Usha Lyengar Vs. the State of Madhya Pradesh - Court Judgment

1 Cr.R. No.2099/12 & 2008/12 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR SB: HON. SHRI N.K.GUPTA,J CRIMINAL REVISION NO.2099/2012 Usha Iyengar. -Vs- State of MP & another. CRIMINAL REVISION NO.2008/2012 Krishna Kumar Naikar. -Vs- State of MP. In Cr.R.No.2099/2012 Applicant in person. Shri Ajay Tamrakar, Panel Lawyer for the respondent No.1-State. Shri Arvind Shrivastava, Advocate for the respondent No.2. In Cr.R.No.2008/2012 Shri Arvind Shrivastava, Advocate for the applicant. Shri Ajay Tamrakar, Panel Lawyer for the respondent- State. ----------------------------------------------------------------------------------- ORDER

(Passed on the 6th day of February, 2013) This order passed by this Court shall govern disposal of the above mentioned criminal revisions, as both the revisions have arisen out of common impugned order.

2. The applicant-prosecutrix has preferred the criminal revision No.2099/12 against the order dated 29.8.2012 passed by the learned 9th Additional Sessions Judge, Jabalpur in ST No.310/2009 for 2 Cr.R. No.2099/12 & 2008/12 framing of the charges for offence punishable under Sections 420, 467, 468 of IPC against the respondent No.2 (applicant-accused in Cr.R.No.2008/2012). On the other hand, the applicant-accused has preferred the Cr.R.No.2008/12 against the impugned order by which the charges of offence punishable under Sections 452, 376/5011, 506-B read with Section 120-B of IPC were framed against the applicant-accused.

3. The prosecution's case, in short, is that the applicant-accused had lodged an FIR at Police Station Gorakhpur on 16.3.2006 that four accused persons went inside the house of the applicant-accused and threatened him. They held the collar of the applicant- accused and assaulted him, and therefore an offence under Sections 452, 294, 506, 323/34 of IPC was registered vide Crime No.151/2006. On 29.3.2006 the applicant-prosecutrix had sent a written report to the SHO Gorakhpur where upon she was informed about the report lodged by the accused-applicant, but actually on 16.3.2006 at about 1:00 PM various culprits (four accused in the case) went inside the campus of her house by jumping the courtyard wall and tried to kidnap her children and gave a threat that they would kidnap her children and they would commit rape upon her. They also tried to commit rape upon 3 Cr.R. No.2099/12 & 2008/12 her. She was informed that the applicant-accused had also lodged an FIR, and therefore she may be given the copy of that FIR. She requested for the police protection and investigation. Thereafter the applicant- prosecutrix sent various complaints to the Superintendent of Police, Jabalpur, Human Rights Commission etc. By the intervention of Hon'ble the Division Bench of this Court, the case could be registered in the year 2009. The prosecutrix and her children gave their statements under Section 161 of Cr.P.C. in detail. Thereafter a charge sheet was filed and the case was committed to the Sessions Court.

4. I have heard the learned counsel for the parties and the applicant-prosecutrix, who was present in person in the Court. The applicant-prosecutrix has submitted that the accused-applicant was her husband and a divorce took place three years prior to the incident. It was the accused-applicant, who had sent other co-accused persons to commit such an offence and thereafter to dilute their guilt, a false FIR was lodged by the accused-applicant. The prosecutrix- applicant, who appeared in person before this Court has also submitted that the FIR which was lodged by the accused-applicant was nothing, but a forged document and the applicant-accused cheated with the 4 Cr.R. No.2099/12 & 2008/12 prosecutrix to give advantage to other co-accused persons, and therefore it was for the trial Court to frame charges of offence punishable under Sections 420, 467, 468 of IPC against the accused-applicant. The prosecutrix, who appeared in person has invited attention of this Court at the various documents filed by her. She has also submitted that the applicant- accused misused the power of attorney granted by her, and therefore it is prayed that the impugned order may be quashed and the trial Court be directed to enhance the charges of offence punishable under Sections 420, 467 and 468 of IPC.

5. The learned counsel for the applicant- accused has submitted that no offence under Sections 420, 467 and 468 of IPC is made out against the accused-applicant. Also no offence under Section 376/511 of IPC is constituted against any of the accused persons, and therefore no such charge can be framed against the accused-applicant. The learned counsel for the accused-applicant has placed his reliance upon the judgment passed by the Division Bench of this Court in the case of “Bhurji Vs. State of MP”., [2007(1) MPLJ 600 .. It is further submitted by the learned counsel for the accused-applicant that charges may be framed on the basis of the evidence 5 Cr.R. No.2099/12 & 2008/12 collected by the prosecution and the charges of offence punishable under Section 120-B of IPC cannot be framed without overt-act of the concerned accused as available to show his conspiracy. He has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of “Kehar Singh Vs. The State (Delhi Admn.)”. (AIR 198.SC 1883.and the order passed by the Single Bench of the Bombay High Court in the case of “Dr. Dattatraya Narayan Samant Vs. State of Maharashtra”., (1982 Cr.LJ 1025). It was further submitted by the learned counsel for the accused- applicant that if the first FIR of the prosecutrix is perused, then there was nothing against the accused- applicant and thereafter she improved her story from time to time and ultimately she gave her statement after three years of the incident. At present it is not directed by any Court that the FIR lodged by the accused-applicant was false, and therefore no action can be taken against the accused-applicant for that FIR in the present case, and therefore no charges of offence under Sections 420, 467 and 468 of IPC may be added, whereas no offence is made out against the accused-applicant with the help of Section 120-B of IPC. 6 Cr.R. No.2099/12 & 2008/12 6. The learned counsel for the State has submitted that the proceedings initiated and the charges framed by the learned trial Court appear to be correct and there is no reason by which any interference can be done.

7. First of all the revision filed by the prosecutrix-applicant may be considered for the enhancement of the charges. The charges of offence punishable under Sections 467 and 468 of IPC may be framed, if any forgery is done and it is done for the purpose of cheating. Where forgery of valuable security is done, then offence under Section 467 of IPC will be constituted. In the case of “Shaikh Noor Mohamad Shaikh Fazal Vs. State of Maharashtra”., (AIR 198.SC 297.Hon'ble the Apex Court has pointed out that if the document is not forged to be a valuable security, then no offence under Section 467 of IPC shall be constituted. At the most offence under Section 465 of IPC may constitute. In the present case, it is alleged that the forged document was the FIR which is not at all a valuable security, and therefore prima-facie no offence under Section 467 of IPC is constituted against any of the accused persons. To establish forgery, provisions of Section 463 of IPC may be perused, in which it is mentioned that a false 7 Cr.R. No.2099/12 & 2008/12 document is prepared by any method to commit a fraud, then it amounts to be a forgery. Similarly, under the provision of Section 464 of IPC, a description is given about the preparation of false document. If all the three parts of that provisions are considered, then it is necessary that the document is prepared in such a manner so that some marks, seals, signs etc. of other persons should be so used as to resemble with the genuine document. The FIR lodged by the accused- applicant does not fall within the category of false document, because it was the FIR lodged by the accused-applicant himself. His offence may fall within the category of a false report to the police, but such report which was written as told by the accused- applicant does not fall within the category of false document, and therefore it cannot be said that the FIR lodged by the accused-applicant was a forged document. Therefore, no offence under Sections 465, 467, 468 of IPC is made out against the accused- applicant.

8. So far as the offence of false information given to the police is concerned, no action can be taken at this stage. For that offence, unless the police itself finds that a false report was given or the competent Court comes to the conclusion that a false 8 Cr.R. No.2099/12 & 2008/12 report was lodged to the police and there is a procedure given in the Chapter XIV of the Cr.P.C., without that procedure being followed, no charge sheet can be filed for such an offence and no Court can take cognizance of that offence.

9. So far as the offence of cheating is concerned, it was to be proved by the prosecutrix that by filing of that FIR, any wrongful gain was obtained by the accused-applicant. Cheating as defined under Section 415 of IPC requires that there should be some wrongful delivery of any property to any person or there must be some wrongful gain to the accused. By that transaction, ingredients of dishonesty and deceit should be fulfilled there in. The prosecutrix has stated in her case diary statement that the other co-accused persons were sent by the accused-applicant and to give them a clean chit, a false report was lodged by the accused-applicant. However, if the entire transaction is considered, then no offence of cheating is prima-facie made out against the accused-applicant, because the ingredients of offence of the cheating as mentioned under Section 415 of IPC are not present, and therefore no charge under Section 420 of IPC could be framed against the accused-applicant. 9 Cr.R. No.2099/12 & 2008/12 10. At the time of framing of charges, it is to be seen by the trial Court that if the evidence collected by the prosecution is considered as it is without any rebuttal evidence, then whether the accused can be convicted for any offence and if answer is affirmative, then charge of that offence shall be framed. If the evidence adduced by the prosecution is considered as it is, then the accused-applicant cannot be convicted for the offence under Sections 420, 467, 468 directly or read with Section 120-B of IPC, and therefore revision filed by the applicant-prosecutrix cannot be accepted.

11. So far as the revision filed by the accused- applicant is concerned, the part contention of the learned counsel for the accused-applicant may be accepted. If the entire documents along with the statement of the prosecutrix under Section 161 of Cr.P.C. are considered as it is, then there is no allegation against any of the accused that he did any attempt to tear the clothing of the prosecutrix or tried to remove her clothing, and therefore the allegations of the prosecutrix against the accused persons are too vague to form the offence under Section 376/511 of IPC. In the light of the judgment of Hon’ble the Division Bench of this Court in the case of Bhurji 10 Cr.R. No.2099/12 & 2008/12 (supra) there is a difference between the offence under Section 354 and Section 376 read with Section 511 of IPC. Looking to the allegations where it is stated that a threat to commit rape was given by the accused persons, but it is nowhere alleged that either the prosecutrix was undressed or any of the accused undressed himself completely or tried to remove his penis for doing any penetration, and therefore the allegations as alleged in the various documents including the statement of the prosecutrix under Section 161 of Cr.P.C. do not indicate that the offence under Section 376/511 of IPC was constituted. At the most offence under Section 354 of IPC may constitute.

12. The learned counsel for the accused- applicant has cited the judgment passed by Hon’ble the Apex Court in the case of Kehar Singh (supra) to show that as to how the offence under Section 120-B of IPC shall constitute. In the light of the judgment passed in the case of Kehar Singh (supra), if the evidence collected by the prosecution is considered, then it would be apparent that the divorce took place between the prosecutrix and the accused-applicant three years prior to the date of the incident and there was no possibility of his presence in the house of the applicant-prosecutrix at that time. He has accepted his 11 Cr.R. No.2099/12 & 2008/12 presence in the house of the prosecutrix by lodging the FIR. He was not expected to remain there unless he was called. In the FIR he did not give the particulars of his address and reason as to why he went to the courtyard of the house, which was in the possession of the prosecutrix. Under such circumstances, at present the statement of the prosecutrix under Section 161 of Cr.P.C. are duly corroborated by the FIR lodged by the accused-applicant himself, and therefore it appears that all such offences were done by the other co- accused persons in conspiracy with the accused- applicant. At present the appreciation of evidence cannot be done minutely but it should be considered as it is. If the accused-applicant was not present at the spot and he was not interested in causing the incident, then what was the necessity for the accused-applicant to lodge such an FIR against the other co-accused persons for the crime which was not committed with him and it was committed with the prosecutrix. Under such circumstances, at present it cannot be said that no offence is constituted against the accused-applicant with the help of Section 120-B of IPC.

13. The trial Court has appended the charges of offence under Sections 452/120-B, 376/511 read with Section 120-B and Section 506-B/120-B of IPC. Out of 12 Cr.R. No.2099/12 & 2008/12 these charges, it is nowhere clear that the accused- applicant directed the other co-accused persons to commit house trespass, and therefore the conspiracy of the accused-applicant could be with the other co- accused persons that they may outrage the modesty of the prosecutrix and to threaten and harass her, but in the absence of the specific direction that they were directed to enter in the house, it cannot be said that conspiracy of the accused-applicant was present for commission of the offence of house trespass, and therefore no offence under Section 452 of IPC shall be constituted against the accused-applicant either directly or with the help of Section 120-B of IPC.

14. On the basis of the aforesaid discussion, the revision filed by the applicant-prosecutrix is hereby dismissed, whereas the revision filed by the accused- applicant is partly allowed. The order dated 29.8.2012 passed by the 9th Additional Sessions Judge, Jabalpur is hereby set aside. The accused-applicant is discharged from the charges of offence punishable under Sections 376/511 read with Section 120-B and Section 452 read with Section 120-B of IPC. As it is mentioned above that no offence under Section 376/511 of IPC is constituted against any of the accused-persons. At the most offence under Section 354 of IPC may be 13 Cr.R. No.2099/12 & 2008/12 constituted along with the offence under Section 323 of IPC, and therefore looking to the remaining charges, the case is not triable by the Court of sessions, therefore it would be proper for the Additional Sessions Judge to pass an order under Section 228 of Cr.P.C. The attention of the learned Addition Sessions Judge is invited that charges of offence under Section 354/120-B, 506-B/120-B and 323/120-B may be framed against the present accused-applicant, whereas the charges against other co-accused persons shall be considered by the trial Court at the time of passing of the order under Section 228 of Cr.P.C. It is apparent that no offence under Section 376/511 of IPC is made out against any of the accused persons, and therefore the trial Court shall proceed under Section 228 of Cr.P.C.

15. A copy of this order be sent to the trial Court for information and compliance. (N.K.Gupta) Judge 06.02.2013 Ansari.