Union Of India V.

Prafulla Kumar Samal & Anr [1978] Insc 222; Air 1979 Sc 366; 1979 (2)
Scr 229; 1979 (3) Scc 4 (6 November 1978)

Court Judgment Information

 Year: 1978
 Date: 3 Scc 4
 Court: Supreme Court of India
 INSC: [1978] INSC 222

Text of the Court Opinion

FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA DESAI, D.A.

Citation
1979 AIR 366 1979 SCR (2) 229 1979 SCC (3) 4

Citator Info
RF 1986 SC2045 (45) RF 1990 SC1962 (6)

Act
Code of Criminal Procedure, 1973, S. 227-order of discharge by a Special Judge, scope and
ambit.

Facts of the Case: -

1. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal is directed
against the judgment dated 30th August, 1976 of the High Court of Orissa by which the
High Court has upheld the order of the Special Judge, Puri discharging respondents No. 1
and 2. The facts of the case lie within a narrow compass and centre round an alleged
conspiracy said to have been entered into between respondents No. 1 and 2 in order to
commit offences under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act
(hereinafter referred to as the Act) read with section 120-B I.P.C. The main charge
against the respondents was that between 19-2-1972 to 30-3-1972 the respondent entered
into an agreement For the purpose of obtaining pecuniary advantage for respondent No. 1
P. K.

2. Samal and in pursuance of the said conspiracy the second respondent Debi Prasad Jena,
who was the Land Acquisition officer aided and abetted the first respondent in getting a
huge sum of money for a land acquired by the Government which in fact belonged to the
Government itself and respondent No. 1 was a skew thereof. It is averred in the
chargesheet that respondent No. 1 by abusing his official position concealed the fact that
the land which was the subject matter of acquisition and was situated in Cuttack
 Cantonment was really Khasmahal land belonging to the Government and having made it
appear that he was the undisputed owner of the same, got a compensation of
Rs.4,18,642.55
3. The charge-sheet contains a number of circumstances from which the inference of the
conspiracy is sought to be drawn by the police. After the charge-sheet was submitted
before the Special Judge, the prosecution ousted him to frame a charge against the
respondents. The Special Judge, Puri after having gone through the charge-sheet and
statements made by the witnesses before the police as also other documents came to the
conclusion that there was no sufficient ground for framing a charge against the
respondents and he accordingly discharged them under section 227 of the Code of
Criminal Procedure, 1973 hereinafter called the Code). The Special Judge has given
cogent reasons 231 for passing the order of discharge. The appellant went up to the High
Court in revision against the order of the Special Judge refusing to frame the charge, but
the High Court dismissed the revision petition filed by the appellant and maintained the
order of discharge passed by the Special Judge. Thereafter the appellant moved this Court
by an, application for special leave which having been granted to the appellant, the appeal
is now set for hearing before us.

Question for Determination: -

- The short point which arises for determination in this case is the scope and ambit of an
order of discharge to be passed by a Special Judge under section 227 of the Code. The
appeal does not raise any new question of law and there have been several authorities of
the High Courts as also of this Court on the various aspects and grounds on which an
accused person can be discharged, but as section 227 of the Code is a new section and at
the time when the application for special leave was filed, there was no direct decision of
this Court on the interpretation of section 227 of the Code, the matter was thought fit to
be given due consideration by this Court.
Held: -
1. The Court held that, so far as the present case (offences committed under the Prevention
of Corruption Act) is concerned it is regulated by the procedure laid down by the
Criminal Law Amendment Act under which the police has to submit, charge-sheet
directly to the Special Judge and the question of commitment to the Court of Session
does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed
for trial of sessions cases and the consideration governing the interpretation of section
227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is
submitted before the Special Judge.
2. The scope of section 227 of the Code was considered by a recent decision of this Court in
the case of State of Bihar v. Ramesh Singh(1) where Untwalia, J. speaking for the Court
observed as follows: “Strong suspicion against the accused, if the matter remains in the
region of suspicion, cannot take the place of proof of his guilt at the conclusion of the
 trial. But at the initial stage if there is a strong suspicion which leads the Court to think
that there is ground for presuming that the accused has committed an offence then it is
not open to the Court to say that there is no sufficient ground for proceeding against the
accused. The presumption of the guilt of the accused which is to be drawn at the initial
stage is not in the sense of the law governing the trial of criminal cases in France where
the accused is presumed to be guilty unless the contrary is proved. But it is only for the
purpose of deciding prima facie whether the Court should proceed with the trial or not.
3. This Court has thus held that whereas strong suspicion may not take the place of the
proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge
in order to frame a charge against the accused. Even under the Code of 1898 this Court
has held that a committing Magistrate had ample powers to weigh the evidence for the
limited purpose of finding out whether or not a case of commitment to the Sessions Judge
has been made out.
4. Thus, on a consideration of the authorities, the following principles emerged:
i. That the Judge while considering the question of framing the charges under section
227 of the Code 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:
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 test to determine a prima facie case would naturally depend upon the facts of
each case and it is difficult to lay down a rule of universal application. By and large
however if two views are equally possible and the Judge is satisfied that the evidence
produced before him while (1) A.I.R. 1967 S.C. 740. (2) [1969] 2 S.C.R. 520. 235
giving rise to some suspicion but not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
iv. That in exercising his jurisdiction under section 227 of the Code the Judge which
under the present Code is a senior and experienced Judge cannot act merely as a Post
office or a mouth-piece 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 appearing in the case and so on. This however does not
mean that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.

5. Finally it was argued that, what was acquired by the Government was merely the lessee's
interest, but the respondent No. 1 appears to have got compensation as the owner. This is
factually incorrect. We have already referred to the circumstances which clearly show
that the Government was fully aware that it was only the lessee's interest which was
being acquired and even the fresh estimate for Rs 4,18,642. 55, which was sent to the
 Government was shown as representing the Raiyyati interest. Mr. Agarwala appearing for
the respondents fairly conceded that having regard to the nature, character and situation
of the land, it could not be said that the amount of compensation awarded did not
represent the market value of the lessee's interest of the land.
6. On the other hand, in the counter-affidavit at page 87 of the paper book, it has been
alleged that 16 sale-deeds executed during the year 1970 and sale-deeds executed during
the year 1971 pertaining to the village in question were acquired at the rates varying from
Rs. 42,165 to 750,000. The High Court has also pointed out that the records before the
Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of Rs.
1.70 lakhs per acre as far back 1: as 3-2-1970 and if two years later the valuation was
raised to Rs. 2 lakhs it cannot be said that the land was in any way over-valued.
7. Lastly, there does not appear to be any legal evidence to show any; meeting of mind
between respondents No. 1 and 2 at any time. Although the Collector at the time of the
acquisition was a distant relation of respondent No. 1 he had himself slashed down the
rate of compensation recommended by the Revenue officer from Rs. 2,10,000 to
Rs.2,00,000 and it was never suggested by the prosecution that the Collector was in any
way a party to the aforesaid conspiracy.
8. For these reasons, therefore, we find ourselves in complete agreement with the view
taken by the High Court that there was no sufficient ground for trying the accused in the
instant case. Moreover, this Court could be most reluctant to interfere with concurrent
findings of the two courts in the absence of any special circumstances.
9. For the reasons given above, the judgment of the High Court is affirmed and the appeal is
dismissed.
Tarun Jit Tejpal vs State of Goa, SC on 19 August, 2019

Introduction: -
The judgment passed in the case of Tarun Tejpal raised a lot of eyebrows as it was not in
compliance with the decisions made in such cases in the previous years. It was a case of rape and
sexual harassment committed by the editor-in-chief of Tehelka magazine upon one of the leading
Journalist of the magazine which happened around 7 1/2 years ago in the grand Hyatt Hotel of
Goa. The case also attracted a lot of attention from the media around the world as the name of
the victim was highlighted and secondly it was a prominent case where a man who was in a
position of superiority was charged with sexual harassment and rape with a woman who was
obviously junior to him in the profession.

Essential details of the Case

 Citation – SC(ors) 10/2014

 Petitioner – State
 Respondent- Tarun Tejpal
 Petitioners lawyer – F. Tavora and Cyndiana Silva
 Respondents lawyer – R. Gomes
 Statutes – Indian Penal Code – Sections – 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341
and 342.
 Bench – Justice Kshama M Joshi
 Date of judgement- 21st May 2021
 Present status- The Accused was acquitted for all the offences punishable under
Sections – 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.

Facts of the case

 It was between 7th to 11th November, 2013 the THINK Fest was organised by the
Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then
Editor-in-Chief of Tehelka, had sexually assaulted a female journalist who worked under
him in the magazine.
 It is alleged that he committed the offence of wrongful confinement, sexual harassment
and rape on the victim.
 The prosecutrix had alleged that on 7th November 2013 by making the excuse of waking
up the American actor Robert De Niro who was the Chief Guest at the fest and the
prosecutrix was chaperoning for him and even shared a physical relationship with him
that only lasted during the fest.
 The accused took her to one of the guest lifts of Hotel where he wrongfully confined her
using force against her consent and committed rape on her.
 Further, on the next night of 8th November 2013 the accused took her to another guest
lift and again sexually assaulted her.
Issues raised

 Whether the accused has committed rape on the prosecutrix as defined u/s 375 (b) and (d)
of Indian Penal Code?
 Whether the accused outraged the modesty of the prosecutrix using criminal force?
 Whether accused committed sexual harassment and physical contact by explicit and
unwelcomed advantages and overtures to the prosecutrix?
 Whether the accused used criminal force to disrobe the prosecutrix?
 Whether the accused was in a position of dominance over the prosecutrix?
 Whether the accused wrongfully confined the prosecutrix in the lift?

Arguments by the petitioner

 The counsel of the prosecutrix contended that the testimony of the victim in cases of rape
or sexual harassment crimes is compelling and most importantly there was an apology
email which was sent by the accused to the victim land duly presented to the court. All
the messages were systematically presented to the court in a DVD.
 It was contended that the accused confined the prosecutrix with criminal force to disrobe
her and then raped her inside the lift.
 It was also argued that the accused was in a position of dominance over the prosecutrix
and so it was easy for him to force her and obtain advantages.
 It was stated the accused was guilty of outraging a woman’s modesty by removing her
underwear in a lift and sexually assaulting her.

Arguments by Respondent

 The Respondent clearly denied all the charges against him and through his counsel stated
that the alleged incident didn’t happen at all and it was just a drunken banter between the
two.
 The respondents counsel argued that the Investigation officer had not recorded the
statements of very important witnesses, the CCTV footage of the first floor where the
alleged crime took place was deleted and important evidence were concealed so as to
maintain the case of the prosecutrix.
 The counsel on behalf of the accused contended that the IO concealed the fact the lift
couldn’t be stopped at one floor as stated by the prosecutrix and the cctv footage shows
that the lift opened twice on the ground floor, also the accused exited the lift on the first
floor and nothing happened on the night of 7th November 2013.
 It was argued that the prosecutrix did not make use of physical force to stop the accused
and sustained no injuries neither she informed any police, colleagues or friends and most
importantly even after the alleged incident happened she was roaming around freely in
the hotel premises which obviously isn’t the behaviour of a rape victim.
Judgment

It was held in the Court that out of six issues raised against the accused of which only one was
against the accused rest all being in his favour, dismissed all the charges levelled against him
under Sections – 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC and acquitted him.

 In cases of rape and sexual harassment the sole testimony of the victim can be the basis
of the conviction of the accused. But this is only applicable when the testimony is of a
Sterling quality, inspires confidence and at the same time is very trustworthy. The court
held that in the present case the prosecutrix has time and again changed her
statement and the court always has heard different versions of a story from her side,
Prosecutrix made many false and inconsistent statements and also lied about her
intimate relationship with one of the defence witnesses.
 The court observed that the CCTV footage that was presented did not support the
statements made by the prosecutrix and glaring contradictions were seen in relation to her
statements and the CCTV footage that was captured. The court clearly stated that The
CCTV footage does not support the statement that the prosecutrix was in extreme
trauma and blinking tears as per her statement.
 After scrutinising the flirtatious WhatsApp messages the court observed that it contains
various discrepancies at the same time she was again and again changing the original
version of a story and it was observed that the prosecutrix was indulged in sexual talks
with a lot of our colleagues to which the court said that the prosecutrix has
the propensity to indulge in sexual Conversations. All the WhatsApp messages
between the accused and the victim on the night of 7 November 2013 were carefully
examined by the court and it was stated that as the victim never refused the claim of the
accused of the conversation being a drunken banter the court ruled in favour of the
accused.
 There was a huge lapse in the investigation and the most important and crucial evidence
was the CCTV footage of the first floor of the Hyatt hotel in Goa where the alleged crime
was committed went missing and crucial witnesses had their statements unrecorded. All
in all the court concluded that The statement made by the prosecutrix that she was
wrongfully confined using criminal force in the lift by the accused could not be proved.
 As for the apology email that was sent by the accused to the prosecutrix the court held
that there was absolutely no confession made by the accused of any incriminating fact
that he committed assault on the prosecutrix And that email is not a reply to any mail
which was sent by the prosecutrix containing allegations of assault and that mere claim
that allegations were not denied does not amount to confession.
 Calculated actions of the prosecutrix, Sustaining no injury and not fighting back or giving
any sort of warning to the accused played against the claims of the victim and hence the
court was of the view that Allegation of rape and sexual harassment couldn’t be proved
by the prosecution beyond reasonable doubt.

Critical Analysis
  This judgement passed by the Goa court is a sheer example of dissecting evidence
beyond the language of sexism.
 It has time and again been stated by the various courts that the sole testimony of the
victim in case of rape and sexual harassment matters is enough for the conviction of the
accused but in this case the changing stories of the victim and her false statements in
various matters took a toll onto her case.
 The court raised many eyebrows when it stated that the behaviour of the victim wasn’t in
compliance with that of a rape victim at the same time she did not use all possible
escapes to get out of the situation.
 The absence of medical evidence and the refusal of the victim to show her email played
the key role in the acquittal of Tarun Tejpal.
 It was the first case in the history of India, a case of sexual harassment and rape where
the witnesses and the evidences weighed more than testimony of the victim, ethics and
morals which govern such cases.

UOI vs Prafulla Kumar Samal with Tarun Jit Tejpal v State of Goa

It is well settled by this Court in a catena of judgments including Union of India v. Prafulla
Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] ,
Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra,
(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan Kumar v. CBI, (2010) 9
SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015)
2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta
[Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v.
Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC
(Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh
Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and
Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of
Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge
while considering the question of framing charge under Section 227 of the Code 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 equally possible and the Judge
is satisfied that the evidence produced before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully within his rights to discharge the accused.
The Judge 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 statements and the documents
produced before the court, any basic infirmities appearing in the case and so on. This however
does not mean that the Judge should make a roving enquiry into the pros and cons of the matter
and weigh the materials as if he was conducting a trial.