DELHI HIGH COURT JUDGMENT ON DISCHARGE

In a landmark judgment passed in Crl. Rev. P. No.267/ 2018 titled The State Govt. of NCT of Delhi Vs. Babita & Ors. decided on 04.09.2023, the Hon’ble High Court of Delhi has made certain important observations with respect to discrimination between male accused and female accused. This significant observation was made by the Hon’ble High Court while hearing a Criminal Revision Petition filed by the State against the order of discharge where female accused persons were discharged by the trial court. The Hon’ble High Court through this judgment has observed that “In this Court’s opinion, the learned Trial Court committed a grave error by discharging the accused persons on the basis of assumptions which were not permissible at the stage of framing of charge. It is crucial to note that the learned Trial Court has on its own presumed and assumed that when the “male members” were already beating the complainant there was no occasion for the “lady members” to instigate them and to join them in beating the victim. This Court is constrained to note that such differentiation was created by the learned Trial Court between the “male accused persons” and the “female accused persons”. Such an assumption in favour of a female accused, lacking any substantive basis or valid grounds, goes against the core principles of our justice system, which is predicated on the objective assessment of facts rather than preconceived notions. Our legal system is founded on the principle of gender neutrality, unless otherwise provided, where each individual, regardless of their gender, is held accountable for their actions in accordance with the law. Presumptions based on gender have no place within this framework, unless provided by law, as they undermine the pursuit of truth and justice. Each person's involvement in a criminal act has to be assessed independently, based on the statements recorded and evidence collected by the prosecution and placed on record before the Court for consideration”.

FACT OF THE CASE:-

The facts of the present case as mentioned in the said judgment are that an FIR was registered on 30.06.2015, on the statement of complainant Akash, who had stated that one Satpal was murdered three months prior and thereafter, his paternal grandfather and three uncles had been in judicial custody in that murder case. The complainant had alleged that his house, located near the deceased's residence had been vacated and he had relocated elsewhere. On 30.06.2015, as he had returned to check on his old house, he had been confronted by the accused namely Anil and Johnny, who happened to be the brothers of the deceased Satpal. It was alleged that the accused persons had forcefully apprehended the complainant while he was on his motorcycle, physically assaulted him, and thereafter, forced him into a rickshaw and transported him to Nand Nagri, near their residence, after which, three other persons namely Vikas, Ankush, and Sanjay, had joined them, and together, they had brought the complainant to a location i.e. Shukla Chakki in C-block, Nand Nagri. At this point, accused Anil had used an iron rod, accused Johnny had inflicted head injuries with a stone, and accused Vikas had stabbed the complainant with a knife. It was further stated that in the meanwhile, female relatives of the accused persons, including accused Anil's mother Bala, sister Babita and wife Rekha, accused Johnny's wife Kavita, and accused Sanjay's wife Maya had arrived at the spot and had started instigating the other accused persons to kill the complainant, seeking revenge for Satpal‟s murder. They had also physically assaulted the complainant, and during the course of the altercation, accused Ankush had thrown household utensils and had fired a pistol into the air, after which, someone had contacted the police and the complainant had been taken to the hospital. The police officials had found bloodstains, drag marks, an empty cartridge, and a bullet at the spot of the incident.

RELEVANT LAWS ON FRAMING OF CHARGE:-

 SECTION 227 OF THE CRIMINAL PROCEDURE CODE:- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution on this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 

SECTION 228 OF THE CRIMINAL PROCEDURE CODE:- (1) If, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of Sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

JUDGMENTS RELIED UPON:-

The Apex Court, in the case of Sajjan Kumar v. C.B.I. (2010) 9 SCC 368, held that at the time of framing of charge, the Court has to look at all the material placed before it and determine whether a prima facie case is made out or not, and the Court is not required to consider the evidentiary value of the evidence as any question of admissibility or reliability of evidence is a matter of trial. The

The relevant portion of the judgment is reproduced below:

“21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. The test to determine a prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court 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 evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weighing the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 

It was observed by the Hon‟ble Supreme Court in Asim Shariff v. National Investigation Agency (2019) 7 SCC 148, that at the stage of framing of charge, the Trial Court is not expected to hold a mini trial for the purpose of marshalling the evidence on record. The relevant observations are as under:

“18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC 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 possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected that the trial Judge exercises its judicial mind or not. It is true that in such proceedings, the Court is not supposed to hold a mini-trial by marshaling the evidence on record.” The Hon'ble Supreme Court in Bhawna Bai v. Ghanshyam (2020) 2 SCC 217, has observed as under: "13. ...At the time of framing the charges, only a prima facie case is to be seen; whether the case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.” In a recent decision in Manendra Prasad Tiwari v. Amit Kumar Tiwari and Anr. 2022 SCC OnLine SC 1057, the Hon‟ble Apex Court has explained the well-settled law on charge as under:

“21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not? The truthfulness, sufficiency, and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 read with Section 401 of the CrPC seeking for the quashing of the charge framed against him, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused to quash a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.

CONCLUSION:-

The statements of the independent witnesses as well as the complainant/victim, as documented in the record, presented sufficient material before the learned Trial Court to raise grave suspicion regarding the involvement of respondents in the commission of the alleged offence, and the specific roles and presence of these individuals were disregarded by the learned Trial Court, without providing any reasons for such an omission.

As per this order, Babita, Bala, Kavita, and Rekha have been discharged whereas in the next line, it mentions that “all lady accused persons” shall furnish bail bonds under Section 437A of Cr.P.C., instead of writing the names of all the accused persons discharged. This Court is again constrained to observe that writing so in a judicial order does not reflect well on the judicial philosophy of treating all genders equally. It was a judicial order and the names of the persons discharged who were directed to furnish bail bonds should have been mentioned instead of mentioning and pointing them by their gender.

Moreover, the name of the accused Maya is not mentioned in the names of discharged persons who are also female by gender and in case all females as referred to by the learned Trial Court were discharged, her name should have been mentioned in the judicial order. The confusion therefore, due to the passing of such an order by referring to gender and not names as an accused and calling them by gender has arisen, whereby though as reflected from the order accused Maya has been discharged and she has also tendered her bail bond under Section 437A of Cr.P.C., her name is not mentioned in the names of discharged accused persons. Therefore, it seems the accused Maya is also not a respondent before this Court. In view thereof, the order dated 06.09.2017 is set aside to the extent it relates to accused persons namely Babita, Bala, Rekha, Kavita, and Maya, and the matter is remanded back to the learned Trial Court for passing order on charge afresh qua the respondents after hearing both the parties, in accordance with law. Accordingly, the present petition is disposed of in the above terms.