Allahabad High Court
Annu Shukla vs State Of U.P. Thru. Prin. Secy. Home And ... on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- APPLICATION U/S 482 No. - 8256 of 2022 Applicant :- Annu Shukla Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Applicant :- Shashank Shukla Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Sri Shashank Shukla, learned counsel for the applicant and learned A.G.A. for the Stat as well as perused the record.
The instant application under Section 482 Cr.P.C. is moved by the applicant namely Annu Shukla with following prayer:-
"That this Hon'ble Court most graciously be pleased to quash the charge sheet no.01 dated 05.08.2018 in Case Crime No.068 of 2018 dated 15.03.2018, under Section 376, 420 I.P.C. and on the basis of that the order of charge framed in S.T. No.806 of 2022 dated 23.09.2022 by the District Judge, Gonda and any other relief as may be deemed just fit and proper in the circumstances of the case."
Learned counsel for the applicant while referring to the charges framed against the applicant vide order dated 23.09.2022 submits that the trial court against all norms and settled principles of law had framed the charges under Section 376 and 420 I.P.C. while it was evident on record that even if all the facts and material collected by the Investigating Officer is taken on its face, the ingredients of Section 376 and 420 I.P.C. are not attracted and, there was no material with the trial court to have framed the charges under Section 376 and 420 I.P.C. Therefore, all the proceedings pending before the learned trial court as well as the order whereby the charges have been framed are liable to be set aside.
It is also submitted that it is admitted to the prosecutrix that they were having relations with each other on voluntarily basis and, therefore, it is a case of consent and, thus, the charge under Section 376 I.P.C. could not be made out.
Learned counsel for the applicant has also relief on the judgment of Hon'ble the Supreme Court in the case of Uday Vs. State of Karnataka reported in (2003) 4 SCC 46.
Learned A.G.A. on the other hand submits that at the stage of framing of charge, only an opportunity of being heard is required to be provided to the accused and beyond that no other favour or concession could be accorded and a charge is to be framed on the basis of material collected by the Investigating Officer and has been forwarded to the trial court under Section 73(2) and, thus, no illegality appears to have been committed by the trial court.
Having heard learned counsel for the parties and having perused the record, the only grievance of the applicant-accused appears to be that the prosecutrix was a consenting party and this aspect of the matter has not been considered by the trial court while framing the charges against the applicant under Section 376 I.P.C. and there was no element of wrongful gain and wrongful loss, therefore, charge under Section 420 I.P.C. could not be attracted.
So far as the law with regard to the framing of charge and discharge is concerned, the same is now no more res integra.
In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606, considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether, there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
Hon'ble Supreme Court in the case of State- Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam reported in 1999 Supreme Court Cases (Cri) 373 has held as under:
"5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above- quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that......."
Hon'ble Supreme Court in the case of State of Delhi Vs. Gyan Devi and others (2008) 8 Supreme Court Cases 239, held as under:
"7. .....The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."
Hon'ble Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 has held as under:
20. ........ It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. 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.
(vii) 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.
Hon'ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 has held as under:
6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. ..
7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173' and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code, No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the light of the provisions of the old code of 1898, makes the position more clear. In the old code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207(a) was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207(a). Under Section 207(a) in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under Sub-section (1), to take evidence as provided in Sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in Sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in Sub-section (6) and to commit the accused for trial after framing of charge as provided in Sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in Sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in Sub-section (14). The aforesaid Sections 207 and 207(a) have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge."
Thereafter Honble Apex Court by referring to the ratio laid down in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606, State of Delhi v. Gyan Devi and Ors. MANU/SC/0649/2000 , State of Madhya Pradesh v. S.B. Johari and Ors. MANU/SC/0025/2000 : 2000CriLJ944 State of Maharashtra v. Priya Sharan Maharaj and Ors. MANU/SC/1146/1997: 1997CriLJ2248 and State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam 1999 SCC (Crl.) 373 wherein the Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons and also held that 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, can not show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial and at the stage of framing of charge there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The above mentioned decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The Supreme Court further held that judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by the Supreme Court.
It was thus concluded that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to find 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 Hon'ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others (1979) 4 SCC 274 has held as under:-
"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed! before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. 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 CrPC, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as 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 the offence."
Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others (2014) 11 SCC 709 has held as under:-
"The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused.
31.1 Under Section 227 of the Code, the trial Court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction".
31.2 Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3 Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the Court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay MANU/SC/0198/1986 : (1986) 2 SCC 716. The same reads as follows:
43...Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed."
The above-mentioned law reports would demonstrate evidently that the duty of the trial court at the stage of Section 227 Cr.P.C. is to assess the sufficiency of the material for the purpose of framing of charges. It is also to be recalled that the sufficiency of evidence or material should not be so as is required for the purpose of conviction. It is only with regard to the moving further in the proceedings.
Coming back to the factual matrix of the instant case, this Court has perused the allegations levelled in the first information report which was lodged by none other than the prosecutrix herself as well as her statements recorded under Section 161 and 164 Cr.P.C. In the first information report as well as the statements recorded under Section 161 and 164 Cr.P.C., it is categorically stated by the victim/prosecutrix that the physical relations were made by the applicant-accused with her after giving false promise of marriage and that implies that the false promise to marry was given earlier in time and, thereafter, the physical relations were made. In her statement recorded under Section 164 Cr.P.C., the prosecutrix had gone further and had made other allegations against the applicant-accused apart from the allegations levelled in the first information report and in the statement under Section 161 Cr.P.C. The minor contradictions, which in the opinion of the learned counsel for the applicant are emerging in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., are the subject matter of the trial court to be appreciated during the course of trial and the same could not be appreciated by this Court more so under the jurisdiction of inherent powers recognized under Section 482 Cr.P.C. as at the stage of framing of charge, the case of the prosecution as is emerging on the basis of the first information report and the statements of the prosecution witnesses is taken to be on its face and this Court cannot enter into the area of appreciation of evidence which is earmarked for the trial court.
Thus, for the reasons mentioned herein before, I do not find any illegality so far as the framing of charges against the applicant under Sections 376 and 420 I.P.C. is concerned. The applicant-accused is stated to be on bail. All the grounds or defence on which the applicant is relying may be taken by him during the course of trial.
Thus, for the reasons mentioned herein before, I do not find any substance / merit in the instant application and the same is hereby dismissed as such.
Order Date :- 17.11.2022 Saurabh