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Balkrishan Singhal vs The State Of Madhya Pradesh on 12 March, 2019

(1)

In the High Court of Madhya Pradesh
CRR 1227 of 2019
Balkrishan Singhal vs. State of MP
Gwalior, dtd. 12/03/2019
Shri HK Shukla, counsel for the applicant.

Shri Vikrant Sharma, Public Prosecutor for the respondent/ State.

This revision under Section 397/401 of CrPC has been filed against the

order dated 01/02/2019 passed by Fifth Additional Sessions Judge/Special

Judge (POCSO), Gwalior in ST No.02/2019, thereby rejecting the application

filed by the applicant under Section 227 of CrPC.

The necessary facts for the disposal of the present revision in short are

that the complainant/ prosecutrix lodged a report on 06/01/2018 that she is a

resident of Gwalior. The applicant is the husband of her sister with whom the

matrimonial dispute was going on. In order to resolve the dispute, the

prosecutrix had gone to the house of the applicant at about six months back i.e.

on 16th June, 2017 along with her sister. When the prosecutrix reached there,

she was persuaded by the applicant that in fact, he was interested in marrying

the prosecutrix and he still wants to marry her after giving divorce to her sister.

The prosecutrix fell into the trap of the applicant and at the instance of the

applicant, she started residing with him. On 16 th June, 2017 onwards, the

applicant used to have sexual relations with her. On 21/12/2017, at about 10:00

pm when the prosecutrix insisted that the applicant should marry her, then the

applicant refused to marry her and turned her out of his house. Thereafter, the

the prosecutrix went to her house and informed the entire incident to her sister

and accordingly, the FIR was lodged on 06/01/2018. The prosecutrix was sent

for medical examination and the possibility of sexual intercourse with her was

not ruled out.

(2)

Challenging the FIR lodged by the prosecutrix, it is submitted by the

counsel for the applicant that in fact, the provisions of Section 90 of IPC would

apply because once the prosecutrix was aware of the fact that the applicant is

her brother-in-law whose family dispute with her sister is going on and since

the marriage is not possible with him, therefore, if she had agreed for sexual

relationship, then it cannot be said that her consent was obtained by

misrepresentation of fact. To buttress his contention, the counsel for the

applicant has relied upon the judgment passed by the Delhi High Court in the

case of Manoj Bajpai vs. State of Delhi decided on 21 st May, 2015 in WP

(Crl) 771 of 2014.

Per contra, it is submitted by the counsel for the State that so far as the

question of obtaining consent by misrepresentation is concerned, it is a disputed

question of fact. The allegations against the applicant are that he had persuaded

the younger sister of his wife and convinced her that he would marry her and

on that assurance, she entered into physical relationship and accordingly, the

trial Court did not commit any mistake in rejecting the application.

Heard the learned counsel for the parties.

If the facts of the present case are considered, then it is clear that it is

specifically mentioned in the FIR that the applicant had assured the prosecutrix

to marry her after obtaining divorce from her sister. Thus, there was no

assurance given by the applicant that he would immediately marry the

prosecutrix but the assurance was that he would marry her after the divorce is

obtained. The marriage after obtaining the divorce is permissible under the law.

Therefore, if the prosecutrix had agreed for staying with the applicant, then it

cannot be said that the prosecutrix was aware of the fact that the marriage
(3)

cannot take place. It is further mentioned in the FIR that the applicant had taken

advantage of the situation by having physical relations with the prosecutrix,

whenever they used to live alone in the house. Thus, it is clear that the

prosecutrix was persuaded by the applicant for marriage after obtaining the

divorce and if the prosecutrix had bona fidely believed the same, then it cannot

be said that she had given her consent voluntarily. Thus, this Court is of the

considered opinion that whether the consent was obtained by misrepresentation

of fact or not, is a disputed question of fact, which is required to be adjudicated

by the trial Court after recording the evidence of the parties.

Prima facie, for the purpose of framing of charge, this Court is of the

considered opinion that there is sufficient material available on record. The

Supreme Court in the case of Soma Chakravarty vs. State (Th. CBI) reported

in 2007 AIR SCW 3683 has held as under:-

“20. It may be mentioned that the settled legal position, as
mentioned in the above decisions, is that if on the basis of
material on record the Court could form an opinion that the
accused might have committed offence it can frame the
charge, though for conviction the conclusion is required to
be proved beyond reasonable doubt that the accused has
committed the offence. At the time of framing of the
charges the probative value of the material on record cannot
be gone into, and the material brought on record by the
prosecution has to be accepted as true at that stage. Before
framing a charge the court must apply its judicial mind on
the material placed on record and must be satisfied that the
commitment of offence by the accused was possible.
Whether, in fact, the accused committed the offence, can
only be decided in the trial.”

The Supreme Court in the case of P. Vijayan vs. State of Kerala and
Anr. reported in 2010 CRI. L.J. 1427 has held as under:-

“10. If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the
Trial Judge will be empowered to discharge the accused and
at this stage he is not to see whether the trial will end in
conviction or acquittal. Further, the words “not sufficient
(4)

ground for proceeding against the accused” clearly show
that the Judge is not a mere Post Office to frame the charge
at the behest of the prosecution, but has to exercise his
judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary for the
Court to enter into the pros and cons of the matter or into a
weighing and balancing of evidence and probabilities which
is really the function of the Court, after the trial starts. At
the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is
sufficient ground for proceeding against the accused. In
other words, the sufficiency of ground would take within its
fold the nature of the evidence recorded by the police or the
documents produced before the Court which ex facie
disclose that there are suspicious circumstances against the
accused so as to frame a charge against him.”

The Supreme Court in the case of State of Bihar vs. Ramesh Singh
reported in AIR 1977 SC 2018 has held as under:-

“…..Strong suspicion against the accused, if the matter
remains in the region of suspicion, cannot take the place of
proof of his guilt at the conclusion of the trial. But at the
initial stage if there is a strong suspicion which leads the
Court to think that there is ground for presuming that the
accused has committed an offence then it is not open to the
Court to say that there is no sufficient ground for
proceeding against the accused. The presumption of the
guilt of the accused which is to be drawn at the initial stage
is not in the sense of the law governing the trial of criminal
cases in France where the accused is presumed to be guilty
unless the contrary is proved. But it is only for the purpose
of deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the Prosecutor
proposes to adduce to prove the guilt of the accused even if
fully accepted before it is challenged in cross-examination
or rebutted by the defence evidence, if any, cannot show
that the accused committed the offence, then there will be
no sufficient ground for proceeding with the trial. …. ”

This Court has thus held that whereas strong
suspicion may not take the place of the proof at the trial
stage, yet it may be sufficient for the satisfaction of the
Trial Judge in order to frame a charge against the accused.”

The Supreme Court in the case of Union of India vs. Prafulla Kumar
Samal reported in AIR 1979 SC 366 has held as under:-

“(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
(5)

case against the accused has been made out.

(2) Where the materials placed before the Court
disclose grave suspicion against the accused which has not
been properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By and
large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him
while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused.

(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present Code is
a senior and experienced court cannot act merely as a Post
Office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”

The Supreme Court in the case of Niranjan Singh vs. K.S. Punjabi vs.
Jitendra Bhimraj Bijjaya reported in AIR 1990 SC 1869 has held as under:-

“Can he marshal the evidence found on the record of the
case and in the documents placed before him as he would
do on the conclusion of the evidence adduced by the
prosecution after the charge is framed? It is obvious that
since he is at the stage of deciding whether or not there
exists sufficient grounds for framing the charge, his enquiry
must necessarily be limited to deciding if the facts
emerging from the record and documents constitute the
offence with which the accused is charged. At that stage he
may sift the evidence for that limited purpose but he is not
required to marshal the evidence with a view to separating
the grain from the chaff. All that he is called upon to
consider is whether there is sufficient ground to frame the
charge and for this limited purpose he must weigh the
material on record as well as the documents relied on by the
prosecution.
In the State of Bihar v. Ramesh Singh (AIR
1977 SC 2018) this Court observed that at the initial stage
of the framing of a charge if there is a strong suspicion-
evidence which leads the court to think that there is ground
for presuming that the accused has committed an offence
then it is not open to the court to say that there is no
sufficient ground for proceeding against the accused. If the
evidence which the prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is
(6)

challenged by cross-examination or rebutted by the defence
evidence, if any, cannot show that the accused committed
the offence, then there will be no sufficient ground for
proceeding with the trial.
In Union of India v. Prafulla
Kumar Samal (AIR 1979 SC 366) this Court after
considering the scope of Section 227 observed that the
words ‘no sufficient ground for proceeding against the
accused’ clearly show that the Judge is not merely a post
office to frame charge at the behest of the prosecution but
he has to exercise his judicial mind to the facts of the case
in order to determine that a case for trial has been made out
by the prosecution. In assessing this fact it is not necessary
for the court to enter into the pros and cons of the matter or
into weighing and balancing of evidence and probabilities
but he may evaluate the material to find out if the facts
emerging therefrom taken at their face value establish the
ingredients constituting the said offence.”

The Supreme Court in the case of Shoraj Singh Ahlawat and others
Vs. State of U.P. and another reported in AIR 2013 SC 52 has held as under:-

”11. A plain reading of the above would show that the
Court trying the case can direct discharge only for reasons
to be recorded by it and only if it considers the charge
against the accused to be groundless. Section 240 of the
Code provides for framing of a charge if, upon
consideration of the police report and the documents sent
therewith and making such examination, if any, of the
accused as the Magistrate thinks necessary, the Magistrate
is of the opinion that there is ground for presuming that the
accused has committed an offence triable under Chapter
XIX, which such Magistrate is competent to try and which
can be adequately punished by him. The ambit of
Section
239 CrPC and the approach to be adopted by the Court
while exercising the powers vested in it under the said
provision fell for consideration of this Court in
Onkar Nath
Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2
SCC 561. That too was a case in which a complaint under
Sections 498-A and 406 read with Section 34 of the I.P.C.

was filed against the husband and parents-in-law of the
complainant-wife. The Magistrate had in that case
discharged the accused under
Section 239 of the Cr.P.C,
holding that the charge was groundless. The complainant
questioned that order before the Revisional Court which
directed the trial Court to frame charges against the accused
persons. The High Court having affirmed that order, the
matter was brought up to this Court. This Court partly
allowed the appeal qua the parents-in-law while dismissing
the same qua the husband. This Court explained the legal
position and the approach to be adopted by the Court at the
stage of framing of charges or directing discharge in the
(7)

following words:

“11. 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.”

(emphasis supplied)

12. Support for the above view was drawn by this Court
from earlier decisions rendered in State of Karnataka v. L.

Muniswamy 1997 Cri.LJ 1125, State of Maharashtra
Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and
State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som
Nath’s case (supra) the legal position was summed up as
under:

“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.”

(emphasis supplied)

13. So also in Mohanlal’s case (supra) this Court referred to
several previous decisions and held that the judicial opinion
regarding the approach to be adopted for framing of charge
is that such charges should be framed if the Court prima
facie finds that there is sufficient ground for proceeding
against the accused. The Court is not required to appreciate
evidence as if to determine whether the material produced
was sufficient to convict the accused. The following passage
(8)

from the decision in Mohanlal’s case (supra) is in this regard
apposite:

“8. The crystallized 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.”

14.In State of Orissa v. Debendra Nath Pandhi(2005) 1 SCC
568, this Court was considering whether the trial Court can
at the time of framing of charges consider material filed by
the accused. The question was answered in the negative by
this Court in the following words:

“18. We are unable to accept the aforesaid
contention. The reliance on Articles 14 and 21 is
misplaced…Further, at the stage of framing of charge
roving and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would be a
mini trial at the stage of framing of charge. That
would defeat the object
of the Code. It is well-settled
that at the stage of framing of charge the defence of
the accused cannot be put forth. The acceptance of the
contention of the learned counsel for the accused
would mean permitting the accused to adduce his
defence at the stage of framing of charge and for
examination thereof at that stage which is against the
criminal jurisprudence. By way of illustration, it may
be noted that the plea of alibi taken by the accused
may have to be examined at the stage of framing of
charge if the contention of the accused is accepted
despite the well settled proposition that it is for the
accused to lead evidence at the trial to sustain such a
plea. The accused would be entitled to produce
materials and documents in proof of such a plea at the
stage of framing of the charge, in case we accept the
contention put forth on behalf of the accused. That has
never been the intention of the law well settled for over
one hundred years now. It is in this light that the
provision about hearing the submissions of the
accused as postulated by
Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more. The expression ‘hearing the submissions
of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby
changing the settled law. At the state of framing of
charge hearing the submissions of the accused has to
be confined to the material produced by the police…

(9)

xx xx xx xx

23. 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…”

(emphasis supplied)

15. Even in Smt. Rumi Dhar v. State of West Bengal Anr.

(2009) 6 SCC 364, reliance whereupon was placed by
counsel for the appellants the tests to be applied at the stage
of discharge of the accused person unde
Section 239 of the
Cr.P.C., were found to be no different. Far from readily
encouraging discharge, the Court held that even a strong
suspicion in regard to the commission of the offence would
be sufficient to justify framing of charges. The Court
observed:

“…While considering an application for discharge
filed in terms of
Section 239 of the Code it was for
the learned Judge to go into the details of the
allegations made against each of the accused persons
so as to form an opinion as to whether any case at all
has been made out or not as a strong suspicion in
regard thereto shall subserve the requirements of law…

16. To the same effect is the decision of this Court in Union
of India vs. Prafulla Kumar Samal and another (1979) 3
SCC 4, where this Court was examining a similar question
in the context of
Section 227 of the Code of Criminal
Procedure. The legal position was summed up as under:

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge :

(1) That the Judge while considering the question of
framing the charges under
Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out:

(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be fully
justified in framing a charge and proceeding with the
trial.

(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
(10)

before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227
of the Code the Judge which under the present Code is
a senior and experienced Judge cannot act merely as a
Post Office or a mouth- piece of the prosecution, but
has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.”

It is well established principle of law that at the time of framing of

charges, meticulous appreciation of evidence is not required and even a strong

suspicion is sufficient to frame the charges. Accordingly, the order dated

01/02/2019 passed by the Fifth Additional Sessions Judge/Special Judge

(POCSO), Gwalior in ST No.02/2019 is hereby affirmed.

This revision fails and is hereby Dismissed.

(G.S. Ahluwalia)
Judge

MKB

MAHENDRA
KUMAR BARIK
2019.03.19
18:37:52
+05’30’

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