MANENDRA PRASAD TIWARI versus AMIT KUMAR TIWARI & ANR. on 12 August 2022

[2022] 13 S.C.R. 174

SUPREME COURT REPORTS

[2022] 13 S.C.R.

MANENDRA PRASAD TIWARI

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v.

AMIT KUMAR TIWARI & ANR.

(Criminal Appeal No. 1210 of 2022)

BAUGUST 12, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDJ. B. PARDIWALA, JJ.]

Penal Code, 1860 – s.376 – Protection of Children from SexualOffences Act, 2012 (POCSO) – ss. 5 and 6 – Code of CriminalCProcedure, 1973 – ss. 397, 482 – Discharge of Accused – ‘X’,delivered a baby and thereafter committed suicide by hanging herself– FIR was registered for the offence punishable u/s 376 of IPC andthe provision of the POCSO Act against the respondent – The specialJudge framed charges for the abovementioned offences against theDrespondent – The accused questioned the legality and validity ofthe order of framing charge by filing the Criminal Revision on theground that the deceased and the accused had developed intimacyfor each other and were in a relationship – The High Court allowedthe Criminal Revision Petition and discharge the accused from thecharges – The High Court discharged the accused charged with theEoffence of rape on the ground of delay in the registration of theFIR – On appeal, held: The High Court recorded no specific findingas regards the age of the deceased – In a case praying for quashingof the charge, the principle to be adopted by the High Court shouldbe that if the entire evidence produced by the prosecution is to beFbelieved, would it constitute an offence or not – The framing ofcharge is not a stage, at which stage the final test of guilt is to beapplied – The Court should not interfere with the order unless thereare strong reasons to hold that in the interest of justice and to avoidabuse of the process of the Court a charge framed against theaccused needs to be quashed – High Court’s conclusion about theGage of the deceased and also as regards the delay in lodging theFIR besides being a premature assessment of evidence, is alsoattributable to the wrong premises on which the High Court’sreasoning is based.

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Allowing the appeal, this Court

HELD: 1. It was mainly argued before the High Court thaton the date of the commission of the offence, the deceased wasmajor and was in a relationship with the accused on her own freewill and volition. The accused could not be said to have committedany offence as alleged. Surprisingly, even the State, to a certainextent, supported the submission canvassed on behalf of theaccused before the High Court. What is relevant to note is thatalthough the High Court has devoted two full paragraphs for thepurpose of recording the submissions as regards the age of thedeceased, yet ultimately no specific finding has been recorded inthat regard by the High Court. The High Court proceededaltogether on a different footing. The High Court thought fit todischarge the accused of all the charges on the ground that therewas delay in lodging the FIR and the entire case put up by theparents of the deceased was doubtful. The impugned order ofthe High Court is utterly incomprehensible. This Court is yet tocome across a case where the High Court has thought fit todischarge an accused charged with the offence of rape on theground of delay in the registration of the FIR. [Paras 19 &20][189-H; 190-A-C]

2. The law is well settled that although it is open to a HighCourt entertaining a petition under Section 482 of the CrPC or arevision application under Section 397 of the CrPC to quash thecharges framed by the trial court, yet the same cannot be doneby weighing the correctness or sufficiency of the evidence. In acase praying for quashing of the charge, the principle to beadopted by the High Court should be that if the entire evidenceproduced by the prosecution is to be believed, would it constitutean offence or not. The truthfulness, the sufficiency andacceptability of the material produced at the time of framing of acharge can be done only at the stage of trial. To put it moresuccinctly, at the stage of charge the Court is to examine thematerials only with a view to be satisfied that prima facie case ofcommission of offence alleged has been made out against theaccused person. It is also well settled that when the petition isfiled by the accused under Section 482 CrPC or a revision Petitionunder Section 397 read with Section 401 of the CrPC seeking for A

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Athe quashing of charge framed against him, the Court should notinterfere with the order unless there are strong reasons to holdthat in the interest of justice and to avoid abuse of the process ofthe Court a charge framed against the accused needs to bequashed. Such an order can be passed only in exceptional casesand on rare occasions. It is to be kept in mind that once the trialBcourt has framed a charge against an accused the trial mustproceed without unnecessary interference by a superior courtand the entire evidence from the prosecution side should beplaced on record. Any attempt by an accused for quashing of acharge before the entire prosecution evidence has come onCrecord should not be entertained sans exceptional cases. [Para21][190-D-H; 191-A-B]

3. The scope of interference and exercise of jurisdictionunder Section 397 of CrPC has been time and again explained bythis Court. Further, the scope of interference under 397 CrPC at Da stage, when charge had been framed, is also well settled. At thestage of framing of a charge, the court is concerned not with theproof of the allegation rather it has to focus on the material andform an opinion whether there is strong suspicion that the accusedhas committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage theEfinal test of guilt is to be applied. Thus, to hold that at the stage offraming the charge, the court should form an opinion that theaccused is certainly guilty of committing an offence, is to holdsomething which is neither permissible nor is in consonance withthe scheme Code of Criminal Procedure. Section 397 CrPC vestsFthe court with the power to call for and examine the records of aninferior court for the purposes of satisfying itself as to the legalityand regularity of any proceedings or order made in a case. Theobject of this provision is to set right a patent defect or an errorof jurisdiction or law or the perversity which has crept in the proceeding. In view of the position of law as discussed above,Gthe impugned order of the High Court could be termed asperverse and not sustainable in law. We refrain from observinganything further in regard to the exact and correct age of thedeceased at the time of commission of the offence as alleged as itmay cause prejudice to the parties in some manner or the other.H

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Procedure

It is for the trial court to determine the correct age on the basisof the evidence that may be led by the prosecution as well as bythe defence. One another disturbing feature of this litigation isthat it is the unfortunate father of the deceased who had to comebefore this Court seeking justice. It was expected of the State tochallenge the illegal order passed by the High Court. Barring afew exceptions, in criminal matters the party who is treated asthe aggrieved party is the State which is the custodian of thesocial interests of the community at large and so it is for the Stateto take all the steps necessary for bringing the person who hasacted against the social interests of the community to book. Yetone another disturbing feature is that the trial court thought fitnot to frame charge against the accused for the alleged offencepunishable under Section 306 of the IPC i.e. abetment to thecommission of suicide. Unfortunately, no one has questioned thatpart of the order of the trial court declining to frame charge forthe alleged offence of abetting the commission of suicidepunishable under Section 306 of the IPC. [Paras 22, 23, 28 &29][191-B-E; 194-G-H; 195-A-C]

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Amit Kapoor and Ramesh Chander (2012) 9 SCC 460 :[2012] 7 SCR 988; State of Maharashtra v. Som NathThapa (1996) 4 SCC 659 : [1996] 1 Suppl. SCR 189 -relied on.

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State of Delhi v. Gyan Devi (2000) 8 SCC 239 : [2000]4 Suppl. SCR 270; Chitresh Kumar Chopra v. State(Government of NCT of Delhi) (2009) 16 SCC 605 :[2009] 13 SCR 230; Thakur Ram and others v. State ofBihar (1966) Cri LJ 700 - referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1210 of 2022.

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AFrom the Judgment and Order dated 02.12.2021 of the High Courtof Madhya Pradesh at Jabalpur in CRR No. 211 of 2021.

Siddharth Singh, Adv. for the Appellant.

Ms. Ankita Choudhary, Dy AG, Swarnendu Chatterjee, Ms. PragyaParijat Singh, Himanshu Nailwal, Ambuj Tiwari, Ms. Deepakshi Garg,BYashwardhan Singh, Sunny Choudhary, Manoj, Advs. for theRespondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

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1. This appeal, by special leave, is at the instance of the originalfirst informant (father of the deceased) and is directed against thejudgment and order passed by the High Court of Madhya Pradesh atJabalpur dated 02.12.2021 in the Criminal Revision Application No. 211of 2021 by which the High Court allowed the revision application filedDby the accused (respondent No. 1 herein) and thereby set aside theorder passed by the trial court framing charge against the accused ofthe offence punishable & discharged him under Section 376 of the IndianPenal Code (for short, “IPC”) and Sections 5 and 6 resply of theProtection of Children from Sexual Offences Act, 2012 (for short,‘POCSO Act”).

EFACTUAL MATRIX

2. The facts of this litigation are quite heart-breaking and at thesame time, more disturbing is the utterly incomprehensible impugnedjudgment of the High Court discharging the accused of the offence ofrape essentially on the ground of delay in the registration of the FirstFInformation Report (FIR).

3. Since this litigation arises from the First Information Report(FIR) registered for the offence punishable under Sections 376 of theIPC and the provisions of the POCSO Act, this Court must ensure thatthe identity of the victim is protected. In such circumstances, the deceasedGvictim shall be referred to as ‘X’.

4. The appellant herein is a resident of the Village Bansati, P.S.Rewa, District Rewa. His family members as on date consists of hiswife, namely Smt. Rani Tiwari, three sons and one daughter. Thedeceased ‘X’ was the eldest child of the first informant. The deceased H

studied up to standard 9[th]. On 27.04.2020 in the morning, the wife of thefirst informant informed that ‘X’ (deceased) had severe pain in herstomach. The first informant thought that there could be a tumor in thestomach of his daughter. The first informant took his daughter ‘X’(deceased) on his motorcycle to the Harsh Hospital situated at Chakghatfor the purpose of medical treatment. They reached the hospital at about10.30 am. ‘X’ was made to sit on a bench outside the hospital. The firstinformant went inside the hospital to speak to Dr. K.B. Shukla. It appearsthat by the time the first informant and Dr. K.B. Shukla could attend to‘X’, she delivered a baby. In such circumstances, the doctor refused toadmit ‘X’ in the hospital. As the first informant relentlessly pleaded beforethe doctor, ‘X’ was ultimately admitted in a minor OT of the hospital. Itappears that thereafter ‘X’ requested a lady sweeper of the hospital,namely, Nirmala Saket to allow her to use her mobile so as to speak toone Amit Tiwari (accused), also a resident of the same village. ‘X’ couldnot use the mobile as Nirmala was left with no balance. It appears thatthereafter ‘X’ disclosed before her father that she had conceived throughAmit Tiwari and would take a room on rent in Chakghat and start livinglife along with Amit & the new born infant. As ‘X’ was admitted in thehospital, the first informant had to arrange for finance and in suchcircumstances, he left for his village to arrange for money. By the timehe returned at 3 pm to the hospital, he was informed by the doctor thathis daughter ‘X’ had committed suicide by hanging herself with a dupttaon the rod of the OT light affixed to the ceiling. The first informantrushed inside the room and noticed that his daughter ‘X’ was hangingand the new born infant was laid on a dressing table in the very sameroom. According to the first informant, his daughter ‘X’ committed suicideout of shame as she had delivered an illegitimate child conceived throughAmit Tiwari (accused).

5. In such circumstances referred to above, the first informantlodged an FIR at the P.S. Chakghat, District Rewa, which came to beregistered as the FIR No. 0064/2020 for the offence punishable underSections 376 and 306 resply of the IPC and Sections 5 and 6 resply ofthe POCSO Act.

6. Upon registration of the FIR, the investigation was undertakenby the police. The further statement of the first informant was recordedby the police under Section 161 of the Code of Criminal Procedure (forshort, “CrPC”). The same reads thus:- AB

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“…On 27.04.2020, in the morning my wife told that ‘X’ issuffering from Stomach pain, I feel that there is tumour in herstomach. On which, I took my daughter to Harsh Hospital,Chakghat on my motorcycle bearing registration no. UP 960200, Honda CD, 100 for treatment. I reached at HarshNursing Home at about 10:30 a.m. and my daughter ‘X’ wasasked to sit outside

….that also on 27.04.2020, my daughter after taking phonefrom the sweeper of Hospital namely Nirmala Saket aftergetting her called through the doctor of Hospital, had talkedwith someone, on which, my daughter ‘X’ told that I talkedwith Amit Tiwari, who is resident of my village, then, he hassaid that we will live together by taking a room in Chakghatand baby boy which she has given birth, is also of Amit if youwill go from here, then Amit will come and will live here bytaking room…

…my daughter has committed suicide by hangingherself due to public shame as a result of giving birth to theillegitimate child of Amit Tiwari. Prior to my daughter did nottell me anything…”

7. The police also recorded the statement of Dr. KrishnavatarShukla of the Harsh Nursing Home, Baghedi, P.S. Chakghat, Rewa.The same reads thus:-

“On 27.04.2020, at about 10:30 P.M., my previouslyacquittance, Manendra Prasad Tiwari, R/o Bahera took hisdaughter ‘X’ Tiwari to my nursing home for treatment due tostomach pain and thereby got her sit under the tin shed outside Hospital, he came to my chamber and thereby requestedto do a check-up of his daughter, on which, on humanitarianground, after approximately half an hour, when I came out ofthe clinic along with Sh. Manendra Tiwari, at the time, deliveryof patient Kumari ‘X’ had been happened, which was normaland she gave birth to a baby boy. Who on the request ofManendra Tiwari, were shifted in O.T. room after cleaningetc. through Dai Nirmala Saket. Also on 27.04.2020, patientKm. ‘X’ brought, mobile phone through sweeper Nirmala Saketfor talking to her home, on which, I sent my mobile phone through sweeper and she said that I don’t know with whomshe talked. Again on 28.04.2020 at about 1:30 p.m. patientKm. ‘X’ again brought mobile phone for talking to her fatherand had gone to village at about 11:00 p.m. thereafter, atabout 3:00 Pm…

…Nirmala Saket told me that patient K. ‘X’ was talkingwith some boy. Km. ‘X’ committed suicide by hanging herselfdue to public sham as a result of giving birth to an illegitimatechild. This is my statement.”

8. The statement of Nirmala Harijan (Dai) was recorded by thepolice. The same reads thus:- “On 27.04.2020, at about 10:30 p.m., in the morning a girlname ‘X’ came for treatment alongwith her father ManendraTiwari, and a father told that she was suffering from tumourand he started talking with doctor Saheb, and he askedKumari ‘X’, to sit on a bench under a tin shed situated outsidethe Hospital. After one hour, when the said girl started crying,then, I went near her and saw that she was suffering fromdelivery pain. When, I reached there at the time child hasbeen come out, on which I cleaned the child and informedthe Dr. Sahib. Thereafter, on the instruction of Dr. Saheb,firstly I took the girl in a room situated updaters. In that room,none another person patient was present. During night, Iremained accompanied with the girl in that room. Thereafter,in the morning the girl came down stairs when I was sweepingdownstairs then the girl said that I won’t stay upstairs, bringmy child down stairs. On which, I took the child downstairsand gave it to the girl. Thereafter, said girl and her child wasshifted in OT room. Thereafter, she begged for mobile phonefrom me, and on inquiry, she did not tell that where she wouldtalk. Since, I had no balance on my mobile phone due towhich, I refused to give. Thereafter, when I told the said fact toDr. Saheb, then, Dr. Saheb gave his mobile, on which, I gave thatphone to that girl, who talked on the mobile phone, but I did nothear that where and with whom she had talked and nor she toldme in this regards. And on the same date i.e. on 28.04.2020, atabout 11 am., a father went to his village.”

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A9. The police statement of Smt. Rani Tiwari, mother of ‘X’(deceased) came to be recorded by the police. The same reads thus:- “On 15.08.2019, my daughter Mrs. ‘X’ told me that I missedmy period and on 07.07.2019 I developed a physicalrelationship with Amit Tiwari. My daughter told me that sheBloves Amit Tiwari and Amit wants to marry me, I also want tomarry him and please do not tell father about it. On27.04.2020, my daughter said that she is suffering fromstomach ache, then also I did not tell anything to my husband.Then me along with my husband took our daughter to theHarsh Hospital situated in Baghdi for her treatment. WeCreached around 10:30 AM, we made ‘X’ sat on bench…”

10. The statement of Smt. Rani Tiwari, mother of the deceasedunder Section 164 of the CrPC also was recorded by the Magistrate.The same reads thus:- D“…Amit Tiwari knew my daughter from the past one and ahalf years. My daughter told me on 07.07.2019, that frompast one and half months I’m not getting my periods and I amcarrying Amit Tiwari’s baby. My daughter informed me thatshe and Amit Tiwari are planning to get married. I went atAmit’s house with the proposal of their marriage, but Amit’sEmother denied for it. On 28.04.2020, ‘X’ had a conversationwith Amit Tiwari over a phone call, where Amit agreed to cometo the Hospital. Me and my husband at around 11:00 AMcame back from the hospital. Amit Tiwari did not come to theHospital. When my and my husband reached the hospital atFaround 02:00 P.M. then she got to know that, ‘X’ hadcommitted suicide and this is my statement.”

11. Prima Facie, the following is discernible from the statementsaforesaid:

(a) The school record indicates that ‘X’ (deceased) was bornGon 20.07.2001; (b)The mother of the deceased in her statement recorded underSection 164 of the CrPC has stated that she was informedby her daughter (deceased) on 07.07.2019 that she hadmissed her period (menstruation) past one and a half month H

MANENDRA PRASAD TIWARI v. AMIT KUMAR TIWARI &ANR. [J. B. PARDIWALA, J.]

and further she had conceived through Amit Tiwari(accused);

(C)‘X’ (deceased) attained majority on 20.07.2019; (d)There appears to be some conflict as regards the exactdate so far as the statement of the mother of the deceasedrecorded by the police under Section 161 of the CrPC isconcerned and the statement recorded by the Magistrateunder Section 164 of the CrPC.

12. Upon the completion of the investigation, the investigatingagency filed charge sheet against the accused (respondent No. 1 herein)for the offences as enumerated above.

13. The case came to be committed to the court of the SpecialJudge, POCSO, District Rewa. The Special Judge proceeded to framethe charge against the accused vide order dated 18.12.2020. The relevantpart of the order reads thus:

“On behalf of the Prosecution, the present Chargesheet hasbeen filed under Section 376, 306 IPC and Section 5/6 ofPOCSO Act and it was argued by the ADPO that the chargesunder the aforesaid Sections be framed against the Accusedbecause in the present case, sufficient evidences are availablein this regard.

On the contrary, it was argued by the Ld. Counsel for theAccused that the offence under Section 306 IPC does notattract against the Accused because, deceased’s fatherManendra Tiwari has stated in his statements that his daughterhanged herself due to public shame as a result of giving birthto an illegitimate child. Similarly, the mother of girl has alsonot stated that her daughter has committed suicide due to thetorture or abatement of someone. No other evidence is alsoavailable to this effect from which, it could appear thatSection 306 IPC attracts in the present case. Therefore, itwas prayed to discharge the Accused from the offence ofSection 306 IPC.

Similarly, it was also argued that the Offence under Section5/6 of POCSO Act does not made out against the accused,because, on the date of occurrence, prosecutrix was a girl A

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aged more than 18 years and if a girl aged more than 18years voluntarily establishes physical relations, then, it doesnot come under the category of crime. In the evidence, thisfact has come on record that the marriage of Accused andProsecutrix had to be solemnized, in this situation, Section376 IPC also do not attract. Therefore, it was also prayed todischarge from both the aforesaid Sections.

In support, case laws of M. Arjunan Vs. State Represented byInspector of Police (2019) 3 SCc 315, Madanmohan SinghVs. State of Gujarat & Ors (2010) 8 SCC 628, Dwarika SinghThakur Vs. State of M.P. Crl., Rev. No. 1678/2011 dated06.03.2013, Union of India Vs. Prafulla Kumar Sanwal(1979) 3 SCC 4, Indrapal Vs. State of M.P. (2001) 10 SCC736, Ude Singh Vs. State of Haryana (2019) 17 SCC 301,Gajadhar Prasad Patel Vs. State of M.P. 2003 (1) MPLJ 605,Ajay Pataudiya Vs. State of M.P. 2003 (4) MPLJ 195,Mangleshwar Singh Vs. State of M.P. 2003 (3) MPLJ 44,Bagdiram Vs. State of M.P. 2005 (40) MPLJ, Vishnu PrasadVs. State of M.P. 2005 (3) MLPJ 23, Madiya @ Mahadev Vs.State of M.P. 2006 (1) MPLJ, have been produced.

Arguments of both the parties were taken into consideration.

The aforesaid case laws were perused.

According to the incident, on 28.04.2020, father of deceasednamely Manendra Tiwari lodged a report in P.S. Chakghat tothis effect that on 27.04.2020, deceased who was 17 yearsold, who is his daughter, he took her to Harsh Hospital,Chakghat for treatment due to complaining Stomach Ache andthereby admitted her in hospital at 10.30 p.m., and she gavebirth to a child at 12.00 p.m. On 28.04.2020, her daughterhanged herself with her Duptta in the hospital. She hascommitted suicide due to giving birth to an illegitimate childand he has suspicion that the illegitimate child of his daughteris of Accused Amit Tiwari.

On the aforesaid information, case was registered and theenquiry was started. During the enquiry, it was found thatAccused had love affair with the deceased, as it appears fromthe statements under Section 16 Cr.P.C. of the Complainant Manendra Tiwari. This fact is also mentioned in his statementthat before death, her daughter told him that she had talkedwith the accused, on which, she had said that he will live withthe deceased by taking a room in Chakghat and his daughteralso said that you go from hospital, Accused will come there.In this manner, it appears that deceased had love affair withthe Accused. Regarding Section 306, it is the case ofprosecution that the girl committed suicide due to guilt as aresult of giving birth to an illegitimate child. Under Section107 IPC, it has been provided regarding the abatement andfor the offence of Section 306 IPC, the facts of Section 107should be extract. If, it is accepted that Accused was bearingthe child of Accused and due to giving birth to an illegitimatechild, deceased committed suicide, then, it is nowhere appearsthat what is the abatement on the part of Accused in the saidsuicide.

The case laws which have been produced on behalf of theAccused for discharging him from the offence of Section 306IPC, which have been mentioned, in this case law also, it hasbeen held that for the offence of Section 306 IPC, the factsof Section 107 IPC should be proved. In the present case, nosuch prima facie evidence has been produced to this effectthat the Accused abated the deceased to commit suicide, infact, according to the prosecution story, when deceased herselftalked with the Accused on phone, then accused said that wewill live together by taking room on rent and he denied refusefrom marriage. In this situation, merely due to stating by theprosecution, whereas, no such ground is available, then thereis no ground available to frame charge under Section 306IPC against the Accused, therefore, Accused is dischargedfrom the offence of Section 306 IPC.

But, so far as the question of discharging from the offence ofSection 376 IPC and Section 5/6 of POCSO Act is concerned,in this regard, the sexual assault with a girl less than the ageof 18 years is committed, then, the POCSO Act attracts andsimilarly Section 376 IPC also attracts.

The entire plea of the defence side is that on the date ofoccurrence, prosecutrix was the girl aged more than 18 years, AB

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due to this reasons, both the aforesaid Sections also do notattract.

In the present case, the Admission Register has been producedregarding the age of the Prosecutrix, in which, her date ofbirth is mentioned as 20.07.2001. In the present case,28.04.2020 has been mentioned as the date of occurrencedue to this reason that on the aforesaid date, deceased gavebirth to the child and deceased committed suicide, but, thestatement of mother of deceased recorded under Section 161Cr.P.C., are enclosed in the present case, in which, she hadstated that on 15.08.2019, her daughter told her that on07.07.2019, Accused had established physical relations withher daughter. In this situation, the Accused establishedphysical relations with the deceased on 06.07.2019 and onthe aforesaid date, the age of deceased was definitely lessthan 18 years i.e. her age is about 17 years 11 months. In thissituation, there is no sense of the fact if the sexual intercourseis done with a girl less than the age of 18 years with herconsent or on the assurance of marriage, in fact, same iscrime under the POCSO Act. Similarly, same is also an offenceunder Section 376 IPC. In this situation, Accused is notdischarged from the offence of Section 376 IPC and Section5/6 of POCSO Act. Therefore, regarding the above, the prayeris hereby dismissed.

Therefore, prima facie sufficient grounds are available toframe charges under Section 376(1) IPC and Section 5(a)(ii)/6 of POCSO Act, against the Accused. Therefore, the chargesunder the aforesaid Sections were framed and same werereadover to the Accused through Video Conferencing. TheAccused denied the crime.

Since, the Accused is confined in Tyonthar Sub-Jail, therefore,the Chargesheet be send to Sub-Jail, Tyonthar for hissignatures and after taking signatures of Accused, same beenclosed in the records.

Put up on 22.12.2020 for Trial programme.”

14. The accused questioned the legality and validity of the aforesaidorder passed by the Special Judge framing charge by filing the Criminal Revision Application No. 211 of 2021 substantially on the ground thatthe deceased and the accused had developed intimacy for each otherand were in a relationship. The deceased being major at the time of theincident could be said to be a consenting party and in such circumstances,the Special court could not have proceeded to frame the charge of rapeagainst the accused.

15. The High Court adjudicated the criminal revision applicationfiled by the accused and allowed the same vide the impugned judgmentand order dated 02.12.2021. The order reads thus:- “The applicant has preferred this criminal revision underSection 397 read with Section 401 of the Code of CriminalProcedure seeking quashment of the order dated 18.12.2020passed by learned Special Judge, POCSO, Tyonthar, DistrictRewa in Special Case No. 156/2020 whereby charge of Section376 of IPC and 5/6 of POCSO Act has been framed againstthe applicant saying that he had developed physical relationswith the deceased and at the relevant point of time, she hadnot attained the majority.

Shri Prakash Upadhyaya, learned counsel for the applicant,on the other hand has criticized the observation made by thetrial Court mainly on the ground that the date of birth of thedeceased, as per her school record was 20.08.2001 and asper her recorded date of birth, she attained the majority on20.08.2019 whereas she has given birth to a child on27.04.2020 with eight months’ pregnancy and according tohim, it makes clear that on the date of developing physicalrelations, the deceased was major. He submits that there is nomaterial available on record to indicate that the presentapplicant had developed physical relations with the deceasedforcefully without her consent. He further submits that eventhere is no suicidal note in which deceased had herselfdisclosed this fact that the present applicant had made physicalrelations with her without her consent and as such, she wasvictim of rape as has been defined under Section 375 of IPC.Learned counsel has also submitted that the case has beenregistered against the present applicant on the basis of thecomplaint made by the mother of the deceased and if thestatements of parents of the deceased are seen, nowhere it is A

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disclosed that the present applicant had forcefully developedphysical relations with the deceased. He submits that evenotherwise, if it is assumed that whatever has been allegedagainst the appellant is correct, it is not established thatphysical relations had been developed by the presentapplicant with the deceased against her consent. Accordingto the learned counsel, as per the date of birth of the deceasedrecorded in her school record and considering the date ofgiving birth to a child after eight months pregnancy, it is clearthat deceased was major on the date when she conceived. Hefurther submits that under such a circumstance, case ofSection 376 of IPC is not made out and the charge has beenframed merely because the trial Court presumed the fact thatas per the statement of parents of the deceased, she was minor.Learned counsel further submits that the date of birth recordedin the school record is a material piece of evidence and thatcannot be discarded for ascertaining the age of the deceasedand, therefore, the learned trial Court has committed an errorin framing the charge of Section 376 of IPC and Section 5/6of POCSO Act.

Shri Devendra Gangrade, learned Panel Lawyer appearingfor the respondent/State on the other hand has opposed thesubmissions made by learned counsel for the applicant andhas read over 161 statement of mother of the deceased thatthe sexual act was committed with the deceased on 07.07.2019and according to her, the deceased at the relevant point oftime was 17 years of age. The statement of mother also revealsthat there was love-affair between the applicant and thedeceased and the deceased told her mother that she wantedto marry the applicant.

According to Shri Upadhyay, learned counsel for theapplicant, the statement of mother of the deceased indicatesthat physical relations developed between the applicant andthe deceased with consent but not otherwise. He submits thatthe age of the prosecutrix cannot be presumed ignoring therecorded date of birth in her school record and on the basisof presumption, offence of Section 376 of IPC and Section 5/6 of POCSO Act is not made out and the applicant cannot be

charged for the said offences. According to him, the orderdated 18.12.2020 passed by the trial Court framing chargeunder Section 376 of IPC and Section 5/6 of POCSO Act is,therefore, not sustainable in the eyes of law and it is liable tobe set aside.

Although the fact regarding delay has not been argued butfrom perusal of the record. It also reflects that the deceasedat the time of death had eight months pregnancy but FIR andcomplaint to the police was not made in time. Even in the lifetime of the deceased she did not approach the police. Thestory as narrated by the mother of the deceased seems to bedoubtful on the ground of delay.

Considering the arguments advanced by the learned counselfor the parties as also meticulously perusing the record, I amalso of the view that the order passed by the court belowdated 18.12.2020, which is impugned in this revision, framingcharge under Section 376 of IPC and Section 5/6 of POCSOAct is not sustainable and is accordingly set aside.Accordingly, the applicant is discharged from the charge ofoffence framed vide Special Case No. 156/2020.”

16. Thus from the aforesaid, it is evident that the accused cameto be discharged from the entire prosecution.

17. In such circumstances referred to above, the original firstinformant (father of the deceased) is here before this Court with thepresent appeal seeking to question the legality and validity of the impugnedorder passed by the High Court.

ANALYSIS

18. Heaving heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is whether the High Court committed anyerror in passing the impugned order.

19. It is pertinent to note at this stage that in the impugned order,the High Court has recorded the submissions made by the learned counselwho appeared on behalf of the accused and the public prosecutor whoappeared on behalf of the State in details. It was mainly argued beforethe High Court that on the date of the commission of the offence, the A

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Adeceased was major and was in a relationship with the accused on herown free will and volition. The accused could not be said to havecommitted any offence as alleged. Surprisingly, even the State, to a certainextent, supported the submission canvassed on behalf of the accusedbefore the High Court. What is relevant to note is that although the HighCourt has devoted two full paragraphs for the purpose of recording theBsubmissions as regards the age of the deceased, yet ultimately no specificfinding has been recorded in that regard by the High Court. The HighCourt proceeded altogether on a different footing. The High Court thoughtfit to discharge the accused of all the charges on the ground that therewas delay in lodging the FIR and the entire case put up by the parents ofCthe deceased was doubtful.

20. At the cost of repetition, we state that the impugned order ofthe High Court is utterly incomprehensible. We have yet to come acrossa case where the High Court has thought fit to discharge an accusedcharged with the offence of rape on the ground of delay in the registrationDof the FIR.

21. The law is well settled that although it is open to a High Courtentertaining a petition under Section 482 of the CrPC or a revisionapplication under Section 397 of the CrPC to quash the charges framedby the trial court, yet the same cannot be done by weighing theEcorrectness or sufficiency of the evidence. In a case praying for quashingof the charge, the principle to be adopted by the High Court should bethat if the entire evidence produced by the prosecution is to be believed,would it constitute an offence or not. The truthfulness, the sufficiencyand acceptability of the material produced at the time of framing of acharge can be done only at the stage of trial. To put it more succinctly, atFthe stage of charge the Court is to examine the materials only with aview to be satisfied that prima facie case of commission of offencealleged has been made out against the accused person. It is also wellsettled that when the petition is filed by the accused under Section 482CrPC or a revision Petition under Section 397 read with Section 401 ofGthe CrPC seeking for the quashing of charge framed against him, theCourt should not interfere with the order unless there are strong reasonsto hold that in the interest of justice and to avoid abuse of the process ofthe Court a charge framed against the accused needs to be quashed.Such an order can be passed only in exceptional cases and on rareoccasions. It is to be kept in mind that once the trial court has framed aH

charge against an accused the trial must proceed without unnecessaryinterference by a superior court and the entire evidence from theprosecution side should be placed on record. Any attempt by an accusedfor quashing of a charge before the entire prosecution evidence hascome on record should not be entertained sans exceptional cases. [seeState of Delhi v. Gyan Devi, (2000) 8 SCC 239].

22. The scope of interference and exercise of jurisdictionunder Section 397 of CrPC has been time and again explained by thisCourt. Further, the scope of interference under Section 397 CrPC at astage, when charge had been framed, is also well settled. At the stage offraming of a charge, the court is concerned not with the proof of theallegation rather it has to focus on the material and form an opinionwhether there is strong suspicion that the accused has committed anoffence, which if put to trial, could prove his guilt. The framing of chargeis not a stage, at which stage the final test of guilt is to be applied. Thus,to hold that at the stage of framing the charge, the court should form anopinion that the accused is certainly guilty of committing an offence, isto hold something which is neither permissible nor is in consonance withthe scheme of Code of Criminal Procedure.

23. Section 397 CrPC vests the court with the power to call forand examine the records of an inferior court for the purposes of satisfyingitself as to the legality and regularity of any proceedings or order madein a case. The object of this provision is to set right a patent defect or anerror of jurisdiction or law or the perversity which has crept in theproceeding.

24. It is useful to refer to judgment of this Court in Amit Kapoorand Ramesh Chander, (2012) 9 SCC 460, where the scope of Section397 CrPC has been succinctly considered and explained. Para 12 and13 resply are as follows:

“12. Section 397 of the Code vests the court with the powerto call for and examine the records of an inferior court forthe purposes of satisfying itself as to the legality and regularityof any proceedings or order made in a case. The object ofthis provision is to set right a patent defect or an error ofjurisdiction or law. There has to be a well-founded error andit may not be appropriate for the court to scrutinize the orders,which upon the face of it bears a token of careful A

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consideration and appear to be in accordance with law. Ifone looks into the various judgments of this Court, it emergesthat the revisional jurisdiction can be invoked where thedecisions under challenge are grossly erroneous, there is nocompliance with the provisions of law, the finding recorded isbased on no evidence, material evidence is ignored or judicialdiscretion is exercised arbitrarily or perversely. These are notexhaustive classes, but are merely indicative. Each case wouldhave to be determined on its own merits.

“13. Another well-accepted norm is that the revisionaljurisdiction of the higher court is a very limited one andcannot be exercised in a routine manner. One of the inbuiltrestrictions is that it should not be against an interim orinterlocutory order. The Court has to keep in mind that theexercise of revisional jurisdiction itself should not lead toinjustice ex facie. Where the Court is dealing with the questionas to whether the charge has been framed properly and inaccordance with law in a given case, it may be reluctant tointerfere in exercise of its revisional jurisdiction unless thecase substantially falls within the categories aforestated. Evenframing of charge is a much advanced stage in theproceedings under the CrPC.”

25. The Court in para 27 has recorded its conclusion and laiddown the principles to be considered for the exercise of jurisdictionunder Section 397 particularly in the context of quashing of charge framedunder Section 228 CrPC. Paras 27, 27(1), (2), (3), (9), (13) resply areextracted as follows:

“27. Having discussed the scope of jurisdiction under these twoprovisions, i.e., Section 397 and Section 482 of the Code and thefine line of jurisdictional distinction, now it will be appropriate forus to enlist the principles with reference to which the courts shouldexercise such jurisdiction. However, it is not only difficult but isinherently impossible to state with precision such principles. Atbest and upon objective analysis of various judgments of this Court,we are able to cull out some of the principles to be considered forproper exercise of jurisdiction, particularly, with regard to quashingof charge either in exercise of jurisdiction under Section397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Courtunder Section 482 of the Code but the more the power, the moredue care and caution is to be exercised in invoking these powers.The power of quashing criminal proceedings, particularly, thecharge framed in terms of Section 228 of the Code should beexercised very sparingly and with circumspection and that too inthe rarest of rare cases.

27.2. The Court should apply the test as to whether theuncontroverted allegations as made from the record of the caseand the documents submitted therewith prima facie establish theoffence or not. If the allegations are so patently absurd andinherently improbable that no prudent person can ever reach sucha conclusion and where the basic ingredients of a criminal offenceare not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulousexamination of the evidence is needed for considering whetherthe case would end in conviction or not at the stage of framing ofcharge or quashing of charge.

27.9. Another very significant caution that the courts have toobserve is that it cannot examine the facts, evidence and materialson record to determine whether there is sufficient material on thebasis of which the case would end in a conviction; the Court isconcerned primarily with the allegations taken as a whole whetherthey will constitute an offence and, if so, is it an abuse of theprocess of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuousprosecution. Where the offence is even broadly satisfied, the Courtshould be more inclined to permit continuation of prosecution ratherthan its quashing at that initial stage. The Court is not expected tomarshal the records with a view to decide admissibility andreliability of the documents or records but is an opinion formedprima facie….”

26. This Court in the case of Chitresh Kumar Chopra v. State(Government of NCT of Delhi), reported in (2009) 16 SCC 605, observedin para 25 as under:- A

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A“25. It is trite that at the stage of framing of charge, the courtis required to evaluate the material and documents on recordwith a view to finding out if the facts emerging therefrom,taken at their face value, disclose the existence of all theingredients constituting the alleged offence or offences. Forthis limited purpose, the court may sift the evidence as it cannotBbe expected even at the initial stage to accept as gospel truthall that the prosecution states. At this stage, the court has toconsider the material only with a view to find out if there isground for “presuming” that the accused has committed anoffence and not for the purpose of arriving at the conclusionCthat it is not likely to lead to a conviction. (See: NiranjanSingh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja& Ors, (1990) 4 SCC 76).”

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27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC659, a three-Judge Bench of this Court explained the meaning of theDword “presume”. Referring to the dictionary meanings of the said word,the Court observed thus:

“32. ...if on the basis of materials on record, a court couldcome to the conclusion that commission of the offence is aprobable consequence, a case for framing of charge exists.ETo put it differently, if the Court were to think that the accusedmight have committed the offence it can frame the charge,though for conviction the conclusion is required to be thatthe accused has commuted the offence. It is apparent thatat (1990) 4 SCC 76 the stage of framing of charge, probativevalue of the materials on record cannot be gone into; theFmaterials brought on record by the prosecution has to beaccepted as true at that stage”.”

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28. In view of the position of law as discussed above, the impugnedorder of the High Court could be termed as perverse and not sustainablein law. We refrain from observing anything further in regard to the exactGand correct age of the deceased at the time of commission of the offenceas alleged as it may cause prejudice to the parties in some manner or theother. It is for the trial court to determine the correct age on the basis ofthe evidence that may be led by the prosecution as well as by the defence.

29. One another disturbing feature of this litigation is that it is theHunfortunate father of the deceased who had to come before this Court

seeking justice. It was expected of the State to challenge the illegalorder passed by the High Court. Barring a few exceptions, in criminalmatters the party who is treated as the aggrieved party is the Statewhich is the custodian of the social interests of the community at largeand so it is for the State to take all the steps necessary for bringing theperson who has acted against the social interests of the community tobook [see Thakur Ram and others v. State of Bihar (1966) Cri LJ700)]. Yet one another disturbing feature is that the trial court thought fitnot to frame charge against the accused for the alleged offence punishableunder Section 306 of the IPC i.e. abetment to the commission of suicide.Unfortunately, no one has questioned that part of the order of the trialcourt declining to frame charge for the alleged offence of abetting thecommission of suicide punishable under Section 306 of the IPC. In suchcircumstances, we do not say anything further in this regard.

30. We find that the High Court’s conclusion about the age of thedeceased and also as regards the delay in lodging the FIR besides beinga premature assessment of evidence, is also attributable to the wrongpremises on which the High Court’s reasoning is based.

31. For the foregoing reasons, this appeal succeeds and is herebyallowed. The impugned order passed by the High Court is hereby setaside. The trial court shall now proceed to put the accused on trial inaccordance with the order framing charge dated 18.12.2020.

32. It is needless to clarify that our observations in this judgmentare prima facie and relevant only for the purpose of deciding the legalityand validity of the impugned discharge order passed by the High Court.The guilt or the innocence of the accused shall be determined by the trialcourt strictly in accordance with the evidence that may be led in thecourse of trial.

33. Pending application, if any, also stands disposed of.

Ankit Gyan

Appeal allowed.

(Assisted by : Rahul Rathi, LCRA)

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