Madhya Pradesh High Court
Yasmin vs M.P. State Cooperative Dairy ... on 9 May, 2024
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 9 th OF MAY, 2024
CRIMINAL REVISION No. 2604 of 2023
BETWEEN:-
YASMIN W/O AMJAD KHAN, AGED ABOUT 28 YEARS,
OCCUPATION: HOUSEWORK RAJGARH TEHSIL
SARDARPUR DISTRICT DHAR (MADHYA PRADESH)
.....APPLICANT
(SHRI NILESH J. DAVE, ADVOCATE)
AND
THE STATE OF M.P. STATION HOUSE OFFICER
THROUGH POLICE STATION RAJGARH DISTRICT DHAR
(MADHYA PRADESH)
.....NON-APPLICANT/STATE
(SHRI PRASHANT JAIN, GOVERNMENT ADVOCATE)
This revision coming on for admission this day, the Court passed the
following:
ORDER
Heard.
T h is criminal revision u/S 397 r/w 401 of the Code of Criminal
Procedure, 1973 has been preferred by the applicant/accused being aggrieved
and dissatisfied by the order dated 08.05.2023 passed by Special Judge,
POCSO Act, Sardarpur, Dhar in Special Case No.09/2023, whereby learned
Trial Court has framed charge against the applicant u/S 18 of the POCSO Act.
2. Prosecution story, in brief is that at the time of incident, the
prosecutrix was minor, aged below 17 years. On 11.12.2022 at around 07:00
AM, the prosecutrix was going to her school by foot. On the way, co-accused
Aman @ Bittu came there by Scooty and told the prosecutrix to sit on his
Scooty. When she denied, the co-accused caught hold her right hand and
outraged her modesty with bad intention. He made the prosecutrix sit on his
Scooty and took her to a tea stall. He clicked her photographs on his mobile
phone and uploaded the photographs on Instagram App on the ID named
"Bittu_Kea_Jaan_K" and made her pictures go viral on Instagram. Thereafter,
whenever the prosecutrix goes to school, then the accused used to follow her.
He threatened her that he will defame her and also said that he will kill her if she
narrates the incident to anyone. It is also alleged that once the co-accused took
the prosecutrix to his house forcibly and present applicant Yasmin, who is
mother of co-accused forcibly got the prosecutrix wear Burkha.
3. Learned Trial Court after hearing both the parties had framed charge
against the applicant as mentioned above. The matter was reported by the
prosecutrix on 29.01.2023.
4. Learned counsel for the applicant submits that the applicant has not
committed the offence and she has falsely been implicated in the case. Name of
the applicant is not mentioned in the FIR and in the statement of the prosecutrix
recorded u/S 161 of Cr.P.C. It is also submitted that allegation had been
levelled against the applicant belatedly in the statement of prosecutrix recorded
u/S 164 of Cr.P.C. on 30.01.2023, therefore, prosecution case is doubtful. As
alleged, no case u/S 18 of the POCSO Act is made out against the applicant.
But learned Trial Court has wrongly framed charge against him. Therefore,
prima-facie the impugned order is liable to be set aside.
5. On the other hand, learned counsel for the non-applicant/State has
opposed the submissions and prayed for rejection of the revision.
6. I have heard learned counsel for the parties and perused the records.
7. The Hon'ble Supreme Court in the case of Ghulam Hassan Beigh
Versus Mohammad Maqbool Magrey & Ors. [2022 LiveLaw (SC) 631]
has reiterated as under:-
"21. This Court in the case of Union of India v. Prafulla
Kumar Samal and another, (1979) 3 SCC 4, considered the
scope of enquiry a judge is required to make while considering
the question of framing of charges. After an exhaustive survey
of the case law on the point, this Court, in paragraph 10 of the
judgment, laid down the following principles:- "(1) That the
Judge while considering the question of framing the charges
under section 227 of the Code has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has
been made out. (2) Where the materials placed before the
Court disclose grave suspicion against the accused which has
not been properly explained the Court will be, fully justified in
framing a charge and proceeding with the trial. (3) The test to
determine a prima facie case would naturally depend upon the
facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be fully within
his right to discharge the accused. (4) That in exercising his
jurisdiction under section 227 of the Code the Judge which
under the present Code is a senior and experienced Judge
cannot act merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the
case, 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 does not mean that the Judge
should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial."
8. In the case of Chitresh Kumar Chopra V State (Government of
NCT of Delhi) [(2009) 16 SCC 605], the Apex Court in paragraphs 25 and
27 has held as under:-
"25. It is trite that at the stage of framing of charge, the
court is required to evaluate the material and documents on
record with a view to finding out if the facts emerging
therefrom, taken at their face value, disclose the existence of
all the ingredients constituting the alleged offence or
offences. For this limited purpose, the court may sift the
evidence as it cannot be expected even at the initial stage to
accept as gospel truth all that the prosecution states. At this
stage, the court has to consider the material only with a
view to find out if there is ground for "presuming" that the
accused has committed an offence and not for the purpose
of arriving at the conclusion that it is not likely to lead to a
conviction. (See: Niranjan Singh Karam Singh Punjabi &
Ors. Vs. Jitendra Bhimraj Bijja & Ors).
27. In view of the settled legal position, noted above, we are
convinced that the trial court was correct in law in coming
to the conclusion that a case for framing charge against the
appellant had been made out. Similarly, the scope of
revisional powers of the High Court under Section 401 of
the Code being limited, the High Court was justified in
dismissing the Revision Petition, preferred by the
appellant."
9. It is also pertinent to reproduce here Section 18 of the POCSO Act,
which runs as under:-
"Section-18 - Punishment for attempt to commit an
offence - Whoever attempts to commit any offence
punishable under this Act or to cause such an offence to be
committed, and in such attempt, does any act towards the
commission of the offence, shall be punished with
imprisonment of any description provided for the offence, for
a term which may extend to one-half of the imprisonment for
life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence or with fine or with
both."
10. In the instant case, considering the evidence collected during
investigation and also the statement of the prosecutrix and other witnesses
recorded during investigation, it appears that there is prima-facie material
available against the applicant to frame charge u/S 18 of the POCSO act.
Learned Trial Court has not committed any error, legal or factual in passing the
impugned order and framing of the charge.
11. Resultantly, this Court does not find any merit in this revision.
Therefore, the impugned order is hereby affirmed and the criminal revision filed
by the applicant is dismissed.
(PRAKASH CHANDRA GUPTA)
JUDGE
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