The Supreme Court has termed as "utterly incomprehensible" an order of the Madhya Pradesh High Court discharging an accused of the offence of rape essentially on the ground of delay in the registration of the First Information Report (FIR).

A bench of justices DY Chandrachud and JB Pardiwala said the facts of this litigation was quite "heart-breaking" and set aside the order of the high court holding that the impugned order could be termed as "perverse and not sustainable in law".

The verdict was pronounced on August 12 but was yet to be uploaded on the apex court website.

"At the cost of repetition, we state that the impugned order of the High Court is utterly incomprehensible. We have yet to come across a case where the High Court has thought fit to discharge an accused charged with the offence of rape on the ground of delay in the registration of the FIR," Justice Pardiwala said while writing the judgement on behalf of the bench.

The top court, however, did not interfere with the decision of the trial court of discharging the accused Amit Kumar Tiwari, represented by advocate Swarnendu Chatterjee, from the offence punishable under Section 306 of the IPC (abetment to the commission of suicide).

Referring to the high court order dated December 2, 2021, the bench said what is relevant to note is that although the high court has devoted two full paragraphs for the purpose of recording the submissions as regards the age of the deceased (rape victim), yet ultimately no specific finding has been recorded in that regard by the high court.

"The high court proceeded altogether on a different footing. The high court thought fit to discharge the accused of all the charges on the ground that there was delay in lodging the FIR and the entire case put up by the parents of the deceased was doubtful," it said.

The bench said the law is well settled that although it is open to a high court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence.

It said in a case praying for quashing of the charge, the principle to be adopted by the high court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not.

The top court said it is also well settled that when the petition is filed by the accused for the quashing of charge framed against him, the superior court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court, a charge framed against the accused needs to be quashed.

It said, "...the impugned order of the high court could be termed as perverse and not sustainable in law. We refrain from observing anything further in regard to the exact and correct age of the deceased at the time of commission of the offence as alleged as it may cause prejudice to the parties in some manner or the other. It is for the trial court to determine the correct age on the basis of the evidence that may be led by the prosecution as well as by the defence."

It was also critical of the state government not filing an appeal against the order and said that it is a "disturbing feature of this litigation" that the unfortunate father of the deceased had to come before this court seeking justice.

The top court said that it was expected of the State to challenge the illegal order passed by the high court and barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State, which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person, who has acted against the social interests of the community to book.

"We find that the high court's conclusion about the age of the deceased and also as regards the delay in lodging the FIR besides being a premature assessment of evidence, is also attributable to the wrong premises on which the high court's reasoning is based," it said, while setting aside the order of the high court and allowed the trial court to proceed with the trial in accordance with the order framing charge dated December 18, 2020.

On April 27, 2020, the victim girl had complained of stomach pain and was taken to a private nursing home, thinking it as a case of stomach tumour.

While waiting for the doctor at the nursing home, the girl delivered a child on the bench and was rushed to the minor operation theatre.

The girl told her father that Tiwari was the father of her child and they both would start a new life with their baby in a nearby town.

The father of the victim went to bring some money from the village and by the time he returned, the girl had committed suicide and the infant was lying on the dressing table. After that an FIR was lodged against the accused.

The trial court framed charges for rape and provisions of POCSO Act against Tiwari.