Himanshu Anand vs Union Territory Of J&K And Another
2023 Latest Caselaw 80 j&K

Citation : 2023 Latest Caselaw 80 j&K
Judgement Date : 3 February, 2023

Jammu & Kashmir High Court

Himanshu Anand vs Union Territory Of J&K And Another on 3 February, 2023

                                                                       Sr. No. 40


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                     Crl R No. 18/2021


Himanshu Anand                                   .....Appellant(s)/Petitioner(s)

q
                     Through: Mr. Akshat Sharma, Advocate
                vs
Union Territory of J&K and another                         ..... Respondent(s)
                     Through: Mr. Pawan Dev Singh, Dy.AG for No. 1
                              None for No. 2



Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  ORDER

1. The petitioner through the medium of instant revision petition has

challenged order dated 03.09.2021 passed by the 3 rd Additional Munsiff

(Judicial Magistrate 1st Class), Jammu, whereby in a challan arising out

of FIR No. 40/2020 registered with Police Station, Bakshi Nagar,

Jammu for commission of offence under section 354 IPC, charge for

offence under section 354 IPC has been framed against him.

2. As per the prosecution case, on 27.02.2020 a written report was lodged

by the prosecutrix alleging therein that on the said date, when she came

from college, the petitioner, who was riding on his bike, came in front

of her and offered to talk to her. When the prosecutrix ignored him, he

told her that he will spoil her reputation and that of her family members

in public. Thereafter, he tried many times to talk to her. It was further

alleged that the petitioner-accused followed her from Rehari Chungi to

Punjabi Brothers. The petitioner is alleged to have termed the

prosecutrix as characterless and thereafter pushed her and held her arms

tightly. It is further alleged that the petitioner also pulled her dupatta,

upon which, she raised her voice and told him that she would call her

father.

3. After registration of the FIR, the investigation of the case was set into

motion and offence under section 354 IPC was found established

against the petitioner. Accordingly, the challan was laid before the

learned trial court. After hearing the parties and after scanning the

record, the trial court passed the impugned order, whereby the petitioner

has been charged for commission of offence under Section 354 IPC.

4. I have heard learned counsel for the parties and perused the record

including the record of the trial court.

5. It has been contended by learned counsel for the petitioner that the

allegations made by the prosecutrix in the initial report led by the Police

and allegations made by her while making the statements under section

161 Cr.P.C. and 164 Cr.P.C. during the investigation of the case, are

contradictory in nature. Learned counsel for petitioner has pointed out

certain contradictions in this regard and the same have been explained

in the petition in a tabulated form. He has submitted that the petitioner

has been falsely implicated and the story projected in the challan is

improbable, concocted and manufactured. It has also been contended

that directions issued by the Supreme Court from time to time in

various judgments regarding arrest and the manner of the investigation

have not been followed in the instant case, therefore, it was not open for

the learned Magistrate to frame charge against the petitioner.

6. Chapter XIX of the Code of Criminal Procedure, 1973 deals with the

trial of warrant cases by the Magistrate. Sections 239 and 240 provide

the guidelines for the courts regarding discharge or framing of charge.

These provisions read as under:

"239. When accused shall be discharged- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge-(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

7. From a bare perusal of the aforesaid provisions, it is revealed that if the

Magistrate after considering the Police report filed under section 173

Cr.P.C. and the material annexed thereto finds that the charge against

the accused is groundless, he has to be discharged and if he finds that

there is a ground for presuming that the accused had committed an

offence, triable by the Magistrate, charge has to be framed.

8. It is a settled law that at the time of framing of charge, court has not to

sift or weigh the evidence meticulously. Even a strong suspicion against

the accused gives a ground to frame a charge against him.

9. Coming to the facts of the instant case, the prosecutrix has clearly stated

in her statement recorded under section 164 Cr.P.C. that petitioner has

indulged in stalking her and has chased her to various places. She has