Dismissed

Sonu v. State of U.P. and Another

Allahabad HC24 Sept 2021CRLR/755/2021

Case brief

AI extract

What is this about?

In Criminal Revision No. 755 of 2021, Sonu challenged the Additional Sessions Judge's order rejecting his discharge application in a rape and assault case. The Bench held that the lower court correctly found a prima facie case against the accused and dismissed the revision.

What did the court decide?

The criminal revision filed by Sonu challenging the impugned order dated 18.2.2021 is dismissed.

Sonu Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2021)

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Court No. - 83

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Case :- CRIMINAL REVISION No. - 755 of 2021

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Revisionist :- Sonu Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anurag Vajpeyi,Gaurav Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Gaurav Tripathi, learned counsel for revisionist and learned A.G.A. for state.

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This criminal revision has been filed challenging order dated 18.2.2021, passed by Additional Sessions Judge/F.T.C Ist, Saharanpur in Sessions Trial No. 290 of 2020 (State Vs. Sonu and Another) under sections 376, 323, 504, 506 IPC, Police Station- Sarsawa, District Saharanpur, whereby discharge application filed by applicant in above mentioned sessions trial has been rejected.

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Record shows that first informant opposite party-2 Sanjana filed an application no. 171 of 2018 under section 156 (3) Cr.P.C. which came to be allowed by concerned Magistrate. As a consequence of above, an F.I.R. dated 28.8.2019, came to be lodged and was registered as 0288 of 2019, under section 376, 323, 504, 506 IPC. In the aforesaid F.I.R. two persons namely, Sonu and Bhardra Pal Singh i.e. father and son have been nominated as named accused.

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According to the prosecution story as unfolded in F.I.R. it is alleged that on the false promise of marriage, accused Sonu has dislodged the modesty of first informant opposite party-2 Sanjana. The F.I.R. further states that on 9.11.2018, when first informant/opposite party-2 went to the house of accused for complaining the act of Sonu, again criminality was committed by accused persons.

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Subsequent to above noted F.I.R. investigating officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant opposite party-2 i.e. prosecutrix and other witnesses in terms of Section 161 Cr.P.C. Witnesses so examined supported the prosecution story as unfolded in F.I.R. Prosecutrix was also medically examined accordingly, her medico legal report is also on record. Subsequently, prosecutrix was also examined under section 164 Cr.P.C. wherein also prosecutrix supported the F.I.R. On the basis of above

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material gathered during the course of investigation, Investigating Officer opined to submit a charge sheet. Accordingly, Investigating Officer submitted charge sheet dated 25.11.2019, whereby accused Sonu has been charge sheeted under sections 376, 323, 504, 506 IPC whereas accused Bhadrapal has been charge sheeted under sections 506 and 504 IPC.

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After submission of aforesaid charge sheet cognizance was taken upon same by Chief Judicial Magistrate Saharanpur vide Cognizance Taking Order dated 18.12.2019. Since offence complained of is triable by Court of Sessions, accordingly, concerned Magistrate committed the case to Court of Sessions. Resultantly, Sessions Trial No. 290 of 2020 (State Vs. Sonu and Another) under sections 376, 323, 504, 506 IPC, Police StationSarsawa, District Saharanpur came to be registered.

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During pendency of above mentioned Sessions Trial, charge sheeted accused including the applicant filed a discharge application dated 4.12.2020 in terms of section 227 Cr.P.C. Discharge application filed by charge sheeted accused by opposed by first informant/opposite party-2 by filing an objection dated 15.1.2021. Charge sheeted accused filed a rejoinder dated 2.2.2021 to the objections filed by first informant/opposite party-2.

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Ultimately, Court below by means of order dated 18.2.2021 rejected the discharge application filed by charge sheeted accused. Feeling aggrieved by aforesaid, only one of the charge sheeted accused i.e. Sonu has now approached this Court by means of present criminal revision.

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Learned counsel for applicant contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Consequently, same is unsustainable in law and fact and therefore, liable to be quashed by this Court. He, further contends that prosecutrix first informant opposite party-2 is a major. She has been a consenting party. As such, no offence under section 376 IPC can be said to have been committed by applicant. Placing reliance upon Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Others, (2019) 18 SCC 191, Pramod Suryabhan Pawar Vs. State of Maharashtra and Another, (2019) 9 SCC 608 and Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Another, 2021 SCC Online Sc 181 , learned counsel for applicants contends that court below has failed to appriciate the facts which are almost similar to the facts of above mentioned cases. It is thus submitted that since revisionists cannot be punished for an offence under section 376 IPC therefore court below has erred inlaw in rejecting discharge application filed by revisionist. Consequently, present criminal revision is liable to be allowed and impugned order passed by Court below be quashed.

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Per contra, learned A.G.A. has opposed this criminal revision. Learned A.G.A. contends that in present case, father and son i.e. Bhadra Pal Singh, and Sonu i.e. revisionist have been charge sheeted. Discharge application was filed by both the charge sheeted accused. However, only one of the charge sheeted accused namely, Sonu has approached this Court by means of present criminal revision. It is next contended that case law relied upon by learned counsel for revisionist relates to an offence under section 376 IPC. It does not throw any light in respect of evaluation of proceedings for an offence under sections 323, 504, 506 IPC. Learned A.G.A. has then invited attention of Court to the F.I.R. dated 28.8.2019 and on basis thereof he contends that in aforenoted F.I.R. two sets of allegations have been made. The first set of allegation relates to the commission of offence by accused Sonu which is punishable under section 376 IPC whereas the other set of allegation relates to the incident which occurred on 9.11.2018. He has further referred to the impugned order passed by Court below and on basis thereof it is urged by learned A.G.A. that Court below has not committed any illegality in passing impugned order. It is thus submitted that no occassion arises before this Court to grant indulgence in favour of revisionist. As such, revision be dismissed.

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Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of record, the Court finds that named accused Sonu has been charge sheeted under section 376, 323, 504, 506 IPC whereas other named accused Bhadrapal Singh has been charge sheeted under sections 504, 506 IPC. The F.I.R. dated 28.8.2019 giving rise to the criminal proceedings referred to above, contains two sets of allegations. The first set of allegations is regarding dislodging of modesty of prosecutrix by named accused Sonu and the second set of allegations relates to the criminality committed by both the named accused on 9.11.2018. Discharge application was filed by both the charge sheeted accused before Court below which has been rejected by means of impugned order. However, only one of the charge sheeted accused namely, Sonu who has been charge sheeted only under sections 376, 323, 504, 506 IPC has approached this Court by means of present criminal revision.

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Perusal of impugned order dated 18.2.2021, passed by Court below goes to show that discharge application filed by charge sheeted accused has been rejected on the finding that submissions urged by learned counsel for applicants (charge sheeted accused) relate to the disputed defence of charge sheeted accused. Same can be considered appropriately at the stage of trial. On the material collected by Investigating Officer during course of investigation, charges can be framed.

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At this stage, it is relevant to reproduce 227 Cr.P.C. which reads as under:

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"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."

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From plain reading of section 227 Cr.P.C. it is apparent that Court can discharge an accused provided there is no sufficient ground for proceeding against accused. From the perusal of grounds of revision, it is apparent no such grounds has been raised that on the material on record there does not exists any ground to proceed against revisionist. Furthermore, co-accused Bhadrapal Singh who has also been charge sheeted under sections 504 and 506 IPC along with revisionist has not challenged the impugned order dated 18.2.2021, passed by Court below. Aforesaid fact has neither been exaplained in the affidavit accompanying the stay application filed along with memo of criminal revision nor counsel for revisionist has addressed the Court on aforesaid.

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Parameters regarding exercise of jurisdiction under section 227 Cr.P.C. now stands crystallized by a three judges Bench judgement in Tarun Jit Tejpal Vs. State of Goa and Another, 2019 SCC Online Sc 1053 wherein Court has considered the parameters regarding discharge of an accused under section 227 Cr.P.C. In paragraphs 28, 29, 30 and 31 of the judgement, Court held as follows:

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" 28. In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:

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“29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the

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materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.

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30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52], in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52], SCC p. 482, para 15)

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“15. ‘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.’ (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507], SCC p. 565, para 11)”

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(emphasis in original)

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31. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310], relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:

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31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 can be ordered when “the Magistrate considers the charge against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if

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unrebutted, would warrant his conviction”.

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31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.

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31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256]. The same reads as follows: (SCC pp. 755-56, para 43)

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“43. … Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of ‘prima facie’ case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.”

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29. In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:

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“6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609],Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310], Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505], Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265], State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not

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been properly explained, the court will be fully justified in framing the charge; by and large 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 rights to discharge the accused. The 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 statements 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 materials as if he was conducting a trial.

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7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21)

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“(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.

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(ii) 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.

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(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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(iv) If on the basis of the 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.

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(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

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(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

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(vii) 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.””

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30. In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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31. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :

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“11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:

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“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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

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12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject-matter of consideration by this Court. In State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257], Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41-42 : SCC (Cri) pp. 535-36, para 4]

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Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the 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

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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.

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13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229], Fazal Ali, J., summarised some of the principles: [SCR pp. 234-35 : SCC p. 9 : SCC (Cri) pp. 613-14, para 10]

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“(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 had been made out.

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(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.

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(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.

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(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.”

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14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated inRamesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257]. In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that “the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused”. The “ground” in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."

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When order impugned in present criminal revision is examined in the light of parameters laid down by Supreme Court the Court is of considered opinion that no illegality has been committed by Court below in rejecting discharge application filed by charge sheeted accused including revisionist. Order impugned in present criminal revision is perfectly just and legal. Court below has not committed a jurisdictional error in rejecting the discharge application filed by charge sheeted accused. Moreover, findings returned by court below for rejecting the discharge application filed by charge sheeted accused cannot be termed as illegal, perverse and erroneous. At the stage of deciding dischage application Courts were not required to give a conclusive finding but have limited jurisdiction to see as to whether prima facie case exists or not. Judged in the light of above, Court below has rightly rejected the discharge application filed by charge sheeted accused.

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For the facts and reasons noted above, this Court does not find any good ground to entertain this revision. Revision lacks merit and is therefore, liable to be dismissed.

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Revision is accordingly dismissed.

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Order Date :- 24.9.2021 Arshad

Sonu v. State of U.P. and Another

Case brief

What is this about?

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Sonu v. State of U.P. and Another

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