Saraswati Devi @APPELLANT@Hash State of Rajasthan & Anr

By the instant criminal revision petition under Section 397 read with Section 401 Cr.P.C., petitioner-complainant has assailed order dated 17th of

February, 2017, passed by Addl. Sessions Judge, Pali District, Pali (for short, ‘learned trial Court’). By the order impugned, learned trial Court,

after hearing arguments on charge, while resorting to Section 227 Cr.P.C., discharged the accused-respondent for offence under Section 376 IPC but

framed charges under Section 228 Cr.P.C. for offence punishable under Sections 451, 366, 323/34 IPC.

Succinctly stated, facts of the case are that petitioner-complainant laid a complaint against accused-respondent before Judicial Magistrate, 1st

Class, Marwar Junction, District Pali, inter-alia, alleging offence under Sections 342 & 366A IPC. The learned Magistrate, thereupon, forwarded the

same under sub-section (3) of Section 156 Cr.P.C. to Police Station Siriyari, District Pali and pursuant thereto FIR No.8/2010 was registered for

aforesaid offences. During investigation, police recorded statement of petitioner’s daughter (prosecutrix) under Section 164 Cr.P.C. and upon

completion of investigation filed charge-sheet against accused-respondent for offence under Section 299 Cr.P.C. The learned Magistrate, after

considering the offences slapped against accused-respondent, passed an order under Section 209 Cr.P.C. for committing the case to the Court of

Sessions. The learned Sessions Judge, thereafter, transferred the matter to learned trial Court.

It so happened that after submission of charge-sheet against him, at the behest of respondent, a criminal misc. petition bearing No.422/2012 is

preferred before this Court for quashing the charge-sheet and the same is decided on 10th of February, 2012 with the following observations:

“However, looking to the contention of learned senior counsel that the petitioner is an impotent person, it is hereby directed that the petitioner

should surrender himself before the trial court and on his so surrendering, the medical examination of the petitioner shall be conducted by a medical

board, particularly for the examination of potency of the petitioner, and thereafter, the petitioner shall be entitled to raise all his objections against his

proposed prosecution at the stage of consideration of the charges and in the event of medical board’s report being favourable to the petitioner, the

trial court shall be under an obligation to consider the same as per law and in reference to the period during which the offence was committed.â€​

Later on, accused-respondent surrendered and in due course of time in compliance of order of the Court subjected to medical examination by the

Board. Learned trial Court, thereafter, heard arguments for framing charge against the accused-respondent and upon consideration of the available

material and the report of Medical Board framed charges against him for offence under Sections 376, 458, 366, 323 & 34 IPC by its order dated

25.09.2013.

Being aggrieved by the said order, accused-respondent preferred a revision petition before this Court, which was registered as S.B. Criminal

Revision Petition No.767/2013. The aforesaid revision petition was decided on 19th of September 2014. The operative part of order dated 19th of

September 2014, in vernacular, reads as under:

^^mijksDr rF;ksa dks /;ku esa j[krs gq,] fo}ku v/khuLFk U;k;ky; }kjk vkjksi fojafpr fd, tkus ds Øe esa ikfjr vk{ksfir vknsâ€k iqu% vkjksi fojpu ds Øe

esa lquokbZ ds mÃsâ€; ls vikLr dj v/khuLFk U;k;ky; dks funsZâ€k fn;k tkrk gS fd fnukad 12-5-2012 dks esMhdy T;wfjLV] ckaxM vLirky] ikyh dh

vksj ls tkjh fjiksVZ esa jk; (opinion) okys Hkkx esa iksVsalh VsLV ds lEcU/k esa ftu&ftu foHkkxksa ls jk;

izkIr djus ckcr fy[kk x;k gS] bl lEcU/k esa lEcfU/kr fu;a=d vf/kdkjh (Controlling Officer) dks fjiksVZ dh izfr Hkstdj bl lEcU/k esa vfHk;qDr@;kph dk

mldh iksVsalh lEcU/kh vfUre jk; ckcr ifj.kke izkIr djsa ,oa ifj.kke izkIr gksus ds iâ€pkr iwoZ vknsâ€k ls izHkkfor gq, fcuk nksuksa i{kksa dks lqudj

mDr ifj.kke dks /;ku esa j[krs gq, iqu% fof/k&lEer vknsâ€​k ikfjr djsaA**

From a bare perusal of the above quoted order, it is crystal clear that the Court has issued a word of caution for preparation of medical report afresh

uninfluenced by earlier report of the competent authority/order.

In compliance of the order of this Court, respondent submitted an application before learned trial Court for obtaining final report regarding his

potency. After considering the application of accused-respondent, learned trial Court passed order dated 5th of January 2015 and eventually the

respondent was subjected to thorough medical examination by a duly constituted Medical Board of Mathura Das Mathur Hospital, Jodhpur and the

Medical Board opined that accused-respondent is not potent. On the basis of that report, on behalf of respondent, a prayer was made at the time of

framing charge to discharge him for the offence under Section 376 IPC. The learned trial Court, then proceeded to hear arguments of the rival parties

and by the order impugned discharged the respondent for offence under Section 376 IPC and framed charges for the aforesaid offences.

Learned counsel for the petitioner, Mr. P.R. Choudhary, has vehemently argued that learned trial Court has seriously erred in discharging the

respondent for offence under Section 376 IPC. Learned counsel has also argued that the report of Medical Board has not been construed in right

perspective by the learned trial Court while passing the impugned order of discharge. It is also submitted by learned counsel that learned trial Court

has committed a manifest error in relying on the report of Medical Board without there being any specific test for potency by Urologist, Neurologist or

Endocrinologist at a higher centre. It is also submitted by learned counsel that the order of discharge is not passed on objective consideration of the

record of case and is patently infirm on the touchstone of requirements envisaged under Section 227 Cr.P.C. Lastly, learned counsel would contend

that in the backdrop of materials available on record, correctness, legality or propriety of the impugned order is required to be examined in exercise of

revisional jurisdiction for upsetting the same.

Per contra, learned Public Prosecutor has defended the impugned order and submits that no interference with the impugned order in exercise of

revisional jurisdiction is warranted.

Learned Senior Counsel, Mr. Anand Purohit, appearing for the accused-respondent, submits that learned trial Court has rightly exercised its

discretion in discharging the respondent by exercising power under Section 227 Cr.P.C. Mr. Purohit would contend that if in a given case two views

are possible and one of them gives rise to strong suspicion against the accused persons, then only the Court is empowered to frame charge and not

otherwise. Elaborating his submission in this behalf, learned Senior Counsel contends that the report of Medical Board is clear and unequivocal

showing respondent’s inability to perform sexual act due to illness has obviously given rise to lack of sufficient ground to proceed against him.

Learned Senior Counsel has, therefore, urged that there is no infirmity much less legal infirmity in the impugned order. Learned Senior Counsel has

further argued that learned trial Court in exercise of its discretion, upon examining the materials available on record, has discharged the petitioner for

offence under Section 376 IPC with cogent reasons, therefore, the said order warrants no interference in exercise of revisional jurisdiction.

I have bestowed my consideration to the arguments advanced at Bar, perused the impugned order and also scanned the materials available on

record.

The pivotal question which has emerged for consideration before the Court is correctness, legality and propriety of the impugned order of

discharge. There remains no quarrel that in appropriate cases Sessions Court may resort to Section 227 Cr.P.C. for discharging an accused person.

However, in the backdrop of alleged criminal delinquency of the petitioner, being grave in nature, involving offence of mental depravity, it has

become imperative for the Court to thoroughly examine the medical reports of accused-respondent. It goes without saying that if

a medical report is clear and unequivocal about an incumbent accused being unable to perform sexual act , proceeding against him for offence under

Section 376 IPC may result in grave injustice.

Upon examining the materials available on record and the report of Medical Board of Bangur Hospital, Pali, dated 12th of May 2012, it is amply

clear that accused-respondent was unable to perform sexual act due to his illness. The opinion of the Medical Board is reproduced as under:

“In the opinion of medical board after history and examination of Bhaga Ram, Pt may be unable to perform sexual act due to present illness.

However, in the absence of specific test for potency, Pt can take opinion from urologist, neurologist and endocrinologist at higher centre.â€​

Subsequently, yet again respondent was subjected to medical examination by a duly constituted Medical Board at Mathura Das Mathur Hospital,

Jodhpur. The said Medical Board was constituted by Principal and Controller, S.N. Medical College & Group of Hospitals, Jodhpur. The Medical

Board of five doctors, which are Medical Jurist, Professor, Urology Department. Professor, Medicine, Associate Professor Neuro-physician and

Assistant Professor Psychiatry, gave its report on 18th of May 2016 and opined as under:

“After going through reports and clinical examination the board is of the opinion that (the patient Bhaga Ram), Nothing suggestive that he is potent,

however as per Radiologist advised to rule out various leakage cavernosometry and cavernosography patient may be referred to higher centre.â€​

In Medical Science, impotence is defined as physical incapacity of accomplishing sexual act. Impotence in males is the persistent inability to

develop or maintain a penile erection sufficient to coitus and to organism and ejaculation. In forensic medicine, impotence or sexual incapacity

connotes physical incapacity to accomplish the sexual act. As per Halsbury’s Laws of England, impotence can be described as a state of mental

or physical condition which makes consummation of marriage practically impossible. As per medical jurisprudence, there are many causes of

impotence amongst males, namely, age; malformations; local diseases or injuries; general diseases, and psychogenic origin.

Local diseases or injuries like large hydrocele scrotal hernia, elephantiasis, phimosis, paraphimosis and adherent prepuce may cause temporary

impotence by mechanic obstruction to coitus, as these conditions can be remedied by proper surgical treatment. However, as per Modi’s Medical

Jurisprudence and Toxicology, an authoritative book on the subject, endocrine disturbances may produce sexual infantalism, rendering an individual

impotent. Likewise, certain general diseases, such as diabetes mellitus, autonomic neuropathy, pulmonary tuberculosis, chronic nephritis, the Leriche

syndrome, prolonged priapism, which occasion extreme debility, may produce impotence, temporary or permanent. Organic pituitary, hypothalamic or

testicular disease, severe depressive illness may at times by the use of anti-hypertensive drugs and phenothiazines result in impotency.

In the instant case, respondent due to two decade old urethral injury remained under treatment of consultant Urologist at Moit Hospitals, Chennai

and also underwent internal urethrotomy on 21st of September 2010. The treatment of the respondent for the disease in question was in vogue at the

time of commission of alleged offence and lodging of FIR is also borne out from the materials available on record. Therefore, in that background, in

my considered opinion, learned trial Court has rightly placed reliance on two concurring reports of the medical boards by relying on the prolonged

ailment of the accused-respondent in passing the impugned order.

The Court, on overall analysis and available material, while exercising powers under Section 227 & 228 Cr.P.C., at times, may face serious

dilemma about relative scope of both these Sections. Upon harmonious construction of both the provisions, there remains no dichotomy inasmuch as if

the Court after hearing arguments of rival parties considers that evidence produced is not sufficient or there is no legal ground for proceeding against

the accused order of discharge is to be passed. Conversely, if the Court is of the opinion that there is ground for presuming that the accused has

committed offence, it may proceed to frame charge by passing order under Section 228 Cr.P.C. At that stage, it is expected of the Court to evaluate

the material and documents on record with a view to find out whether the facts emerging therefrom, even if taken at their face value, disclose 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 oppose to commonsense or the broad probabilities of the case.

Supreme Court, in case of Niranjan Singh Karam Singh Panjabi Vs. Jitendra Bhimraj Bijjaya & Ors. [(1990) 4 SCC 76], while examining standard

of test to be applied at the stage of deciding matter under Section 227 & 228 Cr.P.C. quoted complete text of Section 227 Cr.P.C. and held:

“227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and

the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused

and record his reasons for so doing.

Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient

ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a

prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is

framed the trial must ordinarily end in the conviction or acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code.

Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the there should if 'upon

consideration' of the record and documents he considers 'that there is not sufficient ground' for proceeding against the accused. In other words his

consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for

proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under

Section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time

over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.â€​

Thus, in the wake of two concurring reports of the medical boards, learned trial Court has rightly taken cognizance of these reports to record its

satisfaction for discarding the prosecution case by applying normal prudency or the broad probabilities of the case. The prosecution case has though

projected with requisite material sufficient ground to proceed against the accused-respondent by resorting to Section 228 Cr.P.C. but the Court by

relying on the reports of the medical boards repudiated the same being not Gospel truth and opposed to commonsense. The approach of the learned

trial Court in this behalf clearly indicates its prima facie satisfaction for resorting to Section 227 Cr.P.C. which cannot be categorized as perverse or

against the weight of evidence on record.

I am fortified in my view by a decision of Supreme Court in P. Vijayan Vs. State of Kerala & Anr. [(2010) 2 SCC 398], wherein the Court, after

quoting Section 227 Cr.P.C., examined its scope and held:

“If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to

discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words ""not sufficient ground

for proceeding against the accused"" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but

has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In

assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and

probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in

order to find out whether or not there is sufficient ground for proceeding against the accused.â€​

Referring to both the reports of medical boards, suffice it to observe that undeniably first medical report dated 12th of May 2012 was not authored

by Urologist, Neurologist or Psychiatrist but then the subsequent report dated 18th of May 2016 is prepared and signed by Professor Urology,

Associate Professor Neuro-physician and Assistant Professor Psychiatry. Therefore, it is rather difficult to comprehend that both these reports are

not prepared by experts of medical science more particularly the later report dated 18th of May 2016. Merely because any endocrinologist was not

member of later medical board, the complete report cannot be discarded even at the stage of prima facie examining alleged criminal delinquency of an

individual. It is also noteworthy that the second report of the medical board was prepared by the subject experts as per directions of the Court with

same conclusions.

In common parlance, medical opinion cannot be underplayed at mere whims and fancy and opinion of physicians and surgeons deserves due

credence to show physical condition of a person, nature of a disease and effect of such disease upon body and mind of an individual. Similarly,

symptoms and peculiarity of a disease and its probable future consequences can be prima facie looked into by the Court for recording its satisfaction

that there is no sufficient ground for proceeding against the accused. In totality, the learned trial Court while recording such satisfaction has rightly

exercised its power under Section 227 Cr.P.C. 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.

In view of forgoing discussion, I am unable to find any illegality or impropriety in the impugned order warranting interference in exercise of revisional

jurisdiction.

Resultantly, revision petition fails and the same is hereby dismissed.