Delhi High Court
Gopal Jha vs State & Anr on 12 September, 2023
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: August 07, 2023
Decided on: September 12, 2023
+ CRL.M.C. 5130/2019
GOPAL JHA ..... Petitioner
Through: Mr. Rahul Kumar and
Mr.Prakash Chandra,
Advocates.
V
STATE & ANR ..... Respondents
Through: Mr. Utkarsh, APP for
State/R-1 with SI Urmila,
NDD. W/Insp. Neelmani
Keyin, Vigilance
Barakhamba, HQ.
SI Akansha Bhargava, P.S.
North Avenue.
Mr. Prince Sharma,
Advocate for R-2.
+ CRL.REV.P. 406/2023 & CRL.M.A. 9494/2023(stay)
GOPAL JHA ..... Petitioner
Through: Mr. Rahul Kumar and
Mr.Prakash Chandra,
Advocates.
V
THE STATE & ANR ..... Respondents
Through: Mr. Utkarsh, APP for
State/R-1 with SI Urmila,
NDD. W/Insp. Neelmani
Keyin, Vigilance
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Barakhamba, HQ.
SI Akansha Bhargava, P.S.
North Avenue.
Mr. Prince Sharma,
Advocate for R-2.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The petitioner filed petition bearing no. Crl. M.C. 5130/2019 under
section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code") for quashing of FIR bearing no 0007/2016
registered at PS North Avenue under sections 498A/406/354/34 of
the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and
the revision petition bearing no. Crl. Rev. P. 406/2023 under sections
397 and 401 of the Code read with section 482 of Code against order
on charge dated 10.03.2023 passed by the court of Sh. Pawan Kumar,
Additional Sessions Judge, Special Fast Track Court, Patiala House
Courts, Delhi.
2. FIR bearing no. 0007/2016 dated 16.01.2016 was got registered
under sections 498A/406/354/34 IPC at P.S. North Avenue, Delhi
based on the complaint made by the respondent no. 2. The respondent
no. 2 primarily alleged that she got married with Sujeet Kumar Jha
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s/o Jugal Kishore Jha, who was employed in Air Force, on
10.06.2011 at Village Maniyari, Dist. Sitamarhi, Bihar as per the
Hindu rites and ceremonies and at the time of marriage sufficient
dowry including cash and jewellery was given. The respondent no 2
was tortured for dowry demands. The petitioner is the brother-in-law
(husband of the sister of Sujeet Kumar) of the respondent no 2 and
Sujeet Kumar. Sujeet Kumar allegedly compelled the respondent no
2 to establish physical relation with the petitioner and was beaten by
Sujeet Kumar on refusal. Jugal Kishore Jha, father in law of the
respondent no 2 also tried to establish relations with her forcibly. The
respondent no. 2 was left at the native village on the pretext of
celebration of Chhath Puja and thereafter, the respondent no 2 was
left at the house of the petitioner where his wife was not staying. The
respondent no 2 also informed her father about mental and physical
torture being faced by her. The respondent no. 2 was brought back to
Delhi and the petitioner also came to Delhi after 3-4 days. The
petitioner continued to harass the respondent no 2. Sujeet Kumar
demanded Rs. 10 lakhs on 17.02.2015 for the construction of new
house at Muzaffarpur. Sujeet Kumar on 23.02.2015 at about 4pm had
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left to join his duty but did not report for the duty and accordingly
missing report was lodged at PS Kalkaji. The petitioner also came
after about 15 days and asked the respondent no 2 to do the acts as
dictated by the petitioner. The respondent no 2 lodged a complaint at
DCP Office, Sarita Vihar and PS Kalkaji and went to her parental
house. The petitioner had gone back to Sitamarhi but extended threat
to the father of the respondent no 2 through two boys. Accordingly,
present FIR bearing no 0007/2016 under sections 498A/406/34 and
354 IPC was got registered at PS North Avenue and investigation
was handed over to SI Ram Kumar.
2.1 The statements of the respondent no 2 and her father Sh. Arvind
Kumar Jha were recorded under section 161 of the Code during the
investigation. The respondent no 2 in supplementary statement
recorded under section 161 of the Code on 08.08.2016 stated that the
respondent no 2 has committed rape with her several times against
her consent when the respondent no 2 was left at house of the
petitioner situated at Sitamarhi by her husband Sujeet Kumar. The
respondent no 2 did not disclose this fact to anyone due to fear but
disclosed it to her mother. The statement of the respondent no 2 was
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also recorded under section 164 of the Code vide proceedings dated
11.05.2016 conducted by Sh. Aashish Gupta, Metropolitan
Magistrate, Patiala House Courts, Delhi wherein the respondent no 2
made allegations of harassment, molestation and rape at Sitamarhi
and attempt to rape at Delhi against the petitioner. Thereafter, offence
punishable under section 376 IPC was also added against the
petitioner on the basis of statement of the respondent no 2 under
section 164 of the Code. The investigation was handed over to WSI
Neelam Sharma. The respondent no. 2 during investigation had
refused to undergo gynaecological examination. The charge sheet
after conclusion of the investigation was filed for the offence
punishable under sections 498A/406/354/34/376 IPC wherein the
petitioner and Jugal Kishore Jha, father-in-law of the respondent no 2
were implicated.
3. The Court of Sh. Pawan Kumar, Additional Sessions Judge,
Special FTC, Patiala House Courts, Delhi (hereinafter referred to as
"the trial court") vide order dated 10.03.2023 (hereinafter referred
to as "the impugned order") has discharged the accused Jugal
Kishore Jha. The relevant part of order dated 10.03.2023 qua the
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accused Jugal Kishore Jha reads as under:-
7). Considering the incoherent and general allegations
against the accused no. 1 in the FIR and no allegations in
the statement recorded under Section 164 Cr.P.C., this
court is of the view that this is not the case of grace
suspicion wherein the charge can be framed against the
accused no. 1. In view of the facts and submissions, this
court is of the considered opinion that no prima facie case is
made out against accused no. 1 and accordingly, he stands
discharged.
3.1 The trial court vide impugned order framed the charges against
the petitioner for the offences punishable under sections
354/354B/376/506 IPC. The relevant part of order dated 10.03.2023
qua the accused the petitioner reads as under:-
9.) Despite the fact that the prosecutrix had not stated
about the commission of rape in the FIR and for the first
time, the prosecutrix had alleged to have been subjected to
the forcible sexual relation by the accused no. 2, while she
was staying at the house of the accused no. 2 at Sitamarhi,
Bihar, in her statement under Section 164 Cr.P.C.
Considering the case law and the factual situation and from
the above discussion and perusal of material placed on
record by the prosecution, there is sufficient prima facie
material to frame charges against the accused no. 2 for
having committing sexual intercourse with the prosecutrix
against her will and without her consent. Therefore, charge
u/s. 354, 354B, 376 & 506 IPC is made out against the
accused no. 2 Gopal Jha. Formal charge to be frame
accordingly.
4. The petitioner filed the petition bearing no 5130/2019 under
section 482 of the Code for quashing of FIR bearing no 0007/2016
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and consequential judicial proceedings stated to be pending in the
trial court and made following prayer-
In view of the above facts and circumstances, it is most
respectfully prayed that this Hon'ble Court may graciously
be pleased to pass an order: -
a) allowing the present petition of the petitioner and
quashed the FIR No. 7/2016 dated 16.01.2016 registered
at Police Station North Avenue, under Section
498A/406/354/376 IPC, against the petitioner, and
quash the entire criminal proceedings arisen out of the
above FIR which are presently pending in the court of
Sh. P.K Jain, learned Additional Session Judge, Patiala
House Courts, New Delhi;
b) any other or such further orders, as this Hon'ble
Court may deem fit and proper on the facts and dated
circumstances of the case in the interest of justice.
4.1 The petitioner filed revision petition bearing no 406/2023 to
challenge the impugned order passed by the trial court whereby
charges for offences punishable under sections 354, 354B, 376 & 506
IPC were ordered to be framed against the petitioner and made
following prayer:-
In the premises aforesaid it is most humbly and respectfully
prayed that this Hon'ble Court may graciously be pleased
to:-
(a) allow the petition filed by the petitioner by setting
aside impugned order dated 10.03.2023, passed Sh.
Pawan Kumar, learned Additional Sessions Judge/SPL,
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Fast Track Court, Patiala House Courts, New Delhi in
connection with the SC No. 108of2019;
(b) pass other or further orders as this Hon'ble Court
may deem fit and proper on the facts and circumstances
of the case and in the interest of justice.
5. The petitioner in petition bearing no 5130/2019 pleaded that the
respondent no 2 got married with Sujeet Jha on 10.06.2011 at Village
Maniyari, District Sitamarhi, Bihar as per the Hindu rites and
ceremonies. Sujeet Jha who was employed in Air Force went missing
on 23.02.2015 for which missing report vide DD No 21A dated
24.02.2015 was lodged in PS Kalkaji Police Station and subsequently
FIR bearing no 325/2015 was registered on 09.04.2015 under section
365 IPC at PS Kalkaji. Jugal Kishore Jha, father in law of the
respondent no 2 filed a Writ of Habeas Corpus bearing WP (Crl.) no
1162/2015. The respondent no 2 also filed a complaint under section
12 of the Protection of Women from Domestic Violence Act, 2005.
The respondent no 2 after about 18 months lodged a false and
frivolous complaint on 16.01.2016 and accordingly present FIR
bearing no. 0007/2016 was registered under sections
498A/406/354/34 IPC at PS North Avenue. The respondent no 2 after
4-5 months of lodging of FIR made statement under section 161 of
the Code on 05.04.2016 wherein the respondent no 2 improved her
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statement by alleging that the petitioner had sexually assaulted her
once but in statement recorded under section 164 of the Code, she
alleged that the petitioner sexually assaulted her three to four times.
5.1 The petitioner sought quashing of FIR bearing no. 0007/2016 on
grounds that no prima facie case is made out against the petitioner as
per the contents of FIR and evidences collected during the
investigation. The respondent no.2 did not allege rape till recording
of statements under sections 161 and 164 of the Code as such there is
considerable delay which is not explained. The alleged incident of
rape was committed in year 2014 at Sitamarhi, Bihar and the
respondent no. 2 returned at New Delhi thereafter but did not file any
complaint before any authority at Delhi. The respondent no 2 has not
stated any specific time or date of the alleged incident of rape. There
is no independent witness to support the case of the respondent no 2.
There is no incriminating evidence against the petitioner except
statements recorded under sections 161 and 164 of the Code. The
alleged incident of rape was committed at Sitmarhi, Bihar and as
such trial should be conducted where alleged offence was committed.
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It is prayed that present FIR be quashed along with consequential
proceedings.
5.2 The petitioner in revision petition bearing no 406/2023 besides
narrating factual background as stated in petition no 5130/2019
challenged the impugned order dated 10.03.2023 on grounds that the
impugned order is not sustainable in the eyes of the law. No prima
facie case is made out against the petitioner on the basis of material
collected during investigation. The respondent no.2 did not file any
complaint before any authority pertaining to rape prior to the missing
of her husband. There is nothing to suggest that the petitioner visited
Sitamarhi, Bihar where the alleged offence of rape had happened.
The respondent no.2 did not allege committal of rape till recording of
statements under sections 161 and 164 of the Code wherein the
respondent no 2 improved her version. There is unexplained delay.
The petitioner did not state specific time and date of the alleged
incident of rape. There is no independent witness to support the
version of the respondent no 2. The alleged incident of rape was
committed at Sitamarhi, Bihar and as such trial should have
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commenced at place of offence. It is prayed that impugned order be
set aside.
6. The counsel for the petitioner in respect of petitions bearing no
5130/2019 and 406/2023 argued that the respondent no 2 prior to
registration of present FIR has filed complaints before various
authorities but in those complaints, the respondent no 2 did not allege
committal of rape by the petitioner. The counsel for the petitioner
also argued that there was delay in registration of FIR. The present
FIR was registered on 16.01.2016 on the basis of written complaint
filed by the respondent no 2 but alleged offence of rape was
committed of present FIR was committed at Sitamarhi, Bihar in the
month of October, 2014 when the respondent no. 2 went to Sitamarhi
with her husband Sujeet Kumar Jha. The respondent no. 2 did not file
complaint before any local authorities at Sitamarhi, Bihar.
6.1 The counsel for the petitioner further argued that the respondent
no. 2 improved her statement on every occasion. The offence
punishable under section 376 IPC was added on the basis of
statement of the respondent no. 2 recorded under section 164 of the
Code. The allegation pertaining to offence punishable under section
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376 IPC firstly surfaced in statement of the respondent no. 2 recorded
under section 161 of the Code on 05.04.2016. The respondent no. 2
as such told a total different story which was not stated in FIR
bearing no. 0007/2016 and previous complaints. The respondent no.
2 did not mention the specific date and time of the alleged committal
of rape by the petitioner in statement recorded under section 164 of
the Code. The counsel for the petitioner further argued that no
incriminating evidence including medical evidence could be collected
against the petitioner during the investigation. The counsel for the
petitioner also argued that the petitioner is entitled for discharge on
ground of territorial jurisdiction. The alleged offences subject matter
of present FIR were committed at Sitamarhi, Bihar and offence of
rape is not a continuing offence. The counsel for the petitioner cited
Vijayan V State of Kerala & another, (2010)2 SCC 398, Prasant
Bharti V State of NCT of Delhi, AIR 2013 SC 2753, Rajiv Thapar
& other V Madan Lal Kapoor, AIR 2013 SC (Supp) 1056 etc.
7. The counsel for the respondent no. 2 assisted the Additional Public
Prosecutor for the respondent no. 1/State argued that the respondent
no. 2 made specific allegations against the petitioner in her
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complaint. The respondent no. 2 in statement under section 161 of the
Code had specifically stated that the petitioner used to do
inappropriate acts with the respondent no. 2. The petitioner used to
come in the kitchen and grab the respondent no. 2 from behind. The
petitioner used to push the respondent no. 2 on the bed and made
forceful physical relations with her. The respondent no. 2 on
13.12.2014 came to Delhi along with her husband. The petitioner
pushed the respondent no. 2 on the bed and made forceful relations
with her when the husband of the respondent no. 2 had left for job
and threatened her with consequences. The respondent no. 2 had
corroborated her complaint in statements under sections 161 and 164
of the Code. The counsel for the petitioner cited Bhawna Bai V
Ghanshyam, (2020) 2 SCC 217 and Manendra Prasad Tiwari V
Amit Kumar Tiwari and another, 2022 SCC OnLine SC 1057.
8. The Chapter XVIII of the Code deals with trial before a Court of
Session. Section 227 deals with situation when the accused shall be
discharged. Section 228 deals with framing of charge. Sections 227
and 228 of the Code reads as under:-
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227. Discharge.-If, upon consideration of the record of the
case and the documents submitted therewith, and after
hearing the submissions of the accused and the prosecution
in this behalf, the Judge considers that there is not
sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so
doing.
228. Framing of charge.--(1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that there
is ground for presuming that the accused has committed an
offence which--
(a) is not exclusively triable by the Court of Session, he may,
frame a charge against the accused and, by order, transfer
the case for trial to the Chief Judicial Magistrate, 3 [or any
other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or,
as the case may be, the Judicial Magistrate of the first class,
on such date as he deems fit, and thereupon such
Magistrate] shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
sub-section (1), the charge shall be read and explained to
the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.
8.1 The purpose of framing a charge is to intimate the accused about
the clear, unambiguous and precise nature of accusation that the
accused is called upon to meet in the course of a trial as observed in
V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The
prosecution is required to establish a prima facie before a charge can
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be framed. The Supreme Court in Union of India V Prafulla
Kumar Samal & another, (1979) 3 SCC 4 considered scope of
inquiry at the stage of framing of charge as per section 227 of the
Code in Sessions criminal trial and observed as under:-
(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 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
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.
8.2 The Supreme Court in Onkar Nath Mishra & others V State
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(NCT of Delhi) & another, Appeal (Crl.)1716 of 2007 decided on
14th December, 2007 regarding framing of charge observed as under:-
It is trite that at the stage of framing of charge 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, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage,
the court is not expected to go deep into the probative value
of the material on record. What needs to be considered is
whether there is a ground for presuming that the offence
has been committed and not a ground for convicting the
accused has been made out. At that stage, even strong
suspicion founded on material which leads the court to
form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged would
justify the framing of charge against the accused in respect
of the commission of that offence.
8.3 The Supreme Court Dipakbhai Jagdish Chandra Patel V
State of Gujarat, (2019) 16 SCC 547 discussed law relating to
the framing of charge and discharge and observed as under:-
15. We may profitably, in this regard, refer to the judgment
of this Court in State of Bihar v. Ramesh Singh wherein
this Court has laid down the principles relating to framing
of charge and discharge as follows:
4.....Reading Sections 227 and 228 together in
juxtaposition, as they have got to be, it would be clear that
at the beginning and 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
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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....
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.
23. At the stage of framing the charge in accordance with
the principles which have been laid down by this Court,
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what the Court is expected to do is, it does not act as a mere
post office. The Court must indeed sift the material before
it. The material to be sifted would be the material which is
produced and relied upon by the prosecution. The sifting is
not to be meticulous in the sense that the Court dons the
mantle of the Trial Judge hearing arguments after the
entire evidence has been adduced after a full-fledged trial
and the question is not whether the prosecution has made
out the case for the conviction of the accused. All that is
required is, the Court must be satisfied that with the
materials available, a case is made out for the accused to
stand trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The material
must be such as can be translated into evidence at the stage
of trial. The strong suspicion cannot be the pure subjective
satisfaction based on the moral notions of the Judge that
here is a case where it is possible that accused has
committed the offence. Strong suspicion must be the
suspicion which is premised on some material which
commends itself to the court as sufficient to entertain the
prima facie view that the accused has committed the
offence.
8.4 The Supreme Court in Asim Shariff V National Investigation
Agency, (2019) 7 SCC 148 expressed that the trial court is not
expected or supposed to hold a mini trial for the purpose of
marshalling the evidence on record. The Supreme Court in State of
Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a
settled principle of law that at the stage of considering an application
for discharge the court must proceed on the assumption that the
material which has been brought on the record by the prosecution is
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true and evaluate the material in order to determine whether the facts
emerging from the material, taken on its face value, disclose the
existence of the ingredients necessary to constitute the offence. The
Supreme Court in Bhawna Bai v Ghanshyam, (2020) 2 SCC 217 as
cited by the counsel for the respondent no. 2 observed as under:-
13. At the time of framing the charges, only prima facie
case is to be seen; whether case is beyond reasonable doubt,
is not to be seen at this stage. At the stage of framing the
charge, the .court has to see if there is sufficient ground for
proceeding against the accused. While evaluating the
materials, strict standard of proof is not required; only
prima facie case against the accused is to be seen.
8.5 The Supreme Court in Ghulam Hassan Beigh V Mohammad
Maqbool Magrey & Others, Criminal Appeal No. 001041 of 2022
(Arising out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th
July, 2022 observed as under:-
Thus from the aforesaid, it is evident that the trial court is
enjoined with the duty to apply its mind at the time of
framing of charge and should not act as a mere post office.
The endorsement on the charge sheet presented by the
police as it is without applying its mind and without
recording brief reasons in support of its opinion is not
countenanced by law. However, the material which is
required to be evaluated by the Court at the time of
framing charge should be the material which is produced
and relied upon by the prosecution. The sifting of such
material is not to be so meticulous as would render the
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exercise a mini trial to find out the guilt or otherwise of the
accused. All that is required at this stage is that the Court
must be satisfied that the evidence collected by the
prosecution is sufficient to presume that the accused has
committed an offence. Even a strong suspicion would
suffice. Undoubtedly, apart from the material that is placed
before the Court by the prosecution in the shape of final
report in terms of Section 173 of CrPC, the Court may also
rely upon any other evidence or material which is of
sterling quality and has direct bearing on the charge laid
before it by the prosecution. (See: Bhawna Bai v.
Ghanshyam, (2020) 2 SCC 217).
9. It is reflecting that the respondent no. 2 was married with Sujeet
Kumar Jha, who was employed in Air Force, on 10.06.2011 at
Village Maniyari, Dist. Sitamarhi, Bihar. The petitioner is brother-in-
law of the respondent no. 2 i.e. husband of sister of Sujeet Kumar,
husband of the respondent no. 2. The respondent no. 2 after marriage
came to Delhi. The respondent no. 2 got registered present FIR
bearing no. 0007/2016 registered under sections 406/498A/354/34
IPC at PS North Avenue wherein Jugal Kishore Jha, father in law of
the respondent no. 2 and the petitioner were implicated. The
respondent no. 2 primarily alleged that she was tortured for dowry
demands and was allegedly compelled by Sujeet Kumar to establish
physical relation with the petitioner. The respondent no. 2 was taken
to native village on the pretext of celebration of Chhath Puja where
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the petitioner used to harass her. The respondent no. 2 was brought
back to Delhi but the petitioner continued to harass the respondent no
2. Sujeet Kumar on 23.02.2015 was found missing and accordingly
missing report was lodged at PS Kalkaji. The respondent no. 2 lodged
a complaint at DCP Office, Sarita Vihar and PS Kalkaji which was
culminated into registration of present FIR bearing no 0007/2016
under sections 498A/406/34 and 354 IPC at PS North Avenue. The
respondent no. 2 only made general allegations of harassment and
molestation against her father in law namely Jugal Kishore Jha and
the petitioner but did not make allegations of forceful sexual acts or
rape against the petitioner towards the respondent no. 2. The
respondent no. 2 also did not make allegations of rape against the
petitioner in other complaints made by her to various authorities as
referred by the counsel for the petitioner during arguments. The
statements of the respondent no. 2 and her parents were also recorded
under section 161 of the Code but no allegations of rape were made
against the petitioner. The respondent no. 2 in supplementary
statements recorded under section 161 of the Code on 05.04.2016 and
08.08.2016 for first time made allegations of harassment, molestation
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and rape against the petitioner by stating that the petitioner has
committed rape with her several times against her consent when the
respondent no. 2 was left at house of the petitioner situated at
Sitamarhi, Bihar. The respondent no. 2 in statement under section
164 of the Code recorded vide proceedings dated 11.05.2016 made
allegations of harassment, molestation and rape at Sitamarhi, Bihar
and attempt to rape at Delhi against the petitioner. The offence under
section 376 IPC was added against the petitioner on the basis of
statement of the respondent no.2 under section 164 of the Code. The
respondent no. 2 had refused to undergo gynaecological examination.
The investigating officer had implicated the petitioner and Jugal
Kishore Jha in the charge sheet. Jugal Kishore Jha was ordered to be
discharged vide impugned order as the trial court opined that only
incoherent and general allegations are made against Jugal Kishore
Jha in FIR and no allegations are made in the statement recorded
under Section 164 of the Code. The trial court vide impugned order
framed the charges against the petitioner for the offences under
sections 354/354B/376/506 IPC by observing that there is sufficient
prima facie material to frame charges against the accused no. 2 for
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having committed sexual intercourse but simultaneously also
observed that the respondent no. 2 had not stated about the
commission of rape in the FIR and for the first time alleged to have
been subjected to the forcible sexual relation by the accused no. 2
while she was staying at the house of the petitioner at Sitamarhi,
Bihar in statement under Section 164 of the Code.
10. Issue which needs judicial consideration is that whether on basis
of material collected during investigation, a prima facie case is made
out against the petitioner which is sufficient to frame charges against
the petitioner for offences punishable under sections
354/354B/376/506 IPC.
11. The counsel for the petitioner primarily argued that the
respondent no. 2 made improvements regarding commission of
offences for which the petitioner was charged in statements under
section 161 and 164 of the Code. The trial court at time of
consideration of framing of charge is not supposed to conduct mini
trial. It is accepted proposition of law that the court is required to
consider only prima facie case at the time of framing the charges and
to see that there is sufficient ground for proceeding against the
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accused. The court is not required to consider whether prosecution
would be able to prove its case beyond reasonable doubt. The sifting
of material collected during investigation is not required to be done
equivalent to mini trial to find out the guilt or otherwise of the
accused. As mentioned hereinabove, the respondent no. 2 did not
make allegations of rape against the petitioner in the complaint which
culminated into registration of FIR but made allegations of rape in
subsequent statements recorded under sections 161 and 164 of the
Code. The petitioner cannot be discharged merely due to reason that
the respondent no. 2 did not make allegation of rape in FIR and other
complaints. The entire material collected during investigation should
be appreciated as whole and cannot be bifurcated to decide that one
particular offence is made out or not. The statements of the
respondent no. 2 recorded under section 161 of the Code on
05.04.2016 and 08.08.2016 and statement of the respondent no. 2
recorded under section 164 of the Code on 11.05.2016 cannot be
appreciated in isolation and contents of FIR cannot be read or
appreciated independent of statements under section 161 and 164 of
the Code. The statements of the respondent no. 2 under sections 161
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and 164 of the Code prima facie discloses commission of offences
punishable under section 376 IPC and other offence with which the
petitioner is charged.
11.1 The Supreme Court in Hazrat Deen V The State of Uttar
Pradesh, Special Leave to Appeal (Crl.) No(s). 9552/2021 decided
on 06.01.2022 also appreciated relevance of statement under section
164 of the Code at the time of consideration of charge and held that
the prosecutrix under Section 164 of the Code after the prosecutrix
attained majority, categorically made statements which tantamount to
offence under Section 376 IPC. Discrepancies between the FIR and
any subsequent statement under Section 164 of the Code may be a
defence. However, the discrepancies cannot be a ground for
discharge without initiation of trial. The Coordinate Bench of this
court in Renu Vij V State, Crl. Rev. P. 272/2007 decided on 12th
July, 2011 held that the sole testimony of the prosecutrix can be the
basis of conviction of an accused for an offence under Section 376
IPC, if the same inspires confidence but whether the same inspires
confidence or not is a question of fact to be decided on the basis of
evidence adduced by the prosecution during trial, the cross-
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examination and the defence of the accused. Another Coordinate
Bench of this court in State V Mohd. Javed Nasir & others, Crl.
Rev. P. 268/2018 decided on 23rd November, 2022 considered
relevance of statement recorded under section 164 of the Code and
observed that charges under section 376 IPC could be framed even if
allegations pertaining to offence under section 376 IPC are not made.
It was observed as under:-
In the given facts, a charge under Section 376 IPC could
have been framed solely on the basis of the statement made
under Section 164 Cr.P.C. even if such an allegation was
not made in the FIR or in statement under Section 161
Cr.P.C. This is so because in offences like rape where only
the victim is the witness in majority of the cases, the
statement made by victim should be looked at from a
considerate and liberal perspective at the time of framing
charges. A statement made under Section 164 Cr.P.C.
disclosing the offence of rape shall be sufficient to frame
charges under Section 376 of IPC.
11.2 The Supreme Court in Manendra Prasad Tiwari V Amit
Kumar Tiwari and another, 2022 SCC OnLine SC 1057 observed
that quashing of charge cannot be done by weighing the correctness
or sufficiency of the ·evidence and the truthfulness, the sufficiency
and acceptability of the material produced at the time of framing of a
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charge can be done only at the stage of trial. It was observed as
under:-
21. The law.is well settled that although it is open to a High
Court entertaining a petition under Section 482 of the
CrPC or a revision application under Section 397 of the
CrPC to quash the charges framed by the trial court, yet
the same cannot be done by weighing the correctness or
sufficiency of the ·evidence. In a case praying for quashing
of the charge, the principle to be adopted by the High
Court should be that if the entire evidence produced by the
prosecution is to be believed, would it constitute an offence
or not. The truthfulness, the sufficiency and acceptability of
the material produced at the time of framing of a charge
can be done only at the stage of trial. To put it more
succinctly, at the stage of charge the Court is to examine
the materials only with a view to be satisfied that prima
facie case of commission of offence alleged has been made
out against the accused person. It is also well settled that
when the petition is filed by the accused under Section 482
CrPC or a revision Petition under Section 397 read with
Section 401 of the Cr.P.C seeking for the quashing of
charge framed against him, the Court should not interfere
with the order unless there are strong reasons to hold that
in the interest of justice and to avoid abuse of the process of
the Court a charge framed against the accused needs to be
quashed. Such an order can be passed only in exceptional
cases and on rare occasions. It is to be kept in mind that
once the trial court has framed a charge against an accused
the trial must proceed without unnecessary interference by
a superior court and the entire evidence from the
prosecution side should be placed on record. Any attempt
by an accused for quashing of a charge before the entire
prosecution evidence has come on record should not be
entertained sans exceptional cases.
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12. The counsel for the petitioner also sought discharge of the
petitioner on grounds of delay in registration of FIR and due to lack
of territorial jurisdiction of courts at Delhi. The trial court did not
deal with issue of territorial jurisdiction. The counsel for the
petitioner argued that as per contents of FIR, there is considerable
delay in registration of FIR. The petitioner cannot be discharged on
ground of delay in registration of FIR as prosecution should be given
due opportunity to explain delay if any in registration of FIR during
trial.
12.1 The Supreme Court in Ms. P V State of Uttarakhand &
another, Appeal No 903 of 2022 (Arising out of SLP (Crl.) No 6548
of 2019) decided on 16th June, 2022 considered discharge of accused
on ground of lack of territorial jurisdiction. In above referred case,
the Sessions Court at Chamoli discharged the accused/respondent no.
2 of the offence under Section 376 IPC on the ground of lack of
territorial jurisdiction. The appellant alleged that she after
engagement with the respondent no. 2 was invited by him to Delhi
and was subjected to sexual intercourse by the respondent no. 2
against her wishes at Delhi in the month of February 2016. The
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appellant further alleged that the respondent no. 2, thereafter, made a
demand of money and refused to marry her when the demand was not
met and later on the respondent no. 2 hurled abuses and also
threatened to kill her. FIR as per direction under section 156(3) of the
Code was registered at Police Station, Gairsain and charge sheet was
submitted after investigation in the Court of Judicial Magistrate First
Class, Gairsain, District Chamoli for offences under Sections
376/504/506 IPC and was committed to the Court of Sessions Judge,
Chamoli. The order passed by the Sessions Judge, Chamoli on
framing charge has given rise to the present dispute. The Sessions
Judge held that the offence under Section 376 IPC had taken place at
Delhi and was not a continuing offence and whatever threat was
allegedly given by the respondent no. 2/accused to the
appellant/victim did not constitute a kind of offence which could be
said to be in the series of same transaction. The Sessions Judge
concluded that the respondent no. 2/accused was entitled to be
discharged in relation to the offence under Section 376 IPC for want
of territorial jurisdiction. The High Court also dismissed the revision
petition. The Supreme Court considered limited question concerning
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validity of the order passed by the Sessions Judge segregating the
offences and discharging the accused/respondent no. 2 of the offence
under section 376 IPC for want of territorial jurisdiction. In instant
case the complaint as made by the appellant is of the allegations of
different offences, of different nature and at different places of
occurrence though said to have been committed by the respondent no.
2 and against the appellant. It was also considered by the Supreme
Court that the allegations consist of offences of distinct nature as one
set of allegations is of the offence of rape at Delhi (Section 376 IPC)
and the other set of allegations is of hurling abuses and extending
threat on phone calls received by the appellant at her village in
District Chamoli (Sections 504 and 506 IPC) with reference to
section 220 read with section 184 of the Code as to whether the
alleged offences are such that the respondent no. 2 could be charged
with and tried at one trial for each of them and in other words the
question is as to whether the acts complained of could be said to be
'one series of acts so connected together as to form the same
transaction' for the purpose of trial together.
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12.1.1 The Supreme Court in Mohan Baitha and others v State of
Bihar and another, (2001) 4 SCC 350 and Anju Chaudhary V
State of Uttar Pradesh and another, (2013) 6 SCC 384 as referred
in instant case pointed out that no formula of universal application
could be enunciated for determining as to whether two or more acts
constitute the same transaction which is purely a question of fact and
indicated the core elements like proximity of time, unity or proximity
of place, continuity of action and community of purpose or design,
which are of relevant considerations and when these factors are
applied to common sense and ordinary use of language, the vexed
question of 'same transaction' could be reasonably determined. The
Supreme Court in instant case observed that the appellant and the
respondent no. 2 were engaged for matrimonial alliance on
13.11.2015 at their village Dangidhar, Tehsil Gairsain, District
Chamoli, the alleged acts of sexual relationship took place at Delhi in
the months of February and March, 2016, the other alleged acts of
hurling abuses and extending threats which the appellant received
over telephone at her village in or around the month of November,
2016. It was further observed that these acts in question were neither
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proximate in time nor proximate in place and were not of continuity.
The appellant had alleged that she submitted to the sexual acts
because of the threat by the respondent no.2 to snap the proposed
alliance but it had not been her case that the respondent no. 2
attempted to coerce her into the same physical relationship while
hurling abuses or threatening to kill at the later part of time. The
Supreme Court observed it is difficult to find continuity of actions
and community of purpose or design in two different acts leading to
two different set of offences, i.e., one under Section 376 IPC and the
other under Sections 504/506 IPC. The Supreme Court accordingly
upheld decision given by the Sessions Judge.
12.2 The facts of present case are entirely different from above
referred decision delivered by the Supreme Court. In the present case,
the respondent no. 2 got married on 10.06.2011 at Village Maniyari,
Dist. Sitamarhi, Bihar but was allegedly tortured for dowry demands
in Delhi. The respondent no. 2 was allegedly compelled to establish
physical relation with the petitioner at Delhi also. The respondent no.
2 was harassed, molested and subjected to sexual abuse at house of
the petitioner situated at native village as well as in Delhi as reflected
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from contents of FIR and statements of the respondent no. 2 recorded
under sections 161 and 164 of the Code. The offences as complained
of are committed both at Delhi and native village of the petitioner.
The acts constituting offences subject matter of present trial
constitute the same transaction due to continuity of action and
community of purpose or design. Accordingly trial arising out of
present FIR is not hit by want of territorial jurisdiction.
13. The impugned order does not warrant any interference. The
petitioner cannot be discharged for offences as complained of and for
which charges have ordered to be framed vide impugned order dated
10.03.2023. The petitioner cannot be discharged for offences
punishable under sections 376/354/354B/506 IPC. The revision
petition bearing no 406/2023 is dismissed along with pending
application, if any.
14. The petitioner also filed petition bearing no 5130/2019 under
section 482 of the Code for quashing of FIR bearing no 0007/2016
along with consequential judicial proceedings. The extraordinary
power under section 482 of the Code should be exercised sparingly
and with great care and caution and can be used to prevent abuse of
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the process of the court or to secure ends of justice and the exercise
of inherent powers entirely depends on facts and circumstances of
each case. The Supreme Court in Sushil Suri V Central Bureau of
Investigation and another, (2011) 5 SCC 708 considered the scope
and ambit of the inherent jurisdiction of the High Court and observed
that the power possessed by the High Court under section 482 of the
Code is very wide but it is not unbridled and has to be exercised
sparingly, carefully and cautiously and to do real and substantial
justice. The Supreme Court in Gian Singh V State of Punjab and
others, (2012) 10 SCC 303 observed that before exercise of power
under section 482 of the Code, the High Court must have due regard
to the nature and gravity of the crime. Heinous and serious offences
of mental depravity or offences like murder, rape, dacoity, etc. cannot
be fittingly quashed even though the victim or victim's family and the
offender have settled the dispute. Such offences are not private in
nature and have serious impact on society. The Supreme Court in
Daxaben V The State of Gujrat & others, SLP Criminal No.1132-
1155 of 2022 decided on 29.07.2022 also expressed similar view.
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15. The present FIR also pertains to offence punishable under section
376 IPC which is a serious and heinous offence. It has already been
observed while dismissing revision petition bearing no.406/2023 to
challenge impugned order that material collected during investigation
prima facie discloses commission of offences punishable under
sections 354/354B/376/506 IPC against the petitioner. The present
FIR bearing no 0007/2016 cannot be quashed along with
consequential judicial proceedings. Hence petition bearing no
5130/2019 along with pending application, if any, is dismissed.
16. Copy of this order be sent to the concerned trial court for
information.
DR. SUDHIR KUMAR JAIN
(JUDGE)
SEPTEMBER 12, 2023
Sk/ak/sm
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