Dev Singh vs State of M.P. and Smt. Ram Kumar i

Brij Kishore Dubey, J.—This revision under Sections 397 and 401 of Code of Criminal Procedure, 1973 is directed against the order dated 23.8.2011 passed by Special Judge (under M.P.D.V.P.K. Act), Shivpuri in Special Sessions Trial No. 32/2010 (Smt. Ram Kumari Vs. Dev Singh) framing charge under Sections 376(1) and 394 of IPC read with Sections 11 and 13 of M.P.D.V.P.K. Act, against him. Facts of the case, in brief, are that the respondent No. 2/complainant, Smt. Ramkumari filed a private complaint on 28.1.2010 before the Special Judge, Shivpuri stating therein that on 6.1.2010 at about 11:00 hours when she was searching her son, the petitioner herein/accused Dev Singh, who is a scrap-merchant stopped her in front of his shop of scrap-articles saying that her husband is in the Bank, so she may recommend his case for sanction of loan and caught hold of her hand with bad intention and dragged her and shut the doors of his shop and forcibly committed rape on her. Thereafter, the complainant came out from his shop and started shouting. On hearing her shrieks, the accused''s wife Geeta, brother of the accused namely; Rajkumar and Rajkumar''s wife namely, Ramendri came out from the house, thereafter she narrated the incident to them. On this, Dev Singh said that she is making false statement and trying to tarnish his reputation, then Dev Singh, his wife, Dev Singh''s brother Rajkumar and Rajkumar''s wife abused her with filthy language and beaten her and Dev Singh snatched her ornaments which she was wearing at the time of incident. On hearing her shrieks, Kallu Kushwaha, Pushpendra, Hariram Pal and Indra Bhan Singh Yadav came on the spot and they intervened in the matter. Thereafter, the complainant went to the Police Station, Khaniyadhana for the purpose of lodging the report and in the Police Station she saw that the accused, Dev Singh already sitting there and when she asked for lodging the report, the Police Officer did not lodge the correct report as stated by her on account of influence by Dev Singh and the report was also not read over to her. When she came to know that the police has not written her complaint correctly as per the incident, then she make a complaint on 8.1.2010 to the higher authorities, but when they did not take any action in the matter, then she filed a private complaint in the Court below. The Special Judge recorded the statement of the complainant u/s 200 of Cr.P.C. and sent a copy of the complaint to the Sub Divisional Officer, Police Karera to submit his report in the matter. The Police submitted the report stating that on the basis of report lodged by the victim a non-cognizable offence punishable under Sections 323 and 504 of IPC has been registered against the accused Dev Singh, his wife Geeta, brother Rajkumar and Rajkumar''s wife Ramendri. It is further stated that on enquiry of the complaint, it was found that the offence of rape and snatching of ornaments have not been found proved. Thereafter, an application was submitted by the complainant against the police and prayed for recording her evidence and the Special Judge recorded the statements of witnesses u/s 202 of Cr.P.C. and after considering the material available on record taken cognizance under Sections 376(1) and 394 of IPC read with 11 /13 of M.P.D.V.P.K. Act against the present petitioner only on 3.8.2011 and directed to issue warrant against the present petitioner for securing his presence before it.

After appearance of the accused, the trial was proceeded and vide order dated 23.8.2011 the learned Special Judge on the basis of material available on record framed charge punishable under Sections 376(1) and 394 of IPC read with 11/13 of the M.P.D.V.P.K. Act against the present petitioner. The petitioner herein/accused abjured the guilt and claimed to be tried.

Learned counsel for the petitioner submits that in the Adam Check, the complainant has not uttered even a single word regarding rape and snatching of any ornament and after that she developed a concocted and false story. The order of framing charge is illegal, incorrect and deserves to be set aside as there is no prima facie evidence against the petitioner in respect of the alleged offence. It is further submitted that before framing the charge for an heinous offence, it was duty of the learned Court below to go through all the material available on record, but the Court below ignored the fact that the police after investigation into the matter submitted a report that no offence under Sections 376(1) and 394 of IPC has been found proved. As per law, before framing of charge the Court cannot act merely as a post office and has a bounden duty to consider all the material available before it. In this regard, learned counsel placed reliance on the decision of the Apex Court in the case of Dilawar Balu Kurane Vs. State of Maharashtra, It is further submitted that the Trial Court has not followed the procedure provided under Sections 244, 245 and 246 of Cr.P.C. In this regard, learned counsel placed reliance on the decision of the Apex Court in the case of Ajoy Kumar Ghose Vs. State of Jharkhand and Another, . On these grounds, learned counsel prayed to discharge the petitioner from the charge levelled against him, by allowing this revision petition.

In response, learned Panel Lawyer and the learned counsel for the respondent No. 2/complainant by justifying the impugned order stated that the charge framed by the Trial Court is in consonance with the material available on record. Ms. Ruchi Mody, learned counsel for the respondent No. 2/complainant further submits that the trial has already been completed except recording of the statement of the complainant as vide order dated 16.11.2011 passed by this Court, the Trial Court had been directed not to record the statement of prosecutrix.

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

In Ajoy Kumar Ghose (supra), the Apex Court while considering the scope of right of cross-examination in respect of the cases instituted otherwise than on police report under Chapter XIX of Cr.P.C. held that right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show by way of the cross-examination that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence.

It is pertinent to mention here that Chapter XIX of Cr.P.C. deals with the trial of warrant cases by Magistrate in two parts; one part is related to the cases instituted on a police report while the later part is related to the cases instituted otherwise than on police report.

In the case in hand, the complainant has filed a private complaint under Sections 376, 323, 294, 341, 506 Part II, 394 and 34 of IPC read with 11/13 of M.P.D.V.P.K. Act before the Special Judge (under M.P.D.V.P.K. Act) and the Special Judge followed the procedure prescribed u/s 8 of M.P.D.V.P.K. Act. Therefore, in view of the provisions of Sections 6, 7 and 8 of the M.P.D.V.P.K. Act and the facts of the present case, the ratio of judgments in the case of Ajoy Kumar Ghose (supra) has no application in the facts of the present case.

According to the provisions of Sections 227 and 228 of Cr.P.C., it is for the Trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed.

The Apex Court in the case of Dilawar Balu Kurane (supra) held that in exercising powers u/s 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charge under the said section 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; 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction u/s 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, , a three Judge Bench of the Supreme Court held as under:

18 It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar Vs. Ramesh Singh, , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

The Apex Court in the case of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , held as under:

It seems well settled that as the Ss. 227-228 stage i.e., stage of framing the charge, 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.

In the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, , the Apex Court considered its earlier authorities about the scope of Sections 227 and 228 of Cr.P.C., and held that for framing of charge, a roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that accused has committed offence. Thus, even 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, a charge can be framed.

On perusal of the statement of prosecutrix recorded by the Police and her statement recorded u/s 200 of Cr.P.C., as well as statements of Pushpendra and Hari Ram Pal and other material available on record, it is apparent that the present petitioner is involved in the commission of offence. At the stage of framing charge, the Court is not expected to go into and weigh the evidence as is done in the trial.

While explaining the scope of revisional power, the Apex Court in the case of Munna Devi Vs. State of Rajasthan and anr, has observed as under:

We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This Court in Kanti Bhadra Saha & Anr. v. State of West Bengal has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing the charge.

In the instant case the learned Judge ignored the basic principles which conferred the jurisdiction upon the High Court for exercise of revisional powers. It was premature for the High Court to say that the material placed before the trial court was insufficient for framing the charge or that the statement of the prosecutrix herself was not sufficient to proceed further against the accused-respondent.

In the facts and circumstances of the case, the settled legal position and for the reasons given hereinabove, I do not find any infirmity in the impugned order that may call for any interference in exercise of revisional jurisdiction u/s 397 read with Section 401 of Cr.P.C. This revision petition is devoid of merit and is, therefore, dismissed.