Crl.Pet./594/2022
2022 Latest Caselaw 4341 Gua

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GAHC010126912022




                     THE GAUHATI HIGH COURT AT GUWAHATI
         (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                         PRINCIPAL SEAT AT GUWAHATI


                                 Crl. Pet. No. 594/2022


          Shri Utsav Kadam,
          Aged about 22 years,
          Son of Shri Uday Kadam,
          Permanent resident of B-901, Prakarti,
          Gokuldham, Goregaon, East Mumbai- 63
                                                    .....................Accused/Petitioner


              -Vs-


   1.     State of Assam, represented by Pubic Prosecutor.




   2.     Miss Nistha Rathod,
          Daughter of Shri Kanti Bhai Rathod,
          Permanent resident of Vadodra,
          J.P. Road Police Chowki,
          Gujarat - 390012


              AND/OR
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                 Presently residing at Dhansiri Hostel II,
                 Indian Institute of Technology,
                 Guwahati (IIT Guwahati),
                 P.O. & P.S.-No.: North Guwahati, Kamrup(R),
                 Guwahati, Assam, Pin-781039.


                                     ...............Opposite Parties


Advocates for the petitioner:        Mr K N Choudhury, Sr. Adv.
                                     Mr B Gogoi.


Advocate for the respondents:        Mr D Das, Addl. P.P.

Ms S Sharma, R-2

BEFORE HON'BLE MRS. JUSTICE MALASRI NANDI

Date of hearing and Judgment : 09.11.2022

JUDGEMENT AND ORDER (ORAL)

Heard Mr K N Choudhury, learned Senior Counsel, assisted by Mr B Gogoi, learned

counsel appearing for the petitioner and Mr D Das, learned Additional Public Prosecutor for

the State of Assam. Also heard Ms S Sharma, learned counsel for the victim/respondent No.

2.

2. Today, this criminal petition is fixed for admission. However, with the consent of the

learned counsel for the parties, the matter is taken up for disposal at the admission stage

itself.

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3. By filing this application under Section 482 CrPC, the petitioner has preferred to quash

the charges framed against him under Sections 376/328 IPC, in Sessions Case No. 36/2021,

vide order dated 27.05.2022, passed by the learned Additional Sessions Judge, Kamrup,

Amingaon.

4. The brief facts of the prosecution case what emerges from the FIR is that one Security

Officer of IIT, Guwahati lodged FIR before the Officer-In-Charge, Amingaon Police Station on

2.04.2021, stating inter alia that on 28th March, 2021, at around 11:00 pm, a female student

was found unconscious in the institute premises. The girl was examined at the institute

hospital and immediately sent in the Institute ambulance to Gauhati Medical College and

Hospital for further medical examination. The institute constituted a committee on 29 th of

March, 2021, to investigate the incident and their report was handed over to the Institute on

02nd April, 2021. After enquiry, the Committee concluded that the case of the victim could be

a possible case of sexual assault.

5. Subsequently, FIR was lodged by the victim herself before the OC. All Women Police

Station, Guwahati, wherein, she stated that the incident occurred on 28.03.2021. On that day,

at about 09:30 pm, she was on her way back to hostel, at IIT G campus named "Dhansiri",

after attending a meeting of the Finance and Economics Club (hereinafter referred to as FEC),

held at the New Students' Activity Centre at IIT, Guwahati. She along with the five other

students of IIT, Guwahati was chosen as one of the six, new heads of the FEC. In the said

FEC meeting, on 28.03.2021, Sudhanshu Bhatia and Bhavya Agarwal were also present. In

the said meeting, the senior students of B.Tech, IIT Guwahati, in the name of personality

development programme, of the second year students, asked by Utsav Kadam that she Page No.# 4/17

needed to open up and be free with him as well as other seniors of IIT, Guwahati, a form of

ragging on campus.

6. After the said FEC meeting on 28.03.2021, at around 09:00 pm, she started walking

towards Dhansiri Hostel and Utsav Kdam joined her and stated casually that it would help if

they could discuss her duties as the new Joint Secretary of FEC, IIT Guwahati, if they could

walk by the Akshara School, on IIT Guwahati campus and that Sudanshu Bhatia would also

join with them, to which, she agreed. As they proceeded to walk together, he lured her by

saying that if they could sit down in the steps of Akshara School and thereafter when they

were discussing about her duties as Joint Secretary, FEC, he (accused) intermittently used to

get up from the front steps of the said Akshara School and went inside and accused also

asked her to come inside and accordingly, she went in. The moment she stepped inside, the

accused produced an alcohol bottle and asked her to drink, to which, she refused. Then the

accused started shoving the contents of the bottle inside her mouth. When she started

dizzing, at that moment, she remembered that the accused was trying to fondle with her and

thereafter, she became unconscious. In the next morning, when she regained her sense, she

found herself at Gauhati Medical College and Hospital, where she underwent treatment and

subsequently, she came to know that the case was one of serious sexual assault. It is also

stated in the FIR that she underwent tremendous physical and mental trauma coupled with

the shame that accompanies physical violation, especially possible rape, of a woman.

7. On receipt of the FIR, a case was registered vide North Guwahati PS Case No. 56/2021,

under Sections 376/328/307/120(B)/34 IPC and during investigation, statement of the victim

was recorded under Section 164 CrPC. I have gone through the statement of the victim

recorded under Section 164 CrPC, by the learned Magistrate. She has made the same Page No.# 5/17

allegation whatever she has stated in the FIR. She was consistent before the Magistrate as

well as before the Investigating Officer, when her statement was recorded under Section 161

CrPC.

8. Learned Senior Counsel, Mr K N Choudhury has argued that on the date of incident in

order to celebrate the victory of the victim as Joint Secretary of Finance and Economic Club

(FEC), the accused petitioner and the alleged victim willingly planned to celebrate party by

drinking alcohol and the alleged victim girl herself suggested the drinking point, which was

just behind her hostel. After the meeting, the accused petitioner and the victim girl walked

willingly towards Akshara School, as per the mutual plan. It is also the submission of the

learned Senior Counsel for the petitioner that there were clear WhatsApp messages and

conversation and social media contacts between the alleged victim and accused petitioner to

have few sips of alcohol mutually, but due to her medical condition, which was not known to

the accused petitioner, she became unconscious. Subsequently, with the help of her friends,

she was taken to the hospital.

9. Learned Senior Counsel for the petitioner has drawn the attention of this Court to the

medical report of the victim, wherein the doctor who examined the victim has clearly stated

that the hymen of the victim had old tears at three, five, seven'o clock position, which

transpires that she was habitual in sexual activities. On examination of the wearing clothes of

the petitioner as well as the victim, no any spermatozoa and gonococci was found. As such,

there is no point to prove against the accused petitioner for the offence under Section 376

IPC.

10. Learned Senior Counsel also referred to the FSL Report in connection with seizure of Page No.# 6/17

alcoholic bottles found at the place of occurrence and the result of glass bottles leveled as

Blenders' Pride Whisky gave positive test for Ethyl Alcohol and no poison was found. As such,

Section 328 IPC is not attracted in this case and as such, charges have been wrongly framed

by the learned Additional Sessions Judge, Amingaon, which is liable to be quashed.

11. Learned Senior Counsel also pointed out by referring the Judgment of the Hon'ble

Supreme Court, rendered in the case of Niranjan Singh Karam Singh Punjabi & Others

-Vs- State of Maharashtra, reported in (1990) 4 SCC 76; that the duty is casted upon the

Judge to apply his mind to the material on record and if on examination of the record, he

does not find sufficient ground for proceeding against the accused, he must discharge him.

On the other hand, if after such consideration and hearing, he is satisfied that a prima facie

case is made out against the accused, he must proceed to frame a charge as required Section

228 of CrPC.

12. Learned Senior Counsel has mentioned that Section 227 CrPC introduced for the first

time in the new Code, confers a special power on the Judge, to discharge an accused at the

threshold if upon consideration of the record and documents, he considers that there is not

sufficient ground to proceed against the accused. In other words, his consideration of the

record and document at that stage is for the limited purpose of ascertaining, whether or not

there exists any ground to proceed with the trial against the accused. If he comes to the

conclusion that there is sufficient ground, he will frame the charge under Section 228 and if

not, he will discharge the accused.

13. In support of his submission, learned Senior Counsel has placed reliance on the

following caselaws-

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1. (1990) 4 SCC 76; (Niranjan Singh Karam Singh Punjabi & Others -Vs-

State of Maharashtra.

2. (1998) 7 SCC 337 (Suresh Bhudarmal Kalani v State of Maharashtra.

14. Learned Senior Counsel also placed reliance on the decisions rendered in the case of

State Of Bihar vs. Ramesh Singh, reported in 1978 SCR (1) 257 and Union Of India

vs. Prafulla Kumar Samal, reported in 1979 SCR (2) 229.

15. On the other hand, learned Additional Public prosecutor, Mr D Das has submitted that

question of trial not to be determined at the time of framing of charge. Only subjective

satisfaction as to the existence of prima facie case is sufficient to frame charge. It is also

submitted that partial penetration is of no consequence and no presumption that penetration

necessarily leads to discovery of sperm.

16. On the point of old tears found on the victim's hymen and her habitual activity on sex,

learned counsel for the respondent No. 2, Ms S Sharma submits that even in a case where

there is material to show that the victim was habitual to sexual intercourse, no inference of

the victim being a woman of easy virtues or a woman of loose moral character can be drawn.

Such a woman has a right to protect her dignity and cannot be subjected to rape only for that

reason. Even a woman of easy virtue is entitled to privacy.

17. Learned counsel for respondent No. 2 as well as learned Additional Public Prosecutor

have further submitted that to frame charge against an accused, prima facie case is sufficient,

which is found in the instant case and the charge was rightly framed by the learned trial

Court and accordingly, prayed for dismissal of the criminal petition.

18. Learned Additional Public Prosecutor as well as learned counsel for the respondent No. Page No.# 8/17

2 have placed reliance on the following case-laws:-

1) (1979) 4 SCC 274; (Superintendent & Remembrancer of legal Affairs,

West Bengal v. Anil Kumar Bhunja & Others)

2) (1991) 1 SCC 63; (Union of India & Others -vs- Dev Raj Gupta &

Others).

3) (1994) 5 SCC 728; (Narayanamma (Kum) -Vs- State of Karnataka &

Others)

4) (1996) 2 SCC 384; (State of Punjab -vs- Gurmit Singh & Others)

5) (1996) 4 SCC 659; (State of Maharashtra -Vs- Som Nath Thapa)

6) (2000) 1 SCc 722; (Kanti Bhadra Shah & Another -vs- State of West

Bengal)

7) (2004) (6) SCC 522; (State of Andhra Pradesh -vs- Golconda Linga

Swamy & Another.

8) (2005) 11 SCC 600; [State (NCT of Delhi) -vs.- Navjot Sandhu @

Afsan Guru]

9) (2009) 16 SCC 605; (Chitresh Kumar Chopra -Vs- State Government

of NCT of Delhi)

10) (2012) 7 SCC 171; [Narender Kumar -Vs- State (NCT of Delhi)

11) (2015) 13 SCC 8; (State of Madhya Pradesh -Vs- Rakesh Mishra).

        12)        (2020) 2 SCC 217; (Bhawna Bai -vs.- Ghanshyam & others)
                                                                                 Page No.# 9/17

19. I have considered the submissions of learned counsel for both the parties. I have also

perused the documents available in the record.

20. The art of charge framing is a practical discipline requiring a margin of flexibility in

order to cater to situations not earlier envisaged, and it is a sort of preliminary testing of

evidence against the accused persons on the basis of information submitted by the Police.

The provisions relating to the charge are mainly founded on the valuable right of the accused,

who have a fair trial in criminal cases. Those provisions are intended to ensure that no

accused is prejudiced in his defence in the absence of his knowing that real nature of

allegations are made against him. Those provisions are laid down to guarantee that the

accused is given notice of at least the bare minimum details of the alleged accusations

committed by him against the particular person, for effectively defending himself. Those

provisions are also set on the principles of natural justice.

21. Judicial precedents on framing of charges and extent to which the High Court can

interfere with it and the essence of the procedure governing the framing of charges under the

Code was lucidly explained in the case of Willie @ William Slaney v. State of Madhya

Pradesh; reported in AIR 1956 SC 116, which reads as follows:-

"We are unable to find any magic or charm in the ritual of a change. It is the

substance of these provisions that count and not their outward form. To hold

otherwise is only to provide avenues of escape for the guilty and afford no

protection to the innocent. We agree that a man must know what offence he is

being tried for and that he must be told in unambiguous terms and that it must all

be "explained to him" so that he really understands........."

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22. The aforesaid observations ever since been the governing principle and has been

reiterated in Santosh Kumari -Vs- State of J & K; reported in (2011) 9 SCC 234,

wherein it was held as under:-

"Like all procedural laws, the Code of Criminal Procedure is devised to subserve

the ends of justice and not to frustrate them by mere technicalities. It regards

some of its provisions as vital, but others not, and a breach of the latter is curable

irregularity, unless the accused is prejudiced thereby. It places errors in the

charge or even a total absence of a charge in the curable class. That is why, we

have provisions like Sections 215 and 464 in the Code of Criminal Procedure,

1973."

23. The object of the charge is to give accused notice of the matter he is charged with and

does not touch jurisdiction. If therefore, the necessary information is conveyed to him in

other ways and there is no prejudice, the framing of charge is not invalidated. The essential

part of this part of law is not any technical formula of words but the reality, whether the

matter was explained to the accused and whether he understood what he was being tried for.

24. In the case of Anant Prakash Sinha v. State of Haryana, reported in (2016) 6

SCC 105, the Hon'ble Supreme Court delineated the wide powers available to the trial court

under Section 216 Cr.P.C, to add or alter charges at any stage prior to the pronouncement

of judgment and held as under:

"18. From the aforesaid, it is graphic that the court can change or alter the charge

if there is defect or something is left out. The test is, it must be founded on the

material available on record. It can be on the basis of the complaint or the FIR or Page No.# 11/17

accompanying documents or the material brought on record during the course of

trial. It can also be done at any time before pronouncement of judgment. It is not

necessary to advert to each and every circumstance. Suffice it to say, if the court

has not framed a charge despite the material on record, it has the jurisdiction to

add a charge. Similarly, it has the authority to alter the charge. The principle that

has to be kept in mind is that the charge so framed by the Magistrate is in accord

with the materials produced before him or if subsequent evidence comes on

record.....".

25. The parameters governing the exercise of power under Section 482 Cr.P.C, to quash the

charges framed by the trial Court came up for consideration before the Hon'ble Supreme

Court in the case of State of M.P. v. S.B. Johari, reported in (2000) 2 SCC 57, wherein it

was held as under :

"In our view, it is apparent that the entire approach of the High Court is illegal

and erroneous. From the reasons recorded by the High Court, it appears that

instead of considering the prima facie case, the High Court has appreciated and

weighed the materials on record for coming to the conclusion that charge against

the respondents could not have been framed. It is settled law that at the stage of

framing the charge, the court has to prima facie consider whether there is

sufficient ground for proceeding against the accused. The court is not required to

appreciate the evidence and arrive at the conclusion that the materials produced

are sufficient or not for convicting the accused. If the court is satisfied that a

prima facie case is made out for proceeding further then a charge has to be

framed. The charge can be quashed if the evidence which the prosecutor proposes Page No.# 12/17

to adduce to prove the guilt of the accused, even if fully accepted before it is

challenged by cross- examination or rebutted by defence evidence, if any, cannot

show that the accused committed the particular offence. In such case, there

would be no sufficient ground for proceeding with the trial. In Niranjan Singh

Karam Singh Punjabi v. Jitendra BhimrajBijjayya [(1990) 4 SCC 76] after

considering the provisions of Sections 227 and 228 Cr.P.C, the Court posed a

question, whether at the stage of framing the charge, the trial court should

marshal the materials on the record of the case as he would do on the conclusion

of the trial. The Court held that at the stage of framing the charge inquiry must

necessarily be limited to deciding if the facts emerging from such materials

constitute the offence with which the accused could be charged. The court may

peruse the records for that limited purpose, but it is not required to marshal it

with a view to decide the reliability thereof."

26. In the case of Tej Bir v. State of Haryana , reported in (2011) 11 SCC 556, the

Court approved its earlier decision in S.B. Johari (supra) and observed as under:

"The stage of framing of charge, the High Court has to prima facie consider

whether there is sufficient ground for proceeding against the accused and the

High Court is not required to appreciate the evidence and arrive at the conclusion

whether the materials on record are sufficient for conviction of the accused or

not. The test at this stage should be, whether after accepting the charge, as

framed, any case is made out."

27. In the case of Satish Mehra .v. State (NCT of Delhi); reported in (2012) 13 SCC Page No.# 13/17

614, the Hon'ble Supreme Court revisited its earlier decisions on the High Court's power

under Section 482 Cr.P.C to interdict the framing of charges and held as under:

"The power to interdict a proceeding either at the threshold or at an intermediate

stage of the trial is inherent in a High Court on the broad principle that in case the

allegations made in the FIR or the criminal complaint, as may be, prima facie do

not disclose a triable offence, there can be reason as to why the accused should

be made to suffer the agony of a legal proceeding that more often than not gets

protracted. A prosecution which is bound to become lame or a sham ought to be

interdicted in the interest of justice as continuance thereof will amount to an

abuse of the process of the law. This is the core basis on which the power to

interfere with a pending criminal proceeding has been recognized to be inherent

in every High Court. The power, though available, being extraordinary in nature

has to be exercised sparingly and only if the attending facts and circumstances

satisfy the narrow test indicated above, namely, that even accepting all the

allegations levelled by the prosecution, no offence is disclosed. However, if so

warranted, such power would be available for exercise not only at the threshold

of a criminal proceeding but also at a relatively advanced stage thereof, namely,

after framing of the charge against the accused. In fact the power to quash a

proceeding after framing of charge would appear to be somewhat wider as, at

that stage, the materials revealed by the investigation carried out usually come

on record and such materials can be looked into, not for the purpose of

determining the guilt or innocence of the accused but for the purpose of drawing

satisfaction that such materials, even if accepted in their entirety, do not, in any Page No.# 14/17

manner, disclose the commission of the offence alleged against the accused."

28. While dealing with the jurisdiction under Section 482 Cr.P.C, to quash the proceedings

at the stage of issuance of process, or at the stage of committal, or at the stage of framing of

charges, that is to say before the commencement of actual trial, in the light of material

placed on record by the accused, Hon'ble Supreme Court in Rajiv Thapar v. Madan Lal

Kapoor; reported in (2013) 3 SCC 330, laid down as under:

"The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C, must

make a just and rightful choice. This is not a stage of evaluating the truthfulness

or otherwise of the allegations levelled by the prosecution/complainant against

the accused. Likewise, it is not a stage for determining how weighty the defences

raised on behalf of the accused are. Even if the accused is successful in showing

some suspicion or doubt, in the allegations levelled by the

prosecution/complainant, it would be impermissible to discharge the accused

before trial. This is so because it would result in giving finality to the accusations

levelled by the prosecution/complainant, without allowing the prosecution or the

complainant to adduce evidence to substantiate the same. The converse

is, however, not true, because even if trial is proceeded with, the accused is not

subjected to any irreparable consequences. The accused would still be in a

position to succeed by establishing his defences by producing evidence in

accordance with law. There is an endless list of judgments rendered by this Court

declaring the legal position that in a case where the prosecution/complainant has

levelled allegations bringing out all ingredients of the charge(s) levelled, and have

placed material before the Court, prima facie evidencing the truthfulness of the Page No.# 15/17

allegations levelled, trial must be held."

29. Reverting to the present case, the allegation against the accused petitioner is that he

had forced the victim to take alcohol, as a result of which, she became unconscious. She

could realize that the accused was fondling with her and subsequently, she became

unconscious. When she regained her sense, she was found herself at the Gauhati Medical

College and Hospital. Subsequently, she came to know that she had been sexually abused. It

is true that she did not clearly made an allegation against the accused petitioner that he

committed rape on her, but before she became unconscious, the accused petitioner was with

her and the allegation of forcing her to take alcohol was made when she was in her proper

sense. The FSL report has proved that the bottles of "Blenders' Pride" Whisky, seized by the

Investigating Officer from the place of occurrence gave positive result for Ehtyl Alcohol. So,

apparently, the prima facie material under Section 328 IPC is available in framing of charge

against the accused.

30. Regarding Section 376 IPC, the doctor who examined the victim after the incident, had

opined that minute scratch abrasions were seen in the vaginal canal and tenderness was

there and the colour was bright red, which transpires that the injury was fresh. For framing of

charge under Section 376 IPC, the injury of the victim to her vagina is sufficient.

31. It is pertinent to say here that at the stage of framing of charge, the trial Court is not

called upon to make a detailed documentation of the materials, which are available against

the accused, but what the Court is required to do is to peruse the same and to pass a

reasoned order by indicating the materials in gist and substance. So, if the trial Court decides

to frame a charge, there is no legal requirement that he should pass an order specifying the Page No.# 16/17

reasons, as to why he opts to do so. Framing of charge itself is prima facie order that the trial

Judge has formed the opinion upon considering the Police report and other documents and

after hearing both sides, that there is ground of presuming that the accused has committed

the offence concerned.

32. In the case of State of Delhi -Vs- Gyan Devi & Others ; reported in (2000) 8 SCC

239, it was observed that-

"Legal position is well settled that at the stage of charge the court is to examine

the materials only with a view to be satisfied that a 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 Cr.P.C, seeking 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 except in exceptional cases."

33. In view of the above, I am of the opinion that the charge was framed against the

accused petitioner, as per provision of law. This Court cannot interfere with the proceedings Page No.# 17/17

of the learned trial Court at each and every stage and that is not the purport and scope of

exercising its jurisdiction under Section 482 of CrPC.

34. In the result, the criminal petition is dismissed. The trial Court is directed to proceed

further with the trial and complete the proceedings, within a period of two months from the

date of receipt of the copy of this order. The trial shall be conducted strictly in line with

Section 309 of the Code of Criminal Procedure, 1973 and the guidelines given by the Hon'ble

Supreme Court in the case of Vinod Kumar -vs State of Punjab; reported in (2015) 1 MLJ

(Crl.) 288 (SC).

35. With the aforesaid observation, the criminal petition is disposed of.

JUDGE

Comparing Assistant