Madhya Pradesh High Court
Arun Tiwari vs The State Of Madhya Pradesh on 10 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF MAY, 2024
CRIMINAL REVISION No. 3977 of 2022
BETWEEN:-
ARUN TIWARI S/O SHRI R.P. TIWARI,
AGED ABOUT 41 YEARS,
OCCUPATION: SERVICE HOUSE NO.
41 LAXMI PARISAR TILAK NAGAR
GULMOHAR SHAHPURA BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY MISHRA - SENIOR ADVOCATE WITH MS.PANKHURI
VISHWAKARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA
PRADESH THROUGH P.S.
AWADHPURI BHOPAL (MADHYA
PRADESH)
2. SMT. ARCHANA SALVE W/O
SHRI SUNIL SALVE, AGED
ABOUT 39 YEARS, R/O HOUSE
NO. F-05 REGAL HOMES
AWADHPURI BHEL BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SMT.SWATI A.GEORGE - DEPUTY GOVT. ADVOCATE)
"Reserved on : 07.05.2024"
"Pronounced on : 10.05.2024".
This application having been heard and reserved for order, coming on for
pronouncement this day, the court passed the following:
ORDER
1. This Criminal Revision under Section 397, 401 of Cr.P.C. has been
filed against the order dated 21-9-2022 passed by 10th A.S.J., Bhopal by
which charge under Section 376(2)(n) of IPC has been framed.
2. It is submitted by Counsel for the applicant, that if the entire FIR
and the prosecution case is read in proper prospective, then it is clear that
the prosecutrix was a consenting party and even She had gone to the
extent of hiding the relationship from her husband, therefore, no offence
under Section 376(2)(n) of IPC would be made out. A consensual sexual
act between two adults would not amount to rape. To buttress his
contentions, the Counsel for the applicant has relied upon the judgments
passed by Supreme Court in the case of Naim Ahamed Vs. State (NCT
of Delhi) reported in 2023 SCC OnLine SC 89, Dr. Dhruvaram
Murlidhar Sonar Vs. State of Maharashtra, reported in (2019) 8 SCC
191, Shambhu Karwar Vs. State of U.P. and another, reported in
2022 SCC OnLine SC 1032, XXX Vs. State of Madhya Pradesh,
reported in 2024 SCC OnLine SC 241, Judgment passed by M.P. High
Court in the case of Ramesh Vs. State of M.P. reported in 2013(3)
MPWN 138, Mayank Tiwari Vs. State of M.P. reported in 2023(2)
JabLJ 112 and by Delhi High Court in the case of State Vs. Sudershan
Kumar reported in 2023 SCC OnLine Delhi 1647.
3. To appreciate the rival contentions of the parties, it is necessary to
consider the allegations made in the FIR. The prosecutrix lodged the
report on the allegations that She is the resident of XXXXX Bhopal. The
applicant was also in the same profession with her husband. In the
month of April 2018, the applicant sent a message in the night which was
replied by her as her husband was knowing the applicant. She used to
call the applicant as "sir" and used to respect him, therefore, she had
replied his message. Thereafter, the applicant started sending messages
on every day and also started asking about her well being. Since, the
applicant was in the same profession with her husband, therefore, certain
messages were replied by her. With passage of time, the applicant
started playing with her sentiments. Taking advantage of innocence of
the prosecutrix, he started visiting her house in the absence of her
husband. He used to say that since, he loves her, therefore, he would be
with her for the entire life. She also lost in his sweet talks and started
fulfilling all his demands. In the month of May 2018, the applicant came
to her house in the absence of her husband and had sexual intercourse
with her. Thereafter, he started threatening that he would inform her
husband in case, if She refuses to have physical relations with him.
Therefore, from the year 2018, he was having physical relations with her.
On 24-2-2021, at about 3:30-4:00 P.M., the applicant came to her house
and had physical relations with her. All of a sudden her husband also
came back and since, the prosecutrix got afraid, therefore, he hide the
applicant in the bathroom. When her husband went to the bathroom, then
he found the applicant there, therefore, he also gave good amount of
beating to the applicant. She somehow managed to save the life of the
applicant. Thereafter, the applicant ran away in order to save his life.
She persuaded her husband that the applicant had come to the house in
connection with some work. On the next day, the applicant sent her a
message, that She should tell her husband that he had come to see some
house and for having water, he had visited her house. Her husband also
tried to verify from the applicant as to whether he has any relations with
the prosecutrix or not. However, her husband got satisfied that the
prosecutrix had no relations with the applicant. Thereafter, the applicant
stopped visiting her house, however, he was constantly pressurizing her
to send her intimate photos and videos on Whatsapp. Initially, She sent
the initimate photos and videos but on account of constant demand, she
got fed up. She was broken emotionally and was also thinking to commit
suicide and accordingly discussed the matter with her friend who
suggested her to disclose each and every fact to her husband. Now She
has narrated the entire things to her husband and has come to lodge
report.
4. The Trial Court by the impugned order has framed charge under
Section 376(2)(n) of IPC.
5. Before considering the submissions made by the Counsel for the
applicant, this Court would like to consider the scope of interference at
the stage of framing charges.
6. The Supreme Court in the case of Dilawar Balu Kurane v. State
of Maharashtra, reported in (2002) 2 SCC 135 has held as under :
12. Now the next question is whether a prima facie case has
been made out against the appellant. In exercising powers under
Section 227 of the Code of Criminal Procedure, the settled
position of law is that the Judge while considering the question
of framing the charges under the said section 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; 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; by and large
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 justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office or a
mouthpiece 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 but should not make a
roving enquiry into the pros and cons of the matter and weigh
the evidence as if he was conducting a trial (see Union of India
v. Prafulla Kumar Samal).
7. The Supreme Court in the case of State of M.P. v. Mohanlal Soni,
reported in (2000) 6 SCC 338 has held as under :
7. The crystallised judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The court
is not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the
accused.
8. In Ananda Bezbaruah v. Union of India the Gauhati High
Court was of the view that where the accused was charged with
the offence of having resources and property disproportionate to
his income and the trial court failed to consider and evaluate the
income tax return which clearly established that the property
included in the assets of the accused and shown to be
disproportionate is the wife's property bought from her own
resources and should have been excluded from the assets of the
accused.
9. Yet in another decision of this Court in Niranjan Singh
Karam Singh Punjabi v. JitendraBhimrajBijjaya it is held that
at the time of framing charges having regard to Sections 227
and 228 CrPC, the court is required to evaluate the material and
documents on record with a view of finding out if the facts
emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence.
The court may for this limited purpose to sift the evidence, as it
cannot be expected even at the initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or broad probabilities of the case.
10. Further in SatishMehra case this Court has stated that the
Sessions Judge was not expected to hold a roving inquiry into
the pros and cons of the case at the stage of framing charges by
weighing the evidence as if he was conducting the trial.
11. Decision in the case of State of M.P. v. S.B. Johari strongly
relied on by the learned counsel for the petitioner, in our view
does not advance or support the case of the petitioner. That was
a case where FIR was lodged at the police station, Bhopal to the
effect that there was criminal conspiracy in purchase of
medicines by the hospital authorities concerned including the
Dean, Superintendent, Medical Officer-In-Charge and others. It
was alleged that aforesaid accused entered into criminal
conspiracy with some local businessmen of Indore by misusing
their posts and also by using some forged documents caused
wrongful loss to the Government. It was stated that though
many of the items had not been purchased, amount was paid on
bogus vouchers. After considering the material on record,
learned Sessions Judge framed the charges against the accused
for the offence punishable under Sections 5(1)(d) and 5(2) of
the Prevention of Corruption Act, 1948 read with Section 120-B
IPC and in the alternative for the offence punishable under
Section 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. The High Court in revision quashed the
charges accepting the contentions raised by the accused after
detailed consideration of material produced on record. Having
regard to the facts and circumstances of the case and referring
to earlier decisions of this Court in para 4 it is held thus: (SCC
pp. 60-61)
"4. In our view, it is apparent that the entire approach of the
High Court is illegal and erroneous. From the reasons recorded
by the High Court, it appears that instead of considering the
prima facie case, the High Court has appreciated and weighed
the materials on record for coming to the conclusion that charge
against the respondents could not have been framed. It is settled
law that at the stage of framing the charge, the court has to
prima facie consider whether there is sufficient ground for
proceeding against the accused. The court is not required to
appreciate the evidence and arrive at the conclusion that the
materials produced are sufficient or not for convicting the
accused. If the court is satisfied that a prima facie case is made
out for proceeding further then a charge has to be framed. The
charge can be quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused, even if
fully accepted before it is challenged by cross-examination or
rebutted by defence evidence, if any, cannot show that the
accused committed the particular offence. In such case, there
would be no sufficient ground for proceeding with the trial. In
Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj
Bijjaya after considering the provisions of Sections 227 and 228
CrPC, the Court posed a question, whether at the stage of
framing the charge, the trial court should marshal the materials
on the record of the case as he would do on the conclusion of
the trial. The Court held that at the stage of framing the charge
inquiry must necessarily be limited to deciding if the facts
emerging from such materials constitute the offence with which
the accused could be charged. The court may peruse the records
for that limited purpose, but it is not required to marshal it with
a view to decide the reliability thereof. The Court referred to
earlier decisions in State of Bihar v. Ramesh Singh, Union of
India v. Prafulla Kumar Samal and Supdt. &Remembrancer of
Legal Affairs, W.B. v. Anil Kumar Bhunja and held thus: (SCC
p. 85, para 7)
'From the above discussion it seems well settled that at the
Sections 227-228 stage 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. The court may for this limited purpose sift the evidence
as it cannot be expected even at the initial stage to accept all
that the prosecution states as gospel truth even if it is opposed
to common sense or the broad probabilities of the case.' "
As is evident from the paragraph extracted above if the court is
satisfied that a prima facie case is made out for proceeding
further then a charge has to be framed. Per contra, if the
evidence which the prosecution proposes to produce to prove
the guilt of the accused, even if fully accepted before it is
challenged by the cross-examination or rebutted by the defence
evidence, if any, cannot show that the accused committed the
particular offence then the charge can be quashed.
8. The Supreme Court in the case of L. Krishna Reddy v. State,
reported in (2014) 14 SCC 401 has held as under :
11. The court is neither a substitute nor an adjunct of the
prosecution. On the contrary, once a case is presented to it by
the prosecution, its bounden duty is to sift through the material
to ascertain whether a prima facie case has been established
which would justify and merit the prosecution of a person. The
interest of a person arraigned as an accused must also be kept in
perspective lest, on the basis of flippant or vague or vindictive
accusations, bereft of probative evidence, the ordeals of a trial
have to be needlessly suffered and endured.
9. The Supreme Court in the case of M.E. Shivalingamurthy v. CBI,
reported in (2020) 2 SCC 768 has held as under :
Legal principles applicable in regard to an application seeking
discharge
17. This is an area covered by a large body of case law. We
refer to a recent judgment which has referred to the earlier
decisions viz. P. Vijayan v. State of Kerala and discern the
following principles:
17.1. If two views are possible and one of them gives rise to
suspicion only as distinguished from grave suspicion, the trial
Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the
charge at the instance of the prosecution.
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.
17.4. If the evidence, which the Prosecutor proposes to
adduce to prove the guilt of the accused, even if fully accepted
before it is challenged in cross-examination or rebutted by the
defence evidence, if any, "cannot show that the accused
committed offence, then, there will be no sufficient ground for
proceeding with the trial".
17.5. It is open to the accused to explain away the materials
giving rise to the grave suspicion.
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 to make a roving
inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative
value of the material on record cannot be gone into, and the
material brought on record by the prosecution, has to be
accepted as true.
17.8. There must exist some materials for entertaining the
strong suspicion which can form the basis for drawing up a
charge and refusing to discharge the accused.
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).
10. The Supreme Court in the case of Mauvin Godinho v. State of
Goa, reported in (2018) 3 SCC 358 has held as under :
12. At the outset it would be pertinent to note the law
concerning the framing of charges and the standard which
courts must apply while framing charges. It is well settled that a
court while framing charges under Section 227 of the Code of
Criminal Procedure should apply the prima facie standard.
Although the application of this standard depends on facts and
circumstance in each case, a prima facie case against the
accused is said to be made out when the probative value of the
evidence on all the essential elements in the charge taken as a
whole is such that it is sufficient to induce the court to believe
in the existence of the facts pertaining to such essential
elements or to consider its existence so probable that a prudent
man ought to act upon the supposition that those facts existed or
did happen. However, at this stage, there cannot be a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial. [Refer Sajjan Kumar v.
CBI, State v. A. Arun Kumar and State v. S. Selvi.]
11. Now, the reasoning assigned by the Trial Court for framing charge
against the applicant shall be considered.
12. The Trial Court has framed the charges merely by saying that by
having sweet talks with the prosecutrix, the applicant won her confidence
and had physical relations with her. Now, the question is that whether
the consent of the prosecutrix is hit by Section 90 of IPC or not? The
prosecutrix is admittedly a married woman and was having physical
relationship with the applicant from the year 2018 and even when her
husband came back to his house, then the prosecutrix tried to hide the
presence of the applicant by hiding him in the bathroom and thereafter
gave a false explanation with regard to the presence of applicant in her
house. Therefore, the Trial Court should have considered that under the
facts and circumstances of the case, whether the consent of the
prosecutrix was free consent or was obtained by misconception of Fact.
However, that aspect is completely missing. Further more, the Trial
Court has also missed another important aspect of the matter.
13. The FIR can be divided into two parts i.e., physical relations from
2018 till 2021; and insistence by the applicant to send intimate photos
and videos of the prosecutrix.
14. The prosecutrix has no where stated that She had sent her intimate
photos and videos out of her own volition. In fact, it is her case, that the
applicant was following her and was pressurizing her to send her intimate
photos and videos. When the demand of the applicant for intimate photos
and videos continued, then she was mentally broken and had even
decided to commit suicide. This conduct of the applicant has not been
taken note of by the Trial Court.
15. The Supreme Court in the case of XYZ v. State of M.P., reported
in (2021) 16 SCC 179 has held as under :
Nature of the beast : the problem
20. Women often experience obstacles in gaining access to
mechanisms of redress, including legal aid, counselling services
and shelters. They are re-victimised and exposed to further risk
of violence through the denial of redress in the context of
informal trials or negotiations between families and community
leaders. The payment of financial compensation by the
perpetrator or his family for acts of violence against women, in
lieu of legal remedies, was a recurrent concern vis-à-vis the
formal and informal justice systems. Violence against women
in India is systematic and occurs in the public and private
spheres. It is underpinned by the persistence of patriarchal
social norms and inter and intra-gender hierarchies. Women are
discriminated against and subordinated not only on the basis of
sex, but on other grounds too, such as caste, class, ability,
sexual orientation, tradition and other realities.
21. Gender violence is most often unseen and is shrouded in
a culture of silence. The causes and factors of violence against
women include entrenched unequal power equations between
men and women that foster violence and its acceptability,
aggravated by cultural and social norms, economic dependence,
poverty and alcohol consumption, etc. In India, the culprits are
often known to the woman; the social and economic "costs" of
reporting such crimes are high. General economic dependence
on family and fear of social ostracisation act as significant
disincentives for women to report any kind of sexual violence,
abuse or abhorrent behaviour. Therefore, the actual incidence of
violence against women in India is probably much higher than
the data suggests, and women may continue to face hostility
and have to remain in environments where they are subject to
violence. This silence needs to be broken. In doing so, men,
perhaps more than women have a duty and role to play in
averting and combating violence against women.
22. Unlike many other victims of interpersonal crimes such
as theft, robbery or muggings, survivors of sexual assault are
vulnerable to being blamed for their attack, and thus victim-
blaming (overtly or in more subtle forms) in sexual assault
cases has been the focus of several writings. Myths and
stereotypes "underlie and fuel sexual violence against women
and inform negative societal reactions". Joanne Conaghan
points out pertinently that "removing the doctrinal debris of a
legally instituted gendered hierarchical order does not
necessarily get rid of deeply ingrained social and cultural
attitudes which law has long endorsed and which continue to
infuse the criminal justice process, albeit in more covert, less
accessible forms".
23. Sexual violence is varied in degree. At the highest (or,
rather most aggravated) level, is rape with or without attendant
violence. However, there are a substantial number of incidents
which fall within the rubric of sexual violence, that amount to
offences under various penal enactments. These outlaw
behaviours such as stalking, eve-teasing, shades of verbal and
physical assault, and harassment. Social attitudes typically
characterise this latter category of crimes as "minor" offences.
Such "minor" crimes are, regrettably not only trivialised or
normalised, rather they are even romanticised and therefore,
invigorated in popular lore such as cinema. These attitudes --
which indulgently view the crime through prisms such as "boys
will be boys" and condone them, nevertheless have a lasting
and pernicious effect on the survivors.
24. The United Nations Organisation has defined "violence
against women" as "any act of gender-based violence that
results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life". The effect of offensive
behaviour against women, which laws criminalise physical,
verbal, or other acts which threaten or give them acute
discomfort, undermining their dignity, self worth and respect, is
to silence or subdue the survivor.
25. In The Standard of Social Justice as a Research Process
two scholars of psychology made a strong indictment of the
(contextually, Canadian) criminal justice process:
"The more general indictment of the current criminal justice
process is that the law and legal doctrines concerning sexual
assault have acted as the principle [sic] systemic mechanisms
for invalidating the experiences of women and children. Given
this state of affairs, the traditional view of the legal system as
neutral, objective and gender-blind is not defensible. Since the
system is ineffective in protecting the rights of women and
children, it is necessary to re-examine the existing doctrines
which reflect the cultural and social limitations that have
preserved dominant male interests at the expense of women and
children."
(emphasis supplied)
16. The Supreme Court in the case of State of Punjab v. Ramdev
Singh, reported in (2004) 1 SCC 421 has held as under :
1. Sexual violence apart from being a dehumanizing act is
an unlawful intrusion on the right of privacy and sanctity of a
female. It is a serious blow to her supreme honour and offends
her self-esteem and dignity -- it degrades and humiliates the
victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only
causes physical injuries but more indelibly leaves a scar on the
most cherished possession of a woman i.e. her dignity, honour,
reputation and not the least her chastity. Rape is not only a
crime against the person of a woman, it is a crime against the
entire society. It destroys, as noted by this Court in Bodhisattwa
Gautam v. Subhra Chakraborty the entire psychology of a
woman and pushes her into deep emotional crisis. It is a crime
against basic human rights, and is also violative of the victim's
most cherished of the fundamental rights, namely, the right to
life contained in Article 21 of the Constitution of India (in short
"the Constitution"). The courts are, therefore, expected to deal
with cases of sexual crime against women with utmost
sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge, in our opinion, is a better
statutory armour in cases of crime against women than long
clauses of penal provisions, containing complex exceptions and
provisos.
17. The Supreme Court in the case of K.S. Puttaswamy (Aadhar 5-J)
Vs. Union of India reported in (2019) 1 SCC 1 has held as under :
109. A close reading of the judgment in K.S. Puttaswamy brings
about the following features:
109.1.Privacy has always been a natural right : The correct
position in this behalf has been established by a number of
judgments starting from Gobind v. State of M.P. Various
opinions conclude that:
109.1.1. Privacy is a concomitant of the right of the individual
to exercise control over his or her personality.
109.1.2. Privacy is the necessary condition precedent to the
enjoyment of any of the guarantees in Part III.
109.1.3. The fundamental right to privacy would cover at least
three aspects -- (i) intrusion with an individual's physical body,
(ii) informational privacy, and (iii) privacy of choice.
109.1.4. One aspect of privacy is the right to control the
dissemination of personal information. And that every
individual should have a right to be able to control exercise
over his/her own life and image as portrayed in the world and to
control commercial use of his/her identity.
18. Whether the conduct of the applicant would prima facie make out
an offence under Section 354-A, 354-C and 354-D of IPC or not has not
been considered at all.
19. Thus, in the considered opinion of this Court, the Trial Court has
committed material illegality by not appreciating the allegations made in
the FIR in its entirety.
20. Accordingly, the order dated 21-9-2022 passed by 10th A.S.J.,
Bhopal by which charge under Section 376(2)(n) of IPC was framed, is
hereby set aside and the matter is remanded back to the Trial Court to
decide the question of framing of charges afresh after considering all the
allegations made in the FIR.
21. With aforesaid observations, the revision filed by the applicant is
allowed.
22. No order as to costs.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2024.05.10 17:05:09
+05'30'
HS
