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ID No. 7524/2022
State Vs. Anurag Tyagi
FIR No. 165 /2017
PS: Ranhola

21.04.2023

(The undersigned is working as Duty MM and also Link work of Ld.

ACMM Today)

Order on Charge

Present: Ld. APP for the State.

Sh. B.C. Giri, Ld. Counsel for both the accused.
Accused Anurag in person.
Accused Sumit is absent.

Exemption application has been filed on behalf of accused Sumit.

Same is allowed only for today.
Arguments on charge have already been heard previously.
It was argued by the Ld. APP for the State that on 13.03.2017 at
11:00 AM, proposed accused Sumit at the instance of proposed accused Anurag
(husband of complainant) called the brother of complainant namely Vijeta Tyagi
and inquired about the complainant, whereupon Vijeta Tyagi put the call on
conference with the complainant. At that time, proposed accused Sumit in
furtherance of common intention with accused Anurag, who was having
strained relation with the complainant and wanted her to withdraw the case
filed at CAW Cell and started asking personal questions and when she refused
he got abusive and used expletives.
It is prayed that charge be framed u/S 506/509/34 IPC against both the
accused persons.
Per contra, Ld. Counsel for the accused persons argued that in her
161 Cr.P.C. statement, complainant has narrated that the abovesaid alleged call
was made on 13.02.2017 at 03:15 PM by accused Sumit to her brother Vijeta
Tyagi, whereas in her u/S 164 Cr.P.C. statement to the Ld. MM, the complainant
has stated on S.A. that on 13th March, at behest of accused Anurag his some
known person, who disclosed him name as Sumit had called her brother Vijeta
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Tyagi. That there is a material contradiction in the date of alleged call in the u/S
161 Cr.P.C. statement as well as the statement recorded u/S 164 Cr.P.C. Further,
complainant has failed to disclose in both the abovesaid statements to police
and the Ld. MM as to what abusive language or expletive was used and has
made general and vague allegations. Further, complainant has failed to
handover the alleged Samsung mobile phone upon which she recorded the
abovesaid conversation to the IO. That there is no 65-B Indian Evidence Act
Certificate qua the CD containing the alleged telephonic conversation which is
mandatory since complainant has not handed over the primary evidence to the
IO and also has disclosed that her Samsung mobile phone was replaced due to
non working condition and is not available. That IO has not taken any voice
sample of the proposed accused Sumit. That accused persons have been
falsely implicated. That accused persons are entitled to be discharged due to
lack of sufficient evidence to even disclose a prima facie case.
Heard. Perused.
It is provided as per Section.239 Cr.P.C, When accused shall be
discharged. – If, upon considering the police report and the documents sent
with it under Section 173 and making such examination, if any, of the accused
as the Magistrate thinks necessary and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and
record his reasons for so doing.
It is well settled that at the stage of framing of a charge by
magistrate, probative value of the materials on record cannot be gone into, the
materials brought on record by the prosecution have to be accepted as true at
that stage.
The crystallized judicial view is that the Court cannot conduct a
deep roving enquiry into the evidence at this stage. There is no “sufficient
ground for proceeding” means that no reasonable person can come to the
conclusion that there is any ground whatsoever to sustain the charge against
the accused.
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If the Magistrate is almost certain that the trial would only be an
exercise in futility or sheer waste of time, he has to discharge the accused For
the purpose of determining whether there is sufficient ground for proceeding
against an accused, the Court possesses a comparatively wider discretion to
determine the question whether the material on record, if un-rebutted is such
on which a conviction can be said to be reasonably possible.
The words “not sufficient ground for proceeding against the
accused” appearing in the Section 239 CrPC postulates exercise of judicial mind
on the part of the judge to the facts of the case in order to determine whether
a case for trial has been made out by the prosecution.
Heard. Perused.
Considering the facts and circumstances, I deem it fit to discharge
the proposed accused persons Anurag and Sumit for the following reasons.
Firstly, it is noticeable from the 161 Cr.P.C. statement as well as the
statement u/S 164 Cr.P.C. given by the complainant Ms. Ritu Tyagi that there is
a material contradiction qua the date of the alleged incident. Complainant in
her u/S 161 Cr.P.C. statement has disclosed the incident to have occurred on
13.02.2017 at 03:15 PM, whereas, in her u/S 164 Cr.P.C. statement given to the
Ld. MM, complainant has disclosed the date of incident as 13th March.
Secondly, complainant has not disclosed in both the abovesaid
statements to police and the Ld. MM as to what abusive language or expletive
was used and has made general and vague allegations.
Thirdly, complainant has not handed over her Samsung mobile
phone upon which she recorded the abovesaid telephonic conversation to the
IO. Also, there is no 65-B Indian Evidence Act Certificate qua the CD containing
the alleged telephonic conversation which is mandatory since complainant has
not handed over the primary evidence to the IO. Due to lack of primary
evidence that is the phone containing the alleged audio, there is force in the
submission of the Ld. Counsel for accused persons that even taking voice
sample of the proposed accused Sumit at this stage belatedly will serve no
purpose as complainant has neither produced her mobile phone nor disclosed
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the information qua particulars of the device i.e. the said Samsung mobile
phone to the IO and rather herself stated in her written statement that it was
replaced out due to its non working conditions and therefore tampering of the
electronic record i.e. CD containing audio recording cannot be ruled out.
In view of the above, I am of the considered opinion that the
accused persons are entitled to be discharged due to lack of sufficient evidence
to even disclose a prima facie case.
Accordingly, accused persons Anurag Tyagi and Sumit Tyagi
are discharged qua the offences u/S 506/509/34 IPC.
Accused persons are directed to furnish bail bonds u/S 437-A Cr.P.C.
in the sum of Rs. 10,000/- each with one surety of the like amount on
Digitally signed by
06.06.2023. AAKASH AAKASH SHARMA

SHARMA Date: 2023.04.21

16:33:51 +0530
AAKASH SHARMA
MM-08/WEST, THC
21.04.2023