Himachal Pradesh High Court
Reserved On: 2.5.2025 vs State Of H.P on 14 May, 2025
2025:HHC:13898
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 401 of 2024
Reserved on: 2.5.2025
Date of Decision: 14.05.2025
Vikram @ Andy ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Appellant : Mr. Harsh, Advocate, vice
Mr. Manoj Pathak, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General, assisted by ASI Pawan
Kumar, IO, Police Station Dhalli,
District Shimla, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against
the order dated 4.6.2024, passed by learned Special Judge
(Family Court), Shimla (learned Trial Court), vide which the
learned Trial Court ordered the framing of charges against the
petitioner (accused before learned Trial Court) for the
commission of offences punishable under Sections 370 and 120-
B of the Indian penal Code (IPC) and Section 4 of Immoral
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Trafficking (Prevention) Act. (Parties shall hereinafter be referred
to in the same manner as they were arrayed before the learned Trial
Court for convenience.)
2. Briefly stated, the facts giving rise to the present
revision are that the police presented a challan before the learned
Trial Court for the commission of offences punishable under
Section 370 of the IPC and Section 4 of the Immoral Trafficking
(Prevention) Act. It was asserted that the police party was on
patrolling duty on 12.9.2019 when they received secret
information that Virender Singh was bringing girls from Punjab.
He was pushing them into immoral trafficking. He paid them a
few rupees and earned lakhs of rupees. The police asked Mohit
and Mukesh Rolta to become decoy customers who called
Virender Singh. Virender Singh sent the photographs of many
girls and asked them to select any of them. They selected the
photographs. Virender Singh asked for ₹1200. He also asked
them to send ₹500/- as an advance to his account. ₹1000/- was
transferred to his account. Room Nos. 301 and 302 were booked
in Pine View Cottage Restaurant, Dhalli Bypass Road. Virender
Singh demanded ₹2,000/- as an advance before handing over the
girls. Virender Singh brought two girls and demanded ₹2,000/-.
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Virender Singh accepted the money, and the police apprehended
him with the girls. The girls revealed during the interrogation
that Virender Singh persuaded them to work as sex workers. He
paid some money to them and retained the rest of the money.
Police arrested Virender Singh, who revealed during the inquiry
that he had asked Andy to prepare a website for him. The police
searched for Andy and found that the money was transferred to
the account of Vikram (present petitioner) from the account of
Virender Singh. The petitioner revealed during the investigation
that he had prepared the website as per the directions of Virender
Singh. The police seized the mobile phone and Laptop of the
petitioner. The police filed a charge sheet before the Court after
the completion of the investigation.
3. Learned Trial Court framed charges against the
petitioner and the co-accused for the commission of offences
punishable under Sections 370 and 120-B of IPC and Section 4 of
the Immoral Trafficking Act, 1956.
4. Being aggrieved by the order framing charges, the
petitioner has filed the present petition, asserting that the
learned Trial Court erred in framing charges against the
petitioner for the commission of an offence under Section 370 of
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the IPC. The police did not state anything in the charge sheet
submitted by them that the petitioner was involved in
trafficking. The petitioner was not in Shimla on 13.9.2019. He did
not know the victims or the main accused, Virender Singh.
Therefore, it was prayed that the present petition be allowed and
the order passed by the learned Trial Court framing the charges
be set aside.
5. I have heard Mr. Harsh Sharol, vice Mr. Manoj Pathak,
learned counsel for the petitioner, and Mr. Ajit Sharma, learned
Deputy Advocate General, for the respondent-State.
6. Mr. Harsh Sharol, learned counsel for the petitioner,
submitted that the learned Trial Court erred in framing charges
against the petitioner for the commission of an offence
punishable under Section 370 of the IPC. The police did not assert
anything in the report submitted by them that the petitioner had
recruited, transported, harboured, transferred or received any
person. The case of the prosecution is that the petitioner had
prepared a Website as per the directions of Virender Singh, which
is not an offence punishable under Section 370 of the IPC.
Therefore, he prayed that the present petition be allowed and the
order passed by the learned Trial Court be set aside.
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7. Mr. Ajit Sharma, learned Deputy Advocate General, for
the respondent-State submitted that the petitioner had entered
into a conspiracy to procure the girls in sexual activities, and it is
not necessary that the petitioner should have done any actual act
of harbouring, etc. Learned Trial Court had rightly framed the
charges against the petitioner. Hence, he prayed that the present
petition be dismissed.
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
9. It was laid down by the Hon'ble Supreme Court in
State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023
SCC OnLine SC 1294 that at the time of framing of the charge the
Court has to see the material collected by the prosecution to
determine whether a case has been made out for proceeding with
the trial or not. It was observed: -
7. It is trite law that the application of judicial mind being
necessary to determine whether a case has been made out
by the prosecution for proceeding with trial and it would
not be necessary to dwell into the pros and cons of the
matter by examining the defence of the accused when an
application for discharge is filed. At that stage, the trial
judge has to merely examine the evidence placed by the
prosecution to determine whether or not the grounds are
sufficient to proceed against the accused on the basis of
the charge sheet material. The nature of the evidence
recorded or collected by the investigating agency or the
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documents produced in which prima facie it reveals that
there are suspicious circumstances against the accused, so
as to frame a charge, would suffice, and such material
would be taken into account for the purposes of framing
the charge. If there is no sufficient ground for proceeding
against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for
presuming that the accused has committed the offence
which is triable, then necessarily charge has to be framed.
8. At the time of framing the charge and taking
cognisance, the accused has no right to produce any
material and call upon the court to examine the same. No
provision in the Code grants any right to the accused to file
any material or document at the stage of framing of the
charge. The trial court has to apply its judicial mind to the
facts of the case as may be necessary to determine whether
a case has been made out by the prosecution for trial on
the basis of charge-sheet material only.
9. If the accused is able to demonstrate from the charge-
sheet material at the stage of framing the charge, which
might drastically affect the very sustainability of the case,
it is unfair to suggest that such material should not be
considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr.
P.C. is to assist the court in determining whether it is
required to proceed to conduct the trial. Nothing in the
Code limits the ambit of such hearing to oral hearing and
oral arguments only, and therefore, the trial court can
consider the material produced by the accused before the
I.O.
10. It is a settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has
been brought on record by the prosecution is true and
evaluate said material in order to determine whether the
facts emerging from the material taken on its face value,
disclose the existence of the ingredients necessary of the
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offence alleged. This Court in State of Tamil Nadu v. N.
Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier
propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the
rival submissions and the submissions made by Mr
Ranjit Kumar commend us. True it is that at the time
of consideration of the applications for discharge,
the court cannot act as a mouthpiece of the
prosecution or act as a post office and may sift
evidence in order to find out whether or not the
allegations made are groundless so as to pass an
order of discharge. It is trite that at the stage of
consideration of an application for discharge, the
court has to proceed with an assumption that the
materials brought on record by the prosecution are
true and evaluate the said materials and documents
with a view to find out whether the facts emerging
therefrom taken at their face value disclose the
existence of all the ingredients constituting the
alleged offence. At this stage, the probative value of
the materials has to be gone into, and the court is
not expected to go deep into the matter and hold
that the materials would not warrant a conviction.
In our opinion, what needs to be considered is
whether there is a ground for presuming that the
offence has been committed and not whether a
ground for convicting the accused has been made
out. To put it differently, if the court thinks that the
accused might have committed the offence on the
basis of the materials on record on its probative
value, it can frame the charge; though for
conviction, the court has to come to the conclusion
that the accused has committed the offence. The law
does not permit a mini-trial at this stage."
11. The defence of the accused is not to be looked into at
the stage when the accused seeks to be discharged. The
expression "the record of the case" used in Section 227 Cr.
P.C. is to be understood as the documents and articles, if
any, produced by the prosecution. The Code does not give
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any right to the accused to produce any document at the
stage of framing of the charge. The submission of the
accused is to be confined to the material produced by the
investigating agency.
12. The primary consideration at the stage of framing of
charge is the test of the existence of a prima facie case,
and at this stage, the probative value of materials on
record need not be gone into. This Court by referring to its
earlier decisions in the State of Maharashtra v. Som Nath
Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal
Soni, (2000) 6 SCC 338 has held the nature of evaluation to
be made by the court at the stage of framing of the charge
is to test the existence of the prima-facie case. It is also
held at the stage of framing of charge, the court has to
form a presumptive opinion to the existence of factual
ingredients constituting the offence alleged and it is not
expected to go deep into the probative value of the
material on record and to check whether the material on
record would certainly lead to conviction at the conclusion
of trial."
10. A perusal of the charge sheet shows that the only
allegations against the petitioner are that he had prepared a
website at the instance of Virender Singh. He had rented out the
Website to Virender Singh at the rate of ₹10,000/- per month. No
girl named the petitioner, as the petitioner who had pushed them
into the sex trade. Therefore, there is a force in the submission of
Mr. Harsh Sharol, learned counsel for the petitioner, that the
petitioner had not recruited, transported, harboured, transferred
or received any person and he cannot be said to have committed
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the trafficking of a person within the meaning of Section 370 of
IPC.
11. It was submitted that the petitioner had entered into a
conspiracy with the main accused, and he was rightly charged
with the aid of Section 120-B of the IPC. This submission is not
acceptable. The charge sheet itself mentions that Virender Singh
prepared the Website for the petitioner, and he was paying the
rent of ₹20,000/- for the Website. He did not know the person
who had created the Website but was merely transferring money
to his account. Therefore, the role of the petitioner is confined to
the preparation of the Website and does not involve the
transportation or procuring of any girl. Hence, Section 370 of the
IPC cannot be added by taking recourse to Section 120-B of the
IPC.
12. So far as Section 4 of the Immoral Trafficking
(Prevention) Act is concerned, the allegations in the charge sheet
clearly show that Virender Singh made money from the sex
trade, which he shared with the present petitioner. Therefore,
the ingredients of Section 4 are prima facie satisfied in the
present case, and the charges for the commission of the
aforesaid offence cannot be quashed.
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13. Consequently, the present petition is allowed, and the
order of the learned Trial Court framing the charges against the
petitioner for the commission of an offence punishable under
Section 370 of the IPC is set aside.
15. The parties, through their respective counsel, are
directed to appear before the learned Trial Court on 29th May,
2025.
(Rakesh Kainthla)
Judge
__May, 2025
(Chander)
