High Court
Case Details
Court No. - 88 Case :- CRIMINAL REVISION No. - 3727 of 2022 Revisionist :- Om Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Araf Khan,Lihazur Rahman Khan Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the revisionists and learned A.G.A. for the State. None appeared on behalf of the respondent despite service of notice 2. The present criminal revision has been preferred for quashing of order dated 01.07.2022, passed by the learned Special Judge, POCSO Act, in Session Case No.224 of 2022, arising out of crime number 104/2022, under section 363/366/376/494 IPC and section ¾ POCSO Act, PS Kasganj, District- Kasganj, whereby the prayer of revisionist/ accused for discharge was declined and charges under above stated sections were framed. The revisionist has also prayed for quashing of the charge sheet dated 28.03.2022 and entire proceedings of the aforesaid case. 3. Learned counsel for the revisionist argued that impugned charges and proceedings are abuse of the process of law and thus, liable to be quashed. In view of the facts of matter no case
Facts
is made out against revisionist. The first information report was lodged against revisionist No.1 alleging that on 17.01.2022 he has enticed away the minor daughter of the opposite party No.2/ informant but during investigation the daughter of opposite party No.2 has clearly stated that she has gone with revisionist with her own free will and that she has married with him. It is further submitted that in her statement under Section 161 and 164 CrPC, victim has stated that she has married with revisionist and that as per report of radiologist, the age of victim has been found between 19 to 20 years and thus, no case is made out against the revisionists. It is further submitted that in view of statement and age of victim, no case is made out against the revisionist No. 1 and thus, no useful purpose would be served by forcing the revisionist No. 1 to face the trial. In
Legal Reasoning
of revisionist for discharge. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence. 8. In case of State of M.P. vs. Sheetla Sahai (supra), relied by learned counsel for the revisionist, the Hon'ble Apex Court held as under: ''58, There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence. 59, In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless. 9. In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39], considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. 10. In Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors [(1980) 1 SCR 323], the Apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. 11. In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239], the Hon'ble Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. 12. In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC 393], it was held that at Sections 227 and 228 Cr.P.C. stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, 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. 13. It is apparent from the above discussed decisions of Hon'ble Apex Court that at the stage of charge there can only be limited evaluation of materials and documents on record. At the stage of charge or consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence. 14. In the instant case, perusal of record shows that as per school record the date of birth of victim is 11.12.2008 and alleged incident took place on 17.01.2022 and thus, at the time of alleged incident, victim was a minor girl. In her statement under section 161 CrPC, victim girl has also stated her date of birth as 11.12.2008. It is correct that in her statement under Section 161 and 164 CrPC, victim has stated that she has married with him but the consent of a minor girl is immaterial for the purposes of offences under section 363/366/376 IPC. In her statement under section 164 CrPC, she has stated that from bus stand, Kasganj, she was taken away by the revisionist to Ghaziabad and thereafter they have married in Aryasamaj. No doubt as per the report radiologist, the age of victim has been shown between 19 to 20 years but as per prosecution version the said date of birth ie 11.12.2008 is based on first attended school of the victim. It was also shown that the revisionist was already a married person and he has not obtained divorce from from his wife. In view of all these facts and circumstances, so far the impugned order regarding framing of charges under section 363/366/376 IPC and section ¾ POCSO Act is concerned, no case for discharge is made out. 15. However, so far the farming of charge under section 494 IPC is concerned, it may be pointed out that as per the provisions of section 198 CrPC, for prosecution under section 494 IPC, the Court can not take cognizance of such offence except upon a complaint made by some person aggrieved by the offence. In the instant case there is nothing to show that any such complaint was by aggrieved person in accordance with provision of section 198 CrPC, hence no case for charge under section 494 IPC is made out. 16. As far as the prayer for quashing of charge-sheet and entire proceedings is concerned, it may be stated that revisional jurisdiction is exercised against an order passed by the Court below, subject to limitations prescribed under Cr.P.C.. The object of section 397 CrPC is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. In this connection reference may be made to the case of Hon'ble Apex Court in State of Madhya Pradesh Vs. Deepak [Criminal Appeal No. 485 of 2019], decided on 13.03.2019. Learned counsel has referred case of Reena V State (supra) but case deals with issue of writ of habeas corpus. Similarly the case of Furkan V State (supra) pertains about issue of custody of victim. These case do not help the case of the revisionist for the prayers sought by the revisionist. As stated above the jurisdiction of the court under section 397 CrPC is very limited and it is used set right a patent defect or an error of jurisdiction or law in orders passed by the courts below. Thus, the revisional jurisdiction under section 397 CrPC can not be exercised for quashing of charge sheet and proceedings of the case. The prayer for quashing of the impugned police report/ charge-sheet and the entire proceedings is misconceived and thus, the same is hereby refused. 17. In view of aforesaid, the charge framed by the trial court under section 494 IPC is quashed. The impugned order stand altered to this extent. The impugned order regarding framing of other charges is upheld. The revision stand disposed off in above terms. Order Date :- 6.1.2023 Neeraj Digitally signed by :- NEERAJ KUMAR SINGH High Court of Judicature at Allahabad
Arguments
support of his contentions, learned counsel has placed reliance upon following case laws; (i) State of Madhya Pradesh vs. Sheetla Sahai & Others [2009 0 Supreme (SC) 1404]. (ii) Furkan vs. State of U.P. & Ors, criminal Revision No. 55/2015, decided on 08.09.2015. (iii) Reena vs. State of of U.P. MANU/UP/2361/2012. 4. Learned AGA has opposed the revision and submitted that as per first attended school, the date of birth of victim is 11.12.2008 and thus, at the time of alleged incident, victim was a minor girl and thus, her consent is immaterial. Further, the record shows that the revisionist was already married and thus, without any divorce from his first wife, his alleged marriage with victim girl can not be termed legal. In view of these facts and circumstances it cannot be said that impugned order is suffering from any illegality or perversity or error of jurisdiction. It was submitted that in revision this court has limited jurisdiction and only it is to be considered whether the impugned order is suffering from any illegality or perversity or error in jurisdiction and that in revisional jurisdiction this court can not quash the charge sheet and proceedings of the case. 5. I have considered the rival submissions and perused the record. 6. At the out set it may be mentioned that revisionist No.2 Meenesh has neither been charge-sheeted by the police nor the charges have been framed against her and in fact she is victim of the incident and thus, the instant criminal revision at the instance of revisionist No.2 is not maintainable. Accordingly the instant revision on behalf of revisionist No.2 is dismissed as not maintainable. 7. So far the revisionist No.1 Om Yadav is concerned, it may stated that by the impugned order, charges have been framed against the revisionist for aforesaid offences by declining prayer