Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 51 of 2015 Sunil Mishra Son of Navin Chandra Mishra, resident of Adityapur, Dindhi Bagh, PO & PS- Adityapur, District- Seraikela-Kharsawan …. Petitioner --Versus-- The State of Jharkhand …. Opp. Party For the petitioner : M/s. P.A.S. Pati & T.K.Mahato, Advocates For the State : Mr. Suraj Verma, A.P.P. CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. ON:
03. 08/2015 PRONOUNCED ON-23/11/2015 Challenge in this revision application is to the order dated 03.01.2015 passed by the learned Chief Judicial Magistrate, Seraikella in a case arising out of Adityapur P.S. Case No. 300 of 2013 instituted under Section 354(B) of the Indian Penal Code whereby and whereunder the petition filed by the petitioner for his discharge under Section 239 of the Code of Criminal Procedure (in short „the Code‟), has been rejected.
2. The facts giving rise to the present revision application lie in a narrow compass: At the instance of the informant Radha Rani, the aforesaid case was instituted with the allegation that while the informant was passing through Adityapur over bridge on way to Dindli Market, a man called her from behind but she could not understand but when the same man again called her only then she understood that she was being called out. The said man came near her and pulled her Shawl and keeping some sharp edge thing on her abdomen asked her to move on his direction or else would be killed. In the light of motorcycle, she saw the face of the said man, who had chased her earlier also on several occasion. She followed the said man and came near a ditch where she was asked to sit down with some ulterior motive but the informant anyhow pushed the said man and fled away. She disclosed the name of the said person as Sunil Mishra, a shopkeeper in Dindli Market. 2 3. The police on completion of the investigation, submitted the charge sheet against the petitioner under Section 354(B) of I.P.C. Whereafter the cognizance of offence was taken. The petitioner, thereafter, filed a petition under Section 239 of the Code for his discharge but the same was rejected vide order dated 03.01.2015 holding sufficiency of material and prima facie case against the petitioner for framing charge. Hence, this revision.
4. Mr. P.A.S. Pati learned counsel for the petitioner while assailing the order impugned as perverse and bad in law seriously contended that there is absolutely no direct or indirect evidence in the entire case diary showing the involvement of this petitioner in the instant case. It was also submitted that the elements responsible to constitute the offence under Section 354(B) I.P.C. are not available and no overt act has been attributed to the petitioner and that besides the evidence of the victim lady- the informant, there is no other evidence on record to show the complicity of this petitioner rather the informant is a lady of questionable character and it is her profession to lodge cases against the people with a motive to blackmail them and the independent witnesses examined during investigation have also not supported the prosecution version.
5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the court below while rejecting the prayer for discharge of the petitioner relied on different paragraphs of the case diary and found sufficient evidence on record to show the complicity of this petitioner and the scope of this Court under revisional jurisdiction is very limited.
6. Before adverting to the rival submissions, it would be proper to examine the scope and ambit of the power of the court below under Section 239 of the code. The Criminal Procedure Code contemplates the discharge of an accused if the case is triable by a Court of Sessions under Section 227 of the Code but if the case is instituted upon a police report and is triable by a Magistrate then it is covered by Section 239 of the Code. There is basically no difference in 3 a discharge petition filed either under Section 227 or 239 of the Code. The above two provisions of the Code provide that upon consideration of the evidence and the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, if the Courts find a prima facie case and grave suspicion to proceed against the accused, the charge has to be framed but if there is no prima faice case, or suspicion, the Court shall discharge the accused. The settled law at this point is succinctly analyzed by the Hon‟ble Supreme Court in Sajjan Kumar Vs. CBI [(2010) 9 SCC368] wherein the Hon‟ble Court has observed in para 19 as under: “ 19. It is clear that at the initial stage, if there is 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 only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.”
7. In another judgment State through Inspector of Police Vs. A. Arun Kumar and Anr. [ 2015(1) East Cr. C. 450 (S.C.)], the Hon‟ble Supreme Court on consideration of the authorities about the scope of 227 and 228 of the Code, held as follows:- (i) “The Judge while considering the question of framing the charges under Section 227 of the Cr PC 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 4 accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (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. (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. (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. (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. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the materials and documents on record with a view to find out if 5 the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, to 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. (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.”
8. In the light of the aforesaid guidelines and principles settled by the Hon‟ble Supreme Court, I may now consider whether or not in the present case, the court bellow was justified in refusing to discharge the petitioner. However, before adverting to the circumstances relied upon by the prosecution in support of the material available on record to frame charge, it is necessary to examine the essential features of offence alleged against the petitioner. Before I proceed further, a reference of Section 354(B) of I.P.C. is necessary, which reads as follows:- “Section 354(B)-Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.” Apparently, for the purposes of the above provision, the act of disrobing contemplates either the intention of disrobing or compelling her to be naked and in pursuance thereto this intention if that person either himself uses assault or uses criminal force or abets the use of assault or criminal force, he becomes liable for punishment under the above Section. It appears 6 that it is not very relevant whether the accused was successful in either disrobing the woman or compelling the woman to be naked. Merely required action on the part of the accused in either use or abetting the use of assault or criminal force will be sufficient for the purposes of mischief defined in this Section.
9. True, it is that at the time of consideration of the application for discharge, the court cannot act as mouthpiece of the prosecution or act as a post-office and may shift evidence in order to find out whether or not the allegations made are groundless so as to pass the 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 with view to find out whether the facts emerging therefrom taken at their face value discloses the existence of the ingredients to constitute the alleged offence. The Hon‟ble Supreme Court in State through Inspector of Police (supra) has held that the court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court. It is true that at this stage, a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial, is not possible. It is true that besides the evidence of the informant, there is no other evidence on record to corroborate the statement of the informant but so far as the offence under Section 354(B) IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is gravamen of the offence. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant. Hence, I have no hesitation in holding that there is a prima facie case against the petitioner to make out a case under Section 354 (B) of the Indian Penal Code. The court below in the order impugned has though not discussed the ingredients responsible to constitute the offence but, in my opinion, the statement of the informant is enough to proceed against the 7 petitioner. Hence, I do not subscribe to the argument advanced on behalf of the petitioner that no offence is attracted against the petitioner under Section 354(B) of I.P.C.
10. In view of the circumstances discussed above, there is no merit in this criminal revision. It is, accordingly, dismissed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 23rd November, 2015 Ritesh/N.A.F.R.