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TMI Blog2017 (9) TMI 2023X X X X Extracts X X X X X X X X Extracts X X X X ..... l, APP for the State accepts notice. 5. Heard. 6. When the matter was taken up for hearing, learned counsel for the petitioner not only read the FIR but also other documents considered relevant and annexed with the petition. Learned counsel for the petitioner sought adjournment but instead of adjourning the matter, learned counsel for the petitioner was directed to file brief written submissions and the matter was directed to be taken up at 2.15 pm. 7. At 2.15 pm again arguments were heard and the written submissions filed by the counsel for the petitioner were also read by him in the Court. Learned counsel for the petitioner has relied on two decisions reported as State of Punjab v. Major Singh 1967 AIR 63 and Samar Singh Puri v. The State (NCT of Delhi) in Crl. Rev. P. No. 129/2009 decided on 09th May, 2011 in support of his contentions. 8. The written submissions filed by the petitioner are extracted hereunder:- "No Court in the civilised world has two views with respect to Touch a women without her permission, with knowledge that her sex is delicate enough to be outraged falls under S. 354 IPC. The statement recorded under S. 164 Cr.P.C., which unequivocally mentions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any allegation which constituted an offence under Section 354 IPC but in her statement under Section 164 CrPC she did make such allegation. The FIR is not an encyclopedia and for purpose of framing of charge, the statement which formed basis for registration of FIR as well the statement under Section 164 CrPC should have been considered by the Court. It has also been submitted that in the statement under Section 164 CrPC, she has specifically mentioned that accused touched her breast while pushing her out of the room and whether such an act was with the requisite intention to outrage her modesty, is a subject matter of trial. It has also been contended that while exercising the revisional jurisdiction, the learned ASJ ought not to have confirmed the order of learned MM discharging the accused for the offence punishable under Section 354 IPC. It has been contended that the offence punishable under Section 354 IPC and Section 509 IPC being triable by the Court of Magistrate, at the stage of framing of charge the relevant provisions governing the stage of charge before the Magistrate are Section 238 and 239 CrPC and not Section 227 CrPC which is applicable in cases triable by the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her to meet the SHO and play the recording in his presence and lodged the FIR. Thereafter she visited the police station and got the FIR registered. She also made request that legal action be taken against the person who has abused her (Maa Bahen Ki Galiyan Di). 13. Copy of the chargesheet annexed with the petition reveals that on 20th June, 2014 the complainant was produced for getting her statement under Section 164 CrPC recorded and on the basis of allegations made therein i.e. touching of breast, Section 354 IPC was also added in the FIR. 14. On 27th September, 2016 after hearing the parties including the complainant who was present with counsel, learned Trial Court, after extracting the provisions of Section 354 IPC and 509 IPC, discharged the accused for the offence punishable under Section 354/509 IPC for the following reasons:- "Therefore, both under section 354 IPC and section 509 IPC, the act of the accused should be with the intention to outrage the modesty of a woman or with the knowledge that by his act, the modesty of a woman will be outraged. I have heard the conversation as took placed between complainant and accused at the time of the incident. The said conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appeal which was treated as revision petition by the learned ASJ. State had also preferred a Criminal Revision Petition No. 12/1/2017 challenging the order on discharge passed by the learned MM. Both the revision petitions i.e. Crl.Rev. No. 121/2017 (preferred by the State) and Crl.Rev. No. 32/2/2016 (preferred by the complainant) were disposed of by the learned ASJ vide common order dated 7th September, 2017 and allowed to the extent that accused was sent to face trial for the offence punishable under Section 509 IPC. 16. The prayer to direct the accused to face trial for the offence punishable under Section 354 IPC has been rejected by the learned ASJ for the following reasons:- "(i) There was not an iota of allegations towards the offence punishable under Section 354 IPC. (ii) The learned Trial Court has discussed the recorded conversation in respect of the entire incident recorded by the complainant from the time she entered the room of the Chairman of the school/accused which continued even she left. (iii) The recorded conversation reflected that the accused refused to comply with the Court order and asked her to leave the room. (iv) On her refusal to do so, the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be examined by the Apex Court was "When can charge be framed?". After reproducing Sec. 227, 228 in so far as session trial is concerned and Sec. 239, 240 relatable to the trial of warrant cases and section 245 (1) & (2) qua the trial of summon cases, in para 29 to 33 of the judgment held as under :- "29. Before adverting to what was stated in Antulay's case, let the view expressed in State of Karnataka v. L. Muniswamy, 1977(3) SCR 113 be noted. Therein, Chandrachud, J. (as he then was) speaking fore a three Judge Bench stated at page 119 that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised. 30. What was stated in this regard in Stree Alyachar Virodhi Parishad' case, which was quoted with approval in paragraph 79 of State of West Bengal v. Mohd. Khalid, 1995 (1) SCC 684 is that what the Court has to see, while considering the question of framing the charge, is whether the material brought on record w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recording the entire event and playing not only before the SHO but also before the Court. It was only on the basis of the recording made by the complainant that both the Court below have given a concurrent finding that even prima facie the ingredients of Section 354 IPC are not satisfied. 23. It is worth mentioning that in the garb of petition under Section 482 CrPC, the petitioner has filed second revision petition which is not maintainable. In the case Wajid Mirza v. Mohammed Ali Ahmed & Ors. 1982 CriLJ 890, the High Court of Andhra Pradesh has observed as under :- "23. This Court in Re Puritipati Jagga Reddy, (1979) 1 AJLJ 1 : AIR 1979 Andhra Pradesh 146 at p. 149 (FB) held : The language of sub-section (3) of Section 397 contains no ambiguity. If any person had already chosen to file a revision before the High Court or to the Sessions Court under subsection (1), the same person cannot prefer a further application to the other Court. To put it in other words, sub-sec. (1) and (3) make it clear that a person aggrieved by any order or proceeding can seek remedy by way of revision either before the High Court or the Sessions Court. Once, he has availed himself of the reme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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