GURMEET RAM RAHIM Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Petitioner Gurmeet Ram Rahim has approached this Court by way of filing the present revision petition to challenge two impugned orders dated 03.08.2018, passed on the same date by the Special Judicial Magistrate, CBI, Haryana at Panchkula in case FIR No.RC1(S)/2015 SCU.V/SCII/CBI/New Delhi dated 07.01.2015 under Sections 120-B, 326, 417 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') Police Station SC-II CBI/New Delhi, whereby an application moved by the petitioner-accused under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been dismissed and charges have been framed against him and other accused under Section 120-B read with Section 417, 326 and 506 IPC and substantive offences punishable under Section 326 read with Section 120-B IPC and further charges against the petitioner under Sections 417 and 506 IPC.

(2.) Briefly, the facts of the case as made out in the petition are that the petitioner is facing trial in said FIR. After conclusion of investigation, final report dated 31.01.2018 under Section 173(2) of the Code was submitted against petitioner-accused Gurmeet Ram Rahim and other coaccused namely Dr. Pankaj Garg and Dr. Mahendra Pratap Singh. Thereafter, charges were framed against the petitioner and other two accused under Section 120-B read with Section 417, 326 and 506 IPC and substantive offences punishable under Section 326 read with Section 120-B IPC and further framed charges against the petitioner under Sections 417 and 506 IPC. Petitioner-accused also filed an application under Section 239 of the Code before the trial Court for discharge, which was also dismissed on the same date i.e. 03.08.2018. Both the said orders are subject matter of challenge before this Court in the present revision petition.

(3.) Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case, whereas no offence is made out against him. The application moved by the petitioner under Section 239 of the Code has wrongly been dismissed, whereas petitioner should have been discharged as no case is made out under the aforesaid sections. Learned counsel further submits that there is unexplained delay and the petitioner deserves to be discharged only on this ground alone. Neither any explanation has come forward on the part of prosecution nor it has been considered by the trial Court while framing the charges. A judgment passed by Hon'ble the Apex Court in case Dilawar Singh Vs. State of NCT of Delhi, (2007) 12 SCC 641 was relied upon but the same has not been considered. Learned counsel further submits that total 166 such persons who were in touch in the investigation. They were asked to join investigation for the purpose of recording their statements but only 128 persons who, were allegedly castrated, were examined by the Investigating Officer and out of those 128 persons, only 6 persons came forward to depose against the petitioner. Around 20 persons who were examined during course of the investigation had admitted that they had been castrated but 20 such persons did not support the case of the prosecution with regard to alleged allegation of castration and refused to undergo medical examination. Learned counsel also submits that an application under Section 207 read with Section 91 of the Code was moved to place on record the aforesaid statements but it was dismissed by the trial Court on 05.05.2018. The petitioner approached this Court by way of filing CRM-M No.22639 of 2018, whereby the liberty was given to the petitioner to avail the appropriate remedy at the appropriate stage. Learned counsel also submits that as per provisions of Section 114 (g) of the Indian Evidence Act, 1872 an adverse inference ought to have been drawn against the prosecution and benefit should have been extended to the petitioner. It is a settled proposition of law that in case two views are possible and even in case of suspicion, no charge could have been framed and benefit should have gone to the accused. Learned counsel further submits that no ingredient of offence under Section 417 IPC is fulfilled as neither there was any intention of fraud or dishonesty to induce any person by deceiving him nor any person was induced for castration. Learned counsel also submits that even in case the entire case of prosecution is believed to be correct and true, still no offence is made out under Section 417 IPC. Nothing has come in the investigation as to how the deceit or fraudulent act was done by the petitioner-accused. No material is available on record to show as to how wrongful gain was there to the petitioner and how those persons were cheated and loss was caused to them. Learned counsel further submits that it is a simple case of surgery and no offence under Sections 326 and 120-B IPC is made out. There was no corroborating material as the alleged act of castration had taken place more than a decade back. The FIR was registered on 07.01.2015 and the alleged castration pertains to the year 2000 and 2002. The petitioner is entitled to be discharged in view of provisions of Section 468 of the Code and no cognizance could have been taken by the Court beyond the period of limitation. At the most it can be a case of 325 IPC, wherein maximum sentence is seven years and admittedly the cognizance has been taken after a period of seven years. As per provisions of Section 460 (e) and 461 (l) of the Code, the proceedings are void. Learned counsel also submits that said provisions have not been appreciated properly and judgment relied upon by the trial Court in case Sarah Mathew Vs. Institute of Cardio Vascular Diseases by its Director and Others, (2014) 2 SCC 62 is not applicable to the present case being wrongly interpreted. Learned trial Court has wrongly relied upon the provisions of Section 473 of the Code just not to give benefit of Section 460 (e) and 461 (l) of the Code. There is no explanation of delay in initiating the complaint by the alleged victims and the trial Court could not have invoked the provisions of Section 473 of the Code. Learned counsel further submits that even prima facie no offence under Section 120-B IPC is made out. There is no evidence collected by the investigating agency to show any meeting of minds with the accused persons and simply on the basis of bald statement of some of the witnesses, charge under Section 120-B IPC has been framed. No evidence has been collected by the investigating agency to show that any pressure was put or even any allurement was given. Neither any compelling circumstance was there nor any force was used. Learned counsel also submits that even as per the story of the prosecution also, no charge can be framed under Section 326 IPC as the injection cannot be said to be a weapon as per the meaning given in Law Lexicon Dictionary. At the most it can be a case under Sections 323, 324 and 325 IPC and not under Section 326 IPC. Even in case of Section 325 IPC, the intensity of injury should be of higher magnitude caused with deadly weapon. Learned counsel also submits that there was no threat to the life during surgery as it was done by the competent doctor with all due medical equipment and it cannot be termed as a case of grievous hurt. There was a consent of those persons who underwent castration and there was no intention on the part of the petitioner to cause grievous injury with deadly weapon attracting Section 326 IPC. Learned counsel also submits that there is a difference between Sections 325 and 326 IPC as to in which manner the alleged offence is committed. In case of offence under Section 326 IPC, the expression "any instrument which used as a weapon of offence is likely to cause death" has to be determined after taking note of the heading of the Section. At the end, learned counsel for the petitioner submits that the impugned orders have been passed by the trial Court without any application of mind and without taking into consideration the law laid down in judgments relied upon by the petitioner. In support of his arguments, learned counsel for the petitioner has placed reliance upon judgments of Hon'ble the Apex Court in cases Dilawar Singh Vs. State of Delhi , Union of India Vs. Prafulla Kumar Samal and Anr, (1979) 3 SCC 4, Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135, Gurmeet Singh Bagga Vs. State of Rajasthan and Anr, (2010) CriLJ 1886, Ram Jas Vs. State of U.P, (1970) 2 SCC 740, Hariday Ranjan Prasad Verms and Others. Vs. State of Bihar & Anr, (2000) 4 SCC 168, Esher Singh Vs. State of A.P, (2004) 11 SCC 585, Tamaso Bruno Vs. State of U.P, (2015) 7 SCC 178, Mathai Vs. State of Kerala, (2005) 3 SCC 260, Shakeel Ahmed Vs. State of Delhi, (2004) 10 SCC 103, R. S. Nayak Vs. A.R. Antulay, (1986) 2 SCC 716, Sanjiv Kumar Vs. State of Himachal Pradesh, (1999) 2 SCC 288, Arulvelu & Another. Vs. State represented by the Public Prosecutor & Anr, (2009) 10 SCC 206, Jasvinder Saini and Others. Vs. State (Govt. of NCT of Delhi), (2013) 7 SCC 256 and judgment of Delhi High Court in case Ms. Shreya Jha Vs. CBI,2007 Supp2 ILR(Del) 19.