Vivekanand Viswas and Others vs State of Uttarakahnd and Another

Sudhanshu Dhulia, J.—Heard Mr. Ambika Ray and Mr. M.K. Ray, learned Counsels for the revisionists, Mr. Nandan Arya, AGA for the State and Mr. R.C. Tamta, Advocate for Respondent No. 2.

This revision has been filed by the revisionists against orders dated 19.4.2010 and 30.4.2010 passed by the learned Sessions Judge, District Udham Singh Nagar in Criminal Case No. 79 of 2010 u/s 363, 366, 120B of I.P.C., whereby he has declined to discharge the accused u/s 227 of Code of Criminal Procedure and has framed charges against the accused u/s 228 Code of Criminal Procedure.

Brief facts of the case are as follows:

An FIR was filed by one Smt. Bulbul Rani, W/o Parimal Kumar R/o Transit Camp, Rudrapur, Udham Singh Nagar on 17.2.2009 which was registered as Case No. 77 of 2009 under Sections 363, 366 IPC at Police Station Rudrapur, district Udham Singh Nagar, inter alia, against the present revisionists stating that her daughter Km. Sweety Roy @ Usha Jyoti who is a student of Class 9th and whose age is 14 years was missing since 10.2.2009 and she suspects that her own uncle (Mama) along with certain other persons (including the present revisionist) have kidnapped her daughter and have taken her to Delhi, and she fears that she will be subjected to inhuman treatment in hands of these persons. Sweety along with one Jyotirmay Viswas were arrested by police on 2.3.2009 at Rudrapur, Uttarakhand. Thereafter statement of Sweety was recorded u/s 164 Code of Criminal Procedure. In her statement on 23.2.2009 she stated before the learned Magistrate that her "Nana", namely, Vivekanand Vishwas told her that her "Nani" is not well and therefore, she along with certain other persons namely Nilima, Jyoti and Deepu had gone to her "Nana''s" place from where her "Nana" had sent her to Delhi, along with others. Thereafter, one Neelima and Deepu sent her to Calcutta alongwith Jyoti, where she was married to Jyotirmay Vishwas @ Jyoti in a Kali Temple. She was lured into marriage, she stated. In Calcutta she stayed in a rented accommodation where Jyotirmay Vishwas had physical relations with her. When she came to Rudrapur with Jyotirmay Vishwas, they were arrested on 2.3.2009. Two affidavits have been filed before this Court by Smt. Bulbul Rani, who had lodged the complaint and another by Sweety- the prosecutrix, which are on record and have been marked as Annexures - 6 and 7 respectively. They state a different story than what has been stated in the FIR and the subsequent statement of the prosecutrix u/s 164 of Code of Criminal Procedure.

This Court has also been apprised of the fact that revisionist No. 1 had earlier filed a criminal misc. application being Criminal Misc. Application No. 909 of 2009 Jyotirmay Vishwas and Jyoti and Anr. v. State of Uttarakhand for quashing of the FIR and further compounding of the offences. While disposing of the matter, certain observations were made by the Court in their favour. Relevant portion of order dated 3rd December, 2009 is as under:

All the counsels stated that before me that accused No. 1 and Km. Sweety both are major and were known to each other. It is further stated that Km. Sweety left her parental house on her own sweet will without any pressure or inducement. She is happy with Petitioner No. 1 who is now in jail.

Km. Sweety prosecutrix stated that she has never been abducted or kidnapped. She understands each and every thing in the world. She has gone at her won sweet will. She wanted and still wants to live with Jyotirmay Viswas, Petitioner No. 1.

Sri Arvind Vashisth, learned Counsel for the Petitioners fairly submitted that in the present matter, compounding is not possible, however, in the light of affidavits filed by complainant and Km. Sweety, Trial Court can discharge the accused. Section 227 Code of Criminal Procedure empowers the Sessions Judge to discharge the accused.

Since compounding cannot be directed in the present petition and case has not been committed to the Sessions Court by the Magistrate so far, I have no other option to except to dismiss this petition with this observation that Magistrate shall commit the case to the Sessions Court at the earliest preferably and in any case within four weeks from today in accordance with law. I further direct that thereafter learned Sessions Judge shall hear both the parties on the discharge. He shall take into consideration the affidavits filed before this Court, copies of which would be filed before him and shall pass appropriate order u/s 227 Code of Criminal Procedure within eight weeks from the date of committal by trial.

Present petition stands disposed of with the above observation.

In sum and substance, the learned Single Judge had specifically stated that the nature of the offence clearly states that the compounding cannot be done in the case, and therefore, the petition was disposed of with the observation that the Magistrate will commit the case to the Sessions Court at the earliest and the Sessions Judge shall hear both the parties on "discharge". The Sessions Judge shall also consider the affidavits filed before the Court. After the case was committed to the Session Court, the learned Sessions Judge passed an order on 19.4.2010, whereby he did not find it a fit case under which a discharge order could be passed u/s 227 of Code of Criminal Procedure and it in fact charged the present accused/revisionists under Sections 363, 366 and 120B I.P.C. and another accused Jyoti u/s 363/366/376 I.P.C. This Court has perused the order of the learned Sessions Judge passed u/s 228 of Code of Criminal Procedure. There is absolutely no anomaly in the order of the learned Sessions Judge. The learned Sessions Judge has stated that an accused can only be discharged where the evidence available before the Court prima facie is not sufficient to pass a sentence of conviction against the accused. However, in case such a material is present, therefore, discharge order cannot be passed. What was material before the learned Sessions Judge was the statement of the prosecutrix u/s 164 of Code of Criminal Procedure, where she has repeatedly stated that she is 14 years of age and a student of Class-IX. She has also stated in the statement that she was kidnapped and subsequently there are allegations of physical abuse as well.

Learned Counsel appearing for the revisionists has stated that whenever there are two views possible, as it is in the present case where there is a statement of the prosecutrix u/s 164 of Code of Criminal Procedure on one hand and an affidavit on other, the view which was in favour of the Defendant was liable to be adopted. Though learned Counsel for the revisionist has relied upon a number of judgments but only two of them are relevant for our purposes, reference of which is necessary. In Dilawar Balu Kurane Vs. State of Maharashtra, , indeed the Apex Court had stated that where at the time of framing charges two opinions are possible, the one which is in favour of the accused must be given preference. However, the facts of the case before the Apex Court are entirely different. In that case, a lecturer of the private college was charged with an offence under the Prevention of Corruption Act, 1947. Now on the face of it lecturer in a private college is not a public servant. In the present case the facts are entirely different. The prosecutrix had given her statement stating that she has been raped. Now there may be another affidavit filed by her that she has not been raped, but it is not a case where two views were possible at the time of framing of charge. Learned Counsel for the revisionists has also relied upon State of Orissa Vs. Debendra Nath Padhi, . This case also does not help the revisionists in fact it goes against them. The matter which was for determination before the Apex Court in Debendra Nath Pandhi''s case (supra) was whether the trial Court at the time of framing of charges can consider any material filed by the accused as it has to pass order (under Section 227 of Code of Criminal Procedure) only on the basis of the record of the case. In Satish Mehra Vs. Delhi Administration and Another, , a two Bench judgment of the Apex Court had stated that in a given case the accused may produce reliable material before the Court even at the time when the Court is taking cognizance or framing of charges if such a material can fatally effect the very sustainability of the prosecution case itself. Since there were contrary views of the Apex Court on this issue, the matter was placed before a three-Judge Bench State of Orissa Vs. Debendra Nath Padhi, which has categorically stated in the judgment that "...in our view clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided." Therefore, in short while passing order u/s 227 read with 228 of Code of Criminal Procedure all the Court has to see is the material which has been produced by the prosecution. No other material can be examined. It is a different mater that the submission of the accused can only be looked into but all these submissions have to be based only on the material which is already there on record. It is also considered view of this Court that there was enough material before the court to have framed charges against the accused u/s 228 of Code of Criminal Procedure and he has rightly not discharged the accused u/s 227 of Code of Criminal Procedure. The Court below has categorically stated that no affidavits as directed by the Court have been produced by them. Therefore, this Court finds no anomaly in the orders dated 19.4.2010 and 30.4.2010 passed by the learned Sessions Judge, District Udham Singh Nagar.

This Court is of the considered opinion that there was only one view possible i.e. the view which was taken on the basis of the statement of the prosecutrix u/s 164 of Code of Criminal Procedure.

This Court, therefore, finds no merit in the instant criminal revision and the same is liable to be dismissed and is hereby dismissed.

No order as to costs.

The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.