Delhi District Court
The Case Of Union Of India vs . Prafulla Kumar Samal, (1979) 3 Scc on 3 February, 2018
SC No. 503/2017
State v Vijay Kumar
FIR NO. 232/17
PS Hazrat Nizamuddin
03.02.2018
ORDER
1.Vide this order, I shall decide the objections raised by the counsel for accused on the point of charge as well as the bail application u/s 439 Cr. P.C moved on behalf of accused Vijay.
2. It is argued by the ld. Counsel for accused that his arguments on bail and arguments on charge are same. It is argued that on the alleged day of incident i.e 30.05.2017 the accused was not present at Delhi and was busy in his engagement ceremony at Thirukkovilloor Taluk Bhargava Udayaar Community Marriage Hall, Thirukkovillor. Hence, it is prayed that accused be discharged as no offence is made out and that the allegations are perse false. It is stated that if not discharged, accused be granted bail.
3. On the other hand, Ld. Addl. PP for State argued that there are specific allegations against the accused of making physical relations with the prosecutrix on the false pretext of marriage and as such the offence is made out against the accused. Further, the prosecutrix has not been examined and the case is at the initial stage and the accused FIR No. 232/17 1 /5 State v Vijay Kumar PS Hazrat Nizamuddin should not be granted bail.
4. I have heard the submissions from both the sides.
5. The law with regard to framing of charge is wellsettled. In the case of Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court laid broad contours on the point of framing of charge. The same are reproduced as under:
"10. (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 proceeding with the trial.
(3) The test to 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 the Code the Judge which FIR No. 232/17 2 /5 State v Vijay Kumar PS Hazrat Nizamuddin 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 Crl.Rev. P. No.5132004 Page 9 of 23 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. Similar opinion was expressed in the case of State of Orissa Vs. Debendra Nath Padhi,(2005) 1 SCC 568, wherein the Apex Court held:
"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. It was observed in the case of Rakesh Kumar Gupta 2010(1) CC Cases (HC) 513 "Thus at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the FIR No. 232/17 3 /5 State v Vijay Kumar PS Hazrat Nizamuddin accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term "prima facie" nor can the term "strong suspicion" have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances"
8. The FIR is registered on the complaint of the prosecutrix wherein she has stated that she knows the accused for the last one year. Initially the accused used to talk to her on the pretext of friendship and thereafter professed his love for her and promised to marry her. Around 78 months prior to registration of FIR when he touched the prosecutrix, she objected to the same whereupon he stated that he will perform marriage with the prosecutrix and that is why he can touch her. Thereafter, one day when the prosecutrix was going to the house of her aunt (bua) the accused stopped her on the way and tries to do galt kaam with her whereupon the prosecutrix slapped him and left. Thereafter, the prosecutrix rang him up and enquired from the accused as to why he had tried to do galt kaam with her to which he told her that he is in love with the prosecutrix and want to marry her. Thereafter, they both started to meet with each other and physical relation was established between them. However, when the family FIR No. 232/17 4 /5 State v Vijay Kumar PS Hazrat Nizamuddin members of the accused were taking him to his native village for marriage, the prosecutrix enquired from the accused but he refused that this is not correct. Thereafter, the prosecutrix came to know that she is pregnant. Thereafter, the accused returned from his village with his wife after performing marriage and had deceived the prosecutrix. On these allegations, an FIR under Section 376 IPC is registered against the accused. The prosecutrix was medically examined wherein she was found to be pregnant. In her statement given to the magistrate under Section 164 Cr.P.C, she has supported the same assertions. Hence, there are specific allegations against the accused of making physical relations with the prosecutrix under the pretext of marriage. Hence, a prima facie offence u/s 417/376 IPC is made out against accused Vijay Kumar. So far as the plea of alibi of the accused that he had gone for his engagement is concerned, the same is defence of the accused and to be proved by accused by leading evidence.
9. So far as, the bail application of the accused is concerned, the case is at initial stage and charge is framed today. The prosecutrix is yet to be examined. The possibility of tempering with the evidence cannot be ruled out at this stage. Hence, bail application of accused Vijay Kumar is dismissed.
Copy of order be given dasti.
(Renu Bhatnagar) ASJ(Spl. FTC) South East, Saket Court 03.02.2018 FIR No. 232/17 5 /5 State v Vijay Kumar PS Hazrat Nizamuddin