Delhi District Court
P.S. Hari Nagar vs Gurbax Singh @ Montu Shah on 7 September, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
1. Criminal Revision No. 12/1/2017
U.I.D. No. 56393/2016
P.S. Hari Nagar
State,
Govt. of NCT of Delhi,
Through Public Prosecutor, West District,
Delhi.
......... Revisionist
Versus
Gurbax Singh @ Montu Shah,
S/o Late Sardar Duni Singh,
R/o WZG6/3, Sant Nagar Extension,
Tilak Nagar, New Delhi110018
....... Respondent
Date of filing: 10.11.2016 Date of arguments: 06.09.2017 Date of order: 07.09.2017
2. Criminal Revision No. 32/2/2016 U.I.D. No. 54592/2016 P.S. Hari Nagar Varinder Kaur, D/o S. Joginder Singh, R/o 628, Shiv Nagar Ext., New Delhi.
....Revisionist UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 1 of 17 Versus
1. State Through SHO PS Hari Nagar
2. S. Gurubux Singh (Montu Shah) The Chairman, Guru Harkishan Public School, Fateh Nagar, New Delhi .....Respondents Date of filing: 25.10.2016 Date of arguments: 06.09.2017 Date of order: 07.09.2017 O R D E R
1. The present Criminal Revision No. 56393/2016 under Section 397/399 of the Code of Criminal Procedure (hereinafter referred as Cr.P.C.) is filed by the State, Govt. of N.C. T of Delhi against the impugned order dated 27.09.2016 passed by the Court of Ld. Metropolitan Magistrate, whereby the accused was discharged for the commission of the offence punishable under Section 354/509 IPC
2. A criminal appeal by the complainant/victim under Section 372 of Cr.P.C. against the order dated 27.09.2016 UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 2 of 17 passed by the Ld. Metropolitan Magistrate discharging the accused is also filed.
3. It is pertinent to mention that vide order dated 20.05.2017, the Criminal appeal filed under Section 372 Cr.P.C. against the order dated 27.09.2017 by the victim/complainant has been converted into the revision against the impugned order dated 27.09.2016.
4. The revision petition filed by the State and the complainant/victim has been filed against the same impugned order i.e. order of discharge dated 27.09.2016 passed by the Ld. Metropolitan Magistrate (Mahila Court02), West, Tis Hazrai Courts, Delhi. Therefore, both are taken up together for disposal.
5. A case FIR bearing no. 623/2014, under Section 509 IPC was registered in the Police Station Hari Nagar on 12.06.2014 on the statement of the complainant dated 11.06.2014. The police conducted the investigation. During investigation, the UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 3 of 17 statement of the victim was also got recorded under Section 164 Cr.P.C dated 20.06.2014. The police on the basis of statement under Section 164 Cr.P.C. has added Section 354 IPC. After completion of the investigation, chargesheet for the commission of the offence punishable under Section 354/509 IPC was filed against the accused.
6. The Ld. Metropolitan Magistrate vide impugned order dated 27.09.2016 has discharged the accused for commission of both the offences under Section 354/509 IPC. The State and victim, being aggrieved by the impugned order has challenged the same before this Court.
7. The notice of both the petitions was issued to the respondent/accused. The respondent/accused on being served put the appearance through his counsel and strongly opposed the revision petition.
8. I have carefully perused the material on record and gone through the submissions made by Ld. Addl. PP for the State, UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 4 of 17 Ld. Counsel for the victim and Ld. Counsel for respondent/accused.
9. It is submitted by the Ld. Addl. P.P. for the State and the Ld. Counsel for the complainant that the Ld. Trial Court has passed the impugned order contrary to the provisions of law. That the Ld. Trial Court has fails to appreciate the collective reading of FIR, statement recored under Section 164 Cr.P.C. and other material on record. That the Ld. Trial Court has wrongly placed reliance on the contents of the CD which was not part of the chargesheet. That at the stage of charge, the Ld. Trial Court is required to evaluate the material and documents on record, with a view to find out if the facts emerging there from, taken at their face value are disclosing the existence of all the ingredients constituting the alleged offence. That the Court is not expected to go deep into the probative value of the material on record at the stage of charge. It is prayed that in view of the grounds of the revision, the order of Ld. Trial Court UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 5 of 17 may kindly be set aside. Written synopsis by the Ld. Counsel for the complainant/victim was filed.
10. On the other hand, it is submitted by the Ld. Counsel for the respondent/accused that there is no illegality or infirmity in the order passed by the Ld. Trial Court. That the complainant is of cantankerous nature, who has moved heavens and earth to persecute the innocent accused. That due to the false implication in the present case, the revisionist/accused was forced to resign from the post of Chairman of the school. That the present case is the classic example of using judicial process by complainant for her own insatiable vengeance. That the statement under Section 164 Cr.P.C. was recored after 9 days which contains material improvements. That the corroborative material did not support the allegations. That the complainant in a premeditated plan attempted to somehow provoke the respondent to act impetuously. That the versions recorded and placed in the form of transcript would establish that the UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 6 of 17 complainant entered the room of the respondent with premeditated plan of provoking him by repeating things which he had already and courteously declined. That there was no intention to outrage the modesty of the complainant. It is prayed that the revision petition may kindly be dismissed. Written synopsis by the Ld. Counsel for the respondent was also filed.
11. The perusal of the record would reveals that the Ld. Trial Court has placed reliance upon the conversation recorded by the complainant at the time of the incident. The said conversation recorded in the form of CD and its transcript are placed on record. It is submitted by the Ld. Addl. P.P. for the State and the Ld. Counsel for the complainant that the Ld. Trial Court has wrongly placed reliance upon the CD of the conversation and its transcript. That the CD and its transcript were not part of the chargesheet, therefore, the Ld. Trial Court could not have placed reliance upon the same at the stage of UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 7 of 17 charge. On the other hand, it is submitted by the Ld. Counsel for the respondent/accused that it is well within the powers of Ld. Metropolitan Magistrate to place reliance upon the material produced before it.
12. On this issue, I have placed reliance upon one judgment of Division Bench of Hon'ble High Court of Delhi reported as 234 (2016) DLT 198 Ramesh Kumar Vs State of Delhi & Others wherein it is held as under: "Para 45. In civil trials, the documents filed by one party but not formally proved, are deemed as admitted by the party which filed the same and an admission on its part. Such documents, if relied upon by the opposite party, need not be formally proved under Sections 17 to 21 of the Evidence Act. Such documents are, at the behest of the opposite party, so read into evidence. The same principle would thus apply to documents which have been collected by the prosecution during a criminal investigation and have been filed along with the chargesheet, though not formally proved in evidence. It would be considered fairness on the part of the prosecution to place such documents even though they do not support the prosecution theory but support the case of the defence on UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 8 of 17 record. The defence would be entitled to utilize such documents even if the prosecution has not lead formal proof thereof".
13. In the present case, the conversation recorded by the complainant and converted into the CD along with its transcript was placed on record by the complainant along with an application for cancellation of bail. This CD and its transcript were filed by the complainant/victim herself during the pendency of the case. The prosecution or the complainant have not raised any shadow of doubt upon the authenticity of these documents. The documents were filed by the victim herself without any fear, force and coercion. There is no other reasons to discard the evidence brought on record by the complainant/victim herself, during the initial stage of the trial. The ratio of judgment Ramesh Kumar (Supra) passed by the Hon'ble High Court of Delhi is also applicable to the facts of the present case. The document i.e. CD and its transcript is though not formally proved or filed along with chargesheet but UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 9 of 17 the same is now part of the record. The authenticity of these documents is not disputed by the prosecution or the victim. Therefore, the Ld. Trial Court has rightly placed reliance upon these documents. The contention raised by the Addl. P.P. for the State and the Ld. Counsel for the complainant/victim is not sustainable in this regard.
14. The record would reveal that the complainant in her complaint recorded in the Police Station on the date of the incident had levelled allegations for commission of the offence punishable under Section 509 IPC only. There was not an iota of allegations towards commission of the offence punishable under Section 354 of the IPC. The Ld. Trial Court has discussed that the recorded conversation placed on record by the complainant would reveals that the entire incident has been recorded by her from the time, she entered in the room of the accused and the recording continued even when she left. The conversation reflects that the accused refused to accept the UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 10 of 17 court order and asked the complainant to leave his room. On the refusal of the complainant to do so, he started shouting on the complainant and he kept on asking her as to how she entered into his room without his permission. In the entire conversation, the accused has used the abusive language only at one time that to in the context of a court order. There is initial statement of the complainant lodged by the complainant whereby the FIR was registered. There is CD regarding conversation and its transcript, recorded by the complainant regarding the incident. There is delay of 9 days in getting the statement under Section 164 Cr.P.C. recorded. There was not an iota of allegations regarding offence under Section 354 of the IPC in the initial complaint or in the CD recording.
15. It is settled proposition of law that at the time of consideration on the charge only a prima facie case is to be seen. The provision of Section 227 of Cr.P.C gives power to the Court to discharge the accused. It is duty of the Court to UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 11 of 17 find out whether a prima case is made out against the accused or not at the stage of charge. The Court has to consider whether the materials produced by the prosecution are sufficient enough to justifying the framing of charge. If two views are equally possible and the Court is satisfied that the evidence produced by the prosecution give rise to some suspicion and not the grave suspicion against the accused, the Court is justified to accept the view which give rise only to some suspicion and discharge the accused in exercising power under Section 227 of Cr.P.C.
16. The Hon'ble Supreme Court in the judgment titled as "Dilawar Balu Kurane Vs. State of Maharashtra (2007)2 Supreme Court Cases 135" held that:
"In exercising powers under Section 227 Cr.PC, the settled position of law is that the judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 12 of 17 against the accused has been made out; 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; by and large if two view are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 Cr.PC, 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 evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
17. In the present case also on the basis of the material on record, two view are equally possible. This court is satisfied that the evidence produced by the prosecution gives rise only some suspicion and not the grave suspicion against the accused for commission of the offence punishable under Section 354 IPC. Therefore, this court is inclined to accept the view which UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 13 of 17 give rise only to some suspicion, hence, accused is entitled for discharge in exercise of powers under Section 227 of Cr.P.C.
18. In view of above, I am of the considered opinion that there is no illegality or infirmity in the order passed by the Ld. Trial Court regarding the discharge of the accused for the commission of the offence punishable under Section 354 IPC. The order of Ld. Trial Court regarding the discharge of the accused punishable under Section 354 IPC is accordingly upheld.
19. The accused is also chargesheeted by prosecution for the commission of the offence punishable under Section 509 of the IPC. The Ld. Trial Court while dealing with the commission of the offence punishable under Section 509 IPC has held that the entire conversation recorded by the complainant regarding the entire incident would reflect that the accused used abusive language only once and that to in context with the court order and not against the complainant. That the accused used the UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 14 of 17 abusive language, however, no abusive words has been used in the entire conversation with an intention to outrage the modesty of a woman.
20. Section 509 of the IPC provides punishment for use of the word, gesture or act intended to insult the modesty of a woman. This Section punishes a person who intentionally insults the modesty of a woman in any of the ways specified therein. This Section requires that there must be intention to insult the modesty of a woman. That intention must be caused by uttering any words, or making any sound or gesture, or exhibiting any object. This Section makes it clear that intention to insult the modesty of a women is the essential ingredients of the offence. The allegations or the fact and circumstances must establish that the accused had intention to insult the modesty of a women. The word modesty does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency but does UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 15 of 17 not exclude all other act falling short of downright indecency in manner and conduct.
21. There are allegations that the accused had used the abusive language. The CD recording of the conversation and its transcript would also show that the accused had used the abusive words. Even though the accused has used the abusive words/language against the court order but the use of such abusive word in the presence of a woman would invite the application of Section 509 IPC. The intention to outrage the modesty or the knowledge for the same may be attributed only by the use of the abusive word in the presence of a woman. The use of the abusive word in the presence of a woman is an insult to the modesty of a woman. The modesty of a woman is a fact which is attached to a female on account of her sex. Therefore, in the present fact and circumstances, there is sufficient material on record to frame the charge for commission of the offence punishable under Section 509 IPC. UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 16 of 17 The Ld. Trial Court has wrongly discharged the accused for commission of the offence punishable under Section 509 IPC.
22. Accordingly, as discussed above, the revision filed by the State/Victim is partly allowed. The order of the discharge of the accused for the commission of the offence under Section 509 IPC by the Ld. Metropolitan Magistrate, is set aside.
23. The accused is directed to appear before the Ld. Trial Court on 18.09.2017 at 2.00 PM.
24. Revision files be consigned to record room after completion of necessary formalities.
25. TCR be sent back along with copy of this order. Announced in the open court today i.e. 07th September, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No. 56393/16 State Vs Gurbax Singh @ Montu UID No. 54592/16 Varinder Kaur Vs State & Another 17 of 17