Madhya Pradesh High Court
Pushpraj Dangi vs The State Of Madhya Pradesh on 13 December, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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CRA-14633-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 13th OF DECEMBER, 2024
CRA No.14633 of 2023
Pushpraj Dangi and another
Versus
The State of M.P. and another
................................................................................................................................................
Appearance :
Shri Manish Datt - Senior Advocate with Shri Eshaan Datt - Advocate for the
appellants.
Shri Tapan Bathre - Panel Lawyer for the respondent/State.
................................................................................................................................................
Reserved on : 04.09.2024
Pronounced on : 13.12.2024
ORDER
This criminal appeal is arising out of the order dated 28.06.2023
(Annexure-A/2) passed by the Special Judge, Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity the
‘SC/ST Act’), Sagar, in Special Case No.451/2021, whereby certain
charges have been framed against each of the appellants under Sections
294, 384/34, 376(2)(n), 376(D) and 506-II of the Indian Penal Code and
Sections 3(1)(w)(ii), 3(1)(d), 3(2)(v-a) and 3(2)(v) of the SC/ST Act.
2. As per the facts of the case, the victim- “X” (hereinafter referred
as to the ‘victim’) has submitted a written complaint on 25.08.2021 at
Police Station Rehli, District Sagar, alleging that she is a housewife, her
marriage was solemnized in the year 2012 and from the said wedlock,
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she gave birth to two children.
(2.1) The ‘victim’ came into contact with accused/appellant No.1
Pushpraj Dangi through facebook, there used to be conversation
between them on phone and they were in a relationship for almost four
years.
(2.2) Some time in the year 2016, the victim was called by
accused/appellant Pushpraj Dangi to Kakroniya, District Sagar, and
thereafter the said accused/appellant started demanding money from the
‘victim’ saying that he has her photographs and if she would not give
him money, then he would show those photographs to her husband and
would also defame her.
(2.3) It is alleged that the ‘victim’ under the fear and threat given by the
said accused/appellant started giving money and in first installment she
gave Rs.30,000/- to him. The victim also requested the said
accused/appellant to end the relationship and not to contact her, but he
did not accept her request.
(2.4) The ‘victim’ thereafter shifted to the house of her relative on
23.08.2021 in village Chandpur along with her husband and children
and on 24.08.2021 at about 04:00 p.m., when the ‘victim’ went to
Ghatadevi Toriya at a distance of about 500 meters from the house of
her relative, the accused/appellants herein met her on a motorcycle and
accused/appellant Pushpraj Dangi threatened her and asked why she
stopped talking to him. Although, the ‘victim’ refused to talk to him and
opposed his conduct, but both the accused/appellants with ill-will caught
hold of her and hurled filthy abuses and attempted to touch her private
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parts and as such, outraged her modesty.
(2.5) The ‘victim’ thereafter called her husband on phone and when he
came on spot, the accused/appellants fled away on their motorcycle
intimidating them to face dire consequences hurling filthy abuses based
on their caste. The ‘victim’ narrated the whole story to her husband and
then they made a complaint to the police and thereafter aforesaid
offences were registered against the present accused/appellants.
(2.6) Charge-sheet was filed on 13.12.2021. The ‘victim’ on
24.03.2022, made a complaint to the Superintendent of Police Sagar
alleging inter alia that some time in the year 2019, the
accused/appellants took her along with them in a room and mixed some
stupefying substance in the drinking water and after consuming the
same, she got unconscious and thereafter, the accused/appellants
forcibly raped her one by one and made video clippings thereof on their
mobile phones and thereafter giving threat to defame her, they sexually
exploited her many times. It is alleged by the ‘victim’ that she has been
subjected to rape by the accused/appellants many times at different
places. Thereafter, statement of the ‘victim’ was recorded and she was
got medically examined and further investigation was carried out by the
police.
(2.7) Thereafter, a supplementary charge-sheet was also filed and on the
basis of statement made by the ‘victim’ under Section 161 of Cr.P.C.,
offence of Sections 376 and 376(2)(n) of IPC and Sections 3(1)(w)(i)
and 3(1)(w)(ii) and 3(2)(v) of the Atrocities were added.
(2.8) The accused/appellants apprehending their arrest filed a bail
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application before the trial Court, but since the same got rejected,
therefore, they approached this Court by filing a bail application i.e.
Criminal Appeal No.8350 of 2022 and the Court vide order dated
09.11.2022 has granted anticipatory bail to the present
accused/appellants. Thereafter, a complete charge-sheet was filed in the
trial Court, which is available on record as Annexure-A/4, and the
matter was committed and the case was registered vide Special Case
No.451/2021. Hence, this appeal.
3. Shri Manish Datt, learned senior counsel appearing for the
appellants has submitted that the present appellants are challenging the
order of framing of charge mainly on the ground that no cogent and
plausible material to substantiate the aforesaid offences has been
produced by the prosecution and there is inordinate delay in launching
the prosecution against the present appellants for which no sufficient
explanation is given. As such, it is clear that a false incident has been
narrated by the ‘victim’ just to implicate the present appellants in the
alleged offence. It is also submitted by the counsel for the appellants
that the ‘victim’ is a married lady, having two children and by misusing
the provision of SC/ST Act, she is trying to implicate the present
appellants on the basis of frivolous and vexatious allegations. Therefore,
this appeal has been filed by the present appellants challenging the order
of framing of charge saying that on the basis of a false and concocted
story without there being any proper evidence, the complaint has been
filed against them and as such, the order of framing charges against the
present appellants deserves to be quashed.
4. In support of his submissions, the counsel for the appellants has
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placed reliance upon several judgments on this issue, especially in a
case reported in AIR 2008 SC 767 parties being Sanapareddy
Maheedhar Seshagiri vs. State of Andhra Pradesh saying that it is a
case of malicious prosecution and on the basis of false allegations, a
complaint has been made by the ‘victim’ just to ruin their future. Even at
the time of framing of charge, according to the accused/appellants, the
trial Court failed to see that the material produced by the prosecution
does not constitute any such offence which has been registered against
the accused/appellants and as such, they are seeking quashing of order
dated 28.06.2023 (Annexure-A/2) whereby charges have been framed
against them.
5. Although, in the instant appeal, the appellants have sought
quashing of order dated 28.06.2023 passed by the trial Court framing
charges against them but in a relief clause, they have not sought
quashing of the order passed by the trial Court on 28.06.2023 exercising
the power provided under Section 228 of the Cr.P.C. and framed
charges, however claimed that all the proceedings initiated against the
appellants in pursuance of Crime No.633/2021 be quashed.
6. Moreover, considering the existing factual circumstances and the
averments made in the memo of appeal, this appeal is against the order
of framing of charge dated 28.06.2023 passed by the trial Court in a
pending Special Sessions Case No.451/2021.
7. The counsel for the appellants has given a list of cases on which
he has placed reliance viz. (1990) 4 SCC 76 (Niranjan Singh Karam
Singh Punjabi v. Jitendra Bhimraj Bijjaya and others) and other
connected cases, (2019) 7 SCC 148 (Asim Shariff v. National
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Investigation Agency), (2022) 2012 SCC 657 (Ghulam Hassan Beigh
v. Mohammad Maqbool Magrey and others), (2019) 16 SCC 547
(Dipakbhai Jagdishchandra Patel v. State of Gujrat and another),
(1998) 5 SCC 749 (Pepsi Foods Ltd. And another v. Special Judicial
Magistrate and others), (1979) 3 SCC 4 (Union of India v. Prafulla
Kumar Samal and another), (1972) 3 SCC 282 (Century Spinning
and Manufacturing Co. Ltd. And others v. State of Maharashtra)
and 2023 LiveLaw (SC) 613 (Mahmood Ali & Ors. v. State of U.P. &
Ors.).
8. In a case of Niranjan Singh Karam Singh Punjabi (supra), the
Supreme Court has considered the scope and ambit of word
‘consideration’ by the trial Court at the stage of exercising the power
provided under Sections 227 and 228 of the Code of Criminal Procedure
and observed as under:-
“6. The next question is what is the scope and ambit of the
‘consideration’ by the trial court at that stage. Can he marshal the
evidence found on the record of the case and the documents placed
before him as he would do on the conclusion of the evidence adduced
by the prosecution after the charge is framed? It is obvious that since
he is at the stage of deciding whether or not there exists sufficient
grounds for framing the charge, his enquiry must necessarily be limited
to deciding if the facts emerging from the record and documents
constitute the offence with which the accused is charged. At that stage
he may sift the evidence for that limited purpose but he is not required
to marshal the evidence with a view to separating the grain from the
chaff. All that he is called upon to consider is whether there is
sufficient ground to frame the charge and for this limited purpose he
must weight the material on record as well as the documents relied on
by the prosecution. In the State of Bihar v. Ramesh Singh (1977) 4
SCC 39 this Court observed that at the initial stage of the framing of a
charge if there is a strong suspicion-evidence which leads the court to
think that there is ground for presuming that the accused has committed
an offence then it is not open to the court to say that there is no
sufficient ground for proceeding against the accused. If the evidence
7
CRA-14633-2023which the prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by cross-
examination or rebutted by the defence evidence, if any, cannot show
that the accused committed the offence, then there will be no sufficient
ground for proceeding with the trial. In union of India v. Prafulla
Kumar Samal (supra) this Court after considering the scope of Section
227 observed that the words ‘no sufficient ground for proceeding
against the accused’ clearly show that the Judge is not merely a post
office to frame charge at the behest of the prosecution but he has to
exercise his judicial mind to the facts of the case in order to determine
that 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 weighing and balancing of evidence and
probabilities but he may evaluate the material to find out if the facts
emerging therefrom taken at their face value establish the ingredients
constituting the said offence. After considering the case law on the
subject, this Court deduced as under;- (SCC p. 9, para 10)“(1) That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power to sift
and weight the evidence for the limited purpose of finding out whether
or not a prima facie case against the accused has been made out.
(2) 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.
(3) The test to determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are equally
possible and the Judge is satisfied that the evidence adduced before
him while giving rise to some suspicion but not grave suspicion against
the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code
the Judge which under the present Code is a senior and experienced
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, any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving enquiry
into the pros and cons of the matter and weight the evidence as if he
was conducting a trial.””.
9. In view of the aforesaid, it is clear that the test to determine a
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prima facie case would naturally depend upon the facts of each case and
it is difficult to lay down a rule of universal application and on the basis
of material available, if two views are equally possible and the Judge is
satisfied that the evidence adduced before him while giving rise to some
suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused and it is also observed by the
Supreme Court that the Court should not act as a post office while
exercising the power provided under Section 227 of Cr.P.C.
10. In a case of Asim Shariff (supra), the Supreme Court has again
considered the scope of Sections 227 and 228 of Cr.P.C. and observed as
under:-
“18. Taking note of the exposition of law on the subject laid down
by this Court, it is settled that the Judge while considering the question
of framing charge under Section 227 CrPC in sessions cases (which is
akin to Section 239 CrPC pertaining to warrant cases) 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 material placed before the court discloses
grave suspicion against the accused which has not been properly
explained, the court will be fully justified in framing the charge; by and
large if two views are possible and one of them giving rise to suspicion
only, as distinguished from grave suspicion against the accused, the
trial Judge will be justified in discharging him. It is thus clear that
while examining the discharge application filed under Section 227
CrPC, it is expected from the trial Judge to exercise its judicial mind to
determine as to whether a case for trial has been made out or not. It is
true that in such proceedings, the court is not supposed to hold a mini
trial by marshalling the evidence on record.”
In the said case, the Supreme Court has further observed that the
Court while considering the application of Section 227 of Cr.P.C. has to
examine the material produced by the prosecution with the charge-sheet
and after examining the same, if the Court finds grave suspicion against
the accused, it can discharge him.
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11. In case of Ghulam Hassan Beigh (supra), the Supreme Court has
observed as under:-
“21. This Court in Union of India v. Prafulla Kumar Samal [Union
of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri)
609] considered the scope of enquiry a Judge is required to make while
considering the question of framing of charges. After an exhaustive
survey of the case law on the point, this Court, in para 10 of the
judgment, laid down the following principles : (SCC p. 9)“10. … (1) That the Judge while considering the question of
framing the charges under Section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however 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 within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior and
experienced 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, any basic infirmities
appearing in the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a
trial.””
In the said case, the Supreme Court relying upon the earlier
judgments of the Supreme Court on the same issue has reiterated the
same view that if after considering the material produced by the
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prosecution, the court finds grave suspicion against the accused, then it
can discharge him.
12. Further in case of Dipakbhai Jagdishchandra Patel (supra), the
Supreme Court has observed as under:-
“16. In Union of India v. Prafulla Kumar Samal [Union of India v.
Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR
1979 SC 366], after survey of case law, this is what the Court has laid
down: (SCC p. 9, para 10)“10. Thus, on a consideration of the authorities mentioned above,
the following principles emerge:
(1) That the Judge while considering the question of framing
the charges under Section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however 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 within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior and
experienced court 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, any basic infirmities
appearing in the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a
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CRA-14633-2023trial.””
The Supreme Court in this case also has relied upon the view
taken in case of Prafulla Kumar Sama (supra) and reiterated the same
view as has been taken in the abovecited cases.
13. However, in a case of Pepsi Foods Ltd. (supra), the Supreme
Court has observed as under:-
“22. It is settled that the High Court can exercise its power of
judicial review in criminal matters. In State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : JT (1990) 4 SC 650]
this Court examined the extraordinary power under Article 226 of the
Constitution and also the inherent powers under Section 482 of the
Code which it said could be exercised by the High Court either to
prevent abuse of the process of any court or otherwise to secure the
ends of justice. While laying down certain guidelines where the court
will exercise jurisdiction under these provisions, it was also stated that
these guidelines could not be inflexible or laying rigid formulae to be
followed by the courts. Exercise of such power would depend upon the
facts and circumstances of each case but with the sole purpose to
prevent abuse of the process of any court or otherwise to secure the
ends of justice. One of such guidelines is where the allegations made in
the first information report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused. Under
Article 227 the power of superintendence by the High Court is not only
of administrative nature but is also of judicial nature. This article
confers vast powers on the High Court to prevent the abuse of the
process of law by the inferior courts and to see that the stream of
administration of justice remains clean and pure. The power conferred
on the High Court under Articles 226 and 227 of the Constitution and
under Section 482 of the Code have no limits but more the power more
due care and caution is to be exercised while invoking these powers.
When the exercise of powers could be under Article 227 or Section 482
of the Code it may not always be necessary to invoke the provisions of
Article 226. Some of the decisions of this Court laying down principles
for the exercise of powers by the High Court under Articles 226 and
227 may be referred to.
23. In Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954 SCR
565] this Court considered the scope of Article 227. It was held that the
High Court has not only administrative superintendence over the
12
CRA-14633-2023subordinate courts and tribunals but it has also the power of judicial
superintendence. The Court approved the decision of the Calcutta High
Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951
Cal 193] where the High Court said that the power of superintendence
conferred by Article 227 was to be exercised most sparingly and only
in appropriate cases in order to keep the subordinate courts within the
bounds of their authority and not for correcting their mere errors. The
Court said that it was, therefore, a case which called for an interference
by the Court of the Judicial Commissioner and it acted quite properly
in doing so.
24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1
SCC 858 : AIR 1975 SC 1297] this Court again reaffirmed that the
power of superintendence of the High Court under Article 227 being
extraordinary was to be exercised most sparingly and only in
appropriate cases. It said that the High Court could not, while
exercising jurisdiction under Article 227, interfere with the findings of
fact recorded by the subordinate court or tribunal and that its function
was limited to seeing that the subordinate court or tribunal functioned
within the limits of its authority and that it could not correct mere
errors of fact by examining the evidence or reappreciating it. The Court
further said that the jurisdiction under Article 227 could not be
exercised, “as the cloak of an appeal in disguise. It does not lie in order
to bring up an order or decision for rehearing of the issues raised in the
proceedings”. The Court referred with approval the dictum of Morris,
L.J. in R. v. Northumberland Compensation Appeal Tribunal [(1952) 1
All ER 122] .
25. In Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958
SC 398 : 1958 SCR 1240] this Court observed as under:
“It is thus, clear that the powers of judicial interference under
Article 227 of the Constitution with orders of judicial or quasi-
judicial nature, are not greater than the powers under Article
226 of the Constitution. Under Article 226, the power of
interference may extend to quashing an impugned order on the
ground of a mistake apparent on the face of the record. But
under Article 227 of the Constitution, the power of
interference is limited to seeing that the tribunal functions
within the limits of its authority.”
26. Nomenclature under which petition is filed is not quite relevant
and that does not debar the court from exercising its jurisdiction which
otherwise it possesses unless there is special procedure prescribed
which procedure is mandatory. If in a case like the present one the
court finds that the appellants could not invoke its jurisdiction under
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Article 226, the court can certainly treat the petition as one under
Article 227 or Section 482 of the Code. It may not however, be lost
sight of that provisions exist in the Code of revision and appeal but
some time for immediate relief Section 482 of the Code or Article 227
may have to be resorted to for correcting some grave errors that might
be committed by the subordinate courts. The present petition though
filed in the High Court as one under Articles 226 and 227 could well be
treated under Article 227 of the Constitution.
27. We have not been able to understand as to why it was necessary
for the appellants to implead the first respondent as a party to the
proceedings. There are no allegations of personal bias against the
presiding officer. A court is not to be equated with a tribunal exercising
quasi-judicial powers. We would, therefore, strike out the name of the
first respondent from the array of the parties.
28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of course. It
is not that the complainant has to bring only two witnesses to support
his allegations in the complaint to have the criminal law set into
motion. The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of allegations made in
the complaint and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully scrutinise
the evidence brought on record and may even himself put questions to
the complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the accused.”
In this case, the Supreme Court has observed that the accused can
be acquitted by the court at any stage of the case and accused can
approach the High Court for quashing the proceeding by filing a petition
under Section 482 of Cr.P.C. and also under Article 227 of the
Constitution of India.
14. In a case of Prafulla Kumar Samal (supra), the Supreme Court
has taken the same view as has been taken in abovecited cases and
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observed that in a petition of Section 227 of Cr.P.C. the accused can
seek quashing of charges framed against him.
15. In the case of Century Spinning and Manufacturing Co. Ltd.
(supra), it is observed by the Supreme Court that the Court can
discharge the accused at any stage of the case if after appreciating the
material produced by the prosecution it is found that the charges are
groundless.
16. Further, in the case of Mahmood Ali (supra), the Supreme Court
has reiterated the powers of the High Court provided under Section 482
of the Code of Criminal Procedure and Article 227 of the Constitution of
India. The relevant paragraph is as under:-
“12. At this stage, we would like to observe something important.
Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal Procedure
(CrPC) or extraordinary jurisdiction under Article 226 of the
Constitution to get the FIR or the criminal proceedings quashed
essentially on the ground that such proceedings are manifestly
frivolous or vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court owes a duty
to look into the FIR with care and a little more closely. We say so
because once the complainant decides to proceed against the accused
with an ulterior motive for wreaking personal vengeance, etc., then he
would ensure that the FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure that the averments
made in the FIR/complaint are such that they disclose the necessary
ingredients to constitute the alleged offence. Therefore, it will not be
just enough for the Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining whether the
necessary ingredients to constitute the alleged offence are disclosed or
not. In frivolous or vexatious proceedings, the Court owes a duty to
look into many other attending circumstances emerging from the
record of the case over and above the averments and, if need be, with
due care and circumspection try to read in between the lines. The Court
while exercising its jurisdiction under Section 482 of the CrPC or
Article 226 of the Constitution need not restrict itself only to the stage
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CRA-14633-2023of a case but is empowered to take into account the overall
circumstances leading to the initiation/registration of the case as well
as the materials collected in the course of investigation. Take for
instance the case on hand. Multiple FIRs have been registered over a
period of time. It is in the background of such circumstances the
registration of multiple FIRs assumes importance, thereby attracting
the issue of wreaking vengeance out of private or personal grudge as
alleged.”
17. This Court has no hesitation to say that the Court can exercise the
power for quashing the proceeding at any stage of the trial, but for that,
the Court should have sufficient reason to do so. Here in this case, this is
an appeal challenging the order passed by the trial Court at the time of
framing of charges exercising the powers provided under Section 228 of
Cr.P.C. and at the same time, it is to see whether the power provided
under Section 227 of the Cr.P.C. can be exercised to discharge the
accused considering the material placed before the Court. Further, this
Court has to see whether the trial Court had an occasion to discharge the
accused under Section 227 of Cr.P.C. while framing charges.
18. However, the submissions made by the counsel for the appellants
and the cases relied upon by him is an indication to take the Court into a
field of suspicion against the accused so that the Court can discharge
them in view of the legal position as has been laid down by the Supreme
Court in number of cases on which the counsel for the appellants has
placed reliance.
19. I have considered the contents of FIR and the material collected
by the prosecution during the course of investigation and after
considering the same, this Court is of the opinion that though the whole
incident as narrated by the ‘victim’ creates some suspicion that as to
why she has not approached the police in time, but at the same time, the
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evidence collected by the prosecution demands its appreciation so as to
prove the correctness of the same. There was a money transaction
between the accused/ appellant and the ‘victim’ and the same was done
through bank and evidence in this regard has to be examined by the
Court.
20. However, the story as narrated by the ‘victim’ and projected by
the prosecution is that at the first instance, when first report was made to
the police, there was no allegation of commission of rape. The offence
under Section 354 of I.P.C. was registered on the basis of her first
statement recorded under Section 161 of Cr.P.C. dated 27.08.2021.
Although in that statement, she has not explained anything about
commission of rape, but later on, developing the story, she made a new
complaint to the police on 21.03.2022, in which, she has narrated about
commission of rape. The second statement of 161 was recorded on
06.04.2022 and again 161 statement was recorded on 12.07.2022, as
such, the police recorded the 161 statement of the ‘victim’ four times.
21. The statement of 164 of the ‘victim’ was recorded on 31.08.2021,
but the incident of 2021 was not disclosed by her in her statement.
However, taking somersault by the ‘victim’; recording her 161 statement
four times; and in 164 statement not disclosing the incident of
commission of rape creates grave suspicion against the
accused/appellants and the conduct of the ‘victim’ that too supported by
the prosecution, not giving any explanation for recording her 161
statement time and again creates doubt that the ‘victim’ is not narrating
the correct story to the police and trying to implicate the appellants in
the alleged crime.
17
CRA-14633-2023
22. Considering the constant view of the Supreme Court in the cases
relied upon by the counsel for the appellants, in my opinion, the trial
Court at the time of framing of charges has not considered all these
aspects and it has not applied its mind judiciously whereas it made sift
the evidence for the limited purpose so as to form an opinion whether
prima facie case is made out against the accused/appellants on the basis
of material produced by the prosecution, but at the same time, the Court
has to consider whether the material placed before it discloses grave
suspicion against the accused or not and that aspect is completely
missing from the order of the trial Court. Considering the overall
circumstances, in my opinion, it is a case in which the conduct of the
‘victim’ creates doubt upon her story and it discloses grave suspicion
against the accused/appellants and as such, it appears to be a malicious
prosecution as only on the basis of material collected, charges levelled
against the appellants just to drag them in a prosecution, but they are to
be discharged.
23. Under such circumstances, the order passed by the trial Court
dated 28.06.2023 framing charges against the appellants is only on the
basis of suspicion created against them and the story of the ‘victim’
creates doubt. Therefore, the order dated 28.06.2023 is hereby quashed.
The offence registered against the present appellants vide Crime
No.633/2021 is accordingly quashed.
24. Ex consequentia, the appeal is allowed.
(SANJAY DWIVEDI)
JUDGE
ac/-
ANIL CHOUDHARY
2024.12.16 12:24:59
+05’30’