Ram JAS vs State of U.P. and Others

Hon''ble Sudhir Kumar Saxena, J.—This criminal revision is directed against the order dated 6.8.2007 passed by Chief Judicial Magistrate, Barabanki in Misc. Case No. 14 of 1999 (Ram Jas v. Ashok Kumar and others) summoning Sub-Inspector Ashok Kumar Yadav and constable Ram Nayak u/s 354 I.P.C. I have heard Sri. Shishir Pradhan, learned counsel for the revisionist, Sri. Amit Chaudhari, learned counsel for the respondent Nos. 2 and 3 and learned A.G.A. for the State.

From the record, it appears that Ram Jas had moved an application to Director General of Police whereupon an F.I.R. was registered against Ashok Kumar Yadav, Station Officer and Ram Nayak, Constable, as Case Crime No. 92 of 1997, under Sections 376/506 I.P.C., Police Station Badosarai, District Barabanki.

After investigation, final report was submitted on 14.6.1997 on the ground that allegation of rape could not be confirmed. Notice was given to the informant to object on final report, whereupon case was registered as complaint case.

Statement of Ram Jas (PW-1) was recorded u/s 200 Cr.P.C. Statements of Smt. Anita Dixit, victim (PW-2), Shrawan Kumar, Radhey and Brijesh Singh were recorded u/s 202 Cr.P.C.

On the basis of this evidence, C.J.M. on 17.7.2000 dismissed the complaint against Sub-Inspector Ashok Kumar Yadav and summoned Constable Ram Nayak u/s 354 I.P.C.

This order was challenged by means of Criminal Revision No. 316 of 2000 wherein this Court vide order dated 11.8.2003 set aside the order passed by C.J.M. and directed him to decide the matter again after hearing the parties, in the light of presumption available u/s 114-A of the Evidence Act.

This time Chief Judicial Magistrate summoned Sub-Inspector Ashok Kumar Yadav as well as Constable Ram Nayak u/s 354 I.P.C. This very order dated 6.8.2007 has been challenged in the present revision.

Submission of learned counsel for the revisionist is that it has come in the enquiry report conducted by the S.P. that wife of complainant Smt. Anita Dixit (victim) was taken to Police Station in the night and dropped in the same night.

It is further contended that C.J.M. in his order has found that victim was taken to Police Station in the night in a Jeep but had not believed fully the allegation of rape on extraneous and irrelevant grounds.

Sri. Amit Chaudhari, learned counsel justified the impugned order.

From the record, it transpires that incident was of the year, 1997. Summoning order has to be passed by the Magistrate on the prima facie satisfaction. Magistrate has to merely form the opinion whether there was sufficient ground for proceeding in the case. There was Police report, confirming that victim Anita was taken, to Police Station by the Police in Jeep and she was dropped on the same night. Witnesses have stated on oath that victim was taken to Police Station in the night forcibly. She was not accused in any case. When Magistrate was satisfied that victim was taken to the Police Station in the night forcibly, then what remained before him but for testimony of the victim to narrate as to what happened with her.

It is settled law that testimony of victim in rape cases has to be ordinarily believed unless there are cogent reasons to rebut the same. While Magistrate believed the complaint case in entirety, she disbelieved the allegation of rape on nonexistent or irrelevant grounds. Moreover, pendency of criminal cases against husband of raped victim does not make testimony of victim automatically unbelievable.

For issuing process Magistrate is to reach a satisfaction that a prima facie case is made out against the accused and not sufficient ground for securing his conviction as held by Hon''ble Apex Court in the case of Shivjee Singh Vs. Nagendra Tiwary and Others, .

In the case of Dy. Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and Others, , the Hon''ble Apex Court has made the following observations :

In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry.

In the case of U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi and Another, , the Hon''ble Apex Court has held as under :

it is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.

In the case of Kewal Krishan Vs. Suraj Bhan and Another, , following observations have been made :

At the stage of Sections 203 and 204 in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 there is prima fade evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is ''sufficient ground for proceeding'' against the accused. If there is prima facie evidence, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. At this stage of Sections 203 and 204, the Magistrate is not to weigh the evidence meticulously as if he were the trial Court.

From the above, it is apparent that Magistrate is to see whether there is prima facie evidence in support of the charge levelled against the accused. If there is prima facie evidence, then, it will be sufficient ground for issuing process. At this stage Magistrate is not supposed to weigh the evidence meticulously or evaluate the same.

In the case at hand, allegation of rape by Police personnel in the premises of Police Station has been made. Case was triable by Sessions Court.

Following reasons have been given by the learned Magistrate to disbelieve the testimony of victim.

It may be relevant to state here that despite above, learned Magistrate has believed that both the police officials have outraged the modesty of the victim at police station and that is why they have been summoned u/s 354 I.P.C. What has been disbelieved is the allegation of rape committed by accused persons.

Observation of the Magistrate that it is not possible that witnesses would remain mute spectator if police personnel take away somebody i.e. his wife is absolutely uncalled for. Similar is the observation that it is not clear as to how complainant or his wife were physically or mentally incapacitated that they were taken in the police jeep. Observation that sufficient evidence was not given and other witnesses should have been examined, is also uncalled for. Apex Court in the case of Shivjee Singh Vs. Nagendra Tiwary and Others, , has held as under:

The Choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say, whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.

Complainant has adduced evidence to the effect that his wife was taken to Police Station. In Police Station complainant was asked to sit with Sanitary while his wife was taken to the quarter of Sub-Inspector Ashok Kumar Yadav where she was raped by him and one Constable. What more evidence was required is not clear? Testimony of victim could be best evidence in this regard which is ordinarily believed unless rebutted for cogent reasons.

In reply to the question put by Court, complainant had said that some bangles were broken, his wife told him about the bleeding but husband did not care to see it. Is it a ground to reject the testimony of husband or his wife? Similarly the contradiction, referred to by Court i.e. in F.I.R. it is said that Ribban was dropped in the way while Anita stated that Ribban was dropped at the residence is also based on misreading of material. In the F.I.R. it is clearly said that Ribbon who belonged to village Shakhpur Kutru was dropped.

Ram Jas in his statement u/s 200 Cr.P.C. stated that Constable Ram Nayak, driver of the Jeep and one Ribban, a criminal had come to his residence, thus, Ram Jas mentions the name of Ribban who had accompanied Constable Ram Nayak. Anita (victim) has also stated about the presence of Ribban. How the omission of Ram Jas to state about the place where Ribban was dropped is relevant especially when Magistrate was considering the statements recorded under Sections 200 and 202 Cr.P.C.

It has been mentioned in the First Information Report that history-sheetor Ribban had also accompanied constable Ram Nayak who was also a tout of Police and Ribban was dropped at the village Sheppur Kutru.

Shrawan Kumar (PW-3) in his statement has specifically stated that :

The observation of Magistrate that Shrawan, Radhey or complainant had not said anything about Ribban, is just based on misreading of record.

From the above, it is apparent that learned Magistrate has tried to find the contradictions, omissions which actually did not exist in the evidence and which can be evaluated during trial after cross-examination. Magistrate has failed to visualize mental status of husband whose wife was raped forcibly in a Police Station. When Constable came to call his wife again in the name of interrogation by Sub Inspector, then he moved application before the S.P. The following sentence in the F.I.R. demonstrates his mental agony and helplessness.

Learned Magistrate has failed to consider the above important aspect of the matter while finding out non-existing contradictions and omissions. So far reference to complainant''s criminal history is concerned, it was absolutely irrelevant. In any case, last case registered against Ram Jas was of the year, 1991. Thereafter, for six years, there was no case until 1997 when he was challaned u/s 107, 106 Cr.P.C. In fact, from the record it appears that he had lodged an F.I.R. against his brother Jas Karan u/s 307 I.P.C. for throwing Bomb. Complaint was not involved in any case for which he was called for interrogation in the night. In any case his wife Anita was neither witness nor accused, so as to be summoned in such a manner in the fateful night to Police Station.

The observation that the complaint has been filed in their defence is absolutely uncalled for. No case was pending against Anita victim of against her husband. In the year, 1997 there was no case for defending which they could make allegation of rape against two police officials.

Moreover, learned Magistrate has failed to consider the order passed by this Court on 11.8.2003 in Criminal Revision No. 316 of 2000. Relevant part of the order is quoted hereinbelow :

In the charge of rape the statement of the prosecutrix is sufficient unless rebutted by cogent evidence by the accused that the intercourse was committed with her consent in the case of prosecutrix more than 16 years of age. The stage of rebutting presumption has not arrived. Relying on the statement of the prosecutrix, the learned Magistrate was to take cognizance against opposite parties No. 2 and 3 u/s 376 IPC, which has not been done.

In result the revision is allowed. The impugned order is set aside with the direction to the learned Magistrate to rehear the parties again and pass a fresh order after correctly appreciating the evidence in the light of presumption u/s 114A of the Evidence Act. Office shall return back the lower Court record at once.

It is apparent that learned Magistrate has exercised the discretion in arbitrary manner and his order is based on misreading of law as well as material on record.

It may be relevant to state here that F.I.R. could be lodged only after the matter was taken to the D.G.P. In internal enquiry, S.P. has found that lady was taken to the Police Station in the night and dropped at home at the same night. Relevant part of the order dated 16th April, 1997, passed by S.P. Barabanki is reproduced below:

It is apparent that lady was taken to the Police Station in the night, although she was neither witness nor accused that too in the absence of any lady constable. No action seems to have been taken by the department against the police officials.

Hon''ble Mr. Justice Swatanter Kumar while speaking for Apex Court has made observation in the case of Dayal Singh and Others Vs. State of Uttaranchal, ] as under:

In a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. A crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.

In the case of Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh and Others, , Hon''ble Apex Court has made following observation reminding the Police Authorities to their duties :

It is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities.

In these circumstances, a direction be issued to take action not only against the accused persons who allegedly committed rape but also against the Police personnels posted in Police Station for their omission to prevent such misdeed.

Consequently, I.G. Zone is directed to look into the matter and take action against the erring officials for taking the lady in the night which is evident from their own record. Action taken against the erring officials will be intimated to the Registrar of this Court within two months.

From the above discussion it is also apparent that order suffers from patent error of law. Consequently, order is liable to be set aside.

Revision is allowed.

Order dated 6.8.2007 passed by Chief Judicial Magistrate, Barabanki in Misc. Case No. 14 of 1999 (Ram Jas v. Ashok Kumar and others) is set aside.

Chief Judicial Magistrate, Barabanki is directed to pass fresh order in accordance with law within one month. Parties are directed to appear before C.J.M., Barabanki on 27.11.2012.