Mirja Dilshad Beg vs State Of Chhattisgarh

This Revision has been preferred against the order dated 20.12.2022 passed by the Additional Sessions Judge, 2nd Fast Track Special Court, Bilaspur, District Bilaspur, whereby, the Court below has framed the charges against the Applicant under Sections 376(2) (n), 120-B, 506-II and 509-B IPC as also under Sections 4 & 6 of POCSO Act.

Shri Hussain, learned Counsel for the Applicant submits that the Complainant/victim has filed FIR on 27.09.2022 for the incident that took place between 01.10.2018 and 01.02.2020. He further submits that just to attract the Sections of POCSO Act, the entire story has been concocted, she has already attained the age of majority at the time of filing of the FIR and no evidence has been adduced by the prosecution with respect to Section 509-B IPC. He placed reliance on the judgment rendered in the matter of Shashidharan Kollery and Ors. vs. State and Anr reported in 2019 SCC Online Del 8969 and lastly submits that if the entire case of the prosecution is taken on its own face, then no offence would be made out against the present Applicant, therefore prays to discharge the Applicant from the charges as mentioned above.

On the other hand, Ms. Singh, learned Counsel for the State supports the order impugned and submits that there is sufficient material available on record to prove the charges framed against the Applicant.

Heard learned Counsel for the parties and perused the record with utmost circumspection.

In the matter of Manendra Prasad Tiwari v/s Amit Kumar Tiwari and Anotheri reported in 2022 SCC OnLine SC 1057, it has been held that the scope of interference and exercise of jurisdiction under Section 397 of CrPC to quash the charges framed by the trial court, the principle is reiterated that at this stage, the Court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and only form an opinion whether there is strong suspicion that the accused has committed an offence and the relevant paras read as under:-

“21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 read with Section 401 of the CrPC seeking for the quashing of charge framed against him, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.

The scope of interference and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.

It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander, (2012) 9 SCC 460, where the scope of Section 397 CrPC has been succinctly considered and explained. Para

12 and 13 resply are as follows:

“12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision 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 scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that 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. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

“13. 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. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.”

The Court in para 27 has recorded its conclusion and laid down the principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27(1), (2), (3), (9), (13) resply are extracted as follows:

Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie….”

This Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed in para 25 as under:—

“25. It is trite that at the stage of framing of 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 or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of this Court explained the meaning of the word “presume”. Referring to the dictionary meanings of the said word, the Court observed thus:

…if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at (1990) 4 SCC 76 the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.”

Reverting back to the facts of the present case, having perused the material filed by the prosecution and considering the arguments advanced by learned Counsel for the Applicant, it cannot be held that the Court below has wrongly framed the charges as aforementioned against the Applicant. However, as regards Section 509-B IPC, as during investigation, panchnama of the voice recording has been prepared, therefore, this Court is of the opinion that there is sufficient material available on record for the ingredients for which, the charges have been framed against the Applicant.

In view of the foregoing discussion and the settled legal position noted above, this Court does not find any infirmity or illegality in the order impugned for framing charges against the Applicant.

Accordingly, the Revision, being bereft of any merits, is hereby dismissed.

It is made clear that the observation made hereinabove shall not be construed as as expression of any opinion on the merits of the case and the same shall be dealt with strictly in accordance with law.