Manoj Dhama And Another vs State Of U.P. And Another
2023 Latest Caselaw 2744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- CRIMINAL REVISION No. - 3868 of 2022
 

 
Revisionist :- Manoj Dhama And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Naveen Kumar Yadav,Sudhir Kumar Agarwal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Counter affidavit on behalf of the State and supplementary affidavit on behalf of the revisionists, filed in Court today, are taken on record.

2. Heard learned counsel for the revisionists and learned A.G.A for the State. None has appeared on behalf of the opposite party No. 2 despite service of notice.

3. The present criminal revision has been preferred against the judgment and order dated 17.06.2022, passed by the learned Additional Sessions Judge/Fast Track Court-II, Ghaziabad in S.T. No. 586 of 2021 (5560 of 2021) (State vs. Shobhit Malik and others), under Sections 376-D, 452, 504, 506 IPC, P.S. Loni Border, District Ghaziabad, whereby the application filed by the revisionists for discharge under Section 227 Cr.P.C. has been rejected.

4. It has been argued by learned counsel for the revisionists that the impugned order is against facts and law and thus liable to be set aside. The opposite party No.2 has lodged first information report of this case on 10.05.2019 against the revisionists and others, making false and baseless allegations. The revisionist No.1 was not named in the earlier first information report, which was lodged by the opposite party No. 2 vide Crime No. 1709 of 2018, under Sections 376, 313, 506 IPC. After investigation of this case, police found the incident false and submitted Final Report. The opposite party No.2/informant has filed a protest petition, which was registered as a complaint case and thereafter, revisionists and co-accused persons were summoned vide order dated 17.02.2020, passed by the Court of Magistrate. Learned counsel submitted that the allegations made by opposite party No.2, are thoroughly false and improbable and the same were already found false during investigation. In her statement under Section 200 Cr.P.C., she has made merely vague allegation that all the accused persons, including revisionists, have committed rape upon her by trespassing into her house. In her statement, she has not stated that after incident, her husband or his friend Gaurav have reached at the spot and thus the statements of these witnesses under Section 202 Cr.P.C. are thoroughly false and unreliable. It is further submitted that the provisions of Section 204(2) Cr.P.C. have not been complied with as no list of witnesses was submitted before the court. Referring to the facts of the matter, it was submitted that no prima facie case is made out against the revisionists. The court below has not considered the facts and law in correct perspective and committed error by rejecting the discharge application of the revisionists.

5. Per contra, learned A.G.A. has opposed the revision and argued that in view of statement of victim/informant and other material on record, a prima facie case is made out against the revisionists and there is no illegality or perversity in the impugned order.

6. I have considered rival submissions and perused record.

7. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.

8. In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39], considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge 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. 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, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.

9. In Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors [(1980) 1 SCR 323], the Apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer.

10. In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239], the Hon'ble Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.

11. In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC 393] it was held that at Sections 227 and 228 Cr.P.C. stage the court is required to evaluate the material and documents on record with a view to 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.

12. It is apparent from the above discussed decisions of Hon'ble Apex Court that at the stage of charge there can only be limited evaluation of materials and documents on record. At the stage of charge or consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.

13. In the instant case, perusal of record shows that both the accused-revisionists are named in the first information report, wherein it was alleged that earlier the informant has lodged a Case Crime No. 1709 of 2018 under Sections 376, 313, 506 IPC against revisionist No. 2 Deepak Dhama and five other persons. It was alleged that the accused persons of that case were pressurizing the informant for compromise in that case and that on 21.02.2019 the accused revisionists and co-accused persons trespassed into the house of informant and abused her and thereafter, they committed rape upon her. Though, after investigation, police have submitted Final Report but the protest petition of informant was registered as a complaint and thereafter, complainant was examined under Section 200 Cr.P.C. and two witnesses namely, Harkishan @ Kishan Kumar and Gaurav Kumar, were examined under Section 202 Cr.P.C. and thereafter, revisionists and co-accused persons were summoned for aforesaid offence. Perusal of record further shows that earlier revisionists have filed an application for discharge, which was rejected by the Trial Court vide order dated 04.03.2022 but that order has not been challenged. Thereafter, revisionists have filed second discharge application under Section 227 Cr.P.C., mainly alleging that the provisions of Sections 204 and 208 Cr.P.C. have not been complied with, as neither the list of witnesses was submitted in pursuance to Section 204(2) Cr.P.C. nor copies of documents relied by prosecution was supplied to the accused persons and that second discharge application has been rejected by impugned order dated 17.06.2022. So far the contention regarding non-compliance of Section 204(2) Cr.P.C. is concerned, that fact may have been looked into while examining the validity and propriety of summoning order but this criminal revision has not been filed against the summoning order. Considering the facts of the matter as well as the fact that revisionists and co-accused persons have been summoned of a complaint case, the contention regarding non-compliance of Section 208 Cr.P.C. is misplaced. As observed earlier, at the stage of charge only it is to be seen whether a prima facie case is made out or not. Further, as the Trial Court has already rejected the discharge application of the accused persons including revisionists vide order dated 04.03.2022, thus there were no satisfactory reasons to allow the second discharge application of accused-revisionists. In view of these facts and circumstances of the case, it cannot be said that the court below has committed any error by rejecting discharge application of the revisionists. In view of above stated facts and circumstances of the case, it is clear that there is no illegality or perversity or error of jurisdiction in the impugned order. The revision lacks merit and thus liable to be dismissed.

14. The criminal revision is dismissed.

Order Date :- 27.1.2023

Suraj