Kalyan Ram Joshi vs The State Of Karnataka
2021 Latest Caselaw 2609 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 5TH DAY OF JULY, 2021

                               BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.1034 OF 2016

BETWEEN:

Kalyan Ram Joshi,
S/o. Ashwini Kumar Joshi
Aged about 37 years,
Occ: Advocate
R/at No.84, 4th Stage,
T.K. Layout, S.C. Road,
Saraswathipuram,
Mysore - 570017.
                                                  ..Petitioner
(By Sri.H.S. Chandramouli, Advocate)

AND:

The State of Karnataka
by the Police of Vijayanagar
Police Station
Mysore - 570017.
Represented by
The State Public Prosecutor,
High Court of Karnataka
Bengaluru - 560001.
                                                 .. Respondent
(By Smt. K.P. Yashodha, High Court Govt. Pleader)

                                  ****
                                              Crl.R.P.No.1034/2016
                                 2


       This Criminal Revision Petition is filed under Section 397 (1)
read with 401 of the Code of Criminal Procedure, 1973, praying to
set aside the order dated 17-06-2016 passed by the learned VII
Additional Sessions Judge, Mysuru in S.C.No.125/2015 for the
offence punishable under Section 376 of the IPC and discharge the
petitioner of all the charges in the said case, to meet the ends of
justice.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
29-06-2021, coming on for pronouncement of orders this day, the
Court made the following:

                            ORDER

The present petitioner, who is the accused in respondent

Police Station in Crime No.337/2013, which is now pending in

S.C.No.125/2015, in the Court of the learned VII Additional District

and Sessions Judge, Mysuru (hereinafter for brevity referred to as

"the Sessions Judge's Court") for the offence punishable under

Section 376 of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as "the IPC"), has challenged the rejection of his

application filed under Section 227 of the Code of Criminal

Procedure, 1973 (hereinafter for brevity referred to as "the

Cr.P.C.") by the Sessions Judge's Court, vide its order dated

17-06-2016.

Crl.R.P.No.1034/2016

2. The respondent -State is being represented by the learned

High Court Government Pleader.

3. Though this matter was listed for admission, however, as

desired by the learned counsels from both side, the arguments on

the main matter itself were heard from both side. Perused the

materials placed before this Court including the Sessions Judge's

Court's records.

4. After hearing the learned counsels for the parties, the only

point that arise for my consideration in this revision petition is:

"Whether the impugned order passed by the learned Sessions Judge's Court on the application filed under Section 227 of the Cr.P.C. is perverse, illegal and erroneous, warranting interference at the hands of this Court?

5. The summary of the case of the prosecution in the

Sessions Judge's Court is that, the prosecutrix who is a practicing

lawyer had lodged a complaint with the respondent - Police Station

on 14-12-2013 alleging that, the accused who was her counsel in a

criminal matter then pending before a Court, had called her to

Monarch Hotel situated in Hunsur Main Road, Mysuru on Crl.R.P.No.1034/2016

16-11-2013 on the pretext of hosting his birthday party and

sexually assaulted her in a room. It was also alleged that the

accused had made a false promise of marrying her and raped her.

The complainant in her complaint had made allegations against the

father of the accused alleging that, he had threatened her with dire

consequences, in case if she lodges a Police complaint.

6. Though the FIR came to be registered against both the

accused persons, i.e. against the present petitioner and his father,

however, after investigation, a charge sheet came to be filed only

against the present petitioner. When the matter was at the stage

of hearing, before framing of charges in the Sessions Judge's Court,

the present petitioner filed an application under Section 227 of the

Cr.P.C., which, on its merit, came to be dismissed vide the order of

the learned Sessions Judge's Court dated 17-06-2016. It is

challenging the said order of the learned Sessions Judge's Court,

the present petitioner has preferred this revision petition.

7. Learned counsel for the petitioner/accused in his argument

submitted that, a perusal of the materials of the case Crl.R.P.No.1034/2016

before the Sessions Judge's Court, at this stage and prima facie

would go to show that, no case is made out by the prosecution

against the present petitioner/accused. It clearly reveals that the

alleged incident has never taken place, but a false complaint has

been filed by the prosecutrix. He submitted that, with respect to

the alleged time of the commission of the alleged crime, there are

variations. The charge sheet mentions it at 6:30 p.m. on 16-11-

2013, however, the statement of a charge sheet witness does not

speak about the rape. The panchanama mentions the check-in

time in the lodge/Hotel as 6:45 p.m. Thus, the alleged incident

could not have taken place at 6:30 p.m. on the said day.

Learned counsel for the petitioner/accused further submitted

that, the statement of a room boy by name Pradeep Kumar given

before the Investigating Officer shows that, he has stated that,

there was no signs of rape in the room. This clearly would go to

show that the complaint is a concocted story.

He further submitted that the complainant (prosecutrix) is in

the habit of filing false complaints against various persons and that Crl.R.P.No.1034/2016

she had filed a complaint against a Doctor who had medically

examined her. However, the Police have filed a 'B' report in the

said case. She has also filed a case against one

Sri. S.M. Shivakumar and others, wherein also, the Police have filed

a 'B' report. All these aspects would clearly go to show that, the

complainant is a habitual liar.

In his support, learned counsel for the petitioner/accused

drew the attention of the Court to two judgments of the Hon'ble

Apex Court which would be referred to at the relevant stage here

afterwards.

With this, he submitted to allow the revision petition of the

petitioner, as prayed.

8. Learned High Court Government Pleader appearing for the

respondent - State submitted that, the victim herself is the

complainant in the matter and she has given a detailed account of

the alleged incident. In her statement recorded under Section 164

of the Cr.P.C. before the learned Magistrate, she has given the

details of the incident, which, at this stage and prima facie makes Crl.R.P.No.1034/2016

out a clear case of rape against the accused. Since the victim

herself is the complainant and her statement makes out a

prima facie case against the accused, there is no reason for

discharging the accused from the alleged offence. On the

contrary, he is required to face the trial.

Learned High Court Government Pleader for the

respondent -State further submitted that, the alleged

statement of the room boy of the Hotel is not a strong

evidence to suspect the occurrence of the incident of rape.

Further, there is no basis for a room boy to say that, there

was no signs of alleged rape in the room. She further

submitted that, the entire evidence need not be appreciated in

detail, at the stage of consideration of the application filed

under Section 227 of the Cr.P.C. However, the charge sheet

materials would clearly go to show that, there are sufficient

materials to subject the present petitioner/accused for trial.

Crl.R.P.No.1034/2016

10. Learned counsel for the petitioner/accused in support of

his arguments, has drawn the attention of this Court to two

judgments of the Hon'ble Apex Court which he has referred

to, in his memorandum of revision petition.

[i] The first judgment is in the case of State of Maharashtra

Vs. Priya Sharan Maharaj and others reported in (1997) 4

Supreme Court Cases 393. In the said case, with respect to

Section 227 of the Cr.P.C., the Hon'ble Apex Court was pleased to

observe that, at the stage of Sections 227 and 228 of the Cr.P.C.,

the Court is required to evaluate the material and documents on

record with a view to finding out if the facts emerging there from

taken at their face value disclose the existence of all the ingredients

constituting the alleged offence. The Court may, for this limited

purpose, sift the evidence as it cannot be expected even at this

initial stage, to accept all that prosecution states as gospel truth

even if it is opposed to common sense or the broad probabilities of

the case.

Crl.R.P.No.1034/2016

[ii] In the second judgment relied upon by the learned

counsel for the petitioner, which is in the case of Rumi Dhar (Smt)

Vs. State of West Bengal and another reported in (2009) 6

Supreme Court Cases 364, the Hon'ble Apex Court, with respect to

Sections 227 and 228 of the Cr.P.C., was pleased to hold that

complicity of accused person is required to be taken into

consideration for the purpose of determining the application for

discharge upon taking a realistic view of the matter. While

considering the application, it is for the Judge to go into the details

of the allegations made against the accused person so as to form

an opinion as to whether any case at all is made out as a strong

suspicion in regard thereto shall sub-serve the requirements of law.

11. In the case of M.E. Shivalingamurthy Vs. Central Bureau

of Investigation, Bengaluru reported in (2020) 2 Supreme Court

Cases 768, the Hon'ble Apex Court, while discussing the scope of

Section 227 of the Cr.P.C., was pleased to hold that, while deciding

the discharge petition, only materials brought on record by the

prosecution (both in the form of oral statements and documents)

have to be considered. The accused is entitled to discharge, if the Crl.R.P.No.1034/2016

evidence (i.e. statements recorded by the Police or documents

concerned), which prosecution proposes to adduce to prove the

guilt of the accused, even if fully accepted before it is challenged in

the cross-examination or rebutted by the defence evidence, cannot

show that, the accused committed the offence. Further, where two

views are possible and one of them gives rise to a suspicion, only

distinguished from grave suspicion, the Trial Judge would be

empowered to discharge the accused.

It was further observed in the same case by the Hon'ble Apex

Court that, though it is open to the accused to explain away the

materials giving rise to grave suspicion, but his submissions must

be confined only to the materials produced by the prosecution. The

defence of the accused cannot be looked into at the stage of

discharge. The accused has no right to produce any document at

that stage.

12. The sum and substance of the above judgments of the

Hon'ble Apex Court is that, under Section 227 of the Cr.P.C., a duty

is cast upon a Judge to apply his mind to the material on record and

if, on examination of the record, he does not find sufficient ground Crl.R.P.No.1034/2016

for proceeding against the accused, then, 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,

then, he must proceed to frame a charge as required by Section

228 of the Cr.P.C. At the stage of Sections 227 and 228 of the

Cr.P.C., the Court is required to evaluate the material and

documents on record with a view to finding out if the facts

emerging there from taken at their face value disclose the existence

of all the ingredients constituting the alleged offence. The Court

may, for this limited purpose, sift the evidence as it cannot be

expected even at this initial stage, to accept all that prosecution

states as gospel truth even if it is opposed to common sense or the

broad probabilities of the case.

13. In the instant case, the victim herself is the complainant,

who, in her complaint, has stated as to, how she came in

acquaintance with the accused. According to her, herself as well

the present petitioner both are practicing Advocates. Since she was

to challenge a 'B' report filed by Women Police Station in one of the

criminal complaints filed by her against one Sri.S.M. Shivakumar Crl.R.P.No.1034/2016

and others, she had engaged the services of one Sri. Ashwini

Kumar Joshi, a practicing Advocate at Mysuru. It was at that time

the present petitioner who is the son of the said Ashwini Kumar

Joshi, came in acquaintance with her.

14. About the alleged incident, the complainant in her

complaint has stated that, on the pretext of hosting a birthday

party, the accused (present petitioner) called her to Monarch Hotel

at Mysuru and on the pretext of discussing with her about the case

entrusted to his office, he took her to a room booked by him in the

said Hotel and there, he committed rape upon her. In the

complaint, she also stated that, the accused was also telling her

that he would marry her and make a separate residence for her at

Bengaluru. Thus, in the complaint, the complainant has given the

details of the alleged incident and made specific allegations against

the accused-petitioner herein. She has also stated as to how come

she was made to go to Hotel Monarch on the alleged date of

incident.

Crl.R.P.No.1034/2016

15. The complainant, in her statement recorded under

Section 164 of the Cr.P.C., is shown to have given more details

about the incident and the background to the said incident. She is

shown to have stated as to, how the accused developed

acquaintance with her and took leniency with her. About the

incident which is said to have taken place on 16-11-2013, the

complainant appears to have given a very detailed account as to

how she went to that Hotel, with what pretext the accused took her

to a room in the Hotel and also got supplied some drinks and

cigarettes for him. She has even stated that, though she stated

that she would be leaving the room and does not want to stay

there, but the accused, on the pretext of securing an umbrella for

her, since it was raining outside, made her to stay for some more

time and it was at that time, he committed the alleged act of rape

upon her. Apart from giving the details as to how the accused

committed the alleged act, she has also stated that the accused

threatened her that she should not reveal the incident to any one

and if she does it, he would see that she would be subjected

to rape by other persons also. The complainant has also stated Crl.R.P.No.1034/2016

that, by the time she left the place, it was around 9:30 p.m. The

complainant has also explained the delay in lodging the complaint

before the Police.

Thus, the complainant, both in her complaint as well in her

statement recorded under Section 164 of the Cr.P.C. before the

learned Magistrate, has given the details of the alleged incident and

has specifically alleged that it was the accused and accused alone,

who, despite her protest and against her consent, has subjected

her to rape.

16. Learned counsel for the petitioner in his argument

submitted that, the alleged incident of rape is prima facie

unbelievable for the reason that, there is discrepancy in the alleged

timing of the rape. He submitted that the charge sheet and

the statement of prosecution witnesses do not correspond with the

statement of the complainant that the incident has

taken place at 6:30 p.m. on the said day.

17. According to the learned counsel for the

petitioner/accused, the complainant, in her complaint has stated Crl.R.P.No.1034/2016

that, the alleged incident has taken place at 6:30 p.m. The charge

sheet also mentions that the incident has taken place at 6:30 p.m.

Whereas, the charge sheet witness (CW-2) - Pradeep Kumar,

Steward in Monarch Hotel, in his statement has stated that, he has

supplied drinks to Room No.205, which room was said to have been

booked by the accused only after 7:30 p.m., however, he has not

stated anything about rape.

Learned counsel for the petitioner also submitted that the

scene of offence Panchanama mentions that the alleged incident of

rape has occurred at 7:15 p.m., and therefore, there is material

variation in the timings, as such, the case of the prosecution is

highly suspicious.

18. A perusal of the charge sheet material placed before this

Court, at this stage would go to show that, the complainant

(prosecutrix), in her complaint, has not given the exact timing of

the commission of the alleged crime. She has stated that when she

had been to Hotel Monarch, in response to the telephone call

received by her from the accused No.1 (present petitioner), she Crl.R.P.No.1034/2016

was subjected to rape by the said accused No.1. It does not mean

that the alleged incident of rape has occurred at 6:30 p.m., but the

complaint gives a clear meaning that, the time when the

complainant went to Hotel Monarch was at 6:30 p.m.

The complainant has given more details about the incident in

her alleged statement recorded under Section 164 of the Cr.P.C., a

perusal of which would go to show that, she had stated before the

Magistrate under Section 164 of the Cr.P.C. that, she received the

telephone call from the present petitioner on 16-11-2013 at

5:30 p.m., wherein she was asked by the petitioner No.1 (accused)

to come to Hotel Monarch. Though she is said to have refused to

go over there, but the petitioner is said to have stated that, he

wanted to discuss with her about the case too. Therefore, she

went to the said Hotel and waited for the petitioner to come over

there. She contacted the petitioner over phone stating that, she

had already reached the Hotel, but she was asked to wait by him

there. She has also stated that, when she went to the Hotel, the

staff of the Hotel themselves enquired her as to whether she was

waiting for Sri. Kalyan Ram Joshi (petitioner herein) and made her Crl.R.P.No.1034/2016

to sit in a chair near the counter. She has also stated that

thereafter, the petitioner came to the said place and stating that he

has booked a room in the said Hotel so that they can discuss about

her case in the room, took her to a room in the said Hotel. In her

statement recorded under Section 164 of the Cr.P.C., she has also

given some more details as to what conversation took place in the

said room prior to the alleged offence and then stated that, after

some conversation and the petitioner attending a phone call, he

summoned a supplier and ordered for cigarettes and drinks. After

those items were served to him in the room, he started smoking,

but did not let the complainant leave the place, stating that, since

it was raining heavily outside, he would get an umbrella for her.

Thus, she was made to wait, and the accused went to the

bathroom and by removing all the clothes worn by him came out

and caught hold of her, hugged her and committed rape upon her.

The victim is also shown to have further stated in her statement

recorded under Section 164 of the Cr.P.C. that, after completion

of the offence, the petitioner(accused No.1) is said to have

threatened her of subjecting her to rape by his friends,

in case, if she reveals the incident to anybody.

Crl.R.P.No.1034/2016

At that time, it was about 9:30 p.m. in the night. The said

statement, if it is taken at its face value, at this stage would go to

show that, after she went to the Hotel at 6:30 p.m., all these

conversations and developments including securing drinks and

cigarettes for the petitioner has happened and only there after, the

alleged incident of rape has occurred. Therefore, the argument of

the learned counsel for the petitioner/accused that the complainant

has stated that the incident has occurred at 6:30 p.m., is not

acceptable.

19. About the alleged statement of CW-2 - Pradeep Kumar is

concerned, a perusal of the said statement at this stage would go

to show that, he has also in his statement stated that, the

complainant went to the Hotel at about 6:30 p.m. and was sitting in

a chair near security room. She enquired with him about the

petitioner (accused No.1). Ten minutes thereafter, the petitioner

(accused No.1) also came to the said place and got allotted a room

from the receptionist. At his request, it was him i.e. CW-2-

Pradeep Kumar, who collected the key of the Room No.205 from

him and took the complainant to the said room.

Crl.R.P.No.1034/2016

The witness is further shown to have stated in his statement

that, thereafter, the petitioner told him to collect the details of the

order given in the reception. Accordingly, he went to the

receptionist and after collecting `500/- from the reception, he

purchased a McDowell whisky Celebration of 180 ml from a nearby

whisky shop and also collected cigarette pack and mineral water

and delivered all these items to Room No.205 to the petitioner. He

has further stated that, after half an hour, he saw the petitioner

and the complainant coming near reception. Therefore, the

statement of this witness also does not specifically mention about

the exact timing at which the alleged incident is said to have taken

place. However the narration given by him corresponds with the

details of the activity said to have taken place in the Hotel between

6:30 p.m. to the time of the alleged incident as narrated by the

complainant in her statement recorded under Section 164 of the

Cr.P.C.

20. CW-3 - Sri. Basha, in his statement before the

Investigating Officer appears to have stated that, on 16-11-2013,

while he was working as a receptionist in the Monarch Hotel, at Crl.R.P.No.1034/2016

about 6:45 p.m., their Hotel customer - Sri. Kalyan Ram Joshi

(petitioner herein) approaching him in the reception counter, asked

for a room, as such, he, entering his name and address in the

arrival register, allotted Room No.205 to him and summoned

steward Pradeep Kumar (CW-2) and asked him to show the room to

him. He has also stated that, at 7:30 p.m., he received an order

for McDowell whisky Celebration one quarter, one litre water and

cigarette pack by the petitioner, as such, he called CW-2 - steward

Pradeep Kumar and paying him a sum of `500/-, secured those

items and sent it to Room No.205 through CW-2. He has further

stated that, at about 9:30 p.m., on the same night, the petitioner

vacated the room. He is further shown to have stated in his

statement that, after he coming to know that the complainant has

filed a complaint against the petitioner herein, he enquired with

CW-2 and was told by him that, on 16-11-2013, he had seen in the

evening, a girl coming to Monarch Hotel and staying with the

petitioner in Room No.205. The said evidence of none else than

CW-3 would also go to show that, he got confirmation from CW-2

that, the complainant had been to their Hotel in the evening and Crl.R.P.No.1034/2016

she was also found in Room No.205, which room was allotted by

CW-3 himself to the accused No.1 (petitioner herein).

21. Therefore, when the evidence of the complainant and the

statement of none else than the staff members of Hotel Monarch at

this stage and prima-facie would go to show that, the accused and

the complainant were found in their Hotel between 6:30 p.m. upto

9:30 p.m., the mentioning of the alleged time of the offence as

6:30 p.m. by the Investigating Officer in column number 17 of the

charge sheet would not be given due weightage. It is because, it is

only the summary of investigation of the Investigating Officer which

is mentioned in the column 17 of the charge sheet. However, that

cannot be taken as the ultimate finding with accuracy.

22. In the above background, the mentioning of the alleged

time of offence as 7:15 p.m. in the scene of offence panchanama

also would not enure to the benefit of the petitioner (accused) to

hold that, there is serious discrepancy in the case of the

prosecution regarding the timings of the occurrence of the alleged

offence. Moreover, the scene of offence Panchanama would speak

about the spot/scene of offence, rather than exact timings of the Crl.R.P.No.1034/2016

occurrence of the offence. Therefore, the first and main argument

of the learned counsel for the petitioner that, there are variations

about the timings of the occurrence of the incident and the same

makes the case of the prosecution a suspicious one, is not

acceptable.

23. The learned counsel for the petitioner/accused also

canvassed a point that, CW-7, who is a room boy in the Hotel

Monarch, has not stated about any signs of sexual intercourse on

the bed in the room No.205, as such, it cannot be believed that,

any such incident of sexual intercourse or rape had taken place in

the said room.

The said argument of the learned counsel for the petitioner is

also not acceptable for the reason that, even according to the

statement of CW-7, he had only entered the room to clean it on

17-11-2013. Though he has stated that, he did not find any signs

of sexual intercourse on the bed in the said room, but nothing has

come out in his statement as to what signs he was required to notice

and that his knowledge about he being aware of any such signs Crl.R.P.No.1034/2016

being available or remaining in the spot after the alleged incident.

Therefore, without subjecting the said witness during the trial for

examination, no extra weightage can be given to his statement to

draw any inference in favour of the petitioner(accused). As such,

the argument of the learned counsel for the petitioner/accused on

this aspect is also not acceptable.

24. Lastly, the learned counsel for the petitioner also

canvassed a point that, the very same complainant had filed a

complaint against one Dr.Nithin on 14-02-2014 alleging that, he

had misbehaved with her and taken photograph of her nude body.

However, the Police have filed a 'B' report in the matter after

investigation. Similarly, her one more complaint of alleged rape

against one Sri. S.M. Shivakumar has also ended in the Police filing

a 'B' report. This would clearly go to show that the conduct of the

complainant is objectionable and that she has been in the habit of

filing a false complaint and that she is a habitual liar.

Crl.R.P.No.1034/2016

In support of the said contention, the learned counsel for the

petitioner/accused along with a memo has produced a photo copy

of the alleged complaint said to have been filed by the present

complainant against the said Sri.S.M. Shivakumar in the Women's

Police Station, Mysuru and a photo copy of 'B' final report said to

have been filed by the Police in the said case and also has filed a

photo copy of the complaint said to have been filed by the

complainant against one Dr. Nithin before the Deputy Commissioner

of Police, Mysuru and a photo copy of the 'B' final report said to

have been filed by the Police in the said Crime.

25. Learned High Court Government Pleader for the

respondent - Police submitted that, the accused cannot produce

documents from his side at the stage of consideration of the

application under Section 227 of the Cr.P.C., as such, those

documents cannot be considered by this Court.

In reply, learned counsel for the petitioner submitted that

since those papers have been submitted to the Court, they become

part of the record of the case as mentioned in Section 227 of the Crl.R.P.No.1034/2016

Cr.P.C., as such, the Court is bound to consider those documents

also.

26. A reading of Section 227 of the Cr.P.C. would go to show

that, the said Section mentions a phrase 'the record of the case'. It

is upon considering the said 'the record of the case' and the

documents submitted therewith and after hearing the submissions

of the accused and the prosecution on that behalf, if the Court

considers that, there is no sufficient ground for proceeding against

the accused, the Court shall discharge the accused and record its

reasoning for so doing.

The said phrase 'the record of the case' has been considered

by the Hon'ble Apex Court in M.E. Shivalingamurthy's case (supra),

where the Hon'ble Apex Court was pleased to hold that, the

expressions 'the record of the case' occurring in Section 227 of the

Cr.P.C. means, documents and articles produced by the

prosecution.

27. In the instant case, the photo copies of the alleged

complaints of the complainant against one Sri.S.M. Shivakumar and Crl.R.P.No.1034/2016

others and against one Dr. Nithin and the photo copies of the

alleged 'B' final report said to have been filed by the Police in those

two crimes are neither part of the charge sheet in this case nor

produced by the prosecution in the present case. Therefore, at the

outset, those documents which are produced by the accused in his

defence cannot be considered at this stage. However, even after

considering those documents, it can be inferred at this stage that,

the present complainant in the present complaint has herself stated

that, in her complaint against Sri.S.M. Shivakumar and others the

Police had filed a 'B' final report, and it is for protesting the said 'B'

report, she had engaged the services of the counsel,

one Sri. Ashwini Kumar Joshi, who is the father of the present

petitioner(accused). She has also stated in the complaint that,

thereafter the said incident came to be compromised. As such, in

her very complaint itself, the complainant, on her own, has

revealed about she filing an earlier complaint against one Sri. S.M.

Shivakumar and others.

28. Similarly, with respect to the complainant's one more

complaint against one Dr. Nithin is concerned, it can be noticed Crl.R.P.No.1034/2016

that, the Police in their 'B' final report have not mentioned that the

alleged incident of the said Dr.Nithin taking the nude body

photographs of the complainant is not true. They have stated in

their 'B' report that, those photographs were taken for the purpose

of obtaining the evidences, since the case was a complicated one.

However, the complainant was said to have co-operated with the

Doctor at that time. It is considering the said statement, the Police

filed 'B' report stating that, there was no incident of outraging the

modesty of a woman (complainant) by the accused therein

(Dr. Nithin) intentionally. Thus, the alleged taking of the nude

pictures of the complainant has been confirmed even by the Police

in their 'B' final report. Therefore, the argument of the learned

counsel for the petitioner/accused that the complainant is a habitual

liar and has been in the habit of filing a false complaint, cannot be

accepted, without eliciting the corroborative evidence in that

regard in the course of the trial. As such, the said point of

argument of the learned counsel for the petitioner is also not

acceptable.

Crl.R.P.No.1034/2016

29. Barring the above, learned counsel for the petitioner has

not presented any other points of arguments worth to be

considered before this Court. On the other hand, a perusal of the

impugned order would go to show that, the learned Sessions

Judge's Court has considered every point of argument placed before

it in its proper perspective including the question on the alleged

delay in lodging the complaint. It has observed in its reasoning

that the delay has been properly and convincingly explained by the

complainant.

Thus, the Sessions Judge's Court, since has considered all the

points canvassed before it and passed a reasoned order and also as

analysed above, since the materials placed by the prosecution at

this stage and prima facie shows that there are ample material for

the Court to proceed further in this matter by subjecting the

accused for trial, I am of the view that the impugned order passed

by the Sessions Judge's Court does not warrant any interference at

the hands of this Court.

Accordingly, I proceed to pass the following:

Crl.R.P.No.1034/2016

ORDER

The Criminal Revision Petition stands dismissed as

devoid of any merit.

In view of disposal of the main petition, I.A.No.1/2016 for

stay does not survive for consideration.

Registry to transmit a copy of this order to the Sessions

Judge's Court along with its records, immediately.

Sd/-

JUDGE

BMV*