Delhi District Court
State vs . Manish Gupta on 3 December, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No.236/13 Unique Case I.D. No.02402R0221732013 FIR No. 171 /13 P.S. Anand Vihar U/s 376/365/506 IPC State Vs. Manish Gupta ORDER ON CHARGE The facts of the prosecution case in brief are that prosecutrix (name and address is omitted to conceal identity), lodged a report at P.S. Anand Vihar on 05.5.2013 alleging that she had been residing with her parents and was serving in Max Life Insurance Company as an agent and advisor since January 2013. Its office is situated in Max Company, Nipun Tower, 6th Floor, Karkardooma. Manish Gupta, herein after referred to as the accused, was serving there as a Manager. She started working in his team. The accused started making advancement in different ways and told her that he would marry her and that they would live together. On a day in the month of March 2013 the accused took her in a hotel at Dharamvilla where they stayed in a room for about five hours. The accused assured her that he would marry her on SC No. 236/13 State vs. Manish Gupta Page No. 1/9 obtaining her trust, he made her to put off her clothes. The accused took her photographs in nude condition and assured her that he had taken these photographs only for the purpose of seeing and that he would soon marry her. Subsequently, in the said hotel they stayed for 3-4 hours. On 30.4.2013 the accused also took her in the said hotel and after assuring her to marry her made physical relations with her. On 16.4.2013, the accused took her to Karkardooma Court and obtained her signature on some papers. The accused is already married having a daughter named Ishika and they are residing at H.No. 278, Ram Nagar, Krishna Nagar, Delhi. The accused also told her that he had already taken divorce by mutual consent from his wife Pooja. Her family members came to know and on their objection, the accused threatened that he would upload her nude photographs on net. The prosecutrix demanded her photographs from the accused and told her not to upload the photographs on net as that may spoil her reputation and reputation of her family members but accused did not return the photographs. Conversely, he threatened to kill them. On the basis of her report Zero FIR at P.S. Rani Bagh and again FIR No. 171/13 at P.S. Anand Vihar u/s 376 IPC was recorded on the same day. The prosecutrix was SC No. 236/13 State vs. Manish Gupta Page No. 2/9 taken to Sanjay Gandhi Memorial Hospital, Mangol Puri where she was medically examined. Doctor observed about torn of her hymen in the MLC. On the next day the accused was arrested and his arrest memo and personal search memo were prepared. He was taken to Dr. Hedgewar Arogya Sansthan, Karkardooma, Delhi where his MLC was prepared. Doctor observed that there was nothing to suggest that the patient was not capable of performing sexual act. On that day also the prosecutrix was produced before Ld. M.M. and her statement u/s 164 of Code of Criminal Procedure, herein after referred to as Code, was recorded. After completion of investigation police filed a charge sheet against the accused for his trial for the offences punishable u/s 376/365/506 IPC.
2. I have heard arguments of Ld. Addl. Public Prosecutor for the state and Ld. Defence Counsel on charge and perused file.
3. It has been argued on behalf of Ld. Defence Counsel that there is no sufficient material on record to frame charge against the accused for the alleged offences. The prosecutrix was major and consenting party. She of her own SC No. 236/13 State vs. Manish Gupta Page No. 3/9 accompanied with the accused.
4. On the other hand, Ld. Addl. P.P. for the state submitted that there is sufficient material on record to frame charge against the accused for the alleged offences.
5. In support of his arguments Ld. Defence Counsel relied on a case Rohit Chauhan vs. State NCT of Delhi, (Order of DHC dated 22.5.13 in Bail App. No. 311/2013), wherein High Court of Delhi granted bail to the accused keeping in view that prosecutrix was major and consenting party and she was in physical relationship with accused for about two and half years.
6. My attention goes to a case reported as Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 (1), wherein the Apex Court observed that:
"10. Thus, on a consideration of authorities mentioned above, the following principles emerge:
(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 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 SC No. 236/13 State vs. Manish Gupta Page No. 4/9 suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceedings with the trial.
(3) The test of 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 experienced 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."
7. Thus, the court at the time of framing of charge as provided under Section 227 of the Code of Criminal Procedure, herein after referred to as Code, has to see the material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Code. Absence of ground for proceeding against the accused means absence SC No. 236/13 State vs. Manish Gupta Page No. 5/9 of a prima facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage 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. Thus, it is crystal clear that at the time of forming an opinion on the point of charge, the Court has to form a prima facie opinion of the matter. No meticulous assessment of evidence is permissible at that juncture.
8. It would be appropriate to reproduce relevant portion of provisions of Sections 354A, 354B, 354C, 365, 366 & 376(2)(k) IPC which run as under:
"Section 354A: Sexual harassment and punishment for sexual harassment.- (1) A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv)making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or SC No. 236/13 State vs. Manish Gupta Page No. 6/9 clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
"Section 354B: Assault or use of criminal force to woman with intent to disrobe.- Any man who assaults or uses criminal force to any woman, or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
"Section 354C: Voyeurism.- Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine.
"Section 376. Punishment for rape.-*** (2) Whoever,-***
(k) being in a position of control or dominance over a woman, commits rape on such woman; or "Section 365: Kidnapping or abducting with intent secretly and wrongfully to confine person.-Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
366. Kidnapping, abducting or inducing woman to compel SC No. 236/13 State vs. Manish Gupta Page No. 7/9 her marriage, etc. - whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.]
9. On considering the rival contentions of Ld. Addl. Public Prosecutor and Ld. Defence Counsel and scruitinising the material available on record in the light of provisions of Section 354A, 354B, 354C, 365, 366, 376(2)(k) IPC, I am of the view that material available on record in the form of report, statement of the prosecutrix u/s 161 of the code, supplementary statement of the prosecutrix u/s 161 of the code, and statement of the other witnesses u/s 161 of the code, and other various documents on record raise grave suspicion against the accused that he might have committed offence of sexual harassment punishable u/s 354A IPC; offence of assault or use of criminal force to woman with intent to disrobe punishable u/s 354B IPC; offence of SC No. 236/13 State vs. Manish Gupta Page No. 8/9 voyeurism punishable u/s 354C IPC; offence of Kidnapping, abducting or inducing woman to compel her marriage, etc. punishable u/s 366 IPC; and offence of rape punishable u/s 376(2)(k) IPC. However, I do not find any sufficient material on record for framing of charge for the offence of kidnapping or abducting with intent secretly and wrongfully to confine person punishable u/s 365 IPC. Accordingly, accused is discharged for the offence punishable u/s 365 IPC.
10. Let charge against the accused for offences punishable under Sections 354A, 354B, 354C, 366, 376(2)
(k) IPC be framed accordingly.
Announced in the Open Court
on 3rd December, 2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
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