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Babulal Prajapati vs The State Of Madhya Pradesh on 24 January, 2020

HIGH COURT OF MADHYA PRADESH : JABALPUR

S.B : HON.SHRI JUSTICE VISHNU PRATAP SINGH CHAUHAN

Cr.R.No.5956/2019

Babulal Prajapati
Vs.
The State of M.P.

Ms. Pooja Gupta, learned counsel for the applicant.
Shri Ashok Singh, learned Panel Lawyer for the
respondent/State.

ORDER

(24/01/2019)

The applicant has filed this criminal revision under

Section 397 read with Section 401 of the Code of Criminal

Procedure, 1973 being aggrieved by the order dated

20/11/2019 passed in S.T. No.121/2019 whereby learned

Additional Sessions Judge, Lavkush Nagar, Distt.

Chhatarpur framed charges against the applicant for the

offences punishable under Sections 294, 354A, 506 Part-II

of IPC and under Section 7 read with Section 8 of

Protection of Children from Sexual Offences Act, 2012.

2. The case of prosecution against the applicant, in

short, is that prosecutrix who is minor aged about 16 years
2

resides with her mother and applicant is the father of the

prosecutrix. The applicant is in habit of drinking liquor.

He harassed his wife, therefore, his wife started living

separately from the company of the applicant along with

prosecutrix. The applicant abused the prosecutrix as well

as her mother by using filthy words and creating

annoyance to the prosecutrix as well as her mother and

also making a sexual remarks against the prosecutrix. He

also keeping ill-eye upon her and sexually harassed her

and prosecutrix lodged complaint against the applicant to

that effect. Police submitted charge sheet after

completion of investigation. Learned trial Court

registered a case as S.T. No.121/2019 and after hearing

both the parties vide impugned order dated 20/11/2019

framed charges against the applicant under the

aforementioned offences.

3. The applicant has filed this criminal revision

challenging the order of framing charges dated

20/11/2019 against him on the ground that no ingredients

of any offence are made out on the basis of the material
3

filed along with the charge sheet. Learned trial Court has

not appreciated the material properly. The applicant being

father of the prosecutrix resisted the prosecutrix and her

mother for indulging in the unsocial activities as the

applicant is having all responsibilities towards the

prosecutrix for her good education, good behaviour and

discipline, however, prosecutrix and her mother have not

liked that restrictions and have falsely lodged a report

against the applicant to keep separate him from the

family. Learned counsel for the applicant further submits

that the applicant is a Government servant serving as

Assistant Veterinary Field Officer at Lovkush Nagar,

Distt. Chhatarpur, therefore, the Court cannot take

cognizance against the applicant without prior sanction

for prosecution under Section 197 of the Code of

Criminal Procedure, 1973 from the head of the

department of the applicant. Thus, in these premises, he

prays that by setting aside the impugned order, the

applicant may be discharged from the charges.
4

4. On the other hand, learned Panel Lawyer

vehemently opposes the aforesaid prayer made on behalf

of the applicant and submits that the applicant had

committed the heinous offence for which he is liable to be

punished as there is sufficient material available on record

against him. This revision has been filed on wrong

grounds, therefore, prays for dismissal of the revision.

5. Having heard learned counsel for the parties,

perused the documents filed along with the charge sheet

and copies of all the documents filed by the applicant in

this revision.

6. Before dealing with the dispute, at the out set, it is

pertinent to discuss the ambit and scope of criminal

revision filed under Section 397 read with Section 401 of

the Code of Criminal Procedure. Hon’ble Apex Court in

the case of Amit Kapoor Vs. Ramesh Chandra and

others, (2012) 9 SCC 460 in para-27 while laying down

the conditions in which revisional powers can be

exercised for quashing of the charges, has held as under :
5

“27. Having discussed the scope of jurisdiction
under these two provisions, i.e., Section 397 and
Section 482 of the Code and the fine line of
jurisdictional distinction, now it will be appropriate
for us to enlist the principles with reference to
which the courts should exercise such jurisdiction.
However, it is not only difficult but is inherently
impossible to state with precision such principles.
At best and upon objective analysis of various
judgments of this Court, we are able to cull out
some of the principles to be considered for proper
exercise of jurisdiction, particularly, with regard to
quashing of charge either in exercise of jurisdiction
under Section 397 or Section 482 of the Code or
together, as the case may be :

27.1) Though there are no limits of the
powers of the Court under Section 482 of the
Code but the more the power, the more due
care and caution is to be exercised in
invoking these powers. The power of
quashing criminal proceedings, particularly,
the charge framed in terms of Section 228 of
the Code should be exercised very sparingly
and with circumspection and that too in the
rarest of rare cases.

27.2) The Court should apply the test as to
whether the uncontroverted allegations as
made from the record of the case and the
documents submitted therewith prima facie
establish the offence or not. If the allegations
are so patently absurd and inherently
improbable that no prudent person can ever
reach such a conclusion and where the basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.
27.3) The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether
the case would end in conviction or not at the
stage of framing of charge or quashing of
charge.

6

27.4) Where the exercise of such power is
absolutely essential to prevent patent
miscarriage of justice and for correcting some
grave error that might be committed by the
subordinate courts even in such cases, the
High Court should be loathe to interfere, at
the threshold, to throttle the prosecution in
exercise of its inherent powers.

27.5) Where there is an express legal bar
enacted in any of the provisions of the Code
or any specific law in force to the very
initiation or institution and continuance of
such criminal proceedings, such a bar is
intended to provide specific protection to an
accused.

27.6) The Court has a duty to balance the
freedom of a person and the right of the
complainant or prosecution to investigate and
prosecute the offender.

27.7) The process of the Court cannot be
permitted to be used for an oblique or
ultimate/ulterior purpose.

27.8) Where the allegations made and as they
appeared from the record and documents
annexed therewith to predominantly give rise
and constitute a ‘civil wrong’ with no
‘element of criminality’ and does not satisfy
the basic ingredients of a criminal offence,
the Court may be justified in quashing the
charge. Even in such cases, the Court would
not embark upon the critical analysis of the
evidence.

27.9) Another very significant caution that
the courts have to observe is that it cannot
examine the facts, evidence and materials on
record to determine whether there is
sufficient material on the basis of which the
case would end in a conviction, the Court is
concerned primarily with the allegations
taken as a whole whether they will constitute
7

an offence and, if so, is it an abuse of the
process of court leading to injustice.
27.10) It is neither necessary nor is the court
called upon to hold a full-fledged enquiry or
to appreciate evidence collected by the
investigating agencies to find out whether it
is a case of acquittal or conviction.

27.11) Where allegations give rise to a civil
claim and also amount to an offence, merely
because a civil claim is maintainable, does
not mean that a criminal complaint cannot be
maintained.

27.12) In exercise of its jurisdiction under
Section 228 and/or under Section 482, the
Court cannot take into consideration external
materials given by an accused for reaching
the conclusion that no offence was disclosed
or that there was possibility of his acquittal.
The Court has to consider the record and
documents annexed with by the prosecution.
27.13) Quashing of a charge is an exception
to the rule of continuous prosecution. Where
the offence is even broadly satisfied, the
Court should be more inclined to permit
continuation of prosecution rather than its
quashing at that initial stage. The Court is not
expected to marshal the records with a view
to decide admissibility and reliability of the
documents or records but is an opinion
formed prima facie.

27.14) Where the charge-sheet, report under
Section 173(2) of the Code, suffers from
fundamental legal defects, the Court may be
well within its jurisdiction to frame a charge.
27.15) Coupled with any or all of the above,
where the Court finds that it would amount to
abuse of process of the Code or that interest
of justice favours, otherwise it may quash the
charge. The power is to be exercised ex
8

debito justitiae, i.e. to do real and substantial
justice for administration of which alone, the
courts exist.”

7. Learned Special Court after hearing both the parties

vide impugned order has not found fit to discharge the

applicant under Section 227 of Cr.P.C. and proceeded to

frame charges under Section 228 (1) (b) of Cr.P.C. For

the sake of convenience, both sections are quoted as

under :

“227. Discharge.– If, upon consideration
of the record of the case and the
documents submitted therewith, and after
hearing the submissions of the accused
and the prosecution in this behalf, the
Judge considers that there is not sufficient
ground for proceeding against the accused,
he shall discharge the accused and record
his reasons for so doing.

228. Framing of charge.- (1)If, after such
consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for
presuming that the accused has
committed an offence which–

9

(a) ……….

(b) is exclusively triable by the Court, he
shall frame in writing a charge against the
accused.

On bare perusal of Section 227 of Cr.P.C., it reveals

that if Presiding Judge of the Court, after perusal of the

whole record and hearing the submissions of both the

parties, considers that there is no sufficient ground for

proceeding against the accused, the Judge shall discharge

the accused and if there is sufficient ground available for

proceeding against the accused on the basis of material,

the Judge will proceed to frame charges against the

accused. The sufficient grounds for proceeding is the

prima facie evidence available on record constituting the

offence for proceeding further. Meaning thereby the

Court possesses comparatively wider discretion in

exercise of which it can determine question whether the

material available on record or not.

8. In the above backdrop, perused the statement of

prosecutrix and other material available on record. FIR

lodged by the prosecutrix and her statement recorded
10

during investigation under Section 161 as well as under

Section 164 of Cr.P.C. Perused the statement of

prosecutrix recorded under Section 164 of Cr.P.C.

Prosecutrix stated before the Court that her father

(applicant) inquired in regards to her character and when

she asked about that, the applicant uttered filthy words,

however, she did not state the exact words in her

statement. Thereafter she told him that she will made a

complaint to the Police against him, then he got annoyed

and uttered some filthy words. She further categorically

stated that she is living along with her mother in the

house of her maternal grand-mother-father and her father

is living in the separate house. It is further stated by her

that whenever she asked for fees for education, he uttered

filthy words, not talked her in good manner and some

time he beat her.

9. On bare perusal of the whole statement of

prosecutrix recorded under Section 164 of Cr.P.C., it

seems that being a father he tried to state the prosecutrix

to live in a good manner and to adopt a good behaviour,
11

however, prosecutrix and her mother threatened to lodge a

false report. This fact also reflected that prosecutrix and

her mother are living separately from the company of her

father i.e. applicant and her father is living separately. In

FIR she categorically stated that previously her father was

posted at Ujjain in Veterinary Department but in the year

2017 he had been transferred at Lovkush Nagar where

prosecutrix and her mother are living and her mother is

doing a job in Girls School, Gudakala. It seems that it is

a family dispute on petty matter and the prosecutrix who

was aged about 16 years made a complaint against her

father and it is, prima facie, reflected that this is the

outcome of family dispute which she tried to convert it

into criminal offence. Hon’ble Apex Court in the case of

Amit Kapoor (supra) culled out some points on which

framed charges can be interfered holding that t he process

of the Court cannot be permitted to be used for an oblique or

ultimate/ulterior purpose.

10. On the basis of above, proposition of law laid down

by Hon’ble Apex Court in the case of Amit Kapoor
12

(supra), this Court finds that there is no sufficient

material available on record to discharge the applicant of

the offence.

11. In view of aforesaid discussions, this criminal

revision is hereby allowed. The charges framed by the

Special Court in S.T. No.121/2019 are hereby quashed

and the applicant is discharged from all the charges.

12. Let a copy of this order be sent to the trial Court for

information and necessary compliance.

13. Interlocutory application, if any pending, stands

dismissed.

(Vishnu Pratap Singh Chauhan)
Judge
ts

Digitally signed by TULSA SINGH
Date: 2020.01.25 10:54:03
+05’30’

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