PANDIT PAPPU DUBEY Vs. STATE

JUDGEMENT

(1.) BY this petition the Petitioner challenges the order dated 22 nd November, 2011 directing framing of charge against the Petitioner for offences punishable under Section 366 and 506 read with Section 34 IPC.

(2.) LEARNED counsel for the Petitioner contends that the Petitioner is the pujari, who got the marriage performed. Petitioner was not named by the prosecutrix in her statement recorded under Section 161 Cr.P.C. It is only when she appeared in the witness box she named the Petitioner and on the basis of the said statement the Petitioner has been summoned and now the charges are framed against him. There is neither any overt act nor any common intention attributable to the Petitioner. The Petitioner has played no role in kidnapping the prosecutrix. It is stated that the learned Trial Court just noted the submissions of the Petitioner, however did not consider the same. Relying upon Union of India Vs. Prafulla Kumar Samal AIR 1979 SC 366 it is contended that at the stage of charge the Court is required to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused or not. The Learned Trial Court with a pre-determined mind issued summons and framed charges against the Petitioner. This is borne out from the fact that even before the Petitioner was summoned, the Learned Trial Court while framing the charges against the co-accused held that the co-accused along with the Petitioner, who was not arrested, committed the said offence. From the evidence on record it is not evident that there is grave suspicion against the Petitioner. Hence no charge could have been framed against him. The complainant in her statement itself has stated that she lodged the present complaint as a counter-blast because the main accused had filed the petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. At best the case against the Petitioner raises simple suspicion and thus the Petitioner is entitled to be discharged. Reliance is also placed on Mahabir Vs. State 1994 JCC 413 to contend when the prosecutrix accompanies the accused without any protest then she is a willing and active participant. Relying upon Priya Patel Vs. State of M.P. & Anr. AIR 2006 SC 2639 it is contended that a woman cannot be said to have intention to commit rape and similarly in the present case if the pujari got the marriage performed he cannot be said to have shared common intention to cause kidnapping.

(3.) I have heard learned counsel for the parties. Briefly the facts of the case are that the prosecutrix and the co-accused Raju's marriage was performed by the Petitioner on 18th December, 2004. The prosecutrix filed a complaint before the Learned Metropolitan Magistrate under Section 156(3) Cr.P.C. wherein the Learned Metropolitan Magistrate vide order dated 2nd March, 2007 directed the SHO PS Saraswati Vihar to register a FIR. Consequently, FIR No.311/2007 under Sections 363/362/365/366/468/466/470/34 IPC was registered at P.S. Saraswati Vihar. The FIR was based on the complaint of the prosecutrix. The allegations as set out against the Petitioner in the complaint and the FIR are in para 4 of the complaint wherein it is alleged "accused No. 5 i.e. the Petitioner did some rituals and the complainant and accused No.1 garlanded each other, accused No.2 to 4 threatened the complainant to do what they said, otherwise they will kill the complainant, accused No.1 also threatened to kill the complainant by brandishing knife towards the complainant and to do what was asked by them, those people took several snaps of the complainant with accused No.1 against her will, the signature of the complainant were also taken forcibly by them on some documents blank as well as written and accused No.5 was also involved with the accused No. 1 to 4."