TMI Blog1996 (7) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... s wife is suffering from some peculiar psychiatric condition. He approached a court at New York for securing custody of his children. On 31.10.1992 his wife left his house with the children and then filed a complaint with Saffolk County Police Station (United States) alleging that her husband had sexually abused Nikita who was then aged four. United States police at the local level moved into action. But after conducting detailed investigation concluded that the allegations of incestuous abuse are untrue. On 7.3.1993, appellant s wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered that custody of the children be given to the husband and a warrant of arrest was issued against Anita for implementation of the said order. The battle field between the parties was thereafter shifted to India as she came back home. On 19.3.1993, Anita filed a complaint to the Crime Against Women Cell (CAW Cell for short) New Delhi in which she stated that her husband committed sex abuses with Nikita while they were in United States and further alleged that appellant committed certain matrimonial misdemeanour on his wife. But the complain was clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing. Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is sufficient ground for proceeding . (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018, and Supdt, Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52). In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings under Section 209 of the old Code of Criminal Procedure (1898) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the ground may be any valid ground including insufficiency of evidence to prove charge. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Ses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful. We take into account the assertion of the of the petitioner that the present story involving Nikita was concocted by the second respondent to wreak her vengeance by embroiling him in serious criminal cases in India so that the could be nailed down here and prevent him from going back to U.S.A. While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who to was present in court, made an offer through her counsel that she could agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the bank deposits and would also relinquish his claim for custody of the children, and further he should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation. This, he said, is because he is convinced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We noticed with disquiet that the questioner drew the picture of the petitioner -face body and then asked certain questions such as where is papa s bottle? Is it on the cupboard? The child kept looking at the drawn sketch and pointed to the part between legs. Questioner then asked if anything was missing in the picture, to which Nikita Answered glesses . After the child again pointed to the private parts between the legs, the questioner wanted the child to draw papa s bottle . But then the child told her you do it. The questioner at the stage had the temerity to draw the picture of the private parts of child s father. We are much disturbed at the manner in which the little child was interrogated by the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers. Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking about what her further did when she was aged 3 and even ignoring the appellant s persistent submission that the little child was briskly tutored by her mother to speak to the present version, There is no reasonable prospect of the sess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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