Madhya Pradesh High Court
Mayank Jain vs The State Of Madhya Pradesh on 20 September, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1 Cr.R. No. 5940/2019
IN THE HIGH COURT OF MADHYA PRADESH
ATJABALPU R
BEFORE
JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL REVISION No.5940 OF 2019
BETWEEN:-
MAYANK JAIN, AGED ABOUT 33 YEARS, SON OF SHRI
ABHAY JAIN, OCCUPATION PRIVATE SERVICE,
RESIDENT OF HOUSE NO. 46, JAIN MANDIR ROAD
CHOWK, PS KOTWALI, BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI IMTIAZ HUSAIN - SENIOR ADVOCATE WITH SHRI
RAVI KANT PATEL-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
P.S. HABIBGANJ, BHOPAL (MADHYA
PRADESH)
2. ANNAPURNA SHARMA, AGED ABOUT 32 YEARS,
DAUGHTER OF THE LATE RAMGOPALJI
SHARMA, RESIDENT OF HOUSE NO. 106, AADI
HEIGHTS, GUFA MANDIR ROAD LALGHATI,
BHOPAL (MADHYA PRADESH)
.... RESPONDENTS
(SHRI SOMESH GUPTA- PANEL LAWYER AND SHRI DEVENDRA
KUMAR GANGRADE- ADVOCATE FOR THE OBJECTOR)
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Reserved on : 06.09.2023
Pronounced on : 20.09.2023
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This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
2 Cr.R. No. 5940/2019
pronounced the following:
ORDER
The petitioner has filed this revision petition under Section 397/401 of Cr.P.C. against order dated 02.11.2019 passed by 10 th Additional Sessions Judge, Bhopal, in Session Trial No. 1010/2019, whereby charges under Section 494, 495, 376(2)(N) and 506-II of IPC have been framed against the petitioner.
2. Briefly facts relevant for the disposal of present revision are that on 07.03.2019, prosecutrix lodged a written report at police station Habibganj to the effect that presently she is working at Alankar Jewellers, New Market and before that, she was working in Old City at a shop of her acquaintance and at that shop after some days, a boy named Mayak Jain came there to learn the work. Gradually she & Mayank Jain became friends. Later on, prosecutrix left the job from there and started working in New Market at Agrawal Jewellers, where Mayank Jain used to come to pick up & drop her there. On 18.01.2019, she (prosecutrix) and Mayank Jain solemnized marriage at Arya Samaj Mandir, Mahaveer Nagar, Bhopal. After marriage, she started residing in Lal Ghati. In the meantime, she came to know that Mayank Jain has already solemnized marriage with Prachi Jain on 01.01.2019 at Nehru Nagar, Arya Samaj Mandi. Thus, by misleading her, Mayank Jain, without informing her, had solemnized marriage, notwithstanding that he (Mayank Jain) was having a wife at the time of marriage. When she discussed about second marriage with Mayank Jain, then, he threatened her that if she speaks anything or tells anybody, then, he will kill her.
3. On the basis of above written report, FIR No. 177/2019 under 3 Cr.R. No. 5940/2019 Section 494 and 506 of IPC was registered at P.S. Habibganj against the petitioner. Later on, prosecutrix filed another written application on 04.04.2019, wherein she alleged that petitioner, on the pretext of marriage, has sexually exploited her and also forcefully established sexual relations with her on 05.02.2019. Thereafter, after completion of investigation, charge-sheet under Section 494, 495, 506 and 376(2)(n) of IPC was filed against the petitioner. Vide impugned order, learned trial Court framed charges under Section 494, 495, 506-II and 376(2)
(n) of IPC against the petitioner. Being aggrieved by the above order, petitioner has filed present criminal revision.
Submissions of Learned Senior Counsel for Petitioner:-
4. Learned senior counsel, at the outset, submits that as per first schedule of Cr.P.C., offences under Section 494 and 495 of IPC are non-cognizable and in view of Section 198 of Cr.P.C., no cognizance with respect to above offences can be taken without written complaint and complaint is defined in Section 2(d) of Cr.P.C. and in the instant case, no complaint has been filed by the complainant. Police cannot investigate a case relating to non-cognizable offence without permission of concerned Magistrate. Therefore, in view of Section 198 of Cr.P.C., cognizance with respect to above offence is barred.
5. Learned senior counsel for the petitioner, after referring to written report dated 07.03.2019, 04.09.2019, statements of prosecutrix under Section 161/164 of Cr.P.C. etc. submits that initially on 07.03.2019, written report was lodged by prosecutrix and therein no facts about rape/sexual exploitation were mentioned and only in written report dated 04.04.2019, facts of sexual exploitation/rape have 4 Cr.R. No. 5940/2019 been mentioned. It is also urged that at the time of filing of written report dated 07.03.2019, prosecutrix was having knowledge of facts about sexual exploitation/rape as mentioned in written report dated 04.04.2019, still facts mentioned in written report dated 04.04.2019 were not mentioned in written report dated 07.03.2019. Learned senior counsel has also submitted that perusal of written reports lodged by prosecutrix and prosecutrix's statement recorded under Section 161/164 of Cr.P.C. reveal that there are material contradictions and prosecutrix has made material improvements and she is changing statement repeatedly and she is trying to make the offence more serious. It is also submitted that at the time of alleged marriage with the petitioner on 18.01.2019, prosecutrix was herself married and there is no evidence with regard to divorce of prosecutrix with her previous husband.
6. Learned senior counsel placing reliance upon the judgment in Pramod Suryabhan Pawar Vs. State of Maharashtra, AIR 2019 SC 4010, submits that in the facts of the case, it cannot be said that petitioner has made any promise/false promise with respect to marriage and it cannot be said that on the pretext of false marriage petitioner has established sexual relations with prosecutrix. It is true that at the stage of framing of charge, evidence cannot be evaluated minutely but in the instant case, facts on the record itself show that prima facie, no offence under Section 494, 495, 376(2)(n), 506-II is made out.
7. On above grounds, it is prayed that learned trial Court has erred in law as well as on facts in framing charges under Section 494, 495, 506-II and 376(2)(n) of IPC against the petitioner. Hence, the 5 Cr.R. No. 5940/2019 impugned order be set aside and petitioner be discharged.
Submissions of Learned Counsel for Respondent State as well as learned counsel for the objector:-
8. Learned counsel for the respondent state as well as learned counsel for the objector submits that firstly petitioner solemnized marriage with one Prachi Jain on 01.01.2019 and later on petitioner solemnized marriage with prosecutrix on 18.01.2019. There is sufficient evidence on record with respect to above. Prosecutrix's marriage with her previous husband Vishal Dubey was dissolved on 08.12.2015 by order of competent Court. Even after marriage with Prachi Jain, petitioner established sexual relation with prosecutrix.
Previously also on the pretext of marriage, petitioner established sexually exploited prosecutrix.
9. Learned counsel for the respondent, after placing reliance upon Tej Bir and another Vs. State of Haryana and another, (2011) 11 SCC 556, State of MP Vs. S.B. Johari and others, (2000) 2 SCC 57, Rajendra Soni and others Vs. State of MP, (Cr.R. No. 1211/2011) decided on 19.08.2011, Pankaj Dosaj and others Vs. State of MP and another (Cr.R. No. 346/2007) decided on 09.03.2010, Munendra Sharma Vs. State of Mp and another (Cr.R. No. 899/2019), order dated 09.05.2019, Gajendra Singh Vs. State of MP (Cr.R. No. 2610/2019) order dated 04.10.2019 has submitted that at the stage of framing of charge, minute assessment/evaluation of evidence is not required and only prima facie case is to be seen and on above grounds, learned counsel for the respondent state as well as objector submits that learned trial Court has not committed any error in framing charges 6 Cr.R. No. 5940/2019 against the petitioner. Therefore, present revision petition is liable to be dismissed.
Legal Principles applicable in regard to framing of charge/an application seeking discharge:-
10. Before proceeding further & examining the facts of the case, I would like to refer basic/fundamental legal Principles applicable in regard to framing of charge/an application seeking discharge.
11. Hon'ble Apex Court in M.E. Shivalingamurthy Vs. Central Bureau of Investigation, (2020) 2 SCC 768, after referring to (2011) 14 SCC 608, State of A.P. V. Obulapuram Mining Co. (P) Ltd., (2010) 2 SCC 398, P. Vijayan V. State of Kerala, (2005) 1 SCC 568, State of Orissa V. Debendra Nath Padhi. (2002) 2 SCC 135, Dilawar Balu Kurane v. State of Maharashtra, (1995) 4 SCC 181, State of J &K V. Sudarshan Chakkar, (1979) 3 SCC 4, Union of India Vs. Prafulla Samal, has held as under:-
"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another (2010) 2 SCC 398 and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused. 17.2. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully 7 Cr.R. No. 5940/2019 accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. viii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC (See State of J & K v. Sudershan Chakkar (1995) 4 SCC). The expression, "the record of the case", used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the 3 AIR 1995 SC 1954 charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (See State of Orissa v. Debendra Nath Padhi (2005) 1 SCC
568).
28. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no 8 Cr.R. No. 5940/2019 offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused.
29. It is not open to the accused to rely on material by way of defence and persuade the court to discharge him.
30. However, what is the meaning of the expression "materials on the basis of which grave suspicion is aroused in the mind of the court's", which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage?
31. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him."
Analysis of the case:-
12. Having set out the legal principles, as aforesaid, facts of the case will be examined in the light of above legal principles.
13. So far as grounds taken by the petitioner in the revision petition and submissions of learned senior counsel for the petitioner with respect to bar under Section 198 of Cr.P.C. relating to offences under Section 494 and 495 of IPC is concerned, it is not in dispute that as per first scheduled of Cr.P.C. offences under Section 494 and 495 of Cr.P.C. are non-cognizable and as per Section 198 of Cr.P.C.
cognizance with respect to above offences can only be taken on the basis of written complaint and complaint is defined in Section 2(d) of Cr.P.C.
14. In the instant case, perusal of written report dated 07.03.2019 9 Cr.R. No. 5940/2019 reveal that therein, apart from allegations with respect to second marriage, allegation about threat to kill has also been made. Therefore, on the basis of above written report, FIR under Section 494 and 506 was registered against the petitioner and as per first schedule of Cr.P.C., offence under Section 506 is cognizable. Later on, on the basis of written report dated 04.04.2019 and during investigation, offence relating to Section 376 was also added and after completion of investigation, charge-sheet under Section 494, 495, 506 and 376(2)(n) of IPC has been filed against the petitioner.
15. In above factual backdrop and with respect to learned senior counsel's above submission, Section 155(4) of Cr.P.C., is relevant which reads as under:-
"(4) Where a case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
16. In this connection, I would also like to refer the judgment in the case State of Orissa Vs. Sharat Chandra Sahu and another, AIR 1997 SC 1, wherein Hon'ble Apex Court, in para 12, has held as under:-
"12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non- cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in 10 Cr.R. No. 5940/2019 investigating both the offences as the legal fiction enacted in Sub-section (4) provides that even non- cognizable."
17. Therefore, in view of above legal position, coupled with facts of instant case, in this Court's considered opinion, learned trial Court has not committed any illegality in taking cognizance and proceeding further with respect to offences under Section 494 and 495 of IPC.
18. So far as second limb of submissions made by learned senior counsel and grounds taken in the petition are concerned, it is true that in written report dated 07.03.2019, there is no mention with respect to offence relating to Section 376 of IPC/establishing sexual relation on the pretext of false marriage etc. as mentioned in written report dated 04.04.2019 and it cannot be said that prosecutrix was not in the knowledge of/was not aware of facts mentioned in written report dated 04.04.2019, when she lodged first written report on 07.03.2019.
19. It is evident from the legal position/legal principles as discussed/referred in preceding paras and as mentioned in Tej Bir (supra), S.B. Johari (supra), Rajendra Soni (supra), Pankaj Dosaj (supra), Munendra Sharma (supra), Gajendra Singh (supra) that at the stage of framing of charges minute assessment/evaluation of evidence is not possible/not required and at the stage of framing of charge, Court has to see whether there is sufficient grounds to proceed further and even in case of grave suspicion, Court is empowered to frame charge.
20. In the instant case, in this court's considered opinion, it cannot be said that prima facie additional facts mentioned in written report dated 04.04.2019 are false and no such conclusion can be drawn at this stage to outrightly reject them, solely on the ground that they were not 11 Cr.R. No. 5940/2019 mentioned in the first written report dated 07.03.2019. It is a matter which can be decided only after recording of evidence and it has to be got clarified during examination of prosecutrix as to why facts relating to rape/sexual relations etc. mentioned in written report dated 04.04.2019 were not mentioned in her earlier report dated 07.03.2019/statements recorded under Section 161/164 of Cr.P.C. etc. Further, whether after solemnizing marriage with some one else & during subsistence of such marriage & without disclosing fact of earlier marriage to other person, a person again marries some other person & as a necessary corollary of such marriage establishes sexual relations with such person, as is the present case, then, such act would constitute rape or not, is a matter which can be only be decided after recording of evidence and after evaluation of evidence. Hence, even assuming that on the date of written report dated 07.03.2019, facts mentioned in written report dated 04.04.2019 were in the knowledge of prosecutrix/she was aware of the same, is inconsequential at this stage . Therefore, in view of above, law laid down by the Hon'ble Apex Court in Pramod Suryabhan Pawar (supra) does not apply at this stage.
21. Therefore, if documents attached with the charge-sheet/facts of the instant case, as above, are examined in the light of above legal position with respect to ingredients/requirements necessary to constitute offence u/s 494, 495, 376(2)(n) and 506-II of IPC, along with law laid down by Hon'ble Apex Court in M.E. Shivalingamurthy (supra), Tej Bir (supra), S.B. Johari (supra), Rajendra Soni (supra), I am of the considered opinion that learned trial Court has not committed any illegality/perversity in framing charges under Section 494, 495, 376(2)(n) and 506-II of IPC against the petitioner.
12 Cr.R. No. 5940/201922. At this stage, I would also like to refer observations of Hon'ble apex court in State Vs. R. Soundirarasu AIR 2022 SCC 4218, which are as under:-
"77. This Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, has held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction."
23. Hence, considering the overall facts and circumstances of the case, this Court is of the considered opinion that the learned trial Court did not commit any illegality in framing charges under Section 494, 495, 376(2)
(n) and 506-II of IPC against petitioner. Accordingly, instant revision petition filed by the petitioner is dismissed & the impugned order dated 02.11.2019 passed by 10th, Additional Sessions Judge, Bhopal in ST No. 1010/2019, is hereby affirmed.
24. Accordingly, this criminal revision is disposed off.
(ACHAL KUMAR PALIWAL) JUDGE Digitally L.R.signed by LALIT SINGH RANA Date: 2023.09.20 18:22:23 +05'30'