TaxTMI 
TaxTMI 
2019 (8) TMI 1956
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....rge the appellant­original accused for offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC, appellant- original accused has preferred the present appeal. 3. That the appellant herein - original accused is facing the trial for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. The criminal proceedings were initiated against the appellant herein pursuant to the FIR lodged on 22.11.2013 by the Police Inspector, CID, Crime Branch, Dona Paula for the aforesaid offences alleged to have been committed on 21.11.2013. That the Investigating Officer collected the relevant material/evidence and also recorded the statement of the relevant witnesses including the prosecutrix and thereafter filed the charge­sheet against the appellant for the aforesaid offences. That thereafter, the learned Additional Sessions Judge, Mapusa vide Order dated 07.09.2017 ordered charge to be framed against the appellant for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. 3.1 Feeling aggrieved and dissatisfied with the Order dated 07.09.2017 passed by the learned Additional Sess....
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....of the appellant­original accused that in the present case, the complainant and the Investigating Officer are the same and therefore the entire criminal proceedings have been vitiated. In support of his above submissions, Shri Vikas Singh, learned Senior Advocate appearing on behalf of the appellant­original accused has heavily relied upon the decisions of this Court in the case of Bhagwan Singh v. The State of Rajasthan (1976) 1 SCC 15 as well as the subsequent decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627. 5.6 It is further submitted by Shri Vikas Singh, learned Senior Advocate that as such the decision of this Court in the case of Mohan Lal (Supra) is referred to a larger Bench by a two Judge Bench of this Court vide Order dated 17.01.2019 in the case of Mukesh Singh v. State (Narcotic Branch of Delhi) SLP (Crl.) D. No. 39528 of 2018 and, therefore, if this Court is not inclined to consider/follow the decision of this Court in the case of Mohan Lal (Supra), the present appeal may be kept pending till the decision by a larger Bench in the case of Mukesh Singh (Supra). It is submitted that, however, in the case of Mohan....
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.... charge to be framed against the appellant­original accused. 6.2 Shri Tushar Mehta, learned Solicitor General of India appearing on behalf of the respondents has heavily relied upon the following decisions of this Court in support of his submission that at the stage of Section 227 and/or Section 228 of the CrPC ­ at the stage of framing of the charge, 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 vehemently submitted by Shri Tushar Mehta, learned Solicitor General that it is not obligatory for the Judge, at the stage of framing of the charge, 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. It is vehemently submitted by Shri Tushar Mehta, learned Solicitor General that at the stage of framing of the charge the Court is only required to consider whether there is ground for presuming that the accused has committed the offence and nothing more than that. It is submitted that even it is held by this Court that if, at the....
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....ring its earlier decision in the case of Bhagwan Singh (Supra), however, subsequently, another three Judge Bench of this Court in the case of Varinder Kumar v. State of Himachal Pradesh Criminal Appeal No. 2450­51 of 2010 dated 11.02.2019, (2019) SCC OnLine SC 170 has specifically observed and held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively and that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual facts of the case. It is submitted therefore that in view of the law laid down by this Court in the case of Varinder Kumar (Supra), as in the present case, the criminal prosecution has been initiated prior to the decision of this Court in the case of Mohan Lal (Supra), the criminal proceedings are not required to be quashed and set aside and the appellant­original accused against whom strong grounds are made out for prosecution, is not required to be discharged. 6.6 Making the above submissions and relying upon the above decisions, it is prayed to dismiss the present appeal. 7. In rejoinder and on the reliance based....
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....used is before this Court by way of present appeal. 8.2 That it is mainly contended on behalf of the appellant that in the present case as the complainant and Investigating Officer are the same and therefore in view of the decision of this Court in the case of Mohan Lal (Supra) the entire criminal proceedings are vitiated and therefore the appellant - original accused is to be discharged. However, it is required to be noted that apart from the fact that the decision of this Court in the case of Mohan Lal (Supra) has been doubted and pursuant to the Order passed by this Court dated 17.01.2019 in SLP (Crl.) D. No. 39528 of 2018, the same is referred to the larger Bench. In the subsequent decision in the case of Varinder Kumar (Supra), a three Judge Bench of this Court had an occasion to consider the decision of this Court in the case of Mohan Lal (Supra) and the three Judge Bench of this Court has held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively, it is further held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual fact....
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.... is not required to be considered at this stage, namely, at the stage of framing of the charge. At the stage of framing of the charge, the different considerations would weigh, which are dealt with hereinbelow. 9. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Section 227/228 CrPC is required to be considered. 9.1 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: "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 d....
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....d 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)" (emphasis in original) 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 provis....
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.... 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 ha....
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....hat 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 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. (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."" 9.3 In the case of Mauvin Godinho (Supra) this Court had an....
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....lly 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. 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. 234­35 : SCC p. 9 : SCC (Cri) pp. 613­14, para 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 the evidence for th....
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....the crime. No more need be enquired into." 9.5 Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and t....