Chattisgarh High Court
Rahul Sharma vs State Of Chhattisgarh on 10 September, 2015
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 736 of 2015
• Rahul Sharma, S/o. Shri Omprakash Sharma, aged about
27 years, R/o. Danesh Kunj, Kolar Road, House No.208/15,
Police Station Kolar, District Bhopal (M.P.) at present
Chhabda Colony, Pachpedi Naka, Police Station Tikrapara,
Raipur Civil and Revenue District Raipur (C.G.)
---- Applicant
Versus
• State Of Chhattisgarh, through: Station House Officer,
Police Station Pandari, Raipur, District Raipur (C.G.)
---- Respondent
For Applicant: Mr. Y.C. Sharma, Advocate. For Respondent/State: Mr. Anant Bajpai, Panel Lawyer.
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 10/09/2015 Heard.
(1) The applicant was charge sheeted for the offences punishable under Sections 354 & Section 8 of the Protection of Children from Sexual Offences Act, 2012 (henceforth 'POSCO' Act).
(2) By order dated 17.07.2015, learned Additional Sessions Judge (FTC), Raipur has framed charges for the aforesaid offences.
(3) Feeling aggrieved & dissatisfied with the order framing charges, applicant herein preferred this revision under Section 2 397 read with Section 401 of the Code of Criminal Procedure. (4) Mr. Y.C. Sharma, counsel for the applicant while confining his arguments to the order framing charge for the offence under Section 8 of the POSCO Act would submit that act complained of by the complainant against the applicant would not come within the purview of sexual assault as defined in Section 7 of the POSCO Act, 2012 and, therefore, order framing charge for offence punishable under Section 8 of the POSCO Act, which provides for punishment for sexual assault is bad and unsustainable in law.
(5) I have heard counsel for the applicant and perused the order impugned with utmost circumspection. (6) Before proceeding further, it would be appropriate to notice relevant judgments of the Supreme Court with regard to jurisdiction of this Court to interfere with the order framing charge. (7) In State of Maharashtra v. Priya Sharan Maharaj and others 1, the Supreme Court has held that at the stage of framing charge, Criminal Court has to find out whether there is ground for presuming that accused has committed offence or not to following effect:-
"8. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi vs. Jitendra Bijjaya (1990) 4 SCC 76, that at Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken in 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 ac- 1 (1997) SCC (Criminal) 584 3 cept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabili- ties of the case. Therefore, at the stage of framing of charge the Court has to consider the material with a view to find out if there is ground for presuming that the ac- cused has committed the offence or that there is not suf- ficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
(8) Very recently in Vinay Tyagi v. Irshad Ali alias Deepak and Ors.2, the Supreme Court while considering Section 227 of the Cr.P.C. held as under:-
"12. On analysis of the above discussion, it can safely be concluded that 'presuming' is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution's record, at this stage, has to be examined on the plea of demur. Pre- sumption is of a very weak and mild nature. It would cover the cases where some lacuna has been left out and is capable of being supplied and proved during the course of the trial. For instance, it is not necessary that at that stage each ingredient of an offence should be lin- guistically reproduced in the report and backed with meticulous facts. Suffice would be substantial compli- ance to the requirements of the provisions."
(9) In Amit Kapur v. Ramesh Chander and another 3, the Supreme Court while considering the scope of jurisdiction of this Court in revi- sion against the order of charge held as under:-
"The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cau- tiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revi- sional jurisdiction, particularly while dealing with framing
2 2013 Cri.L.J. 754 3 JT 2012 (9) SC 329 4 of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opin- ion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge ac- cordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the ex- istence of constituents of an offence and the facts lead- ing to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."
(10) In the aforesaid decisions, their Lordships of the Supreme Court have clearly held at the stage of framing of charge, the Court has to consider the material with a view to find out if there is ground for presuming that an accused had committed offence and not for the purpose of arriving at a conclusion that it is not likely to lead a conviction.
(11) In order to consider the plea raised, it would be appropriate to set out provisions contained in Section 7 of the POSCO Act, 2012, which reads as under:-
"7.Sexual Assault: - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."5
(12) At this stage, it would be appropriate to notice charge framed by the Court of Session:-
"izFke % vkius fnukad 15-03-2015 ds djhc 18%30 cts LFkku&dqcsj vikVZesaV]+ 'kfDruxj] Fkkuk iaMjh] ftyk jk;iqj {ks=karxZr esa vo;Ld@ihfM+rk dq- vuU;k flag] mez 10 o"kZ dks] yTtk Hkax djus ds vk'k; ls mlds gkFk dks idM+dj rqe lcls cMh gks] lsDlh gks dgdj geyk@vkijkf/kd cy dk iz;ksx fd;kA bl izdkj vkius og d`R; fd;k] tks Hkkjrh; n.M fo/kku dh /kkjk&354 ds vUrxZr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku {ks= ds vUrxZr vkrk gSA f}rh;% vkius mDr fnukad] le; o Lfkku ij vo;Ld@ihfM+rk dq- vuU;k flag] mez 10 o"kZ dks ySafxd vk'k; ls izos'ku fd;s fcuk mlds gkFk dks idM+dj rqe lcls cM+h gks lsDlh gks dgdj 'kkjhfjd lEidZ Lfkkfir djrs gq,s ySafxd mRihM+u dkfjr fd;kA bl izdkj vkius og d`R; fd;k] tks ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 dh /kkjk&8 ds varxZr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku {ks= ds varxZr vkrk gSA vr,o eSa vknsf'kr djrh gwWa fd mijksDr vkjksiksa ds laca/k esa vkidk fopkj.k bl U;k;ky; ds }kjk fd;k tkosxkA"
(13) A careful perusal of the definition of sexual assault read with charge framed against the applicant, it would appear that learned Sessions Judge has framed charges holding that applicant has caught hold of minor child of the complainant and 6 also said her Sexy and thereby contacted physically with the complainant's minor child.
(14) After hearing learned counsel for the parties and going through the statement of complainant's minor child and the charges framed by the trial Court and the definition of sexual assault, I am of the considered opinion that learned Sessions Judge is absolutely justified in framing charge under Section 8 of the POSCO Act, 2012 against the applicant and I do not find any illegality in the order impugned warranting interference under revisional jurisdiction.
(15) The revision is, therefore, liable to be dismissed and it is hereby dismissed at the admission stage itself without notice to the other side.
Certified copy as per rules.
Sd/-
(Sanjay K. Agrawal) Judge D/-