TARUN JIT TEJPAL versus THE STATE OF GOA & ANR. on 19 August 2019

[2019] 10 S.C.R. 675

TARUN JIT TEJPAL

v.

THE STATE OF GOA & ANR.

(Criminal Appeal No. 1246 of 2019)

AUGUST 19, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Code of Criminal Procedure, 1973: ss.227, 228 – Scope ofexercise of power at the stage of framing of charge – In the instantcase, appellant-original accused was facing trial for offences underss.354, 354A, 354B, 341, 342, 376(2)(f) and 376(2)(k), IPC – Chargesheet filed by Investigating officer – Sessions Judge ordered chargesto be framed against the appellant for offences under the aforesaidsections – Appellant filed revision application before the High Court– High Court dismissed the revision application and refused todischarge the appellant of charged offences – Hence the appeal –Discharge was sought on the ground that in the present case, both,the informant and the Investigating Officer were same and, therefore,entire criminal proceedings were vitiated – Reliance was placedupon the decision of this Court in Mohan Lal v. State of Punjab (2018)17 SCC 627 – Held: The submissions made on behalf of the appellantare on merits and are required to be dealt with and considered at anappropriate stage during the course of trial – Some of thesubmissions made on behalf of the appellant on the conduct of thevictim/prosecutrix also are required to be dealt with and consideredat an appropriate stage during trial – The same are not to beconsidered at the stage of framing of the charge – There is amplematerial against the appellant and, therefore, trial court rightlyframed charge against him and the same is rightly confirmed byHigh Court – No interference called for – Further held that appellantshall not be discharged on the ground that in the present case, both,the informant and the Investigating Officer are same, as decisionof this Court in Mohan Lal case shall not be applicable as in thepresent case proceedings were initiated prior to the decision inMohan Lal case – No interference called for – Trial court directedto conclude the trial at the earliest – Penal Code, 1860 – ss.354,354A, 354B, 341, 342, 376(2)(f) and 376(2)(k) – Crime againstwomen.

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ADismissing the appeal and disposing of the M.A., the Court HELD : 1. The decision in the case of Mohan Lal shall notbe applicable to the facts of the case on hand as criminalprosecution has been initiated in the instant case much prior tothe decision in the case of the Mohan Lal. Therefore, the appellantBcannot be discharged at this stage on the said ground mainly thatas the Investigating Officer and the complainant/informant arethe same the trial is vitiated, relying upon the decision of thisCourt in the case of Mohan Lal. Even the decision of this Courtin the case of Bhagwan Singh, relied upon by the Counselappearing on behalf of the appellant-original accused, also shallCnot be of much assistance to the appellant at this stage. In thecase of Bhagwan Singh and after the trial this Court held that asthe complainant herself was the Investigating Officer, the case ofthe prosecution would not be free from doubt. It was the caseafter trial and not at the stage of framing of the charge. WhereDthe complainant himself had conducted the investigation, suchaspect of the matter can certainly be given due weightage whileassessing the evidence on record but it would be completely adifferent thing to say that the trial itself would be vitiated forsuch infraction. Therefore, the said ground is not required to beconsidered at this stage, namely, at the stage of framing of theEcharge. At the stage of framing of the charge, the differentconsiderations would weigh. [Para 8.2] [685-A-H]

2. The submissions made on behalf of the appellant on meritsare required to be dealt with and considered at an appropriatestage during the course of the trial. Some of the submissionsFmade on behalf of the appellant on the conduct of the victim/prosecutrix also are required to be dealt with and considered atan appropriate stage during the trial. The same are not requiredto be considered at this stage of framing of the charge. There ismore than a prima facie case against the accused for which he isGrequired to be tried. There is sufficient ample material againstthe accused and therefore the trial court has rightly framed thecharge against the accused and the same is rightly confirmed bythe High Court. No interference of this Court is called for.[Para 9.5] [694-A-E]

Bhagwan Singh v. The State of Rajasthan (1976) 1 SCC15 ; Mohan Lal v. State of Punjab (2018) 17 SCC627 : [2018] 9 SCR 1006 – held inapplicable.

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Union of India v. Prafulla Kumar Samal (1979) 3 SCC4 : [1979] 2 SCR 229 ; State of Bihar v. Ramesh Singh,(1977) 4 SCC 39 : [1978] 1 SCR 257 ; Stree AtyacharVirodhi Parishad v. Dilip Nathumal Chordia (1989) 1SCC 715 : [1989] 1 SCR 560 ; Amit Kapoor v. RameshChander (2012) 9 SCC 460 : [2012] 7 SCR 988 ; AjaySingh v. State of Chhattisgarh (2017) 3 SCC 330 :[2017] 1 SCR 286 ; Niranjan Singh Karam SinghPunjabi v. Jitendra Bhimraj Bijjaya (1990) 4 SCC76 : [1990] 3 SCR 633 ; State of T.N. v. N. Suresh Rajan(2014) 11 SCC 709 : [2014] 1 SCR 135 ; State v. S.Selvi (2018) 13 SCC 455 ; Mauvin Godinho v. State ofGoa (2018) 3 SCC 358 : [2018] 1 SCR 821 ; VarinderKumar v. State of Himachal Pradesh (2019) SCCOnLine SC 170 – referred to.

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1246 of 2019.

From the Judgment and Order dated 20.12.2017 of the High Courtof Bombay at Goa in Crl. Revision Application No. 60 of 2017.

WithB

M.A. No. 2207/2018 in S.L.P.(Crl) No. 3149-3150/2014.

Vikas Singh, Sr. Adv., Ankur Chawla, Aamir Khan, Aditya Pujari,Bhanu Soodh, Sarvesh Singh Baghel, Advs. for the Appellant.

Tushar Mehta, SG, Pratap Venugopal, Ms. Surekha Raman,CSantosh Salvador Rebello, Ms. Viddusshi, M/s. K J John And Co., Advs.for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.D

D2. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order dated 20.12.2017 passed by High Court of Bombay at Goa inCriminal Revision Application No. 60 of 2017 by which the High Courthas dismissed the said Revision Application preferred by the appellantherein – original accused and has refused to discharge the appellant-original accused for offences under Sections 354, 354A, 354B, 341, 342,E376 (2) (f) and 376 (2) (k) of the IPC, appellant–original accused haspreferred the present appeal.

3. That the appellant herein – original accused is facing the trialfor the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f)and 376 (2) (k) of the IPC. The criminal proceedings were initiatedFagainst the appellant herein pursuant to the FIR lodged on 22.11.2013 bythe Police Inspector, CID, Crime Branch, Dona Paula for the aforesaidoffences alleged to have been committed on 21.11.2013. That theInvestigating Officer collected the relevant material/evidence and alsorecorded the statement of the relevant witnesses including the prosecutrixGand thereafter filed the charge-sheet against the appellant for theaforesaid offences. That thereafter, the learned Additional Sessions Judge,Mapusa vide Order dated 07.09.2017 ordered charge to be framedagainst the appellant for the offences under Sections 354, 354A, 354B,341, 342, 376 (2) (f) and 376 (2) (k) of the IPC.

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3.1 Feeling aggrieved and dissatisfied with the Order dated07.09.2017 passed by the learned Additional Sessions Judge, Mapusaordering charge to be framed against the appellant herein – originalaccused for the aforesaid offences, the appellant herein-original accusedapproached the High Court by way of Revision Application.

3.2 By the impugned Judgment and Order, the High Court hasdismissed the said Revision Application and has refused to discharge theaccused for the offences for which he has been charged. Hence, theappellant-original accused is before this Court by way of present appeal.

4. Shri Vikas Singh, learned Senior Advocate has appeared onbehalf of the appellant herein – original accused and Shri Tushar Mehta,learned Solicitor General of India has appeared on behalf of therespondents.

5. Shri Vikas Singh, learned Senior Advocate appearing on behalfof the appellant-original accused has vehemently submitted that, in thefacts and circumstances of the case, the High Court has materially erredin not exercising the revisional jurisdiction and has materially erred in notdischarging the appellant – original accused from the offences for whichhe has been charged.

5.1 Shri Vikas Singh, learned Senior Advocate appearing on behalfof the appellant-original accused has further submitted that the HighCourt has materially erred in not properly appreciating the scope andambit of powers to be exercised under Section 227 and 228 of the CrPC.

5.2 It is further submitted by Shri Vikas Singh, learned SeniorAdvocate appearing on behalf of the appellant-original accused that thematerial collected during the course of the investigation and the evidenceso far on record do not make out even a prima facie case against theappellant for the offences for which he has been charged.

5.3 Shri Vikas Singh, learned Senior Advocate appearing on behalfof the appellant-original accused has further submitted that even fromthe CCTV footage no case is made out against the appellant for theoffences for which he has been charged.

5.4 Shri Vikas Singh, learned Senior Advocate appearing on behalfof the appellant-original accused has taken us to some WhatsAppmessages by the prosecutrix and has commented upon the same and A

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Ahas submitted that the prosecutrix is not reliable at all and the prosecutrixshall not be believed.

5.5 It is further submitted by Shri Vikas Singh, learned SeniorAdvocate appearing on behalf of the appellant-original accused that inthe present case, the complainant and the Investigating Officer are theBsame and therefore the entire criminal proceedings have been vitiated.In support of his above submissions, Shri Vikas Singh, learned SeniorAdvocate appearing on behalf of the appellant-original accused has heavilyrelied 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 subsequentdecision of this Court in the case of Mohan Lal v. State of PunjabC(2018) 17 SCC 627.

5.6 It is further submitted by Shri Vikas Singh, learned SeniorAdvocate that as such the decision of this Court in the case of MohanLal (Supra) is referred to a larger Bench by a two Judge Bench of thisCourt vide Order dated 17.01.2019 in the case of Mukesh Singh v.DState (Narcotic Branch of Delhi) SLP (Crl.) D. No.39528 of 2018 and,therefore, if this Court is not inclined to consider/follow the decision ofthis Court in the case of Mohan Lal (Supra), the present appeal may bekept pending till the decision by a larger Bench in the case of MukeshSingh (Supra). It is submitted that, however, in the case of Mohan LalE(Supra), this Court has specifically observed and held that if thecomplainant and the Investigating Officer are the same, the trial is vitiated.Therefore, by heavily relying upon the decision of this Court in the caseof Mohan Lal (Supra) and the decision of this Court in the case ofBhagwan Singh (Supra) it is prayed to quash the criminal proceedingsagainst the appellant and discharge the appellant from the offences forFwhich he has been charged.

5.7 Learned counsel appearing on behalf of the appellant- originalaccused has also made submissions on merits. However, in view of thelimited scope of jurisdiction to be exercised at the stage of Sections 227/228 of the CrPC which shall be dealt with hereinbelow, we do not proposeGto go in detail and consider the submissions on merits at this stage aseven otherwise any observation by this Court at this stage in the presentproceedings may ultimately affect either of the parties in the trial.

5.8 Making the above submissions and relying upon abovedecisions, it is prayed to allow the present appeal and quash and set H

aside the impugned Judgment and Order passed by the High Court aswell as the Order passed by the learned Trial Court and discharge theappellant from the offences under Sections 354, 354A, 354B, 341, 342,376 (2) (f) and 376 (2) (k) of the IPC.

6. The present appeal is vehemently opposed by Shri Tushar Mehta,learned Solicitor General of India appearing on behalf of the respondents.

6.1 Shri Tushar Mehta, learned Solicitor General of India appearingon behalf of the respondents has vehemently submitted that in the presentcase, after thorough investigation and thereafter having found the primafacie case against the accused, the Investigating Officer has filed thecharge-sheet against the accused for the offences under Sections 354,354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. It issubmitted that thereafter, after considering the material/evidence onrecord, the learned Trial Court has framed the charge against the accused.It is submitted that thereafter, considering the limited scope of jurisdictionto be exercised at the stage of framing the charge under Section 227/228 of the CrPC, the High Court has rightly refused to discharge theappellant-original accused and has rightly refused to set aside the Orderpassed by the learned Trial Court ordering charge to be framed againstthe appellant-original accused.

6.2 Shri Tushar Mehta, learned Solicitor General of India appearingon behalf of the respondents has heavily relied upon the followingdecisions of this Court in support of his submission that at the stage ofSection 227 and/or Section 228 of the CrPC - at the stage of framing ofthe charge, the truth, veracity and effect of the evidence which theProsecutor proposes to adduce are not to be meticulously judged. Nor isany weight to be attached to the probable defence of the accused. It isvehemently submitted by Shri Tushar Mehta, learned Solicitor Generalthat it is not obligatory for the Judge, at the stage of framing of thecharge, to consider in any detail and weigh in a sensitive balance whetherthe facts, if proved, would be incompatible with the innocence of theaccused or not. It is vehemently submitted by Shri Tushar Mehta, learnedSolicitor General that at the stage of framing of the charge the Court isonly required to consider whether there is ground for presuming that theaccused has committed the offence and nothing more than that. It issubmitted that even it is held by this Court that if, at the initial stage,there is a strong suspicion which leads the Court to think that there is A

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Aground for presuming that the accused has committed an offence then itis not open to the Court to say that there is no sufficient ground forproceeding against the accused.

6.3 It is further submitted by Shri Tushar Mehta, learned SolicitorGeneral that in the present case, there is ample material/evidence onBrecord against the accused and sufficient grounds are available forproceeding against the accused.

6.4 It is further submitted by Shri Tushar Mehta, learned SolicitorGeneral that whatever submissions are made by the learned counselappearing on behalf of the appellant-original accused are on merits ofCthe case and/or they can be said to be of defence which may be availableto the accused and they are not required to be considered at the stage offraming of the charge. And thereafter, it is prayed to dismiss the presentappeal. In support of his above submissions and prayer to dismiss thepresent appeal, Shri Tushar Mehta, learned Solicitor General has heavilyrelied upon the following decisions of this Court :D(i) Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4(Para 10),

(ii) State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (Para 4),(iii) Stree Atyachar Virodhi Parishad v. Dilip NathumalEChordia, (1989) 1 SCC 715,

(iv) Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460,

(v) Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330,

(vi) Niranjan Singh Karam Singh Punjabi v. Jitendra BhimrajFBijjaya, (1990) 4 SCC 76,

(vii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 (Para29 to 31.3),

(viii) State v. S. Selvi, (2018) 13 SCC 455,

(ix) Mauvin Godinho v. State of Goa, (2018) 3 SCC 358.

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6.5 Now, so far as the submissions made by Shri Vikas Singh,learned Senior Advocate appearing on behalf of the appellant-originalaccused that as in the present case the Investigating Officer and thecomplainant are the same and therefore the criminal proceedings are H

required to be quashed and the reliance placed upon the decisions of thisCourt in the case of Bhagwan Singh (Supra) and in the case of MohanLal (Supra) are concerned, it is vehemently submitted by Shri TusharMehta, learned Solicitor General that in the case of Mohan Lal (Supra)this Court was considering its earlier decision in the case of BhagwanSingh (Supra), however, subsequently, another three Judge Bench ofthis Court in the case of Varinder Kumar v. State of Himachal PradeshCriminal Appeal No.2450-51 of 2010 dated 11.02.2019, (2019) SCCOnLine SC 170 has specifically observed and held that the decision ofthis Court in the case of Mohan Lal (Supra) shall be applicableprospectively and that all pending criminal prosecutions, trials and appealsprior to the law laid down in Mohan Lal (Supra) shall continue to begoverned by the individual facts of the case. It is submitted thereforethat in view of the law laid down by this Court in the case of VarinderKumar (Supra), as in the present case, the criminal prosecution hasbeen initiated prior to the decision of this Court in the case of MohanLal (Supra), the criminal proceedings are not required to be quashedand set aside and the appellant-original accused against whom stronggrounds are made out for prosecution, is not required to be discharged.

6.6 Making the above submissions and relying upon the abovedecisions, it is prayed to dismiss the present appeal.

7. In rejoinder and on the reliance based upon the subsequentdecision of this Court in the case of Varinder Kumar (Supra) reliedupon by Shri Tushar Mehta, learned Solicitor General, Shri Vikas Singh,learned Senior Advocate has vehemently submitted that in the case ofVarinder Kumar (Supra) it was not open for the subsequent Bench toobserve and hold that the decision in the case of Mohan Lal (Supra)would be applicable prospectively. It is vehemently submitted by ShriVikas Singh, learned Senior Counsel that only in the case of Mohan Lal(Supra), the Court could have observed and held that the said decisionshall be made applicable prospectively. It is submitted that in the case ofMohan Lal (Supra) the Bench did not observe that the said decisionshall be applicable prospectively. It is submitted that therefore it was notopen for the subsequent Bench to observe and hold that the decision inthe case of Mohan Lal (Supra) would be applicable prospectively. It issubmitted that therefore the decision of this Court in the case of MohanLal (Supra) shall be applicable with full force to the facts of the case on AB

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Ahand and as the complainant and the Investigating Officer are the same,the entire criminal proceedings have been vitiated and therefore it isprayed to allow the present appeal and discharge the appellant from theoffences for which he has been charged.

8. We have heard the learned Counsel for the respective partiesBat length. We have also gone through and considered the Judgment andOrder passed by the High Court as well as the relevant material onrecord.

8.1 At the outset it is required to be noted that after conclusion ofthe investigation, the Investigating Officer had filed the charge-sheetCagainst the accused for the offences under Sections 354, 354A, 354B,341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learnedTrial Court has framed the charge against the appellant-original accusedfor the aforesaid offences, in exercise of its powers under Section 227/228 of the CrPC. Framing of the charge against the accused for theaforesaid offences was the subject matter before the High Court. ByDthe impugned Judgment and Order the High Court has dismissed theRevision Application and has confirmed the Order passed by the learnedTrial Court ordering to frame the charge against the accused for theaforesaid offences. Hence, the appellant-original accused is before thisCourt by way of present appeal.

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8.2 That it is mainly contended on behalf of the appellant that inthe present case as the complainant and Investigating Officer are thesame and therefore in view of the decision of this Court in the case ofMohan Lal (Supra) the entire criminal proceedings are vitiated andtherefore the appellant – original accused is to be discharged. However,Fit is required to be noted that apart from the fact that the decision of thisCourt in the case of Mohan Lal (Supra) has been doubted and pursuantto 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 thesubsequent decision in the case of Varinder Kumar (Supra), a threeJudge Bench of this Court had an occasion to consider the decision ofGthis Court in the case of Mohan Lal (Supra) and the three Judge Benchof this Court has held that the decision of this Court in the case of MohanLal (Supra) shall be applicable prospectively, it is further held that allpending criminal prosecutions, trials and appeals prior to the law laiddown in Mohan Lal (Supra) shall continue to be governed by the H

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individual facts of the case. Therefore, the reliance placed upon thedecision of this Court in the case of Mohan Lal (Supra) by the learnedCounsel appearing on behalf of the appellant-original accused ismisplaced. Now, the submission made by Shri Vikas Singh, learned SeniorAdvocate appearing on behalf of the appellant-original accused that thesubsequent Bench in the case of Varinder Kumar (Supra) could nothave held that the decision of this Court in the case of Mohan Lal(Supra) shall be applicable prospectively is concerned, at the outset, it isrequired to be noted that this Bench is not considering whether in thesubsequent decision in the case of Varinder Kumar (Supra), the Benchcould not have considered the prospective applicability of the decision inthe case of Mohan Lal (Supra) or not? The three Judge Bench of thisCourt held that the decision of this Court in the case of Mohan Lal(Supra) would be applicable prospectively and the same shall not affectcriminal prosecutions, trials and appeals. We are bound by that decision.Therefore, we are of the opinion that the decision of this Court in thecase of Mohan Lal (Supra) shall not be applicable to the facts of thecase on hand as criminal prosecution has been initiated in the presentcase much prior to the decision in the case of the Mohan Lal (Supra).Therefore, the appellant cannot be discharged at this stage on theaforesaid ground mainly that the Investigating Officer and thecomplainant/informant are the same the trial is vitiated, relying upon thedecision of this Court in the case of Mohan Lal (Supra). Even the decisionof this Court in the case of Bhagwan Singh (Supra), relied upon by thelearned Counsel appearing on behalf of the appellant-original accused,also shall not be of much assistance to the appellant at this stage. In thecase of Bhagwan Singh (Supra) and after the trial this Court held thatas the complainant herself was the Investigating Officer, the case of theprosecution would not be free from doubt. It was the case after trial andnot at the stage of framing of the charge. Where the complainant himselfhad conducted the investigation, such aspect of the matter can certainlybe given due weightage while assessing the evidence on record but itwould be completely a different thing to say that the trial itself would bevitiated for such infraction. Therefore, the aforesaid ground is not requiredto be considered at this stage, namely, at the stage of framing of thecharge. At the stage of framing of the charge, the different considerationswould weigh, which are dealt with hereinbelow.

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A9. Now, so far as the prayer of the appellant to discharge him andthe submissions made by Shri Vikas Singh, learned Senior Advocate onmerits 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 anBoccasion to consider in detail the scope of the proceedings at the stageof framing of the charge under Section 227/228 CrPC. After consideringearlier decisions of this Court on the point thereafter in paragraph 29 to31 this Court has observed and held as under:

“29. We have bestowed our consideration to the rival submissionsCand the submissions made by Mr Ranjit Kumar commend us. Trueit is that at the time of consideration of the applications fordischarge, the court cannot act as a mouthpiece of the prosecutionor act as a post office and may sift evidence in order to find outwhether or not the allegations made are groundless so as to passan order of discharge. It is trite that at the stage of considerationDof an application for discharge, the court has to proceed with anassumption that the materials brought on record by the prosecutionare true and evaluate the said materials and documents with aview to find out whether the facts emerging therefrom taken attheir face value disclose the existence of all the ingredientsEconstituting the alleged offence. At this stage, probative value ofthe materials has to be gone into and the court is not expected togo deep into the matter and hold that the materials would notwarrant a conviction. In our opinion, what needs to be consideredis whether there is a ground for presuming that the offence hasbeen committed and not whether a ground for convicting theFaccused has been made out. To put it differently, if the court thinksthat the accused might have committed the offence on the basisof the materials on record on its probative value, it can frame thecharge; though for conviction, the court has to come to theconclusion that the accused has committed the offence. The lawGdoes not permit a mini trial at this stage.

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30. Reference in this connection can be made to a recentdecision of this Court in Sheoraj Singh Ahlawat v. State ofU.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013SC 52] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in OnkarNath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 :(2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawatcase [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013SC 52] , SCC p. 482, para 15)

“15. ‘11. It is trite that at the stage of framing of chargethe court is required to evaluate the material and documentson record with a view to finding out if the facts emergingtherefrom, taken at their face value, disclosed theexistence of all the ingredients constituting the allegedoffence. At that stage, the court is not expected to go deepinto the probative value of the material on record. Whatneeds to be considered is whether there is a ground forpresuming that the offence has been committed and nota ground for convicting the accused has been madeout. At that stage, even strong suspicion founded onmaterial which leads the court to form a presumptiveopinion as to the existence of the factual ingredientsconstituting the offence alleged would justify theframing of charge against the accused in respect of thecommission of that offence.’ (Onkar Nath case [(2008)2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para11)”

(emphasis in original)

31. Now reverting to the decisions of this Court in SajjanKumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC(Cri) 1371] and Dilawar Balu Kurane [Dilawar BaluKurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC(Cri) 310] , relied on by the respondents, we are of the opinionthat they do not advance their case. The aforesaid decisionsconsider the provision of Section 227 of the Code and make itclear that at the stage of discharge the court cannot make a rovingenquiry into the pros and cons of the matter and weigh the evidenceas if it was conducting a trial. It is worth mentioning that the Codecontemplates discharge of the accused by the Court of Sessionunder Section 227 in a case triable by it; cases instituted upon apolice report are covered by Section 239 and cases instituted A

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otherwise than on a police report are dealt with in Section 245.From a reading of the aforesaid sections it is evident that theycontain somewhat different provisions with regard to dischargeof an accused:

31.1. Under Section 227 of the Code, the trial court is required todischarge the accused if it “considers that there is not sufficientground for proceeding against the accused”. However, dischargeunder Section 239 can be ordered when “the Magistrate considersthe charge against the accused to be groundless”. The power todischarge is exercisable under Section 245(1) when, “theMagistrate considers, for reasons to be recorded that no caseagainst the accused has been made out which, if unrebutted, wouldwarrant his conviction”.

31.2. Section 227 and 239 provide for discharge before therecording of evidence on the basis of the police report, thedocuments sent along with it and examination of the accused aftergiving an opportunity to the parties to be heard. However, thestage of discharge under Section 245, on the other hand, is reachedonly after the evidence referred in Section 244 has been taken.

31.3. Thus, there is difference in the language employed in theseprovisions. But, in our opinion, notwithstanding these differences,and whichever provision may be applicable, the court is requiredat this stage to see that there is a prima facie case for proceedingagainst the accused. Reference in this connection can be made toa judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows:(SCC pp. 755-56, para 43)

“43. … Notwithstanding this difference in the position there isno scope for doubt that the stage at which the Magistrate isrequired to consider the question of framing of charge underSection 245(1) is a preliminary one and the test of ‘prima facie’case has to be applied. In spite of the difference in the languageof the three sections, the legal position is that if the trial court issatisfied that a prima facie case is made out, charge has to beframed.”

9.2 In the subsequent decision in the case of S. Selvi (Supra) thisCourt has summarised the principles while framing of the charge at thestage of Section 227/228 of the CrPC. This Court has observed andheld in paragraph 6 and 7 as under:

“6. It is well settled by this Court in a catena of judgmentsincluding Union of India v. Prafulla Kumar Samal [Union ofIndia v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC(Cri) 609] , Dilawar Balu Kurane v. State ofMaharashtra [Dilawar Balu Kurane v. State of Maharashtra,(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , SajjanKumar v. CBI[Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010)3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. ArunKumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC(L&S) 505] , Sonu Gupta v. Deepak Gupta [SonuGupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri)265] , State of Orissa v. Debendra Nath Padhi [State ofOrissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC(Cri) 688] , Niranjan Singh Karam Singh Punjabi v. JitendraBhimraj Bijjaya [Niranjan Singh Karam SinghPunjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991SCC (Cri) 47] and Supt. & Remembrancer of LegalAffairs v. Anil Kumar Bhunja [Supt. & Remembrancer of LegalAffairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC(Cri) 1038] that the Judge while considering the question of framingcharge under Section 227 of the Code in sessions cases (which isakin to Section 239 CrPC pertaining to warrant cases) has theundoubted power to sift and weigh the evidence for the limitedpurpose of finding out whether or not a prima facie case againstthe accused has been made out; where the material placed beforethe court discloses grave suspicion against the accused whichhas not been properly explained, the court will be fully justified inframing the charge; by and large if two views are equally possibleand the Judge is satisfied that the evidence produced before himwhile giving rise to some suspicion but not grave suspicion againstthe accused, he will be fully within his rights to discharge theaccused. The Judge cannot act merely as a post office or amouthpiece of the prosecution, but has to consider the broadprobabilities of the case, the total effect of the statements and the A

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documents produced before the court, any basic infirmitiesappearing in the case and so on. This however does not meanthat the Judge should make a roving enquiry into the pros andcons of the matter and weigh the materials as if he was conductinga trial.

7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of thevarious decisions about the scope of Sections 227 and 228 of theCode, laid down the following principles: (SCC pp. 376-77, para21)

“(i) The Judge while considering the question of framing thecharges under Section 227 CrPC has the undoubted power tosift and weigh the evidence for the limited purpose of findingout whether or not a prima facie case against the accused hasbeen made out. The test to determine prima facie case woulddepend upon the facts of each case.

(ii) Where the materials placed before the court disclose gravesuspicion against the accused which has not been properlyexplained, the court will be fully justified in framing a chargeand proceeding with the trial.

(iii) The court cannot act merely as a post office or amouthpiece of the prosecution but has to consider the broadprobabilities of the case, the total effect of the evidence andthe documents produced before the court, any basic infirmities,etc. However, at this stage, there cannot be a roving enquiryinto the pros and cons of the matter and weigh the evidence asif he was conducting a trial.

(iv) If on the basis of the material on record, the court couldform an opinion that the accused might have committed offence,it can frame the charge, though for conviction the conclusionis required to be proved beyond reasonable doubt that theaccused has committed the offence.

(v) At the time of framing of the charges, the probative valueof the material on record cannot be gone into but before framinga charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission ofoffence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is requiredto evaluate the material and documents on record with a viewto find out if the facts emerging therefrom taken at their facevalue disclose the existence of all the ingredients constitutingthe alleged offence. For this limited purpose, sift the evidenceas it cannot be expected even at that initial stage to accept allthat the prosecution states as gospel truth even if it is opposedto common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion, the trialJudge will be empowered to discharge the accused and at thisstage, he is not to see whether the trial will end in conviction oracquittal.””

9.3 In the case of Mauvin Godinho (Supra) this Court had anoccasion to consider how to determine prima facie case while framingthe charge under Section 227/228 of the CrPC. In the same decision thisCourt observed and held that while considering the prima facie case atthe stage of framing of the charge under Section 227 of the CrPC therecannot be a roving enquiry into the pros and cons of the matter andweigh the evidence as if he was conducting a trial.

9.4 At this stage the decision of this Court in the case of StreeAtyachar Virodhi Parishad (Supra) is also required to be referred to.In that aforesaid decision this Court had an occasion to consider thescope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in theaforesaid decision are as under :

“11. Section 227 of the Code of Criminal Procedure having bearingon the contentions urged for the parties, provides:

“227. Discharge.—If, upon consideration of the record of thecase and the documents submitted therewith, and after hearingthe submissions of the accused and the prosecution in this behalf,the Judge considers that there is no sufficient ground forproceeding against the accused, he shall discharge the accusedand record his reasons for so doing.”

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12. Section 228 requires the Judge to frame charge if he considersthat there is ground for presuming that the accused has committedthe offence. The interaction of these two sections has alreadybeen the subject-matter of consideration by this Court. In Stateof Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri)533 : (1978) 1 SCR 257] , Untwalia, J., while explaining the scopeof the said sections observed: [SCR p. 259 : SCC pp. 41-42 : SCC(Cri) pp. 535-36, para 4]

Reading the two provisions together in juxtaposition, as theyhave got to be, it would be clear that at the beginning and theinitial stage of the trial the truth, veracity and effect of theevidence which the Prosecutor proposes to adduce are not tobe meticulously Judged. Nor is any weight to be attached tothe probable defence of the accused. It is not obligatory forthe Judge at that stage of the trial to consider in any detail andweigh in a sensitive balance whether the facts, if proved, wouldbe incompatible with the innocence of the accused or not. Thestandard of test and judgment which is to be finally appliedbefore recording a finding regarding the guilt or otherwise ofthe accused is not exactly to be applied at the stage of decidingthe matter under Section 227 or Section 228 of the Code. Atthat stage the court is not to see whether there is sufficientground for conviction of the accused or whether the trial issure to end in his conviction. Strong suspicion against theaccused, if the matter remains in the region of suspicion, cannottake 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 theaccused has committed an offence then it is not open to thecourt to say that there is no sufficient ground for proceedingagainst the accused.

13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] , Fazal Ali, J.,summarised some of the principles: [SCR pp. 234-35 : SCC p. 9 :SCC (Cri) pp. 613-14, para 10]

“(1) That the Judge while considering the question of framingthe charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose offinding out whether or not a prima facie case against theaccused had been made out.

(2) Where the materials placed before the court disclose gravesuspicion against the accused which has not been properlyexplained the court will be fully justified in framing a chargeand proceeding with the trial.

(3) The test to determine a prima facie case would naturallydepend upon the facts of each case and it is difficult to laydown a rule of universal application. By and large however iftwo views are equally possible and the Judge is satisfied thatthe evidence produced before him while giving rise to somesuspicion but not grave suspicion against the accused, he willbe fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of theCode the Judge which under the present Code is a senior andexperienced court cannot act merely as a post office or amouthpiece of the prosecution, but has to consider the broadprobabilities of the case, the total effect of the evidence andthe documents produced before the court, any basic infirmitiesappearing in the case and so on. This however does not meanthat the Judge should make a roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting a trial.”

14. These two decisions do not lay down differentprinciples. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC(Cri) 609 : (1979) 2 SCR 229] has only reiterated what has beenstated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri)533 : (1978) 1 SCR 257] . In fact, Section 227 itself containsenough guidelines as to the scope of enquiry for the purpose ofdischarging an accused. It provides that “the Judge shall dischargewhen he considers that there is no sufficient ground for proceedingagainst the accused”. The “ground” in the context is not a groundfor conviction, but a ground for putting the accused on trial. It is inthe trial, the guilt or the innocence of the accused will bedetermined and not at the time of framing of charge. The court,therefore, need not undertake an elaborate enquiry in sifting and AB

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Aweighing the material. Nor is it necessary to delve deep into variousaspects. All that the court has to consider is whether the evidentiarymaterial on record if generally accepted, would reasonably connectthe accused with the crime. No more need be enquired into.”

9.5 Applying the law laid down by this Court in the aforesaidBdecisions and considering the scope of enquiry at the stage of framing ofthe charge under Section 227/228 if the CrPC, we are of the opinion thatthe submissions made by the learned Counsel appearing on behalf of theappellant on merits, at this stage, are not required to be considered.Whatever submissions are made by the learned Counsel appearing onbehalf of the appellant are on merits are required to be dealt with andCconsidered at an appropriate stage during the course of the trial. Someof the submissions may be considered to be the defence of the accused.Some of the submissions made by the learned Counsel appearing onbehalf of the appellant on the conduct of the victim/prosecutrix are requiredto be dealt with and considered at an appropriate stage during the trial.DThe same are not required to be considered at this stage of framing ofthe charge. On considering the material on record, we are of the opinionthat there is more than a prima facie case against the accused for whichhe is required to be tried. There is sufficient ample material against theaccused and therefore the learned Trial Court has rightly framed thecharge against the accused and the same is rightly confirmed by theEHigh Court. No interference of this Court is called for.

10. In view of the above and for the reasons stated above, thepresent appeal fails and as a result the appeal stands dismissed.Considering the fact that the allegations against the appellant of sexualabuse are very serious and affecting the dignity of a woman and is theFmost morally and physically reprehensible crime in a society, an assaulton the mind and privacy of the victim and the trial for such offences arerequired to be decided and disposed of at the earliest and consideringthe fact that in the present case the learned Trial Court has framed thecharge against the accused and the incident is of 2013 and there is alreadyGa delay in concluding the trial because of the pending proceedings, wedirect the learned Trial Court to conclude the trial at the earliest within aperiod of six months from the date of receipt of the Order of this Court.All concerned are directed to cooperate with the Trial Court in the earlierdisposal of the trial and within the stipulated time observed hereinabove.

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TARUN JIT TEJPAL v. THE STATE OF GOA & ANR.[M. R. SHAH, J.]

With these observations present appeal stands dismissed. Pendingapplication(s), if any, stand(s) disposed of.

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MA No.2207 of 2018 in SLP (Crl.) No.3149-3150 of 2014

The present MA has been filed in a disposed of matter in SLP(Crl.) No.3149-3150 of 2014 with the prayer to direct the Trial Court toBrelease the passport of the applicant so as to enable him to travel toLondon anytime between 21.08.2018 to 01.09.2018. Since that period isalready over, the present MA has become infructuous and is disposed ofas such.

Devika Gujral

Appeal dismissed and M.A. disposed of.

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