REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1496 of 2012
Ajay Kumar Parmar …Appellant
Versus
State of Rajasthan
…Respondent
J U D G M E N T
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 as the
prosecutrix was concerned.
F. After the conclusion of the investigation, charge sheet was
filed against the appellant. On 25.3.1998, the Judicial Magistrate,
Sheoganj, taking note of the statement given by the prosecrutix under
Section 164 Cr.P.C., passed an order of not taking cognizance of the
offences under Sections 376 and 342 IPC and not only acquitted the
appellant but also passed strictures against the investigating
agency.
G. Aggrieved, the public prosecutor filed a revision before the
Learned Sessions Judge, Sirohi, wherein, the aforesaid order dated
25.3.1998 was reversed by order dated 25.7.1998 on two grounds,
firstly, that a case under Sections 376 and 342 IPC was triable by
the Sessions Court and the Magistrate, therefore, had no jurisdiction
to discharge/acquit the appellant on any ground whatsoever, as he was
bound to commit the case to the Sessions Court, which was the only
competent court to deal with the issue. Secondly, the alleged
statement of the prosecutrix under Section 164 Cr.P.C. was not worth
reliance as she had not been produced before the Magistrate by the
police.
H. Being aggrieved by the aforesaid order of the Sessions Court
dated 25.7.1998, the appellant moved the High Court and the High Court
vide its impugned judgment and order, affirmed the order of the
Sessions Court on both counts.
Hence, this appeal.
3. Ms. Aishwarya Bhati, learned counsel appearing on behalf of the
appellant, has submitted that in view of the statement of the
prosecutrix as recorded under Section 164 Cr.P.C., the Judicial
Magistrate, Sheoganj, has rightly refused to take cognizance of the
offence and has acquitted the appellant stating that no fault can be
found with the said order, and therefore it is stated that both, the
Revisional Court, as well as the High Court committed a serious error
in reversing the same.
4. On the contrary, Shri Ajay Veer Singh Jain, learned counsel
appearing for the State, has opposed the appeal, contending that the
Magistrate ought not to have refused to take cognizance of the said
offences and has committed a grave error in acquitting the appellant,
after taking note of the statement of the prosecutrix which was
recorded under Section 164 Cr.P.C. The said statement was recorded in
great haste. It is further submitted that, as the prosecutrix had
appeared before the Magistrate independently, without any assistance
of the police, her statement recorded under Section 164 Cr.P.C. is not
worth acceptance. Thus, no interference is called for. The appeal is
liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
A three Judge bench of this Court in Jogendra Nahak & Ors. v.
State of Orissa & Ors., AIR 1999 SC 2565, held that Sub-Section 5 of
Section 165, deals with the statement of a person, other than the
statement of an accused i.e. a confession. Such a statement can be
recorded, only and only when, the person making such statement is
produced before the Magistrate by the police. This Court held that, in
case such a course of action, wherein such person is allowed to appear
before the Magistrate of his own volition, is made permissible, and
the doors of court are opened to them to come as they please, and if
the Magistrate starts recording all their statements, then too many
persons sponsored by culprits might throng before the portals of the
Magistrate courts, for the purpose of creating record in advance to
aid the said culprits. Such statements would be very helpful to the
accused to get bail and discharge orders.
6. The said judgment was distinguished by this Court in Mahabir
Singh v. State of Haryana, AIR 2001 SC 2503, on facts, but the Court
expressed its anguish at the fact that the statement of a person in
the said case was recorded under Section 164 Cr.P.C. by the
Magistrate, without knowing him personally or without any attempt of
identification of the said person, by any other person.
7. In view of the above, it is evident that this case is squarely
covered by the aforesaid judgment of the three Judge bench in Jogendra
Nahak & Ors. (Supra), which held that a person should be produced
before a Magistrate, by the police for recording his statement under
Section 164 Cr.P.C. The Chief Judicial Magistrate, Sirohi, who
entertained the application and further directed the Judicial
Magistrate, Sheoganj, to record the statement of the prosecutrix, was
not known to the prosecutrix in the case and the latter also recorded
her statement, without any attempt at identification, by any court
officer/lawyer/police or anybody else.
8. In Sanjay Gandhi v. Union of India, AIR 1978 SC 514, this court
while dealing with the competence of the Magistrate to discharge an
accused, in a case like the instant one at hand, held :
“….it is not open to the committal Court to launch on a
process of satisfying itself that a prima facie case has
been made out on the merits. The jurisdiction once vested
in him under the earlier Code but has been eliminated now
under the present Code. Therefore, to hold that he can go
into the merits even for a prima facie satisfaction is to
frustrate the Parliament's purpose in re-moulding Section
207-A (old Code) into its present non-discretionary shape.
Expedition was intended by this change and this will be
defeated successfully if interpretatively we hold that a
dress rehearsal of a trial before the Magistrate is in
order. In our view, the narrow inspection hole through
which the committing Magistrate has to look at the case
limits him merely to ascertain whether the case, as
disclosed by the police report, appears to the Magistrate
to show an offence triable solely by the Court of Session.
Assuming the facts to be correct as stated in the police
report, …..the Magistrate has simply to commit for trial
before the Court of Session. If, by error, a wrong section
of the Penal Code is quoted, he may look into that aspect.
If made-up facts unsupported by any material are reported
by the police and a sessions offence is made to appear, it
is perfectly open to the Sessions Court under Section 227
CrPC to discharge the accused. This provision takes care of
the alleged grievance of the accused.”
(Emphasis added)
9. Thus, it is evident from the aforesaid judgment that when an
offence is cognizable by the Sessions court, the Magistrate cannot
probe into the matter and discharge the accused. It is not permissible
for him to do so, even after considering the evidence on record, as he
has no jurisdiction to probe or look into the matter at all. His
concern should be to see what provisions of the Penal statute have
been mentioned and in case an offence triable by the Sessions Court
has been mentioned, he must commit the case to the Sessions Court and
do nothing else.
10. Thus, we are of the considered opinion that the Magistrate had
no business to discharge the appellant. In fact, Section 207-A in
the old Cr.P.C., empowered the Magistrate to exercise such a power.
However, in the Cr.P.C. 1973, there is no provision analogous to the
said Section 207-A. He was bound under law, to commit the case to the
Sessions Court, where such application for discharge would be
considered. The order of discharge is therefore, a nullity, being
without jurisdiction.
11. More so, it was permissible for the Judicial Magistrate,
Sheoganj, to take into consideration the evidence in defence produced
by the appellant as it has consistently been held by this Court that
at the time of framing the charge, the only documents which are
required to be considered are the documents submitted by the
investigating agency alongwith the charge-sheet. Any document which
the accused want to rely upon cannot be read as evidence. If such
evidence is to be considered, there would be a mini trial at the stage
of framing of charge. That would defeat the object of the Code. The
provision about hearing the submissions of the accused as postulated
by Section 227 means hearing the submissions of the accused on the
record of the case as filed by the prosecution and documents submitted
therewith and nothing more. Even if, in a rare case it is permissible
to consider the defence evidence, if such material convincingly
establishes that the whole prosecution version is totally absurd,
preposterous or concocted, the instant case does not fall in that
category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR 2003 SC
1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359; S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR 2005 SC 3512; Bharat
Parikh v. C.B.I. & Anr., (2008) 10 SCC 109; and Rukmini Narvekar v.
Vijaya Satardekar & Ors., AIR 2009 SC 1013)
12. 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 the 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, the 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. (Vide: P. Vijayan v. State of Kerala & Anr., AIR 2010 SC
663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC 1103).
13. The scheme of the Code, particularly, the provisions of Sections
207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the
Court of Sessions, when the charge-sheet is filed. A conjoint
reading of these provisions make it crystal clear that the committal
of a case exclusively triable by the Court of Sessions, in a case
instituted by the police is mandatory.
The scheme of the Code simply provides that the Magistrate can
determine, whether the facts stated in the report make out an offence
triable exclusively, by the Court of Sessions. Once he reaches the
conclusion that the 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.
14. The Magistrate, in exercise of its power under Section 190
Cr.P.C., can refuse to take cognizance if the material on record
warrants so. The Magistrate must, in such a case, be satisfied that
the complaint, case diary, statements of the witnesses recorded under
Sections 161 and 164 Cr.P.C., if any, do not make out any offence. At
this stage, the Magistrate performs a judicial function. However, he
cannot appreciate the evidence on record and reach a conclusion as to
which evidence is acceptable, or can be relied upon. Thus, at this
stage appreciation of evidence is impermissible. The Magistrate is not
competent to weigh the evidence and the balance of probability in the
case.
15. We find no force in the submission advanced by the learned
counsel for the appellant that the Judicial Magistrate, Sheoganj, has
proceeded strictly in accordance with law laid down by this Court in
various judgments wherein it has categorically been held that a
Magistrate has a power to drop the proceedings even in the cases
exclusively triable by the Sessions Court when the charge-sheet is
filed by the police. She has placed very heavy reliance upon the
judgment of this Court in Minu Kumari & Anr. v. State of Bihar & Ors.,
AIR 2006 SC 1937 wherein this Court placed reliance upon its earlier
judgment in Bhagwant Singh v. Commissioner of Police & Anr., AIR 1985
SC 1285 and held that where the Magistrate decides not to take
cognizance and to drop the proceeding or takes a view that there is no
sufficient ground for proceeding against some of the persons mentioned
in the FIR, notice to informant and grant of being heard in the
matter, becomes mandatory.
In the case at hand, admittedly, the Magistrate has not given
any notice to the complainant before dropping the proceedings and,
thus, acted in violation of the mandatory requirement of law.
16. The application filed before the Chief Judicial Magistrate,
Sirohi, has been signed by the prosecutrix, as well as by her counsel.
However, there has been no identification of the prosecutrix, either
by the said advocate or by anyone else. The Chief Judicial Magistrate,
Sirohi, proceeded to deal with the application without identification
of the prosecutrix and has no where mentioned that he knew the
prosecutrix personally. The Judicial Magistrate, Sheoganj, recorded
the statement of the prosecutrix after she was identified by the
lawyer. There is nothing on record to show that she had appeared
before the Chief Judicial Magistrate, Sirohi or before the Judicial
Magistrate, Sheoganj, alongwith her parents or any other person
related to her. In such circumstances, the statement so recorded,
loses its significance and legal sanctity.
17. The record of the case reveals that the Chief Judicial
Magistrate, Sirohi, passed an order on 9.4.1994. The prosecutrix
appeared before the Judicial Magistrate, Sheoganj, at a place far away
from Sirohi, on the same date with papers/order etc. and the said
Judicial Magistrate directed the public prosecutor to produce the Case
Diary on the same date at 4.00 P.M. The case Diary could not be
produced on the said day. Thus, direction was issued to produce the
same in the morning of the next day. The statement was recorded on
10.4.1997. The fact-situation reveals that the court proceeded with
utmost haste and any action taken so hurridly, can be labelled as
arbitrary.
18. The original record reveals that the prosecutrix had lodged the
FIR herself and the same bears her signature. She was medically
examined the next day, and the medical report also bears her
signature. We have compared the aforementioned signatures with the
signatures appearing upon the application filed before the Chief
Judicial Magistrate, Sirohi, for recording her statement under Section
164 Cr.P.C., as also with, the signature on the statement alleged to
have been made by her under Section 164 Cr.P.C., and after examining
the same, prima facie we are of the view that they have not been made
by the same person, as the two sets of signatures do not tally,
rather there is an apparent dissimilarity between them.
19. Evidence of identity of handwriting has been dealt with by three
Sections of the Indian Evidence Act, 1872 (hereinafter referred to as
the ‘Evidence Act’) i.e. Sections 45, 47 and 73. Section 73 of the
said Act provides for a comparison made by the Court with a writing
sample given in its presence, or admitted, or proved to be the writing
of the concerned person. (Vide: Ram Chandra & Anr. v. State of Uttar
Pradesh, AIR 1957 SC 381; Ishwari Prasad Misra v. Mohammad Isa, AIR
1963 SC 1728; Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee,
AIR 1964 SC 529; Fakhruddin v. The State of Madhya Pradesh, AIR 1967
SC 1326; and State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC
2100).
20. In Murari Lal v. State of Madhya Pradesh, AIR 1981 SC 363,
this Court, while dealing with the said issue, held that, in case
there is no expert opinion to assist the court in respect of
handwriting available, the court should seek guidance from some
authoritative text-book and the courts own experience and knowledge,
however even in the absence of the same, it should discharge its duty
with or without expert, with or without any other evidence.
21. In A. Neelalohithadasan Nadar v. George Mascrene & Ors., 1994
Supp. (2) SCC 619, this Court considered a case involving an election
dispute regarding whether certain voters had voted more than once. The
comparison of their signatures on the counter foil of the electoral
rolls with their admitted signatures was in issue. This Court held
that in election matters when there is a need of expeditious disposal
of the case, the Court takes upon itself the task of comparing
signatures, and thus it may not be necessary to send the said
signatures for comparison to a handwriting expert. While taking such a
decision, reliance was placed by the Court, on its earlier judgments
in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14; and Ram
Pyarelal Shrivastava v. State of Bihar, AIR 1980 SC 1523.
22. In O. Bharathan v. K. Sudhakaran & Anr., AIR 1996 SC 1140, this
Court considered a similar issue and held that the facts of a case
will be relevant to decide where the Court will exercise its power for
comparing the signatures and where it will refer the matter to an
expert. The observations of the Court are as follows:
“The learned Judge in our view was not right......taking
upon himself the hazardous task of adjudicating upon the
genuineness and authenticity of the signatures in question
even without the assistance of a skilled and trained person
whose services could have been easily availed of. Annulling
the verdict of popular will is as much a serious matter of
grave concern to the society as enforcement of laws
pertaining to criminal offences, if not more. Though it is
the province of the expert to act as Judge or jury after a
scientific comparison of the disputed signatures with
admitted signatures, the caution administered by the Court
is to the course to be adopted in such situations could not
have been ignored unmindful of the serious repercussions
arising out of the decision to the ultimately rendered.”
(See also: Lalit Popli v. Canara Bank & Ors., AIR 2003 SC 1795; Jagjit
Singh v. State of Haryana & Ors., (2006) 11 SCC 1; Thiruvengada Pillai
v. Navaneethammal, AIR 2008 SC 1541; and G. Someshwar Rao v. Samineni
Nageshwar Rao & Anr., (2009) 14 SCC 677).
23. 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. Therefore, when the Court takes such
a task upon itself, and findings are recorded solely on the basis of
comparison of signatures or handwritings, the Court must keep in mind
the risk involved, as the opinion formed by the Court may not be
conclusive and is susceptible to error, especially when the exercise
is conducted by one, not conversant with the subject. The Court,
therefore, as a matter of prudence and caution should hesitate or be
slow to base its findings solely upon the comparison made by it.
However, where there is an opinion whether of an expert, or of any
witness, the Court may then apply its own observation by comparing the
signatures, or handwritings for providing a decisive weight or
influence to its decision.
24. The aforesaid discussion leads to the following inferences:
I. In respect of an incident of rape, an FIR was lodged. The
Dy.S.P. recorded the statement of the prosecutrix, wherein she
narrated the facts alleging rape against the appellant.
II. The prosecutrix, appeared before the Chief Judicial Magistrate,
Sirohi, on 9.4.1997 and lodged a complaint, stating that the
police was not investigating the case properly. She filed an
application that her statement be recorded under Section 164
Cr.P.C.
III. The prosecutrix had signed the said application. It was also
signed by her lawyer. However, she was not identified by any
one.
IV. There is nothing on record to show with whom she had appeared
before the Court.
V. From the signatures on the FIR and Medical Report, it appears
that she is not an educated person and can hardly form her own
signatures.
VI. Thus, it leads to suspicion regarding how an 18 year old, who is
an illiterate rustic villager, reached the court and how she
knew that her statement could be recorded by the Magistrate.
VII. More so, she appeared before the Chief Judicial Magistrate,
Sirohi, and not before the area Magistrate at Sheoganj.
VIII. The Chief Judicial Magistrate on the same day disposed of the
application, directing the Judicial Magistrate, Sheoganj, to
record her statement.
IX. The prosecutrix appeared before the Judicial Magistrate,
Sheoganj, at a far distance from Sirohi, where she originally
went, on 9.4.1997 itself, and her statement under Section 164
Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997, since the
public prosecutor could not produce the Case Diary.
X. Signature of the prosecutrix on the papers before the Chief
Judicial Magistrate, Sirohi and Judicial Magistrate, Sheoganj,
do not tally with the signatures on the FIR and Medical Report.
There is apparent dissimilarity between the same, which creates
suspicion.
XI. After completing the investigation, charge-sheet was filed
before the Judicial Magistrate, Sheoganj, on 20.3.1998.
XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998,
refused to take cognizance of the offences on the basis of the
statement of the prosecutrix, recorded under Section 164 Cr.P.C.
The said court erred in not taking cognizance on this count as
the said statement could not be relied upon.
XIII. The revisional court as well as the High Court have rightly
held that the statement under Section 164 Cr.P.C. had not been
recorded correctly. The said courts have rightly set aside the
order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not
taking the cognizance of the offence.
XIV. There is no provision analogous to Section 207-A of the old
Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed
the case to the Sessions court as the said application could be
entertained only by the Sessions Court. More so, it was not
permissible for the court to examine the weight of defence
evidence at that stage. Thus, the order is insignificant and
inconsequential being without jurisdiction.
25. In view of the above, we do not find any force in the appeal. It
is, accordingly, dismissed. The judgment and order of the revisional
court, as well as of the High Court is upheld. The original record
reveals that in pursuance of the High Court’s order, the case has been
committed by the Judicial Magistrate, Sheoganj, to the Court of
Sessions on 23.4.2012. The Sessions Court is requested to proceed
strictly in accordance with law, expeditiously and take the case to
its logical conclusion without any further delay. We make it clear
that none of the observations made herein will adversely affect either
of the parties, as the same have been made only to decide the present
case.
……..………………………J.
(Dr. B.S. CHAUHAN)
……………….………………………………………J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
September 27, 2012
