1. Rule. Rule is made returnable forthwith. Heard by consent.
2. The petitioner/accused has approached this Court being aggrieved by the observation of the learned Additional Sessions Judge, Nagpur in Sessions Trial No.102 of 2012, dated 19.12.2015, whereby it has been observed that the accused is entitled to benefit of doubt.
3. The petitioner in the year 2002 used to take tuition classes for M.P.S.C. The prosecutrix namely Vaishali Bapuraoji Sonkusare (PW3) had joined the tuition classes of the petitioner in the month of January, 2007. At that time, the petitioner had passed U.P.S.C. examination. It was the case of the prosecutrix that though she was doing a Private Job, she was compelled by the petitioner to leave the said job. It was her further case that the accused had taken a room on rent for the prosecutrix and he committed sexual intercourse with her on various occasions. It is further case that, in the year 2008, the prosecutrix was selected in Police Force and was in the Training Institute. It is her further case that, even in the Training Institute, the petitioner used to visit and to have sexual intercourse with her. Out of the said relationship, the prosecutrix had become pregnant and therefore, the petitioner took her for termination of pregnancy. A First Information Report came to be lodged on 28.1.2011 by the prosecutrix making all the aforesaid allegations. At the time of framing of charge in the trial Court, the accused had pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge found that the evidence of prosecutrix was of not such a nature on the basis of which a conviction could be rested without there being any corroboration. The learned trial Judge, however, observed that the accused was entitled to benefit of doubt and as such, acquitted him. Being aggrieved thereby, the present petition.
4. Heard Mr. A.B.Moon, learned Counsel for the petitioner and Mr. M.J.Khan, learned A.P.P. for the respondents.
5. Mr. A.B. Moon, learned Counsel for the petitioner submits that when the learned trial Judge has found that the version of the prosecutrix was not reliable, the observation of the learned trial Judge that the accused was entitled to benefit of doubt is unjust. He submits that, on account of said observation, the petitioner may suffer various hardships. The learned Counsel submits that the petitioner would be without any remedy inasmuch as since he has been acquitted, he even could not prefer appeal against the said observation of the trial Judge.
6. Mr. M.J. Khan, learned A.P.P., on the contrary, submits that the petition itself is not tenable. He submits that there is no distinction between ''Hon''ble acquittal'' and ''acquittal on the basis of benefit of doubt''. He submits that dismissal of the petitioner from service is on the basis of departmental proceedings and it has nothing to do with conviction or acquittal of the petitioner.
7. We have perused the Judgment and Order passed by the learned trial Judge. It will be relevant to refer to the following observations of the learned trial Judge :
"In view of aforesaid discussion, the sole testimony of the prosecutrix, cannot be accepted safely, which is suffering from the serious legal infirmities like contradiction, omission and exaggeration. It also appears that she has deposed in colourful form and much improved her statement while giving the evidence, therefore, such evidence cannot be relied upon safely, for convicting the accused." (Para 33 - Page 167).
"Summing up, I find that as per the evidence on record, the prosecution has failed in its boundant duty to bring home the guilt of accused beyond reasonable doubt. It is true that the version of victim, in rape case, commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of court of the veracity of victim''s evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape." (Para 35 - Page 168).
8. Perusal of the above observations would clearly reveal that the learned trial Judge has himself observed that the testimony of prosecutrix suffers from serious legal infirmities like contradiction, omission and exaggeration. The learned trial Judge has further found that the prosecutrix has deposed in colourful form and much improved her statement while giving the evidence. The learned trial Judge has further found that the prosecution has failed in duty to bring home the guilt of the accused beyond reasonable doubt. The learned trial Judge has, therefore, found that it was difficult to rely on the testimony of the prosecutrix. Having observed all that, the learned trial Judge has observed that, at least in this case, benefit of doubt cannot be given to the accused.
9. The learned A.P.P. has rightly contended that the departmental proceedings are required to be decided on its own merits and a conviction or an acquittal in a Criminal trial would not effect the departmental proceedings. However, at the same time, it also cannot be ignored that there is distinction between ''acquittal simpliciter'' and ''acquittal by giving benefit of doubt to the accused''.
10. If the accused is put on full-fledged trial and at the conclusion of the trial, the learned trial Court comes to the conclusion that the prosecution has utterly failed to prove the charges against the accused, in such a case, we find that the learned trial Judge will have no option than to acquit the accused and would not be justified in giving benefit of doubt. Per contra, if, at the conclusion of the trial, though the Court finds that the prosecution has proved it''s case, however, finds that there are certain lacunas in the prosecution case on account of which the accused is entitled to be given benefit, in such a case, the Court may give benefit of doubt to the accused and acquit him.
11. In the present case, admittedly, the learned trial Judge has himself found that the testimony of the prosecutrix is not reliable and therefore, the prosecution has failed to discharge the burden which lies on it. In that view of the matter, we find that the learned trial Judge was not justified in observing that ''at least in this case the accused is entitled to benefit of doubt''.
12. Having found that the observation of the learned trial Judge in respect of giving benefit of doubt was not justified, we will now deal with the question of tenability of the petition.
13. A Division Bench of this Court in the case of Istiyak Khan Iqubal Khan v. The State of Maharashtra and another reported in 2014 ALL MR (Cri) 3045, to which one of us (Gavai, J) was a party, was considering a case wherein, out of twelve accused, one accused had pleaded guilty for the offence punishable under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as "the MCOC Act") and on the basis of said plea of guilt, conviction was awarded under the MCOC Act. However, the learned trial Judge, at the conclusion of the trial, had found that the prosecution has failed to make out a case against the rest of the accused and had acquitted them. In these circumstances, this Court examined the question as to whether by invoking the powers under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India this Court could set aside conviction under the MCOC Act or not. This Court observed thus :
"18. In view of these backgrounds, we will have to consider as to whether this is an appropriate case for invoking jurisdiction under section 482 of Cr.P.C., or not. It will be relevant to refer to the following observation of the Apex Court in the case of Pepsi Foods Ltd. And another v. Special Judicial Magistrate and other, [1998 ALL MR (Cri) 144 (S.C.)] (supra).
"22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provision of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to."
The Apex Court has held that the powers under Section 482 are to be exercised to prevent abuse of process of any court or otherwise to secure the ends of justice.
19. It will also be appropriate to refer to the observations made by the Apex Court in the case of Superintendent and Remembrancer of Legal Affairs West Bengal v. Mohan Singh and others, reported in (1975) 3 Supreme Court Cases, 706 which are as under :
"The earlier application which was rejected by the high Court was an application under Section 561 A of the code of Criminal Procedure to quash the proceedings and the high Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceedings at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561 A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561A preserves the inherent power of the high Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the high Court proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561 A. This the High Court was perfectly entitled to do and we don''t see any jurisdictional infirmity in the order of the high Court. Even on merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos. 1 and 2."
It can, thus, clearly be seen that the Apex Court has held that in spite of rejection of earlier application under section 561A (renumbered Section 482), the subsequent application was tenable under the same provisions. We find that the present case is a rarest of the rare case wherein though the other accused have been acquitted on the ground that the prosecution has failed to prove the case under the provision of MCOC Act, it is only the present petitioner who is undergoing sentence on account of mistaken plea of guilt."
14. It will also be appropriate to refer to some of the observations of the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Others reported in (2003) 6 SCC 675. Their Lordships of the Apex Court have laid down certain guidelines for this Court when it exercises powers of Certiorari under Article 226 of the Constitution of India. It will be appropriate to refer to sub-paras 3, 5 and 6 of paragraph no.38 of the said Judgment, which are as under :
"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :
(1) .......
(2) .......
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) .........
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
15. It could further be seen that, as has been held by the Apex Court, there is no limitation on powers of this Court under Section 482 of the Code of Criminal Procedure. The only caution that is given by the Apex Court is that the power has to be exercised sparingly and only in a fit case.
16. The question that we may put to ourselves is that when the learned trial Judge has found that the evidence of prosecutrix was of not such a nature on the basis of which a conviction could be based without there being corroboration, could a person be stamped with acquittal by giving benefit of doubt. As already observed herein above, we are not required to go into other aspects of the matter.
17. Undisputedly, there is a distinction between ''acquittal simpliciter'' and ''acquittal on account of giving benefit of doubt''. Undisputedly, acquittal by giving benefit of doubt would be stigmatic in nature. In that view of the matter, we find that this is a fit case wherein this Court should exercise powers under either Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure to avoid failure of justice and to do complete justice. In the result, the following order :
The observation of the learned Additional Sessions Judge, Nagpur, in the Judgment delivered in Sessions Trial No.102 of 2012, dated 19.12.2015 "Thus, taking into consideration all the circumstances discussed above, I find that at least in this case, benefit of doubt can be given to the accused" is quashed and set aside.
No order as to costs.
Ordered accordingly.
