MANENDRA PRASAD TIWARI versus AMIT KUMAR TIWARI & ANR.
[2022] 13 S.C.R. 174, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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MANENDRA PRASAD TIWARI
v.
AMIT KUMAR TIWARI & ANR.
(Criminal Appeal No. 1210 of 2022)
AUGUST 12, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
J. B. PARDIWALA, JJ.]
Penal Code, 1860 – s.376 – Protection of Children from Sexual
Offences Act, 2012 (POCSO) – ss. 5 and 6 – Code of Criminal
Procedure, 1973 – ss. 397, 482 – Discharge of Accused – ‘X’,
delivered a baby and thereafter committed suicide by hanging herself
– FIR was registered for the offence punishable u/s 376 of IPC and
the provision of the POCSO Act against the respondent – The special
Judge framed charges for the abovementioned offences against the
respondent – The accused questioned the legality and validity of
the order of framing charge by filing the Criminal Revision on the
ground that the deceased and the accused had developed intimacy
for each other and were in a relationship – The High Court allowed
the Criminal Revision Petition and discharge the accused from the
charges – The High Court discharged the accused charged with the
offence of rape on the ground of delay in the registration of the
FIR – On appeal, held: The High Court recorded no specific finding
as regards the age of the deceased – In a case praying for quashing
of the charge, the principle to be adopted by the High Court should
be that if the entire evidence produced by the prosecution is to be
believed, would it constitute an offence or not – The framing of
charge is not a stage, at which
stage the final test of guilt is to be
applied – The Court should not interfere with the order unless there
are strong reasons to hold that in the interest of justice and to avoid
abuse of the process of the Court a charge framed against the
accused needs to be quashed – High Court’s conclusion about the
age of the deceased and also as regards the delay in lodging the
FIR besides being a premature assessment of evidence, is also
attributable to the wrong premises on which the High Court’s
reasoning is based.
[2022] 13 S.C.R. 174
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Allowing the appeal, this Court
HELD: 1. It was mainly argued before the High Court that
on the date of the commission of the offence, the deceased was
major and was in a relationship with the accused on her own free
will and volition. The accused could not be said to have committed
any offence as alleged. Surprisingly, even the State, to a certain
extent, supported the submission canvassed on behalf of the
accused before the High Court. What is relevant to note is that
although the High Court has devoted two full paragraphs for the
purpose of recording the submissions as regards the age of the
deceased, yet ultimately no specific finding has been recorded in
that regard by the High Court. The High Court proceeded
altogether on a different footing. The High Court thought fit to
discharge the accused of all the charges on the ground that there
was delay in lodging the FIR and the entire case put up by the
parents of the deceased was doubtful. The impugned order of
the High Court is utterly incomprehensible. This Court is yet to
come across a case where the High Court has thought fit to
discharge an accused charged with the offence of rape on the
ground of delay in the registration of the FIR. [Paras 19 &
20][189-H; 190-A-C]
2. The law is well settled that although it is open to a High
Court entertaining a petition under Section 482 of the CrPC or a
revision application under Section 397 of the CrPC to quash the
charges framed by the trial court, yet the
same cannot be done
by weighing the correctness or sufficiency of the evidence. In a
case praying for quashing of the charge, the principle to be
adopted by the High Court should be that if the entire evidence
produced by the prosecution is to be believed, would it constitute
an offence or not. The truthfulness, the sufficiency and
acceptability of the material produced at the time of framing of a
charge can be done only at the stage of trial. To put it more
succinctly, at the stage of charge the Court is to examine the
materials only with a view to be satisfied that prima facie case of
commission of offence alleged has been made out against the
accused person. It is also well settled that when the petition is
filed by the accused under Section 482 CrPC or a revision Petition
under Section 397 read with Section 401 of the CrPC seeking for
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR.
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the quashing of charge framed against him, the Court should not
interfere with the order unless there are strong reasons to hold
that in the interest of justice and to avoid abuse of the process of
the Court a charge framed against the accused needs to be
quashed. Such an order can be passed only in exceptional cases
and on rare occasions. It is to be kept in mind that once the trial
court has framed a charge against an accused the trial must
proceed without unnecessary interference by a superior court
and the entire evidence from the prosecution side should be
placed on record. Any attempt by an accused for quashing of a
charge before the entire prosecution evidence has come on
record should not be entertained sans exceptional cases. [Para
21][190-D-H; 191-A-B]
3. The scope of interference and exercise of jurisdiction
under Section 397 of CrPC has been time and again explained by
this Court. Further, the scope of interference under 397 CrPC at
a stage, when charge had been framed, is also well settled. At the
stage of framing of a charge, the court is concerned not with the
proof of the allegation rather it has to focus on the material and
form an opinion whether there is strong suspicion that the accused
has committed an offence, which if put to trial, could prove his
guilt. The framing of charge is not a stage, at which stage the
final test of guilt is to be applied. Thus, to hold that at the stage of
framing the
charge, the court should form an opinion that the
accused is certainly guilty of committing an offence, is to hold
something which is neither permissible nor is in consonance with
the scheme Code of Criminal Procedure. Section 397 CrPC vests
the court with the power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an error
of jurisdiction or law or the perversity which has crept in the
proceeding. In view of the position of law as discussed above,
the impugned order of the High Court could be termed as
perverse and not sustainable in law. We refrain from observing
anything further in regard to the exact and correct age of the
deceased at the time of commission of the offence as alleged as it
may cause prejudice to the parties in some manner or the other.
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It is for the trial court to determine the correct age on the basis
of the evidence that may be led by the prosecution as well as by
the defence. One another disturbing feature of this litigation is
that it is the unfortunate father of the deceased who had to come
before this Court seeking justice. It was expected of the State to
challenge the illegal order passed by the High Court. Barring a
few exceptions, in criminal matters the party who is treated as
the aggrieved party is the State which is the custodian of the
social interests of the community at large and so it is for the State
to take all the steps necessary for bringing the person who has
acted against the social interests of the community to book. Yet
one another disturbing feature is that the trial court thought fit
not to frame charge against the accused for the alleged offence
punishable under Section 306 of the IPC i.e. abetment to the
commission of suicide. Unfortunately, no one has questioned that
part of the order of the trial court declining to frame charge for
the alleged offence of abetting the commission of suicide
punishable under Section 306 of the IPC. [Paras 22, 23, 28 &
29][191-B-E; 194-G-H; 195-A-C]
Amit Kapoor and Ramesh Chander (2012) 9 SCC 460 :
[2012] 7 SCR 988; State of Maharashtra v. Som Nath
Thapa (1996) 4 SCC 659 : [1996] 1 Suppl. SCR 189 -
relied on.
State of Delhi v. Gyan Devi (2000) 8 SCC 239 : [2000]
4 Suppl. SCR 270; Chitresh Kumar Chopra v. State
(Government of
NCT of Delhi) (2009) 16 SCC 605 :
[2009] 13 SCR 230; Thakur Ram and others v. State of
Bihar (1966) Cri LJ 700 - referred to.
Case Law Reference
[2000] 4 Suppl. SCR 270
referred to
Para 21
[2012] 7 SCR 988
relied on
Para 24
[2009] 13 SCR 230
referred to
Para 26
[1996] 1 Suppl. SCR 189
relied on
Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1210 of 2022.
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR.
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From the Judgment and Order dated 02.12.2021 of the High Court
of Madhya Pradesh at Jabalpur in CRR No. 211 of 2021.
Siddharth Singh, Adv. for the Appellant.
Ms. Ankita Choudhary, Dy AG, Swarnendu Chatterjee, Ms. Pragya
Parijat Singh, Himanshu Nailwal, Ambuj Tiwari, Ms. Deepakshi Garg,
Yashwardhan Singh, Sunny Choudhary, Manoj, Advs. for the
Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This appeal, by special leave, is at the instance of the original
first informant (father of the deceased) and is directed against the
judgment and order passed by the High Court of Madhya Pradesh at
Jabalpur dated 02.12.2021 in the Criminal Revision Application No. 211
of 2021 by which the High Court allowed the revision application filed
by the accused (respondent No. 1 herein) and thereby set aside the
order passed by the trial court framing charge against the accused of
the offence punishable & discharged him under Section 376 of the Indian
Penal Code (for short, “IPC”) and Sections 5 and 6 resply of the
Protection of Children from Sexual Offences Act, 2012 (for short,
‘POCSO Act”).
FACTUAL MATRIX
2. The facts of this litigation are quite heart-breaking and at the
same time, more disturbing is the utterly incomprehensible impugned
judgment of the High Court discharging the accused of the offence of
rape essentially on the ground of delay in the registration of the First
Information Report (FIR).
3.
Since this litigation arises from the First Information Report
(FIR) registered for the offence punishable under Sections 376 of the
IPC and the provisions of the POCSO Act, this Court must ensure that
the identity of the victim is protected. In such circumstances, the deceased
victim shall be referred to as ‘X’.
4. The appellant herein is a resident of the Village Bansati, P.S.
Rewa, District Rewa. His family members as on date consists of his
wife, namely Smt. Rani Tiwari, three sons and one daughter. The
deceased ‘X’ was the eldest child of the first informant. The deceased
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studied up to standard 9th. On 27.04.2020 in the morning, the wife of the
first informant informed that ‘X’ (deceased) had severe pain in her
stomach. The first informant thought that there could be a tumor in the
stomach of his daughter. The first informant took his daughter ‘X’
(deceased) on his motorcycle to the Harsh Hospital situated at Chakghat
for the purpose of medical treatment. They reached the hospital at about
10.30 am. ‘X’ was made to sit on a bench outside the hospital. The first
informant went inside the hospital to speak to Dr. K.B. Shukla. It appears
that by the time the first informant and Dr. K.B. Shukla could attend to
‘X’, she delivered a baby. In such circumstances, the doctor refused to
admit ‘X’ in the hospital. As the first informant relentlessly pleaded before
the doctor, ‘X’ was ultimately admitted in a minor OT of the hospital. It
appears that thereafter ‘X’ requested a lady sweeper of the hospital,
namely, Nirmala Saket to allow her to use her mobile so as to speak to
one Amit Tiwari (accused), also a resident of the same village. ‘X’ could
not use the mobile as Nirmala was left with no balance. It appears that
thereafter ‘X’ disclosed before her father that she had conceived through
Amit Tiwari and would take a room on rent in Chakghat and start living
life along with Amit & the new born infant. As ‘X’ was admitted in the
hospital, the first informant had to arrange for finance and in such
circumstances, he left for his
village to arrange for money. By the time
he returned at 3 pm to the hospital, he was informed by the doctor that
his daughter ‘X’ had committed suicide by hanging herself with a duptta
on the rod of the OT light affixed to the ceiling. The first informant
rushed inside the room and noticed that his daughter ‘X’ was hanging
and the new born infant was laid on a dressing table in the very same
room. According to the first informant, his daughter ‘X’ committed suicide
out of shame as she had delivered an illegitimate child conceived through
Amit Tiwari (accused).
5. In such circumstances referred to above, the first informant
lodged an FIR at the P.S. Chakghat, District Rewa, which came to be
registered as the FIR No. 0064/2020 for the offence punishable under
Sections 376 and 306 resply of the IPC and Sections 5 and 6 resply of
the POCSO Act.
6. Upon registration of the FIR, the investigation was undertaken
by the police. The further statement of the first informant was recorded
by the police under Section 161 of the Code of Criminal Procedure (for
short, “CrPC”). The same reads thus:-
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR. [J. B. PARDIWALA, J.]
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“…On 27.04.2020, in the morning my wife told that ‘X’ is
suffering from Stomach pain, I feel that there is tumour in her
stomach. On which, I took my daughter to Harsh Hospital,
Chakghat on my motorcycle bearing registration no. UP 96
0200, Honda CD, 100 for treatment. I reached at Harsh
Nursing Home at about 10:30 a.m. and my daughter ‘X’ was
asked to sit outside
….that also on 27.04.2020, my daughter after taking phone
from the sweeper of Hospital namely Nirmala Saket after
getting her called through the doctor of Hospital, had talked
with someone, on which, my daughter ‘X’ told that I talked
with Amit Tiwari, who is resident of my village, then, he has
said that we will live together by taking a room in Chakghat
and baby boy which she has given birth, is also of Amit if you
will go from here, then Amit will come and will live here by
taking room…
…my daughter has committed suicide by hanging
herself due to public shame as a result of giving birth to the
illegitimate child of Amit Tiwari. Prior to my daughter did not
tell me anything…”
7. The police also recorded the statement of Dr. Krishnavatar
Shukla of the Harsh Nursing Home, Baghedi, P.S. Chakghat, Rewa.
The same reads thus:-
“On 27.04.2020, at about 10:30 P.M., my previously
acquittance, Manendra Prasad Tiwari, R/o Bahera took his
daughter ‘X’ Tiwari to my nursing home for treatment due to
stomach pain and thereby got her sit under the tin shed out
side
Hospital, he came to my chamber and thereby requested
to do a check-up of his daughter, on which, on humanitarian
ground, after approximately half an hour, when I came out of
the clinic along with Sh. Manendra Tiwari, at the time, delivery
of patient Kumari ‘X’ had been happened, which was normal
and she gave birth to a baby boy. Who on the request of
Manendra Tiwari, were shifted in O.T. room after cleaning
etc. through Dai Nirmala Saket. Also on 27.04.2020, patient
Km. ‘X’ brought, mobile phone through sweeper Nirmala Saket
for talking to her home, on which, I sent my mobile phone
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through sweeper and she said that I don’t know with whom
she talked. Again on 28.04.2020 at about 1:30 p.m. patient
Km. ‘X’ again brought mobile phone for talking to her father
and had gone to village at about 11:00 p.m. thereafter, at
about 3:00 Pm…
…Nirmala Saket told me that patient K. ‘X’ was talking
with some boy. Km. ‘X’ committed suicide by hanging herself
due to public sham as a result of giving birth to an illegitimate
child. This is my statement.”
8. The statement of Nirmala Harijan (Dai) was recorded by the
police. The same reads thus:-
“On 27.04.2020, at about 10:30 p.m., in the morning a girl
name ‘X’ came for treatment alongwith her father Manendra
Tiwari, and a father told that she was suffering from tumour
and he started talking with doctor Saheb, and he asked
Kumari ‘X’, to sit on a bench under a tin shed situated outside
the Hospital. After one hour, when the said girl started crying,
then, I went near her and saw that she was suffering from
delivery pain. When, I reached there at the time child has
been come out, on which I cleaned the child and informed
the Dr. Sahib. Thereafter, on the instruction of Dr. Saheb,
firstly I took the girl in a room situated updaters. In that room,
none another person patient was present. During night, I
remained accompanied with the girl in that room. Thereafter,
in the morning the girl came down stairs when I was sweeping
downstairs then the girl said that I won’t stay upstairs, bring
my child down
stairs. On which, I took the child downstairs
and gave it to the girl. Thereafter, said girl and her child was
shifted in OT room. Thereafter, she begged for mobile phone
from me, and on inquiry, she did not tell that where she would
talk. Since, I had no balance on my mobile phone due to
which, I refused to give. Thereafter, when I told the said fact to
Dr. Saheb, then, Dr. Saheb gave his mobile, on which, I gave that
phone to that girl, who talked on the mobile phone, but I did not
hear that where and with whom she had talked and nor she told
me in this regards. And on the same date i.e. on 28.04.2020, at
about 11 am., a father went to his village.”
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR. [J. B. PARDIWALA, J.]
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9. The police statement of Smt. Rani Tiwari, mother of ‘X’
(deceased) came to be recorded by the police. The same reads thus:-
“On 15.08.2019, my daughter Mrs. ‘X’ told me that I missed
my period and on 07.07.2019 I developed a physical
relationship with Amit Tiwari. My daughter told me that she
loves Amit Tiwari and Amit wants to marry me, I also want to
marry him and please do not tell father about it. On
27.04.2020, my daughter said that she is suffering from
stomach ache, then also I did not tell anything to my husband.
Then me along with my husband took our daughter to the
Harsh Hospital situated in Baghdi for her treatment. We
reached around 10:30 AM, we made ‘X’ sat on bench…”
10. The statement of Smt. Rani Tiwari, mother of the deceased
under Section 164 of the CrPC also was recorded by the Magistrate.
The same reads thus:-
“…Amit Tiwari knew my daughter from the past one and a
half years. My daughter told me on 07.07.2019, that from
past one and half months I’m not getting my periods and I am
carrying Amit Tiwari’s baby. My daughter informed me that
she and Amit Tiwari are planning to get married. I went at
Amit’s house with the proposal of their marriage, but Amit’s
mother denied for it. On 28.04.2020, ‘X’ had a conversation
with Amit Tiwari over a phone call, where Amit agreed to come
to the Hospital. Me and my husband at around 11:00 AM
came back from the hospital. Amit Tiwari did not come to the
Hospital. When my and my husband reached the hospital at
around 02:00 P.M. then she got to know that, ‘X’ had
committed suicide and this is my statement.”
11. Prima Facie, the following is discernible from the statements
aforesaid:
(a)
The school record indicates that ‘X’ (deceased) was born
on 20.07.2001;
(b)
The mother of the deceased in her statement recorded under
Section 164 of the CrPC has stated that she was informed
by her daughter (deceased) on 07.07.2019 that she had
missed her period (menstruation) past one and a half month
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and further she had conceived through Amit Tiwari
(accused);
(C)
‘X’ (deceased) attained majority on 20.07.2019;
(d)
There appears to be some conflict as regards the exact
date so far as the statement of the mother of the deceased
recorded by the police under Section 161 of the CrPC is
concerned and the statement recorded by the Magistrate
under Section 164 of the CrPC.
12. Upon the completion of the investigation, the investigating
agency filed charge sheet against the accused (respondent No. 1 herein)
for the offences as enumerated above.
13. The case came to be committed to the court of the Special
Judge, POCSO, District Rewa. The Special Judge proceeded to frame
the charge against the accused vide order dated 18.12.2020. The relevant
part of the order reads thus:
“On behalf of the Prosecution, the present Chargesheet has
been filed under Section 376, 306 IPC and Section 5/6 of
POCSO Act and it was argued by the ADPO that the charges
under the aforesaid Sections be framed against the Accused
because in the present case, sufficient evidences are available
in this regard.
On the contrary, it was argued by the Ld. Counsel for the
Accused that the offence under Section 306 IPC does not
attract against the Accused because, deceased’s father
Manendra Tiwari has stated in his statements that his daughter
hanged herself due to public shame as a result of giving birth
to an illegitimate child. Similarly, the mother of girl has also
not stated that her daughter
has committed suicide due to the
torture or abatement of someone. No other evidence is also
available to this effect from which, it could appear that
Section 306 IPC attracts in the present case. Therefore, it
was prayed to discharge the Accused from the offence of
Section 306 IPC.
Similarly, it was also argued that the Offence under Section
5/6 of POCSO Act does not made out against the accused,
because, on the date of occurrence, prosecutrix was a girl
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR. [J. B. PARDIWALA, J.]
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aged more than 18 years and if a girl aged more than 18
years voluntarily establishes physical relations, then, it does
not come under the category of crime. In the evidence, this
fact has come on record that the marriage of Accused and
Prosecutrix had to be solemnized, in this situation, Section
376 IPC also do not attract. Therefore, it was also prayed to
discharge from both the aforesaid Sections.
In support, case laws of M. Arjunan Vs. State Represented by
Inspector of Police (2019) 3 SCc 315, Madanmohan Singh
Vs. State of Gujarat & Ors (2010) 8 SCC 628, Dwarika Singh
Thakur Vs. State of M.P. Crl., Rev. No. 1678/2011 dated
06.03.2013, Union of India Vs. Prafulla Kumar Sanwal
(1979) 3 SCC 4, Indrapal Vs. State of M.P. (2001) 10 SCC
736, Ude Singh Vs. State of Haryana (2019) 17 SCC 301,
Gajadhar Prasad Patel Vs. State of M.P. 2003 (1) MPLJ 605,
Ajay Pataudiya Vs. State of M.P. 2003 (4) MPLJ 195,
Mangleshwar Singh Vs. State of M.P. 2003 (3) MPLJ 44,
Bagdiram Vs. State of M.P. 2005 (40) MPLJ, Vishnu Prasad
Vs. State of M.P. 2005 (3) MLPJ 23, Madiya @ Mahadev Vs.
State of M.P. 2006 (1) MPLJ, have been produced.
Arguments of both the parties were taken into consideration.
The aforesaid case laws were perused.
According to the incident, on 28.04.2020, father of deceased
namely Manendra Tiwari lodged a report in P.S. Chakghat to
this effect that on 27.04.2020, deceased who was 17 years
old, who is his daughter, he took
her to Harsh Hospital,
Chakghat for treatment due to complaining Stomach Ache and
thereby admitted her in hospital at 10.30 p.m., and she gave
birth to a child at 12.00 p.m. On 28.04.2020, her daughter
hanged herself with her Duptta in the hospital. She has
committed suicide due to giving birth to an illegitimate child
and he has suspicion that the illegitimate child of his daughter
is of Accused Amit Tiwari.
On the aforesaid information, case was registered and the
enquiry was started. During the enquiry, it was found that
Accused had love affair with the deceased, as it appears from
the statements under Section 16 Cr.P.C. of the Complainant
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Manendra Tiwari. This fact is also mentioned in his statement
that before death, her daughter told him that she had talked
with the accused, on which, she had said that he will live with
the deceased by taking a room in Chakghat and his daughter
also said that you go from hospital, Accused will come there.
In this manner, it appears that deceased had love affair with
the Accused. Regarding Section 306, it is the case of
prosecution that the girl committed suicide due to guilt as a
result of giving birth to an illegitimate child. Under Section
107 IPC, it has been provided regarding the abatement and
for the offence of Section 306 IPC, the facts of Section 107
should be extract.  If, it is accepted that Accused was bearing
the child of Accused and due to giving birth to an illegitimate
child, deceased committed suicide, then, it is nowhere appears
that what is the abatement on the part of Accused in the said
suicide.
The case laws which have been produced on behalf of the
Accused for discharging him from the offence of Section 306
IPC, which have been mentioned, in this case law also, it has
been held that for the offence of Section 306 IPC, the facts
of Section 107 IPC should be proved. In the present case, no
such prima facie evidence has been produced to this effect
that the Accused abated the deceased to commit suicide, in
fact, according to the prosecution story, when deceased herself
talked with the Accused on phone, then accused said that we
will
live together by taking room on rent and he denied refuse
from marriage. In this situation, merely due to stating by the
prosecution, whereas, no such ground is available, then there
is no ground available to frame charge under Section 306
IPC against the Accused, therefore, Accused is discharged
from the offence of Section 306 IPC.
But, so far as the question of discharging from the offence of
Section 376 IPC and Section 5/6 of POCSO Act is concerned,
in this regard, the sexual assault with a girl less than the age
of 18 years is committed, then, the POCSO Act attracts and
similarly Section 376 IPC also attracts.
The entire plea of the defence side is that on the date of
occurrence, prosecutrix was the girl aged more than 18 years,
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due to this reasons, both the aforesaid Sections also do not
attract.
In the present case, the Admission Register has been produced
regarding the age of the Prosecutrix, in which, her date of
birth is mentioned as 20.07.2001. In the present case,
28.04.2020 has been mentioned as the date of occurrence
due to this reason that on the aforesaid date, deceased gave
birth to the child and deceased committed suicide, but, the
statement of mother of deceased recorded under Section 161
Cr.P.C., are enclosed in the present case, in which, she had
stated that on 15.08.2019, her daughter told her that on
07.07.2019, Accused had established physical relations with
her daughter. In this situation, the Accused established
physical relations with the deceased on 06.07.2019 and on
the aforesaid date, the age of deceased was definitely less
than 18 years i.e. her age is about 17 years 11 months. In this
situation, there is no sense of the fact if the sexual intercourse
is done with a girl less than the age of 18 years with her
consent or on the assurance of marriage, in fact, same is
crime under the POCSO Act. Similarly, same is also an offence
under Section 376 IPC. In this situation, Accused is not
discharged from the offence of Section 376 IPC and Section
5/6 of POCSO Act. Therefore, regarding the above, the prayer
is hereby dismissed.
Therefore, prima facie sufficient grounds are available to
frame charges under Section 376(1)
IPC and Section 5(a)(ii)/
6 of POCSO Act, against the Accused. Therefore, the charges
under the aforesaid Sections were framed and same were
readover to the Accused through Video Conferencing. The
Accused denied the crime.
Since, the Accused is confined in Tyonthar Sub-Jail, therefore,
the Chargesheet be send to Sub-Jail, Tyonthar for his
signatures and after taking signatures of Accused, same be
enclosed in the records.
Put up on 22.12.2020 for Trial programme.”
14. The accused questioned the legality and validity of the aforesaid
order passed by the Special Judge framing charge by filing the Criminal
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Revision Application No. 211 of 2021 substantially on the ground that
the deceased and the accused had developed intimacy for each other
and were in a relationship. The deceased being major at the time of the
incident could be said to be a consenting party and in such circumstances,
the Special court could not have proceeded to frame the charge of rape
against the accused.
15. The High Court adjudicated the criminal revision application
filed by the accused and allowed the same vide the impugned judgment
and order dated 02.12.2021. The order reads thus:-
“The applicant has preferred this criminal revision under
Section 397 read with Section 401 of the Code of Criminal
Procedure seeking quashment of the order dated 18.12.2020
passed by learned Special Judge, POCSO, Tyonthar, District
Rewa in Special Case No. 156/2020 whereby charge of Section
376 of IPC and 5/6 of POCSO Act has been framed against
the applicant saying that he had developed physical relations
with the deceased and at the relevant point of time, she had
not attained the majority.
Shri Prakash Upadhyaya, learned counsel for the applicant,
on the other hand has criticized the observation made by the
trial Court mainly on the ground that the date of birth of the
deceased, as per her school record was 20.08.2001 and as
per her recorded date of birth, she attained the majority on
20.08.2019 whereas she has given birth to a child on
27.04.2020 with eight months’ pregnancy and according to
him, it
makes clear that on the date of developing physical
relations, the deceased was major. He submits that there is no
material available on record to indicate that the present
applicant had developed physical relations with the deceased
forcefully without her consent. He further submits that even
there is no suicidal note in which deceased had herself
disclosed this fact that the present applicant had made physical
relations with her without her consent and as such, she was
victim of rape as has been defined under Section 375 of IPC.
Learned counsel has also submitted that the case has been
registered against the present applicant on the basis of the
complaint made by the mother of the deceased and if the
statements of parents of the deceased are seen, nowhere it is
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disclosed that the present applicant had forcefully developed
physical relations with the deceased. He submits that even
otherwise, if it is assumed that whatever has been alleged
against the appellant is correct, it is not established that
physical relations had been developed by the present
applicant with the deceased against her consent. According
to the learned counsel, as per the date of birth of the deceased
recorded in her school record and considering the date of
giving birth to a child after eight months pregnancy, it is clear
that deceased was major on the date when she conceived. He
further submits that under such a circumstance, case of
Section 376 of IPC is not made out and the charge has been
framed merely because the trial Court presumed the fact that
as per the statement of parents of the deceased, she was minor.
Learned counsel further submits that the date of birth recorded
in the school record is a material piece of evidence and that
cannot be discarded for ascertaining the age of the deceased
and, therefore, the learned trial Court has committed an error
in framing the charge of Section 376 of IPC and Section 5/6
of POCSO Act.
Shri Devendra Gangrade, learned Panel Lawyer appearing
for the respondent/State on the other hand has opposed the
submissions made by learned counsel for the applicant and
has read over 161 statement of mother of the deceased that
the sexual act was committed with the
deceased on 07.07.2019
and according to her, the deceased at the relevant point of
time was 17 years of age. The statement of mother also reveals
that there was love-affair between the applicant and the
deceased and the deceased told her mother that she wanted
to marry the applicant.
According to Shri Upadhyay, learned counsel for the
applicant, the statement of mother of the deceased indicates
that physical relations developed between the applicant and
the deceased with consent but not otherwise. He submits that
the age of the prosecutrix cannot be presumed ignoring the
recorded date of birth in her school record and on the basis
of presumption, offence of Section 376 of IPC and Section 5/
6 of POCSO Act is not made out and the applicant cannot be
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charged for the said offences. According to him, the order
dated 18.12.2020 passed by the trial Court framing charge
under Section 376 of IPC and Section 5/6 of POCSO Act is,
therefore, not sustainable in the eyes of law and it is liable to
be set aside.
Although the fact regarding delay has not been argued but
from perusal of the record. It also reflects that the deceased
at the time of death had eight months pregnancy but FIR and
complaint to the police was not made in time. Even in the life
time of the deceased she did not approach the police. The
story as narrated by the mother of the deceased seems to be
doubtful on the ground of delay.
Considering the arguments advanced by the learned counsel
for the parties as also meticulously perusing the record, I am
also of the view that the order passed by the court below
dated 18.12.2020, which is impugned in this revision, framing
charge under Section 376 of IPC and Section 5/6 of POCSO
Act is not sustainable and is accordingly set aside.
Accordingly, the applicant is discharged from the charge of
offence framed vide Special Case No. 156/2020.”
16. Thus from the aforesaid, it is evident that the accused came
to be discharged from the entire prosecution.
17. In such circumstances referred to above, the original first
informant (father of the deceased) is here before this Court with the
present appeal seeking to question the legality and validity of the impugned
order passed by the High Court.
ANALYSIS
18.
Heaving heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned order.
19. It is pertinent to note at this stage that in the impugned order,
the High Court has recorded the submissions made by the learned counsel
who appeared on behalf of the accused and the public prosecutor who
appeared on behalf of the State in details. It was mainly argued before
the High Court that on the date of the commission of the offence, the
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deceased was major and was in a relationship with the accused on her
own free will and volition. The accused could not be said to have
committed any offence as alleged. Surprisingly, even the State, to a certain
extent, supported the submission canvassed on behalf of the accused
before the High Court. What is relevant to note is that although the High
Court has devoted two full paragraphs for the purpose of recording the
submissions as regards the age of the deceased, yet ultimately no specific
finding has been recorded in that regard by the High Court. The High
Court proceeded altogether on a different footing. The High Court thought
fit to discharge the accused of all the charges on the ground that there
was delay in lodging the FIR and the entire case put up by the parents of
the deceased was doubtful.
20. At the cost of repetition, we state that the impugned order of
the High Court is utterly incomprehensible. We have yet to come across
a case where the High Court has thought fit to discharge an accused
charged with the offence of rape on the ground of delay in the registration
of the FIR.
21. The law is well settled that although it is open to a High Court
entertaining a petition under Section 482 of the CrPC or a revision
application under Section 397 of the CrPC to quash the charges framed
by the trial court, yet the same cannot be done by weighing the
correctness or sufficiency of the evidence. In a case
praying for quashing
of the charge, the principle to be adopted by the High Court should be
that if the entire evidence produced by the prosecution is to be believed,
would it constitute an offence or not. The truthfulness, the sufficiency
and acceptability of the material produced at the time of framing of a
charge can be done only at the stage of trial. To put it more succinctly, at
the stage of charge the Court is to examine the materials only with a
view to be satisfied that prima facie case of commission of offence
alleged has been made out against the accused person. It is also well
settled that when the petition is filed by the accused under Section 482
CrPC or a revision Petition under Section 397 read with Section 401 of
the CrPC seeking for the quashing of charge framed against him, the
Court should not interfere with the order unless there are strong reasons
to hold that in the interest of justice and to avoid abuse of the process of
the Court a charge framed against the accused needs to be quashed.
Such an order can be passed only in exceptional cases and on rare
occasions. It is to be kept in mind that once the trial court has framed a
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charge against an accused the trial must proceed without unnecessary
interference by a superior court and the entire evidence from the
prosecution side should be placed on record. Any attempt by an accused
for quashing of a charge before the entire prosecution evidence has
come on record should not be entertained sans exceptional cases. [see
State of Delhi v. Gyan Devi, (2000) 8 SCC 239].
22. The scope of interference and exercise of jurisdiction
under Section 397 of CrPC has been time and again explained by this
Court. Further, the scope of interference under Section 397 CrPC at a
stage, when charge had been framed, is also well settled. At the stage of
framing of a charge, the court is concerned not with the proof of the
allegation rather it has to focus on the material and form an opinion
whether there is strong suspicion that the accused has committed an
offence, which if put to trial, could prove his guilt. The framing of charge
is not a stage, at which stage the final test of guilt is to be applied. Thus,
to hold that at the stage of framing the charge, the court should form an
opinion that the accused is certainly guilty of committing an offence, is
to hold something which is neither permissible nor is in consonance with
the scheme of Code of Criminal Procedure.
23. Section 397 CrPC vests the court with the power to call for
and examine the records of an inferior court for the purposes of satisfying
itself as to the legality and regularity of any
proceedings or order made
in a case. The object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has crept in the
proceeding.
24. It is useful to refer to judgment of this Court in Amit Kapoor
and Ramesh Chander, (2012) 9 SCC 460, where the scope of Section
397 CrPC has been succinctly considered and explained. Para 12 and
13 resply are as follows:
“12. Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for
the purposes of satisfying itself as to the legality and regularity
of any proceedings or order made in a case. The object of
this provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error and
it may not be appropriate for the court to scrutinize the orders,
which upon the face of it bears a token of careful
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consideration and appear to be in accordance with law. If
one looks into the various judgments of this Court, it emerges
that the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding recorded is
based on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are not
exhaustive classes, but are merely indicative. Each case would
have to be determined on its own merits.
“13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuilt
restrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to
injustice ex facie. Where the Court is dealing with the question
as to whether the charge has been framed properly and in
accordance with law in a given case, it may be reluctant to
interfere in exercise of its revisional jurisdiction unless the
case substantially falls within the categories aforestated. Even
framing of charge is a much advanced stage in the
proceedings under the CrPC.”
25. The Court in para 27 has recorded its conclusion and laid
down the principles to be considered for the exercise of jurisdiction
under Section 397
particularly in the context of quashing of charge framed
under Section 228 CrPC. Paras 27, 27(1), (2), (3), (9), (13) resply are
extracted as follows:
“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:
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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.
X
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X
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 an offence and, if so, is it an abuse of the
process of court leading to
injustice.
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X
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….”
26. This Court in the case of Chitresh Kumar Chopra v. State
(Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed
in para 25 as under:-
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“25. 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, disclose the existence of all the
ingredients constituting the alleged offence or offences. For
this limited purpose, the court may sift the evidence as it cannot
be expected even at the initial stage to accept as gospel truth
all that the prosecution states. At this stage, the court has to
consider the material only with a view to find out if there is
ground for “presuming” that the accused has committed an
offence and not for the purpose of arriving at the conclusion
that it is not likely to lead to a conviction. (See: Niranjan
Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja
& Ors, (1990) 4 SCC 76).”
27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC
659, a three-Judge Bench of this Court explained the meaning of the
word “presume”. Referring to the dictionary meanings of the said word,
the Court observed thus:
“32. ...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 commuted the offence. It is apparent that
at (1990) 4 SCC 76 the stage of framing of 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”.”
28. In view of the position of law as discussed above, the impugned
order of the High Court could be termed as perverse and not sustainable
in law. We refrain from observing anything further in regard to the exact
and correct age of the deceased at the time of commission of the offence
as alleged as it may cause prejudice to the parties in some manner or the
other. It is for the trial court to determine the correct age on the basis of
the evidence that may be led by the prosecution as well as by the defence.
29. One another disturbing feature of this litigation is that it is the
unfortunate father of the deceased who had to come before this Court
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seeking justice. It was expected of the State to challenge the illegal
order passed by the High Court. Barring a few exceptions, in criminal
matters the party who is treated as the aggrieved party is the State
which is the custodian of the social interests of the community at large
and so it is for the State to take all the steps necessary for bringing the
person who has acted against the social interests of the community to
book [see Thakur Ram and others v. State of Bihar (1966) Cri LJ
700)]. Yet one another disturbing feature is that the trial court thought fit
not to frame charge against the accused for the alleged offence punishable
under Section 306 of the IPC i.e. abetment to the commission of suicide.
Unfortunately, no one has questioned that part of the order of the trial
court declining to frame charge for the alleged offence of abetting the
commission of suicide punishable under Section 306 of the IPC. In such
circumstances, we do not say anything further in this regard.
30. We find that the High Court’s conclusion about the age of the
deceased and also as regards the delay in lodging the FIR besides being
a premature assessment of evidence, is also attributable to the wrong
premises on which the High Court’s reasoning is based.
31. For the foregoing reasons, this appeal succeeds and is hereby
allowed. The impugned order passed by the High Court is hereby set
aside. The trial court shall now proceed to put the accused on trial in
accordance
with the order framing charge dated 18.12.2020.
32. It is needless to clarify that our observations in this judgment
are prima facie and relevant only for the purpose of deciding the legality
and validity of the impugned discharge order passed by the High Court.
The guilt or the innocence of the accused shall be determined by the trial
court strictly in accordance with the evidence that may be led in the
course of trial.
33. Pending application, if any, also stands disposed of.
Ankit Gyan
Appeal allowed.
(Assisted by : Rahul Rathi, LCRA)
MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &
ANR. [J. B. PARDIWALA, J.]