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Gujarat High Court

Virendersinh Shrichiranjilal Ranga vs State Of Gujarat on 19 September, 2022

Author: Samir J. Dave

Bench: Samir J. Dave

     R/CR.RA/251/2022                            ORDER DATED: 19/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 251 of 2022

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                  VIRENDERSINH SHRICHIRANJILAL RANGA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MS HETVI H SANCHETI(5618) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PV PATADIYA(5924) for the Respondent(s) No. 2
MR RC KODEKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                            Date : 19/09/2022

                             ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State and learned advocate Mr. P.V. Patadiya waives service of notice of rule for and on behalf of the respondent no.2.

2. By way of present application, applicant has requested to quash and set aside the order dated 04.09.2019 passed by learned Additional Chief Judicial Magistrate, Court No. 21, Vadodara in Criminal Case No. 35156/2019 and discharge the present applicant from the Criminal Case No. 31156/2019 pending before the court of learned Additional Chief Judicial Magistrate, Court No.21, Vadodara.

3. Brief facts of the present case are as under:

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R/CR.RA/251/2022 ORDER DATED: 19/09/2022 3.1 That the respondent no.2 has filed private complaint against the accused because the police authority on the instructions of the present applicant has taken illegal action against the complainant for the FIR registered before the Jind Police Station, Haryana for the offence punishable under Sections 498A, 307, 329, 342 and 506 of the Indian Penal Code and learned Magistrate Court was pleased to pass an order under Section 202 of the Code of Criminal Procedure (hereinafter referred to as the "the Code" in short). That, while making investigation, the Investigating Officer found no offence having been committed and therefore, a report was filed before the concerned Learned Chief Judicial Magistrate, Vadodara. Being dissatisfied, the respondent no.2 moved a protest application and pursuant to the protest application, the learned Magistrate was pleased to take cognizance for offence punishable under Sections 203, 219, 220 and 120(B) of the Indian Penal Code against all the accused persons. The said order came to be challenged before this Hon'ble Court by way of filing an application being Criminal Misc. Application No. 9179 of 20211 by the present applicant and others and was later on, the same was withdrawn from this Hon'ble Court on 04.07.2011. That, thereafter, the respondent no.2 entered into witness box and given examination in chief and given evidence Page 2 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 to support their case and PW-2 Vijendra also entered witness box and given examination in chief and given evidence to support their case. Thereafter, the respondent no.2 has given closing purshish. Thereafter, the learned Magistrate has passed order of framing charge against the accused no.2, 4, 5, 7 and 8 vide impugned order and thus, the present application has been filed by the present applicant challenging the said order.

4. Heard learned advocates for the respective parties.

5. It was submitted by learned advocate for the applicant that there is no allegation worth the name in the entire evidence that is led before the learned Magistrate that any false report was prepared by the present applicant. Therefore, there is no question of there being any possibility of an offence punishable under Section 219 of the IPC against the present applicant. That, the learned Magistrate ought to have shifted and weighed the evidence led by the prosecution to the extent that whether any case against the present applicant was made out which, if unrebutted, would warrant the conviction of the applicant. Whereas, in the instant case, the learned Magistrate has chosen to shift and weight the evidence only to the extent of whether there is prima facie case against the applicant or not. That the fact that the original accused no.3 Ms. Shanu Page 3 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 Nirandandas Gupta has not appeared before the learned Magistrate and that the trial with respect to was required to be separated was also not considered in the correct perspective by the learned Magistrate. That, the learned Magistrate also failed to consider the fact that the Hon'ble Punjab and Haryana High Court was pleased to quash the proceedings only on the ground of territorial jurisdiction and there was no finding by the Hon'ble Punjab and Haryana High Court at any place in the order that was passed quashing the proceedings that there was any false report prepared by any person much less the present applicant. That, requirement of Section 245 of the Code is that the learned Magistrate must consider all the evidence that is led in the case whereas if the deposition of the complainant is seen then the complainant does not even make any allegations against the present applicant. Ultimately, it was submitted by learned advocate for the applicant to allow present application.

6. Learned APP for the respondent no.1-State and learned advocate for the respondent no.2 have objected the submissions made by learned advocate for the applicant and submitted that the learned trial court has rightly passed the order of framing charge as the complainant has already filed his purshish for closing evidence. That, all the accused persons Page 4 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 have formed criminal conspiracy for harassing the complainant and with an intention to punish and by creating false and frivolous evidence against the complainant, filing and causing to be filed complaint and even if Haryana Police has no jurisdiction though while getting false search warrants and misusing the legal procedure and thereby, accused have committed an alleged offence which support with the deposition of the witnesses and documentary evidence. As there is sufficient evidence found to frame the charge or proceed with the trial against the accused and that is how, the learned trial court has deemed it fit to pass order of framing charge against the present applicant and other accused. Hence, ultimately it was requested by learned APP for the respondent no.1-State and learned advocate for the respondent no.2 to dismiss present application.

7. Having heard learned advocates for the respective parties and having considering the observations made by learned trial court in the impugned order, it appears that learned trial court has found substance in the allegations made by the prosecution against accused persons as well as trial court has found prima facie evidence against the accused persons and therefore, the impugned order of framing charge has been passed.

8. For concluding the matter, first of all we have to consider Page 5 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 the the grounds of discharge, which have been laid down by the Apex Court in 2001 AAR 394 (SC), Omwati Vs. State (Delhi Administration), holding that the court may discharge accused on following consideration:-

(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.
(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage."

9. This Court even while considering the law and proposition laid down in the case of Manishaben Gajjugiri Goswami Vs. State of Gujarat, decided in Criminal Revision Page 6 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 Application No.245 of 2021 has gone through the same. The very purpose and the object of following the provisions of Sections 226 to 228 of the Cr.P.C. is to ensure the expeditious disposal of the Sessions Case so that the accused is discharged if there is no sufficient material against him or he can be tried quickly by following the due procedure laid down under Chapter-28 of the Cr.P.C.

10. This Court in the case of State of Bihar Vs. Ramesh Singh, reported in AIR 1977 SC 2018 observed as under:-

"4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-
(b)in exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they Page 7 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused.

It is not obligatory for the Judge at that stage of the trial 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. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. 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 against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion 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 accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. 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 the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We Page 8 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.

11. This Court in the case of State of Maharashtra Vs. Som Nath Thapa, reported in AIR 1977 SC 2018 observed as under:-

"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?
30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at Page 9 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".

31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.

32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the Page 10 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 materials brought on record by the prosecution has to be accepted as true at that stage.

What is the effect of lapse of TADA ?

33. In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA having lapsed, section 1(4) which saves, inter alia, any investigation instituted before the Act had expired, itself lapsed because of which it is not open to the prosecution to place reliance on this sub-section to continue the proceeding after expiry of TADA.

57. A perusal of the statement made by aforesaid two Inspectors shows that they had made two statements at two points of time. The first of these has been described as "original statement' by Shri Shirodkar in his written note and the second as "further statement". In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be crucial places for laying trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba- Goregoan junction, because that was the main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently by these Inspectors, as that was under pressure of investigation undertaken subsequently by the C.B.I. We do not think that the law permits us to find out at this stage as to which of the two versions given by two Inspectors is correct. We have said so because at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the close of the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at the proper place, as that left Sai- Morba Road free for the smugglers to carry the goods upto Bombay."

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R/CR.RA/251/2022 ORDER DATED: 19/09/2022

12. This Court in the case of State of Maharashtra Vs. Priya Sharan Maharan, reported in AIR 1997 SC 2041 observed as under:-

"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 stage the Court is required to evaluate the material and documents on record with a view of 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. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient 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.
11. The above quoted paragraphs from the judgment clearly disclose that the High Curt was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit you girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousand/millions of disciples all over India Page 12 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 would commit sexual intercourse with the praharak of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parent and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modi's textbook Page 13 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022 R/CR.RA/251/2022 ORDER DATED: 19/09/2022 on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as, in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on the ground."

13. Thus, considering the aforesaid discussion, the impugned order does not suffer from any illegality, irregularity or impropriety and the learned trial court has rightly passed the order of framing charge thus, this revision is liable to be dismissed and accordingly, stands dismissed. Rule stands discharged. Interim relief, if any, stands vacated.

(SAMIR J. DAVE,J) K. S. DARJI Page 14 of 14 Downloaded on : Tue Sep 20 21:56:58 IST 2022