Meghalaya High Court
1.Shri. Joshua Nongshli vs . 1. The State Of Meghalaya, on 4 August, 2025
2025:MLHC:690
Serial No.08 & 09
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Petn. No. 10 of 2025 Date of Order: 04.08.2025
____________________________________________________________
1.Shri. Joshua Nongshli Vs. 1. The State of Meghalaya,
S/o Shri. L. Khongtim Represented through Secretary and
R/o Saiden Nongpoh, Commissioner, Home Police
Ri Bhoi District, Department, Government of
Meghalaya. Meghalaya.
2. The Superintendent of Police
Ri Bhoi District, Meghalaya.
.....Petitioner. ......Respondents.
Crl. Rev. Petn. No.3 of 2025
1.Shri. Joshua Nongshli Vs. 1. The State of Meghalaya,
S/o Shri. L. Khongtim Represented through Secretary and
R/o Saiden Nongpoh, Commissioner, Home Police
Ri Bhoi District, Department, Government of
Meghalaya. Meghalaya.
2. The Superintendent of Police
Ri Bhoi District, Meghalaya.
.....Petitioner. ......Respondents.
Coram:
Hon'ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioners/Appellant(s) : Ms. S. Nongsiej, Adv.
For the Respondent(s) : Mr. H. Kharmih, Addl. PP
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JUDGMENT AND ORDER (ORAL)
These two cases are taken up together for disposal. In Criminal
Petition No. 10 of 2025, the petitioner has made a prayer for quashing of
the FIR dated 18-08-2023 in Special POCSO Case No. 37/2024 pending
before the Special Judge (POCSO), Nongpoh. Whereas, the Criminal
Revision Petition No. 3 of 2025 stands filed by the petitioner against the
impugned order dated 28-02-2025 passed by the Special Judge (POCSO)
Nongpoh in the same case i.e. Special POCSO Case No. 37/2024 whereby
the prayer of the petitioner for discharge was rejected. As relief claimed
for in both the cases are effectively the same, the matters were tagged
together and are disposed of by a common order.
1. The FIR dated 18-08-2023 was lodged before the Officer-in-Charge,
Women Police Station, Nongpoh alleging that the minor granddaughter of
the complainant, who was mentally unstable, had been sexually assaulted
resulting in a case of pregnancy. In course of investigation the petitioner
was arrested and after completion of the investigation, a charge-sheet has
been filed against the petitioner which is now pending trial in Special
POCSO Case No. 37/2024 u/S 3(a)/4/5/6 POCSO Act. The petitioner had
prayed for his discharge before the Trial Court by filing an application,
which, however, was rejected by order dated 28-02-2025.
2. Ms. S. Nongsiej, learned Counsel appearing for the petitioner
submits that there is no allegation against the petitioner in the FIR dated 18-
08-2023 and the survivor as well as the complainant also did not make any
accusation against the petitioner in their respective statements recorded u/S
164 Cr.PC. She submits that there is no evidence on record remotely
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suggesting involvement of the petitioner in the alleged crime and even if
the evidences placed in the charge-sheet be taken at their face value, no
prima facie case is made out against the petitioner. The learned Counsel
contends that the statement of the survivor and the complainant recorded
u/S 164 Cr.PC are contradictory to each other and the ground on which the
petitioner was arrested stood negated by CFSL report which clearly
indicated that the petitioner was not the bio-logical father of the child born
to the survivor. She submits that the Test Identification Parade (TIP)
conducted during the investigation was not done in accordance with the
established norms of law. She submits that the identification of the
petitioner by the survivor has no legal bearing in the case as they are
residing in the same village and that TIP is not substantive evidence and
cannot be a basis for proceeding against the petitioner in the criminal case.
In support of her contention, the learned Counsel places reliance on the
decision of the Apex Court in State of Haryana Vs. Bhajan Lal and Ors.,
AIR 1992 SC 604.
3. Further, assailing the order dated 28-02-2025, the learned Counsel
for the petitioner submits that the Trial Court has committed a gross error
by not considering the CFSL report contained in the supplementary charge-
sheet. She contends that the Trial Court has erred in placing reliance on the
case diary against the settled principle of law and submits that case-diary is
not evidence and that the accused has no access to it and, hence, the same
could not have been relied on by the Trial Court to reject the prayer of the
petitioner for discharge. In addition, the learned Counsel submits that
while considering the prayer for discharge, the Trial Court can consider
only the documents which are part of the charge-sheet and cannot rely on
any other materials which is not the part of charge-sheet. She submits that
the observation of the Trial Court that the petitioner was identified by the
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survivor after she saw his picture on the mobile of the complainant is
nowhere provided in the charge-sheet and the impugned order dated 28-02-
2025, as such, is not tenable in law. To buttress her argument, the learned
Counsel has relied on the decision of the Apex Court in Rajnish Kumar
Biswakarma Vs. State of NCT of DELHI & Anr., Special Leave Petition
(Criminal) No. 5290/2024.
4. Mr. H. Kharmih, learned Addl. PP, on the other hand, submits that
the allegation in the FIR clearly constitutes the commission of a cognizable
offence and the investigation thereon and the materials collected discloses a
clear prima facie case against the petitioner. He submits that the identity of
the petitioner came to light when the survivor saw his photo in the mobile
phone of the complainant and, subsequently, identified the petitioner in the
TIP. He also submits that the materials on record disclosed that the
survivor informed the complainant that the perpetrators were two adults,
one with beard and the other without. The learned Addl. PP further submits
that at the stage of consideration of discharge and framing of charge, the
Trial Court is required to see if there is a prima facie case against the
accused and the defence of the accused is not to be looked into. In support
of the contention, he places reliance on the various decisions of the Apex
Court reported in (2023) 17 SCC 688, (2014) 11 SCC 709, (2012) 9 SCC
460, (2010) 9 SCC 368, (2008) 2 SCC 561, (2002) 2 SCC 135, (1979) 3
SCC 4 and (1977) 4 SCC 39. The learned Addl. PP submits that reference
to the case-diary by the Court to find out as to the availability of the prima
facie material at the stage of framing of charge is not barred by law. He
submits that the Court can consider the case-diary to assess the evidence
and determine if there is sufficient ground to proceed with the trial. In
support of the submission, he places reliance on the decision of the High
Court of Patna in 2018 SCC Online Pat 2189: Guddu Sharma-vrs- State of
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Bihar & Anr. He, therefore, submits that there is no merit in the
contentions raised on behalf of the petitioner and both the petitions are
liable to be dismissed.
5. Heard learned Counsel for the parties and perused the materials
available on record. There is no dispute to the settled proposition that the
charge can be framed if prima facie material is available against the
accused in a trial. In the instant matter, the learned Trial Court in its order
dated 28-02-2025 has taken into consideration the materials which are
made part of the charge-sheet. The statements of the survivor as well as the
complainant recorded u/S 164 Cr.PC reveal that two adult men, one with
beard and other without beard, were involved in the commission of the
alleged offence against the survivor. During the course of the investigation,
TIP was conducted wherein the petitioner was identified by the survivor.
6. The contention of the learned Counsel for the petitioner that the TIP
has no legal bearing as the petitioner was already known to the survivor
being a resident of the same village where survivor resides, can only be
established by adducing evidence at the trial. The availability of direct
evidence in this regard will come to light only after the evidence of the
prosecution witnesses is recorded by the Trial Court. This Court, at this
juncture, cannot come to a conclusion that the prosecution will not be able
to establish its case before the Trial Court.
7. As regards the question as to whether the Trial Court could have
taken into consideration the case-diary while rejecting the prayer of
discharge of the petitioner, it is seen from the impugned order dated 28-02-
2025 that the Trial Court had only perused the case-diary in order to satisfy
itself as to the availability of legal evidence and not beyond. Under sub-
Section (2) of Section 172 Cr.PC, the Court has the unfettered power to use
case-diaries, not as evidence in the case, but to aid it in inquiry or trial by
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suggesting means of further elucidating points which need clearing up and
which are material for the purpose of doing justice. It is a settled position
of law that there can be no better custodian or guardian of the interest of
justice than the Court trying the case. A mere reference to the case diary at
the stage of framing of charge without treating it to be a piece of evidence
cannot be termed as illegal as it does not cause any prejudice to the
accused. The decision of Guddu Sharma (supra) cited by the learned Addl.
PP also shows that the case-diary was considered by the High Court of
Patna while dealing with the question of discharge and framing of charge.
8. Insofar as, the question of non-consideration of report of the Central
Forensic Science Laboratory (CFSL) by the learned Trial Court is
concerned, the DNA report contained in the supplementary charge-sheet
stating that the petitioner is not the bio-logical father of the baby born to the
survivor does not exonerate the petitioner from the liability of the case at
this juncture in view of the allegation that the sexual offence against the
survivor was committed by two persons.
9. In the case of Rajnish Kumar Biswakarma (supra), the Apex Court
was dealing with a matter where the Trial Court was directed by the High
Court to take into account the decree of nullity as well as appeal preferred
by the second respondent therein while hearing the argument on charge. It
was in that context, the Apex Court held that while considering the prayer
for discharge, the Trial Court cannot consider any document which is not
the part of the charge-sheet and, hence, the direction of the High Court was
interfered with. However, such a situation is not there in the present case.
The Trial Court while passing the order dated 28-02-2025 did not take into
consideration any document which is not part of the charge-sheet.
10. Since, the statement of the complainant and the survivor recorded
u/S 164 Cr.PC and the purported identification of the petitioner by the
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survivor in the TIP make out a prima facie case for trial, the instant case
does not come under the purview of categories of cases mentioned in
paragraph 108 of the Bhajan Lal (supra) case.
11. In view of the discussions made above, there is no merit in the
contentions raised on behalf of the petitioner. Resultantly, both the
petitions i.e. Criminal Petition No. 10 of 2025 and the Criminal Revision
Petition No. 3 of 2025 are hereby dismissed.
Judge
Meghalaya.
04.08.2025
“Biswarup PS”
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Signature Not Verified
Digitally signed by BISWARUP
BHATTACHARJEE
Date: 2025.08.06 13:29:01 IST