Bombay High Court
Madiha W/O Rehan Shaikh vs The State Of Maharashtra And Anr on 7 January, 2025
2025:BHC-AUG:229
Cri.Revn.217.2015
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 217 OF 2015
Madiha W/o. Rehan Shaikh,
Aged : 20 years, Occu. : Household,
R/o. Flat No. 202, 2nd Floor,
Vishal Residency, Near GCC Club,
Hatkesh Road, Mira Road, Thane,
Taluka & District Thane. ... Applicant
Versus
1. State of Maharashtra,
2. Rehan S/o. Abdul Karim Salar (Shaikh),
Aged : 25 years, Occu. : Business,
R/o. 387, Shani Peth, Jalgaon,
Taluka & District Jalgaon. ... Respondents.
.....
Mr. Naseem R. Shaikh, Advocate for Applicant.
Mr. S. M. Ganachari, APP for Respondent - State.
Mr. N. E. Deshmukh, Advocate for Respondent No.2.
.....
WITH
CRIMINAL REVISION APPLICATION NO.8 OF 2016
1 Rehan S/o Abdul Karim Salar,
Age : 25 years, Occu. : Business,
2. Abdul Karim S/o Abdul Majid Salar,
Age : 60 years; Occu. : Business/Social worker;
3. Ruksanabi W/o Abdul Karim Salar,
Age : 57 years; Occu. : Household;
4. Irfan S/o Abdul Karim Salar,
Age : 31 years; Occu. : Business;
5. Javed S/o Latif Salar,
Age : 43 years, Occu. : Business;
Cri.Revn.217.2015
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Applicant Nos.1 to 5 are
R/o : 387 Shani Peth, Tal & Dist. Jalgaon.
6. Abdul Aziz S/o Abdul Majid Salar,
Age : 56 years, Occu. : Business,
R/o : Balirampeth, Jalgaon ... Applicants
Versus
1. The State of Maharashtra,
2. Madiha S/o. Rehan Shaikh,
Age : 23 years, Occu. : Nil,
R/o. : Plot No.202, 2nd Floor,
Vishal Residency, Near Hudkeshwar,
Meera Road, Thane (East),
At present camping at 375 Shani Peth,
Jalgaon. ... Respondents.
.....
Mr. N. E. Deshmukh, Advocate for Applicants.
Mr. S. M. Ganachari, APP for Respondent - State.
Mr. Naseem R. Shaikh, Advocate for Respondent No.2.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18 DECEMBER 2024
PRONOUNCED ON : 07 JANUARY 2025
JUDGMENT :
1. In this revision, exception has been taken to the order
dated 31.10.2015 passed by learned Additional Sessions Judge,
Jalgaon on Exh.22 in Sessions Case No.148 of 2013 partly allowing
the application, thereby discharging the present respondent no.2
(original accused) from charge under section 376 of Indian Penal
Code.
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BRIEF BACKGROUND
2. Applicant Madiha approached Shanipeth Police Station,
Jalgaon lodging a report on 11.01.2013 alleging that, present
respondent no.2 Rehan, who was her neighbour, developed
acquaintance with her, started visiting her house on some or other
count and lured her with promise of marriage and against her will
and wish developed physical intimacy on several occasions. He also
took her to a Mosque at Bandra, Mumbai performed marriage with
her. During cohabitation, he subjected her to maltreatment and
demanded Rs.5,00,000/-. Therefore, on above acquisitions, made in
the report, Shanipeth Police registered crime bearing No.4 of 2013
for offence punishable under sections 376, 498-A, 504 and 506 of
Indian Penal Code.
Present respondent no.2 stood charge-sheeted and case
was on the file of learned Additional Sessions Judge, Jalgaon.
During pendency of trial, respondents invoked provision
under section 227 of Cr.P.C. seeking discharge. After hearing both
sides, learned Additional Sessions Judge by order dated 31.10.2015
partly allowed the application Exh.22, thereby discharging present
respondent No.2 Rehan only from the charge under section 376 of
IPC amongst above other charges.
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Feeling aggrieved by the above order dated 31.10.2015
on Exh.22, original complainant has approached this court by
instituting present revision thereby praying to set aside the
impugned order.
SUBMISSIONS
3. Learned counsel for applicant in Criminal Revision
Application No. 217 of 2015 apprised the court about above factual
matrix regarding relations, gaining access and acquaintance and on
promise of marriage, but against her wish, being sexually ravished
and performing marriage and further setting up demands, ill treating
her and finally disowning her, resulting into registration of crime.
4. Learned counsel further pointed out that, there is sexual
exploitation of victim by playing deceit i.e. by the respondent Rehan
since February 2012. It is pointed out that, revisionist was
threatened to be defamed and blackmailed. That, therefore, offence
was registered. That, after thorough investigation, investigating
machinery found sufficient material to make respondent face trial.
That, required ingredients for each of the offence, for which crime
was registered, were available in the evidence. That, statements of 7
to 8 witnesses, which are consistent, were recorded by police
machinery and only on satisfaction of sufficiency of material,
respondent was charge-sheeted. That, learned trial court failed to
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consider and appreciate the contents of the charge-sheet. That,
learned trial court even ignored the settled legal position while
dealing with application for discharge and passed impugned order.
That, no sound reasons are assigned while discharging respondent
from charge under section 376 of IPC. Learned counsel further
pointed out that, grave offence was committed, but accused is
discharged from the same. That, there is improper appreciation of
charge-sheet as well as law and hence, learned counsel seeks
indulgence by setting aside the impugned judgment. He seeks
reliance on following rulings :-
(i) Vaibhav S/o. Gajanan Tekam v. State of Maharashtra
Criminal Appeal No.437 of 2021 (High Court of Bombay Nagpur
Bench);
Criminal Appeal No.1210 of 2022 (Arising out of S.L.P. (Criminal )
No.3015 of 2022;
(iii) Ravindra Laxman Ghogardare v. State of Maharashtra,
AIR Online 2019 Bom 177;
5. Per contra, learned counsel for respondent No.2 would
submit that, there was apparently false implication. That, all
accusations are motivated. That, apart from immense delay in
lodging false report, it was a clear attempt to implicate respondent
with ulterior motive. That, learned trial court below scrupulously
examined the charge-sheet and on getting convinced regarding case
being made out for invoking section 227 of Cr.P.C. order has been
passed. That, it is in consonance with the settled legal position. That,
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impugned order is infallible and hence prays for not to disturb it.
ANALYSIS
6. Here, on going through the material gathered by
prosecution and tendered by way of charge-sheet, it is emerging that,
revisionist and respondent no.2 were neighbours. In report to police
in 2013, it was informed by her that, since February 2012,
respondent Rehan was trying to allegedly come close to her and even
he expressed his desire to marry her. Such information was even
passed to her mother through her sister. She informed that in April
2012, respondent had physically intercourse with her and then
promised to perform marriage with her. She claims that, when
subsequent attempts to have physically intimacy were turned down
by her, he threatened to defame her saying that, he had video clips of
physical intimacy. It has also come in her report that, when she had
been to Mumbai, in July 2012, he called her near carter road, in a
masjid and performed marriage with her. This was subsequently
informed to her mother. However, subsequently, later on he informed
that his family members are asking him to seek divorce from her.
Thereafter she has reported about demand of Rs.5,00,000/- for
accepting her as his wife.
7. Apparently, as pointed out there is inordinate delay. Her
above report clearly shows that she merely speaks that he had
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intercourse in the backdrop of promise of marriage. However, she
herself reported that he took her to Masjid and performed marriage
with her and has spent couple of months with her. After alleged
episodes of physical intimacy and marriage in July 2012, report of
commission of offence is apparently lodged in January 2013. In spite
of being charge-sheet, there does not seems to be any evidence about
any video clips of alleged intimacy on the basis of which she was
allegedly threatened to be defamed.
8. It would be fruitful to give a brief account of the settled
legal position regarding objects and scope of Section 227 of Cr.P.C.
In the case of Sajjan Kumar v. CBI MANU/SC/0741/2010 :
(2010) 9 SCC 368, on the scope of Section 227 of Cr.P.C., the Hon’ble
Apex Court observed in para 21 as under :
“21. On consideration of the authorities about scope of Sections 227
and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 of the Cr.P.C. 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. The
test to determine prima facie case would depend upon the facts of
each case.
(ii) 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.
Cri.Revn.217.2015
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(iii) The 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 etc. However, at this stage,
there cannot be a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an
opinion that the accused might have committed offence, it can frame
the charge, though for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge
the Court must apply its judicial mind on the material placed on
record and must be satisfied that the commission of offence by the
accused was possible.
(vi) 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 discloses
the existence of all the ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution states as
gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to
see whether the trial will end in conviction or acquittal.”
The Hon’ble Apex Court, on the limited power of sifting
the material on record at the stage of charge, in case of Dipakbhai
Jagdishchandra Patel v. State of Gujarat MANU/SC/0595/2019 :
(2019) 16 SCC 547, observed as under :
Cri.Revn.217.2015
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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…”
In Asim Shariff v. National Investigation Agency MANU/SC/
0863/2019 : (2019) 7 SCC 148 the Hon’ble Apex Court has observed
that at the stage of framing of charge, the trial court is not expected
or supposed to hold a mini trial for the purpose of marshalling the
evidence on record. The relevant observations in this regard read as
under:
“18. Taking note of the exposition of law on the subject laid down
by this Court, it is settled that the Judge while considering the
question of framing charge under Section 227 CrPC in sessions
cases(which is akin to Section 239 CrPC pertaining to warrant
cases) 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; where the
material placed before the Court discloses grave suspicion against
the accused which has not been properly explained, the Court will
be fully justified in framing the charge; by and large if two views
are possible and one of them giving rise to suspicion only, as
distinguished from grave suspicion against the accused, the trial
Judge will be justified in discharging him. It is thus clear that
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227 CrPC, it is expected from the trial Judge to exercise its
judicial mind to determine as to whether a case for trial has been
made out or not. It is true that in such proceedings, the Court is
not supposed to hold a mini trial by marshalling the evidence on
record.”
Some other rulings on this aspect can be named as State
of Maharashtra and others v. Som Nath Thapa and others (1996) 4
SCC 659; State of M.P. v. Mohanlal Soni (2000) 6 SCC 338; Amit
Kapoor v. Ramesh Chander and another (2012) 9 SCC 460; Asim
Shariff v. National Investigation Agency (2019) 7 SCC 148.
9. Here, though there were allegations of commission of
offence under section 376 of IPC, in the light of discussion made in
aforesaid paras, it is apparently emerging that, there seems to be
acquaintance between revisionist and respondent Rehan being
neighbours. Talks regarding marriage proposal seem to be known to
her mother and sister also. She admits that she got married in a
Masjid on or around 14.07.2012. Thereafter, there seems to be
allegation of demand of money and then finally in January, 2013 i.e
after almost six months also allegations are made for commission of
offence under section 376 of IPC.
10. Thus, initially, revisionist alleges threats of defamation,
but subsequently gets married and also spends considerable time
Cri.Revn.217.2015
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with respondent. Therefore, with such material, allegations as
regards to, more particularly section 376 of IPC, accusations do not
inspire confidence. There is no material in the charge-sheet for
prosecuting respondent for said charge. Therefore, learned trial court
has not committed any error in discharging respondent Rehan from
said charge amongst other charges.
For above reasons, no case is made out for interference.
11. Even husband and in-laws have preferred Criminal
Revision Application No.08 of 2016 praying for quashing the
impugned order dated 31.10.2015 passed below Exh.22 to the extent
of refusing to grant discharge for offence punishable under sections
498-A, 504, 506 r/w 34 of IPC.
However, after going through the available papers and the
FIR, even this court is of opinion that, at this stage it cannot be said
that, there was no cruelty or demand. Such aspects needs to be gone
into only on full-fledged trial. Therefore, as like trial court, in the
considered opinion of this court, application for discharge from
offence under sections 498-A, 504, 506 r/w 34 of IPC cannot be
entertained and no relief as prayed can be granted.
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There is no reason to interfere. Hence, both revisions
have no substance and are devoid of merits. Accordingly, the
following order is passed :-
ORDER
Both revision applications stand dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
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