V.Boxer Suresh vs The State Of Tamil Nadu

'BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 24.10.2024

PRONOUNCED ON : 29.11.2024

CORAM

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

Crl.R.C.(MD)No.835 of 2024 and Crl.M.P.(MD)No.9069 of 2024

V.Boxer Suresh ... Petitioner/Sole Accused

Vs. The State of Tamil Nadu, represented by the Inspector of Police, All Women Police Station, Thiruverumbur, Trichy District. Crime No.13 of 2022 ... Respondent / Complainant

PRAYER: Criminal Revision Petition has been filed under Section 438 r/w 442 of B.N.S.S., to call for the records before the Sessions Judge, Mahila Court, Trichy to set aside the orders passed on 23.07.2024 in Crl.M.P.No.235 of 2024 in Spl.S.C.No.61 of 2023 and to discharge the accused in Spl.S.C.No.61 of 2023. For Petitioner : Mr.M.Shankarnath For Respondent : Mr.K.Sanjai Gandhi Government Advocate (Crl.Side)

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ORDER

This Criminal Revision is directed against the order passed in Crl.M.P.No.

235 of 2024 in Spl.S.C.No.61 of 2023, dated 23.07.2024, on the file of the

Mahila Court, Trichy, dismissing the petition filed for discharge under Section

227 Cr.P.C.

2. The petitioner is the accused in Spl.S.C.No.61 of 2023 for the alleged

offences under Sections 5 and 6 Protection of Children from Sexual Offences

Act (POCSO Act) and Section 506 I.P.C.

3. The case of the prosecution is that the defacto complainant / prosecutrix

had completed 10th standard at Kanakampalayam Government High School and

her date of birth as per the certificate issued by the Head Master of the said

School was 24.06.1997, that the victim was subjected to sexual harassment by

the petitioner/accused in the month of November 2012, that the victim was again

subjected to sexual assault on 16.12.2013, when she was alone at her home, that

the sexual harassment continued even after the victim had moved from her aunt's

house to a rented house at Perumanallur along with her brother in the year 2016,

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that the petitioner/accused had threatened the victim not to reveal about the

sexual harassment meted out to her, that the defacto complainant unable to bear

his harassment and threatening, lodged a complaint before the Avinashi Police

Station, Tiruppur District and on that basis, F.I.R., came to be registered in

Cr.No.1 of 2012 under Sections 5 and 6 of POCSO Act and Section 506 I.P.C.

4. It is evident from the records that the Avinasshi Police, on the point of

jurisdiction, has forwarded the said F.I.R., to Thiuverambur Police Station and

that the jurisdictional police has then registered a case in Cr.No.13 of 2013.

After completing the investigation, a charge sheet came to be filed and that the

case was taken on file in Spl.S.C.No.61 of 2023, on the file of the Mahila Court,

Trichy. When the case was pending for framing of charges, the

petitioner/accused has filed an application under Section 227 Cr.P.C., seeking

discharge from the above case and the said petition was taken on file in

Crl.M.P.No.235 of 2024. The respondent police has filed a counter statement

raising serious objections. The learned Sessions Judge, Mahilar Court, upon

enquiry, has passed the impugned order dated 23.07.2024, dismissing the

discharge petition. Aggrieved by the order of dismissal, the present Criminal

Revision Case came to be filed.

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5. The case of the petitioner is that the above said case was registered

based upon the false and frivolous facts and evidence, that sole intention behind

filing of this case is that the defacto complainant is none other than the fourth

wife of the petitioner and the defacto complainant had personal grudges against

the petitioner, who wanted to settle personal scores against him through this

case, that there is no substantive evidence procured by the prosecution to support

the accusations raised against the petitioner, that there is no prima facie case to

continue the proceedings against the petitioner, that the allegation levelled by the

defacto complainant is pre-motivated one which is based upon false facts and

evidence, that the defacto complainant had not provided any reason or

explanation for the inordinate delay in lodging the complaint against the

petitioner where the alleged offence committed by the accused is said to be

beyond 10 years, that the defacto complainant had suppressed her real age by

claiming that she was being minor at the time of alleged offence committed by

the petitioner/accused, that since the defacto complainant's brother had sexually

misbehaved with the petitioner's second wife's minor child, a complaint was

registered against the defacto complainant's brother and on that basis, a case

came to be registered in Cr.No.13 of 2021 and that the defacto complainant had

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insisted the petitioner to withdraw the said complaint whereas the petitioner /

accused was not inclined to do so and the result is, the defacto complainant had

preferred a complaint by alleging sexual harassment to pressurise the petitioner

to withdraw the case filed against his brother.

6. In the counter statement filed by the respondent, they have taken a stand

that when the defacto complainant was residing with her relative Vijayalakshmi

at Door No.12/36, Nesavalar Colony, Avyanpudur, Trichy during the yeaer 2013,

the accused who is alleged to be the third husband of her cousin Sudha had

committed sexual assault against the victim girl at 10.11.2013 at about

06.00 p.m., and at the date of occurrence, the defacto complainant has not

completed the age of 18 years and she was a child and the accused had

committed sexual harassment by touching the vagina and the breast of the

defacto complainant and also continued such sexual harassment, that when the

said factum was intimated to her relative Vijayalakshmi, no action was initiated

against the accused and that being so, on 11.12.2013 in the newly constructed

house situated in the same locality, the said accused had committed penetrative

sexual assault and then, the defacto complainant came to Perumanallur and

resided at Pon Vizha Nagar at Perumanallur, Tiruppur, that when the accused

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came to Perumanallur during the month of April 2016, had committed sexual

assault upon the complainant and had also threatened the defacto complainant

with dire consequences if she revealed the same and compelled the defacto

complainant to live with him and that after completing the investigation, the

charge sheet was filed and the case was taken on file, that they have examined 21

witnesses and 15 documents came to be recovered, that mere delay in lodging

the F.I.R., with the police is not fatal to the prosecution, that the accused cannot

be discharged from this case on the ground of delay in lodging the complaint,

that the Headmaster of the Government Higher Secondary School at

Konakkampalayam, Thiruppur had issued a bonafide certificate after verifying

the school records and provided proof that the victim girl's date of birth is

24.06.1997, that the petitioner's contention is that the defacto complainant had

suppressed her real age, as she had entered into a sale deed dated 11.12.2013

before the SRO of Keel Sathanur, that the prosecution has shown a prima facie

case as against the petitioner/accused and the materials and evidence submitted

by the prosecution are more than enough to frame the charges and that therefore,

the petition is liable to be dismissed.

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7. During enquiry, the petitioner/accused has produced a copy of the CSR

No.130 of 2021 and sale deed dated 11.12.2013 and the same came to be

exhibited as Exs.B.1 and B.2 respectively.

8. The learned Counsel for the petitioner would submit that the trial Court

has failed to consider the said documents by holding that the said documents

cannot be looked into at the stage of framing of charges and that there is no

complete bar to look after the defence evidence in discharge application. The

learned Counsel would rely on the decision of the Hon'ble Supreme Court in

Nitya Dharmananda Vs. Gopal Sheelum Reddy reported in AIR 2017 SC 5846

wherein it was held that if the Court is satisfied that there is material of sterling

quality which has been withheld by the investigator / prosecutor, the Court is not

debarred from summoning or relying upon the same even if the document is not

part of charge sheet. He would further submit that the documents produced by

the petitioner would go to prove that the victim had married the

petitioner/accused after she has fallen in love with him, despite knowing that he

had three wives, that the victim has given a complaint seeking action against the

petitioner for suspecting her character, that the victim has also entered into a sale

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deed in the year 2013 which would go to show that she was eligible to enter into

a contract at that time itself.

9. The learned Government Advocate (Crl.Side) would submit that the trial

Court has no powers to consider the evidence or materials produced by the

accused at the time of framing of charges or while deciding the discharge

application.

10. When a similar issue was raised, this Court in I.Rajendran and

another Vs. State represented by the Inspector of Police, Madurai Town, All

Women Police Station, Madurai in Crl.R.C.(MD)No.921 of 2024, this Court

had dealt with the same and the relevant paragraphs are extracted hereunder:

“10. The learned counsel appearing for the petitioners would rely on the judgment of the Hon'ble Supreme Court in Satish Mehra Vs. Delhi Administration and another reported in (1996) 9 SCC 766 and argued that the Court can very well consider the materials placed by the accused while considering the discharge application or at the time of framing of charges and the relevant passages are extracted hereunder:-

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“Similar situation arise under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.

The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.”

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11. At this juncture, it is necessary to refer the Three Judge Bench decision of the Hon'ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in AIR 2005 SC 359, wherein, the Hon'ble Apex Court has held that Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided and the relevant passages are extracted hereunder:-

“ .... In this case too the question was not about the right of the accused to file material at the stage of framing charge but was about quashing of proceedings in exercise of power under Section 482 of the Code. The decision in the case of State of Madhya Pradesh v. MohanLal Soni [(2000) 6 SCC 338] sought to be relied upon on behalf of the accused is also of no assistance because in that case an earlier order of the High Court wherein trial court was directed to take into consideration the documents made available by the accused during investigation while framing charge had attained finality since that order was not challenged and in that view this Court came to the conclusion that the trial court was bound and governed by the said direction of the High Court which had not been followed. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided. ....”

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12. The Hon'ble Supreme Court, in Debendra Nath Padhi's case after surveying the law on the point, has specifically held that at the stage of framing of charge, the trial Court can consider only the material produced by the prosecution and there is no provision in the Code which would confer a right upon the accused to file any material or document at that stage which right was held available to the accused only at the stage of trial.

13. In the case of State of Gujarat Vs. Dilipsinh Kishorsinh Rao reported in 2023 LiveLaw (SC) 874, the Hon'ble Supreme Court has reiterated the legal position and the same is extracted hereunder:-

“7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge.

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If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.

8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.”

14. Considering the above, legal position is well settled that while considering the discharge application, the accused does not have any right to produce any material or documents and that the Court should base its decision solely on the charge sheet materials provided by the prosecution, presuming the material to be true for the purpose of determining the existence of prima facie case.”

11. Considering the above legal position, this Court has no hesitation to

hold that the materials now produced by the petitioner/accused cannot be looked

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into. As already pointed out, the petitioner has produced the complaint allegedly

lodged by the victim to show that she had admitted that she is the fourth wife of

the petitioner and that there existed matrimonial dispute between them and also

the copy of the sale deed dated 11.12.2013 allegedly in favour of the victim to

show that she was not minor at that time.

12. The learned Government Advocate (Crl.Side) would submit that the

victim has never admitted the alleged marriage with the petitioner nor the alleged

complaint given before the police against the petitioner and without testing the

genuineness of the same, the same cannot be looked into and more importantly

in the present proceedings. The learned Government Advocate(Crl.Side) would

further submit that the victim in her statement given under Section 164 Cr.P.C.,

before the Judicial Magistrate and also in the statement given under Section

161(3) Cr.P.C., before the Investigating Officer, has stated that since the

petitioner was doing real estate business, he had registered some sale deeds in

favour of the victim and her aunts and that the petitioner had tied karugamani

malai, but she had returned the same.

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13. As rightly contended by the learned Government Advocate (Crl.Side),

even assuming for arguments sake that the said documents produced by the

petitioner can be looked into for deciding the present discharge application, since

the same were not admitted by the victim and the genuinenes of the documents is

yet to be tested, the same cannot be considered at the present stage.

14. The first contention of the petitioner is that the allegations levelled by

the defacto complainant are pre-motivated one, as the victim has converted the

matrimonial dispute into a POCSO case against the petitioner/accused. It is not

in dispute that the defacto complainant's sister is the third wife of the

petitioner/accused. According to the petitioner, he married the defacto

complainant as his fourth wife on 11.11.2018 with the consent of the defacto

complainant and her parents. As already pointed out, the victim in her statement

recorded under Section 164 Cr.P.C., has specifically disputed the above and she

has narrated about the sexual harassment caused and the subsequent sexual

assault made against her by the petitioner/accused. As rightly contended by the

learned Government Advocate (Crl.Side), the victim before the jurisdictional

Magistrate has reiterated her complaint version while giving statement under

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true or not can only be tested at the trial.

15. The next contention of the petitioner is that there was an inordinate

delay in lodging the complaint against the petitioner/accused. No doubt, the

defacto complainant has stated that she was subjected to sexual harassment in the

month of November 2012 and subsequently sexual assault on 16.12.2013 and

thereafter, she was subjected to sexual assault continuously. Admittedly, the

complaint came to be lodged on 04.01.2022 before the All Women Police

Station, Avinashi. But as rightly pointed out by the learned Government

Advocate (Crl.Side), the victim in her complaint as well as in her statements, has

specifically stated that the petitioner/accused who is a boxer had threatened the

victim and her brother not to reveal about the continuous sexual assault or else

he would finish off their family.

16. It is pertinent to note that there is no period of limitation for lodging a

POCSO complaint. It is settled law that the delay in lodging the complaint by

itself is not a ground or a reason to discharge the accused from a criminal case

and that too in a POCSO case. The learned Sessions Judge after referring to the

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judgment of the Bombay High Court in Bhiku Tukaram Jadhav Vs. State of

Maharashtra reported in 2012 Crl.L.J.1129 (Bom), has rightly observed that

whether the delay in lodging the F.I.R., affected the prosecution case or not has

to be decided only after trial and it is premature to decide whether the delay of

10 years in lodging the F.I.R., is fatal to the prosecution.

17. Now turning to the contention of the petitioner that the victim was not

minor at the time of alleged occurrence shown by her in the complaint, the case

of the prosecution is that when the sexual harassment was made in November

2012, the victim was aged 15 years and at the time of sexual assault on

16.12.2013, she was aged 16 years. The prosecution has produced the certificate

issued by the Headmaster of the Government Higher Secondary School at

Konakkampalayam, where the victim had studied and wherein it has been

mentioned that the victim was born on 24.06.1997. Moreover, the Investigating

Officer has examined the Headmaster of the said School and recorded his

statement. Moreover, the prosecution has also produced the Aadhar card of the

victim girl wherein also her date of birth is shown as 24.06.1997.

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18. The learned Counsel for the petitioner would mainly contend that the

decision of the trial Court in determining the age of the victim is not in

consonance with Section 34 of the Juvenile Justice Act 2015. As rightly

contended by the learned Government Advocate (Crl.Side), the Sessions Judge

has not finally determined the age of the victim girl in the impugned order, but

on the other hand, the learned Judge has observed that as per the Aadhar card

and the bonafide certificate, the victim seems to be a child on the date of

occurrence as defind under Section 2(d) of POCSO Act.

19. At this juncture, it is necessary to refer the judgment of the Hon'ble

Supreme Court in State by the Inspector of Police, Chennai Vs. S.Selvi and

another reported in (2018) 13 SCC 455 and the relevant paragraphs are

extracted hereunder:

“7. It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2 SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424, State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711, Niranjan Singh Karan Singh Punjabi

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vs. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs, West Bangal v.

Anil Kumar Bhunja (1979) 4 SCC 274 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 cons of the mater and weigh the materials as if he was conducting a trial”

20. It is settled law that at the stage of framing charge, the Court has to

prima facie consider whether there is sufficient ground for proceeding against

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the accused and the Court is not required to appreciate evidence to conclude

whether the materials produced are sufficient or not for convicting the accused.

21. It is also settled law that while considering an application seeking

discharge from a case, the Court is not expected to go deep of the probative

value of the material on record, but on the other hand, the Court has to form a

presumptive opinion as to the existence of the factual ingredients constituting the

offence alleged, and for that purpose, the Court cannot conduct a roving enquiry

into the pros and cons of the matter and weigh the evidence as if it is a main trial.

22. As rightly contended by the learned Government Advocate (Crl.Side),

there are specific allegations levelled against the petitioner in the complaint as

well as in the statement recorded under Sections 164 and 161 Cr.P.C. The

petitioner has sought for discharge mainly on the basis of the documents

produced by him and on the ground of delay. But as rightly contended by the

learned Government Advocate (Crl.Side), the prosecution has produced

sufficient materials to proceed against the petitioner and as such, there existed

prima facie materials to frame charges against the petitioner/accused.

Considering the above, the impugned order dismissing the discharge application

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cannot be found fault with. Hence, this Court concludes that the Criminal

Revision Case is devoid of merits and the same is liable to be dismissed.

23. In the result, the Criminal Revision Case is dismissed. Consequently,

the connected Miscellaneous Petition is also dismissed.

29.11.2024 NCC : Yes/No Index : Yes/No Internet: Yes/No SSL

To

1. The Sessions Court, Mahila Court, Trichy

2. The Inspector of Police, All Women Police Station, Thiruverumbur, Trichy District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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K.MURALI SHANKAR, J.

SSL

Pre-Delivery order made in

Crl.R.C.(MD)No.835 of 2024

29.11.2024

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