Ram Jas vs State Of U.P.Through Its ...
2012 Latest Caselaw 5508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(AFR)(Reserved)
 
Court No. - 23
 

 
Case :- CRIMINAL REVISION No. - 571 of 2007
 

 
Petitioner :- Ram Jas
 
Respondent :- State Of U.P.Through Its C.J.M.,Barabanki.& 2 Ors.
 
Petitioner Counsel :- Shishir Pradhan
 
Respondent Counsel :- Govt.Advocate,Amit Chaudhry,Jai Prakash
 

 
Hon'ble Sudhir Kumar Saxena,J.

1.This criminal revision is directed against the order dated 06.08.2007 passed by Chief Judicial Magistrate, Barabanki in Misc. Case No. 14 of 1999 (Ram Jas Vs. Ashok Kumar and others) summoning Sub Inspector Ashok Kumar Yadav and constable Ram Nayak under Section 354 I.P.C.

2.I have heard Sri Shishir Pradhan, learned counsel for the revisionist, Sri Amit Chaudhari, learned counsel for the respondent nos. 2 & 3 and learned A.G.A. for the State.

3.From the record, it appears that Ram Jas had moved an application to Director General of Police whereupon an F.I.R. was registered against Ashok Kumar Yadav, Station Officer and Ram Nayak, Constable, as Case Crime No. 92 of 1997, under Sections 376/506 I.P.C., Police Station Badosarai, District Barabanki.

4.After investigation, final report was submitted on 14.06.1997 on the ground that allegation of rape could not be confirmed. Notice was given to the informant to object on final report, whereupon case was registered as complaint case.

5.Statement of Ram Jas (PW-1) was recorded under Section 200 Cr.P.C. Statements of Smt. Anita Dixit, victim (PW-2), Shrawan Kumar, Radhey and Brijesh Singh were recorded under Section 202 Cr.P.C.

6.On the basis of this evidence, C.J.M. on 17.07.2000 dismissed the complaint against Sub Inspector Ashok Kumar Yadav and summoned Constable Ram Nayak under Section 354 I.P.C.

7.This order was challenged by means of Criminal Revision No. 316 of 2000 wherein this Court vide order dated 11.08.2003 set aside the order passed by C.J.M. and directed him to decide the matter again after hearing the parties, in the light of presumption available under Section 114-A of the Evidence Act.

8.This time Chief Judicial Magistrate summoned Sub Inspector Ashok Kumar Yadav as well as Constable Ram Nayak under Section 354 I.P.C. This very order dated 06.08.2007 has been challenged in the present revision.

9.Submission of learned counsel for the revisionist is that it has come in the enquiry report conducted by the S.P. that wife of complainant Smt. Anita Dixit (victim) was taken to Police Station in the night and dropped in the same night.

10.It is further contended that C.J.M. in his order has found that victim was taken to Police Station in the night in a Jeep but had not believed fully the allegation of rape on extraneous and irrelevant grounds.

11.Sri Amit Chaudhari, learned counsel justified the impugned order.

12.From the record, it transpires that incident was of the year, 1997. Summoning order has to be passed by the Magistrate on the prima facie satisfaction. Magistrate has to merely form the opinion whether there was sufficient ground for proceeding in the case. There was Police report, confirming that victim Anita was taken to Police Station by the Police in Jeep and she was dropped on the same night. Witnesses have stated on oath that victim was taken to Police Station in the night forcibly. She was not accused in any case. When Magistrate was satisfied that victim was taken to the Police Station in the night forcibly, then what remained before him but for testimony of the victim to narrate as to what happened with her.

13.It is settled law that testimony of victim in rape cases has to be ordinarily believed unless there are cogent reasons to rebut the same. While Magistrate believed the complaint case in entirety, she disbelieved the allegation of rape on non-existent or irrelevant grounds. Moreover, pendency of criminal cases against husband of raped victim does not make testimony of victim automatically unbelievable.

14.For issuing process Magistrate is to reach a satisfaction that a prima facie case is made out against the accused and not sufficient ground for securing his conviction as held by Hon'ble Apex Court in the case of Shivjee Singh Vs. Nagendra Tiwary [(2010) 7 SCC 578].

15.In the case of Chief Controller of Imports & Exports Vs. Roshanlal Agarwal [(2003) 4 SCC 139], the Hon'ble Apex Court has made the following observations :-

"9.In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry."

16.In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi [(2009) 2 SCC 147], the Hon'ble Apex Court has held as under :-

"23. it is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."

17.In the case of Kewal Krishan Vs. Suraj Bhan [AIR 1980 SC 1780], following observations have been made :-

"At the stage of Sections 203 and 204 in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is 'sufficient ground for proceeding' against the accused. If there is prima facie evidence, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. At this stage of Section 203 and 204, the Magistrate is not to weigh the evidence meticulously as if he were the trial court."

18.From the above, it is apparent that Magistrate is to see whether there is prima facie evidence in support of the charge levelled against the accused. If there is prima facie evidence, then, it will be sufficient ground for issuing process. At this stage Magistrate is not supposed to weigh the evidence meticulously or evaluate the same.

19.In the case at hand, allegation of rape by Police personnel in the premises of Police Station has been made. Case was triable by Sessions Court.

20.Following reasons have been given by the learned Magistrate to disbelieve the testimony of victim.

"------------fjCcu dks jkLrs esa mrkj fn;k x;k] ,slk dFku vuhrk }kjk vius c;ku esa dgk x;k gS] tcfd ifjoknh us bl lUnHkZ esa dksbZ lk{; ugha fn;k fd fjCcu muds lkFk x;k vFkok ughaA xokg Jo.k o jk/ks us Hkh vius c;ku esa ugha dgk gS fd fjCcu thi ls x;kA

---------------bl xokg dk ?kj ifjoknh ds ?kj ls fdruk nwj gS] ,slk dksbZ dFku u rks ifjoknh }kjk fd;k x;k gS vkSj u gh lk{kh }kjkA xokg jk/ks us dgk fd tc ns[kk rks jketl o mldh iRuh dks thi esa ykn jgs FksA xokgku ds c;ku ls ;g lqlaxr ugha yxrk gS fd fdlh xkao ds vUnj ls ,d iqfyl deZpkjh fdlh O;fDr dks e; mldh iRuh tcjnLrh ykndj ysdj pyk vk;s vkSj mifLFkr xokgku ewdn"kZd cus jgsA

---------------xokgku ds bl c;kukr ij Hkh lansg mRiUu gksrk gS fd ifjoknh o mldh iRuh fdl izdkj ls ekufld o 'kkjhfjd n'kk esa vleFkZ Fks ftlls mudks ,d O;fDr thi esa ykndj ys vk;kA thipkyd }kjk ekSds ij dksbZ izfrfdz;k dh x;h ;k ugha] bl lUnHkZ esa fdlh lk{kh us dksbZ Hkh c;ku ugha fn;k gSA

-----------------foi{khx.k ij ifjoknh }kjk xEHkhj vkjksi yxk;s x;s gSa ijUrq muds leFkZu esa tks lk{; nh x;h gSa og Ik;kZIr ugha gS] ifjoknh dks vU; xokgku dks Hkh ijhf{kr djk;k tkuk pkfg;s tks ijhf{kr ugha djk;k x;k gSA

----------------ifjoknh us vius c;ku esa dgk gS fd tc mldh iRuh vk;h rks mlds 'kjhj ij dksbZ pksV ugha Fkh] is'kkc ds jkLrs [kwu cgus dh ckr crk;h x;h Fkh ijUrq mlus ns[kk ugha FkkA

---------------bl izdkj izFke lwpuk fjiksVZ o xokgku ds c;kukr esa thi ij ykndj ys tk;s tkus ds lUnHkZ esa folaxfr gSA izFke lwpuk fjiksVZ esa fjCcu dks jkLrs esa mrkjus dh ckr dgh x;h gS tcfd xokgku vuhrk us vius c;ku esa fjCcu dks thi ls mlds ?kj ij mrkjus dh ckr dgh x;h gSA

--------------ifjoknh }kjk foi{khx.k ds fo:) ncko o vius cpko esa lk{;@dFku fd;k tk jgk gSA

--------------i=koyh ij miyC/k leLr rF;ksa o izi=ksa ds vk/kkj ij ifjoknh dh iRuh vuhrk ds lkFk cykRdkj fd;s tkus ds dFku esa izFke -"V;k dksbZ cy ugha gSA ek= 'khyHkax dk gh vijk/k vf/kd ls vf/kd v'kksd dqekj ds fo:} xfBr gksrk gSA"

21.It may be relevant to state here that despite above, learned Magistrate has believed that both the police officials have outraged the modesty of the victim at police station and that is why they have been summoned under Section 354 I.P.C. What has been disbelieved is the allegation of rape committed by accused persons.

22.Observation of the Magistrate that it is not possible that witnesses would remain mute spectator if police personnel take away somebody i.e. his wife is absolutely uncalled for. Similar is the observation that it is not clear as to how complainant or his wife were physically or mentally incapacitated that they were taken in the police jeep. Observation that sufficient evidence was not given and other witnesses should have been examined, is also uncalled for. Apex Court in the case of Shivjee Singh Vs. Nagendra Tiwary & others [(2010) 7 SCC 578] has held as under :-

"The Choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say, whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused."

23.Complainant has adduced evidence to the effect that his wife was taken to Police Station. In Police Station complainant was asked to sit with Santary while his wife was taken to the quarter of Sub Inspector Ashok Kumar Yadav where she was raped by him and one Constable. What more evidence was required is not clear ? Testimony of victim could be best evidence in this regard which is ordinarily believed unless rebutted for cogent reasons.

24.In reply to the question put by court, complainant had said that some bangles were broken, his wife told him about the bleeding but husband did not care to see it. Is it a ground to reject the testimony of husband or his wife ? Similarly the contradiction, referred to by court i.e. in F.I.R. it is said that Ribban was dropped in the way while Anita stated that Ribban was dropped at the residence is also based on misreading of material. In the F.I.R. it is clearly said that Ribbon who belonged to village Shakhpur Kutru was dropped.

"jkLrs esa 'ks[kiqj VqVq: esa fjCcu cnek'k dks flikgh us mrkj fn;kA"

25.Ram Jas in his statement under Section 200 Cr.P.C. stated that Constable Ram Nayak, driver of the Jeep and one Ribban, a criminal had come to his residence, thus, Ram Jas mentions the name of Ribban who had accompanied Constable Ram Nayak. Anita (victim) has also stated about the presence of Ribban. How the omission of Ram Jas to state about the place where Ribban was dropped is relevant especially when Magistrate was considering the statements recorded under Sections 200 and 202 Cr.P.C.

26.It has been mentioned in the First Information Report that history-sheetor Ribban had also accompanied constable Ram Nayak who was also a tout of Police and Ribban was dropped at the village Sheppur Kutru.

27.Shrawan Kumar (PW-3) in his statement has specifically stated that :

"jkeuk;d onksljk; Fkkuk dk flikgh og fjCcu o thi dk pkyd ekStwn FksA"

28.The observation of Magistrate that Shrawan, Radhey or complainant had not said anything about Ribban, is just based on misreading of record.

29.From the above, it is apparent that learned Magistrate has tried to find the contradictions, omissions which actually did not exist in the evidence and which can be evaluated during trial after cross examination. Magistrate has failed to visualize mental status of husband whose wife was raped forcibly in a Police Station. When Constable came to call his wife again in the name of interrogation by Sub Inspector, then he moved application before the S.P. The following sentence in the F.I.R. demonstrates his mental agony and helplessness.

"bls ;gha ckgj cSBus nks dgha b/kj m/kj tkus u Ikk;s mlds ckn flikgh jke uk;d o cMs njksxk esajh chch dks vius dejs esa ys x;s rFkk nks ?k.Vk rd vius dejs esa j[kk rFkk mlds lkFk tcju cykRdkj fd;k rFkk ckn esa cMs njksxk o flikgh o jke uk;d us esajh chch dks /kedh fn;k fd ;fn ;g ckr fdlh ls [kqyklk fd;k rks rqEgkjs ifr dks tsy esa cUn dj nwWxk rFkk rqEgkjs ifr dks fQj ls cUn djds o cnek'k fjCcu ls dg dj ce ls ejok nwWxkA mlds ckn mDr flikgh tcjnLrh eq>s o esjh chch dks xkao rd NksMus x;k rFkk iqu% tku ls ekjus dh /kedh fn;kA eSa iqfyl dh Mj dh otg ls dgha ugha tk ldk ysfdu dy fnukad 01-03-1993 dks mDr flikgh iqu% esajh chch o eq>s ;g dj dj cqykus vk;s fd cMs njksxk th us rqEgs iwWNrkN ds fy;s cqyk;k gSA izkFkhZ ,d lh/kk lk/kk vkneh gS vkSj vius xkao esa bTtr ls jgrk gS blfy;s mDr ihMk vlguh; gSA"

30.Learned Magistrate has failed to consider the above important aspect of the matter while finding out non- existing contradictions and omissions. So far reference to complainant's criminal history is concerned, it was absolutely irrelevant. In any case, last case registered against Ram Jas was of the year, 1991. Thereafter, for six years, there was no case until 1997 when he was challaned under Section 107, 106 Cr.P.C. In fact, from the record it appears that he had lodged an F.I.R. against his brother Jas Karan under Section 307 I.P.C. for throwing Bomb. Complaint was not involved in any case for which he was called for interrogation in the night. In any case his wife Anita was neither witness nor accused, so as to be summoned in such a manner in the fateful night to Police Station.

31.The observation that the complaint has been filed in their defence is absolutely uncalled for. No case was pending against Anita victim or against her husband. In the year, 1997 there was no case for defending which they could make allegation of rape against two police officials.

32.Moreover, learned Magistrate has failed to consider the order passed by this Court on 11.08.2003 in Criminal Revision No. 316 of 2000. Relevant part of the order is quoted hereinbelow:-

"In the charge of rape the statement of the prosecutrix is sufficient unless rebutted by cogent evidence by the accused that the intercourse was committed with her consent in the case of prosecutrix more than 16 years of age. The stage of rebutting presumption has not arrived. Relying on the statement of the prosecutrix, the learned Magistrate was to take cognizance against opposite parties no. 2 & 3 under Section 376 IPC, which has not been done.

In result the revision is allowed. The impugned order is set aside with the direction to the learned Magistrate to rehear the parties again and pass a fresh order after correctly appreciating the evidence in the light of presumption under Section 114 A of the Evidence Act. Office shall return back the lower court record at once."

33.It is apparent that learned Magistrate has exercised the discretion in arbitrary manner and his order is based on misreading of law as well as material on record.

34.It may be relevant to state here that F.I.R. could be lodged only after the matter was taken to the D.G.P. In internal enquiry, S.P. has found that lady was taken to the Police Station in the night and dropped at home at the same night. Relevant part of the order dated 16th April, 1997, passed by S.P. Barabanki is reproduced below :-

"vkosnd Jh jketl nhf{kr iq= nsoh izlkn nhf{kr fu0 xzke vfj;kem Fkkuk cnksljk;] tuin ckjkcadh ds f'kdk;rh izkFkZuki= ftlesa flikgh jkeuk;d o cMs njksxk v'kksd dqekj flag ;kno ds fo:) vkosnd dh iRuh ls tcju fnukad [email protected] dh jkf= eas cykRdkj fd;s tkus laca/kh tkap f'kfoj dk;kZy; iqfyl mi egkfujh{kd] QStkckn ifj{ks= esa LFkkfir f'kdk;rh izdks'B ls djk;s tkus ij tkap ls ik;k x;k gS fd vkj{kh jkeuk;d vkosnd dh iRuh dks fnukad [email protected] dh jkf= mlds ?kj ls thi }kjk Fkkus ij ys tk;k x;k vkSj jkf= esa 3-00 cts mls ?kj NksMk x;k FkkA

vr% mDr vkosnd ds izkFkZuki= dks ewy:i esa izsf'kr djrs gq, vknsf'kr fd;k tkrk gS fd vki mDr izkFkZuki= ds vk/kkj ij mi fu0uk0iq0 Jh v'kksd dqekj flag ;kno rFkk dkUl0 504 uk0iq0 jke uk;d ds fo:) lacf/kr /kkjkvksa ds vUrxZr eqdnek iath--r foospuk gsrq {ks=kf/kdkjh jkeuxj dks Hksts tks mldh foospuk iw.kZ dj ifj.kke ls ;Fkklh?kz eq>s voxr djk;sxsaA"

35.It is apparent that lady was taken to the Police Station in the night, although she was neither witness nor accused that too in the absence of any lady constable. No action seems to have been taken by the department against the police officials.

36.Hon'ble Mr. Justice Swatanter Kumar while speaking for Apex Court has made observation in the case of Dayal Singh Vs. State of Uttaranchal [(2012) 8 SCC 263, para 30] as under :-

"In a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. A crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general."

37.In the case of Mehmood Nayyar Azam Vs. State of Chhattisgarh [(2012) 8 SCC 1, para 38], Hon'ble Apex Court has made following observation reminding the Police Authorities to their duties :

"It is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities."

38.In these circumstances, a direction be issued to take action not only against the accused persons who allegedly committed rape but also against the Police personnels posted in Police Station for their omission to prevent such misdeed.

39.Consequently, I.G. Zone is directed to look into the matter and take action against the erring officials for taking the lady in the night which is evident from their own record. Action taken against the erring officials will be intimated to the Registrar of this Court within two months.

40.From the above discussion it is also apparent that order suffers from patent error of law. Consequently, order is liable to be set aside.

41.Revision is allowed.

42.Order dated 06.08.2007 passed by Chief Judicial Magistrate, Barabanki in Misc. Case No. 14 of 1999 (Ram Jas Vs. Ashok Kumar and others) is set aside.

43.Chief Judicial Magistrate, Barabanki is directed to pass fresh order in accordance with law within one month.

44.Parties are directed to appear before C.J.M., Barabanki on 27.11.2012.

Order Date :- 07.11.2012

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