Ms. Jyoti Singh & others vs State of Uttarakhand

Sudhanshu Dhulia, J.

These two petitions have been filed invoking the inherent powers of this Court under Section 482 CrPC. In both the criminal miscellaneous

applications, the applicants have challenged the framing of charges against them pertaining to offences under Sections 504, 506, 420 and 389 IPC in

Criminal Case No. 2607 of 2014, State v. Jyoti Singh & Another.

The facts of the case must be narrated first. Ms. Jyoti Singh, the accused/applicant in Criminal Miscellaneous Application No. 160 of 2018 above, had

initially lodged an FIR herself against one Mr. Vivek Swarup (complainant in the present case) on 12.01.2014, at Police Station Haldwani, District

Nainital, alleging offences under Sections 376, 328 and 354-D IPC. Her case was that Vivek Swarup S/o Jagdish Narayan Srivastava, who at the

relevant time was working as the Finance Officer in Mandi Samiti, Udham Singh Nagar, where the complainant (Ms. Jyoti Singh) was also employed,

used to summon her frequently in his chamber. Being her superior, his orders were being obeyed. One day he took her to his house and offered her a

cup of coffee which was ‘spiked’, and as a result she lost her consciousness, and was then raped by Mr. Vivek Swarup, who also thereafter

took obscene photographs of her from his mobile camera. She then states in her FIR that though she immediately wanted to report the matter to the

police authorities, but could not do so as she was threatened by Mr. Vivek Swarup that if she does so, her photographs will be circulated and she

would be defamed. Taking this threat seriously and fearing the consequences, she held back. She further states in her FIR, that when she reported this

matter to her husband Mr. Pankaj Agarwal (who is the also an applicant before this Court in criminal miscellaneous application no.498 of 2018), it

resulted in her divorce on 01.02.2013, and she was thrown out from her matrimonial house. As a result of the rape committed by Mr. Vivek Swarup,

she conceived and gave birth to a child later. The applicant further says that due to these acts on the part of Mr. Vivek Swarup, her life has been

ruined, as the applicant has not only raped her but he is also continuously blackmailing her.

Consequent to the aforesaid first information report lodged by Ms. Jyoti Singh (one of the applicants before this Court in Criminal Miscellaneous No.

160/2018) the accused Vivek Swarup was arrested. While the accused Vivek Swarup was in jail, he too lodged an FIR against Ms. Jyoti Singh and

Mr. Pankaj Agarwal, who are the applicants here in the two connected Criminal Miscellaneous Applications. The FIR was registered at Police Station

Haldwani, District Nainital on 14.06.2014 under Sections 420, 504 and 506 of IPC. The allegations made by the complainant Mr. Vivek Swarup are

that since July 2011, he was working in the Directorate, Training and Employment Exchange, Haldwani on the post of Finance Officer. The applicant

Ms. Jyoti Singh was also working in that office as a Junior Assistant. The complainant (Vivek Swarup) by this time had already taken divorce from his

wife, which was decreed by Family Court, Allahabad on 13.3.2010 and against the decree an appeal was pending before the High Court of judicature

at Allahabad. From August 2012 onwards, Ms. Jyoti Singh presented herself as a victim of circumstances and domestic violence, who was being

constantly ill treated by her husband, Sri Pankaj Agarwal. She complained that she was very upset and unhappy with her husband (her husband at that

time is present applicant Sri Pankaj Agarwal, in Criminal Miscellaneous Application No. 498/2018), whom she alleged to be a characterless person,

etc. In November 2012, Ms. Jyoti Singh finally proposed marriage to which he replied that his divorce is in a final stage and as soon as the divorce is

finalized, he would marry her. On this arrangement, the sisters of Jyoti Singh were also in agreement. In December 2012, Ms. Jyoti Singh and her

husband Pankaj Agarwal filed a joint suit for divorce on the basis of mutual consent which was decreed in February 2013. Though Mr. Vivek Swarup

in the FIR states that in fact the divorce was a sham as even after the divorce they continued to live together as husband and wife, as their real

purpose was something else. Meanwhile, Ms. Jyoti Singh came very close to the complainant and his family members. The two (Ms. Jyoti Singh and

Mr. Vivek Swarup), visited various places together, such as Ajmer Khwaja Sarif Dargah, Sirdi Mandir and Haridwar and many temples and

performed pooja in the temples. The complainant had all intentions to marry Ms. Jyoti Singh. Meanwhile, Ms. Jyoti Singh kept on demanding money

from him on one pretext or the other, and he continued to give her the money as he was sure that immediately after his divorce, he would be marrying

Ms. Jyoti Singh. It was his sincerity and bona fide intentions which lead him to introduce her to his family members, relatives and close friends. Her

entry in his house was also very frequent. The complainant then states that both Ms. Jyoti Singh and Mr. Pankaj Agarwal, at that point started

extorting money from him and as a matter of a well planned move started picking fights with him. They later threatened him that they would implicate

him in false cases if he does not yield to their demands. Such threats were also given to the father of the complainant Mr. Jagdish Narayan Srivastava

on his mobile number. The two were demanding rupees twenty five lakhs from the father of the complainant. The complainant further states that

there are various SMS messages in his mobile which he can produce to prove that she was continuously demanding money from him and this demand

was accompanied with threat and coercion. Even after lodging of the false FIR by Ms. Jyoti Singh against him, she continued to remain in contact

with him as her real intentions were to extort as much money from the complainant as she possibly could. Ms. Jyoti Singh also offered that she would

change her statement if she is given the money.

This FIR lodged by Mr. Vivek Swarup was registered under Section 504, 506 and 420 IPC, but after investigation, the police also added Section 389

IPC and filed the chargesheet under Sections 504, 506, 420 and 389 IPC before the learned Magistrate.

Since these offences are triable by a Magistrate, the matter came up before the concerned Magistrate, where the entire evidence was produced by

the prosecution relating to the offences under Sections 504, 506, 420 and 389 IPC and at that stage the accused i.e. Ms. Jyoti Singh and Mr. Pankaj

Agarwal moved their applications for discharge under Section 239 CrPC, with the plea that the prosecution has no evidence to prosecute them for the

offences under which the chargesheet has been filed and, therefore, they are liable to be discharged. On this application, a detail order has been

passed by the learned Magistrate on 21.07.2016 where the learned Magistrate has recorded that at the stage of discharge, all that has to be seen is

whether the prosecution has any evidence or material for prosecuting the accused under the sections for which the chargesheet has been filed. The

learned Magistrate thereafter referred to various statements of witnesses which were recorded during the course of investigation under Section 161

CrPC, such as the statements of the complainant wherein he has said that Ms. Jyoti Singh was continuously visiting his house in Allahabad and in

“Kusumkhera†at Haldwani and relation between them was almost like husband and wife and this can also be verified by the landlady Ms. Janki

Fartiyal. However, whenever he used to insist on marriage, she only gave evasive answers and excuses, and the matter was postponed. Meanwhile,

Mr. Pankaj Agarwal who is the other accused, and the erstwhile husband of Ms. Jyoti Singh, started threatening the father of the complainant, that if

he is not given rupees twenty five lakhs he would harm his son Vivek Swarup and implicate him in false cases.

The aforesaid statement of the complainant has been verified and confirmed by the statement of the father of the complainant Jagdish Narayan

Srivastava recorded under Section 161 of CrPC. In fact, he said that Mr. Pankaj Agarwal, who was the erstwhile husband of Ms. Jyoti Singh and

who has a son of eight years of age from his wedlock with Ms. Jyoti Singh, demanded money from him and said that if he will not give this money,

then he would implicate his son Mr. Vivek Swarup in criminal case, and would also defame him. The statement of this witness was also confirmed

and corroborated by Ms. Janki Fartiyal and her husband Kheem Singh Fartiyal in their statements recorded under Section 161 CrPC during the course

of investigation.

There is another statement of Mr. Ram Sharan Verma, who is the owner of M/s Kumaun Jewellery, Haldwani, who in his 161 CrPC statement has

admitted that Ms. Jyoti Singh and Mr. Vivek Swarup used to come to his jewellery shop frequently to purchase the ornaments of which the payment

was used to be made by Mr. Vivek Swarup. There are other witnesses who say that Ms. Jyoti Singh used to introduce her erstwhile husband Mr.

Pankaj Agarwal as her elder brother-in-law.

These evidences have been discussed in detail by the learned Magistrate while deciding the discharge application and, therefore, the learned

Magistrate came to the conclusion that it is not a case where the accused can be discharged and hence the discharge application under Section 239

CrPC was rejected vide order dated 21.07.2016.

The aforesaid order of the learned Magistrate dated 21.7.2016, was challenged in revision which was dismissed by the revisional Court and

consequently a criminal miscellaneous application under Section 482 of CrPC, was filed before this Court and a learned Single Judge of this Court

dismissed the 482 application on 27.3.2017. Finally a SLP filed by the accused Jyoti Singh before the Hon’ble Apex Court against the order of the

learned Single Judge of this Court dated 27.3.2017, which was also dismissed on 03.07.2017 by the Hon’ble Apex Court by passing the following

order:-

“We see no reason to entertain this petition.

The special leave petition is dismissed.

All pending application stands disposed of.â€​

It must be stated here at this juncture that the order dated 11.8.2017 whereby charges have been framed, and which is presently impugned before this

Court was earlier challenged in a revision, which was dismissed on 23.1.2018, on the ground of maintainability, as the revisional court was of the

opinion that framing of charges is an interlocutory order, which is not revisable.

Learned counsel for the applicants has vehemently argued on various occasions, that the reasoning given by the revisional court that the framing of

charges is an interlocutory order is wrong, and a number of case laws of different High Courts have been cited by the counsel, to forward this point,

and he would argue that there is a finality to the order of framing the charges and hence it is indeed revisable, and the revisional court’s order is

bad to that extent alone and therefore it is liable to be set aside and the case be remanded for a fresh appraisal.

This Court, however, refrains from getting into this aspect as to whether the framing of charges is an interlocutory order or a final order as this Court

has already taken cognizance of the matter invoking its inherent and extraordinary powers under Section 482 CrPC where the matter has to be

examined on its merit and, therefore, this Court is not going on mere technicalities of the matter. I am also of the opinion that much delay has already

been caused in this matter and therefore to prevent any abuse of the process, what is being examined here is the legality of the order dated

11.08.2017, whereby charges have been framed by the trial court under its powers under Section 240 of CrPC. Now a bare reading of the provisions

of the Code of Criminal Procedure would disclose that once a discharge application is rejected and the court does not find any ground for discharge,

the natural consequence and the only logical step to be followed by the court is the framing of charges which is the next step under Section 240 of

CrPC. Sections 239 and 240 CrPC read as under:

“239. When accused shall be discharged.â€" If, upon considering the police report and the documents sent with it under section 173 and making

such examining, if any, of the accused as the Magistrate thinks necessary and after

giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he

shall discharge the accused, and record his reasons for so doing.

Framing of charge.â€"(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for

presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion,

could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be

tried.â€​

In fact the two Sections, i.e. Sections 239 and 240 of the CrPC, have been separately given, one after the another, but they relate to the same

provision of law and have to be read closely together. A bare reading of Section 240 of CrPC would show that in a warrant case, upon consideration,

examination and hearing, if the Magistrate is of the opinion that there is a ground “for presuming†that the accused has committed an offence

triable under this Chapter, which the Magistrate is competent to try, and which in his opinion can be adequately punished by him, then he shall frame in

writing a charge against the accused.

It is not in dispute that these offences are not triable by a Magistrate, who is competent under the law to impose the punishment on the accused, if

these charges are proved. Therefore, there is no question of jurisdiction here. The only question, which has been raised at the hands of the applicants

before this Court is that in case the ingredients of any particular section are lacking, charges ought not to be framed. Particular emphasis in this case

here is regarding framing of charges under Sections 389 and 420 of IPC, and according to the applicants counsel Sri Sudhir Kumar, charges under

these sections could not be framed!

Learned counsel for the applicants has relied upon the decision of the Hon’ble Apex Court in the case of Vijaya Rao Vs. State of Rajasthan and

Another, reported in (2005) 7 SCC 69, wherein it has been said that where the ingredients are not made out, the charges are not liable to be framed.

Similar provisions have been shown by the learned Counsel for the applicants by citing other cases, more particularly the case of Fakhruddin Ahmad

Vs. State of Uttaranchal and Another, reported in (2008) 17 SCC 157.

The position of law as explained by the Hon’ble Apex Court in this matter, narrates the settled principle of law, which is binding upon this Court.

Undoubtedly in case ingredients are not made out under a particular section then charges cannot be framed under that section. But to what extent the

court has to examine the “ingredients†of these charges at the stage of framing the charges, is the short question here. At the stage of framing of

charges only a prima facie case has to be seen, on the basis of the materials filed along with the charge-sheet, and on the basis of evidence which has

been produced by the Investigating Officer, which includes the statements of relevant witnesses under Section 161 CrPC. In case they disclose an

offence then charges have to be framed, after hearing the accused. Nothing more or even nothing less, at this stage.

It is not a case that the accused or their counsel were not heard, at the time of framing the charges. Nor can it be anybody’s case that while

framing the charges, reasons have to be assigned by the court, as to why charges are being framed. There is no provision under Section 240 CrPC

which requires the Magistrate to assign reasons as to why he is framing a particular charge. This is rightly so, because if all this is a requirement at the

stage of framing the charges, then this would not be a stage of framing charges, rather it would amount to examination of evidence which has to be

done during the course of trial, and not at the stage of framing the charges.

Learned counsel for the applicants has also tried to impress upon the Court that the offence under Section 389 IPC is not made out as in any case it is

not a case of extortion. The learned counsel would rely upon the definition of extortion as given under Section 383 read with Section 389 IPC and

would say that it is nobody’s case that the extortion has actually been done or pleaded which would bring it within the definition of Section 383

read with Section 389 IPC.

However, contrary to the argument of learned Counsel for the applicants, it has clearly come in the statements of many witnesses and also in the

averments made in the FIR that the amount was tried to be extorted at the hands of the applicants. Therefore, prima facie the ingredients of extortion

for framing of the charge are made out. Whether the prosecution is able to prove its case under Section 389 IPC, beyond reasonable doubt, is not to

be examined at this stage.

In view thereof, this Court finds no reason to interfere in the matter at this stage. Consequently, both the criminal miscellaneous applications filed

under Section 482 CrPC are hereby dismissed. Interim order dated 22.2.2018 passed in C-482 No. 160/2018 stands vacated.

This matter has already been delayed for one reason or another. It is therefore extremely necessary here that this matter be expedited. I direct the

trial court to proceed in the matter in letter and spirit of Section 309 CrPC and conclude the trial at the earliest, without granting any unnecessary

adjournment to any of the parties. Witnesses shall be cross examined, as far as possible on the same date when the examination-in-chief is taken and

if for any reason, the matter is adjourned reasons shall be assigned and a shortest date, preferably next day be given.

Registrar General of this Court is hereby directed to forward a copy of this order to the court concerned for onward compliance.