Mithun Kumar Sinha vs The State Of Jharkhand ..... .... ...
2024 Latest Caselaw 1558 Jhar

Jharkhand High Court

Mithun Kumar Sinha vs The State Of Jharkhand ..... .... ... on 16 February, 2024

Author: Subhash Chand

Bench: Subhash Chand

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Revision No.418 of 2023
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Mithun Kumar Sinha, son of Sri Prashant Prasad Lala, resident of Village Baliyari, P.O. & P.S. Saria, District Giridih ...... ...... Petitioner Versus

The State of Jharkhand ..... .... Opposite Party

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner    : Mr. Anil Kumar Sinha, Advocate
For the State         : Mrs. Nehala Sharmin, APP
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                      th
Order No.05/ Dated: 16 February 2024

1. This Criminal Revision has been preferred against the impugned order

dated 17.02.2023 passed by the learned Additional Sessions Judge-II,

Giridih in Bagodar (Saria) P.S. Case No.177 of 2015 corresponding to G.R.

No.1456 of 2015, Sessions Trial No.304 of 2021, whereby the application

for discharge under Section 227 of the Code of Criminal Procedure was

rejected by the learned trial Court.

2. The brief facts leading to this Criminal Revision are that the victim-

complainant has filed the complaint with these averments that she had close

relation with the accused Mithun Kumar Sinha, who had allured her to marry

with her, had also sexually exploited her and had also prolonged the time to

fix the date of marriage. The victim-complainant was apprehending that she

had been victimized by the accused Mithun Kumar Sinha and on

27.02.2015, the accused Mithun Kumar Sinha took her to Bengal for

solemnizing marriage with her; but he took her to the house of his relative,

who are the accused No. 2 to 4 in Complaint Case No.601 of 2015. There

too, she also apprehended that the accused persons were intent to sell her to

someone else and she opposed the conduct of the accused, her ATM Card

and Mobile Phone were snatched away by the accused persons. Thereafter,

she reached to Dhanbad. The accused Mithin Kumar Sinha also chased her

and reached there. She has also informed to GRP, Dhanbad and entry of the

same, was made at No.37 of 2015, wherein the accused Mithun Kumar

Sinha sought 10 days' time. Thereafter on her complaint, by the order of the

learned Magistrate concerned, under Section 156(3) of the Code of Criminal

Procedure, Bagodar (Saria) P.S. Case No. 177 of 2015 was registered under

Sections 376, 354(B), 370(A), 120(B) and 379 of the Indian Penal Code

against the four accused persons including the petitioner.

3. The Investigating Officer after having concluded the investigation,

filed charge sheet against the accused Mithun Kumar Sinha for the offence

under Section 376 of the Indian Penal Code and exonerated three named in

the FIR.

4. The cognizance was also taken against the accused Mithun Kumar

Sinha on the very charge-sheet under Section 376 of the Indian Penal Code.

5. The petitioner moved the application for discharge under Section 227

of the Code of Criminal Procedure before the learned trial Court and the

learned trial Court rejected the discharge application vide order dated

17.02.2023.

6. Aggrieved from the impugned order dated 17.02.2023, the instant

Criminal Revision has been directed on behalf of the petitioner on the

ground that the impugned order passed by the learned Court below is bad in

the eyes of law. The learned Court below has reached on the wrong

conclusion in view of the evidence collected by the Investigating Officer

though in the whole case diary there is also evidence to this effect that the

victim herself corroborated the prosecution story and also the other

witnesses, independent witnesses and their family during investigation itself.

After lapse of about two years, the statement of victim under Section 164 of

the Code of Criminal Procedure was recorded, in which, she negated all of

the allegations as made against the petitioner; but the learned trial Court did

not take into consideration the statement of victim recorded under Section

164 of the Code of Criminal Procedure and rejected the application for

discharge.

7. I have heard the learned counsel for the petitioner and learned APP for

the State and perused the materials available on record.

8. Learned counsel for the petitioner has submitted that though the

victim in the complaint itself made the allegation against the petitioner in

regard to alluring her to marry and also sexually exploited her; yet the

statement of the victim was recorded under Section 164 of the Code of

Criminal Procedure by the learned Magistrate concerned, wherein she

deviated from all the allegations made in the complaint and also the

allegations, which were made by her in her re-statement recorded under

Section 161 of the Code of Criminal Procedure. The victim also moved an

application during trial that she had married with some other person and,

therefore, refused for medical examination on the ground that it will affect

her future as she had married with someone else. In view of the above,

contended to allow this Criminal Revision and set aside the impugned order.

9. Per contra, the learned APP for the State opposed the contentions

made by the learned counsel for the petitioner and contended that the victim

herself lodged the FIR and the allegations, which were made in the FIR were

also corroborated with her re-statement and not only this her near relative

and other independent witnesses also corroborated the prosecution story

though, subsequently, the victim in her statement under Section 164 of the

Code of Criminal Procedure deviated from her all the allegations; yet taking

into consideration the entry made in the station diary, which was made in

GRP, Dhanbad also corroborates the prosecution story and contended that

there is sufficient ground to proceed against the petitioner with the trial and

the learned trial Court has rightly rejected the application for discharge.

10. It is the settled law that while disposing the discharge application,

the Court has to take into consideration the allegations made in the

F.I.R. and also the evidence collected by the I.O. i.e., oral or

documentary during the investigation. If from the allegations made in

the F.I.R. and the evidence collected by the Investigating Officer during

investigation, there is sufficient ground to proceed with the trial, the

Court should decline to allow the discharge application. It is also well

settled law that while disposing the discharge application the Court

neither can appreciate the evidence nor can conduct the mini trial. The

marshaling of the evidence or the appraisal of the evidence is not

permissible at that stage.

11. Herein, it would be pertinent to give certain legal propositions of law

as laid down by the Hon'ble Apex Court, which is reproduced herein below:

11.1 The Hon'ble Apex court in the case of Palwinder Singh vs.

Balwinder Singh & Ors. reported in (2008) 14 SCC 504 at paragraph 13 has

held as under :

"13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not

in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi wherein it was held as under:

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

11.2 The Hon'ble Apex Court in the case of CBI v. Mukesh

Pravinchandra Shroff reported in (2009) 16 SCC 429 at paragraph 2 has

held as under :

"2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in the garb of an order of discharge. It is well settled that at the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons."

11.3 The Hon'ble Apex Court in the case of Vikram Johar vs State of

Uttar Pradesh reported in AIR 2019 SC 2109 at paragraph 19 has held as

under :

"19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence."

11.4 The Hon'ble Apex Court in the case of P. Vijayan vs. State of Kerala

and Another reported in (2010) 2 SCC 398 at paragraphs 11 and 25 has held

as under :

"11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious

circumstances against the accused so as to frame a charge against him.

25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and documents at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from avoidable harassment and expenditure."

12. From perusal of the record, it is found that though the victim herself

lodged the FIR, in which, she has made allegation that the accused had

allured her to marry and on the very ground, he had also been sexually

exploited her. He also took her to Bengal in order to solemnize marriage but

the accused took her to his relative's house, wherein the whispering was

going on between the accused Mithun Kumar Sinha and his relatives in

regard to human trafficking of her, so she opposed the conduct of all the

accused, wherein her mobile phone and ATM Card were also snatched away

and she, ultimately, came back and the accused Mithun Kumar Sinha chased

her, wherein the GD entry was also made in the GRP, Police Station,

Dhanbad. This very allegation is also corroborated with her re-statement

recorded under Section 161 of the Code of Criminal Procedure.

12.1 From the very perusal of the record, it is also found that this

investigation continued for more than two years and in the year 2017, the

victim also moved an application before the Investigating Officer that

she had married and she does not want her medical examination, as

such, she refused for medical examination and on the very day, on

20.03.2017, her statement under Section 164 of the Code of Criminal

Procedure was also recorded. In her statement recorded under Section 164

of the Code of Criminal Procedure, she negated all the allegations,

which were made by her in the FIR itself and in her re-statement under

Section 161 of the Code of Criminal Procedure. She also stated that

there is no complicity of the accused Mithun Kumar Sinha and Asha

Devi as well and she was never raped.

13. In view of the statement of the victim recorded under Section 164

of the Code of Criminal Procedure, which was recorded by the

Magistrate and also taking into consideration that the victim refused for

medical examination, there is no sufficient ground to proceed with the

trial for the offence under Section 376 of the Indian Penal Code against

the petitioner.

14. As such, the impugned order passed by the learned Court below needs

interference and this Criminal Revision deserves to be allowed.

15. Accordingly, this Criminal Revision is hereby allowed and the order

passed by the learned Court below is set aside.

16. Let a copy of this order be communicated to the learned Court

concerned through 'FAX'

(Subhash Chand, J.)

Madhav/-