The High Court of J&K while hearing a petition under Section 561 – A has observed that the trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused.
The Court further observed that the trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of offence or not. If the ingredients of any offence are lacking, then the Court has no option but to discharge”
In the instant case, the petitioner had sought quashment of the FIR and the order of the trial Court by virtue of which charge for commission of offences under Sections 376, 323 and 506 RPC was framed against the petitioner by the Court of Learned Sessions Judge, Kishtwar.
Mr. P. N. Raina, Learned Sr. Counsel appearing for the petitioner submitted that the story put forth in the FIR is false and concocted. He submitted that the prosecutrix and the petitioner had been in relationship for more than four years and she always know the factum that the petitioner was married.
He further submitted that there is no mention in the statement of prosecutrix that she was raped on the day of occurrence and the trail Court without any evidence has framed the charges against the petitioner. He referred to the decision of the Supreme Court in case titled Prashant Bharti vs. State of NCT of Delhi 2013 (9) SCC 309 and Pramod Surabhan Pawar vs. State of Maharashtra and Another, 2019 (9) SCC 608.
Observations of the Court:
The Court observed that while considering the issue of framing charge/discharge of the accused, the trial court has to form opinion on the basis of material placed on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not. The material on record would constitute the statement of witnesses, medical report along with other material relied upon by the prosecution. At this stage, the trial Court cannot indulge in critical evaluation of the evidence, as can be done at the time of final appreciation of evidence after the conclusion of trial but the charge can be framed against the accused even when there is strong suspicion about the commission of offence by the accused.
The Court further observed that;
“The trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused. The trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of offence or not. If the ingredients of any offence are lacking, then the Court has no option but to discharge”
The Court referred to the decision of the Hon’ble Apex Court in case titled Dipakbhai Jadgishchandra Patel vs. State of Gujrat ((2019) 16 SCC 547) wherein it has held as under;
“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.”
On another aspect of the case, the Court observed that when there is allegation that the sexual relationships were made on the basis of false promise of marriage, then it has to be established that promise of marriage was a false promise, given in bad faith and with no intention of being adhered to at the time it was given. In the instant case, the prosecutrix indulged in to sexual relationship knowing very well that the petitioner was already married and for all these four years she never made any complaint with regard to the rape committed by the petitioner. More so, it is not the case of the prosecution that the petitioner portrayed himself as an unmarried man and then indulged in to sexual relationship with the petitioner. In that case, certainly he would have been liable for offence of cheating and rape.
The Court held that charge for commission of offence under Section 376 RPC cannot be framed against the petitioner in view of the present facts and circumstances.
The Court held that there is evidence on record that prosecutrix was beaten and threatened as such it partly allowed the petition and set aside the order of the trial Court to the extent of framing of charge for commission of offence of rape.
Mr. P. N. Raina, Sr. Counsel and Mr. J A Hamal, Advocate appeared for the Petitioner
Mr. Sunil Malhotra, appeared for the Respondent (CBI, Jammu).
Sandeep Singh vs UT of J&K – CRMM No. 703/2019