REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1246  of 2019 (Arising out of SLP (Crl.) No.1383 of 2018)

Tarun Jit Tejpal .. Appellant

Versus

The State of Goa & Anr.     .. Respondents

WITH

MA No.2207 of 2018 in SLP (Crl.) No.3149­3150 of 2014

J U D G M E N T

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned Judgment

and Order dated 20.12.2017 passed by High Court of Bombay at Goa

in Criminal Revision Application No. 60 of 2017 by which the High

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Court has dismissed the said Revision Application preferred by the

appellant herein – original accused and has refused to discharge the

appellant­original accused for offences under Sections 354, 354A,

354B,  341,  342,  376  (2) (f) and 376  (2) (k)  of the IPC,  appellant–

original accused has preferred the present appeal.

3. That the appellant herein – original accused is facing the trial for

the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and

376 (2) (k) of the IPC. The criminal proceedings were initiated against

the appellant herein pursuant to the FIR lodged on 22.11.2013 by the

Police Inspector,  CID,  Crime Branch,  Dona Paula for the  aforesaid

offences alleged to  have been committed on 21.11.2013. That the

Investigating Officer collected the relevant material/evidence and also

recorded the statement of the relevant witnesses including the

prosecutrix and thereafter filed the charge­sheet against the appellant

for the aforesaid offences. That thereafter, the learned Additional

Sessions Judge, Mapusa vide Order dated 07.09.2017 ordered charge

to  be  framed against the appellant for the offences under Sections

354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC.

3.1 Feeling aggrieved and dissatisfied with the Order dated

07.09.2017 passed by the learned Additional Sessions Judge, Mapusa

ordering charge to be framed against the appellant herein – original

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accused for the aforesaid offences, the appellant herein­original

accused approached the High Court by way of Revision Application.  

3.2 By the impugned Judgment and  Order, the  High  Court has

dismissed the said Revision Application and has refused to discharge

the accused for the offences for which he has been charged. Hence,

the appellant­original accused is before this Court by way of present

appeal.

4. Shri Vikas Singh, learned Senior Advocate has appeared on

behalf of the  appellant  herein – original accused  and  Shri  Tushar

Mehta, learned Solicitor General of India has appeared on behalf of the

respondents.

5. Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has vehemently submitted that, in the

facts and circumstances of the case, the High Court has materially

erred in not exercising the revisional jurisdiction and has materially

erred  in  not  discharging the  appellant  –  original  accused  from the

offences for which he has been charged.

5.1 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the  appellant­original  accused has  further  submitted  that the High

Court has materially erred in not properly appreciating the scope and

ambit of  powers to be exercised under Section 227 and 228 of the

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CrPC.

5.2 It is further submitted by Shri Vikas Singh, learned Senior

Advocate appearing on behalf  of  the appellant­original accused that

the material collected during the course of the investigation and the

evidence so far on record do not make out even a prima facie case

against the appellant for the offences for which he has been charged.

5.3 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has further submitted that even from

the CCTV footage no case is made out against the appellant for the

offences for which he has been charged.

5.4 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has taken us to some WhatsApp

messages by the prosecutrix and has commented upon the same and

has submitted that the prosecutrix is not reliable at all and the

prosecutrix shall not be believed.  

5.5 It is further submitted by Shri Vikas Singh, learned Senior

Advocate appearing on behalf of the appellant­original accused that in

the present case, the complainant and the Investigating Officer are the

same and therefore the entire criminal proceedings have been vitiated.

In support of his above submissions, Shri Vikas Singh, learned Senior

Advocate appearing on behalf  of the appellant­original  accused has

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heavily relied upon the decisions of this Court in the case of Bhagwan

Singh    v.  The  State of  Rajasthan  (1976)  1  SCC 15  as  well as the

subsequent decision of this Court in the case of Mohan Lal v. State of

Punjab (2018) 17 SCC 627.  

5.6 It is further submitted by Shri Vikas Singh, learned Senior

Advocate that as such the decision of this Court in the case of Mohan

Lal (Supra) is referred to a larger Bench by a two Judge Bench of this

Court vide Order dated 17.01.2019 in the case of  Mukesh Singh v.

State (Narcotic Branch of Delhi)  SLP (Crl.) D. No.39528 of 2018 and,

therefore, if this Court is not inclined to consider/follow the decision

of this Court in the case of Mohan Lal (Supra), the present appeal may

be kept pending  till the  decision by a larger  Bench  in  the  case  of

Mukesh Singh  (Supra). It  is submitted that, however,  in the case of

Mohan Lal (Supra), this Court has specifically observed and held that

if the complainant and the Investigating Officer are the same, the trial

is vitiated. Therefore, by heavily relying upon the decision of this Court

in the case of Mohan Lal (Supra) and the decision of this Court in the

case  of  Bhagwan Singh  (Supra) it is  prayed  to  quash  the  criminal

proceedings against the appellant and discharge the appellant from

the offences for which he has been charged.

5.7 Learned counsel appearing on behalf  of the appellant­ original

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accused has also made submissions on merits. However, in view of the

limited scope of jurisdiction to be exercised at the stage of Sections

227/228 of the CrPC which shall be dealt with hereinbelow, we do not

propose to go in detail and consider the submissions on merits at this

stage as even otherwise any observation by this Court at this stage in

the present proceedings may ultimately affect either of the parties in

the trial.

5.8 Making the above submissions and relying upon above decisions,

it is prayed to allow the present appeal and quash and set aside the

impugned Judgment and Order passed by the High Court as well as

the Order passed by the learned Trial Court and discharge the

appellant from the  offences  under  Sections 354,  354A,  354B,  341,

342, 376 (2) (f) and 376 (2) (k) of the IPC.

6. The present appeal is vehemently opposed by Shri Tushar Mehta,

learned Solicitor General of India appearing on behalf of the

respondents.

6.1 Shri Tushar Mehta, learned Solicitor General of India appearing

on behalf  of the respondents has vehemently submitted that in the

present case, after thorough investigation and thereafter having found

the prima facie case against the accused, the Investigating Officer has

filed the charge­sheet against the accused for the offences under

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Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the

IPC. It is submitted that thereafter, after considering the

material/evidence on record, the learned Trial Court has framed the

charge against the accused. It is submitted that thereafter,

considering the limited scope  of jurisdiction  to  be  exercised  at the

stage of framing the charge under Section 227/228 of the CrPC, the

High  Court has rightly refused to discharge the appellant­original

accused and has rightly refused to set aside the Order passed by the

learned Trial Court ordering charge to be framed against the

appellant­original accused.

6.2 Shri Tushar Mehta, learned Solicitor General of India appearing

on behalf  of the  respondents  has heavily  relied upon  the following

decisions of this Court in support of his submission that at the stage

of  Section  227  and/or  Section  228  of the  CrPC ­ at the stage of

framing of the charge, the truth, veracity and effect of the evidence

which the Prosecutor proposes to adduce are not to be meticulously

judged. Nor is any weight to be attached to the probable defence of the

accused. It is vehemently submitted by Shri Tushar Mehta, learned

Solicitor General that it is not obligatory for the Judge, at the stage of

framing of the charge, to consider in any detail and  weigh in a

sensitive balance whether the facts, if proved, would be incompatible

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with the innocence of the accused or not. It is vehemently submitted

by Shri Tushar Mehta, learned Solicitor General that at the stage of

framing of the charge the Court is only required to consider whether

there  is ground for presuming that the accused has committed the

offence and nothing more than that. It is submitted that even it is held

by this Court that if, at the initial stage, there is a strong suspicion

which leads the Court to think that there is ground for presuming that

the accused has committed an offence then it is not open to the Court

to say that there  is no sufficient ground for proceeding against the

accused.  

6.3 It is further submitted by Shri Tushar Mehta, learned Solicitor

General that in the present case, there is ample material/evidence on

record against the accused and sufficient  grounds are available  for

proceeding against the accused.  

6.4 It is further submitted by Shri Tushar Mehta, learned Solicitor

General that whatever submissions are made by the learned counsel

appearing on behalf of the appellant­original accused are on merits of

the case  and/or they  can  be  said to  be  of  defence  which  may  be

available to the accused and they are not required to be considered at

the  stage  of framing  of the  charge.  And  thereafter, it is  prayed to

dismiss the present appeal. In support of his above submissions and

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prayer to  dismiss the  present  appeal,  Shri Tushar  Mehta, learned

Solicitor General has heavily relied upon the following decisions of this

Court :

(i) Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 (Para 10),

(ii) State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (Para 4),

(iii) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1

SCC 715,

(iv) Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460,

(v) Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330,

(vi)  Niranjan Singh Karam Singh Punjabi  v.  Jitendra Bhimraj Bijjaya,

(1990) 4 SCC 76,

(vii)  State of T.N.  v.  N. Suresh Rajan,  (2014) 11 SCC 709 (Para 29 to

31.3),

(viii) State v. S. Selvi, (2018) 13 SCC 455,

(ix) Mauvin Godinho v. State of Goa, (2018) 3 SCC 358.

6.5 Now, so far as the submissions  made by Shri Vikas Singh,

learned Senior Advocate appearing on behalf of the appellant­original

accused that as in the present case the Investigating Officer and the

complainant are the same and therefore the criminal proceedings are

required to be quashed and the reliance placed upon the decisions of

this Court in the case of  Bhagwan Singh  (Supra) and in the case of

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Mohan Lal  (Supra) are concerned, it is vehemently submitted by Shri

Tushar Mehta, learned Solicitor General that in the case of Mohan Lal

(Supra) this Court was considering its earlier decision in the case of

Bhagwan Singh  (Supra), however, subsequently, another three Judge

Bench of this Court in the case of Varinder Kumar v. State of Himachal

Pradesh  Criminal Appeal No.2450­51 of 2010 dated 11.02.2019,

(2019) SCC OnLine SC 170 has specifically observed and held that the

decision of this  Court in the case of  Mohan Lal  (Supra) shall be

applicable prospectively and that all  pending criminal prosecutions,

trials and appeals prior to the law laid down in  Mohan Lal  (Supra)

shall continue to be governed by the individual facts of the case. It is

submitted therefore that in view of the law laid down by this Court in

the case of  Varinder  Kumar  (Supra), as in the present case, the

criminal prosecution has been initiated prior to the decision of this

Court in the case of Mohan Lal (Supra),  the criminal proceedings are

not required to be quashed and set aside and the appellant­original

accused against whom strong grounds are made out for prosecution,

is not required to be discharged.

6.6 Making the above submissions and relying upon the above

decisions, it is prayed to dismiss the present appeal.

7. In rejoinder and on the reliance based  upon the subsequent

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decision of  this Court  in the case of  Varinder Kumar  (Supra) relied

upon  by  Shri  Tushar  Mehta, learned  Solicitor  General,  Shri  Vikas

Singh, learned Senior Advocate has vehemently submitted that in the

case of  Varinder Kumar  (Supra) it was not open for the subsequent

Bench to observe and hold that the decision in the case of Mohan Lal

(Supra) would be applicable prospectively. It is vehemently submitted

by Shri Vikas Singh, learned Senior Counsel that only in the case of

Mohan Lal  (Supra), the Court could have observed and held that the

said decision shall be made applicable prospectively. It is submitted

that in the case of Mohan Lal (Supra) the Bench did not observe that

the said decision shall be applicable prospectively. It is submitted that

therefore it was not open for the subsequent Bench to observe and

hold that the  decision in the  case  of  Mohan Lal  (Supra)  would  be

applicable prospectively. It is submitted that therefore the decision of

this Court in the case of  Mohan Lal  (Supra) shall be applicable with

full force to the facts of the case on hand and as the complainant and

the Investigating Officer are the same, the entire criminal proceedings

have  been vitiated  and therefore it is prayed to allow the  present

appeal and discharge the appellant from the offences for which he has

been charged.  

8. We have heard the learned Counsel for the respective parties at

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length. We have also gone through and considered the Judgment and

Order passed by the High Court as well as the relevant material on

record.

8.1 At the outset it is required to be noted that after conclusion of

the investigation, the Investigating Officer had filed the     charge­sheet

against the accused for the offences under Sections 354, 354A, 354B,

341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned

Trial Court has framed the charge against the appellant­original

accused  for the  aforesaid  offences, in  exercise  of its  powers  under

Section 227/228 of the  CrPC. Framing of the charge against the

accused for the aforesaid offences was the subject matter before the

High Court. By the impugned Judgment and Order the High Court has

dismissed the Revision Application and has confirmed the Order

passed by the learned Trial Court ordering to frame the charge against

the accused for the aforesaid offences. Hence, the appellant­original

accused is before this Court by way of present appeal.

8.2 That it is mainly contended on behalf of the appellant that in the

present case as the complainant and Investigating  Officer are the

same and therefore in view of the decision of this Court in the case of

Mohan Lal  (Supra) the  entire  criminal  proceedings  are  vitiated and

therefore the appellant – original accused is to be discharged.

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However, it is required to be noted that apart from the fact that the

decision  of this  Court in the case  of  Mohan  Lal  (Supra)  has  been

doubted and pursuant to the Order passed by this Court dated

17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to

the larger Bench. In the subsequent decision in the case of  Varinder

Kumar (Supra), a three Judge Bench of this Court had an occasion to

consider the decision of this Court in the case of  Mohan Lal  (Supra)

and the three Judge Bench of this Court has held that the decision of

this Court in the case of  Mohan Lal  (Supra) shall be applicable

prospectively, it is further held that all pending criminal prosecutions,

trials and appeals prior to the law laid down in  Mohan Lal  (Supra)

shall continue to  be governed  by the individual facts  of the case.

Therefore, the reliance placed upon the decision of this Court in the

case of Mohan Lal (Supra) by the learned Counsel appearing on behalf

of the appellant­original accused is misplaced. Now, the submission

made  by Shri Vikas Singh, learned  Senior Advocate appearing on

behalf of the appellant­original accused that the subsequent Bench in

the case of  Varinder  Kumar  (Supra) could  not have  held that the

decision of this  Court in the case of  Mohan Lal  (Supra) shall be

applicable prospectively is concerned, at the outset, it is required to be

noted that this Bench is not considering whether in the subsequent

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decision in the case of  Varinder Kumar  (Supra), the Bench could not

have  considered  the prospective  applicability  of the  decision  in  the

case of Mohan Lal (Supra) or not? The three Judge Bench of this Court

held that the decision of this Court in the case of  Mohan Lal  (Supra)

would be applicable prospectively and the same shall not  affect

criminal prosecutions, trials and appeals.  We are bound by that

decision.  Therefore,  we are of the opinion that the decision of this

Court in the case of Mohan Lal (Supra) shall not be applicable to the

facts of the case on hand as criminal prosecution has been initiated in

the present case much prior to the decision in the case of the Mohan

Lal  (Supra). Therefore, the appellant cannot be discharged at this

stage on the aforesaid ground mainly that the Investigating Officer and

the complainant/informant are the same the trial is vitiated, relying

upon the decision of this Court in the case of Mohan Lal (Supra). Even

the decision of this Court in the case of Bhagwan Singh (Supra), relied

upon by the learned Counsel appearing on behalf  of  the appellant­

original accused, also shall not be of much assistance to the appellant

at this stage. In the case of Bhagwan Singh (Supra) and after the trial

this Court held that as the complainant herself was the Investigating

Officer, the case of the prosecution would not be free from doubt. It

was the case after trial and not at the stage of framing of the charge.

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Where the complainant himself had conducted the investigation, such

aspect of the  matter can certainly be given due weightage while

assessing the evidence on record but it would be completely a different

thing to say that the trial itself would be vitiated for such infraction.

Therefore, the aforesaid ground is not required to be considered at this

stage, namely, at the stage of framing of the charge. At the stage of

framing of the charge, the different considerations would weigh, which

are dealt with hereinbelow.

9. Now, so far as the prayer of the appellant to discharge him and

the submissions made by Shri Vikas Singh, learned Senior Advocate

on merits are concerned, the law on the scope at the stage of Section

227/228 CrPC is required to be considered.

9.1 In the case of N. Suresh Rajan (Supra) this Court had an occasion

to consider in  detail the scope of the proceedings  at the stage of

framing of the charge under Section 227/228 CrPC. After considering

earlier decisions of this Court on the point thereafter in paragraph 29

to 31 this Court has observed and held as under:

“29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us.  True  it is that  at the time  of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations  made are groundless so as to pass an order of discharge. It is

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trite that at the stage of consideration of an application for discharge, the court has to  proceed with an assumption that the  materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is  not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused  might have committed the offence on the basis of the materials on record on its probative value, it can frame  the  charge; though  for  conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. 30. Reference in this connection can  be  made to  a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR  2013  SC  52] , in  which, after analysing various decisions on the point,  this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC p. 482, para 15)

“15. ‘11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is

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whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused  has been made out. At that stage, even strong suspicion founded on  material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the  offence  alleged would  justify the framing of charge against the accused in respect of the commission of that offence.’ (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para 11)”

(emphasis in original) 31. Now reverting to the decisions of this Court in Sajjan  Kumar [Sajjan  Kumar v. CBI, (2010)  9  SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the  matter and  weigh the evidence as if it  was conducting  a trial. It is  worth  mentioning that the Code contemplates  discharge of the  accused by  the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused: 31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 can be  ordered  when  “the  Magistrate  considers the charge against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the  Magistrate considers, for reasons to be recorded that no case against the accused has been

17

made out  which, if unrebutted,  would  warrant  his conviction”. 31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of  the police report,  the documents sent along with it  and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand,  is reached only after the evidence referred in Section 244 has been taken. 31.3. Thus, there is difference in the language employed in these provisions.  But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 755­56, para 43)

“43. … Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of ‘prima facie’ case has to be applied. In spite of the difference  in the  language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.”

9.2 In the subsequent decision in the case of  S. Selvi  (Supra) this

Court has summarised the principles while framing of the charge at

the stage of Section 227/228 of the CrPC.   This Court has observed

and held in paragraph 6 and 7 as under:

“6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar

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Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of  Maharashtra, (2002) 2 SCC 135  : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar,  (2015) 2 SCC 417 :  (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra  Nath  Padhi, (2003)  2  SCC 711  : 2003  SCC (Cri) 688] , Niranjan  Singh  Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 :  1991 SCC (Cri)  47]  and Supt.  & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979)  4 SCC 274  :  1979 SCC  (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code 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 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 rights to discharge the accused. The Judge 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 statements 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

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cons of the matter and weigh the materials as if he was conducting a trial. 7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376­77, para 21)

“(i) The Judge while considering the question of framing the charges under Section 227 CrPC  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. (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

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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 disclose 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.””

9.3 In the case of Mauvin Godinho (Supra) this Court had an occasion

to consider how to determine prima facie case  while framing the

charge under Section 227/228 of the CrPC. In the same decision this

Court observed and held that while considering the prima facie case at

the stage of framing of the charge under Section 227 of the CrPC 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.

9.4 At this stage the  decision  of this  Court in the case of  Stree

Atyachar Virodhi Parishad (Supra) is also required to be referred to. In

that  aforesaid decision this  Court  had an occasion to  consider the

scope of  enquiry at  the stage of  deciding the matter under Section

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227/228 of the CrPC. In paragraphs 11 to 14 observations of this

Court in the aforesaid decision are as under :

“11. Section 227 of the  Code  of  Criminal  Procedure having bearing on the contentions urged for the parties, provides:

“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  no sufficient  ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject­matter of consideration by this Court. In State of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri)  533  : (1978)  1  SCR 257] ,  Untwalia,  J.,  while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41­42 : SCC (Cri) pp. 535­36, para 4]

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial 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. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be

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applied  at the stage of deciding the  matter under Section 227 or Section 228 of the Code. 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 against the accused, if the matter remains in the region of suspicion,  cannot  take the place of  proof  of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there  is ground  for  presuming that the  accused has committed an offence then it is not open to the court to say that there is  no sufficient ground for proceeding against the accused.

13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 :  1979 SCC (Cri)  609 : (1979) 2 SCR 229]  , Fazal Ali, J., summarised some of the principles: [SCR pp. 234­35 : SCC p. 9 : SCC (Cri) pp. 613­14, para 10]

“(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 had 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.

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(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.”

14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that “the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused”. The “ground” in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused  will be  determined  and  not  at the time  of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the  material.  Nor is it necessary to delve deep  into various aspects. All that the court has to consider is whether the evidentiary material on record if  generally  accepted,  would  reasonably  connect the accused with  the  crime.  No more  need be  enquired into.”

9.5 Applying the law laid down by this Court in the aforesaid

decisions and considering the scope of enquiry at the stage of framing

of the charge under Section 227/228 if the CrPC, we are of the opinion

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that the submissions  made by the learned  Counsel appearing on

behalf of the appellant on merits, at this stage, are not required to be

considered. Whatever submissions are made by the learned Counsel

appearing on behalf of the appellant are on merits are required to be

dealt with and considered at an appropriate stage during the course of

the trial. Some of the submissions  may be considered to be the

defence of the accused. Some of the submissions made by the learned

Counsel appearing on behalf of the appellant on the conduct of the

victim/prosecutrix are required to be dealt with and considered at an

appropriate stage during the trial. The same are not required to be

considered at this stage of framing of the charge. On considering the

material on record, we are of the opinion that there is more than a

prima facie case against the accused for which he is required to be

tried. There is sufficient ample  material against the accused and

therefore the learned Trial Court has rightly framed the charge against

the accused and the same is rightly confirmed by the High Court. No

interference of this Court is called for.

10. In view of the above and for the reasons stated above, the present

appeal fails and as a result the appeal stands dismissed. Considering

the fact that the allegations against the appellant of sexual abuse are

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very serious and affecting the dignity  of  a  woman and  is  the most

morally and physically reprehensible crime in a society, an assault on

the mind and privacy of the victim and the trial for such offences are

required to be decided and disposed of at the earliest and considering

the fact that in the present case the learned Trial Court has framed

the charge against the accused and the incident is of 2013 and there

is already a delay in concluding the trial because of the  pending

proceedings, we direct the learned Trial Court to conclude the trial at

the earliest within a period of six months from the date of receipt of

the Order of this Court. All concerned are directed to cooperate with

the Trial  Court in the earlier disposal of the trial and  within the

stipulated time observed hereinabove.

With these observations present appeal stands dismissed.

Pending application(s), if any, stand(s) disposed of.   

MA No.2207 of 2018 in SLP (Crl.) No.3149­3150 of 2014

The present MA has been filed in a disposed of matter in SLP

(Crl.) No.3149­3150 of 2014 with the prayer to direct the Trial Court to

release the passport of the applicant so as to enable him to travel to

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London anytime between 21.08.2018 to 01.09.2018. Since that period

is already over, the present MA has become infructuous and is

disposed of as such.       

..................................J. (ARUN MISHRA)

...................................J. (M. R. SHAH)

New Delhi                                              ...................................J. August 19, 2019                                    (B. R. GAVAI)

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