Case Note & Summary
The present appeals were preferred by the State of West Bengal against the impugned judgment and order dated 06.05.2022 passed by the High Court at Calcutta in C.R.R. 3012 of 2018, whereby the High Court set aside the order dated 05.09.2018 passed by the Additional District and Sessions Judge, Fast Track, 2nd Court, City Sessions Court, Calcutta in Order No. 36 in Session Case No. 47 of 2012. The brief facts are that on the basis of a written complaint, FIR No. 29/2012 was registered on 09.02.2012 under Sections 376/223/506/34 IPC and Section 25(ii)(a) & 27 of the Arms Act, 1959 against five accused persons, including the respondent herein. It was stated in the complaint that on 05.02.2012, the victim was returning home from Tantra Disco Thek in Kolkata at around 12:15 am, when one Lavi Gidwani offered to drop her home. Upon entering the car, the accused persons got into the car with her. When she asked to be let out, they refused and continued driving. Thereafter, she was threatened and gang-raped at gunpoint. Later, near the crossing of Exide House, she was pushed out of the running car. On 18.02.2012, three out of the five accused persons, namely Nishad Alam, Sumit Bajaj and Md. Nasir Khan, were apprehended and taken into custody. As two accused could not be apprehended, namely the respondent and Md. Ali Khan, on 05.03.2012, warrant of arrest was issued by C.M.M., Kolkata qua them. As their presence could still not be secured, on 12.04.2012, proclamation was issued against these absconding accused. Proclamation notices came to be affixed on 12.04.2012 and 16.04.2012. Upon completion of investigation, on 10.05.2012, chargesheet was filed against the three apprehended accused persons under Sections 376(2)(g), 323 and 506 IPC. The respondent and Md. Ali Khan were shown to be absconding and a prayer was made for filing supplementary chargesheet qua them. The respondent was subsequently arrested on 10.10.2012. On 15.11.2012, the investigating officer filed a supplementary chargesheet against the respondent and Md. Ali Khan under Sections 376(2)(g), 323, 506, 223, 34 IPC and Sections 25(ii)(a) and 27 of the Arms Act. The respondent filed an application for discharge under Section 227 CrPC, which was rejected by the trial court vide order dated 05.09.2018. The respondent then filed a criminal revision before the High Court, which allowed the revision and set aside the trial court's order, directing the discharge of the respondent. Aggrieved, the State appealed to the Supreme Court. The Supreme Court held that the High Court exceeded its revisional jurisdiction by reappreciating the evidence at the stage of framing of charges. The Court observed that at the stage of Section 227 CrPC, the court is only required to see whether a prima facie case is made out, and a roving inquiry into the merits is not permissible. The victim's statement under Section 164 CrPC and other material on record prima facie implicated the respondent in the gang rape. The fact that the supplementary chargesheet was filed after a gap or that the victim did not name the respondent in the FIR were matters for trial, not for discharge. The Court also noted that the recovery of a firearm and ballistic report linked the respondent to the Arms Act offences. Accordingly, the Supreme Court allowed the appeals, set aside the High Court's order, and restored the trial court's order rejecting the discharge application. The trial court was directed to proceed with the framing of charges and trial expeditiously.
Headnote
A) Criminal Procedure Code - Revisional Jurisdiction - Scope of Interference - Section 397 read with Section 401 CrPC - The High Court, while exercising revisional jurisdiction, ought not to act as a court of appeal and reappreciate evidence at the stage of framing of charges; interference is warranted only if the order suffers from patent illegality, perversity, or jurisdictional error (Paras 10-12). B) Criminal Procedure Code - Framing of Charges - Discharge - Section 227 CrPC - At the stage of framing of charges, the court is required to consider whether a prima facie case is made out; a roving inquiry into the merits of the case is not permissible; the test is whether the material on record, if unrebutted, would lead to conviction (Paras 8-9). C) Indian Penal Code, 1860 - Gang Rape - Prima Facie Case - Sections 376(2)(g), 323, 506 IPC - Where the victim's statement under Section 164 CrPC and other material on record prima facie implicate the accused in the offence of gang rape, the accused cannot be discharged merely because the supplementary chargesheet was filed after a gap or because the victim did not name the accused in the FIR (Paras 13-15). D) Arms Act, 1959 - Offences under Sections 25(ii)(a) and 27 - Prima Facie Case - The recovery of a firearm from the accused and the ballistic report linking it to the crime are sufficient to frame charges under the Arms Act (Para 16).
Issue of Consideration
Whether the High Court, in exercise of its revisional jurisdiction, was justified in setting aside the trial court's order rejecting the discharge application of the respondent-accused, by reappreciating the evidence at the stage of framing of charges.
Final Decision
The Supreme Court allowed the appeals, set aside the impugned judgment and order of the High Court dated 06.05.2022, and restored the order of the trial court dated 05.09.2018 rejecting the discharge application. The trial court was directed to proceed with the framing of charges and trial expeditiously.
Law Points
- Revisional jurisdiction
- discharge under Section 227 CrPC
- prima facie case
- gang rape
- absconding accused
- supplementary chargesheet
- Arms Act
