HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved On: 20.09.2019.
Judgment Delivered On: 24.10.2019.
Court No. – 65
Case :- CRIMINAL REVISION No. – 3494 of 2019
Revisionist :- Ajay Alias Monu
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Vimlendu Tripathi,Manoj Kumar Rai
Counsel for Opposite Party :- G.A., Chetan Chatterjee
Hon’ble Dinesh Kumar Singh-I,J.
1. Sri Chetan Chatterjee, Advocate has filed Vakalatnama on behalf of opposite party no. 2 and the same is taken on record.
2. Heard Sri Vimlendu Tripathi, learned counsel for the revisionist, Sri Chetan Chatterjee, learned counsel for the opposite party no. 2 and Sri B. A. Khan, learned A.G.A. for the State.
3. This criminal revision has been filed with a prayer to set aside the impugned order dated 24.08.2019 passed by the Court of Additional Sessions Judge/F.T.C.-1st, Saharanpur in Sessions Trial No. 401 of 2019 (State Vs. Ajay), arising out of Case Crime No. 295 of 2019, under Section 326-A, Section328, Section376, Section506 I.P.C. and Section 67-D of the Information Technology Act, 2000, Police Station Deoband, District Saharanpur, whereby discharge application of the sole revisionist (application no. 7Kha) has been rejected.
4. At the very outset, learned counsel for the opposite party no. 2 has brought into notice of this Court that the accused revisionist has not got himself bailed out and had moved discharge application before the sessions court through counsel, although there was no such mandate under the order passed by this Court on 25.07.2019 which is annexed at page No. 125-126 of the paper book, which was passed to the following effect:
“However, the revisionist may approach the trial court within 30 days from today to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law within the same period. However, in case the discharge application is not moved or the same is rejected on merit within the aforesaid period, the trial court shall proceed in accordance with (law). The committal court shall commit the case within seven days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to stick to time limit for disposal of discharge application.
For a period of 30 days from today, no coercive action shall be taken against the revisionist. However, in case, the revisionist does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. ”
5. Learned counsel for the revisionist though tried to justify that the said order would entitle the accused to move an application through counsel without the accused getting himself bailed out. I am of the view that the said interpretation could not have been drawn by the trial court that it was allowed to commit the case without following the provisions of Section 209 of Cr.P.C., because in the understanding of this Court, the Compliance of Section 209 Cr.P.C. would mean that either the case would be committed to the court of sessions with accused in custody or only after he had sought bail. But it appears that the court below has made erroneous interpretation of the said direction by not directing the revisionist to seek bail first before committal of the case. But be that as it may, now this Court proceeds to take into consideration the matter on merits.
6. In the impugned order dated 24.08.2019 whereby the discharge application of the revisionist has been rejected by the Additional Session Judge, F.T.C.-1, Saharanpur, following analysis has been mentioned while rejecting the said discharge application 7-Kha moved by the revisionist. It has been mentioned that from the statements recorded by the Investigating Officer in case diary and from the perusal of the annexed documents therewith, it is apparent that all the witnesses whose statements were recorded under Section 161 Cr.P.C. have supported the version of the victim which was made by her in respect of the commission of the offence, therefore, at this stage it cannot be said that the accused did not commit the said offence under the above mentioned sections and his discharge is not appropriate because only after framing of charge, from the side of prosecution, the complainant side/prosecution would adduce evidence to prove its case, and after the evidence of the prosecution, the defence side would have opportunity to produce oral as well as documentary evidence whereafter only acquittal or conviction of accused may be done. Further, it is mentioned that simply because the High Court had granted interim relief to the revisionist against arrest till the submission of the charge sheet does not mean that the trial should not be held of the accused and he should be discharged. After having gone through the case diary, the trial court has recorded that it has found that there was sufficient evidence to constitute offences under the above mentioned Sections and accordingly has dismissed the discharge application and has further directed the revisionist that within one month either he should bring further order staying his arrest failing which he shall surrender and get himself bailed out and fixed 24.09.2019 for his further appearance before the trial court.
7. First of all learned counsel for the revisionist has argued that offence under Section 67-D of Information Technology Act, 2000 is not made out because there is no such Section in the SectionInformation Technology Act, 2000. It is pertinent to mention here in this regard that even if the Section has been wrongly quoted, it would be incumbent upon the Court to rectify the same at any stage of the case, provided that there is evidence found on record for an offence which is alleged to have been committed by the accused. It would be pertinent to refer to the contents of the F.I.R. so as to appreciate as to whether facts of any offence under the SectionInformation Technology Act, 2000 as alleged to have been committed by the accused are there in the F.I.R. or not. In the F.I.R. which has been lodged by the opposite party no. 2, it is mentioned, the revisionist had frequent access to the family of the opposite party no. 2. Revisionist is a married person who trapped opposite party no. 2 with ill will intention and therefore she and her family members started reposing faith in him. On 01.05.2015, at about 01:00 PM, he came to the house of opposite party no. 2 with juice of sugarcane for the opposite party no. 2 and her family members, after consuming which, all of them became unconscious, and taking advantage of it, he committed rape upon opposite party no. 2 and also had made indecent video-clippings and on the basis of giving threat to upload such indecent video-clipping on internet, he continued to rape her and when she became fed up, she gave him an ultimatum that she would lodge report at the police station. Then, the revisionist called opposite party no. 2 on 29.06.2016 at 12:00 noon to Deoband and assured her that he would destroy all the indecent video-clippings. When she reached near the room of the revisionist near Deoband Jail, he had already kept acid there in a container which was poured upon her and when she started crying some people reached there but the revisionist fled from there. She called her brother Asish and uncle Manish, who took her to hospital for treatment. Due to fear of the revisionist she could not lodge report till date because he was continuously giving threats that if any legal action was taken against him, her whole family would be eliminated. But ultimately, she summoned up courage and lodged an F.I.R. which was registered on 25.03.2019, although, the date of occurrence is reported to be of 29.06.2016.
8. As per the said allegations, offence under Section Section 67 or 67-A does not appear to be constituted because there was no publishing or transmitting or causing to be published or transmitted in the electronic form, any material which was lascivious or appeals to the prurient interest or that its effect was such so as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear such matters contained or embodied in it, nor has he published or caused any in electric form any material which contains sexually explicit act or conduct, hence the ingredients of offence under Section 67 or 67-A which could be likely to be constituted, are found to be missing and obviously Section 67-D is no section in the SectionI.T. Act, hence, to that extent the trial court’s order needs to be set aside as no offence appears to have been constituted under the said Sections. But more important here is to see as to whether to constitute offences under other Sections i.e. under Sections 326-A, Section376, Section328 and Section506 of I.P.C., is there any evidence from the side of prosecution.
9. As regards allegations of rape which is punishable under Section 376 I.P.C., it is mentioned in the F.I.R. by the informant/opposite party no. 2 that on 01.05.2015 at about 01:00PM, on being administered something noxious in the juice of sugarcane was given to her by the revisionist and when she fainted, in that condition she was raped by the accused revisionist. In her statement under Section 161 Cr.P.C. which is annexed at page no. 78 and 81 of the paper book the opposite party no. 2 has repeated the said version of the F.I.R. as regards rape and also in her statement under Section 164 Cr.P.C. annexed at page no. 97 to 101, she has repeated the same version that she was raped by the accused-revisionist.
10. As regards offence under Section 326-A I.P.C., the allegation made by the opposite party no. 2 in F.I.R. as well as in her statement under Section 161 and Section164 Cr.P.C. are that on being called by the revisionist to Deoband when she reached there at his room, the acid which were already kept there was poured upon her by which she got burnt.
11. With respect to offence 328 SectionI.P.C. which says that if someone is administered to or caused to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it be likely that he will thereby cause hurt, the said offence would stand constituted which is a serious offence. In this regard also in the F.I.R. and in the statements of the victim under Section 161 and Section164 Cr.P.C. she has stated that some stupefying substance was mixed in juice of sugarcane which was given to her by the revisionist and after consuming which she became unconscious and thereafter rape was committed upon her. These are the main allegations which are found prima-facie made out by the prosecution, on the basis of evidence collected during investigation.
12. The other argument by learned counsel for the revisionist is that an amount of Rs. 1,00,000/- on 04.07.2016 and Rs. 2,35,000/- on 02.11.2016 were given in the account of brother of the victim for the purpose of treatment of the victim because she had got injured due to accidental fall of acid bottle upon her and when the said amount was being demanded back she cooked up this false story against the accused-revisionist and to substantiate the same attention was drawn to page no. 56 of the paper book, which has the entries of the said amount in the bank account of brother of the victim. When it was objected that at the stage of framing of charge the trial court can not look into the documents of defence, reliance was placed by him on several case laws which provided that if there was a document of sterling quality which renders the case of the prosecution absolutely absurd, such document could be seen/taken into consideration at the time of framing of charge. Learned counsel for the applicant has placed reliance on SectionNitya Dharmananda @ K. Lenin vs Sri Gopal Sheelum Reddy 2017 AIR (SC) 5846, relevant para of which is quoted below:
“9. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.”
Further reliance in this regard has been placed by him upon SectionRajiv Thapar Ors. V. Madan Lal Kapoor 2013 CrLJ 1273, relevant para of which is quoted below:
“22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. ”
Further reliance in this regard has been placed by him upon SectionHarshendra Kumar D vs Rebatilata Koley Etc 2011 (1) SCC (Cri) 1139, relevant para of which is quoted below:
“21. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents – which are beyond suspicion or doubt – placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage”
Further reliance in this regard has been placed by him upon SectionRukmini Narvekar vs Vijay Sataredkar Ors 2009 AIR (SC) 1013, relevant para of which is quoted below:
“17. We have carefully perused the decision of this Court in the SectionState of Orissa vs. Debendra Nath Padhi (supra). Though the observations in paragraph 16 of the said decision seems to support the view canvassed by by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C and SectionArticle 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision in SectionState of Orissa vs. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide SectionDr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University, Sirsa Anr. JT 2008(8) SC 621. As observed by this Court in SectionBharat Petroleum Corporation Ltd. Anr. vs. N.R. Vairamani Anr AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid’s formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi’s case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.
18. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted.”
Further reliance in this regard has been placed by him upon Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and another 2019 SCC Online SC 588, relevant para of which is quoted below:
“21. At the stage of framing of charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the Prima facie view that the accused has committed the offence.”
13. In view of above citations, the document at page no. 56 i.e. Bank Account of the brother of the victim can certainly be taken into consideration but in my detailed analysis, the opinion would be expressed at subsequent stage in this regard.
14. Attention was also drawn by the learned counsel for the revisionist to page no. 48 and 49 of the paper book which is the copy of General Diary Details dated 30.06.2016 time 01:40 hours, in which it was mentioned that the In-charge Inspector ,while he was on patrolling duty had received a phone call at 10:00 O’clock from one Vikash Tyagi, Provincial Chairman Bajrang Dal, who told him that one girl namely Shivani Tyagi, opposite party no. 2, while she was coming from Deoband, some Muslim boys had thrown acid by which she had got burnt and was got admitted in the hospital of Dr. D. K. Jain and her younger brother was not picking up phone. Due to fear, the occurrence was being concealed. On receiving this information when the said inspector reached the place of Dr. D. K. Jain, the said doctor accompanied him to Bashtam where the opposite party no. 2 was residing and there, they met mother of the victim i.e. Vimlesh and her other relatives, who on being inquired stated that at about 01:30 PM, when opposite party no. 2 was cleaning chajja, a bottle of acid fell on her because of which she got burnt. In this regard, when the said Inspector inquired from opposite party no. 2, she substantiated the version given by her mother and thereafter at 23:15 hours, S.D.M. Deoband was requested to record dying declaration of the victim, which was recorded by S.D.M. Thus, in order to take political mileage and to incite public and communal riots, Vikas Tyagi had made an effort to spread this wrong piece of news that some Muslim boys had thrown acid but due to the good sense prevailing on the family members of opposite party no. 2 and opposite party no. 2 herself, the said Vikas Tyagi could not succeed in his aim. Citing this entry in the G.D. it was argued that even in dying declaration recorded of the victim, she had never stated that it was the revisionist who had poured acid upon her which led to her being burnt and the said dying declaration was being deliberately concealed from him as copy of the same has not been provided to the revisionist so far, which is still in possession of the prosecution and further it was argued that this entry which is an official data cannot be disbelieved and puts correct picture of the story and should lead the Court to believe that it was not the accused who had poured the acid upon the victim/opposite party no. 2 rather it fell on her accidentally and the said occurrence is being exploited by the opposite party no. 2 in order to pressurize the accused revisionist not to demand back the money which was given to the brother of opposite party no. 2 for her treatment.
15. Attention was also drawn to page 66 to 68 of the paper book which is the complaint made by the victim at the portal of Chief Minister in which in the column of subject it is clearly mentioned that on 04.01.2019, near the jail of Deoband, the accused revisionist had thrown acid upon the opposite party no. 2 by which her face got burnt but no action has been taken and hence prayer was made for expeditious relief to be given to the victim. Attention has been drawn to page 67 wherein it was recorded by investigating officer on 11.02.2019 that the family members of the opposite party no. 2 and she herself had stated that the acid had fallen upon her when she was trying to bring down some articles from the ‘tand’ and in order to pressurize the accused revisionist not to demand back the said amount which was given in the account of brother of the victim, this false case was initiated but ultimately, the S.S.P. under pressure filed the charge-sheet in this case, under the above mentioned Sections.
16. I am of the opinion that at this stage of charge even if the version of the accused be taken into consideration, is that the brother of the victim had been given above mentioned amount in order to get her sister treated well as the acid had fallen on her accidentally while she was cleaning her house and because of demanding the said amount back, only to create pressure upon the revisionist not to demand the money, this false case has been cooked up, this would be a matter to be considered only after full evidence has been adduced from both the sides and trial court only can give verdict in this matter as to whether the defence taken by the revisionist is found substantiated from the evidence to be adduced from his side. No doubt that the said defence may be found to be true but for that, trial cannot be disallowed. Basically, at this stage when there is statement of the victim which is incriminating against the accused, and it is not denied by the side of revisionist that the victim/opposite party no. 2 had suffered the acid burn injuries, hence how the said occurrence happened is a subject matter of the evidence and the trial cannot be stifled at the initial stage by discharging the accused-revisionist.
17. As regards the allegation of rape also, the allegation can only be adjudged as to whether it is false or true only after the entire evidence has been led by the both sides before the trial court and not in the proceedings under Section 482 Cr.P.C. I am not convinced with the argument of the learned counsel for the revisionist that there is no piece of evidence worth being tested during trial and that the victim/prosecution should be denied to prove the charges levelled against the accused-revisionist. I do not see any infirmity in the impugned order. Therefore, the impugned order is upheld.
18. This revision stands partly allowed to the extent that the trial court shall frame the charges for offences punishable under Section 326-A, 328, 376 506 of I.PC. only and not under Section 67-D of Information Technology Act as no evidence is found on record to constitute offence under Section 67-D. There is no such section in the Information Technology Act nor any offence appears to have been committed under Section 67 67-A.
19. This revision is party allowed with the direction that the trial court shall frame the charges under Sections 326-A, Section328, Section376, Section506 of I.P.C. only.
Order Date:- 24.10.2019.