Pandit Pappu Dubey vs State
2012 Latest Caselaw 307 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+    Crl. Rev.P. No. 18/2012 & Crl.M.A. 328/2012 (stay)

%                                           Reserved on: 11th January, 2012
                                            Decided on: 17th January, 2012

PANDIT PAPPU DUBEY                                         ..... Petitioner
                 Through:                Mr. R.K. Tarun, Adv.

                     versus

STATE                                                     ..... Respondent

Through: Mr. Manoj Ohri, APP for State with SI Umesh Rana.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA Crl.M.A.328/2011

Exemption allowed subject to just exceptions.

Crl. Rev.P. No. 18/2012 & Crl.M.A. 328/2012 (stay)

1. By this petition the Petitioner challenges the order dated 22 nd

November, 2011 directing framing of charge against the Petitioner for

offences punishable under Section 366 and 506 read with Section 34 IPC.

2. Learned counsel for the Petitioner contends that the Petitioner is the

pujari, who got the marriage performed. Petitioner was not named by the

prosecutrix in her statement recorded under Section 161 Cr.P.C. It is only

when she appeared in the witness box she named the Petitioner and on the

basis of the said statement the Petitioner has been summoned and now the

charges are framed against him. There is neither any overt act nor any

common intention attributable to the Petitioner. The Petitioner has played no

role in kidnapping the prosecutrix. It is stated that the learned Trial Court

just noted the submissions of the Petitioner, however did not consider the

same. Relying upon Union of India Vs. Prafulla Kumar Samal AIR 1979 SC

366 it is contended that at the stage of charge the Court is required to sift and

weigh the evidence for the limited purpose of finding out whether or not a

prima facie case is made out against the accused or not. The Learned Trial

Court with a pre-determined mind issued summons and framed charges

against the Petitioner. This is borne out from the fact that even before the

Petitioner was summoned, the Learned Trial Court while framing the

charges against the co-accused held that the co-accused along with the

Petitioner, who was not arrested, committed the said offence. From the

evidence on record it is not evident that there is grave suspicion against the

Petitioner. Hence no charge could have been framed against him. The

complainant in her statement itself has stated that she lodged the present

complaint as a counter-blast because the main accused had filed the petition

under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

At best the case against the Petitioner raises simple suspicion and thus the

Petitioner is entitled to be discharged. Reliance is also placed on Mahabir

Vs. State 1994 JCC 413 to contend when the prosecutrix accompanies the

accused without any protest then she is a willing and active participant.

Relying upon Priya Patel Vs. State of M.P. & Anr. AIR 2006 SC 2639 it is

contended that a woman cannot be said to have intention to commit rape and

similarly in the present case if the pujari got the marriage performed he

cannot be said to have shared common intention to cause kidnapping.

3. Learned APP on the other hand contends that the prosecutrix filed a

complaint before the Learned Metropolitan Magistrate under Section 156(3)

Cr.P.C. wherein she clearly leveled allegations against the Petitioner. On the

said complaint the FIR was registered. However, during investigation when

the statement of the prosecutrix was recorded there were no allegations

against the Petitioner. Thus, no charge sheet was filed against the Petitioner.

When the prosecutrix appeared in the witness box before the Trial Court she

reiterated her allegations against the Petitioner and thus the Learned Trial

Court summoned the Petitioner and framed the charge. The prosecutrix has

clearly stated that in the presence of the Petitioner the prosecutrix was

threatened, however he continued performing the marriage and forcible

signatures were taken on a number of documents. Relying upon State of

M.P. Vs. Sheetla Sahai (2009) 8 SCC 617 it is contended that at the stage of

framing of charge if two views are possible then the charges can be framed

but if only one view is possible to be taken, the Court shall not put the

accused to harassment by asking him to face the trial.

4. I have heard learned counsel for the parties. Briefly the facts of the

case are that the prosecutrix and the co-accused Raju's marriage was

performed by the Petitioner on 18th December, 2004. The prosecutrix filed a

complaint before the Learned Metropolitan Magistrate under Section 156(3)

Cr.P.C. wherein the Learned Metropolitan Magistrate vide order dated 2nd

March, 2007 directed the SHO PS Saraswati Vihar to register a FIR.

Consequently, FIR No.311/2007 under Sections

363/362/365/366/468/466/470/34 IPC was registered at P.S. Saraswati

Vihar. The FIR was based on the complaint of the prosecutrix. The

allegations as set out against the Petitioner in the complaint and the FIR are

in para 4 of the complaint wherein it is alleged "accused No. 5 i.e. the

Petitioner did some rituals and the complainant and accused No.1 garlanded

each other, accused No.2 to 4 threatened the complainant to do what they

said, otherwise they will kill the complainant, accused No.1 also threatened

to kill the complainant by brandishing knife towards the complainant and to

do what was asked by them, those people took several snaps of the

complainant with accused No.1 against her will, the signature of the

complainant were also taken forcibly by them on some documents blank as

well as written and accused No.5 was also involved with the accused No. 1

to 4."

5. Thus, from a perusal of the complaint it is apparent that the

prosecutrix leveled allegations. However, it appears that when her statement

under Section 161 Cr.P.C. was recorded, the Police did not record the

allegations against the Petitioner and thus he was not charge-sheeted and was

made a witness. However, at the time of framing of charge against the co-

accused the contents of the FIR were before the Trial Court who after going

through the same framed the charge that Raju Singh and Urmila Devi along

with co-accused Malik, Anil Kumar and Pappu Dubey (not arrested)

threatened the complainant by brandishing knife to do as directed or she will

be killed.

6. When the prosecutrix was examined before the Learned Trial Court

she stated:

"On the pretext of interview, accused Raju took me to a temple on a scooter on 15.12.2004, when I asked him as to why he has taken me to the temple, then he told me that her mother had come at the temple to perform Puja and told that we will go for the interview after some time. There at the temple, both the accused namely Urmila and Raju as well as one girl namely Malika Khan and one boy namely Anil met me. There at the temple, one Pandi Ji started Puja and accused Raju put a garland and also compelled me to put a garland in his neck. I can identify the said Pandit Ji, if shown to me. I was threatened by accused Urmila and Raju to do whatever they say and accused Raju showed me a knife and threatened to kill me and my family members. They all forcibly got the marriage ceremony between me and Raju performed and took photographs of the said marriage. They also took my signature forcibly on some blank papers and on some documents which were already written in English as well as in Hindi. The said threatening and execution of documents and taking of photographs took place in the presence of said Pandit Ji and he had also observed that the knife was being shown to me by accused Raju, but he continued the marriage ceremony/puja"

7. It may be noted that the statement was not on the leading question as

stated by the learned counsel for the Petitioner and the leading question put

to the prosecutrix was only with regard to the identity of the Priest who

performed the marriage.

8. The Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar

Samal (supra) laid down the following principles:

"(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 under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece 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 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."

9. From a perusal of the statement of the prosecutrix it is evident that

when the offence was committed by the co-accused, the Petitioner continued

to perform the marriages, the threatening and brandishing of knife and

signing of blank and written papers were all done in the presence of the

Petitioner. Thus, it cannot be said that the Petitioner did not share the

common intention or did not commit any overt act. The overt act on the part

of the Petitioner is performing the marriage, when the prosecutrix was

threatened to marry and sign documents. Further, threats were given in his

presence and he continued performing marriage.

10. Section 36 of the IPC provides:

"36. Effect caused partly by act and partly by omission.- Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence."

11. Thus, an omission is also an act and in the present case the way the

Petitioner cooperated in the offences committed by the co-accused clearly

showed that he shared a common intention to commit the alleged offences.

12. I find no merit in the present case. Petition and application are

dismissed.

(MUKTA GUPTA) JUDGE JANUARY 17, 2012 'ga'