Madhya Pradesh High Court
Pradeep Kushwah vs The State Of Madhya Pradesh on 27 January, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
CRR-1113-2021
Pradeep Kushwah Vs. State of MP and anr.
Through Video Conferencing
Gwalior, Dated: 27.01.2022
Shri Ashok Jain, Counsel for the applicant.
Shri A.K. Nirankari, Counsel for the State.
This criminal revision under Section 397, 401 of CrPC has
been filed against the order dated 16.02.2021 passed by 6 th Additional
Sessions Judge, Gwalior in Sessions Trial No.59/2021, by which the
offence under Sections 366, 344, 323, 365, 376(2)(n), 376(2)(f) and
506 (Part-II) of IPC.
2. It is submitted by the counsel for the applicant that the
prosecutrix made a written complaint to the effect that the applicant
is related to her being the husband of her sister-in-law (Nanad). On
25.08.2019the applicant persuaded her that since she is being harassed by her husband, therefore, he would drop her in her parental home, took her to Rajkot and lodged her in a rented room and committed rape. Thereafter, her husband lodged a guminsan report.
The applicant used to forcibly make physical relationship with her.
Later on, the applicant also took her gold mangalsutra and anklets, which were sold by him. Somehow on 09.11.2019 she succeeded in running away from Rajkot and came to Agra and from where she informed her husband after taking a mobile of some person.
Accordingly, her husband came to Agra in order to receive her and 2 THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
took her to a police station. Since she was very afraid and was under
the threat of the applicant, therefore, she stated that she had gone out of her own volition, but now the applicant is continuously threatening her and is insisting that in case, if she does not come with him, then he would kill her child, therefore, the FIR was lodged. The incriminating articles as well as blood sample of the applicant have been sent for DNA test, however, the DNA report has not been received. It is submitted that since the prosecutrix had not disclosed about the commission of rape after her recovery and she had made a written complaint belatedly after due deliberation, therefore, it is clear that the applicant had not committed any offence of rape.
3. Heard the learned counsel for the applicant.
4. So far as the correctness/credibility and reliability of a witness is concerned, the same cannot be considered by the Court at the stage of framing of charges. Even if the allegations make out a grave suspicion against the accused to the effect that he might have committed the offence, then the charges are to be framed. The applicant is closely related to the prosecutrix. Whether the allegations of rape is false or not or whether she was under pressure at the time of recovery are certain facts which are required to be proved in the trial and this Court at the stage of framing of charges cannot go to the extent of holding that the statement of the witness is false.3
THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
5. It is well established principle of law that roving and detailed enquiry at the stage of framing of charge is not permissible.
The Supreme Court in the case of M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru reported in (2020) 2 SCC 768 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 [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] 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 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.
4THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
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.
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 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 :
AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, 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 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 [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 :
2005 SCC (Cri) 415 : AIR 2005 SC 359] ).
The Supreme Court in the case of Soma Chakravarty v.
State through CBI reported in (2007) 5 SCC 403, has held as under:-
"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be 5 THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge."
The Supreme Court in the case of State (NCT of Delhi) v. Shiv Charan Bansal and others reported in (2020) 2 SCC 290, has held as under:-
"39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If 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 charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. 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 ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry 6 THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.
40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] decided on 24-4-2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction."
The Supreme Court in the case of State of Rajasthan v.
Fatehkaran Mehdu reported in (2017) 3 SCC 198, has held as under:-
"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to 7 THE HIGH COURT OF MADHYA PRADESH CRR-1113-2021 Pradeep Kushwah Vs. State of MP and anr.
focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."
6. Even otherwise, the allegations are that the applicant had abducted the prosecutrix on the pretext of taking her to parental home. It is fairly conceded by the counsel for the applicant that even otherwise, there is sufficient material against the applicant to frame charges under Sections 366, 344, 323, 365 of IPC.
7. So far as the delay in making the allegations of rape is concerned, the same cannot be a ground to discharge an accused. If the delay is plausibly explained, then the accused can be convicted.
8. Under these circumstances, this Court is of the considered opinion that no jurisdictional error was committed by the Trial Court to frame the charges under Sections 366, 344, 323, 365, 376(2)(n), 376(2)(f) and 506 (Part-II) of IPC.
9. Accordingly, the revision fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.01.28 10:27:54 +05'30'