Madhya Pradesh High Court
Smt.Rajshree Saxena vs The State Of Madhya Pradesh on 20 May, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No.3830/2019
Smt. Rajshree Saxena
Vs
State of M.P.
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Shri R.K. Patel, learned counsel for the petitioner.
Ms. Anjna Kurariya, learned G.A. for the respondent/State.
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ORDER
(20.05.2020) This revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioner being aggrieved by the order dated 29.04.2019 in S.T. No. 280/2019 passed by 10 th Additional Sessions Judge, Bhopal, whereby the learned ASJ has framed the charge for the offence punishable under Sections 363 and 370 (1) of IPC against the petitioner.
2. According to the case, on 26.06.2018, a missing complaint of the prosecutrix i.e. minor daughter of one Maya Kewat was lodged informing that on 25.06.2018, her daughter went out of the house to attend coaching classes but she did not return back. She expressed her suspicious that somebody had taken her daughter away. Hence, the police has registered the FIR under Section 363 IPC against unknown person. Thereafter, the police has recovered the girl (prosecutrix) from the hostel premises under the ownership of the petitioner. After completing the investigation, the police has filed the charge-sheet for the offence of Sections 363 and 370 (A)(1) of IPC. 2 Cr.R. No. 3830/2019
3. Learned counsel for the petitioner submits that on reading the FIR and statements of the prosecutrix, no offence is made out against the petitioner. He further submits that the prosecutrix has left her house as she was not satisfied with the atmosphere of society where she resided. The petitioner has given shelter to her. There is no material available in the case-diary which shows that the petitioner kept her forcefully or harassed her, even then the trial Court has framed the charge of aforesaid offences. The petitioner is running a hostel and she has permission in this regard. The prosecutrix has also filled the application form before entering into the hostel stating her age as 18 years. The petitioner never abducted or kidnapped the prosecutrix rather she provided shelter to her, the prosecutrix willfully came to her, hence, no case under Section 363 IPC is made out against the petitioner. So far as Section 370(1) IPC is concerned, same is related to human trafficking by selling or buying a person for the purpose of exploitation and in this case, there is no allegation which shows that the petitioner did anything which attract the offence of Section 370 IPC. Since, no ingredient is fulfilled to constitute the aforesaid offences, therefore, order of trial Court of framing charges deserves to be quashed. With the aforesaid submissions, he prays for allowing this petition.
4. On the other hand, learned panel lawyer for the respondent/State opposes the petition submitting that there is sufficient material available on record for framing the charges of the aforesaid offences. She further submits that for the purpose of exploitation, the petitioner has kidnapped the minor prosecutrix and 3 Cr.R. No. 3830/2019 harassed her by engaging her in household works. The petitioner knew the fact that the prosecutrix was minor, even then she did not take pains to inform the parents of the prosecutrix, rather she started exploiting her which shows that the petitioner's bad intention towards the prosecutrix. Apart from that, at this initial stage of trial, this revision petition may not be allowed, the petitioner may raise all the grounds before the trial Court at appropriate stage of trial.
5. Heard all the parties and perused the charge sheet filed by the petitioner.
6. Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since, by way of filing this revision petition, the petitioner has challenged the charge framed by the learned trial Court, therefore, I would prefer to deal with the provision of Section 227 of Code Of Criminal Procedure, 1973, the same reads as under:
"227. Discharge. 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."
7. If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure, 1973, comes into role, provision is also quoted as under:
"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-4 Cr.R. No. 3830/2019
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
8. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-
settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face- value disclose the existence of all 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 is opposed to common sense or the broad probabilities of the case."
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9. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366), the Hon'ble Supreme Court again has held as under:-
"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 Judge cannot act merely as a Post office or a mouth-
piece 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."
10. Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of 6 Cr.R. No. 3830/2019 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."
11. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has also held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which 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 defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:7 Cr.R. No. 3830/2019
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (emphasis supplied)
12. In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018) 16 SCC 299 wherein the Hon'ble Supreme Court has held that petitions challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
13. Therefore, it is manifested that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
14. Now, it is also necessary to read the relevant provisions of IPC, of which charge is framed against the petitioners. The trial 8 Cr.R. No. 3830/2019 Court has framed the charge of offence under Section 363 and 370 (1) IPC. Section 306 IPC is reproduced herein under:-
363. Punishment for Kidnapping - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
15. Under the IPC, Kidnapping is defined from Section 359 to 361, which read as under :-
359. Kidnapping.--Kidnapping is of two kinds:
kidnapping from [India], and kidnapping from lawful guardianship.
360. Kidnapping from India.--Whoever conveys any person beyond the limits of [India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from [India].
361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. (Exception) --This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
16. Further, Section 370 IPC is also reproduced herein under:-
370. Trafficking of person - (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First - using threats, or Secondly- using force, or any other form of coercion, or Thirdly - by abduction, or Fourthly - by practising fraud, or deception, or 9 Cr.R. No. 3830/2019 Fifthly - by abuse of power, or Sixthly - by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanations 1. - The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanations 2.The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
17. On careful reading of the provisions regarding kidnapping, it is found that kidnapping is of two kinds, first, kidnapping from India and second, kidnapping from lawful guardianship. The present case is of second kind as according to 10 Cr.R. No. 3830/2019 prosecution, the prosecutrix was minor aged about 14 years at the time of incident and she has been kept by the petitioner in city itself. Although, in the copy of charge-sheet, I could not find any documentary proof regarding date of birth of the prosecutrix but looking to the fact that in the petition, the petitioner has not challenged the ground of her age, hence, I found that there is no dispute regarding the age of the prosecutrix.
18. Further, after minutely reading of the Sections from 359 to 361 of IPC, the necessary ingredients of the offence of Kidnapping from lawful guardianship, are:-
1. Taking or enticing away a minor or a person of unsound mind;
2. Such minor must be under 16 years of age if a male, or under 18 years of age if a female;
3. Such minor or person of unsound mind must be in the keeping of a lawful guardian;
4. The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and
5. Such taking or enticing must be without the consent of such guardian.
19. Further, on reading about the legal enforceability of Section 370 IPC, I find that whoever, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives, a person or persons, by using threats, force, any other form of coercion or by abduction, practicing fraud, deception, abuse of power, inducement including the giving or receiving of payments or benefits in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.11 Cr.R. No. 3830/2019
20. Now in view of the aforesaid legal position, I proceed to examine the facts of the case. In the case in hand, on perusal of charge, it is found that the Court framed the charge of Section 363 IPC stating that the petitioner kidnapped the minor prosecutrix from the lawful guardianship of her parents by keeping her without taking the consent of her parents. Contents of charge of Section 363 IPC is reproduced hereinunder :-
izFke% &^^ vkius fnukad 25-06-2018 dks ;k mlds yxHkx eYVh u- 23] ,l 2] bank uxj 'kkgiqjk Hkksiky ls vfHk;ksD=h ckfydk tks 18 o"kZ ls de vk;q dh Fkh] dks fof/kiw.kZ laj{krk esa ls mlds laj{kd dh lEefr ds fcuk vkius lkFk j[kdj fof/kiw.kZ laj{krk esa ls O;igj.k fd;k vkSj ,slk dj vkius og vijk/k dfjr fd;k tks Hkk-n-la- dh /kkjk 363 ds varxZr n.Muh; gksdj bl U;k;ky; ds laKku esa gS A^^
21. Further, in relation to charge of Section 370(1) IPC, the Court stated that for the purpose of exploitation, the petitioner abducted the prosecutrix by sheltering her and also trafficking her. The contents are also quoted as under :
f}rh;% &mDr fnukad le; o LFkku ij ;k mlds yxHkx vkids }kjk 'kkks"k.k ds iz;kstu ls vfHk;ksD=h dk vigj.k dj laJ; fn;k tkdj mldk nqO;kZikj fd;k vkSj ,slk dj vkius og vijk/k dkfjr fd;k tks Hkk-n-la- dh /kkjk 370 1 ds varxZr n.Muh; gksdj bl U;k;ky; ds laKku esa gS A
22. Hence, it appears that the Court has framed the charge of 370(1) IPC against the petitioner on the basis of third kind of Section 370(1) IPC i.e. Abduction.
23. The police has recorded the statement of prosecutrix under Section 161 Cr.P.C., in which she specifically stated that due to tease by the local boys, she left her house and went to hostel of the petitioner for getting a room. She stated that the petitioner asked her the reason for living separately from her parents and the prosecutrix narrated her 12 Cr.R. No. 3830/2019 difficulty. The petitioner has suggested her to mention different address. She further stated that the petitioner offered to stay in a room without rent in lieu of performing the household works. Thereafter, the petitioner made her forced to do all household works. On 27.06.2018, when she told the petitioner to make a call to her mother, the petitioner refused to do so. On 29.06.2018, with the help of another girl, she made a call to her mother who took her from the hostel. She stated that nothing wrong was committed with her while residing in the hostel.
Further, the statement of prosecutrix under Section 164 Cr.P.C was also recorded in which she again stated that she left her house being upset by the comments of local boys. She alleged that the petitioner made her to fill wrong information in the form while admitting in hostel and thereafter compelled her to do all household works. The petitioner refused her to make call to her mother.
24. On careful reading of both the statements of the prosecutrix, I find that the petitioner and prosecutrix never introduced to each other before the incident. The petitioner neither took her away from the lawful guardianship of her parents nor enticed her to leave her house. There is no intention found on the part of petitioner to kidnap the prosecutrix for any purpose. The prosecutrix wilfully entered into the petitioner's hostel and the petitioner gave her shelter after knowing her difficulties, although it seems that the petitioner did not take the formalities seriously before admitting a girl in hostel, which ought to have been taken by her. She did not take pains to get any identity proof from the girl or call her parents. But, these things are not sufficient to constitute the offence of kidnapping.
13Cr.R. No. 3830/2019
25. In the case S. Varadarajan v. State of Madras, AIR 1965 SC 942, the Hon'ble apex Court considered the findings of the case Nura v. Rex reported in AIR 1949 All 710, in which the High Court of Aallahabad dealt with the similar situation and held as under :
"There can also be no doubt that, so far as the legal position is concerned, if a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another, who treats her with kindness, or at least without employing any force or practising any fraud on her, he cannot be held guilty under section 361 Penal Code, 1860. This was held by a Bench of this Court in Emperor v. Ram Chander [A.I.R. 1914 All. 379.] and by TUDBALL, J., in Emperor v. Ewaz Ali [(1915) I.L.R. 37 All. 624.] ."
26. In the present case, the prosecutrix is also minor and wilfully entered into the hostel of the petitioner being upset from the tease of local boys. No doubt, the part played by the accused/petitioner could be regarded as facilitating the fulfilment of the intention of the girl. Mere consent of a person in giving shelter to the minor, does not amount to taking or enticing the minor which are necessary ingredients for constituting the offence of Section 363 IPC. Therefore, no charge of offence under Section 363 IPC is made out against the petitioner.
27. As far as charge of Section 370 (1) IPC is concerned, it appears from the above said discussion that for framing the charge of Section 370 (1) IPC, there should be some exploitation with purpose to be shown in sheltering the prosecutrix. The Court framed the charge of aforesaid section alleging the act of abduction which is prima facie not found to be constituted in the present circumstances but it appears that the petitioner let the prosecutrix do all household works, the prosecutrix herself stated that after hearing her needs for a room, the 14 Cr.R. No. 3830/2019 petitioner offered her to stay in a room in lieu of doing household works. Hence, it prima facie seems that the petitioner gave her shelter to the purpose of her exploitation even knowing the fact that the prosecutrix was minor and truthfulnes of said fact can only be investigated in trial after aducing the evidence. It is well settled principle of law that the Court can also frame the charge on the basis of grave suspicion. Therefore, charge of Section 370(1) IPC seems correct and do not require any interference of this Court.
28. Hence, the petition is partly allowed and the impugned order dated 29.04.2019 in S.T. No. 280/2019 passed by 10 th Additional Sessions Judge, Bhopal, is partly quashed in relation to charge of Section 363 IPC. The petitioner is discharged from the offence of Sections 363 IPC. The trial shall be continued against the petitioner in relation to offence of Section 370(1) IPC.
29. C.C. as per rules.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.05.20 15:19:36 +05'30'