Alpana Sharma vs The State of Rajasthan

M.N. Bhandari, J.—By this criminal misc. petition under Section 482 Cr.P.C., a challenge is made to the order dated 28.03.2014, whereby charges have been framed against the petitioner along with others.

Learned counsel for the petitioner submits that a charge has been framed against the petitioner for the offence under Section 376(2)(d)(f)(k)(l) read with Section 109 IPC. The charges for the offence under Sections 16 and 21 of the Protection of Children from Sexual Offences Act, 2012 (in short, ''the Act of 2012'') have also been framed, apart from Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, ''the Act of 2000'').

It is stated that when the allegation of abetment of the offence under Section 376(2)(d)(f)(k)(l) IPC has been framed against the petitioner, then the offence under Section 21 of the Act of 2012 cannot be made out. The abettor of the offence under Section 376(2)(d)(f)(k)(l) IPC can not be held responsible to report about the offence, so as to make out an offence under Section 21 of the Act of 2012. The offence under Section 376(2)(d)(f)(k)(l) IPC read with Section 109 IPC cannot go together with Section 21 of the Act of 2012. The alleged abettor of the offence cannot be made liable or expected to report about the offence/punishment. In view of the above, framing of the charges by the Court below is without application of mind. It is further stated that the charge has been framed for the offence under Section 16 of the Act of 2012, whereas punishment has been provided under Section 17 of the Act of 2012. Thus, charge could not have been framed under Section 16 of the Act of 2012. It again shows the non-application of the mind by the Court below. In view of the above, the impugned order of framing charges against the petitioner deserves to be set aside.

Learned Public Prosecutor on the other hand supported the impugned order of framing charges against the petitioner for the offence under Section 376(2)(d)(f)(k)(l) read with Section 109 IPC, apart from the offences under Sections 16 and 21 of the Act of 2012 and Section 23 of the Act of 2000. It is submitted that the petitioner was having the knowledge about commission of rape of deaf and dumb girl children in ''Awaz Foundation'', where the accused petitioner was the in-charge. She did not report about commission of rape by co-accused Ashok Kumar Prajapat, Mahesh Chand Saini and Suresh Kumar Bairwa. It is punishable under Section 21 of the Act of 2012. The abetment of the offence under Section 376(2)(d)(f)(k)(l) IPC is separately made out and both the offences can go together. Hence, interference may not be made in the impugned order framing charges against the petitioner. So far as commission of the offence under Section 16 of the Act of 2012 is concerned, punishment is provided under Section 17, thus, necessary modification in the impugned order can be made by this Court. But for that, the impugned order may not be set aside.

I have considered the rival submissions of the learned counsel for the parties and perused the record.

By the impugned order, charges were framed against the petitioner for the offence under Section 376(2)(d)(f)(k)(l) read with Section 109 IPC, apart from the offences under Sections 16 and 21 of the Act of 2012 and Section 23 of the Act of 2000.

Learned counsel for the petitioner has raised two arguments. First is in reference to Section 16 of the Act of 2012 and second is in reference to Section 21 of the Act of 2012.

The argument in reference to Section 16 of the Act of 2012 is on the ground that punishment is provided under Section 17, thus, framing of the charge for offence under Section 16 of the Act of 2012 is without application of mind. Considering the aforesaid argument, I find that for offence of abetment under Section 16 of the Act of 2012, punishment is provided under Section 17 of the Act of 2012. The Court below has framed a charge under Section 16 of the Act of 2012. It is a curable defect and is permissible by this Court while exercising jurisdiction under Section 482 Cr.P.C.

The other argument is in reference to the offence under Section 21 of the Act of 2012, on failure to report the offence. The argument has been raised for framing of the charge for offence under Section 376(2)(d)(f)(k)(l) read with Section 109 IPC and Section 21 of the Act of 2012. When the petitioner is accused of abetment of offence under Section 376(2)(d)(f)(k)(l) IPC, she cannot be made accused of the offence under Section 21 of the Act of 2012, as she cannot be charged for failure to report when she is alleged to be abettor of offence. In view of the above, the charge framed against the petitioner for the offence under Section 21 of the Act of 2012 is not made out.

In view of the discussion made above, while charge framed for the offence under Section 376(2)(d)(f)(k)(l) read with Section 109 IPC has not been challenged, framing of the charge against the petitioner for the offence under Sections 16 and 21 of the Act of 2012 is interfered with. The framing of charge under Section 16 of the Act of 2012 is curable and does not affect the trial, even if such omissions are pointed out at the stage of appeal. It is as per Section 464 of Cr.P.C. It is ordered to be taken for offence under Section 17 of the Act of 2012. The charge framed for offence under Section 21 of the Act of 2012 is however set aside while maintaining the order with modification for charge under Section 16 of the Act of 2012 being a curable defect.

With the aforesaid, this criminal misc. petition is allowed.