Delhi District Court
Anjali Malik vs Himanshu Dagar on 6 May, 2024
1
IN THE COURT OF PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE (SPECIAL JUDGE
NDPS), NORTH EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
Criminal Revision No. 194/2023
CNR No. DLNE01-003478-2023
1. Ms. Anjali Malik
W/o Sh. Himanshu Dagar
R/o H.No. 146, Gali No. 17,
C-Block, Khajuri Khas,
Delhi-110094
...........Petitioner/complainant
Versus
1. Sh. Himanshu Dagar
S/o Sh. Rajender Kumar Verma
R/o H. No. B-35/A, Ganesh Gali No. 4,
Arjun Mohalla, Maujpur,
Delhi-110053
..... Respondent No. 1/Accused
2. Sh. Rajendra Kumar Verma
S/o Sh. Dhara Singh
R/o H. No. B-22,
Gali No. 2, Khajuri Khas,
Delhi-110094
..... Respondent No. 2/Accused
3. Smt. Manju Rani
W/o Sh. Rajendra Kumar Verma
R/o H. No. 146, Gali No. 17,
C-Block, Khajuri Khas,
Delhi-110094
..... Respondent No. 3/Accused
2
4. Sh. Sanjay Kumar
S/o Sh. Om Prakash
R/o H. No. B-33/2,
Arjun Mohalla, Maujpur,
Delhi-110053
5. The State (NCT of Delhi)
..... Respondent No. 5
Date of Institution of Revision Petition : 16.11.2023
Date of Completion of Arguments : 29.04.2024
Date of Order : 06.05.2024
ORDER
1. This criminal revision is directed against the impugned order dated 16.10.2023, passed by the court of Ms. Renu Chaudhary, Ld. Metropolitan Magistrate-01, North-East, KKD Courts, Delhi, vide which, the respondent no. 1 to 4 (all the accused) have been discharged only u/s. 341 of IPC and respondent no. 4/Sanjay has also been discharged for all the alleged offences.
2. Feeling aggrieved with the said order, the petitioner /complainant has filed the present revision on dated 16.11.2023 and prayed to set aside the part of impugned order under revision dated 16.10.2023 passed by the Ld. Trial Court, vide which, the Ld. Trial Court discharged respondents no. 4/accused Sanjay and discharged respondent no. 1 to 4/all the 3 accused u/s 341 of IPC holding that there was no specific allegation regarding wrongful restraint to the complainant and since, there was no specific allegation against the respondent no.4/accused Sanjay, hence, he was discharged. The Ld. Trial Court had framed charges u/s. 323/341 of IPC against Himanshu, Rajender Kumar and Manju Rani and also framed charges u/s. 354 & 509 of IPC against Rajender Kumar Verma.
3. The notices of this revision petition were issued to the respondent no. 1 to 4 and on completion of service, respondent no. 1 to 4 have appeared through their Counsel, whereas, the notice on behalf of the respondent no.5/State was accepted by the Ld. Addl. PP for the State posted in this court. Record of the Ld. Trial Court is also requisitioned.
4. I have heard arguments of Ld. Counsel for the petitioner/complainant and Ld. Counsel for respondent no. 1 to 4/accused.
5. Ld. Counsels for the petitioner/complainant namely Sh. Rajender Singh and Sh. Sandeep Kumar have submitted that there was categorical allegation against the respondent no. 4 Sanjay /accused in the complaint dated 02.05.2022, diary number whereof is 5296 that on dated 30.04.2022, he had said to the father in law of the petitioner 'AB ISKO MAJA CHAKHATE HAI OR ISKO GHAR SE NIKAL DETE HAI' and submitted that even in the statement of the petitioner/complainant recorded 4 u/s 164 of Cr.P.C. on dated 15.07.2022 by the Ld. Metropolitan Magistrate, this petitioner/complainant has alleged that her father in law (Rajender) and MAMA (Sanjay) had threatened her to turn out from the house and submitted that accused Himanshu, Rajender and Manju Rani had also restrained to the complainant from entering in her matrimonial house despite of the order of court and further submitted that the accused Sanjay, who is the maternal uncle of Himanshu had abetted to the respondent no. 2/accused Rajender to turn out this petitioner/complainant from her maternal house. So, this accused Sanjay has committed the offence of abetment and submitted that complainant was not given notice by the Ld. Trial Court, prior to the passing of the impugned order under revision. They have further submitted that the Ld. Trial Court did not incorporate any contention of the Ld. APP for the State in the impugned order and submitted that impugned order under revision may be set aside and the Ld. Trial Court may be directed to hear the petitioner /complainant prior to the passing of the order on charge.
6. On the other hand, Sh. R.S. Goswami, Ld. Counsel for respondents no. 1 to 4/accused has submitted that this petitioner/ complainant is in the habit of misleading the court and submitted that earlier, this petitioner/complainant had misled to another court and obtained an order from the said court regarding the complete building of the respondents and thereafter, the counsel for the respondents had apprised to the said court that this 5 petitioner is in possession of only 1 st floor of the said building of the respondents, then, the said court had rectified the said order and submitted that no such incident had taken place, as alleged by the petitioner/complainant and submitted that respondent no. 1 to 4/accused are falsely implicated in the present case, as the father and TAU of this petitioner/complainant are serving in the Delhi Police and they have registered many cases against the respondent no. 1 to 3 and this case was registered against respondent no. 4 also and submitted that even if, the complaint of the petitioner/complainant dated 02.05.2022 addressed to the SHO of Police Station Khajuri Khas, bearing Diary no. 5296, dated 02.05.2022 is looked into, no offence is made out against Sh. Sanjay (respondent no.4/accused), who is the maternal uncle of the respondent no. 1 and submitted that the petitioner has alleged in her said complaint that 'SANJAY NE MERE SASUR RAJENDER SINGH KO KAHA KI ISKO MAJA CHAKHATE HAIN OR ISKO GHAR SE NIKAL DETE HAI' and submitted that this petitioner in her statement recorded u/s 164 of Cr.P.C. had stated that 'MERE SASUR REJENDER OR MAMA SANJAY NE MUJHE GHAR SE NIKALNE KI DHAMKI DI' and thus, this complainant had changed her version and submitted that if the complaint dated 02.05.2022 is looked into, then, such incident is alleged to have taken plea on dated 30.04.2022 in the court of S/Executive Magistrate, as on the complaint of this petitioner, proceedings u/s 107/151 of Cr.P.C. were initiated against respondent no. 1 and submitted that on dated 30.04.2022, 6 Sh. Sanjay, who is maternal uncle of respondent no. 1 had gone in the said court of S/Executive Magistrate and furnished surety bond for respondent no. 1. and on furnishing of surety bond by Sh. Sanjay, the respondent no. 1 was released on bail by the said court on dated 30.4.2022. He has also submitted that only for this reason that Sh. Sanjay (respondent no.4/accused) stood surety for the respondent no.1, being his maternal uncle, such false allegations have been levelled against Sh. Sanjay, who is a Government employee and he has also submitted that from the complaint of petitioner/complainant, no offence u/s 341 of IPC is made out against of any accused. So, the Ld. Trial Court has rightly discharged the respondent no. 1 to 4/accused u/s 341 of IPC. He has also submitted that this petitioner has nowhere mentioned the date of the alleged incident of beating to her by the respondent no. 1 to 3 in her complaint dated 02.05.2022, but, at the time of recording of her statement u/s 164 of Cr.P.C., she has alleged that the said occurrence of the alleged beating had taken place on dated 01.05.2022 at about 5:00/6:00 PM and submitted that even at present, this petitioner/complainant is living in her matrimonial home. She was never restrained, so, the offence u/s. 341 of IPC is made out and further submitted that petitioner /complainant has nowhere mentioned in her said statement u/s. 164 of CrPC that Sh. Sanjay was present at the time of the alleged incident of beating and submitted that since the Ld. Trial Court found that prima facie case u/s 323/34 is made out against Himanshu Dagar, Rajender and Manju Rani and prima facie case 7 u/s 354/509 is also made out against the accused Rajender, so, the Ld. Trial Court had framed the charges u/s 354/509 of IPC against the accused Rajender Kumar Verma and also framed charges u/s 323/34 of IPC against Himanshu, Rajender Kumar Verma and Manju Rani. He has further submitted that there is no illegality in the impugned order under revision, vide which, respondent no. 4/accused Sanjay is discharged and respondent no. 1 to 4/all the accused are discharged u/s. 341 of IPC and prayed for dismissal of this revision.
7. Sh. F. M. Ansari, Ld. Addl. PP for the State/Respondent no. 5 has submitted that he has nothing to say in the present revision petition.
8. I have given thoughtful considerations to the submissions made by Ld. Counsels for the parties and perused the record.
9. The perusal of the record reveals that in the case in hand, the FIR No. 456/2022 was registered on dated 07.7.2022 u/s 323/341/509/354/34 of IPC, on the basis of the complaint of Ms. 'AM' (presumed name of the complainant), bearing Diary No. 5296 dated 02.5.2022 addressed to the SHO of PS Khajuri Khas, wherein, she has stated that her family dispute was going on and she lives on the first floor of the house, as mentioned in her said complaint. She has further stated that her mother in law (Ms. Manju Rani) and her father in law (Sh. Rajender Singh 8 Verma) live in another house. Her husband Himanshu Dagar mostly lives with his parents and he occasionally comes to the complainant. She has further stated that on dated 29.04.2022, a quarrel had taken place between this complainant and her husband and she made call at 112 number and police had initiated the proceedings u/s 107/151 of CrPC and on dated 30.04.2022, her husband was released on bail by the court of S.E.M. She has also stated at that time, father and maternal uncle (Sh. Sanjay) of Himanshu were present in the said court and Sh. Sanjay had asked to the father in law of this complainant that 'AB ISKO MAJA CHAKHATE HAI OR GHAR SE NIKAL DETE HAI'.
10. The complainant has also stated in her said complaint that she has no arrangement of drinking water at the 1 st floor, because, the father in law of this complainant had closed the gate of 2nd floor, where the drinking water remains available. She has also stated that since, she was not having water to drink and there was none in the house and her mother in law and father in law do not provide her drinking water, so, for taking water and eatables, she went to the market, after locking the main gate from outside. She has also stated that she had received a phone call and the caller had told her that he was HC Ajay Kumar from PS Khajuri and he had asked to this complainant, as to why had she locked the main gate and this complainant had told him that she had gone to take drinking water and some eatables from the market and she was returning home within 5 minutes. She has 9 also stated that as soon as, she arrived in front of her house and parked her scooty, her father in law (Rajender Singh), mother in law (Manju Rani) and her husband (Himanshu) had suddenly attacked on her. She has alleged that her mother in law caught her from hair, her father in law (Rajender) had given DANDA blow on her head and he had also given fists blows on her breast and her husband Himanshu had given fist blows on her waist. She has also stated that in view of sudden attack and injuries, she became unconscious and when after some time, she regained consciousness, she found that the lock of the gate was broken and it was closed from inside. She has alleged that father in law (Rajender Singh) was abusing her and this petitioner/complainant called to her father and dialed 112 number and sat on the gate. She has further stated that after some time, Constable from PCR had come and asked her about the dispute, and this petitioner /complainant had narrated about the incident and he said that he would call to the IO. The petitioner/complainant has also stated that in the meantime, her father and her TAU JI had also arrived and HC Ajay Kumar had also come from the Police Station and she had narrated the entire incident to him and she had told about the mobile phone number of her father in law. She has further stated that the said Head Constable had made talk with her father in law Sh. Rajender Singh and the said Head Constable told her that he could not get the gate opened, as it is was not his duty and he went away from there. She has further stated that she had made repeated PCR calls, but, no one had helped her and after 10 some time, HC Ajay Kumar again came and said that no quarrel had taken place at there and he could not help her. The petitioner/complainant has also stated that she was feeling headache and unbearable body-ache and she had gone Jag Pravesh Chandra hospital along with her father and doctor had referred her to the GTB hospital and she remained busy in preparation of her MLC till morning and she had repeatedly called at 112 number for seeking help of the police, but, the police did not come and prayed for taking legal action against the culprits.
11. On the basis of such complaint dated 02.05.2022, vide Diary no. 5296 filed before the SHO of PS Khajuri Khas, the FIR no. 456 was registered on dated 07.07.2022 u/s 323/341/509/ 354/34 of IPC and investigation was carried out and on completion of the investigation, the charge-sheet was filed u/s 323/341/509/354/34 of IPC against respondents no. 1 to 4/all the accused.
12. The Ld. Trial Court, vide its impugned order under revision was pleased to discharge respondents no. 1 to 4/all the accused u/s 341 of IPC holding that there was no specific allegation regarding wrongful restraint to the complainant and since, there was no specific allegation against respondent no. 4/ accused Sanjay, hence, he was discharged. The Ld. Trial Court framed charges u/s 323/34 of IPC against Himanshu, Rajender 11 Kumar and Manju Rani and also framed charges u/s 354 & 509 of IPC against Rajender Kumar.
13. The perusal of the complaint dated 02.05.2022 addressed to the SHO of Police Station Khajuri Khas, bearing Diary no. 5296, dated 02.05.2022 reveals that this complainant has stated therein that on dated 30.4.2022, her husband was released on bail by the court of SEM and at that time, the father and maternal uncle (Himanshu) were present in the said court and alleged that 'SANJAY NE MERE SASUR RAJENDER SINGH KO KAHA KI ISKO MAJA CHAKHATE HAIN OR ISKO GHAR SE NIKAL DETE HAI'. The perusal of the said complaint also reveals that two incidents are mentioned therein. First one is of dated 30.4.2022, which is alleged to have taken place in the court of SEM. But, date of second incident of alleged beating to the complainant is not mentioned therein.
14. The perusal of the statement of this petitioner /complainant recorded u/s. 164 of CrPC on dated 15.7.2022 reveals that she has stated therein that on 30.4.2022, her husband was released on bail by the Seelampur Court and alleged that 'WAHAN MERE SASUR REJENDER OR MAMA SANJAY NE MUJHE GHAR SE NIKALNE KI DHAMKI DI'. Thus, if the terminology used by this petitioner/complainant in her complaint dated 02.05.2022 registered vide Diary No. 5295 is looked into, then it shows that Sanjay is alleged to have asked to Sh. Rajender 12 and not to this petitioner/complainant. But, at the time of recording of her statement u/s. 164 of CrPC, this petitioner had started asserting that her father-in-law (Rajender) and Sh. Sanajy (who is the maternal uncle of her husband) had threatened her to turn out from home.
15. The perusal of the statement of this petitioner /complainant u/s. 164 of CrPC also reveals that this petitioner /complainant has stated therein that on dated 1 st of May, at about 5:00/6:00 PM, she went to take water and etables from the market and on returning therefrom, she is alleged to have been beaten by her mother-in-law (Manju), Father-in-law (Rajender) and her husband (Himanshu). But, she has no where mentioned therein that Sh. Sanjay was also present at the time of the said occurrence, which is alleged to have been taken place on 01st of May.
16. The Ld. Counsel for the petitioner has submitted that Sh. Sanjay had abeted to Rajender to turn out the petitioner /complainant from home. The perusal of the charge-sheet reveals that the charge-sheet was filed against all the accused u/s. 323/341/509/354/34 of IPC. Since, there was no categorical allegation against Sanjay (respondent no. 4), so, the Ld. Trial Court had discharged respondent no. 4 (Sanjay).
17. Ld. Counsel for the petitioner has submitted that the Ld. Trial Court has erroneously discharged the respondent no. 1 13 to 4/all the accused u/s. 341 of IPC, whereas, the accused had retrained to the petitioner/complainant from entering in her matrimonial home. Ld. Counsel for the respondents had controverted the same and submitted that even at present, this petitioner/complainant is residing in her matrimonial home (Shared household). This fact is not denied by the petitioner /complainant, or her counsels at the time of argument in this revision that petitioner is residing in her shared household /matrimonial home.
18. Since, this court finds that there is no categorical allegations of commission of offences punishable u/s. 323/341/ 509/354/34 of IPC against respondent no. 4 (Sanjay) and no offence was made out against respondent no.4/accused Sanjay, so, the Ld. Trial Court had correctly discharged to respondent no. 4/ Sanjay. Since, perusal of the statement of this petitioner /complainant recorded u/s. 164 of CrPC by the Ld. Metropolitan Magistrate on dated 15.7.2022 reveals that the first occurrence is alleged to have taken place on 30.4.2022 and second occurrence is alleged to have taken place on 01st of May 2022, but, there are material contractions in the contents of the complaint dated 02.5.2022 registered vide Diary No. 5296, addressed to the SHO PS Khajuri Khas and the statement of petitioner/complainant recorded u/s. 164 of CrPC on dated 15.7.2022. Since, the first occurrence is alleged to have taken place on dated 30.4.2022 and the statement of the petitioner/complainant u/s. 164 of CrPC was 14 recorded on dated 15.7.2022 and in view of the contradistinction therein, it appears to be an afterthought and colourful version, wherein, this petitioner/complainant has alleged that father in law (Rajender) and material uncle had threatened her to turn out from home.
19. Their Lordship of the Supreme Court of India in another case "State v. Arun Kumar & Anr. , 2014 SCC online SC 1018' was pleased to hold that even at the stage of charge, if two views are possible, one view gives rise to suspicion only as distinct, grave suspicion, the court would be empowered to discharge accused at that stage.
20. Since the Hon'ble Supreme Court of India in case "P. Vijayan v. State of Kerala & Anr " Crl. Appeal No. 192/2010 was pleased to observe as under:-
9) Before considering the merits of the claim of both the parties, it is useful to refer Section 227 of the Code of Criminal Procedure, 1973, which reads as under:-
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
10) 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. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to e Xercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary 15 for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which eX facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
11) The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar vs. Ramesh Singh (1977) 4 SCC 39, wherein this Court observed as follows:-
"........Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- eXamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. "
This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.
12) In a subsequent decision i.e. in Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4, this Court after adverting to the conditions enumerated in Section 227 of the Code and other decisions of this Court, enunciated the following principles:-
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the 16 limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in eXercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and e Xperienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
21. Similarly, their lordship of Supreme Court in case 'Dilawar Balu Kuran Vs. State of Maharashtra , Appeal (Crl.) No. 8 of 2002' was pleased to hold that when two views are possible, then the view in favour of the accused has to be adopted by the court.
22. Since, the law is well settled as discussed herein above that for framing the charge, the prosecution is bound to show that prima facie case is made out and in the case in hand, the prosecution has failed to show that the prima facie case under any of the sections, [wherein, the charge-sheet was filed 17 against respondent no.4 (Sanjay)] is made out. Since, the law is also well settled that if two views are possible, then the view goes in favour of the accused, has to be adopted and since, this court has come to the conclusion that in view of the delay in recording statement of the petitioner/complainant u/s. 164 of CrPC, the possibility of introduction of an afterthought and colourful version cannot be ruled out. So, this court finds that there is no illegality or legal infirmity in the impugned order under revision, vide which, respondent no.4/accused Sanjay was discharged. Since, it is not disputed that even at present this petitioner is residing in the her matrimonial home i.e. shared household, so, the question of wrongfully restraining to the petitioner/complainant does not arise. Since, the accused Rajender, Manju and Himanshu are alleged to have beaten to the petitioner/complainant, so, the Ld. Trial Court had framed the charges u/s. 323/34 of IPC against these three accused and since, the respondent no 2/accused Rajender is also alleged to have outraged the modesty of the petitioner /complainant. He is also alleged to have abused to the petitioner/ complainant, so, additional charges u/s. 354/509 of IPC have also been framed against respondent no. 2/Rajender Kumar.
23. Cumulative facts of discussion is that this court does not find any force in the submissions made by the Ld. Counsel for the petitioner/complainant and this court does not find any illegality or perversity in the impugned order under revision, 18 which may require any interference in the impugned order under revision. Therefore, the impugned order under revision passed by the Ld. Trial Court is upheld and this revision petition is hereby dismissed, being devoid of merit.
24. It is clarified that nothing expressed herein above, shall affect the merit of the case.
25. File be consigned to the record room. The record of the Ld. Trial court is also ordered to be returned with the attested copy of this order.
Announced in the open court
on the 06 th day of May, 2024 PAWAN Digitally
by PAWAN
signed
KUMAR MATTO
KUMAR Location: Delhi
MATTO Date: 2024.05.06
16:49:33 +0530
(PAWAN KUMAR MATTO)
Additional Sessions Judge/Special Judge (NDPS)/ North East District/Karkardooma Courts, Delhi