In CRR No. 476 of 2023, the Chhattisgarh High Court dismissed an applicant's revision challenging a charge framing order in a POCSO case. The applicant argued lack of sufficient material and failure to collect CCTV evidence, but the court found prima facie evidence existed.
The revision petition was dismissed, leaving the order framing charges intact.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 476 of 2023
For Applicant : Mr. Sajal Kumar Gupta on behalf of Mr. Rahul Tamaskar, Adv. For State : Mr. Vinod Tekam, Panel Lawyer.
Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board
06.07.2023
Being aggrieved by the order dated 26.11.2022 passed by the Additional Sessions Judge, FTSC (POCSO), Korba in Special Case (POCSO) No.44/2022 whereby, charge under sections 354, 354 (A), 354 (D) & 324 of the IPC and Section 8 of the POCSO Act has been framed against the applicant, this Revision has been preferred.
2 . Learned counsel for the applicant submits that the charge framed by the trial Court is bad and contrary to law as there is no sufficient material available on record based on which the impugned order has been passed. He also submits that essential CCTV footage upon which applicant is relying has not been collected by the prosecution, therefore, at that time the applicant has filed an application under Section 91 of Cr.P.C. however, the trial Court not exercised its power under the aforesaid Section for summoning the material evidence. He also submits that the prosecutrix has demanded money from the applicant to taking back her complaint and in this regard applicant has made complaint before the Police on
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16.03.2023. Learned counsel relying on the judgment rendered by the Hon’ble Supreme Court in the matter of Nitya Dharmananda alias K. Lenin and Another Vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda and another reported in (2018) 2 SCC 93 . He submits that order of the Court below suffers from material illegality therefore, this revision may be allowed and impugned order may be quashed.
3. On the other hand, learned State Counsel strongly opposes the submission and submits that the prosecutrix who is a minor girl aged about 14 years has categorically made allegation against the present applicant who is aged about 28 years that the applicant forcefully grabbed her hand and molested her by kissing and touching her body with ill intention. Therefore, necessary ingredients for framing of charge are available on record and only strong suspicion is sufficient for framing of charges, therefore, the Revision deserves to be dismissed.
6 . In the matter of Dipakbhai Jagdishchandra Patel v. State of Gujarat reported in ( 2019) 16 SCC 547, law relating to framing of charge and discharge was well discussed at paras-15, 16 & 23 which read as under:-
“15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh [ State of Bihar v. Ramesh Singh , (1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018] wherein this Court has laid down the principles relating to framing of charge and discharge as follows:
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“ 4 . … Reading Sections 227 and 228 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 guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. … If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”
16. In Union of India v. Prafulla Kumar Samal [ Union of India v. Prafulla Kumar Samal , (1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR 1979 SC 366] , after survey of case law, this is what the Court has laid down: (SCC p. 9, para 10)
“ 10 . Thus, on a consideration of the authorities mentioned above, the following principles emerge:
( 1 ) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
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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.
( 3 ) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
( 4 ) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”
7 . Even on the judgment relied upon by the counsel for the applicant in the matter of Nitya Dharmananda (Supra) the Hon’ble Supreme Court rejected the application under Section 91 of Cr.P.C. filed by the accused at the stage of framing of charge which was earlier allowed by the High Court. In the aforesaid judgment following was materially observed in the
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paragraph 8 which reads thus:-
“8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. dehors the satisfaction of the court, at the stage of charge.”
8 . From the aforesaid proposition, it is explicit that when the material produced by the prosecution is sufficient, there is no necessity to the Court to call any other documentary evidence for its satisfaction. In the instant case also, the trial Court has rightly acted in not exercising its power vested under Section 91 of the Cr.P.C. at the stage of charge.
9. In view of the aforesaid analysis and in light of the principles laid down in the matter of Dipakbhai Jagdishchandra Patel (Supra) and having regard to the facts of the case as also considering the charge sheet wherein, prima facie evidence is available to frame the aforesaid charge, this Court is of the opinion that no case is made out for interference in the the order passed by the Court below.
10 . Accordingly, the instant Revision, being bereft of any merits, is
hereby dismissed .
Sd/-
(Deepak Kumar Tiwari) Judge
Ajay
3 issues framed by the court
Whether a revision can be allowed on the ground that CCTV footage was not collected at the stage of framing of charges.
Whether the material available on record was sufficient to frame charges against the applicant.
Whether the refusal to summon additional evidence under Section 91 of CrPC at the charge stage was legally correct.
Colour shows how this judgement treated each authority
Dipakbhai Jagdishchandra Patel v. State of GujaratRelied on¶18
(2019) 16 SCC 547 · Who else cites this
Shailesh Sahu
State Of Chhattisgarh
Deepak Kumar Tiwari
As recorded by the court registry
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