AJAY TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the revisionist, learned A.G.A. and learned counsel appearing for the opposite party no. 2. This criminal revision has been filed against the order dated 16.3.2010 passed by C.J.M., Ballia in Criminal Case 1982 of 2009 (State of U.P. Vs. Ajay Tiwari) whereby the learned Magistrate has taken further cognizance for the offence punishable under Sections 452, 376 and 511 I.P.C.

(2.) LEARNED counsel for the revisionist has submitted that the prosecutrix is a lady of bad character and she has also lodged First Information Report against other persons including her husband and the father-in-law. It has further been submitted that the the Investigating Officer has made further investigation without the permission of the court and has filed the supplementary charge sheet. It has also been submitted that the prosecutrix had subsequently lodged a case at Crime No. 342 of 2011 under Sections 376, 511, 452, 504 and 506 I.P.C., in which not only final report was submitted, but report under Section 182 Cr.P.C. has also been submitted and the incident was found to be false.? Learned counsel for the opposite party no. 2 has submitted that no permission from the Magistrate concerned is required for further investigation and no illegality has been caused by filing the supplementary charge sheet.

(3.) IN the present matter the charge sheet for the offence punishable under Sections 323, 504, 506 I.P.C. was submitted upon which charges were framed against the accused. Subsequently, on 21.12.2009 the Investigating Officer has submitted the supplementary charge sheet for the offence punishable under Sections 452, 376 and 511 I.P.C. upon which the accused has been directed to get bail in the said matter. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haqe and another (Para-10), 2005 SCC (Cr.) 283 and lastly (2012) 11 SCC 465. Detailed reasoned order at the stage of issuance of process is not required under the provisions of Code of Criminal Procedure. In (2012) 11 SCC 465, it has been further held that defences may be taken into consideration only if defence(s) raised by accused are factually unassailable and incontrovertible and demolish foundation of prosecution case. Defences raised by the petitioner in present case are based on factual inferences wherein certainly ought not to be taken into consideration at stage of issuing process. The disputed defence of the accused can not be considered at this stage. Moreover, the revisionist has got a right of discharge at appropriate stage. The allegations of house trespass and attempt to commit rape were made in the written report submitted by the prosecutrix in which now supplementary charge sheet has been submitted. At this stage the conduct of the prosecutrix cannot be seen and in view of the above only this much has to be seen that as to whether a prima facie case is made out or not. From the perusal of the F.I.R. in the present case, it cannot be said that prima facie case for the offence punishable under Section 452, 376 and 511 I.P.C. is not made out.? Certainly, the revisionist has right to move an application for discharge and at the time of disposal of the application for discharge all these facts may be considered. For the facts and circumstances of the case, mentioned above, I do not find any error of law or perversity in the impugned order. The revision is dismissed.? It is made clear that the observations made herein shall not prejudice the rights of the parties.