High Court
Case Details
Neutral Citation No. - 2023:AHC:141762 Court No. - 90 Case :- APPLICATION U/S 482 No. - 4551 of 2023 Applicant :- Umesh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
Legal Reasoning
and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence." 6. Per contra, learned A.G.A. has vehemently opposed the submissions as advanced by the learned counsel for the applicant and contended that in deciding the discharge application under Section 227 Cr.P.C. moved on behalf of the applicant, learned trial court has discussed the matter in detail and came to a conclusion that complicity of the present applicant in the commission of crime, as mentioned in the first information report, cannot be ruled out. It is further contended that on the face of record coupled with the evidence adduced by the prosecution is sufficient, prima facie, to hold the applicant guilty. It is further contended that learned trial court has discussed the case of the first information report and the statement of the victim under Section 161 and 164 Cr.P.C. in rejecting the application of discharge, therefore, it cannot be said that learned trial court has simply acted as a postman. It is further contended that at this juncture innocence of the present applicant cannot if inferred, therefore, no case is made out to entertain the instant application which is liable to be rejected being misconceived and devoid of merits. 7. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that the prosecution case, as averred in the first information report, is properly corroborated by the statement of victim under Section 161 and 164 Cr.P.C. Learned trial court has given a specific finding that as per school record victim is minor. Learned trial court has also specifically observed, after going through the evidence available on record, that, prima facie, there is a case of committing forcible sexual assault and the uttering caste related abusive words against the victim. So far as the plea of alibi is concerned, learned trial court has given a specific finding that it is a matter of evidence which can more appropriately be decided after appraising the evidence adduced by the parties. It is no more res integra that the evidence of defence even at the subsequent stage is not liable to be entertained for the purposes of deciding the discharge application. The evidence which are already available on record along with the charge sheet, collected by the Investigating Officer, can only be assessed for the purposes of making out a prima facie case against the accused. The trial court is not expected to go into the detail of the case or into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is a matter of trial after appraising the evidence adduced by the parties. At the stage of Section 227 Cr.P.C., prima facie, pointing out suspicious circumstances on the basis of the evidence recorded by the police or the document produced before the court to show complicity of the applicant in the commission of crime is sufficient for framing of charges against the accused. Perusal of judgment passed by the learned trial court evince that it has fully applied its mind after going through the evidence produced by the prosecution before the court. Therefore, it cannot be said that learned trial court in the instant matter has simply acted as a postman. The trial court has satisfied itself that the material available on record is sufficient with respect to the suspicious circumstances wherein, prima facie, case is made out against the present applicant with respect to his involvement in the commission of crime. 8. In this conspectus, as above, I am of the considered opinion that there is no merit in the instant application and no justifiable ground is made out to interfere in the order impugned dated 21.01.2021 rejecting the application for discharge under Section 227 Cr.P.C. From the perusal of record it cannot be inferred that, prima facie, no case is made out for framing of charge against the present applicant, which has right been framed by the learned trial court by subsequent order dated 21.01.2023. Present applicant has still an opportunity to defend his case before the trial court by producing evidences on his behalf. Mere rejection of discharge application cannot be said that there is any likelihood of causing miscarriage of justice to him, owing to the order impugned. There is no illegality, perversity or irregularity in the order dated 21.01.2023 passed by the trial court.
Arguments
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record on board. 2. Applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 21.10.2023 passed by the learned trial court rejecting the application (Paper No. 9-B) moved on behalf of the present applicant to discharge under Section 227 Cr.P.C. in Sessions Trial No. 1726 of 2022, arising out of Case Crime No. 417 of 2022, under Sections 323, 506, 376 I.P.C., under Section 3/4 POCSO Act and under Sections 3(1)(da), 3(2)(5), 3(2)(5Ka) SC/ST Act, Police Station- Majhola, District- Morodabad, pending in the court of Special Judge (POCSO Act) Court No. 2, Moradabad. 3. Opposite party no. 4 has lodged a first information report dated 01.06.2022, being Case Crime No 0417 of 2022, leveling allegation of rape allegedly committed by present applicant to the minor girl of the first informant and for using scheduled caste related abusive language. As per F.I.R. version, on 30.04.2022 the applicant has forcibly committed sexual assault upon the minor girl of the first informant and subsequently on 25.05.2022 he hold the minor girl intending to commit forcible sexual assault and used caste related abusive language. 4. During pendency of the trial present accused has moved an application dated 15.12.2022 under Section 227 Cr.P.C. for discharge on the ground that as per medical report she is aged about 17 years, therefore, two years benefit for either way in reckoning the age should be given to the applicant, which may come near about 19 years of age; that no medical report has been submitted with respect to the incident in question; that delayed F.I.R. dated 01.06.2022 has been lodged on behalf of the first informant with respect to the incident dated 30.04.2022 and 25.05.2022; that no injury has been shown to be inflicted on the body of the victim; that name of accused has incorrectly been shown in the charge sheet; that the F.I.R. has been lodged intending to get financial benefit from the State; that there is no corroborative evidence qua incident in question; that F.I.R. has been lodged owing to political rivalry in the village; that on the date of incident he was on his duty at Naveen Hospital, Moradabad. The trial court has considered the application moved on behalf of the applicant and passed the order impugned dated 21.01.2023 rejecting the discharge application (Paper No. 9-B). Having been aggrieved, instant application under Section 482 Cr.P.C. has been filed. 5. learned counsel for the applicant submits that learned trial court has not discussed the case of the present applicant in detail with respect to the applicability of the SC/ST Act and the POCSO Act. It is further submitted that late first information report filed on behalf of the first informant creates doubt with respect to the genesis of the crime in question as mentioned in the first information report, which has illegally been ignored by the learned trial court. It is further submitted that the plea of alibi taken on behalf of the present applicant, that at the time of the occurrence of incident as mentioned in the first information report he was on his duty, has not properly been appreciated by the learned trial court. He has also tried to submit that the family of the victim is annoyed from the present applicant as he has refused to get married with the victim, therefore, a premeditated first information report has been lodged. Lastly, it is submitted that learned trial court has simply accepted the charge sheet submitted by the Investigating Officer without applying its mind and without recording its satisfaction, whereas the court cannot act as a postman and it has to discuss the material on record which has been produced and relied upon by the prosecution. In support of his case learned counsel for the applicant has placed reliance on paragraph no. 15 of the judgment passed by the apex court in the matter of Kanchan Kumar vs. The State of Bihar; reported in 2022 Live Law (SC) 763. For ready reference, paragraph no. 15 of the aforesaid judgment is quoted herein below:- "15. Summarising the principles on discharge under Section 227 of the Cr.P.C. in Dipakbhai Jagdishchandra Patel v. State of Gujarat, this Court recapitulated: "23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court 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 to be sifted would be the material which is produced
Decision
9. As such, instant application, being misconceived and devoid of merits, is dismissed with no order as to costs. Order Date :- 17.7.2023 Pkb/ Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad