Delhi District Court
Ashwani Kumar vs The State on 28 April, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. REVISION No. 321 of 2019
CNR No. : DLST01-005853-2019
ASHWANI KUMAR
S/O SHRI OM PRAKASH
R/O H. NO. 27, RANI JHASI ROAD,
NEW DELHI-110055 .........REVISIONIST
VERSUS
THE STATE ........ RESPONDENT
DATE OF INSTITUTION : 31.08.2019
ARGUMENTS HEARD ON : 14.03.2023
DATE OF JUDGMENT : 28.04.2023
JUDGMENT
1. This is a revision petition filed against order dated 25.07.2019, whereby the Ld. Trial Court decided to frame charge against the accused.
2. Both the sides have been heard. Record perused.
3. Upon complaint of a lady doctor, the police registered an FIR and investigated the matter. The charge sheet was filed u/s 354A/354D IPC against the accused i.e. the present revisionist. RAKESH When the time came for consideration on charge, the Ld. KUMAR SINGH Counsel for accused raised objection and filed detailed written arguments. However, the Ld. Trial court was of the opinion that Digitally signed by RAKESH KUMAR SINGH Date: 2023.04.28 Cr Rev No. 417/2019 Ashwani Kumar vs State Page 1 of 5 17:01:17 +0530 those contentions raised on behalf of the accused could only be seen after the cross-examination of witness and therefore, she declined to discharge the accused. Following objections of the Ld. Trial Court are relevant:-
"Submissions have been heard. Court file perused. The complainant has specifically alleged that the accused had been repeatedly calling her, sending her messages and had been coming to her office in her absence and followed her to the hotel. She has further alleged that he used to try to touch her while getting photographs clicked with her and had even put his arms around her for his purpose. Further, it is alleged by the complainant that the accused used to say uncomfortable things to her and whenever, during post operative procedure were being carried out by her, he would giggle and tell her that he likes being touched by her in front of staff members. The contentions raised at length on behalf of the accused can only be tested during cross-examination and at this stage, the court has to consider the material on record and arrive at a conclusion as to whether there is sufficient material to frame charge against the accused. The contentions raised on behalf of the accused are the subject matter of trial and arguments and cannot be a ground for discharge of the accused at this stage. On the basis of material on record, the court is of the view that there is a prima facie case made out against the accused as there are specific allegations attracting the ingredients of Sections 354A(1)(i) of IPC and in the alternative Section 354 of IPC, Section 354A(1)(iv) and Section 354D of IPC against him."
4. Ld. Counsel for accused/revisionist argued that entire RAKESH material has to be looked into by Ld. Trial Court at the stage of KUMAR SINGH charge but the Ld. Trial Court has failed to do so and therefore, Digitally signed the same is contrary to the provisions of Section 239 and 240 by RAKESH KUMAR SINGH Date:
2023.04.28 17:01:24 +0530 Cr Rev No. 417/2019 Ashwani Kumar vs State Page 2 of 5 Cr.PC. He argued that both these provisions are required to be read together. He further contended that the FSL could not find any vulgarity during the examination of the mobile phone and that the call detail record shows that the complainant herself was repeatedly calling the accused even at odd hours. He further argued that the complainant was a doctor and was treating the accused but despite taking handsome amount, she failed to properly treat him and therefore, the accused had issued a notice for compensation. He argued that as a counter blast, the complainant filed a false case against the accused. Ld. Counsel therefore, claimed that accused should be discharged.
5. I am of the view that at the stage of consideration on charge, thorough examination of probative value of available material is not required. Even if the call detail record is minutely scrutinized, the same will only show that the complainant also used to call the accused. However, it does not determine that her statement regarding misbehavior by the accused is false. A female has a protective fundamental right of choice to say yes or no to any advances made to her even from the fully acquainted person or for that matter a person in whom she has confided emotionally. This protection runs all the times and the female can choose to say no at any point of time. Even if the female is talking to someone or shows interest in someone, she could say no to any of the activities or advances at any point to that person. The allegations in the complaint and statement u/s 164 Cr.PC are RAKESH KUMAR categorical that the conduct of the accused was not upto the SINGH mark. This cannot be controverted only by showing the call detail record. The material on record is sufficient to indict the Digitally signed by RAKESH KUMAR SINGH Date:
2023.04.28 17:01:43 Cr Rev No. 417/2019 Ashwani Kumar vs State Page 3 of 5 +0530 accused for offence punishable u/s 354 or 354A IPC. The Ld. Trial court having taken a prima facie view in respect of these provisions, has not committed any irregularity or illegality.
6. However, so far as Section 354D is concerned, the material is clearly lacking. This provision punishes the activities of stalking. The Whatsapp chat nowhere indicates that the complainant ever tried to refuse the personal contact with the accused. The defination of stalking is very clear that if a person insists on forcing personal contact despite refusal of the lady, the same will be treated as stalking. This is not the case here. The second ingredient is that if a person monitors the e-mail, the same can also be treated as stalking. Sending some e-mail to the girl is not monitoring of e-mail. This ingredient is also lacking in the present case. Ld. Trial Court has not given any reason as to why she found Section 354D to have attracted in the present case. I am of the view that charge for this section cannot be invoked on the basis of available material.
7. So far as the claim of counter blast is concerned, I am of the opinion that this is to be proved by the accused during the course of evidence and at this stage this claim cannot be tested.
8. We have to bear in mind that Revisional court has very limited jurisdiction to interfere in the matter of charge. RAKESH KUMAR Thorough comparison or evaluation of evidence is neither SINGH permissible for the Ld. Trial Court or for the Revisional court so Digitally far as the stage of charge is concerned. I am of the view that the signed by RAKESH KUMAR allegations are not completely groundless so as to attract Section SINGH Date:
2023.04.28 17:01:52 +0530 Cr Rev No. 417/2019 Ashwani Kumar vs State Page 4 of 5 239 Cr.P.C and therefore, the prosecution has to be given opportunity to lead evidence. Consequently it is directed that except for Section 354D IPC, case should be put up for trial.
9. In view of the aforesaid discussion, the revision petition is partly allowed and order dated 25.07.2019 passed by Ld. Trial Court is modified to the extent that section 354D IPC is deleted from the charge. The revision petition is disposed off.
10. TCR alongwith copy of this judgment be sent to the Trial Court.
11. The revision file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 28th DAY OF APRIL, 2023 RAKESH Digitally by RAKESH signed KUMAR KUMAR SINGH Date: 2023.04.28 SINGH 17:01:58 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI Cr Rev No. 417/2019 Ashwani Kumar vs State Page 5 of 5