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Raja Girraj Sharma (Raja Sharma) vs The State Of Madhya Pradesh Thr on 2 April, 2018

HIGH COURT OF MADHYA PRADESH
1 M.Cr.C.No. 10637/2018
(Raja Girraj Sharma (Raja Sharma) Vs. State of M.P. Anr.)

Gwalior Bench:
Dated:-02/04/2018
Shri Prem Singh Bhadauriya and Shri Vijay Dutt Sharma,
learned counsel for the applicant.
Shri B.M.Patel, learned PP for the respondent No. 1/State.
Shri Yuvraj Singh Bhadauriya and Shri Suraj Khare, learned
counsel for the respondent No. 2/complainant.
With consent, heard finally.
The present petition under Section 482 of Cr.P.C. is
directed against the order dated 5/3/2018 passed by JMFC,
Gwalior in Criminal Case No. 2505/2017; whereby, the application
filed by respondent No. 2/complainant under
Section 323 of
Cr.P.C. has been allowed and matter is committed to the Sessions
Court by the learned Magistrate as offence under
Section 377 of
IPC was found to be made out against the petitioner, prima facie
and matter has been placed for arguments on committal.
Facts

giving rise to the petition are that on 16/1/2017,
petitioner filed a suit under
Section 13 of Hindu Marriage Act
against respondent No. 2 seeking divorce. Immediately, thereafter
on 17/1/2017, a complaint was lodged under
Section 498-A, 506-
34 of IPC against the present petitioner and his family members at
Mahila Thana, Padav, Gwalior and case was registered. After
investigation, charge-sheet was filed for the alleged offence
referred above. Charge is yet to be framed against the petitioner
by the Sessions Court. Meanwhile, respondent No. 2 filed an
application under
Section 323 of Cr.P.C. to the effect that in the
complaint dated 17/1/2017, complainant apart from other
allegations, also alleged against the petitioner regarding
committing unnatural sex due to which she suffered Urinary Tract
Infection (UTI) and also levelled some similar type of allegations
against the father of petitioner having the trappings of offence
punishable under
Section 354 of IPC. Prayer was made for
inclusion of additional charges to be framed against the petitioner
and his father. Trial Court considered the said application and
HIGH COURT OF MADHYA PRADESH
2 M.Cr.C.No. 10637/2018
(Raja Girraj Sharma (Raja Sharma) Vs. State of M.P. Anr.)

found that sufficient ground exists for proceeding against the
petitioner in respect of framing of charge under
Section 377 of
IPC. Since, the offence under
Section 377 of IPC is triable by
Sessions Court, therefore, matter is committed to the Sessions
Court by the impugned order. The said order is the bone of
contention and therefore, petitioner/accused is before this Court
under
Section 482 of Cr.P.C.

According to learned counsel for the petitioner, Section 323
of Cr.P.C. gives power to the Magistrate that if at the time of
enquiry or trial, it appears to it at any stage of proceedings that the
case is to be tried by the Court of Sessions, it can commit it to that
Court. The said power is akin to power given under
Section 216 of
Cr.P.C. in respect of addition or alteration of charges. Both the
provisions contemplate the subjective satisfaction of the Court to
proceed further and not at the instance of any party to the litigation
like complainant, accused or prosecution. He relied upon the
judgment of Hon’ble Apex Court rendered in the matter of
P.Kartikalakshmi Vs. Sri Ganesh and Anr., (2017) 3 SCC 347.

Another ground raised by the petitioner is that statement
under
Section 164 of Cr.P.C. is corroborative piece of evidence
and not substantial piece of evidence which comes from
prosecution or defence witness; whereas, here in the present
case, respondent No. 2 has made statement under
Section 164 of
Cr.P.C. which has some bearing but is not sufficient to impose
charge of
Section 377 of IPC. Contradiction between the FIR and
statement under
Section 164 of Cr.P.C. are glaring. He further
submits that the trial Court erred in committing the matter to the
Sessions Court on the application preferred by the complainant.
Only suo motu, court could have considered the said aspect not at
the instance of any party.

Per contra, learned counsel for the State opposed the
prayer made by the petitioner and prayed for dismissal of the
petition.

Learned counsel for respondent No. 2 also opposed the
HIGH COURT OF MADHYA PRADESH
3 M.Cr.C.No. 10637/2018
(Raja Girraj Sharma (Raja Sharma) Vs. State of M.P. Anr.)

prayer. It is submitted that the complaint indicates the ingredient of
Section 377 of IPC. The charge sheet was not filed including the
offence of
Section 377 of IPC, therefore,the application was
moved and since charge has not been framed under
Section 377
of IPC, therefore, judgment relied upon by learned counsel for the
petitioner in the case of P.Kartikalakshmi (supra) is not attracted.
Sessions Court would have to frame charge and thereafter trial
would proceed. He prayed for dismissal of the petition.

Heard learned counsel for the parties at length and perused
the documents appended thereto.

In the present case, petitioner filed a divorce petition under
Section 13 of Hindu Marriage Act against the respondent No. 2 on
16/1/2017. Immediately thereafter, a complaint was filed by
respondent No. 2 and registered by the respondent No. 1. Charge
sheet has been filed in which offence punishable under
Section
498-A,
506/34 of iPC was alleged. Trial Court has not framed
charges yet against the petitioner. Instead, trial Court referred the
matter to the Sessions Court because trial Court came to its
subjective satisfaction about involvement of
Section 377 of IPC.
Since the charge has not been framed, therefore,no question of
addition or alteration of charge comes under
Section 216 of
Cr.P.C. Even otherwise, the case which referred by the counsel
for the petitioner in respect of scope of addition and alteration of
charge under
Section 216 Cr.P.C. at the instance of complainant
or any party, the Apex Court has passed the order in the matter of
P.Kartikalakshmi (supra), in a factual scenario, where, addition
or alteration of charge at the instance of applicant was purportedly
tried to be incorporated by the then appellant and after rejection
from the trial Court, revision was preferred and thereafter, matter
travelled to High Court and thereafter Apex Court. Therefore, Apex
Court held that the right is not ‘Vested Right’ for addition or
alteration of charge. This aspect has been clarified by the Apex
Court in the case of Anant Prakash Sinha alias Anant Sinha Vs.
State of Haryana and Anr., (2016) 6 SCC 105; wherein, Their
HIGH COURT OF MADHYA PRADESH
4 M.Cr.C.No. 10637/2018
(Raja Girraj Sharma (Raja Sharma) Vs. State of M.P. Anr.)

Lordships have held that through the application if the fact and
legal position comes before the Magistrate about defect in framing
of charge then, there is no fault on the part of Magistrate in
entertaining such application because Magistrate referred the
material on record and recorded his prima facie satisfaction.
Therefore, the judgment relied by petitioner in the case of
P.Kartikalakshmi (supra) moves in different factual realm vis-a-
vis the present case and on the other hand, judgment rendered by
the Apex Court in the case of Anant Prakash Sinha (supra) is
the sheet anchor for the view of this Court that order impugned
does not suffer from jurisdictional error.

Even otherwise, charges are yet to be framed against the
petitioner and petitioner can very well resist the same on the basis
of documents and submissions before the Sessions Court at the
stage of framing of charges, which shall be considered by the trial/
Sessions Court. At this juncture, no interference can be made for
quashment of case in hand on the pretext of the legal position that
the application under
Section 323 of Cr.P.C. was not maintainable
and thus order impugned suffers from jurisdictional error.

No case for interference is made out, under the
extraordinary jurisdiction of this Court under
Section 482 of
Cr.P.C. Petition sans merits and is hereby dismissed.

(Anand Pathak)
Judge
jps/-

Digitally signed by JAI
PRAKASH SOLANKI
Date: 2018.04.05 14:55:04
+05’30’

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