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SUPREME COURT OF INDIA
Dr. B.S. CHAUHAN & FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
Ajay Kumar Parmar - Appellant
Versus
State of Rajasthan - Respondent
CRIMINAL APPEAL NO. 1496 of 2012
Decided On : 27-09-2012
Criminal Procedure Code,1973-Section 227-Scope and ambit of-The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency- More so, it is the duty of court to safeguard the right and interests of the victim, who does not participate in discharge proceedings- At the stage of application of Section 227, court has to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused- Thus, appreciation of evidence at this stage, is not permissible (Para 12)
Criminal Procedure Code,1973-Sections 207,208,209- Committal of a case exclusively triable by Court of Sessions- The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate Magistrate to commit case to Court of Sessions, when the charge-sheet is filed- Committal of a case exclusively triable by Court of Sessions, in a case instituted by police is mandatory- The scheme of Code simply provides that Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by Court of Sessions- Once he reaches the conclusion that facts alleged in the report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the Sessions Court (Para 13)
Indian Evidence Act, 1872- Sections 45, 47 and 73-Evidence of handwriting expert-Admissibility of- The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless- There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive- The Court, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon comparison made by it- However, where there is an opinion whether of an expert, or of any witness, Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision (Para 23)
Facts of the Case :
Present appeal has been preferred against the impugned judgment and order passed by the High Court, by way of which, High Court has upheld the judgment and order passed by the Sessions Judge in Revision Petition . By way of the said revisional order, the court had reversed the order of discharge of the appellant for the offences under Sections 376 and 342 of the Indian Penal Code, 1860 passed by Judicial Magistrate, Sheoganj.
Findings of the Court :
Magistrate had no business to discharge the appellant. Magistrate was bound under law, to commit case to Sessions Court, where such application for discharge would be considered. The order of discharge was therefore, a nullity, being without jurisdiction-.
Result : Appeal dismissed
Certainly. Based on the provided legal document, the key points are as follows:
When an offence is cognizable by the Sessions court, a Magistrate does not have the jurisdiction to probe into the matter or discharge the accused; instead, the Magistrate is bound to commit the case to the Sessions court. Any order of discharge in such cases is considered a nullity and without legal effect (!) (!) .
The process of recording a statement under Section 164 of the Cr.P.C. requires proper identification and adherence to procedural safeguards. Statements recorded without proper identification or in haste, especially where signatures do not match or signatures are dissimilar, raise suspicion about their authenticity and legal sanctity (!) (!) (!) .
The court should not pass an order of acquittal by simply not taking cognizance when a prima facie case is established by the investigation. It is the duty of the court to consider whether sufficient grounds exist to proceed against the accused, and at this stage, the court should not weigh the evidence or appreciate its credibility (!) (!) .
For cases exclusively triable by the Sessions court, the Magistrate must commit the case to the Sessions court once it is determined that the facts make out such an offence. The scheme of the law mandates this mandatory commitment, and failure to do so renders any order of discharge or non-cognizance invalid (!) (!) .
The opinion of handwriting experts is fallible and should not be solely relied upon. The Court can compare signatures or handwritings itself, but it must do so cautiously and with awareness of the potential for error. When the Court undertakes such a comparison, it should be cautious and not substitute itself for an expert unless necessary (!) (!) (!) .
The identification of the victim and the authenticity of her statements are crucial. Discrepancies in signatures and the manner of her appearance before the Court, especially when she appears at a different location and without proper identification, cast doubt on the reliability of her statements and the proceedings based thereon (!) (!) .
Procedural irregularities, such as the lack of notice to the complainant before dropping proceedings or acting without proper identification, violate mandatory legal requirements and undermine the validity of the proceedings (!) (!) .
The order of a Magistrate to dismiss or not take cognizance of a case, especially when the investigation discloses a prima facie case, is not sustainable. It is the Court’s duty to consider the case properly and proceed accordingly, ensuring that the rights of the victim are safeguarded (!) (!) .
The process of trial and procedure must be followed strictly, especially regarding the recording of statements, the commitment of cases to appropriate courts, and the proper evaluation of evidence. Any departure from these procedures can render orders invalid and require correction by higher courts (!) (!) .
The case was ultimately upheld in its procedural correctness, and the proceedings were directed to be completed expeditiously, with the court emphasizing that observations made are only for the present case and do not prejudice either party (!) .
These points collectively highlight the importance of procedural correctness, proper jurisdictional procedures, and cautious evaluation of evidence in criminal proceedings.
JUDGMENT
Dr. B.S.CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment and order dated 9.1.2012 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Revision Petition No. 458 of 1998, by way of which, the High Court has upheld the judgment and order dated 25.7.1998, passed by the Sessions Judge in Revision Petition No. 5 of 1998. By way of the said revisional order, the court had reversed the order of discharge of the appellant for the offences under Sections 376 and 342 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) dated 25.3.1998, passed by the Judicial Magistrate, Sheoganj.
2. The facts and circumstances giving rise to this appeal are as follows:
A. An FIR was lodged by one Pushpa on 22.3.1997, against the appellant stating that the appellant had raped her on 10.3.1997. In view thereof, an investigation ensued and the appellant was medically examined. The prosecutrix’s clothes were then also recovered and were sent for the preparation of FSL report. The prosecutrix was medically examined on 22.3.1997, wherein it was opined by the doctor that she was habitual to sexual intercourse, however, a final opinion regarding fresh intercourse would be given only after receipt of report from the Chemical Examiner.
B. The statement of the prosecutrix was recorded under Section 161 of Code of Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.’), by the Dy.S.P., wherein she narrated the incident as mentioned in the FIR, stating that she had been employed as a servant at the residence of one sister Durgi for the past six years. Close to the residence of sister Durgi, Dr. D.R. Parmar and his son Ajay Parmar were also residing. On the day of the said incident, Ajay Parmar called Pushpa, the prosecutrix home on the pretext that there was a telephone call for her. When she reached the residence of Ajay Parmar, she was raped by him and was restrained from going out for a long period of time and kept indoors without provision of any food or water. However, the next evening, she was pushed out surreptitiously from the back exit of the said house. She then tried to commit suicide but was saved by Prakash Sen and Vikram Sen and then, eventually, after a lapse of about 10 days, the complaint in question was handed over to the SP, Sirohi. Subsequently, she herself appeared before the Chief Judicial Magistrate, Sirohi on 9.4.1997, and moved an application before him stating that, although she had lodged an FIR under Section 376/342 IPC, the police was not investigating the case in a correct manner and, therefore, she wished to make her statement under Section 164 Cr.P.C.
C. The Chief Judicial Magistrate, Sirohi, entertained the said application and disposed it of on the same day, i.e. 9.4.1997 by directing the Judicial Magistrate, Sheoganj, to record her statement under Section 164 Cr.P.C.
D. In pursuance thereof, the prosecutrix appeared before the Judicial Magistrate, Sheoganj, which is at a far distance from Sirohi, on 9.4.1997 itself and handed over all the requisite papers to the Magistrate. After examining the order passed by the Chief Judicial Magiastrate, Sirohi, the Judicial Magistrate, Sheoganj, directed the public prosecutor to produce the Case Diary of the case at 4.00 P.M. on the same day.
E. As the public prosecutor could not produce the Case Diary at 4.00 P.M, the Judicial Magistrate, Sheoganj, directed the Public prosecutor to produce the Case Diary on 10.4.1997 at 10.00 A.M. The Case Diary was then produced before the said court on 10.4.1997 by the Public prosecutor. The Statement of the prosecutrix under Section 164 Cr.P.C., was recorded after being identified by the lawyer, to the effect that the said FIR lodged by her was false; in addition to which, the statement made by her under Section 161 Cr.P.C., before the Deputy Superintendent of Police was also false; and finally that no offence whatsoever was ever committed by the appellant, so far
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