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Delhi District Court

Sh.Rajendra Prasad vs The State on 17 May, 2014

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IN THE COURT OF SH. AMIT BANSAL: ADDITIONAL SESSIONS JUDGE­04 
(NORTH­WEST): ROHINI COURTS:DELHI



C.R.NO. 12/14 (Old. CR.No.12/13)



     1. SH.RAJENDRA PRASAD
           S/O SH. RADHA KRISHAN
           R/O 2470/193, TRI NAGAR 
           DELHI­110035


     2. SH. PANKAJ
           S/O SH. RAJENDRA PRASAD
           R/O 2470/193, TRI NAGAR, 
           DELHI­110035


                                                            ......PETITIONERS


        VERSUS



     1. THE STATE
           NCT OF DELHI


     2. MAHESH DUTT
           S/O SH. FATE SINGH SAINI

C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr.                        Page1of 12 
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           R/O 2514/193, TRI NAGAR
           DELHI­110035


                                                     .....RESPONDENTS



DATE OF INSTITUTION IN THIS COURT :                              18.02.2014
DATE ON WHICH RESERVED FOR ORDER: 05.05.2014
dATE OF ORDER:                                                   17.05.2014


O R D E R :

1) The present revision petition is directed against the impugned order dt. 3.6.13 vide which Ld. Trial Court framed notice U/s 323/201/506/34 IPC against both the revisionists/petitioners and further framed notice U/s 354 IPC against the revisionist no.2 Pankaj.

2) I have heard the rival submissions on behalf of Ld. Counsel for revisionists, Ld. Addl. P.P. for State/respondent no.1 and Ld. Counsel for respondent no.2/complainant and have perused the record including the TCR.

3) Ld. Counsel for petitioners/revisionists have submitted that on 08.01.2010 the respondent no.2 was trying to illegally dig the road for connecting the sewer water line into the rain water line, which was C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page2of 12 3 objected to by the revisionists as respondent no.2 was not having any permission from the MCD in this regard, however, the respondent no.2 ignored the request of the revisionists and continued working against the laws and guidelines of the MCD. He argued that again the revisionists objected to the said illegal work upon which the respondent no.2 threatened the revisionists to implicate them in false case. The respondent no.2 made a call at no. 100 to the PCR and the police officials from PS Keshav Puram who reached at the spot also asked the respondent no.2 whether he was having any permission for illegally digging the road and thereafter due to intervention of said police officials the above mentioned work was stopped. He argued that in view of the above said facts respondent no.2 made a false complaint to police officials of PS Keshav Puram regarding the fighting and abusive language mentioning that the petitioner no.2 had tried to snatch the mobile phone from the daughter of the respondent no.2. He argued that there was no public witness to the incident and the family members of respondent no.2 ignored the request of police officials to get them medically examined. He argued that thereafter the police officials vide NCR No. 468/10 dated 05.03.2010, PS Keshav Puram submitted a report stating that after inquiry from the public persons it was found that no fight took place and there was no incident of snatching C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page3of 12 4 of mobile phone. He argued that thereafter the complainant/respondent no.2 filed the present Complaint Case No. 15/1/11, however, in view of the report of the police the Ld. Trial Court dismissed the application U/s 156(3) Cr.P.C. and directed the respondent no.2/complainant to lead the evidence and after taking the pre­summoning evidence, thereafter, vide order dt. 01.04.13 Ld. Trial Court directed for framing of charge against the revisionists and vide impugned order dt. 03.06.13 framed the above mentioned notice against both the revisionists/ accused persons. The Ld. Counsel for revisionists/ accused persons argued that the impugned order has been passed by the Ld. Trial Court without going into the facts of the case and that the respondent no.2 along with his family members was doing an illegal act of connecting the sewer water line with rain water line without having any permission from the MCD. He argued that the respondent no.2 had filed a false complaint without any public witness and Ld. Trial Court has framed notice against the revisionists without applying its mind to the facts of the case. He also argued that from the evidence adduced by the complainant /respondent no.2 before the Trial Court, the offence U/s 201 IPC is not made out against both the revisionists, whereas Section 354 IPC is not made out against petitioner no.2 Pankaj in the absence of any intention on the part of revisionist no.2 C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page4of 12 5 to outrage the modesty of Ms. Jyoti Saini i.e. daughter of complainant/ respondent no.2 as the only intention of the petitioner no.2 was to seize her phone and destroy it. He also referred to the Judgment of Hon'ble Supreme Court of India in case titled as Aman Kumar Vs. State of Haryana, AIR 2004 SC 1497. He also argued that CW 2 Ms. Shila Saini is not even in the photographs on the record and she has been falsely made a witness in this case.

4) Ld. Addl. P.P. for State has argued that intention is the most important ingredient of an offence U/s 354 IPC and from the facts of the case and testimony of complainant's witnesses, the offence U/s 354 IPC is not made out and more so as in testimony of the witnesses the body part of Ms. Jyoti Saini which was allegedly touched by petitioner no.2 while pushing her has not been mentioned. He argued that from the testimony of the complainant's witnesses it seems that the only intention was to snatch the mobile phone being used by Ms. Jyoti Saini and to destroy its contents. He submits that from the testimony, however, the offence of mischief is made out against the petitioners. He also argued that the offence U/s 201 IPC also does not seem to be attracted as it has not been deposed in the testimony of complainant's witnesses that evidence of which offence was made to disappear with the intention of screening the C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page5of 12 6 offender from the legal punishment. He, however, strongly supported the remaining notice.

5) Ld. Counsel for respondent no.2/complainant on the other hand strongly defended the impugned order and argued that the revisionists were creating unlawful obstruction in the work being done by respondent no.2 and his family members and that Ms. Jyoti Saini was making the video film of the entire incident, the revisionist no.2 on the instigation of his father i.e. revisionist no.1 snatched the said mobile phone form her hand, pushed her again and again and destroyed the mobile phone by throwing the same on the road and also threatened her not to take further photos. He argued that the respondent no.2 and his family members were not doing any illegal work and that vide impugned order and notice under proper sections of law have been framed against the revisionists /accused persons.

6) The respondent no.2/ complainant herein filed a complaint U/s 190 r/w Sec. 200 Cr.P.C. against the revisionists herein upon which the cognizance in respect of the offences U/s 354/201/323/506 IPC was taken by the then Ld. ACMM, NW, Rohini Courts, Delhi vide order dated 01.10.10. Thereafter, the complainant/respondent no.2 examined four witnesses in support of its case (he also got himself examined as CW­3). C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page6of 12 7 Vide order dt. 03.09.2011 Ld. ACMM­1(NW) summoned the revisionist no.1 in respect of offences U/s 323/201/506­1/34 IPC and summoned the petitioner no.2 in respect of the offences U/s 323/354/201/506/34 IPC, thereafter, after hearing the arguments on charge, Ld. Trial Court vide order dt. 01.04.2013 held that there is prima facie sufficient material on record to frame charge U/s 323/201/506­1/34 IPC against the accused no.1 (revisionist no.1) and charge U/s 323/354/201/506­1/34 IPC against accused no.2/ revisionist no.2 and directed for framing of charge on 03.06.2013 and vide impugned order dt. 03.6.2013, the Ld. Trial Court framed the notice against the revisionists in terms of order dt. 01.04.2013.

It is thus evident that the impugned order dt. 03.06.13 is based upon the order dated 1.04.13 vide which the directions were passed to frame the charge under the relevant sections against the revisionists herein. The Ld.Trial Court vide impugned order dt. 03.06.13 while framing notice has mentioned inter­alia that the petitioner no.2 Pankaj pushed Ms. Jyoti Saini i.e. daughter of complainant/revisionist no.2 again and again and molested her. The said witness Ms. Jyoti Saini, who has been examined as CW1 by the complainant/revisionist no.2 has deposed that when the revisionists started creating disturbance when the MCD labours started work at the site, she started recording the entire incident on her C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page7of 12 8 mobile phone. She has further deposed that the revisionist no.1 instigated his son i.e. revisionist no.2 to snatch mobile phone from her hand, revisionist No.2 pushed her and destroyed the video recording on mobile phone, threw her mobile phone on the road and threatened her that if she again dared to record the illegal activities, he will teach her a lesson. CW 2, 3 and 4 have also deposed on the same lines as CW­1. It is evident from the testimony of CW 1 to CW 4 that the intention of the revisionist no.2 Pankaj was not to outrage the modesty of CW­1 Ms. Jyoti Saini whereas the only intention of revisionist no.1 was to snatch mobile phone from the hands of CW 1, to destroy the video recording in the mobile phone and to threaten CW 1 that in case she again dared to do record in the mobile phone then she will be taught a lesson . It is further evident that all the said witnesses have not deposed that CW 1 was pushed again and again by the petitioner no.2 and what has been deposed is only a push and not repeated pushes. It is a settled law that culpable intention of the accused is the crux of the matter for committing an offence U/s 354 IPC ( reliance is placed upon the Judgment of Hon'ble Supreme Court of India in case titled as Aman Kumar Vs. State of Haryana, AIR 2004 SC 1497 ). In the present case, as discussed above, it is evident from the testimony of complainant's witnesses that it was never the intention of the revisionist C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page8of 12 9 no.2 to outrage the modesty of CW 1 Ms. Jyoti Saini but his intention was only to snatch the mobile phone from her hand to destroy its recording and for that purpose only he gave her a push. Further, the witnesses have not mentioned as to the body part of CW 1 upon which the impact was given by the revisionist no.2 while pushing her. In these circumstances, it seems that there are no prima facie sufficient grounds to frame a charge U/s 354 IPC against the revisionist no.2 Pankaj and the Ld. Trial Court gravely erred while framing the charge U/s 354 IPC against revisionist no.2 and the framing of charge U/s 354 IPC against the revisionist no.2 Pankaj is therefore set aside. Revisionist no.2 Pankaj is thus discharged U/s 354 IPC.

7) So far as Section 201 IPC is concerned, the Ld.Trial Court in the notice as framed on 03.06.13 has inter­alia mentioned that the accused Pankaj on instigation of his father Rajendra Prasad snatched the mobile phone of Ms. Jyoti Saini and destroyed the proof from the said mobile phone by throwing it on the road. In the said notice Ld. Trial Cout has sought to mention the offence whose evidence was ought to be disappeared by the revisionists, as creating unlawful rowdyism by them and disrupting the work of MCD worker. In this regard the complainant's witnesses have deposed that CW­4 Sh. Fate Singh Saini had got C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page9of 12 10 approved an application dated 23.12.09 from MCD Councilor Mr. Amrit Lal Singh for shifting the water running jali with rain water pipe of H.No. 2514/193, Tri Nagar, Delhi and when MCD labours started work at the site, the revisionists started disturbing the work of the said MCD worker doing work of shifting the rain water jali and created unlawful rowdyism. The said incident was being recorded by CW 1 Ms. Jyoti Saini and the revisionist no.2 after snatching the said mobile phone threw it on the road and destroyed the said recording. In this regard it is pertinent to note that the said MCD worker or labour who was allegedly being obstructed by the revisionists has not been examined as the witness in this case nor any complaint by him or his superior has been proved on record by the complainant. In these circumstances when it has not been prima facie shown on record as to what offence the revisionists had committed or were committing and wanted to destroy the evidence of commission of which offence, Section 201 IPC will not be attracted in this case. Both the revisionists are thus liable to be discharged and are discharged in this case U/s 201/34 IPC. The impugned order vide which the notice U/s 201/34 IPC was framed against both the revisions is thus set aside.

8) So far as Section 323/506­I IPC and Section 34 IPC is concerned, the above said testimony of the complainant's witnesses prima C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page10of 12 11 facie shows that the revisionist no.2 in furtherance of common intention with his father i.e. revisionist no.1 pushed CW 1 Ms. Jyoti Saini and threatened her that in case she again dared to record illegal activities, he will teach her a lesson. The said evidence of complainant's witnesses prima facie shows the commission of offences U/s 323/506­I/34 IPC against both the revisionists. The act of pushing CW 1 prima facie shows the commission of offence U/s 323 IPC r/w Section 34 IPC and the act of st threatening her prima facie makes the offences U/s 506(1 part) IPC r/w Section 34 IPC which provides punishment for Criminal Intimidation. No fault can thus be found in the impugned order so far as framing of notice Section 323/506­I/34 IPC against both the revisionists is concerned.

It is also pertinent to note that destruction of mobile phone of CW1 by throwing it on the road by the revisionist no.2 at the instance of revisionist no.1 makes out an offence U/s 427 IPC as there was intention or knowledge on the part of revisionist no.2 that he was likely to cause wrongful loss or damage to CW 1 to the amount of Rs. 50/­ or upwards. In these circumstances and testimonies, both the revisionists are also liable to be charged U/s 427/34 IPC.

9) In view of the above said discussion, the revision petition is disposed off with the orders that the Ld. Trial Court is directed to frame C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page11of 12 12 notice U/s 323/427/506­I/34 IPC against both the revisionists and the impugned order dated 03.06.13 is modified accordingly. Both the revisionists are discharged under Section 201/34 IPC and revisionist No.2 Pankaj is also discharged under Section 354 IPC.

10) TCR be sent back to the Trial Court with the copy of this order.

Revision file be consigned to record room.

.Announced in the open Court On 17.05.2014 (AMIT BANSAL) ASJ­04 (N/W):ROHINI COURTS DELHI C.R.No.12/14 Rajendra Prasad & Anr. Vs. The State & Anr. Page12of 12