1. The applicant has filed this Criminal Revision under Sections Section 397 & 401 of the Code of Criminal Procedure against the order dated 16-10-2018 (Annexure A/1) passed by the learned Additional Sessions Judge, Bemetara, District Bemetara (CG) in Sessions Trial No 28 of 2018 by which the learned trial Court has framed charges against the applicant under Sections 376, 506(B) and 323 of IPC.

2. Brief facts as reflected from the record are that the complainant/victim lodged a report on 14.09.2017 before the Police Station Bemetara, District Bemetara on the basis of which FIR was registered as crime No. 551/2017 for commission of offence under Sections 376, 506(B) and 323 of IPC mainly alleging that she is a student of MA First year and applicant is a resident of village Udka and posted as Constable at the relevant time. They had come in contact through one Kamal Bhaghel, started talking on telephone and later on it developed into love relationship and accordingly they used to meet oftenly. The applicant has taken her to lodge at Bemetara where he has made physical relationship with her and when she used to talk about their marriage he started avoiding her. It is also case of the prosecution that due to physical relationship made by the applicant the victim became pregnant, which was later on aborted by giving medicines. It is also the case of the prosecution that whenever victim asked the applicant to marry her, he refused to marry her. It has also been alleged that she was studying at Bilaspur and resides in a rented house where applicant also used to come and made physical relationship with her and whenever she asked for marriage he refused. On 12.09.2017 when her brother had gone to Bemetara for settling the issue, then he has assaulted them and caused injury and thereafter she lodged the FIR against the applicant.

3. After due investigation, on the basis of report lodged by the complainant/victim, Police have registered the aforesaid offense against the applicant. Further case of the prosecution is that the victim was also examined under Section 164 of the Cr.P.C., wherein she reiterated the same stand and also stated that she has submitted a Form before the Registrar of Marriage i.e. Additional Collector Bemetara for registration of marriage, notice was issued and advertisement was prepared for publication on the date of marriage, but notice was not published in the newspaper. She has also stated that when she has gone to Police Station Bemetara on 12-9-2017 to rescue her brother, the applicant, his elder brother and others have assaulted her in the Police Station, threatened to kill her on telephone and also threatened to withdraw the complaint filed by her for which money was also offered. She has also stated that FIR was not registered and she was removed from the Police Station. She has also stated that he has made physical relationship with her forcefully and always called her for the same and if she refuses, he threatened her that he will upload her photographs in the website.

4. Learned counsel for the applicant would submit that the complainant is a major lady and she is well aware of the consequences of physical relation and knowing the fact she has agreed for physical relation, as such, no case is made out against the applicant. He would further submit that before framing of charges the learned Trial Court should have seen that since it is a consensual act and victim is a major lady, therefore, as per Section 90 of IPC the applicant is entitled to get protection from the charge framed against him, thus the order of framing of charges dated 16.10.2018 deserves to be quashed. He would further submit that offence of rape is defined in Section 375 of IPC and from bare perusal of Section 375 of IPC, it is quite vivid that sexual intercourse must be against her will or without her consent or her consent has been obtained putting her under duress or threat. When a woman is a minor, even if she gives consent, it is immaterial. In the present case, she is a major girl, therefore, it is a consensual and does not fall within the ambit of rape. He would further submit that the trial Court without considering the ingredients of Section 375 of IPC and without examining the provisions of Section 90 of IPC mechanically framed the charges, therefore, he would prayed that the charges levelled against the applicant be quashed. To substantiate his submission he has referred to the judgment of Hon’ble Supreme Court in the case of Uday vs. State of Karnataka, reported in (2003) 4 SCC 46.

5. On the other hand, learned State counsel has filed their return wherein it has been stated that the trial Court has framed charges on the basis of evidence and material collected by the prosecution, though its authenticity or correctness is required to be examined by threat bearing analysis of evidence collected by the prosecution, as such, while hearing the revision petition, this Court cannot conduct threat bearing and analysis of evidence or cannot exercise its revisionsal power unless and until such glaring illegality is committed by the learned Trial Court while framing the charges. In the present case, this is not the situation as the victim in her statement recorded under Section 161 and 164 of CR.P.C. has stated regarding the manner in which she was subjected to sexual overt-act by the applicant, whether it is consensual act or forceful act can only be ascertained after appreciating the evidence placed before trial Court, as such at this stage the revision deserves to be dismissed by this Court. To substantiate his submission he has referred to the judgments of Hon’ble Supreme Court in case of State of Orissa vs. Dabendra Nath Padhi, reported in (2005) 1 SCC 568, Superintendent & Remenbrancer of Legal Affairs, W.B. vs. Aniol Kumar Bhunja reported in AIR 1980 SC 52, Amit Kapoor vs. Ramesh Chander & Another, reported in (2012) 9 SCC 460, Om Wati (Smt) and another vs. State of others, reported in (2001) 4 SC 333.

6. This Court considering the submissions made by the learned counsel for the petitioner, has stayed further proceedings pending before the trial Court on 5-2-2019 and the interim order is being continued. The State has also filed an application for vacating the stay order on 20.06.2024, therefore, with the consent of the parties, the matter was taken up for final disposal in motion hearing.

7. Learned counsel for the applicant would submit that the Hon’ble Supreme Court in various judgments has examined this issue and held that when the woman is a major lady and the physical relationship has been made with consensual then it cannot be said that it is a rape, as such the order dated 16.10.2018, framing of charges and entire charge- sheet deserves to be quashed by this Court in a revisional jurisdiction as it is material irregularity and irregularity which warrants interference by this Court.

8. The learned State counsel reiterating the stand taken in the return would submit that the submission made by learned counsel for the applicant is his defense which cannot be considered at the stage of framing of charges and would pray for dismissal of the revision petition as well as for vacating the interim order passed by this Court.

9. Before adverting to the factual submission, it is expedient for this Court to consider the revisional power of High Court as per Sections 397/401 of Cr.P.C. As per the provisions, the scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. is extremely limited. Apart from that sub-Section 2 of Section 397 prohibits the Court from exercising the powers of revision, even the power under sub-Section 1 therefore, should be exercised very sparingly and only where the decision under challenge is grossly erroneous and there is non- compliance of provisions of law or the finding recorded by the trial court is based on no evidence or material evidence ignored or judicial discretion is exercise arbitrarily or perversely by framing the charges and the Court should be extremely circumspect in interfering order framing of charges. The Hon’ble Supreme Court in case of State of Gujarat vs. Dilipsingh Kishorsinh Rao reported in 2023 (4) Crimes 146 (SC) ( MANU/SC/1113/2203 has considered the power of interference at the stage of framing of charges and held in paragraph 10, 11, 12 and 13 as under:-

“10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

“29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.

12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.

13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under:

“12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.””

10. The similar view has been taken by the Hon’ble Supreme Court in case of K. Ravi vs. State of Tamil Nadu and Another in Criminal Appeal No. 3598/2024 decided on 29.08.2024 reported in MANU/SC/0953/2024. Thus, in light of the above-stated legal position now this Court is examine the fact of the case to ascertain whether the case of interference by this Court while exercising jurisdiction under Section 397/401 of Cr.P.C. has been made out or not.

11. The submission made by the learned counsel for the applicant is that since the victim is a major lady and knowing the consensual physical relationship has continued her physical relationship as stated in the FIR itself, therefore, it does not fall within the ambit of rape, as such the framing of charge is illegal and warranting interference by this Court deserves to be rejected. The victim in her statement recorded under Section 164 of Cr.P.C., has categorically stated that she was subjected to forcefully physical relationship as a result of which she became pregnant and due to medication she aborted. She has further stated that the applicant has agreed to marry and thereafter, he has not appeared for getting the registration of marriage, in such situation it cannot be presumed at this stage that she was consensual party for physical relationship or not. Even otherwise, submission of counsel for the applicant that physical relationship was consensual is defense of the accused which cannot be considered at the stage of framing of charges as held by the Hon’ble Supreme Court in case of Dilipsinh (Supra). Further submission of the applicant that the conduct of the victim suggests that it is express or implied consent again it is required to be ascertained after the evidence is adduced before the trial Court, thus, the submission made by the applicant that the victim is consensual to the offence cannot be considered as it is defense of the accused.

12. The applicant has also annexed copy of the application dated 22.05.2017 alleged to have been signed by the applicant that she intends to withdraw the same and she is not interested to proceed in the matter, as such the impugned order should be quashed, deserves to be rejected as whether the said letter has been written by the victim by herself or by her own will is a matter of evidence which cannot be considered at this juncture as required threat bearing appreciation of evidence. The record of the case would show that the applicant has moved an application on 22.05.2019 before the authorities for registration of marriage this fact has been stated by the victim in her statement, but thereafter, no further material is placed on record to suggest that the applicant has solemnized the marriage, this again prima facie suggestd that some incriminating material has been collected against the petitioner for involving him in the commission of offence.

13. Considering the above stated legal position and also considering the fact of the case, I am of the view that the submission made by the applicant regarding quashing of the order dated 16.10.2018 and the charge-sheet is his defense and cannot be quashed at the threshold, as such the criminal revision deserves to be dismissed, and accordingly, it is dismissed. Consequently, the impugned order passed by this Court is vacated.

14. It is made clear that the trial Court will not be prejudiced from any of the observation made by this Court, as this Court while considering the revisional power of this Court has taken into consideration the fact of the case and has not examined the veracity or truthiness of the allegations, material collected by the prosecution. It is for the trial court to examine and decide the trial in accordance with law, on the basis of appreciation of evidence and material placed on record before the Trial Court.

15. With the aforesaid observation, this criminal revision is dismissed. The interim order passed by this Court is vacated since the charges were levelled on 16.10.2018 and more than 6 years have been lapsed and it is directed that the trial Court will decide the trial expeditiously.

16. Pending interlocutory, applications, if any, stand disposed of.