Whether the court can discharge the accused if there is discrepancy between FIR and statement U/S 164 of CRPC?

The learned counsel for the petitioner emphatically argued that the FIR does not disclose offence under Section 376 of the IPC. The FIR is the initial document. In her statement given by the prosecutrix under Section 164 of the Code of Criminal Procedure (CrPC) after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 of the IPC. Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial.There is no infirmity in the order of the High Court rejecting the criminal revisonal application.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 9552/2021

HAZRAT DEEN  Vs THE STATE OF UTTAR PRADESH 

Date : 06-01-2022 This petition was called on for hearing today.

CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE

HON'BLE MR. JUSTICE J.K. MAHESHWARI

UPON hearing the counsel the Court made the following

O R D E R

In this special leave petition the petitioner has challenged

an order dated 27.10.2021 passed by the High Court of Judicature at

Allahabad, Lucknow dismissing the criminal revision application by

the petitioner being CRLR No. 259/2021.

The aforesaid criminal revisional application was filed

challenging an order passed by the learned Addl. Sessions

Judge/Special Judge (POCSO Act), Bahraich, hereinafter referred to

as the Trial Court, dismissing the application of the petitioner

for discharge.

The facts giving rise to these proceedings are obnoxious. The

prosecutrix is the daughter of the petitioner, only 19 years of

age. It is alleged that she had been sexually abused.

In the petition, it is stated that the charge sheet was filed

implicating the petitioner of offences under various sections of

the Indian Penal Code (IPC) including Sections 354 and 376 thereof

as also Sections 5 and 6 of the Protection of Children from Sexual

Offences Act, 2012, hereinafter referred to as the “POCSO Act”.

Learned counsel appearing on behalf of the petitioner emphatically

argued that the POCSO Act came into force only on 14.11.2012. The

incident alleged pertain to the period prior to the enforcement of

the POCSO Act.

The petitioner has not been charged only under the POCSO Act.

Even assuming that the petitioner could not have been charged under

the POCSO Act, the petitioner has been charged under various

provisions of the IPC which were admittedly in force on the date of

the alleged offence. The learned counsel for the petitioner

emphatically argued that the FIR does not disclose offence under

Section 376 of the IPC. The FIR is the initial document. In her

statement given by the prosecutrix under Section 164 of the Code of

Criminal Procedure (CrPC) after the prosecutrix attained majority,

she categorically made statements which tantamount to offence under

Section 376 of the IPC.

Discrepancies between the FIR and any subsequent statement

under Section 164 of the CrPC may be a defence. However, the

discrepancies cannot be a ground for discharge without initiation

of trial.There is no infirmity in the order of the High Court rejecting

the criminal revisonal application.

The special leave petition is, accordingly, dismissed.

It is, however, made absolutely clear that the observations

made above are not to be construed as any finding of this Court

that there has been no offence under the POCSO Act or that the

prosecutrix has not been abused after commencement of the POCSO

Act.

Pending applications, if any, stand disposed of accordingly.

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