Madhya Pradesh High Court
Bhanu @ Bhanu Pratap Gurjar vs The State Of Madhya Pradesh on 22 June, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 22nd OF JUNE, 2023
CRIMINAL REVISION No.243 OF 2023
Between:-
BHANU @ BHANU PRATAP GURJAR, S/O
SHRI PAHALWAN SINGH GURJAR, AGED
36 YEARS, OCCUPATION-
AGRICULTURIST, R/O ADARSH NAGAR,
PINTO PARK, GOLE KA MANDIR,
DISRICT- GWALIOR (MADHYA PRADESH)
........APPLICANT
(BY SHRI V.D. SHARMA- ADVOCATE )
AND
1. STATE OF MADHYA PRADESH
THROUGH POLICE STATION-
MAHARAJPURA, DISTRICT- GWALIOR
(MADHYA PRADESH)
2. PROSECUTRIX THROUGH POLICE
STATION- MAHARAJPURA, DISTIRCT-
GWALIOR (MADHYA PRADESH)
........RESPONDENTS
(SHRI RAJENDRA SINGH YADAV- PUBLIC PROSECUTOR FOR
RESPONDENTS/STATE AND SHRI SUNIL RATHORE- ADVOCATE FOR THE
COMPLAINANT)
--------------------------------------------------------------------------------------------
This application coming on for hearing, this day, the Court passed the
following:
ORDER
This Criminal Revision has been preferred by the applicant under Section
397 read with Section 401 of Cr.P.C. against the order dated 08/12/2022 passed
by 6th Additional Session Judge, Gwalior (M.P.) Judge (SC/ST Act) District-
Ashoknagar in S.T. No.338/2021, whereby the charges have been framed
against the applicant for the offence punishable under Sections 376-D, 328, 506
(Part-II) of IPC as well as the order dated 07/12/2022 by which the discharge
application under Section 227 of Cr.P.C. filed by the applicant has been
dismissed.
2. Brief facts of the case are that prosecutrix/complainant submitted a typed
application at Police Station- Maharajpura, District- Gwalior (M.P.) alleging
that she is married lady aged about 28 years who met the co-accused- Girraj
Dubey at Chandigarh 3-4 months ago where prosecutrix and accused- Girraj
exchanged their mobile numbers and accused- Girraj called her in Gwalior on
the false pretext of giving job. Thereafter, she came at Gwalior from where
accused- Girraj Dubey and present applicant- Raju Kankar took her in a Flat
and offered tea. After taking tea she became unconscious and both the accused
persons committed rape with her and made video of the same. Thereafter, after
giving threatening to viral her video and photographs, they committed rape
with her repeatedly. On 05/11/2019, she came at Gwalior from Chandigarh and
applicant and other co-accused took her by Fortuner car bearing Registration
No.MP04-CQ-1992 towards Maharajpura and threatened to make physical
relation with other co-accused and when she refused for the same, accused-
Girraj Dubey pointed pistol on her breast. Thereafter, applicant and other co-
accused persons committed sexual intercourse with her forcefully in the car and
threatened to kill her. On the basis of aforesaid, crime has been registered
against the accused persons. She was sent for medical examination. Doctor has
not given definite opinion about sexual intercourse. Statements were recorded.
Accused persons were arrested and after investigation, charge-sheet was
submitted. Thereafter, Charges were framed under Sections 376-D, 328 and 506
(Part-II) of IPC against the applicant and co-accused persons. Applicant abjured
his guilt.
3. It is submitted by learned counsel for the applicant that FIR has been
lodged by the prosecutrix on 17/02/2020 after the delay of three months and 12
days of the incident with mala-fide intention just to take undue benefit. The
complainant/prosecutrix is a married lady aged 28 years. She has made physical
relations with the co-accused on her own consent and free will. Applicant is not
named in the FIR. Since investigation was pending under Section 173(8) of
Cr.P.C. in respect of one unknown accused person, charge sheet was filed
against the named accused persons. In the statement of the prosecutrix recorded
in the Court, for the first time, the name of the applicant was disclosed
regarding involvement in the said crime after 18 months i.e. on 22/09/2021.
Meanwhile, prosecution moved an application under Section 319 of Cr.P.C. to
summon the applicant as an additional accused in the matter on the basis of
Court statement of the prosecutrix and the applicant filed its reply. Learned trial
Court vide impugned order allowed the said application filed under Section 319
of Cr.P.C. It is further submitted that the impugned order appears to be perverse
and contrary to law. Being aggrieved, applicant filed a Criminal Revision
No.3411/2021 before this Court and Coordinate Bench of this Court dismissed
the said revision vide order dated 04/01/2022 and on the said date anticipatory
bail application under Section 438 of Cr.P.C filed by the applicant was also
dismissed. Again, the applicant filed anticipatory bail applications under
Section 438 of Cr.P.C. and the same were dismissed vide order dated
27/10/2022 passed in MCRC No.38408/2022. Being aggrieved, applicant
preferred an application under Section 227 of Cr.P.C. for discharging him from
the charges levelled against him which was also dismissed by the trial Court
vide order dated 07/12/2022 passed in S.T. No.338/2021. Hence, this Criminal
Revision has been filed. To buttress his contentions, learned counsel for the
applicant has relied upon the judgment passed by the Hon'ble Supreme Court in
the case of P. Vijayan Vs. State of Kerala & Anr. [2010 SCC 398] in which
seven guiding principles has been provided to the trial Court in exercising the
power of discharge and learned counsel for the applicant has also relied upon
the judgment passed by the Hon'ble Supreme Court in the case of Sanjay
Kumar Rai Vs. State of U.P. & Another vide judgment dated 07/05/2021 in
Criminal Appeal No.472/2021, wherein it has been held as under:-
"18. The High Court has committed jurisdictional error by
not entertaining the revision petition on merits and overlooking
the fact that 'discharge' is a valuable right provided to the
accused......."
4. Learned counsel for the State as well as the complainant vehemently
opposed the submissions so advanced by the applicant by submitting that at this
stage no interference is warranted.
5. Heard learned counsel for the parties and perused the record.
6. On going through the law laid down by the Hon'ble Apex Court and the
copy of the charge-sheet filed by the applicant and looking to the facts and
circumstances of the case as well as allegations made by the prosecutrix in the
statements recorded under Sections 161 & 164 of Cr.P.C., it is clear that
applicant is not named in the FIR and the same has been lodged on 17/02/2020
after more than three months of the incident with mala-fide intention. For the
first time, name of the applicant came in the present case after 18 months of
registration of FIR, therefore, this Court is of the considered view that trial
Court has committed an error in framing the charges against the applicant.
Accordingly, order dated 08/12/2022 passed in S.T. No.338/2021 framing
charges against the applicant for the offence under Sections 376-D, 328 and
506 (Part-II) of IPC as well as the order dated 07/12/2022 by which discharge
application under Section 227 of Cr.P.C. has been dismissed are hereby set-
aside. The applicant is discharged from all the charges of the present case.
7. Accordingly, the instant Criminal Revision is allowed and disposed of.
(DEEPAK KUMAR AGARWAL)
JUDGE
Digitally signed by RAHUL SINGH PARIHAR
RAHUL SINGH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001, st=Madhya Pradesh,
rahul
2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0
cde4dee473fe77953f5,
PARIHAR
pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D48
7,
serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD
4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR
Date: 2023.06.23 14:47:22 +05'30'
