Delhi District Court
State vs . Joy George on 3 August, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST
& SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI
SC No.: 217/13
Unique Case I.D. No.02402R0171532013
Date of Argument :02.08.2013
Date of Order :03.08.2013
FIR No.:112/13
PS:Pandav Nagar
U/s 376/377/494/495/420 IPC
State Vs. Joy George
ORDER ON CHARGE
The facts of the prosecution case in brief are
that in the month of October 2012, the prosecutrix
Ms. .... X....., aged about 21 years met with accused Joy
George in a party organized by her brother. In their
various meetings, friendship was developed between them
and accused proposed her for marriage. She accepted the
proposal and ultimately their marriage was solemnized on
10.02.2013according to Christan customs and rites. The accused made physical relation with her many times. Thereafter, accused started avoiding her and ultimately SC No. 217/13 State v. Joy George Page 1 of 9 she came to know that accused had already been married on 8.2.2009 with another girl. Accused told her that he would divorce the first wife and started making physical relationship with the prosecutrix, which she opposed. Despite her resistance/objections, accused made physical relationship with her in natural and unnatural way. When the prosecutrix made enquiries against the accused, she came to know that accused was also living with his first wife. Then she reported the matter to the police and case U/s. 377/394/395 IPC was registered. Accused was arrested. Prosecutrix and the accused were got medically examined. Doctor took their samples, which were sent to FSL for report. After completion of the investigation, police filed a charge sheet against the accused for his trial for the offences punishable u/s 376/377/494/495/420 IPC.
2. I have heard arguments on charge addressed by Ld. Defence Counsel, Counsel for prosecutrix and Ld. Additional Public Prosecutor for the State and perused file.
3. It has been argued on behalf of accused Joy George that on the basis of the allegations only the charge U/s. 377 IPC is made out and there is no sufficient SC No. 217/13 State v. Joy George Page 2 of 9 material available on record to frame charge U/s. 376/494/495/420 IPC. It is submitted that as prosecutrix herself admitted that she was married with the accused, therefore, charge U/s. 376 IPC cannot be framed. A complaint for prosecuting the accused for offence U/s. 494/495 IPC, as per provisions of 198 of Criminal Procedure Code here in after referred as the Code, is required to be filed before the Court. No such complaint was filed. No charge for the offence punishable U/s. 494/495 IPC can be framed.
4. On the other hand, it has been argued on behalf of Addl. Public Prosecutor for the State and the Counsel for the prosecutrix that the marriage was solemnized by concealing the fact of previous marriage and there was no marriage in the eye of law and there was no voluntarily consent for making physical relationship by the prosecutrix. Therefore, there is sufficient material available on record to frame charge against the accused for the offence punishable U/s. 376 IPC. It has been further argued that the written report was submitted to the police and it was duly signed by the prosecutrix and it has fulfilled the requirement of complaint and accordingly, SC No. 217/13 State v. Joy George Page 3 of 9 there is no bar for framing of charge for the offence punishable U/s. 494/495 IPC. It has been further argued that the accused solemnized the marriage with the prosecutrix by telling false particulars and concealing about first marriage therefore, offence U/s. 420 is also made out. They prayed for framing of charge against the accused for the alleged offence.
5. My attention goes to a case Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 (1) wherein the Apex Court observed that:
"10. Thus, on a consideration of 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 proceedings with the trial. (3) The test of 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 SC No. 217/13 State v. Joy George Page 4 of 9 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 trial."
6. Thus, the court at the time of framing of charge as provided under Section 227 of the Cr. P.C., has to see the material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Cr.P.C. Absence of ground for proceeding against the accused means absence of a prima facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage 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 any of the accused. Thus, it is SC No. 217/13 State v. Joy George Page 5 of 9 crystal clear that at the time of forming an opinion on the point of charge, the Court has to form a prima-facie opinion of the matter. No meticulous assessment of evidence is permissible at that juncture.
7. It would be appropriate to reproduce provisions of Section 2 (d) & 198 of the Code and Sections 494 and 495 of IPC. These run as under:
"2. Definitions.- In this Code, unless the context otherwise requires,-***
(d) 'Complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
"198. Prosecution of offences against marriage. -(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:*** (6) No court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.
"494. Marrying again during lifetime of husband or wife. - Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall SC No. 217/13 State v. Joy George Page 6 of 9 be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted. - Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
8. On perusal of file, I find that it has been admitted by the prosecutrix that marriage between the accused and the prosecutrix was solemnized on 10.02.2013 according to Christian rites and customs at the house of maternal uncle (Mama) of the prosecutrix.
9. As per Exception appended to Section 375, which defines offence of rape, sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape. It is not in dispute that prosecutrix is more than 21 years of age. Thus, necessary ingredients for constituting the offence of rape are not available in the present case. Therefore, charge against accused for the offence punishable U/s. 376 IPC is not made out.
SC No. 217/13 State v. Joy George Page 7 of 910. As per provisions of Section 198 of the code, this Court cannot take cognizance for the offence punishable U/s. 494 IPC, Marrying again during lifetime of husband or wife and for the offence U/s. 495 IPC, same offence with concealment of former marriage from person with whom subsequent marriage is contracted. Both these offences fall under chapter XX of IPC. The complaint, as defined U/s. 2(d) of the code, has to be filed by the prosecutrix before the Magistrate.
11. The report dated 5.3.2013 addressed to SHO PS Pandav Nagar cannot be treated as complaint as it was neither addressed to Magistrate nor it was filed before him. Thus, this Court cannot frame charge against the accused Joy George, in spite of the fact that there are allegations and sufficient material on record for constituting offence punishable U/s. 494/495 IPC, due to bar provided U/s. 198 of the Code. The prosecutrix, if she so desires, may file a complaint before Ld. CMM.
12. The other offences, which are left are unnatural offence punishable U/s. 377 and offence of cheating SC No. 217/13 State v. Joy George Page 8 of 9 punishable U/s 417 IPC. These offences are triable by Magistrate.
13. In view of the above reasons and discussions, I am of the view that offence of rape punishable U/s 376 IPC is not made out. There is legal bar for prosecuting the accused for the offences punishable U/s. 494 and 495 IPC. The prosecutrix has to file complaint as defined U/s. 2(d) of the code before Magistrate.
14. As offence of unnatural offence punishable U/s 377 and cheating punishable U/s 417 IPC are triable by the Magistrate, so, this case is remanded back to Chief Metropolitan Magistrate, East District, for the purpose of trial according to law, either by himself/herself or assigning the same to area Metropolitan Magistrate.
15. Accused be produced in the court of Ld. Chief Metropolitan Magistrate, East district at 10 a.m. on 6.8.2013.
Announced in the Open Court Dated:03.08.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No. 217/13 State v. Joy George Page 9 of 9