Bhanupratap Sharma vs State Of M.P. on 18 May, 2017

-( 1 )- Cr.R. No. 1070/2011

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.1070/2011

Bhanupratap Sharma Others
Versus
State of M.P.
———————————————————————————
Shri R.K. Sharma, Advocate for the applicants.
Shri R.K. Awasthi, Public Prosecutor for the
respondent/State.
———————————————————————————
ORDER

(18.05.2017)
This criminal revision takes exception to the
order dated 26.11.2011 by which the application filed
by the present applicants under Section 227 of Cr.P.C
1973 seeking discharge from the offences alleged
against them has been dismissed.

2- The prosecution story leading to filing of the
present revision petition is that a complaint was
received from the prosecutrix alleging that her father
along with brothers wrongly confined her and
coerced her for miscarriage. They carried the
prosecutrix to the applicant No.4 who is a registered
medical practitioner, it is alleged that she carried out
miscarriage against her will. The Police registered an
FIR and recorded the statement of the prosecutrix
and other relevant witnesses. Subsequent to the
same, a charge-sheet has been filed and the trial

-( 2 )- Cr.R. No. 1070/2011

court has framed the charges against the applicants
for commission of offences punishable under Section
313, 323, 344, and 506 Part 2 read with Section 34 of
Indian Penal Code (for short ‘IPC‘).
3- The applicants have approached this court on
the premise that the trial initiated against them is
bad in law as there is lack of evidence against the
present applicants and the statement of the
prosecutrix under Section 161 of Cr.P.C was recorded
under coercion by Police. Further such statement has
been retracted by her subsequently and the accurate
narration of events find mention therein. Such
statement has been filed along with instant revision
application as Annexure P-1. Consequently, the
applicants seek exoneration from all the charges and
quashing of entire criminal proceedings. In order to
support these contentions, learned counsel for the
applicants has placed reliance on the full Bench
decision of Kerala High Court in the case of
Moideenkutty Haji and others 1987 Cri.L.J 1106
and on the judgment pronounced by the Delhi High
Court in the case of Asha Rawal Vs. Basant Lal
Another, 1985 Cri.L.J 1026.

4- To the contrary, learned counsel for the
respondent invited the attention of this court to the
statements recorded by the Police under Section 161
of Cr.P.C to submit that the material brought on
record is sufficient to sustain the charges framed by
the trial court against the applicants and no
indulgence can be shown by this court to stifle the

-( 3 )- Cr.R. No. 1070/2011

legitimate prosecution. With respect to the
statements filed as Annexure P-1, learned counsel for
the respondent submitted that such document cannot
be given any consideration at the stage of framing of
charges and prosecution cannot be refused to lead
evidence to prove the charges against the applicants.
With respect to the judgments relied upon by the
applicants, learned counsel for the respondent
submitted that, the judgments are pronounced by
other High Courts and have no binding value and,
thus deserves to be ignored. Hence, prayed that the
instant criminal revision be dismissed.
5- I have carefully examined the documents filed
along with present revision application and have also
perused the case diary.

6- The submission made by learned counsel for the
applicants are not supported by any unimpeachable
material which may be sufficient to short-circuit the
prosecution by following the law laid down by the
Hon’ble Supreme Court in the case of Rukmini
Narvekar Vs. Vijaya Satardekar, AIR 2009 SC
1013. The statement which has been relied upon by
the applicants (Annexure P-1) is at best a defence
material which is required to be proved by leading
evidence to establish that such statement was
authored by the prosecutrix and the surrounding
circumstances under which the same was reduced in
writing.

7- Before further embarking on the merits of the
instant case, it is appropriate to deal with the

-( 4 )- Cr.R. No. 1070/2011

judgments relied upon by the learned counsel for the
applicants. In this regard, the learned counsel for the
respondent has contended that the judgments of the
other High Courts have no binding value and they are
to be simply ignored.

8- The submission of learned counsel for the
respondent is correct to the extent that, the
judgments of other High Courts do not have binding
value, however, it cannot be concluded that such
judgments lose their significance, in this regard the
Hon’ble Supreme Court in the case of Pradip J.
Mehta Vs. Commissioner of Income Tax,
Ahmedabad, (2008) 14 SCC 283, has held that :-

23. Although the judgments referred to
above were cited at the Bar in the High
Court, which were taken note of by the
learned Judges of the Bench of the High
Court, but without either recording its
agreement or dissent, it answered the two
questions referred to it in favour of the
Revenue. Judicial decorum, propriety and
discipline required that the High Court
should, especially in the event of its contra
view or dissent, have discussed the aforesaid
judgments of the different High Courts and
recorded its own reasons for its contra view.
We quite see the fact that the judgments
given by a High Court are not binding on the
other High Court(s), but all the same, they
have persuasive value. Another High Court
would be within its right to differ with the
view taken by the other High Courts but, in
all fairness, the High Court should record its
dissent with reasons therefor. The judgment
of the other High Court, though not binding,
have persuasive value which should be taken
note of and dissented from by recording its
own reasons.

9- Therefore, the judgments cited by learned

-( 5 )- Cr.R. No. 1070/2011

counsel for the applicants do not have binding value
but the reason for this agreement is necessary to be
recorded.

10- The full Bench decision of Kerala High Court in
the case of Moideenkutty Haji (Supra) deals with
the powers of Magistrate to mandatorily record
statements with respect to the offences which are
exclusively triable by the court of session. The Full
Bench was not deciding the ambit of Section 313 of
IPC, an observation has been recorded with respect
to Section 313 of IPC, but the same cannot be termed
as ratio of the case. Apart from it, the facts of the
instant case are entirely different and the judgment
will have no bearing.

11- The next judgment relied upon by the learned
counsel for the applicant is pronounced by the Delhi
High Court in the case of Asha Rawal (Supra) in
which the court has primarily discussed the
implication of Section 8 of the Medical Termination
and Pregnancy Act, 1971. In the event of allegation
against the Doctor under Section 313 of IPC and
while doing so, the court has discussed the
ingredients of Section 313 of IPC.

12- I have considered the facts of this case in which
there exists enough material to frame charges
against the applicants as the role of each applicant
finds mention in the charge-sheet in the manner that
the father of the complainant along with her brother
wrongly confined her and coerced her for
miscarriage. They carried the prosecutrix to applicant

-( 6 )- Cr.R. No. 1070/2011

No.4 who is a registered medical practitioner who
carried out miscarriage against her will. This court is
abstaining from recording any opinion on the merits
of the case which may prejudice the court below.
13- In view thereof, at the stage of framing of
charges, if any credence is given to statement
(Annexure P-1) then to grant the desired relief prayed
by the applicants, this court will be required to
venture into several presumption which is
impermissible. Further, the contradiction highlighted
in the statements with respect to date of miscarriage
is again a question of evidence which can only be led
before the trial court. It is also pertinent to highlight
the parameters of consideration at the stage of
framing of charges, laid down by the Hon’ble
Supreme Court in the case of State of Orissa Vs.
Debendra Nath Padhi, (2005) 1 SCC 568,
wherein it was held that :-

“As a result of aforesaid discussion, in our
view, clearly the law is that at the time of
framing charge or taking cognizance the
accused has no right to produce any
material. Satish Mehra case holding that
the trial court has powers to consider even
materials which the accused may produce
at the stage of Section 227 of the Code has
not been correctly decided. ”

14- Thus, the argument of considering the statement
of prosecutrix i.e. Annexure P-1 pales into
insignificance at this stage. This observation is
further compounded by the ratio of judgment
pronounced by the Hon’ble Supreme Court in the
case of Chitresh Kumar chopra Vs. State

-( 7 )- Cr.R. No. 1070/2011

(Government of NCT of Delhi), 2009 (16) SCC
605, wherein it was held that
“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 V. Jitendra Bhimraj
Bijjaya)”

15- Taking this view of the matter and leaving all the
questions raised by the applicants open, the criminal
revision is dismissed, accordingly.

(S.K.Awasthi)
Judge

Aman

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