—
Delhi High Court
State vs Naresh Yadav on 15 February, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: February 08, 2024
Decided on: February 15, 2024
+ CRL.REV.P. 94/2017 CM APPL. 1543/2017
STATE ….. Petitioner
Through: Mr. Utkarsh, APP for State
with SI Manoj Kumar,
Crime Branch,
Chanakyapuri.
V
NARESH YADAV ….. Respondent
Through: Mr. Tanmay Nagar,
Advocate.
CORAM
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
CM APPL. 1543/2017 (condonation of delay)
1. The present application is filed under section 5 of the
Limitation Act, 1963 for condonation of delay of 31 days in filing the
present revision petition.
2. For the reasons stated in the application, the delay of 31 days
in filing the present revision petition is condoned.
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3. The application stands disposed of.
CRL.REV.P. 94/2017
1. The present revision petition is filed under sections 397/401 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as “the
Code”) read with section 482 of the Code to impugn the order dated
17.09.2016 (hereinafter referred to as “the impugned order”) passed
by the court of Sh. Ramesh Kumar-II, ASJ/SFTC-2, Central, Tis
Hazari Courts, Delhi (hereinafter referred to as “the trial court”) in
case bearing no.28703/2016 arising out of FIR bearing no.03/2010
dated 04.01.2010 registered under sections 498A/495 IPC at
P.S. Darya Ganj whereby the respondent was discharged for the
offence punishable under section 376 IPC.
2. Briefly stated, the facts of the present case are that FIR bearing
no. 03/2010 was got registered under sections 498A/495 IPC at P.S.
Darya Ganj on the basis of the complaint made by „R‟ (hereinafter
referred to as “the complainant”) wherein she alleged that her
marriage was solemnized with Naresh Yadav s/o Sh. Lakhmi Chand
(hereinafter referred to as “the respondent”) in May 2007 according
to Hindu rites and ceremonies. Sometime after the marriage, the
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respondent and his family members started to harass the complainant
mentally and physically and demanded dowry. The complainant was
thrown out of the matrimonial home and was forced to live with her
parents. The complainant was even threatened by the respondent and
his cousin brother namely Naresh Yadav r/o New Ashok Nagar,
Delhi to give dowry i.e. a car and cash amount of Rs.1,00,000/- when
staying with her parents but her poor parents were not in a position to
fulfil these demands. The respondent asked her to come near Golcha
Cinema Hall, Darya Ganj. The complainant went to Golcha Cinema
Hall and found that the respondent and his cousin brother namely
Naresh Yadav who was then posted as Head Constable in Delhi
Police, were present there and they asked the complainant about the
dowry demands. The complainant showed inability of her parents to
fulfil these demands, then both of them abused her and her family
members. The respondent also slapped her and threatened to ruin her
life as his cousin was posted in Delhi Police.
The complainant in a subsequent complaint also alleged that
the respondent had concealed about his previous marriage while
marrying her. Accordingly, the present FIR was got registered.
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2.1 The investigation was entrusted to Inspector Prem Chandra
who during investigation examined the complainant and recorded her
statement. The complainant supported her earlier statement and
further alleged that she on 27.11.2007, along with the respondent, her
brother namely Hemant and his wife namely Dolly had gone to
Jammu from New Delhi by train. In Jammu, the respondent tried to
kill her by pushing her down from the stairs due to which the
complainant sustained serious injuries and was treated by Dr. Noor
Ali, Assistant Professor, Govt. Medical College, Jammu. The
complainant also produced photocopy of the treatment slip and 04
photographs of her marriage with the respondent. The complainant
also alleged that the respondent during 2007-2008, in connivance
with the staff of Lake View Nursing Home, Pandav Nagar aborted
her child without her knowledge after making her unconscious. The
complainant also alleged that SI Pratibha, P.S. Malviya Nagar was
conducting enquiry regarding rape allegation against her brother
Hemant and SI Pratibha obtained her written consent after
pressurizing her to withdraw her complaint against the respondent
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pending in the CAW Cell and also demanded Rs.2,60,000/- from her
family for closing the complaint against Hemant.
2.2 The Investigating Officer interrogated the respondent and HC
Naresh Yadav who denied the allegations levelled against them by
the complainant. The respondent admitted that he knew the
complainant but denied marrying her. The Investigating Officer also
found during investigation that the complainant had withdrawn her
complaint against the respondent pending in CAW Cell, Central
District after submitting an application along with an affidavit dated
23.09.2008.
2.3 The investigation was transferred to Crime Branch on
08.04.2010 and was entrusted to SI Ajeet Malik. The Investigating
Officer during investigation found that there was no entry in the
name of the complainant during 30.06.2007 to 30.06.2008 in Lake
View Nursing Home, Pandav Nagar and no such patient was found to
be admitted there. The Investigating Officer also collected details
from the office of the Chief Reservation Supervisor, IRC Building,
New Delhi and found that the respondent, the complainant, Hemant
Bhardwaj and Doli had booked tickets in train from New Delhi
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Railway Station to Jammu Tawi scheduled to depart on 27.11.2007.
The Investigating Officer as per inquiry made from Dr. Noor Ali,
Assistant Professor, Govt. Medical College, Jammu came to know
that the complainant came to him with complaint of chest pain and
pain on deep respiration and was prescribed medicines for respiratory
tract infection.
2.4 The subsequent investigation was assigned to SI Sanjay Neolia
who collected Call Detail Record (CDR) of the respective mobiles of
the complainant and the respondent which reflected incoming and
outcoming phone calls and SMSs between them. The Investigating
Officer also interrogated the respondent‟s cousin namely HC Naresh
Yadav who stated that he was posted in P.S. Parliament Street during
the years 1986-91 and came in contact with Smt. Shanti Devi who
was then posted in CGHS Dispensary, Vithal Bhal Patel Marg, Delhi.
HC Naresh Yadav developed family relations with her. The
respondent in the year 1990, met with an accident and was admitted
in J.P.N. Hospital. Smt. Shanti on the request of HC Naresh Yadav,
helped the respondent during his treatment who after recovery
developed friendly relations with Shanti and her family members.
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The respondent and HC Naresh Yadav attended the marriage of
Hemant in the year 2007. The respondent was only a good friend of
the complainant but he never got married to the complainant. The
complainant never visited or stayed at his house. He never made any
offer/proposal to the family of the complainant for marriage of the
respondent with the complainant. Neither he nor his family members
extended any threat to the complainant or her family members.
2.5 The Investigating Officer also examined the respondent. The
respondent stated that he came in contact with Shanti through his
cousin HC Naresh Yadav who was posted in Delhi Police and Shanti
helped him in his treatment at J.P.N. Hospital. The respondent
developed a friendly relationship with Shanti and her family
members. The respondent got married in the year 1990 at Village
Hoshiarpur. The respondent along with HC Naresh Yadav attended
the marriage of Hemant in the year 2007. The respondent along with
Hemant, his wife Dolly and the complainant travelled to Vaishno
Devi, Jammu by train. The respondent booked two rooms during
their visit to Katra and Jammu and one room was shared by him and
Hemant and the other room was shared by the complainant and
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Dolly. The respondent never got married with the complainant and
was only a good friend of the complainant. The respondent had
advanced a loan to O.P. Bhardwaj i.e. father of the complainant. The
complainant filed a false complaint at P.S. Darya Ganj and CAW
Cell, Central District against him when he asked O.P. Bhardwaj to
return the money and the complainant alleged that the respondent
married her and harassed her physically and mentally for dowry
demands. The complainant subsequently withdrew her complaint.
The complainant got married to Sunder Sharma on 30.05.2009. The
respondent also stated that he had developed a money dispute with
Inspector Puran Singh Mehra, who was posted as inspector in U.P.
Police and who was also known to O.P. Bhardwaj. Puran Singh
hatched a conspiracy with O.P. Bhardwaj and filed false complaints
against him. The respondent never got married with the complainant
or had any sexual relationship with the complainant.
2.6 The Investigating Officer also examined the complainant. The
complainant stated that HC Naresh Yadav who is the cousin brother
of the respondent, came to her house in January, 2007 and offered the
marriage proposal of the respondent with the complainant. The
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parents of the complainant agreed to the said marriage proposal. The
respondent on 25.05.2007, took the complainant to the house of his
uncle (HC Naresh Yadav‟s house) where the respondent forcibly
made sexual relation with her. The respondent also took her, her
brother Hemant and his wife Dolly to Vaishno Devi and stayed in
hotels at Jammu and Katra. The respondent again made sexual
relations with her forcibly on false promise of marriage. The
respondent also made her obscene CD and gave beatings to her. The
respondent after coming back to Delhi, left the complainant at her
parental home. The complainant narrated all facts to her parents who
then contacted the respondent. The respondent came to house of the
complainant and threatened the complainant and her parents to make
the obscene CD of the complainant public and also extorted
Rs.1,30,000/- from the parents of the complainant.
2.7 The Investigating Officer also examined the father of the
complainant namely O.P. Bhardwaj, mother of the complainant
namely Shanti and brother of the complainant namely Hemant who
also stated the same facts as stated by the complainant during
investigation and detailed hereinabove. The Investigating Officer on
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the basis of investigation, added the offence punishable under section
376 IPC and removed the offences punishable under sections 498A
and 495 IPC. The complainant during investigation, also produced
her photograph with the respondent which was stated to be taken at
Prabhat Studio, near Raghu Nath Temple, Jammu. The complainant
also submitted that during their visit to Vaishno Devi, the respondent
booked room at Hotel Vaishnavi Palace, Katra Hotel Surya
Excellency, Jammu. The Investigating Officer could not collect any
documentary proof pertaining to these facts.
2.8 The Investigating Officer also examined SI Pratibha Sharma
who denied the allegations levelled against her by the complainant
and stated that she never pressurized the complainant to withdraw her
complaint. The Investigating Officer also made enquiry from local
residents of New Ashok Nagar regarding the allegations levelled by
the complainant regarding her stay and molestation at the house of
HC Naresh Yadav but those allegations could not be substantiated.
The allegations of the complainant regarding her forcible abortion
and attempt on her life by the respondent could not be substantiated.
The allegations against HC Naresh Yadavand SI Pratibha Sharma
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could not be established. The Investigating Officer after conclusion
of investigation, filed charge sheet for the offence punishable under
section 376 IPC before the concerned court of Metropolitan
Magistrate.
3. The court of Sh. Manish Yaduvanshi, ACMM-01, Central, Tis
Hazari Courts, Delhi vide order dated 06.08.2012 observed that the
complainant gave different statements to police pending investigation
which were recorded as her supplementary statement on 01.03.2011.
The perusal of the original complaint of the complainant dated
08.04.2008 addressed to the SHO, P.S. Daryaganj and supplementary
statement dated 13.01.2010 reveal that she has tried to controvert her
earlier stand in respect ofher marriage with the respondent. It was
also observed that it is not clear from the charge sheet as to why the
origin of the marriage photographs produced by the complainant was
not investigated which led to dropping of sections 498A and 495 IPC.
It was also observed that no investigation was conducted in respect of
the averment regarding the factum of marriage of complainant with
the respondent vis-a-vis the earlier marriage of the respondent. The
court also sought clarification in respect of non-examination of
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Inspector Prem Chandra regarding proof of marriage of the
complainant and the respondent. The court also sought clarification
regarding investigation conducted against HC Naresh Yadav who
was not chargesheeted. The court also sought clarification in respect
of the investigation regarding the allegation of extortion. The court of
Sh. Manish Yaduvanshi, ACMM-01, Central, Tis Hazari Courts,
Delhi vide order dated 15.09.2012 had directed for further
investigation as per section 173(8) of the Code.
3.1 SI Shivraj Singh, ARC/Malviya Nagar, Crime Branch, New
Delhi was assigned with conducting further investigation. The
Investigating Officer made efforts to trace out the origin of the
marriage photographs produced by the complainant but the same
could not be traced as the complainant did not provide any reply to
the notices under section 91 of the Code served to her and her father.
The father of the complainant provided two Compact Discs (CDs) in
relation to the ring ceremony and marriage of the complainant and
the respondent and said that he would produce the original source of
the contents of those CDs in court. The Investigating Officer sent the
said CDs to FSL Rohini for forensic examination and as per expert
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opinion, “there was no indication of alteration in the video shots on
the basis of frame by frame examination.” The father of the
complainant also did not produce the mobile handset containing
SMSs sent by the respondent to the complainant. The respondent
during further investigation, stated that no photography or
videography had taken place in his earlier marriage in 1990. During
investigation, the co-accused HC Naresh Yadav was found to be
involved only in introducing the respondent with Shanti. The
complainant was not found to have made allegations of sexual
assault/harassment or attempt on her life by the respondent and did
not disclose any such fact to the doctor in Jammu. The complainant
in her previous complaints never alleged the fact of extortion by the
respondent. The complainant and her parents did not join further
investigation despite notices. The supplementary charge sheet was
submitted after completion of further investigation.
4. The court of Sh. Sudhanshu Kaushik, ACMM-01, Central vide
order dated 14.05.2015 observed that the chargesheet prima facie
discloses commission of the offence punishable under section 376
IPC and the respondent was accordingly summoned for the offence
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punishable under section 376 IPC. The respondent being aggrieved
by the summoning order dated 14.05.2015, filed a criminal revision
bearing no. 35/2015 which was dismissed vide order dated
03.11.2015 passed by the court of Sh. Vinay Kumar Khanna, Special
Judge-CBI (PC Act)-06, Central, Tis Hazari Courts, Delhi by
observing that there is no illegality, procedural irregularity or
impropriety in the summoning order dated 14.05.2015.
5. The trial court vide impugned order, discharged the respondent
for the offence punishable under section 376 IPC. The relevant para
of the impugned order dated 17.09.2016 is reproduced as under:-
In the light of all the above facts and circumstances, it is
clearly ascertained that the complainant ropes in new and
contradictory facts from time to time to influence the
investigation process. In absence of MLC of prosecutrix
and her statement u/s 164 Cr.P.C., allegations of
prosecutrix cannot be appreciated. Her allegations of
sexual assault cannot be relied upon as none of the medical
reports produced by Sh. O.P. Bhardwaj supports or even
mention about the allegations of sexual assault. Moreover,
there is no incriminating evidence on record to proceed
against accused u/s 376IPC.
Since there is no corroborative evidence available on
record, hence, further trial would not serve any purpose.
Mere statement of prosecutrix is not sufficient for trial.
Hence, in these circumstances, prima facie there is no
sufficient material on record to proceed further with this
case. Accordingly, accused Naresh Yadav is discharged
from the offences punishable under section 376 IPC.
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6. The petitioner/State being aggrieved by the impugned order,
filed the present criminal revision petition for setting aside the
impugned order on the grounds that impugned order is based on
imagination, presumption, conjectures and surmises and cannot stand
the scrutiny of law being not based factual matrix of the case. The
complainant did not know that the respondent was already married
and was having children when she made first complaint dated
04.08.2008 which was referred to the CAW Cell, Central District.
The complainant subsequently came to know about previous
marriage of the respondent and then promptly made a fresh complaint
to the Commissioner of Police, Delhi but the police registered FIR on
her previous complaint which did not contain the factum of previous
marriage of the respondent. The trial court completely disregarded
and overlooked the supplementary statement of the complainant
dated 01.03.2011. The trial court was not supposed to examine and
assess the case in detail at time of consideration of framing of charge.
The petitioner/State also raised other grounds to challenge the
impugned order.
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7. The Additional Public Prosecutor for the petitioner/State
advanced oral arguments and submitted written submissions. He
argued that the trial court has conducted a mini trial at the stage of
framing of charge and has discharged the respondent. The
supplementary chargesheet was filed in continuation of the original
chargesheet and the trial court should have perused the chargesheet
as well as the supplementary chargesheet, statements of the witnesses
and documents filed by the Investigating Officer and then arrive at an
independent conclusion. The complainant had filed the first
complaint in the police station on 08.04.2008 but in her subsequent
complaint dated 07.05.2008, besides reiterating the allegations as
stated in the first complaint, the complainant also stated about role of
HC Naresh Yadav i.e. cousin of the respondent in giving wrong
information to her and her family members. The complainant has
stated that the respondent was already married but said fact was
concealed from her and her family members. It was the duty of the
trial court to apply its mind at the time of framing of charge. The trial
court should not rely upon the endorsement on the chargesheet
presented by the investigating agency without application of judicial
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mind. The trial court was not expected or supposed to hold a mini
trial for the purpose of marshalling the evidence on record. The
revision petition filed by the respondent against the summoning order
dated 14.05.2015 was dismissed by the concerned court and as such
the present case is fit for framing of charge against the respondent.
The conviction of the accused can be based on the sole testimony of
the complainant. The court is duty bound to deal with cases involving
allegations of sexual harassment, molestation, rape etc. with utmost
sensitivity and minor contradictions or insignificant discrepancies in
the statement of the complainant should not be a ground for throwing
out an otherwise reliable prosecution case. The Additional Public
Prosecutor cited Union of India V Prafulla Kumar Samal and
Another, (1979) 3 SCC 4; Dipakbhai Jagdishchandra Patel V
State of Gujarat and Another, (2019) 16 SCC 547; Sajjan Kumar
V CBI, (2010) 9 SCC 368; Asim Shariff V National Investigation
Agency, (2019) 7 SCC 148; State of Karnataka V M.R. Hiremath,
(2019) 7 SCC 515; Bhawna Bai V Ghanshyam, (2020) 2 SCC 217;
State of Punjab V Gurmit Singh, (1996) 2SCC 384. It was argued
that the impugned order be set aside and the trial court be directed to
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frame the charge for the offence punishable under section 376 (2)(n)
IPC against the respondent.
7.1 The counsel for the respondent advanced oral arguments and
also submitted written submissions. He argued that the complainant
did not make single allegation of sexual assault in the previous
complaint but after a gap of two years, alleged that rape was
committed without mentioning the time and date. The allegations of
rape and sexual assault could not be proved in absence of MLC or
cogent incriminating material on record. The complainant did not
appear before the court for recording of statement under section 164
of the Code which reflects that the allegations levelled against the
respondent are false. The allegation regarding the forcible abortion at
Lake View Hospital, Pandav Nagar, Delhi could not be established.
The counsel for the respondent referred Prashant Bhaskar V State,
2014 1 JCC 750 wherein the accused was discharged for the offence
under section 302 IPC on the ground that the ingredients of the
offence are not made out and there are material contradictions in the
statements which renders the same as unsafe and cannot be relied
upon. The counsel for the respondent also referred Prashant Bharti
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V State (NCT of Delhi) (2013) 9 SCC 293. It was argued that
present petition be dismissed.
8. Chapter XVIII of the Code deals with trial before a Court of
Sessions. Section 227 deals with situation when the accused shall be
discharged. Section 228 deals with framing of charge. Sections 227
and 228 of the Code read 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–
(a) is not exclusively triable by the Court of Session, he may,
frame a charge against the accused and, by order, transfer
the case for trial to the Chief Judicial Magistrate, 3 [or any
other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or,
as the case may be, the Judicial Magistrate of the first class,
on such date as he deems fit, and thereupon such
Magistrate] shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
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the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.
8.1 The purpose of framing a charge is to intimate the accused
about the clear, unambiguous and precise nature of accusation that
the accused is called upon to meet in the course of a trial as observed
in V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The
prosecution is required to establish a prima facie case before a charge
can be framed. The Supreme Court in Union of India V Prafulla
Kumar Samal and Another, (1979) 3 SCC 4 considered scope of
inquiry at the stage of framing of charge as per section 227 of the
Code in a Court of Sessionstrial and observed 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
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 ofSignature Not Verified
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the Code the Judge which under the present Code is a
senior and experienced Judge 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.
8.2 The Supreme Court in Onkar Nath Mishra and Others V
State (NCT of Delhi) and Another, Appeal (Crl.)1716 of 2007
decided on 14.12.2007 regarding framing of charge observed as
under:-
It is trite that at the stage of framing of charge the court
isrequired 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.
8.3 The Supreme Court in Dipakbhai Jagdishchandra Patel V
State of Gujarat and Another, (2019) 16 SCC 547 discussed the
law relating to the framing of charge and discharge and observed as
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under:-
15. We may profitably, in this regard, refer to the judgment
of this Court in State of Bihar v. Ramesh Singh wherein
this Court has laid down the principles relating to framing
of charge and discharge as follows:
“4. … Reading Sections 227 and 228 together in
juxtaposition, as they have got to be, it would be clear
that at the beginning and initial stage of the trial the
truth, veracity and effect of the evidence which the
prosecutor proposes to adduce are not to be
meticulously judged. Nor is any weight to be attached to
the probable defence of the accused. It is not obligatory
for the Judge at that stage of the trial to consider in any
detail and weigh in a sensitive balance whether the
facts, if proved, would be incompatible with the
innocence of the accused or not. The standard of test
and judgment which is to be finally applied before
recording a finding regarding the guilt or otherwise of
the accused is not exactly to be applied at the stage of
deciding the matter under Section 227 or Section 228 of
the Code. At that stage the Court is not to see whether
there is sufficient ground for conviction of the accused
or whether the trial is sure to end in his conviction.
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
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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. …If the scales of pan as to the guilt or
innocence of the accused are something like even at the
conclusion of the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal. But if, on the
other hand, it is so at the initial stage of making an
order under Section 227 or Section 228, then in such a
situation ordinarily and generally the order which will
have to be made will be one under Section 228 and not
under Section 227.
xxx xxx xxx
23. At the stage of framing the 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 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
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prima facie view that the accused has committed the
offence.
8.4 The Supreme Court in Asim Shariff V National Investigation
Agency, (2019) 7 SCC 148 expressed that the trial court is not
expected or supposed to hold a mini trial for the purpose of
marshalling the evidence on record. The Supreme Court in State of
Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a
settled principle of law that at the stage of considering an application
for discharge the court must proceed on the assumption that the
material which has been brought on the record by the prosecution is
true and evaluate the material in order to determine whether the facts
emerging from the material, taken on its face value, disclose the
existence of the ingredients necessary to constitute the offence. The
Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool
Magrey and Others, Criminal Appeal No. 001041 of 2022 (arising
out of S.L.P. (Criminal) no. 4599 of 2021) decided on 26.07.2022
observed as under :-
Thus from the aforesaid, it is evident that the trial court is
enjoined with the duty to apply its mind at the time of
framing of charge and should not act as a mere post office.
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countenanced by law. However, the material which is
required to be evaluated by the Court at the time of
framing charge should be the material which is produced
and relied upon by the prosecution. The sifting of such
material is not to be so meticulous as would render the
exercise a mini trial to find out the guilt or otherwise of the
accused. All that is required at this stage is that the Court
must be satisfied that the evidence collected by the
prosecution is sufficient to presume that the accused has
committed an offence. Even a strong suspicion would
suffice. Undoubtedly, apart from the material that is placed
before the Court by the prosecution in the shape of final
report in terms of Section 173 of CrPC, the Court may also
rely upon any other evidence or material which is of
sterling quality and has direct bearing on the charge laid
before it by the prosecution. (See: Bhawna Bai v.
Ghanshyam, (2020) 2 SCC 217).
8.5 The Supreme Court in State of Gujarat V Dilip Singh Kishor
Singh Rao, 2023 SCC OnLine SC 1294 also observed as under:-
8. At the time of framing of the charge and taking
cognizance the accused has no right to produce any
material and call upon the court to examine the same. No
provision in the Code grants any right to the accused to file
any material or document at the stage of framing of charge.
The trial court has to apply its judicial mind to the facts of
the case as may be necessary to determine whether a case
has been made out by the prosecution for trial on the basis
of chargesheet material only.
9. If the accused is able to demonstrate from the charge-
sheet material at the stage of framing the charge which
might drastically affect the very sustainability of the case, it
is unfair to suggest that such material should not be
considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr. P.C.
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is to assist the court to determine whether it is required to
proceed to conduct the trial. Nothing in the Code limits the
ambit of such hearing, to oral hearing and oral arguments
only and therefore, the trial court can consider the material
produced by the accused before the I.O.
10. It is settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate
said material in order to determine whether the facts
emerging from the material taken on its face value, disclose
the existence of the ingredients necessary of the offence
alleged.
8.6 It is established on the basis of various judgments/decisions
delivered by the Supreme Court that the court needs to apply its
judicial mind on the material collected during the investigation and
recorded before it. The court at the stage of framing charges, should
frame a charge where there is a prima facie case to show that an
offence has been committed. As observed in Dipakbhai
Jagdishchandra Patel V State of Gujarat and Another (supra),
the court is not expected to act a mere Post Office at the time of
framing of the charge and must indeed sift the material produced and
relied upon by the prosecution. The sifting of the evidence should not
be meticulous and the court should not don the mantle of trial judge
hearing argument after full-fledged trial. The court must be satisfied
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with the material available on record that the case is made out for the
accused to stand trial. A strong suspicion founded on the relevant
material would suffice which can be translated into evidence at the
stage of trial.
9. It is reflecting that the complainant made a complaint on
08.04.2008 before CAW Cell, Central District wherein no allegation
of sexual assault was made against the respondent. The complainant
claimed herself to be the legally wedded wife of the respondent
having been married to him in May, 2007 and alleged infliction of
cruelty physical and mental for dowry demands. The complainant in
her subsequent complaint dated 07.05.2008, alleged that the
respondent at the time of marrying her, had concealed about his
previous marriage and children from his previous marriage.
However, the complainant during investigation could not produce
convincing material which could establish that the respondent
married her in May, 2007. Although the complainant submitted few
photographs of her marriage with the respondent and father of the
complainant namely O.P. Bhardwaj submitted two CDs stated to be
containing videos of ring ceremony and marriage of the complainant
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with the respondent. However, during investigation and further
investigation, origin of the said photographs and CDs could not be
traced. The complainant in statement recorded by the Investigating
Officer Inspector Prem Chandra stated that she along with the
respondent, her brother namely Hemant and his wife namely Dolly
on 27.11.2007, had gone to Vaishno Devi and stayed in hotels at
Jammu and Katra. The respondent in Jammu tried to kill her but
again, the said allegation could not be established during
investigation. The complainant also alleged her forceful abortion at
instance of the respondent in Lake View Nursing Home, Pandav
Nagar but the allegation of abortion also could not be established
during investigation. The complainant also withdrew complaint made
by her before CAW Cell on 23.09.2008. The complainant during
subsequent investigation conducted by Crime Branch, stated that she
was taken to Vaishno Devi by the respondent along with her brother
Hemant and his wife Dolly which is also not disputed by the
respondent and stayed in hotels at Jammu and Katra and alleged that
the respondent on false promise of marriage, made forcible sexual
relations with her and the respondent also made her obscene CD.
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However, the complainant never made allegations of forceful sex
with her by the respondent in her previous complaints. The allegation
of the complainant regarding forceful sexual relation by the
respondent at residence of HC Naresh Yadav in May, 2007 also
could not be established during investigation. The complainant did
not turn up for recording of her statement under section 164 of the
Code to substantiate her allegation of forcible sexual relation by the
respondent with her. The complainant took contradictory stands
during investigation and in her multiple complaints. The complainant
could not furnish any convincing material to substantiate her
marriage with the respondent. It is reflecting that the respondent only
developed friendly relations with the family of the complainant and
the complainant out of her own free will and consent also developed
relations with the respondent. The Additional Public Prosecutor
argued that the revision petition filed by the respondent against the
summoning order dated 14.05.2015 was dismissed by the concerned
court and as such the present case is fit for framing of charge against
the respondent. However, this is not the settled proposition of law.
The accused can be discharged by the concerned court even after
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cognizance of the offence has been taken and the accused has been
summoned. The argument as advanced by the Additional Public
Prosecutor does not have legal force.
10. It is an accepted legal proposition that the prosecution is
required to establish a prima facie case before a charge can be
framed. However, the court has the 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. If the
materials placed before the Court disclose grave suspicion against the
accused, then the court is justified in framing a charge and to proceed
with the trial but and the court is not expected to go deep into the
probative value of the material on record. The court is also not
expected or supposed to hold a mini trial for the purpose of
marshalling the evidence on record. However, the trial court is
enjoined with the duty to apply its mind at the time of framing of
charge and should not act as a mere post office. The material
collected during investigation is not sufficient to make out a prima
facie case against the respondent for the offence punishable under
section 376 IPC. The arguments advanced by the Additional Public
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Prosecutor as detailed hereinabove are without any legal basis. There
is no infirmity in the impugned order which calls for any interference
by this Court.
11. Accordingly, the present revision petition is dismissed along
with pending applications, if any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
FEBRUARY 15, 2024
AM/SD
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