Delhi District Court
Nitesh Kumar vs State Of Nct Of Delhi on 2 September, 2023
IN THE COURT OF SH. LOVLEEN,
ADDITIONAL SESSIONS JUDGE-03 (SOUTH EAST),
SAKET COURTS, NEW DELHI
CNR No: DLSE01-007136-2019
CRL. REVISION No. 572/2019
Mr. Nitesh Kumar
S/o Mr. Harpal Singh,
R/o House No. 531,
Village Tahirpur,
Delhi-110095. .... Revisionist
VERSUS
1. The State of NCT Delhi
Through its Standing Counsel.
2. Ms. Sangeeta
W/o Mr. Gautam
R/o H. No. 146/3,
Lakhpat Colony, Part-I,
Gali No. 3, Meethapur,
New Delhi-110044.
3. Mr. Govind Ram
R/o Plot No. 2, Ground Floor,
Main Molarband School Road,
Lakhpat Colony, Part-II,
Badarpur, New Delhi-110044. ...Respondents
For Revisionist : Sh. Naresh Bhardwaj, Ld. Counsel for revisionist.
For Respondent: Sh. A.T. Ansari, Ld. Addl. PP for State/R-1.
Date of institution : 12.09.2019
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Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 1....of 24
Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors.
Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
CNR No: DLSE01-007746-2019
CRL. REVISION No. 632/2019
Ravi Tiwari
S/o Shri A.K. Tiwari
R/o H. No. B-251, Ground Floor,
Shalimar Garden Main,
Shahibabad (U.P.)-201005 ....Appellant
VERSUS
1. The State of NCT Delhi
Through its Standing Counsel.
2. Ms. Sangeeta
W/o Mr. Gautam
R/o H. No. 28A, Meethapur Village,
New Delhi.
3. Mr. Govind Ram
R/o Plot No. 2, Ground Floor,
Main Molarband School Road,
Lakhpat Colony, Part-II,
Badarpur, New Delhi-110044. ...Respondents
For Revisionist : Sh. Naresh Bhardwaj, Ld. Counsel for revisionist.
For Respondent: Sh. A.T. Ansari, Ld. Addl. PP for State/R-1.
Date of institution : 25.11.2019
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Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 2....of 24
Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors.
Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
CNR No: DLSE01-001034-2020
CRL. REVISION No. 53/2020
Mr. Moseen @ Rahul
S/o Mr. Hanif
R/o C-508, Kotla, Mubarakpur,
New Delhi 110003 ....Appellant
VERSUS
1. The State of NCT Delhi
Through its Standing Counsel.
2. Ms. Sangeeta
W/o Mr. Gautam
R/o H. No. 28A, Meethapur Village,
New Delhi-110044.
3. Mr. Govind Ram
R/o Plot No. 2, Ground Floor,
Main Molarband School Road,
Lakhpat Colony, Part-II,
Badarpur, New Delhi-110044. ...Respondents
Date of institution : 07.02.2020
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Date of Reserving judgment : 25.08.2023
Date of Pronouncement : 02.09.2023
Decision : Dismissed.
For Revisionist : Sh. Naresh Bhardwaj, Ld. Counsel for revisionist.
For Respondent: Sh. A.T. Ansari, Ld. Addl. PP for State/R-1.
Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 3....of 24
Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors.
Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
JUDGMENT
1. Vide this common judgment the undersigned shall dispose of these three revision petitions filed under Section 397 and 398 Cr.P.C. against the order dated 07.08.2018 passed by the Ld. Metropolitan Magistrate (Mahila Court), South-East District, Saket District Courts, Delhi in criminal case case no. 87073/2016, FIR No. 156/2013, PS-Jait Pur, titled State vs. Bharat Pratap Etc., whereby the Ld. Magistrate ordered the framing of charge punishable u/s. 451/354/34 IPC against all the revisionists herein.
SUBMISSIONS OF THE PARTIES
2. The first revisionist Mr. Nitesh Kumar claims that he is an educated, peace loving and law abiding citizen of the country having high moral values. The first revisionist joined BSES Rajdhani Power Limited (hereinafter referred to as the "Company" for the sake of brevity) on 28.10.2004 as Line Man. That in exercise of powers conferred under Section 135(2) of the Electricity Act, 2003, the Lieutenant Governor of the NCT of Delhi vide gazette Notification No. F.11(93)/2003/Power/2291 dated 12.09.2007 has appointed officers not below the rank of Assistant Executive Engineers/Assistant Manager dealing with distribution, enforcement and commercial functions in the Company as well as in other companies as authorized officers for the purpose of section 135 of the Act. The authorized officers of the Enforcement Department of the Company are duly authorized to carry out the search and seizure of the premises where the consumers are indulging in the theft of the electricity. That during the employment and tenure of his service with the Company, the first revisionist being a member of inspecting team of the Company was Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 4....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. part of various inspections/raids in which many cases of Electricity theft were booked, wherein the consumers of electricity were found indulging in the theft of electricity. It is also pertinent to state here that in terms of Section 169 of the Act, the first revisionist, during his employment with the Company was considered to be the public servant within the meaning of Section 21 of the Indian Penal Code, when acting or purporting to act in pursuance of any of the provisions of the Act. That on 23.08.2010, in exercise of powers conferred under Section 135 of the Act and aforesaid notification dated 12.09.2007, the Enforcement Team comprising of Mr. Bharat Pratap (GET), Mr. Manish Kumar (DET) and Mr. Mohd. Mobashshir Siddique (DET) inspected the premises at Plot No.2, Ground Floor, Main Molarband School Road, Lakhpat Colony, Part-2, Badarpur, New Delhi and found that the user and occupant were indulged in the theft of electricity. Pursuant thereof, an electricity theft case was booked as per the provisions of the Act and the Company subsequently filed a Criminal Complaint No.318/2011 under Sections. 135 and 138 of the Act against one Mr. Ram Dhan Singh (Registered Consumer) and Mr. Govind Ram (Respondent No.2) before the Special Electricity Court, New Delhi and the said complaint has been decided by the Court. That on 21.02.2012 at around 1:50 PM in exercise of powers conferred under Section 135 of the Act and aforesaid notification dated 12.09.2007, the first revisionist along with other team members namely (i) Mr. Barat Pratap (GET) (ii) Mr. Ravi Kumar Tiwari (GET) (iii) Mr. Sourab (Driver), conducted and inspection/raid at the premises i.e. House No.146/3, Lakhpat Colony, Part- I, Gall No.3, Meethapur, New Delhi, which at the relevant point of time was being used and occupied by one Smt. Pushpa Devi and Mr. Roop Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 5....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. Singh. It is submitted that during the inspection it was found that the user and occupant were indulging in the theft of electricity. Pursuant whereof, electricity theft case was booked, strictly as per the provision of the Act and subsequently the Company filed a Criminal Complaint No.237 of 2012 under Section 135 of the Act against Smt. Pushpa Devi and Mr. Roop Singh before the Special Electricity Court, New Delhi and the same has been decided by the court. That during the above said inspection/raid on 21.02.2012, the first respondent No.3 (Accused in earlier Complaint Case No.318 of 2011) along with some unknown persons came at the said Premises and without any reason and provocation started using very abusive language and in a most illegal and unlawful manner started beating the first revisionist and his team members. The respondent no.3 instigated and provoked his accomplices and abettors to manhandle and beat the first revisionist as well as other member of inspecting team. It is worthy of very serious consideration to mention here that the respondent no.3 during the manhandling of the first revisionist was continuously shouting that the Team Leader namely Bharat Pratap had earlier booked an electricity theft case against the Respondent No.3 and (this time he would not spare the first revisionist and raiding team). The first revisionist with great difficulty managed escape from the spot, however Team Leader was not allowed to escape in order to save his life. Team Leader with great difficulty managed to free himself from the clutches of Respondent No.3 and the first revisionist and other team member straight away went to Police Station Jaitpur and team Leader filed a written complaint regarding the incident. Thereafter, a criminal case was registered against the Respondent No.3 vide FIR No. 48/2012, under Sections, 341/506/323/427/34 of Indian Penal Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 6....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. Code. The medical examination of the first revisionist is also conducted on same day. The vehicle bearing No.DL-8CNB-8615, in which the first revisionist and other team members had gone to conduct the raid/inspection was also damaged by the Respondent No.3 and his accomplices in the crime. The statements of the first revisionist and his above named team members were also recorded on 21.02.2012 by the Investigation Officer, who completely supported the case of the first revisionist. It is stated that thorough investigation was carried into the matter by the police and charge sheet was filed against the accused Mr. Govind Ram (Respondent No.3) and the matter is presently pending for its adjudication before the court of Ld. MM, Saket District Courts, New Delhi. That on 10.04.2012, a Criminal Complaint under Section 200 Cr.P.C along with application under Section 156(3) Cr.P.C. case to be filed by the Respondent No.2 before the court of Ld. ACMM, Saket District Court, New Delhi, therein making absolutely false, concocted and fabricated allegations against the first revisionist and other team members who had conducted raid on 21.02.2012 at H. No.146/3, Lakhpat Colony, Part-1, Gali No.3, Meethapur, New Delhi. It is stated that the Respondent No.2 in her complaint has alleged that on 21.02.2012 at around 1.30 PM when she was alone at her home, the first revisionist and other team members came to her house and the Mr. Barat Partap, Team Leader introduced himself as an officer of the Company and they had come to take the payment. Thereafter, the Respondent No.2 requested them to come tomorrow as no male member was available in the house. In response thereof the Team Leader & allegedly replied that the Respondent No. 2 need not to worry as they too were males and started laughing. Thereafter, it has been alleged that the Team Leader told first Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 7....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. revisionist and other team members to lock the door and one of his associates bolted the room form inside and the Team Leader caught the hand of the Respondent No.2 (Complainant) with intention to outrage her modesty and the first revisionist and other team member pressed the mouth of the Respondent No.2. It has further been alleged that on hearing noise, the tenant of the Respondent No.2 namely Sahana, who is residing in the first floor came down, she alarmed the people and some persons gathered outside the house of the Respondent No.2, thereafter the first revisionist and other team members left the place. It is further alleged that the Team Leader was caught by the public and first revisionist and other team members fled away and during this time someone made a call on number 100 and a PCR came to whom the Respondent No.2 allegedly narrated the incident and the Team Leader was handed over to the police. It is further alleged that the Respondent No.2 was directed by the police to send her husband to police station. The Respondent No.2 has further alleged in her complaint dated 10.04.2012 that on 22.02.2012 the Respondent No.2 along with her husband visited the police station and requested the police concerned to take appropriate legal action against the first revisionist and other team members. However, the police refuse to take any action and pressurized the husband of the Respondent No.2 to compromise the matter with the first revisionist and other team member (accused persons). It has further been alleged that the written complaint dated 22.02.2012 was filed before DCP (South-East) and its copy was sent to SHO, PS. Jaitpur and Commissioner of Police, Delhi but no action was taken in the matter. It was thus alleged by the Respondent No.2 that the first revisionist and other team member had committed offences under Sections. 451/354/34 of IPC.
Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 8....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. It is pertinent to mention here that on 21.02.2012, pursuant to a call made on No. 100, a DD No.18A dated 21.02.2012. P.S. Jaitpur was recorded to the effect that at Meethapur, Lakhpat Colony, Part-I, Cali No.4, in a vehicle No.DL-SCNV-8615, white colour, four people had come who entered the house and made an attempt to commit burglary and committed molestation and out of the four persons, one has been nabbed. Pursuant to the receipt of said DD No.8A. ASI Balraj Singh along with Constable Amit was sent to the spot for appropriate action. On the enquiry was found that no burglary had taken place and it was found that the employees from BSES had come for checking, who fled away pursuant to the incident after leaving behind their vehicle. It is stated that the allegation and information received through DD No.18A, dated 21.02.2012, P.S. Jaitpur regarding the incident of molestation and burglary was found false. In this regard a report dated 21.02.2012 was filed by Delhi Police Control Room. That on 22.04.2013, the Impugned Order dated 22.04.2013 was passed by the Court of Ms. Monika Saroha, Ld. MM, Mahila Courts, Saket District Courts, New Delhi wherein the Ld. MM in a hasty manner and without calling for a detailed ATR, allowed the application under Section 156(3) filed by the respondent no.2, thereby directing registration of criminal case against the first revisionist and other team members who had conducted the above said raid on 21.02.2012. That during the course of investigation of above said FIR No.156/2013, the statement of Respondent No.2 under Section 164 Cr.P.C. was recorded on 30.12.2013, wherein the Respondent No.2 has made the discrepant statement to the effect that the Respondent No.2 was working as Aanganwadi worker. In the year 2012 when she reached house, four persons reached after her and informed her that they are from Electricity Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 9....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. Department. When she told them to come later as there was no male in the house and when I tried to escape, they dragged me inside and caught my hand. They touched by my body and later on when my tenants came and raised voice, they fled away. It is pertinent to note here that the Respondent No. 2 for the first time levelled the allegation of dragging and that different parts of her body was touched and she has made very vague statement and has not named the first revisionist or any of team members in her statement. That during the course of investigation in the above said FIR No.156/2013, it was found that the Respondent No.2 and 3 are related to each other. Furthermore, no eye-witness was found in support of the allegations made by Respondent No.2 against the first revisionist and other team members. The information given through DD No.18A, dated 21.02.2012 was found false. However, despite all the above narrated facts and circumstances the charge sheet in FIR No.156/2013 came to be filed against the first revisionist and other team members. The copy of FIR No.
156. of 2013 is annexed herewith as ANNEXURE-P-2. That during the course of investigation in FIR No.156/2013, a detailed representation vide DD No. 48B, dated 17.07.2013 was filed by the Team Leader before SHO, P.S. Jaitpur, New Delhi therein giving elaborate and clear details regarding the filing of FIR No.48/2012 and FIR No.156/2013 and other circumstantial and factual details, categorically elucidating the malicious, malafide, vexatious and absolutely baseless proceedings initiated by respondent no.2 against the first revisionist and other team members, at the instance of and in connivance with Respondent No.3. That the first revisionist, under the given facts and circumstances, being highly aggrieved by the Impugned Order dated 02.04.2013 passed by the Ld. MM, the Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 10....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. impugned FIR 156/2013, under Sections. 451/354/34 IPC, PS. Jaitpur, New Delhi and the proceeding/charge sheet emanating there from, sought to challenge/assail the same in front of the Hon'ble High court vide the inherent power of the court U/S 482 CrPC. It is submitted that under said proceedings, considering the issues agitated by the revisionists, the Hon'ble High Court granted liberty to the revisionists to raise the relevant issues before the Ld. Trial Court at the time of consideration on charge. Thereafter the impugned order dated 07.08.2018 was passed during the adjudication of the matter being Cr.P.C No. 87073/2016 & FIR No 156/2013 by Ld. MM Ms Preeti Parewa, Saket Court, New Delhi whereby the Ld. MM has in a mechanical manner and without applying judicious mind, has given the finding that there is sufficient material to frame charges under Sections, 451/354/34 IPC against the revisionist and other Accused Persons. Hence, the present revision petition.
GROUNDS OF REVISION
3. The grounds cited by first revisionist are as under :-
(i) Because while passing the impugned order dated 07.08.2013, The Ld. MM has made a grave error by not considering the submissions made on behalf of the first revisionist and proceeded to frame charges in a mechanical manner. It has been categorically sated in the Impugned Order that "The veracity of the allegations cannot be gone into at this stage".
(ii) Because, a bare perusal of the material on record manifestly makes it clear that there is no sufficient grounds for framing of charges against the first revisionist, rather it becomes abundantly plain that the Respondent No. 2 & 3 are unruly and anti-social elements of the society who are involved in offences of theft of electricity and the first revisionist has been falsely Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 11....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors.
Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. implicated by the Respondents no. 2 & 3 to settle personal vendetta.
(iii) Because the Team Leader of the inspecting team in question (of which the first revisionist was one of the team member) namely Mr. Bharat Pratap had earlier challenged the present Impugned Order dated 07.08.2018 passed by Ld. MM, Ms. Preeti Parewa, Saket Court, New Delhi vide Criminal Revision Petition No. CR No. 698/18 in which the charge was also framed against Mr. Bharat Pratap. The said Criminal Revision petition has been allowed by Ld. ASJ-03, Sh. Gulshan Kumar vide detailed Order dated 07.08.2018 and the consequent thereto the charges against Mr. Bharat Pratap who was the raiding team leader stood dropped.
(iv) Because, the Order dated 07.08.2013 passed by Ld. M.M is unjust, unfair and suffers from non-application of judicial mind. It is submitted that the Respondent No.2 deliberately in order to achieve her ulterior motives concealed and suppressed material facts from the concerned court inasmuch as firstly, the Respondent No.2 did not disclose that the incident of 21st of February 2012 was thoroughly investigated by the concerned police and an FIR No.48 of 2012, under Sections 341/506/323/427/34, PS Jaitpur, New Delhi had already been registered against Respondent No.3 Mr. Govind Ram, who is a close relative of Respondent No.2, suddenly, it was further concealed that earlier in the year 2010, an electricity theft case was booked by BSES Rajdhani Power Limited against Respondent No.3 and in this regard a Criminal Complaint No.318 of 2011 under Sections 135 and 138 of Electricity Act, 2003 was filed by BSES Rajdhani Power Ltd. against one Mr. Ram Dhan Singh (Registered Consumer) & the Respondent No.3 before the Special Electricity Court, New Delhi and same has been decided by the Court. The above stated concealments are apparent Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 12....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. on the face of it and it makes abundantly clear that present complaint is nothing but tactics adopted by Respondent No. 2 in order to falsely implicate the first revisionist in the present case by concocting facts to extract personal vendetta. It is stated that in a catena of Judgments especially in case titled "MCD vs. State of Delhi 2005(4) SCC 605", the Hon'ble Supreme Court has held that the concealment of material facts amounts to a fraud being played upon the Court and as such the false case so set-up would be liable to be dismissed at its very threshold. The relevant extract of the said Judgment is as follows, "a person whose case is based on falsehood has no right to approach the court and he can be summarily thrown out at any stage of the litigation If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party." Thus, it is absolutely crystal clear that the Respondent No.2 had deliberately suppressed crucial facts from the concerned Court and thus framing of charges against the first revisionist as per the Impugned Order dated 07.08.2018 in FIR bearing no. 156/2013 dated 27.04.2013, PS Jaitpur, under Sections. 451/354/34 IPC would result in a gross miscarriage of Justice and would cause irreparable harm and injury to the first revisionist.
(v). Because, Ld. MM while passing the Impugned Order has made a grave error by not appreciating the fact the Respondent No.3 has used his relative Respondent No.2 to implicate the first revisionists in a false and highly motivated case. It is submitted that in the present case inasmuch as the allegations if taken on their face value and the evidence recorded by the police during investigation do not prima facie constitute any offence and the allegations are absolutely absurd, inherently improbable and Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 13....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. contradictory on the face of it. The impugned FIR and Order therefore deserves to be set aside. It is abundantly clear that the Impugned FIR and the criminal proceedings emanating there from are manifestly attended with mala fide intent and the same have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused/first revisionist and with a view to spite him due to private and personal grudge. The Respondent no.2 has instituted the malicious proceedings against the first revisionist in connivance with her relative respondent no.3, against whom an electricity theft case was booked by the BSES Rajdhani Power Ltd., pursuant to the, raid conducted by the competent and authorized team of BSES, which included the revisionists, as one of its members and furthermore Respondent No.3 was also being prosecuted in FIR No.48/2012 regarding the unfortunate incident that took place on 21.02.2012, while the Revision is along with other team members, were conducting raid at H.No.146/3, Lakhpat Colony, Part-1, Gali No.3, Meethapur, New Delhi, when the first revisionist and his colleagues were manhandled by the Respondent No.3 and his accomplices. It is worthwhile to mention here that the Respondent No.3 apart from wrecking vengeance against the first revisionist is also attempting to create false defences in his favour in the above said FIR No.48/2012 and the electricity theft case registered against him in the year 2010 vide complaint No.318/2011.
(vi) Because the legality of the Impugned Order is dubious. It is submitted that the Ld. MM has passed the Impugned Order dated 22.04.2013 in a mechanical manner. The Ld. MM, it is submitted with respect, seems to have been driven and carried away by the subjective perceptions/satisfaction, without objectively analyzing & scrutinizing the Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 14....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. complaint and the documents appended therewith. Hence, the Impugned Order is liable to be set aside.
vii) Because, the Ld. M.M. failed to appreciate that there was an inordinate and unexplained delay in filing the complaint inasmuch as the alleged incident was of 21.02.2012, whereas the first alleged complaint which was apparently lodged by the Respondent no.2 with the DCP (South East) was on 22.02.2012 and the complaint under Section 156(3) Cr.P.C. was filed on 10.04.2012. The Respondent no.2 had failed to give any explanation regarding firstly why no complaint was filed directly before the SHO, PS Jaitpur as per the procedure of law and secondly why the Complaint was filed before the Ld. MM after an inordinate delay of almost 50 days. Under such a situation, it was incumbent upon the Respondent No.2 to explain as to why he did to file the complaint earlier and in absence of any explanation about the delay as is evident from the perusal of the Impugned FIR, only an adverse inference could have been drawn against the Respondent No.2 as it clearly raises a suspicion in the concocted version of the Respondent No.2. It is submitted that as was held by the Hon'ble Supreme Court in case titled "Dilawar Singh Vs. State of Delhi"
2007 (12) SCC 641 that it is a cardinal principle of law in criminal matters to look for plausible explanation for the delay in lodging the complaint and that the Hon'ble Courts always view the allegations with suspicion, in the present case also, the actions of respondent no. 2 on the face of it are fraught with absolute malice and are nothing but nefarious and the unexplained delay clearly shows the mala-fide intention of the respondent no.2 to implicate the first revisionist and other team members in a false case in order to settle the personal score with the first revisionist.
Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 15....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
(viii) Because the Ld. MM has failed to appreciate the fact criminal prosecution is a serious matter which affects the liberty of a person and causes a serious damage to the reputation of a person when he/she is being summoned to face a criminal trial and as such it would be a great travesty of justice in the facts and circumstance of the present case for the first revisionist if they are constrained to face the trial and hence in order to prevent abuse of process of law and secure the ends of justice, the impugned order is liable to be set aside.
(ix) Because the conduct of the respondent no. 2 itself shows that the Respondent No. 2 filed a counter FIR against the first revisionist for the sole reason to falsely implicate the first revisionist by maliciously prosecuting them in the present case. Moreover, there is a catena of judgments in which the Hon'ble Supreme Court of India has interpreted the terms "Malicious Prosecution". The Hon'ble Supreme Court, in case titled "Ravinder Singh Vs. Sukhbir Singh & Ors.", [AIR 2013 SCW 634;
2013(1) KLT 76 (SN); 2013(1) MLJ (Cri) 478] made a reference of case of West Bengal "Electricity Board Vs. Dilip Kumar Ray", AIR 2007 SC 976" in which the Court considered the meaning of term "Malicious Prosecution" and held that:
"Malice is not merely doing of a wrongful act intentionally, but it must established that the defendant was actuated with malus animus that is to say, by spite or ill will or any indirect or improper motive"
The Court also interpreted the terms "vexatious" and held that:
"vexatious means harassment by the process of law or lacking justification or with 'intention to harass.... the hallmark of a vexations proceedings is that it has no basis in Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 16....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
law and that whatever the intention of the proceeding may be, it is only effect is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court"
The above interpretation by the Hon'ble Supreme Court is squarely applicable in the present case with respect to the conduct of the Respondent No. 2 and Respondent No. 3 and is sufficient to make the allegations of the Respondent No. 2 as having no value in the eyes of law.
(x) Because there was an inordinate and unexplained delay in filling the complaint in as much as the alleged incident was of 21.02.2012, wherein the first alleged complaint which was apparently lodged by Respondent No. 2 with the DCP, South East was on 22.02.2012 and the complaint under Section 200 Cr.PC. was filed on 10.04.2012. Moreover, the Respondent No. 2 had filed to give any explanation as to why the case was filed directly before the SHO, PS Jaitpur and as to why the complaint was filed before Ld. MM after an inordinate delay of almost 50 days. In absence of any explanation about the delay as is evident from the perusal of the FIR, only an adverse inference could have been drawn against Respondent No. 2 as it clearly raises suspicion in the concocted version of Respondent No. 2. It was held by Hon'ble Supreme Court in case titled "Dilawar Singh Vs. State of Delhi", 2007 (12) SSC 641 that it is cardinal principal of law in criminal matters to look for plausible explanation for the delay in lodging the complaint and that the Court always view the allegation with suspicious. In the present case also, the action of the Respondent No. 2, on the face of it, are fraught with absolute malice and are nothing, but nefarious and the unexplained delay clearly shows the mala fide case. It's Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 17....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. clearly show that the case was filed against the first revisionist by Respondent No. 2 & 3 with intention the personal vendetta.
(xi) Because the Impugned Order deserves to be set-aside both on merits as well as on law.
(xii) Because the Impugned Order deserves to be set aside in the light of interest of justice.
4. A prayer for setting aside the impugned order dated 07.08.2018 has been made on behalf of first revisionist.
5. The second revisionist namely Ravi Tiwari and the third revisionist Mohseen @ Rahul have also plead and argued in the above terms (as the first revisionist) against the impugned order dated 07.08.2018.
6. State through Ld. Addl. PP, opposes the prayer stating that the impugned order is correct and is liable to be sustained.
7. This Court has considered the above submissions and has gone through the records, including the TCR.
LAW ON FRAMING OF CHARGE AND DISCHARGE
8. Before delving into the merits of the case, it woould be appropriate to refer to the settled law on framing of charge, since the essence of the arguments raised on behalf of revisionists is that the no charge could have been framed against them.
9. The law on charge is contained under Sections 227 and 228 of Cr. P.C. for offences triable in Courts of Session and in cases of Trial of Warrant Cases by Magistrates instituted upon a police report, Sections 239 and 240 of Cr. P.C. deals with the same. For reference, Section 239 and 240 of Cr. P.C. are extracted as under:
"239. When accused shall be discharged.--
Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 18....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.--
(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried"
10. The Hon'ble Supreme Court in case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 has considered the powers of Courts in respect of the framing of charge and discharge and the fact that a prima facie case would depend on the facts and circumstances of each case. The relevant principles as enunciated in the said decision read as under:
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 Cr. P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 19....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
prima facie case against the accused has been made out. The test to determine prima facie cases would depend upon the facts of each case.
(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 court 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, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 20....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors.
Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal..."
(Emphasis supplied)
11. The Hon'ble Apex Court in the case of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657, after discussing several judicial precedents, has summed up the law regarding framing of charge as under:
"27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 21....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.
the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice..."
(Emphasis supplied)
12. Thus, the fundamental basis for forming an opinion regarding the framing of charges revolves around determining whether there is adequate evidence on record to establish, prima facie, the commission of an offence. A 'prima facie' case would imply that there must be enough material or evidence that, when viewed at its face value, gives rise to a reasonable suspicion that the accused may have committed the alleged offence.
13. Another important factor to be considered is the sufficiency of material on record. The Courts have to see as to whether the material placed on record is sufficient enough to establish a prima facie case against an accused and justify initiation of trial against an accused.
FACTUAL BACKGROUND
14. An FIR No. 156/2013, PS-Jait Pur was registered against one Bharat and three unknown persons on the basis of directions dated 22.04.2013 passed by the Court of Ld. Metropolitan Magistrate/Mahila Court/South East District/Saket in a criminal complaint filed by one 'S' (informant/victim). After due investigation, a charge sheet was filed in the said FIR on 17.11.2014 against the revisionists herein and one Bharat Pratap for the commission of offences punishable u/s. 451/354/34 IPC. Cognizance of the offences was taken on the basis of the said charge sheet and all the above said persons were summoned by the Court of Ld. Metropolitan Magistrate (Mahila Court). Vide order dated Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 22....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. 07.08.2018 (i.e. the impugned order) the Ld. Magistrate ordered framing of charge u/s. 451/354/34 IPC against all the above said persons. The accused Bharat Pratap filed a criminal revision petition in the Court of Sessions against the said order passed by the Ld. Magistrate. The Court of Sessions was pleased to set aside the order dated 07.08.2018 passed by the Ld. Magistrate in its judgment dated 07.06.2019.
DISCUSSION
15. The factual background discussed above clearly reflects that the informant/victim 'S' had made categorical allegations in her complaint filed in the Court of Ld. Magistrate, on the basis of which FIR No. 156/13, PS-Jaitpur was registered, to the effect that one Bharat along with his three associates (i.e. the revisionists herein) entered her house at the relevant time on the pretext of realizing pending electricity dues. The informant/victim 'S' told them that no male members are available in the house and requested all of them to come the next day. Thereafter, said Bharat told one of his associates to lock the door from inside, whereafter said Bharat caught the hand of the informant/victim 'S' with an intention to outrage her modesty and one of the associates shut her month with his hand. Subsequently a tenant of the informant/victim 'S', upon hearing the commotion, came downstairs and raised a hue and cry after seeing the above situation. Public persons gathered at the spot, whereafter all the said four persons (i.e. said Bharat and the present revisionists) fled the spot.
16. The above allegations clearly reflect the presence of ingredients of the offences punishable u/s. 451/354/34 IPC. A strong suspicion arises against the revisionists herein. It has been observed by the Hon'ble Supreme Court in the above mentioned citations that a mini trial is Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 23....of 24 Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors. not permitted at the stage of framing of charge. Whether or not the above allegations are false and motivated, could not have been assessed by the Ld. Magistrate at the stage of framing of charge merely on the basis of the submissions made by the revisionists herein. Even if the informant/victim 'S' moved the relevant complaint read with the application u/s. 156(3) Cr.P.C. after a considerable delay, the same is not sufficient a reason to disbelieve the allegations levelled by her against the revisionist herein. More so in view of the fact that a DD No. 18A dated 21.12.2012, which supports the above allegations levelled by the informant/victim 'S', is already available in the charge sheet. Merely because the Court of Sessions set aside the impugned order dated 07.08.2018 qua said Bharat Pratap, the revisionists herein could not be ordered to be discharged on the grounds of parity in the light of above mentioned facts and circumstances of the case.
17. The order passed by Ld. Magistrate does not seem to be arbitrary, perverse or irrational nor does it reflect any jurisdictional error which occasioned any injustice in the matter. All the revision petitions are devoid of any merits and are hereby dismissed.
18. Trial Court Record be sent back along with a copy of this judgment.
19. All the files be consigned to Record Room.
Dictated and Announced
in open Court on 02.09.2023 (Lovleen)
ASJ-03 (South East),
Saket Courts, New Delhi
Crl. Revision No: 572/2019, Nitesh Kumar vs. The State & Ors. page no. 24....of 24
Crl. Revision No: 632/2019, Ravi Tiwari vs. The State & Ors. Crl. Revision No: 53/2020, Moseen @ Rahul vs. The State & Ors.