R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.881/2018 BETWEEN:
State of Karnataka by Kamakshipalya Police Station Bangalore. ...Petitioner (By Sri. V.M. Sheelavant, SPP-1) AND:
Nagarajaiah B.R. S/o Ramaiah B Aged abut 48 years R/at No.6, II Floor 5th Main, Kurubarahalli Bangalore-86. ... Respondent (By Sri. S. Rajashekar, Advocate) This Criminal Revision Petition is filed under Section 307 read with 401 of Cr.P.C. praying to allow the above revision petition and set aside the aforesaid order dated 12.03.2018 in S.C.No.1224/2016 on the file of the LIII Additional City Civil and Sessions Judge, Bangalore.
This Criminal Revision Petition coming on for final hearing, this day, the Court made the following:
O R D E R This petition is filed by the State challenging the order passed by LIII Additional City Civil and Sessions Judge, Bengaluru in S.C.No.1224/2016 dated 12.03.2018.
2. I have heard Sri V.M. Sheelavant, learned SPP-I for the petitioner-State and Sri S. Rajashekar, learned counsel for respondent-accused.
3. The gist of the complaint is that since 4 years, the complainant was residing in the given address along with her son Chandu who is aged about 11 years. The accused helped her in filing the case against her husband and in that context, he came in close contact. As he was working as a driver in Kanija Bhavan, he told that he know politicians and he will help her and persuaded and made her to file a complaint against her husband and thereafter, they started living separately. At that time, the accused took her phone number and used to talk over phone and after coming to know that she is staying alone in the house about four years back, at about 10.30 p.m., the accused went to her house and closed the door and he talked rubbishly and by putting the cloth in her mouth and tied her hands, against her will, he undressed her and sexually assaulted and thereafter, he took the nude photographs and threatened her that if she tells the said issue to anybody, he will upload the said nude photographs into facebook, twitter and also in general T.V. He also threatened her that he will inform her husband and in that way, he threatened. Due to the threat, she does not file any complaint against the petitioner-accused. By taking advantage of the said situation, the accused used to often visit the house of the complainant and used to have sex. Thereafter, the complainant shifted her residence and the accused traced her without telling, he came to the house and by abusing, he had a sexual act with her for 4-5 times and he also showed the photographs taken in the mobile and told that if she is not going to hear what he says, he will send these photographs to her sister’s and husband’s house and he also used to ask her to consume alcohol and to eat non-vegetarian food. Against her will, he used to ill treat her by putting the said articles on her body.
4. It is further alleged that on 05.03.2016 at about 9.20 P.M., when she was alone in the house, the accused came to her house and told that her nude photographs will be sent to her husband, their family members and sister and also to the general public and also threatened her that he will kidnap her son Chandu and he will finish him and at that time, she made a hue and cry. The neighbours by name Harish and his wife Vanitha came and the accused escaped from that place and on the same day night at about 11.30 p.m, some friends were there in the house of her sister. At that time, the accused called to her mobile and threatened her that he is going to commit the murder of her family members and also throw acid on her and if she wants the photographs, she has to hear what he says and also demanded Rs.5,00,000/- (Rupees five lakhs only). If it is not paid, he is going to kill her. Because of fear, she has filed a complaint belatedly.
5. On the basis of the complaint, the case was registered in Crime No.99/2016 for the offences punishable under Sections 376 and 506 of IPC. After investigation, the charge sheet has been filed. The Trial Court committed the case to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused and the accused appeared and he has filed an application under Section 227 of Cr.P.C. to discharge.
6. After hearing the learned Public Prosecutor and the learned counsel appearing on behalf of the accused, impugned order came to be passed discharging the accused from the charges leveled against him.
7. It is the contention of the learned SPP-I that the impugned order of the Trial Court is illegal, contrary to law and probabilities of the case and as such, it is liable to be set aside. It is his further contention that the Court below without considering the charge sheet material placed by the prosecution in its right perspective, has swayed away by the contentions contended by the learned counsel for the accused. It is his further submission that delay has been explained properly about delay in filing the complaint.
8. It is his further submission that though the prosecution has produced the C.D. containing the conversation between the accused and the complainant, the Trial Court without looking into the said material, it has come to the conclusion that there is no prima-facie material to discharge the accused, which has held injustice to the case of the prosecution.
9. It is his further submission that the delay has been properly explained by the complainant in her complaint as to under what circumstances she filed complaint belatedly. Without looking into the said aspect, the Trial Court has come to a wrong conclusion and has wrongly discharged the accused.
10. He further submitted that it is not just and proper by the Court below to meticulously gone through the material and come to the conclusion that there is no prime-facie material as against the accused. It is his further submission that the Court below has got undoubted power and to shift and weigh the evidence for limited purpose for making out whether prime-facie case has been made out as against the accused or not. It is his further submission that the Court has to see whether there is a prime-facie material as against the accused at the time of framing of charge.
11. The Trial Court without doing the said act has erroneously analyzed the entire material and has come to the conclusion that there is no prime-facie material as against the accused and discharged the accused by holding that the case of the prosecution does not stands for any reason.
12. It is his further submission that if two views are possible and if one raise the suspicion, then under such circumstances, the Court is not empowered to discharge the accused. In that light, he prays to allow the petition and to set aside the impugned order passed by the Trial Court.
13. Per contra, the learned counsel for the respondent-accused vehemently argued and submitted that there is an inordinate delay of four years in filing the complaint. No proper explanation has been made. It is his further submission that the first incident has taken place during the year 2013 and the complaint has been filed in the year 2016. The complainant is not an illiterate woman and she knew the consequences. She is aged about 28 years. The doctor who has examined the victim has clearly stated that there were no injuries or signs of injuries on her body but she has alleged that she has been ill treated and injuries have been caused.
14. It is his further submission that though the last incident had taken place on 05.03.2016, the complaint was registered on 09.03.2016. Even immediately the complaint has not been filed. In that light, there is no explanation made by the complainant as well as the prosecution. It is his further submission that if the entire material is looked into, it would clearly goes to show that it was a consensual sex and only with an intention to harass, a false complaint has been registered. It is further submitted that the Trial Court after considering all the material placed on record has come to the right conclusion and rightly discharged the accused. There are no good grounds to interfere with the order of the Trial Court. On these grounds, he prayed to dismiss the petition.
15. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the original records which have been secured from the Trial Court without disclosing the aspect of this case. The first and foremost contention taken by the learned counsel for the respondent-accused is that there is an inordinate delay of four years in filing the complaint. Though the first incident has taken place in the year 2013, no complaint has been registered by the complainant. It is his further contention that she is educated and she knew the worldly affairs and the consequences and no injuries are found over the body of the complainant. But it is the specific contention of the learned SPP-I that the complaint itself has clearly explained under what circumstances the disclosing it. On that count, there is a delay in filing the complaint. As could be looked from the factual matrix of the case, the delay is not going to vitiate the prosecution case, which has been discussed by the Hon’ble Apex Court in the case of P. Rajagopal and others vs. State of T.N., reported in (2019) 5 SCC 403 wherein at para No.12 it has been observed as under:
“12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala [Apren Joseph v. State of Kerala, (1973) 3 SCC 114 : 1973 SCC (Cri) 195] and Mukesh v. State (NCT of Delhi) [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673]”
On close reading of the said decision of the Hon’ble Apex Court, it has been observed that the Court may reject the case of the prosecution as there is inordinate delay in lodging the complaint and sending the FIR, as there is possibility of concoction of the evidence by the prosecution. It is further observed that if delay has been satisfactorily explained, the Court will have to decide the matter on merits without giving much importance to the said delay. As could be seen from the complaint the complainant clearly stated that when the first incident took place at about 10.30 P.M., the accused has threatened and forcibly had a physical contact with her and at that time, he has taken the nude photographs and also threatened that if she reveals the said fact to anybody, he will upload the nude photographs in social media and other publications. She further states that because of the fear, she does not take any steps. Subsequently, the accused has threatened her and about 4-5 times, he had physical contact with the complainant. Even as could be seen from the last incident she has narrated that on 05.03.2016 at about 9.20 P.M., when she was alone in the house, the accused came there and threatened her that he is going to send nude photographs to her sister and also threatened her that he will kidnap her son Chandu and he will finish him and at that time, she made a hue and cry. The neighbours by name Harish and his wife Vanitha came and the accused escaped from that place and thereafter, the accused called her over mobile at about 11.30 P.M. and threatened that he is going to murder her family members and her and also put acid and send the photographs. The accused also demanded Rs.5,00,000/- (Rupees Five lakhs only) and in default, she is going to be murdered. All these materials clearly go to show that case of threat existing since from the beginning that accused is going to publish the nude photographs of her in public media and then under such circumstances, the non filing of the complaint is not considered to be a fatal evidence and vitiating the case of prosecution. This aspect has not been properly looked into by the Trial Court and only because of there is a delay, it has come to the conclusion that it is a consensual sex and the complainant is major and she was knowing all the consequences and in that light, the accused has been discharged.
16. During the course of argument before this Court, it is further observed that the C.D. has been produced along with the charge sheet material. In the order of the Trial Court, there is no whisper of anything, what is the contents of C.D. and whether it is going to be helpful to the accused or to the complainant and other aspect. Without looking into the material, the Trial court has come to the conclusion that there is no prime-facie material as against the accused, this clearly goes to show that the Court below without application of mind to the facts and circumstances of the case has been swayed away by the submissions made by the learned counsel for the accused. If there is a duress or threat and it has been renewed by time and again and in the course of activities and in that context, if she had physical contact with the accused, then under such circumstances, it can be held as a consensual sex. This aspect has also not been appreciated by the Trial Court.
17. I am conscious of the fact that the Trial Court has to consider whether there is a prime-facie case as against the accused. The threat would determine the prima-facie case or not is naturally depend upon the facts of each case and no straight jacket formula or universal law can be made applicable in this behalf.
18. It is well settled proposition of law in the case of Union of India v. Prafulla Kumar Samal, and another reported in (1979) 3 SCC 4 that whether the material placed before the Court discloses a grave suspicion as against the accused, which has not been properly explained, the Court will be fully justified in framing of charge and proceeding with the trial. It is further observed in the decision itself that, if two views are equally possible and it can and not grave suspicion against the accused, then the Court is going to discharge. At para No.10 of the said decision, it has been observed as under:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
19. It has been subsequently reiterated in the decision of the Hon’ble Apex Court in the case of Dipakbhai Jagadishchandra Patel vs. State of Gujarath reported in 2019 SCC online SC 588 wherein, at para No.23, it is observed as under:
“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”
In the said para, it is observed that, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. A strong suspicion that has premised on some material which is sufficient to entertain the prime-facie view that the accused has committed the offence.
20. It is also well settled proposition of law that the Court is entitled to entertain the application filed under Section 227 of Cr.P.C and to discharge the accused. But a caveat is there to the Court that even if the entire prosecution material if it is un-rebutted even then the case of the prosecution does not point out the guilt of the accused then under such circumstances, the Court below is at liberty to discharge the accused. As could be seen from the material placed on record, even the neighbours Harish and Vanitha, they have categorically stated that they heard the galata from the house of the complainant and at that time, the accused escaped from that particular place.
21. In that light, the decision taken by the Trial Court appears to be not proper and there is no proper application of mind and appreciation of the facts. In that light, I am of the considered opinion that the State has made out a case to interfere with the order of the Trial Court.
22. In the light of the discussion held by me above, without considering the above aspects, the impugned order passed is not sustainable, as such the order passed by LIII Additional City Civil and Sessions and Judge, Bengaluru in S.C.No.1224/2016 dated 12.03.2018 is set aside and matter is remitted to the Court below to consider all the material placed before it appropriately and legally and thereafter, if it is a fit case, then the Court is at liberty to discharge, otherwise, it can proceed with the trial after framing the charge.
Sd/- JUDGE SSD