Mayuri Suresh Bamne vs State of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 365 OF 2024

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ARUN RAMCHANDRA SANKPAL Digitally signed by ARUN RAMCHANDRA SANKPAL Date: 2024.07.22 19:52:18 +0530

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Mayuri Suresh Bamne, Age : 28 years, Occupation : Social Worker, Residing at : Near Mahalaxmi Mandir Sr. No. 106, Gosavi Wasti, Vaiduwadi, Pune – 411 013. …. Applicant 10 Versus 1) State of Maharashtra (At the instance of Shikrapur 15 Police Station, C.R. No. 542/2020) 2) XYZ, Shikrapur Police Station. … Respondents 20 …. Mr. Karma Vivan, with Mr. Tejas Dinesh Kothalikar, for the Applicant. Dr. D. S. Krishnaiyar, A.P.P., for the Respondent-State. Mr. Shailesh Chavan, for Respondent No.2.

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CORAM : AVINASH G. GHAROTE, J.

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JUDGMENT RESERVED ON : 12^th JULY 2024

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JUDGMENT PRONOUNCED ON : 22^nd JULY, 2024

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JUDGMENT:

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Heard Mr. Kothalkar for the applicant, learned AGP for the State and Mr. Shailesh Chavan, learned counsel for the 10 respondent No.2/victim.

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The application questions the order of the learned Special Court, Pune dated 04.01.2024, (page 234), rejecting the application under Section 227 of the Code of Criminal Procedure (“Cr. P. C.”) for discharge of the applicant, who is accused no.3. 15 Charge sheet has been filed on 16.06.2021. The accused no.1 is the maternal uncle of the victim, the accused no.2 is the brother of the applicant/accused no.3.

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The applicant is arraigned as an accused No.3 for the offences under sections 363, 366, 376, 120(B), 195-A, 212 & 34 20 of the Indian Penal Code (“IPC”) and Sections 4, 8 & 12 of the Protection of Children from Sexual Offences Act 2012 (“POCSO Act”), in Special Case No.396 of 2021.

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Mr. Kothalkar, learned Counsel for the applicant, submits

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that in so far as the applicant is concerned, even the admitted role of the applicant in the prosecution story would indicate that the entry of the applicant is only on 28.07.2020, when admittedly the 5 only allegation against her is that she threatened the applicant to make a statement of a particular nature before the police and therefore would not attract Section 195-A of IPC which contemplates such a threat being administered in Court proceedings and not when the case was under investigation and 10 would be entitled to quashing of the prosecution against her, as even if the entire prosecution case was taken as a whole to be true, no offence as against the applicant is claimed to have been made out even prima facie, on account of which the application for discharge came to be filed. 15

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Mr. Kothalkar, learned counsel for the applicant relies for this purpose on the language of sec.191 r/w 195- A of IPC and the judgment in the case of Soby George Vs State of Kerala & Ors, Criminal Revision Petition No. 854 of 2023, decided on 15.02.2024 , in support of his contention.

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Learned APP for respondent No.1 as well as Mr. Chavan, learned counsel for respondent No.2, support the impugned order by contending that there was sufficient material on record to bring home the offence under Section 195-A of the IPC to the applicant/accused No.3 and therefore the application is liable to 5 be rejected.

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The prosecution story is that the accused No.1, who is the maternal uncle of the victim, developed amorous relations with the victim, who then are said to have indulged into sexual activity at various places, commencing from 01.01.2020. This is claimed 10 to have been narrated by the victim to her mother somewhere after June 2020 on account of which they intended to lodge a complaint, however they were dissuaded to do so, by friends and relatives on account of which it was not done. The accused No. 1 is claimed to have continued his attempt to contact the victim 15 through various persons. On 26.07.2020 the college friend of the victim visited her residence and told her that she had received call from accused No.1 stating that in case the victim did not meet him, he would do something negative with his life and she should go to the residence of his friend, Pravin Kalokhe and call him 20

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from there. On 28.07.2020, the victim, went to the residence of Pravin Kalokhe and called the accused No. 1 from the mobile of his wife, Shraddha Kalokhe whereupon the accused No.1 reached there within five minutes in a black four wheeler and offered to marry her, asking her to accompany him. Upon the victim declining one Ganesh Shinde, accused No.2 threatened the victim that in case she did not accompany them, her parents, would be eliminated, under which threat the victim was forced into the vehicle. The accused Nos. 1 and 2 as well as the victim thereafter went to the residence of accused No.2 where they stayed for some time. When they again boarded the vehicle the applicant/accused No. 3 is claimed to be present in the vehicle and the accused No. 2 introduced her to the victim as his sister and told her that she should go to the police station and narrate whatever was told to her by the accused No. 3 to the police officer, which should be to the effect that the parents of the victim forcibly lock up her in a room, do not give her meals, do not permit her to study, whereupon all of them went to Hadapsar Police Station. At that time since the victim was afraid, the above story was narrated by the accused No. 3 to the police authorities. Thereafter, they again

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got in the car and roamed around for some time and again reached back to Hadapsar Police station at which time the accused No.3 is said to have threatened her, that in case she does not narrate to the police authorities what has been told to her, then the persons of the accused would not permit the victim and 5 her parents to go out. Thereafter, when the parents of the victim left Hadapsar Police station, the victim has stated to have told Mr. Sathe the police officer at the police station that she wanted to go home whereupon she telephonically called her parents and when her parents reached the police station, the victim accompanied 10 her parents to their residence and narrated what all had happened on account of which the complaint was lodged and thereafter FIR registered on 6.9.2020 against the accused nos. 1 and 2. The present applicant, was later on impleaded as accused no. 3 during the course of investigation. 15

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The statement of the applicant under section 164 of the Cr. P. C. came to be recorded by learned Magistrate on 16.10.2020 (page 32) in which also, the role which is attributed to the accused no. 3 is only on 28.7.2020, in consonance to what has 20

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been stated in the FIR (page 35). The supplementary statement of the victim was recorded on 27.09.2020 (page 103) in which there is a change in the story of the victim, in as much as in it, the victim states that when she reached the house of the accused No. 2, there was no one there and the accused No. 2, had left the 5 room on account of which the accused No. 1 tried to establish physical relationship with her there, which was declined by her. After some time the accused No. 2 came therewith a girl, who was the accused No. 3 and there was some discussion between the accused persons inter se, thereafter the accused No. 3/applicant came near the victim and told her that now they had go to Hadapsar Police station and what was told to her should be conveyed to the police authorities, which in sum and substance, is the same, as what has been stated in her statement earlier.

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The learned APP, has not been able to point out any other action, attributable to the applicant/accused No. 3 apart from what has been stated above, from anything else in the chargesheet.

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For the sake of better understanding the language used by the victim in relation to the role attributed to the applicant/accused no.3, which is spelt out from the statement of the victim as recorded during the course of investigation, is quoted as under:

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ßdkgh osGkus rsFks x.ks’k f’kans o ,d eqyxh vkyh- x.ks’k Eg.kkyk dh] gh eqyxh R;kph cfg.k e;qjh czkge.ks vkgs- rsFks e;qjh nhid o x.ks’k ;k fr?kkaph ppkZ pkyw gksrh- R;kaP;ke/;s yXukckcr o ek>s vkbZ&ofMykackcr ppkZ pkyw gksrh- R;kuarj e;qjh czkge.ks gh ek>s toG vkyh o eyk Eg.kkyh dh] vkrk bFkwu gMilj iksyhl LVs’kuyk tk;ps vkgs o vkEgh ts lkaxrks rsp iksfylkauk lkaxk;ps ukghrj f’kdzkiwj e/;s vkeps xaqM fQjr vkgsr rs rq>s vkbZ&ofMykauk ek:u Vkdrhy- R;kuarj e;qjh eyk Eg.kkyh dh iksyhl LVs’kue/;s tkÅu lkaxk;ps dh eyk vkbZ&ofMykapk =kl vkgs] rs eyk [kksyhr can d:u Bsorkr] eyk tso.k nsr ukghr- R;kuarj vkEgh gMiljyk iksyhl LVs’kuyk tk;yk fu?kyks] R;kosGh xkMhe/;s x.ks’k f’kans] nhid Bksacjs] e;qjh czkge.ks frpk HkkÅ _”kh czkge.ks o eh vls vkEgh gksrks- iksyhl LVs’ku e/;s xsY;koj lq:okrhyk

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eh ?kkcjysyh gksrs- rsOgk e;qjhus iksfylkyk lkafxrys dh] fgP;k vkbZ&ofMykikalwu fgyk =kl vkgs- e;qjhus eyk iksyhl LVs’kuP;k ckgsj lkafxrys gksrs dh] iksyhl LVs’ku e/khy ih,lvk; ikVhy eWMe frph eS=h.k vkgs- R;keqGs eh ?kkcjys gksrs- iksyhl LVs’kue/;s e;qjhus eyk ckgsj Fkkacfoys o rh Lor% ih,lvkl ikVhy eWMe lkscr ppkZ djhr gksrh- nhid Bksacjs o R;kph cjhp ek.kls ;sFks ckgsjp Fkkacysyh gksrhikVhy eWMe eyk Eg.kkY;k dh] rq bFksp cl rq>s vkbZ&oMhy ;s.kkj vkgsr- e;qjh czkge.ks yk ek>s vkbZ&oMhy gMiljyk vlY;kps letY;koj rh eyk iksyhl LVs’kuP;k ekxP;k nkjkus ckgsj usÅu pkj pkdh xkMhe/;s clowu Bsoysek>s vkbZ&ofMykauh ikVhy eWMe ;kauk fopkjys dh] vkeph eqyxh dksBs vkgs- rj R;k Eg.kkY;k dh] vkEgh rqeP;k eqyhyk jk[kwu clyks vkgs dk ,d lektlsfodk vkyh o frus rqeP;k eqyhyk ?ksÅu xsyh- R;kuarj ikVhy eWMe ;kpak eyk e;qjhP;k Qksuoj Qksu vkyk o R;k eyk Eg.kkY;k dh] rq lq/kkjx`gkr tk] vkbZ&ofMykalkscr tkÅ udksl- R;kuarj e;qjh eyk iksyhl LVs’ku e/;s ?ksÅu vkyh- R;kuarj e;qjhus eyk /kedkfoys dh] vkEgh rqyk ldkGh lkafxrysys rqyk iksfylkaleksj cksykos ykxsy-

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rlsp rh eyk Eg.kkyh dh] rq rls cksyyh ukgh rj rq>s vkbZ&ofMykauk o dks.kkyk ?kjh tkÅ ns.kkj ukgh] vkeph ek.kls ;sFksp fQjr vkgs- _”kh czkge.ks Eg.kkyk dh] eMZj oxSjs vkEgkyk dkgh uohu ukgh- R;keqGs eh iksfylkaleksj ?kkc:u eyk vkbZ&ofMykalkscr tk;ps ukgh vls lkafxrys-Þ

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Thus the role attributed to the applicant/accused No.3 by the victim herself, has to be viewed in light of the statutory provisions, with which the applicant/accused No. 3 has been charged with. Though crime no. 542 of 2020, speaks about offences under Sections 363, 366, 376, 120(B), 195-A, 212 & 34 10 of the IPC and Sections 4, 8 & 12 of the POCSO Act 2012, considering the role attributed to the applicant/accused No. 3, it is only Section 195-A, of IPC which can be attributed to her, as is the position, contended by the learned APP.

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In Salib alias Shalu alias Salim Versus State of U.P. and 15 Others 2023 SCC OnLine SC 947 this is what has been said about the provisions of Sec.195-A IPC and its applicability :

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There is a different angle to this matter. It appears that the investigating agency has invoked Section 195A of the IPC. Section 195A of the IPC reads thus:—

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“ Section 195A. Threatening any person to give false evidence . —Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

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and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”

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A plain reading of the aforesaid provision indicates that if any individual is threatened with any injury to his person, reputation or property and such threats are administered with intent to cause that person to give false evidence, the same would constitute an offence under Section 195A of the IPC. In our opinion, none of the ingredients to constitute the offence punishable under Section 195A of the IPC are disclosed, on plain reading of the FIR and the further statement of the first informant including the statement of the so-called eye witness. The allegation in the FIR is that the accused persons threatened and pressurised the first informant to withdraw her first FIR bearing No. 122 of 2022 registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452

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resply of the IPC. There is nothing to indicate that the accused persons threatened the first informant with intent that the first informant gives false evidence before the Court of law. The later part of Section 195A makes it very clear that false evidence means false evidence before the Court of law. On such false evidence if a person is convicted and sentenced, then the person found guilty of administering threats would be liable to be punished with the same punishment and sentence in the same manner and to the same extent as such innocent person is punished and sentenced. The word “false” in Section 195A should be read in the context with what has been explained in Section 191 of the IPC which falls in Chapter XI - of False Evidence and Offences Against Public Justice. Thus, even if we believe the allegations levelled in the FIR to be true, none of the ingredients to constitute the offence punishable under Section 195A are disclosed. To give threat to a person to withdraw a complaint or FIR or settle the dispute would not attract Section 195A of the IPC.

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In the aforesaid context, we must look into Section 195A of the Code of Criminal Procedure (CrPC). Section 195A of the CrPC reads thus:—

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“ Section 195A. Procedure for witnesses in case of threatening, etc .—A witness or any other person may file a complaint in relation to an offence under section 195A of the Penal Code, 1860 (45 of 1860). ”

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The plain reading of the aforesaid provision indicates that if a witness or any other person receives threats and such

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threats are administered with an intent to cause that person to give false evidence before the Court, then such witness or person can file a complaint in relation to the offence under Section 195A of the IPC. It goes without saying that such complaint has to be lodged before the Court recording the evidence. Section 195A of the CrPC provides a remedy of filing a complaint. “Complaint” means as defined under Section 2(d) of the CrPC which reads thus:—

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“ Section 2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

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Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”

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We are conscious of the fact that Section 195A of the IPC is a cognizable offence. In a cognizable offence, police has power to investigate. We are not going into the question whether the bar of Section 195 of the CrPC would apply to Section 195A of the IPC as we have taken the view that none of the ingredients to constitute the offence punishable under Section 195A of the IPC are disclosed in the facts of the present case.

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However, as observed earlier, the entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of Bhajan Lal (supra). The parameters are:—

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“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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In our opinion, the present case falls within the parameters Nos. 1, 5 and 7 resply referred to above.

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At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking

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vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

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13. In Ram Prakash Chadha / The State of Uttar Pradesh

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Criminal Appeal No. 2395 of 2023 decided by the hon’ble Apex Court on 15/7/2024, the following position has been laid down for the exercise of the power under sec.227 Cr.P.C. :

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“ 12. We have already considered the meaning of the expression “the record of the case and the documents submitted therewith” relying on the decision in Debendra Nath Padhi’s case (supra) only to re-assure as to what are the materials falling under the said expression and thus, available for consideration of an application filed for discharge under Section 227, Cr.PC. In the light of the same, there cannot be any doubt with respect to the position that at the stage of consideration of such an application for discharge, defence case or material, if produced at all by the accused, cannot be looked at all. Once “the record of the case and the documents submitted therewith” are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exactly is the scope of consideration and what should be the manner of consideration while exercising such power.

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The decision in Yogesh alias Sachin Jagadish Joshi v. State of Maharashtra 2 this Court held that the words “not sufficient ground for proceeding against the accused” appearing in Section 227, Cr.PC, postulate exercise of judicial mind on the part of the Judge to the facts of the case revealed from the materials brought on record by the prosecution in order to determine whether a case for trial has been made out. In the decision in State of Tamil Nadu v. N Suresh Rajan & Ors. 3 this Court held that at a 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 materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At this stage, only the probative value of the materials has to be gone into and the court is not expected to go deep into the matter to hold a mini-trial.

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In the decision in BK Sharma v. State of UP 4, the High Court of judicature at Allahabad held that the standard of test and judgment which is finally applied before recording a finding of conviction against an accused is not to be applied at the stage of framing the charge. It is just a very strong suspicion, based on the material on record, and would be sufficient to frame a charge.

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We are in agreement with the said view taken by the High Court. At the same time, we would add that the strong suspicion in order to be sufficient to frame a charge should be based on the material brought on record by the

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prosecution and should not be based on supposition, suspicions and conjectures. In other words, in order to be a basis to frame charge the strong suspicion should be the one emerging from the materials on record brought by the prosecution.

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In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia & Anr .5 , this Court held that the word ‘ground’ in Section 227, Cr.PC, did not mean a ground for conviction, but a ground for putting the accused on trial.

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In P. Vijayan v. State of Kerala and Anr .6 , after extracting Section 227, Cr.PC, this Court in paragraph No.10 and 11 held thus: -

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.......If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it

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is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

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At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

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In paragraph 13 in P. Vijayan’s case (supra), this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Samal 7 which reads thus: -

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“10.…

(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 theevidence for the limited purpose of finding out whether or not a prima facie case against the accused has 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

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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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In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of

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the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227, Cr.PC, and entering into the scope of power under Section 232, Cr.PC, cannot be ruled out as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI 8. Taking note of the language of Section 227, Cr.PC, is in negative terminology and that the language in Section 232, Cr.PC, is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227, Cr.PC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232, Cr.PC, even though the said stage has not reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232, Cr.PC, available only after taking the evidence for the prosecution and examining the accused.

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¶220

Even after referring to the aforesaid decisions, we think it absolutely appropriate to refer to a decision of the Madhya Pradesh High Court in Kaushalya Devi v. State of MP 9. It was held in the said case that if there is no legal evidence, then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending Article 21 of the Constitution of India. While agreeing with the view, we make it clear that the expression ‘legal evidence’ has to be construed only as evidence disclosing prima facie case, ‘the record of the case and the documents submitted therewith’.

¶221

The stage of Section 227, Cr.PC, is equally crucial and determinative to both the prosecution and the accused, we will dilate the issue further. In this context, certain other aspects also require consideration. It cannot be said that Section 227, Cr.PC, is couched in negative terminology without a purpose. Charge sheet is a misnomer for the final report filed under Section 173 (2), Cr.PC, which is not a negative report and one that carries an accusation against the accused concerned of having committed the offence (s) mentioned therein.

¶222

In cases, where it appears that the said offence(s) is one triable exclusively by the Court of Session, the Magistrate shall have to commit the case to the Court of Session concerned following the prescribed procedures under Cr.PC. In such cases, though it carries an accusation as aforementioned still legislature thought it appropriate to provide an inviolable right as a precious safeguard for the

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accused, a pre-battle protection under Section 227, Cr.PC. Though, this provision is couched in negative it obligated the court concerned to unfailingly consider the record of the case and document submitted therewith and also to hear the submissions of the accused and the prosecution in that behalf to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available thereunder. Certainly, if the answer of such consideration is in the negative, the court is bound to discharge the accused and to record reasons therefor. The corollary is that the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from “the record of the case and the documents submitted therewith” against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if ‘the record of the case and the documents submitted therewith’ discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr.PC, it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or

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conjectures, especially not founded upon material available before the Court. We are not oblivious of the fact that normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr.PC. However, when an application for discharge is filed under Section 227, Cr.PC, the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection.”

¶241

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¶243

Applying the above principles to the facts in hand, it would be apparent that considering the only role attributed to the applicant is, as is indicated in what has been quoted above and in view of the position as enunciated in Salib alias Shalu alias Salim 15 Versus State of U.P. and Others (supra), in my opinion, none of the ingredients necessary to constitute the offence punishable under Section 195A of the IPC are disclosed, on plain reading of the FIR and the further statement of the victim including the statement of the so-called witness, as the allegation in the FIR is 20 that the applicant threatened and pressurised the victim, to make false statements against her parents, before the Police Officer and on the victim remaining quiet, she herself had made such

¶244

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¶246

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statement to the police officer on 28.07.2020 and nothing else. There is nothing to indicate that the applicant threatened the victim with intent that the victim gives false evidence before the Court of law as the later part of Section 195A IPC makes it very clear that false evidence means false evidence before the Court of 5 law, as held in Salib alias Shalu alias Salim Versus State of U.P. and Others (supra).

¶248

Though the learned APP has placed reliance upon Ram Dhan Vs State of Uttar Pradesh And Anr, (2012) 5 SCC 536, which holds that it was not necessary that for attracting Section 10 195 of IPC the fabrication of false evidence has to be only inside the Court, as it has been held that it can also be fabricated outside the Court though has been use in the Court, considering the nature of the statement as recorded above, even this position, is not substantiated, on account of which Ram Dhan (supra) would 15 not be attracted. She also relied upon Dr. Nallapareddy Sridhar Reddy Vs State of Andhra Pradesh & Ors, (2020) 12 SCC 467, which is on the proposition to power of the Court alter or add charge, which also is not applicable.

¶249

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¶251

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There is no other role attributed to the applicant, in the entire charge sheet which has been filed. Thus further applying the principles as culled out in Ram Prakash Chadha / The State of Uttar Pradesh (supra) it would be apparent that a case is made out for discharge of the applicant under Section 227 of the Cr.P.C.

¶253

In the result, in view of the discussion above, the impugned order dated 04.01.2024 (page 234), is hereby quashed and set aside and the application below Exhibit 25 filed by the present applicant/accused no. 3 in Special Case No. 396 of 2021, pending before the Special Judge, Pune, is hereby allowed. In the circumstances there shall be no order as to costs.

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(AVINASH G. GHAROTE, J.)

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Mayuri Suresh Bamne v. State of Maharashtra

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Mayuri Suresh Bamne v. State of Maharashtra

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