Jharkhand High Court
Mukesh Kumar @ Mukesh Kumar Yadav vs The State Of Jharkhand on 30 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 197 of 2020
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Mukesh Kumar @ Mukesh Kumar Yadav ...... Petitioner
Versus
The State of Jharkhand ...... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Sushil Kumar Sharma, Advocate
For the State : Mr. Manoj Kumar Mishra, A. P. P.
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ORAL ORDER IN COURT
06/30.08.2023 The Criminal Revision No. 197 of 2020 has been filed on
behalf of the petitioner challenging the order dated 24.01.2020
passed by Smt. Kashika M. Prasad, learned Additional Judicial
Commissioner-IV-cum-Special Judge- POCSO, Ranchi in Misc.
Criminal Application No. 1277 of 2019 by which learned
Additional Judicial Commissioner-IV-cum-Special Judge-POCSO,
Ranchi has rejected the discharge petition filed by the petitioner
under Section 227 of the CrPC in connection with POCSO Case
No. 39 of 2018 arising out of Namkum P. S. Case No. 56 of 2018
instituted for the offence under Sections 376 AB of the Indian
Penal Code and Section 6 of the POCSO Act.
2. As per the FIR, it is alleged by the informant -Shobha
Choudhary that while she along with her husband went to the
market to purchase clothes on the eve of Holi on 28.02.2018 and at
that time her daughter aged about 10 years had remained in the
house alone, then in the meantime, the petitioner- Mukesh Kumar
Yadav, who had been kept as a Driver by the Informant on
16.12.2016, had arrived and had committed rape upon her
daughter on 28.02.2018 and threatened her of dire consequences.
It has been stated that though the occurrence took place on
28.02.2018, but due to fear and social prestige, FIR has been
lodged after delay.
3. Heard learned counsel for the petitioner and learned
counsel for the State.
4. It is submitted by the learned counsel that the petitioner is
innocent and has committed no offence. It is submitted that
impugned order dated 24.01.2020 passed by the learned Court
below is illegal, arbitrary and not sustainable in the eyes of law. It
is submitted that the allegation against the petitioner levelled in the
FIR is false and concocted. It is submitted that there is great delay
in lodging the FIR as occurrence took place on 28.02.2016,
however, FIR has been lodged on 15.04.2018 i.e. after delay of 45
days. It is submitted that the petitioner was not present in Ranchi
on the date of occurrence, rather he was undergoing Marine
Training and in support of the same, learned counsel for the
petitioner has placed reliance upon the Certificates issued by
Seacom Marine College, Kolkata on different dates and have been
enclosed as Annexure-2 series of this Criminal Revision
Application. It is submitted that as the petitioner was undergoing
training at Mumbai and not present on the date of occurrence at
Ranchi. It is further submitted that the petitioner has been granted
Anticipatory Bail passed by the Co-ordinate Bench of this Court in
ABA. No. 7156 of 2018 vide order dated 05.03.2019, subject to
deposit of Rs. 1,50,000/- as per the direction of the Co-ordinate
Bench of this Court. It is submitted that though charges have been
framed against the petitioner, but till date, no witness has been
examined so far. It is submitted that the learned Court below has
committed grave illegality by rejecting the discharge petition of
the petitioner vide impugned order dated 24.01.2020 and as such,
in view of above fact, the impugned order dated 24.01.2020 passed
by the learned Additional Judicial Commissioner-IV-cum-Special
Judge, POCSO, Ranchi may be set aside and the Criminal
Revision Application may be allowed.
5. On the other hand, learned APP has opposed the prayer
and has submitted that the impugned order passed by the learned
Court below is fit and proper and no interference is required from
this Court. It is submitted that the petitioner has taken the plea of
alibi and which can only be seen at the time of trial. It is
submitted that the documents marked as Annexure-2 of this
Criminal Revision Application will be seen at the time of trial. It is
submitted that the victim girl during her statement recorded under
Section 164 of CrPC has supported the statement of the informant
made in the FIR and as such, the impugned order passed by the
learned Court below is fit and proper and no interference is
required from this Court and hence, this Criminal Revision
Application may be dismissed.
6. Perused the records of this case and considered the
submissions of both the sides.
7. It transpires that occurrence took place on 28.02.2018, but
FIR was lodged on 15.04.2018 and thus, there is delay of 45 days
in lodging the FIR.
8. It appears from the FIR that the petitioner is said to have
committed rape upon the victim girl, who is aged around 10 years
and the petitioner had also threatened her of dire consequences. It
also appears that the petitioner is also alleged to have fled away by
taking Rs. 45,000/- Cash and Golden Chain, Bangle from the
Almirah of the house of the informant.
9. From perusal of the record of this case, it would appear
that the petitioner has claimed for doing certain courses and for
which certificate had been issued lastly on 26.02.2018 and it is not
proper to rely upon the same at this stage and the petitioner is
alleged to have committed rape upon the victim girl on 28.02.2018
and the certificates have to be seen during trial.
10. It appears from the statement of the victim girl, aged
around 10 years, recorded under Section 164 of the Cr. P. C. on
17.04.2018 that she has fully supported the allegation of
committing rape upon her by the petitioner on 28.02.2018.
11. It also appears from the record that charges have been
framed on 15.03.2021 under Section 376 AB of Indian Penal Code
and Section 379 of the Indian Penal Code and Section 4 and 6 of
the POCSO Act against the petitioner.
12. It has been held in the case of Anup Kumar Lakhotia Vs.
The Union of India through Central Bureau of Investigation
reported in 2022 (1) JLJR page 127 and Para-25 of the said
judgment is as follows:
"Para-25:- The learned court below, while considering the petition
for discharge considered the scope of Section 227 of Cr. P. C. and
recorded that hearing the submissions of the accused as postulated by
Section 227 means hearing the submissions of the accused on the
record of the case as filed by the prosecution and documents
submitted therewith and nothing more. The expression 'hearing the
submissions of the accused' cannot mean opportunity to file material
is to be granted to the accused. At the stage of framing of charge
hearing the submissions of the accused has to be confined to the
material produced by the police."
13. It has been held that in the case of State By The Inspector
Of Police, Chennai vs. S. Selvi and Another reported in 2018 (13)
SCC 455 at paragraph No.10 as follows:-
"Para-10:- If on the basis of the material on record, the Court
would form prima facie opinion that the accused might have
committed the offence, it can frame charge, though for
conviction it is required to be proved beyond reasonable doubt
that the accused has committed the offence. At the time of
framing of charges, the probative value of the material on record
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
conviction. The Court is required to evaluate the material on
record at the stage of Sections 227 or 239 of the Code, as the
case may be, only with a view to find out if the facts emerging
therefrom taken at the face value discloses the existence of all
the ingredients constituting the alleged offence. It is trite that at
the stage of consideration of an application for discharge, the
Court has to proceed with the presumption that materials
brought on record by the prosecution are true and evaluate such
material with a view to find out whether the facts emerging
therefrom taken at their face value disclose existence of the
ingredients of the offence."
14. It has been held by the Hon'ble Supreme Court in the
case of M. E. Shivalingamurthy Versus Central Bureau of
Investigation, Bengaluru reported in (2020) 2 SCC 768 at
para17.3, 17.6 and 18 as follows:-
"Para-17.3:-The Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for
proceeding. Evidence would consist of the statements recorded
by the police or the documents produced before the Court.
Para-17.6:- The court has to consider the broad probabilities,
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, would not entitle the court make a roving
inquiry into the pros and cons.
Para-18:- The defence of the accused is not to be looked into at
the stage when the accused seeks to be discharged under Section
227 CrPC (see State of J&K v. Sudershan Chakkar). The
expression. "the record of the case", used in Section 227 CrPC,
is to be understood as the documents and the articles, if any.
produced by the prosecution. The Code does not give any right to
the accused to produce any document at the stage of framing of
the charge. At the stage of framing of the charge. the submission
of the accused is to be confined to the material produced by the
police (see State of Orissa v. Debendra Nath Padhi)."
15. It has been held by the Hon'ble Supreme Court in the case
of State (NCT of Delhi) Vs. Shiv Charan Bansal and Ors and in
the case of Kanta Devi Vs. State (NCT of Delhi) and Ors.
reported in (2020) 2 SCC 290 at para-39 as follows:-
"Para-39:- The court while considering the question of framing
charges under Section 227 CrPC has the power to sift and weigh
the evidence for the limited purpose of finding out whether or not
a prima facie case has been made out against the accused. The
test to determine prima facie case would depend upon the facts
of each case. If the material placed before the court discloses
grave suspicion against the accused, which has not been
properly explained, the court will be fully justified in framing
charges and proceeding with the trial. The probative value of the
evidence brought on record cannot be gone into at the stage of
framing charges. The court is required to evaluate the material
and documents on record with a view to find out if the facts
emerging there from taken at their face value disclose the
ingredients constituting the alleged offence. At this stage, there
cannot be a roving enquiry into the pros and cons of the matter,
the evidence is not to be weighed as if a trial is being conducted.
Reliance is placed on the judgment of this Court in State of Bihar
v. Ramesh Singh where it has been held that at the stage of
framing charges under Sections 227 or 228 Cr.P.C., if there is a
strong suspicion which leads the court to think that there is
ground for presuming that the accused had committed the
offence, then the court should proceed with the trial.
16. It is well settled from a catena of decisions that
meticulous examination of statement of witnesses has not to be
done at the stage of framing of charges.
17. It is also well settled that the defence of the accused
person cannot be looked into at the stage of framing of charges.
18. Thus in view of the law laid down by the Hon'ble
Supreme Court of India and also considering the gravity of
offence, this Court is of the view that the learned Court below has
committed no illegality by passing the impugned order dated
24.01.2020 in Misc. Criminal Application No. 1277 of 2019 in
connection with POCSO Case No. 39 of 2018 arising out of
Namkum P. S. Case No. 56 of 2018 by rejecting the petition for
discharge filed on behalf of the petitioner.
19. Considering the facts and in the circumstances of the case,
it is evident that the Criminal Revision Application is devoid of
merit and accordingly, the Criminal Revision No. 197 of 2020 is
dismissed but without any costs.
(Sanjay Prasad, J.)
Kamlesh/
