Telangana High Court

B.Shankar Naik vs The State Of Telangana on 2 June, 2021

Bench: A.Abhishek Reddy

       THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

           CRIMINAL REVISION CASE No.82 OF 2021

ORDER:

This Criminal Revision Case under Sections 397 and 401 of

the Criminal Procedure Code (in short 'Cr.P.C.') is filed by the

petitioner aggrieved by the order dated 27.01.2021 passed by the

Special Sessions Judge for trial of Criminal Cases relating to

elected M.Ps. and M.L.As. of the State of Telangana at Hyderabad,

in Crl.M.P.No.1001 of 2020 in C.C. No.16 of 2020, whereby the

petition filed by the petitioner under Section 239 of Cr.P.C. seeking

to discharge him for the offence under Sections 353, 354 and 509

of Indian Penal Code (in short 'I.P.C.') has been dismissed.

The case of the prosecution, in brief, is that on 12.07.2017

at 6.00 p.m., one Dr.Preeti Meena, I.A.S., Collector & District

Magistrate, Mahabubabad, the de facto complainant herein, has

sent a written report to Mahabubabad Town Police Station, stating

that on the same day at about 12.35 p.m. when she was attending

the '3rd Phase Haritha Haram' programme at NTR Stadium,

Mahabubabad, along with the Joint Collector, Revenue Divisional

Officer of Mahabubabad and other officials, the accused (petitioner

herein) caught hold of her hand and pushed her from one place to

another place in most indecent and disrespectful manner in the

public and caused high annoyance and obstruction to her

legitimate duties and therefore requested to take action. Based on

the above complaint, the Inspector of Police, Mahabubabad Town

Police Station, registered a case in Crime No.230/2017 for the

offences under Sections 353, 354 and 509 I.P.C. Subsequently, the

Sub-Divisional Police Officer, Thorrur, took up the investigation,

visited the scene of offence, recorded the statements of the

witnesses, drawn rough sketch of scene of offence, collected video

coverage footage at the spot and after completion of entire

investigation, found that the accused has obstructed the legitimate

duties of the public servant and used criminal force with malicious

intention and insulted the de facto complainant in the public by

commenting her and also tried to outrage her modesty by catching

hold of her hand, and filed a charge sheet in the Court.

Cognizance of the said case was taken on file as C.C.No.16 of

2020, wherein the accused has filed Crl.M.P.No.1001 of 2020

seeking to discharge him from the alleged offences. The learned

Special Sessions Judge, by the impugned order dated 27.01.2021,

has dismissed the said Petition. Aggrieved by the same, the

petitioner/accused filed the present Criminal Revision Case.

Heard Sri A.Prabhakar Rao, the learned counsel for the

petitioner/accused, and the learned Public Prosecutor appearing

for the respondent-State.

The learned counsel for the petitioner/accused has

vehemently argued that the Court below, without appreciating the

evidence on record, in a mechanical manner, has simply dismissed

the petition filed by the petitioner/accused under Section 239

Cr.P.C. That the material placed before the Court below does not

disclose the commission of any offences muchless Sections 353,

354 and 509 I.P.C. The learned counsel has further stated that

though the statements of the witnesses recorded under Section

161 Cr.P.C do not disclose that the accused has committed the

alleged offences, the trial Court, without discussing the same, has

simply held that there is prima facie material against the accused

to frame charges against him for the offences under Sections 353,

354 and 509 I.P.C., and dismissed the discharge petition. The

learned counsel has taken this Court through the statement of the

de facto complainant (L.W.1) and also Sections 353, 354 and 509

I.P.C, to buttress his contention that the allegations made against

the accused do not attract the ingredients of the offences

punishable under Sections 353, 354 and 509 I.P.C. That merely

touching the de facto complainant on her shoulder does not

amount to outraging her modesty or preventing her from

discharging her duties. The learned counsel has further stated that

touching the de facto complainant by the accused was inadvertent

and there was no intention on the part of the accused to outrage

the modesty of the de facto complainant; that the accused did not

utter any words against the de facto complainant and that the

accused did not try to intimidate the de facto complainant nor

obstructed her from discharging her official duties.

Per contra, the learned Public Prosecutor appearing on behalf

of the State has argued that the statements recorded by the

Investigating Officer under Section 161 Cr.P.C reveal that the

accused has tried to insult the de facto complainant while she was

discharging her duty and that only with an intention to outrage the

modesty of the de facto complainant, the accused caught hold of

her hand and obstructed her from discharging her duty. That the

statements of L.Ws.2 to 6 support the allegations made by the de

facto complainant in her complaint. That a prima facie case is

made out against the accused and that there is sufficient material

to show that the allegations made against the accused are true and

correct. That the question of discharging the accused at the stage

of framing of the charges does not arise, and therefore, the trial

Court has rightly passed the impugned order, and that the Court

cannot conduct a roving enquiry at this stage to find out the guilt

or otherwise of the accused and that unless and until a full fledged

trial is completed, the accused cannot the discharged.

A reading of the impugned order dated 27.01.2021 discloses

that the learned Special Sessions Judge has come to the

conclusion that there is prima facie material against the accused to

frame charges against him for the offences under Sections 353,

354 and 509 I.P.C., and further held that at that stage, the trial

Court cannot come to a conclusion whether the said prima facie

material is sufficient to record conviction or acquittal against the

accused, and accordingly dismissed the petition.

In order to appreciate the various contentions raised by the

learned counsel for the parties, it is necessary to extract Sections

239 and 240 Cr.P.C.

Section 239 Cr.P.C. reads as under:

"When accused shall be discharged: - If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

Section 240 Cr.P.C. reads as under:

"Framing of charge: - (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion

that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

A combined reading of Sections 239 and 240 Cr.P.C. makes

it abundantly clear that before framing the charges, the trial Court

is expected to consider the material placed before it in order to

decide whether the charges can be framed against the accused or

not.

The Hon'ble Supreme Court in Onkar Nath Mishra v. State

(NCT of Delhi)1 has held as under:

"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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

In State of Maharashtra v. Som Nath Thapa2, a three-

Judge Bench of the Hon'ble Supreme Court, after noting three

pairs of sections viz. (i) Sections 227 and 228 insofar as sessions

(2008) 2 SCC 561

[(1996) 4 SCC 659

trial is concerned; (ii) Sections 239 and 240 relatable to trial of

warrant cases; and (iii) Sections 245(1) and (2) qua trial of

summons cases, which dealt with the question of framing of charge

or discharge, stated thus:

"32. ... if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

In State of M.P. v. Mohanlal Soni3, the Hon'ble Supreme

Court, while referring to several previous decisions 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."

In State by Karnataka Lokayukta, Police Station,

Bengaluru v. M.R. Hiremath4, the Hon'ble Supreme Court has

held as under:

"It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the

[(2000) 6 SCC 338

(2019) 7 SCC 515

existence of the ingredients necessary to constitute the offence."

A combined reading of all the above judgments shows that in

order to discharge a person under 239 Cr.P.C., the Court has to

necessarily see whether there is any prima facie material available

on record to charge the accused. The Courts can discharge the

accused if the material available on record is insufficient to

connect the accused with the commission of the offence or that the

trial Court is barred by law to proceed with the case i.e., cases

where prior permission is needed to prosecute the accused or if the

trial is allowed to proceed, the same will be an abuse of process of

law, but not otherwise.

Undoubtedly, unless and until the Court is satisfied that

there is no iota of evidence against the accused or that the charges

leveled against the accused are groundless, and there is no prima

facie case, the accused cannot be discharged from the offence even

before framing of the charges.

Moreover, as discussed in the previous paragraphs, the

scope of interference by this Court, under Sections 397 and 401

Cr.P.C., while dealing with the orders of trial Court, more

specifically in case of discharge petitions, is very limited. Unless

and until the accused is able to show that the material before the

trial Court was insufficient or that the charges, which are sought

to be framed against him, are frivolous in nature or that no prima

facie case is made out against him, the scope of interference by

this Court in the present Criminal Revision Case is very minimal.

The Hon'ble Supreme Court in Asian Resurfacing of Road

Agency Pvt. Ltd. v. Central Bureau of Investigation5, has held

that interference in the order framing charges or refusing to

discharge is called for in rarest of rare case only to correct the

patent error of jurisdiction.

The Hon'ble Supreme Court in Asian Resurfacing (supra)

while expressing concern regarding the need to tackle rampant

pendency and delays in our criminal law system, followed the ratio

laid down in an earlier decision in Madhu Limaye v. State of

Maharashtra6, as can be seen from the following extract:

"Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551: 1978 SCC (Cri) 10] still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in a exceptional situation."

The discretion vested in the High Court is to be invoked

carefully and judiciously for effective and timely administration of

criminal justice system. Unless and until it is shown that there is

every likelihood of serious prejudice to the rights of the accused,

this Court, as a matter of fact, cannot interfere with the order

passed by the trial Court under Section 239 Cr.P.C.

(2018) 16 SCC 299

(1977) 4 SCC 551

In the instant case, the allegations made against the accused

that he caught hold of the hand of the de facto complainant,

pushed her from one place to another place in most indecent and

disrespectful manner in public causing high annoyance and