to the Prevention of Corruption Act, 1988, has held that the trial court while dealing with an application for discharge at the stage of framing of charge 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 [2025:RJ-JP:13507] (6 of 7) [CRLR-1322/2022] the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. 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.

13. A similar opinion was also expressed in case of State of Rajasthan Vs. Ashok Kumar Kashyap : (2021) 11 SCC 191 and relied upon in case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf (2023 INSC 555), it was held that at the stage of framing of charge and/or considering discharge application, a mini trial is not permissible. A defence on merits is not to be considered at the stage of framing of charge and / or at the stage of discharge of application.

14. Having considered the principle of law as referred hereinabove, it is quite clear that at the stage of charge, a mini trial or a roving enquiry is impermissible. The reference to statement of PW-1 after framing of charge is itself contrary to principle of law required to be considered at the stage of charge. The statement of victim recorded before trial court in sessions case No.17/2022 is not sufficient to seek discharge in the matter as the statement cannot be read in support of provision under Section 227 of CrPC.

15. Herein, both the petitioners were charged on the ground that both have text and placed calls to the victim. Police has supported call details and relevant report collected from mobile service providers. Now comes a question “Whether the material on record is sufficient or not to frame a charge against the petitioners [2025:RJ-JP:13507] (7 of 7) [CRLR-1322/2022] accused?” Principle of law as mentioned hereinabove clearly indicated that at the stage of charge, the court will not hold a mini trial or a roving enquiry and the material forwarded has to be considered as true but only limitation is whether it constitutes a prima facie case or not.

16. Here in this case, one of the co-accused who was charged along with both the petitioners was discharged by a Co-ordinate Bench and I have gone through the order passed by a Co-ordinate Bench.

17. After considering the law as referred hereinabove, I am of the view that the material available on record is sufficient to frame a charge. I disagree with the proposition that the case of both the petitioners is on better footing than Sunil Gaur. Therefore, the contentions raised by learned counsel for the petitioners are not helpful to secure an order of discharge.

18. In view of aforesaid, both the criminal revision petitions No.1322/2022 and 1670/2022 are hereby dismissed.

19. Misc. application(s), if any, stand disposed of. (ASHOK KUMAR JAIN),J MR/184-185