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IN THE HIGH COURT OF MANIPUR AT IMPHAL Cril. Revision Petition No.20 of 2015 1.

The State of Manipur

2.

The Officer in-Charge, Women Police Station, Churachandpur District, Manipur. ….Petitioners.

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Versus Timothy L. Changsan (55) s/o Late Thangzakhan of North Eastern Children’s Home (NECH) Renkhai Village, Churachandpur, Manipur. ….Respondent.

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Cril. Revision Petition No.23 of 2015 Court on its own motion

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….Petitioner.

Versus

1.

Timothy L. Changsan (55) s/o Late Thangzakhan of North Eastern Children’s Home (NECH) Renkhai Village, Churachandpur, Manipur. ..PrincipalRespondent.

2.

State of Manipur

..Proforma Respondent.

BEFORE HON’BLE THE ACTING CHIEF JUSTICE RR PRASAD For the Petitioner

::

Mr. RS Reisang, Sr.G.A.

For the Respondent

::

Mr. M.I.Sharma,Advocate.

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Date of hearing & Judgment/order ::

01.08.2016

JUDGMENT & ORDER (Oral)

Both the Criminal Revision Applications are directed against the order dated 15.10.2015 passed by Special Judge (POCSO) Churachandpur in Sessions Trial Case No.2/2015 (arising out of Churachandpur WPS Case

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No.3(2)2015 registered u/s 354/376(C)/506 IPC and also

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under section 6/8/10/POCSO Act) whereby the learned

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Special Judge discharged the accused respondent from the accusation. A Criminal Revision Petition No.20/15 has been

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registered upon an application filed on behalf of the State

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whereas Criminal Petition No.23/15 has been registered when the Court sou motto took cognizance of the matter

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relating to discharge of the petitioner. [2]

Facts giving rise to these applications are that one

EI- Bethel Rothihlu, aged about 15 years, submitted a report to the Superintendent of Police, Churachandpur stating therein that she has been staying in the North Eastern Children Home(NEH) since her childhood where she was brought by her parents. She was being looked after in the Home by the accused-respondent, an administrator of the said Home,whom she used to call Dady. It has been alleged that she as well as other inmates of the Home had gone to Gauhati in the month of July,2013 along with the accused for having Passport. While they were returning back to Home in the night by a Bus, the accused made her to sit next to him

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and he was trying to touch her breast. She resisted but could not protect herself. After reaching Home, the accused called her to the Guest room where he again did the same thing. Later on, the accused came to know that she is having a boyfriend to whom the accused called and asked him not to continue with the relationship. The accused also asked her not to continue friendship with her boyfriend. He also said that if she will be having relationship continuing then he will

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not allow her boyfriend to attend the class. Upon it, she told to the accused that he will not be doing good for them.

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Further, it has been alleged that the accused often used to call

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her on Saturdays or Sunday afternoon on which day he used She always resisted to the

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to have havesex with her.

misdeeds of the accused and asked him to stop doing all

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these things. She even wrote a letter to that effect to the accused. Upon it, the accused told her that he will try to stop

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doing all these things but he continued to do all these things and therefore she disclosed all these things to her homemates. It has also been alleged that whenever she refused to have sex with him, she was beaten up and threatened. On such written report, a case was registered as Churachandpur WPS Case No. 3(2)15 u/s 354/376(C)/506 IPC and also u/s 6,8,10 of the POCSO Act. [3]

The matter was taken up for investigation during

which the I.O. got statement of the victim recorded u/s 164 Cr.PC wherein she narrated about the incident as she had disclosed in the written report. She was examined by the Doctor. At the same time the accused was also examined by

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the Doctor. On completion of the investigation, charge sheet was submitted and thereupon court took cognizance of the offence as aforesaid against the accused on 26.6.2015. Much thereafter on 7.8.2015 when an oral prayer was made on behalf of the accused for discharging him on the ground that the list of exhibit/documents submitted by the Prosecution do not establish the offences under which cognizance has been taken. Thereupon the Court observed that the accused

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may file an application u/s 227 of the IPC. At the same time, the Court passed an order for summoning the I.O. to be

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examined as Court witness. On 10.8.2015 on which date the

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application u/s 227 of the Cr. PC was filed. The Court,

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without disposing of the application for discharge, examined the I.O. on the same day as CW-1 and directed the I.O. to

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produce two Doctors who had examined the victim as well as the accused. On 23.9.2015 both the Doctors were examined

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as court witnesses and cross examined. Thereupon, on 9.10.2015 the Court heard the learned counsel appearing for the parties on the said application filed u/s 227 of the Cr.PC and passed an order on 15.10.2015 discharging the accused from accusation. [4]

Being aggrieved with that order, the State

preferred

Criminal

Revision Application as

aforesaid

whereas the Court took sou motto cognizance which gave rise to Criminal Revision No. 23 of 2015. [5]

Mr. RS Reisang, learned Sr. GA appearing for the

State while assailing the impugned order, submitted with all vehemence that gross illegality has been committed by the

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Court in discharging the accused by making roving inquiry in the matter to find out trustworthiness of the victim, which approach of the Court is quite illegal. In this regard, it was highlighted that the Court at the stage of discharge was required to consider only the material produced by the prosecution but the Court has gone to the extent to consider the testimonies of the witnesses examined by the Court as court witnesses before even framing charge and that the trial

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court, at the stage of discharge/framing of charge, is not supposed to examine in detail the materials placed on record

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by the prosecution to find out sufficiency of the materials to

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establish the offences alleged against the accused person,

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rather even if there happen to be strong suspicion, the Court would be right in framing the charge but here in the instant

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case the Court after making roving enquiry did hold that prosecution has filed to establish the charges. Thereby it can

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easily be said that the Court, after holding mini trial, has come to that conclusion and thereby the order impugned being quite illegal is fit to be set aside. The

learned

counsel,

in

support

of

his

submission, has referred to the decisions rendered in the case of State of Orissa vs. DebendraNathPadhireported in (2005) 1 SCC 568, (ii) Soma Chakravarty vs. State through CBI reported in (2007)5 SCC 403, (iii) Sanghi Brothers (Indore) Private Ltd. vs. Sanjay Choudhary& Ors reported in (2008) 10 SCC 681 and (iv) AmitKapoor Vs. Ramesh Chander&Anr reported in (2012) 9 SCC 460.

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[6]

As against this, Mr. Sharma, learned counsel

appearing for the respondent submitted that there was no material to corroborate the testimony of the prosecutrix and thereby the Court rightly held that the prosecution has filed to establish the charges against the accused. Further, it was submitted that there has been unexplained delay in lodging the case which also indicates towards falsity of the case. Further, it was pointed out that since original documents

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were not there on the record, the Court did examine the I.O. and other witnesses so that the original documents be

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brought on record and thereby Court did not commit any

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illegality in examining the witnesses before the charges were

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framed. It was also submitted that the instant prosecution seems to be a case of malicious prosecution as the accused

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being administrator of the Home had warned the prosecutrix not to associate herself with her boyfriend which the

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prosecutrix did not like and out of vengeance the prosecutrix submitted a written report to the SP/Churachandpur with all false allegations and under the circumstances the trial court was absolutely justified in discharging the accuse. Hence, the order impugned never warrants to be interfered with by this Court. [7]

Before proceeding further in the matter, the

provisions as contained in Sections 227 and 228 of the Code needs to be taken notice of to find out the materials which are to be taken into account for discharging an accused or framing of the charge. The said provision reads as follows:

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“Section-227.Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section-228.Framing of charge.- If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

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(a) Is not exclusively triable by the Court of Sessions, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate shall trythe offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) Is exclusively triable by the court, he shall frame in writing a charge against the accused.

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(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

The question does arise as to what is the meaning

of the expression “the record of the case” as used in Section 227 of the Code. Regard being had to the provisions as contained in Sections-227 and 228 of the Code, it could be found that the words, ”case” is not defined in the Code but section 209 throws light on the interpretation to be placed on the said words. Section 209 which deals with the commitment of the case to the Court of Sessions when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the

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Court of Sessions, he shall commit the case to the Court of Sessions and send to that court “record of the case”

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documents and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Sessions. Thus, it is evident that the “record of the case” and documents submitted therein as postulated in Section 227 relate to the case and document referred in Section 209 That is the plain meaning of Section

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207 read with Sect.209 of the Code. This proposition has been laid down by the Hon’ble Supreme Court in the case of State

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of Orissa vs. DebendraNathPadhireported in (2005) 1 SCC

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568.

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After having come to the conclusion what the “record of the case” means, it needs to be examined about the

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scope and extent to which Sessions Judge is supposed to go

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into the matter to find out sufficiency of the ground for proceeding against the accused. In this regard, I would be referring to a decision rendered in the case of State of Bihar Vs. Ramesh Singh reported in (1977) 4 SCC39 wherein the Hon’ble Supreme Court, while considering the scope of Sections 227 and 228 of the Code was pleased to hold that at the stage of framing of charge, it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of

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framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. In the case of Supdt. And Rememberancer of Legal Affairs, W.B. vs. Anil Kumar Bhunja reported in (1979)4 SCC 274it was held that the Magistrate at the stage of framing charge had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence

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on general consideration of the materials placed before him by the investigating police officer. Again, in State of Delhi

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vs. Gyan Devi reported in (2000)8 SCC 239 the Hon’ble

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Supreme Court reiterated that at the stage of framing of

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charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for

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the court to consider the sufficiency of the materials to

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establish the offence alleged against the accused persons. [9]

The Hon’ble Supreme Court in the case of State of

Maharashtra vs. PriyaSharanMaharaj reported in (1997) 4 SCC 393 was pleased to hold that at the stage of Sections 227 and 228 the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. In case of SomaChakravarty vs. State through CBI reported in (2007)5 SCC 403 it was held by the Hon’ble Supreme Court that at the stage of framing of charge, the Court can frame the charge if on the material on record it can form an opinion that the commission of the offence by the

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accused was possible and that whether, in fact, the accused committed the offence can only be decided at trial. [10]

Following the said principle, Hon’ble Supreme

Court in a case of AmitKapoor Vs. Ramesh Chander&Anr reported in (2012) 9 SCC 460 was pleased to hold at para 30 as under: “30. We have already noticed that the legislature

Having noticed the scope and limitation of the

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[11]

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in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence.” This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste………”

Court in the matter relating to discharge or framing of charge

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as has been mandated u/s 227 and 228 of the Cr.PC, one is

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required to find out as to whether the court, in the instant case, has adhered to the said guideline or has gone beyond that in discharging the accused from accusation? We have already noticed that the Court, after taking cognizance of the offence, proceeded for examining the I.O. and two medical witnesses as court witness before framing the charge to satisfy himself as to whether sufficient grounds are there or not for putting the accused on trial. This procedure adopted by the learned Special Judge, in my opinion, was dehors the provisions of the Code and as such the procedure adopted by the learned learned Judge does not have sanction of

law. It be reiterated that learned Sessions

Judge, after examining the I.O. did find that urethra

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swabcollected by the I.O. was not sent for chemical examination before Forensic Science Laboratory. Further, from the evidence of the Doctor examined as CW-1, it was recorded that she did not find any definite opinion of sexual offence and that no sign of bruise, abrasion and scratch were found over the body of the prosecutrix and similarly the Doctor who was examined as CW-3 who had examined the accused, did not find any significant thing on the person of

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the accused. Taking into account all these aspects of the matter, the Court did find that the version of the prosecutrix

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is not getting corroboration from any other witnesses and

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thereby the Court, after having regard to certain decisions

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rendered by the Hon’ble Supreme Court holding therein that it would not be safe to rely on the testimony of the

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prosecutrix who does not seem to be trustworthy in absence of any corroboration, did record that there has been no

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sufficient ground for proceeding against the accused. While holding so, the Court did not take into account the fact that all those cases related to post trial and that too the said proposition was laid down after finding the prosecutrix not to be fully trustworthy. Here, in the instant case, it was yet to be ascertained upon evidences being adduced as to whether her testimony would be worthy of credence and if it happens to be worthy of credence, no corroboration would be required. [12]

Thus, I do find that the Court, while discharging

the accused, has put reliance on certain materials which was brought on record by way of evidence through witnesses and

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thereby the Court in view of the provisions of the Cr.PC and also the decisions rendered in the cases referred to above, committed a gross illegality. That apart, the court seems to have made roving enquiry by holding a mini trial to find out trustworthiness of the prosecutrix which was not at all permissible under the law. Under the circumstances, the Special Judge committed gross illegality in discharging the accused from the accusation. Not only that he has adopted

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the method to have material by getting certain witnesses examined before the charge was framed for the purpose of

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passing order on the petition of discharge which is dehors to

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the provision of the Cr.PC and thereby any recording of

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evidence before charge cannot be treated as evidence. Hence, the Special Judge is required to frame charge first and to

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proceed with the trial by recording evidence of the witnesses afresh. The trial be concluded within 9(nine) months of the

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date of receipt of the copy of this order. [13]

Before parting with this order, it be recorded that

if the Special Judge does have slightest doubt over the prosecutrix being threatened or pressurized by the accused, it would be open for him to take recourse of the law and to protect the witness. It would also be open for him to write to this Court for transferring the case to other Sessions Division if he does have a slightest feeling that there may not be a fair trial. Thus, in the facts and circumstances as stated above, the order of discharge being patently illegal, is hereby quashed. Matter is remanded so that the court may proceed

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with the trial after framing charge. Accordingly, Revision Application stands allowed.

ACTING CHIEF JUSTICE

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