Delhi District Court
Ankit Nanda vs State on 10 October, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Ankit Nanda
S/o Sh. Rakesh Nanda
R/o H. No. A-14, Shivalik
Malviya Nagar, New Delhi ... Petitioner/Accused
V E R S U S
State ... Respondent
Criminal Revision No. : 05/13(original no. 104/12)
Date of institution/transfer : 01.12.2012/10.01.2013
Date of reserving order : 05.10.2013
Date of pronouncement : 10.10.2013
J U D G M E N T
This revision petition has been filed by the petitioner against the impugned order dated 04.10.2012 passed by Ld. MM, Mahila Court, South, Saket Courts, New Delhi vide which the Ld MM has observed that there is sufficient prime facie material on record for proceeding against the petitioner/accused for the offences punishable U/s 452/509/34 IPC and Section 40 of the Delhi Excise Act, 2009 and had directed the service of notice U/s 251 Cr.P.C. upon the petitioner.
CR No. 05/13 Ankit Nanda Vs. State 2
2. The contents of the revision petition as well as the trial court record have been perused and the submissions made by Sh. J. M. Kalia, Ld counsel for the petitioner and Ms. Alka Goel, Ld Addl. PP for the State have been heard and considered.
3. The facts of the case, in brief, are that that the present case was registered on the basis of the statement made by one Sh. Devender Malik, Inspector Security of JNU Complex, while alleging that on 22.11.2009 at about 2.30 PM, one of their guards had called him and told that some outsiders were consuming alcohol on the ' P aschimabad Dam' of the complex and he had reached there immediately and had found that the petitioner Ankit Nanda and three other persons named Gagan Kumar, Amit Chauhan and Nitin Kapoor, whose names and other particulars were disclosed subsequently, were consuming alcohol there in a Hyundai Accent car of white colour bearing registration No. DL 3C AL 8366. When the complainant had asked about their addresses, they all had abused the complainant and when the complainant had called his seniors, the above four persons had even abused his seniors. The complainant had then told them that he had already called the police at 100 number and thereupon one of the four boys named Nitin Kapoor had reached near the van of the complainant and had shown him some pistol like object and had again abused and threatened him and then they all had left in their above car.
CR No. 05/13 Ankit Nanda Vs. State 3
4. It is also alleged in the FIR that when the car of the accused persons had reached at the ' S abarmati ' T- point of the above complex, they had passed some comments on the boy and girl students standing there and the complainant was following their car in his vehicle at that time and was told by the above students about the said comments and was asked by them to stop the vehicle of the accused persons. The complainant had then passed the information at the northern gate of the complex and the guard deputed there had asked the accused persons to stop their vehicle, but the accused persons had refused to do so by boasting of their higher connections with senior police and other officers and in the meanwhile, the complainant and above students had also reached there and the accused persons had again misbehaved with all of them and then a PCR van has also arrived there and in the presence of the PCR officials, one lighter having a pistol like look was recovered from the pant of the accused Nitin Kapoor and a bottle of whiskey make ' B lenders Pride' was also recovered from their car.
5. It is also found recorded in the FIR that the complainant was terrible feared on seeing the above pistol like lighter and a common man could have taken it as a pistol only. The statement of some persons, including students Ms. Vibha and one Mr. Rahul, were also subsequently recorded and it is found stated in the said statements that the person driving the above car of the CR No. 05/13 Ankit Nanda Vs. State 4 accused persons, namely Nitin Kapoor, had gestured obscenely at Ms. Vibha and had outraged her modesty by showing his middle finger and had also passed some lewd comments upon her and it is further found recorded that when they were stopped at the gate, they all appeared to be under the influence of liquor and had used filthy words and had again outraged her modesty.
6. It has been argued by the Ld counsel for the petitioner that the impugned order dated 04.10.2012 of the Ld MM is illegal and is not sustainable in the eyes of law as she had not even discussed the essential ingredients of the above offences for which the charges have been directed to be framed against the petitioner and from the facts and circumstances of the case, as narrated in the charge sheet and the documents filed alongwith the same, no prime facie case for commission of the above said offences punishable U/s 452/509/34 IPC is made out against the petitioner. It has also been argued that this case was registered against the applicants only under the pressure of the of the Students Union of above University as a case of rioting for offences punishable U/s 147/148/149/186/323 /332/341/353/427 IPC & Section 3 of the Damage to Public Property Act was also registered against various students of the said university vide FIR No. 537/09 of the above PS Vasant Kunj.
7. Before entering upon any discussion regarding the CR No. 05/13 Ankit Nanda Vs. State 5 merits of the case, it appears to this court that due to some mistake or inadvertence, the Ld MM in her impugned order dated 04.10.2012 had directed the service of a notice U/s 251 Cr.P.C. on the accused persons for the above said offences instead framing of the charges as the offence punishable U/s 452 IPC, is punishable with imprisonment of other description for a term extending upto seven years and fine and hence, charges should have been directed to be framed against the accused persons instead serving of notices U/s 251 Cr.P.C. Further, an offence U/s 68 of the Punjab Excise Act, as extended to Delhi, could have been made out against them, as was also alleged in the chargesheet, and not an offence U/s 40 of the Delhi Excise Act as this new Act was not even in existence on the relevant date of commission of the alleged offences, i.e. 22.11.2009, as the same had received the assent of the President of India only on 01.07.2010.
8. Now, firstly, coming to the offence punishable U/s 452/34 IPC, it is the contention of the Ld counsel for the petitioner that the Ld MM in her impugned order dated 04.10.2012 is not right when she had observed that the accused persons had entered in the JNU Complex without the permission as the documents filed alongwith the charge sheet clearly show that the car of the accused persons had entered the said complex vide entry at serial No. 765 dated 22.11.2009 made in at the register kept at the entry CR No. 05/13 Ankit Nanda Vs. State 6 gate of the said complex and as per the said entry, the time of entering of the said car in the above complex is shown to be 7.00 PM. It is his contention that since the entry in the JNU Complex is not prohibited and was restrictive only, no offence punishable U/s 452 IPC is made out against the petitioner and the other co-accused as their entry in the said complex was permissive and the same was also not for the purpose of commission of any offence, what to say of the offences mentioned in Section 452 IPC.
Section 452 IPC provides as under:-
452. House-trespass after preparation for hurt, assault or wrongful restraint:- Whoever commits house-
trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The term ' h ouse-trespass' is defined by Section 442 IPC in the following words:-
442. House trespass:- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody CR No. 05/13 Ankit Nanda Vs. State 7 of property, is said to commit " h ouse-trespass" .
Section 441 defines the term ' c riminal trespass' as under:-
441. Criminal trespass:- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit " c riminal trespass" .
9. Though, the Ld MM has observed in her impugned order that the offence punishable U/s 452 IPC is made out against the petitioner and other co-accused, but it is observed that the above order of the Ld MM on this aspect is not sustainable in the eyes of law as from the facts and circumstances, as discussed above, it cannot be said that the accused persons had entered into the above complex after having made preparations for causing hurt to any person or for assaulting any person or for wrongful restraining any person or for putting any person in fear of hurt, assault or wrongful restraint, as provided in the above Section. It is so as simply because one of the accused persons was having a pistol like lighter, it cannot be said that they had entered into the said premises for any of the aforesaid purposes or were having CR No. 05/13 Ankit Nanda Vs. State 8 any intentions of using that as a pistol to put any person in any such fear.
10. However, from the trial court record, it is clear that none of the accused persons was a student or resident of the above complex and as per the copies of the register maintained at the entry gate as well as the statements of one guard named Sandeep Kumar deputed at the said entry gate, the above accused persons had entered the above complex on the pretext that they were going to meet their brother in room No. 113 in Kaveri Hostel of the said complex. It is also clear from the trial court record that apart from one bottle of ' B lenders Pride' whiskey, two bottles of Vodka and one bottle of soda were also recovered from the car in which the accused persons were allegedly consuming alcohol and all these bottles were in open condition and the same coupled with the statement of the complainant Sh. Devender Malik and the statement of one other guard named Ravijeet Singh, who had seen the accused persons consuming alcohol in the said vehicle, prime facie, show that the purpose of the accused persons in entering the said complex was only to consume liquor in the said complex and further since that complex is a public place, the consumption of liquor at the said place was certainly an offence within the meaning of Section 68 of the Punjab Excise Act, as applicable in Delhi, at that time. Simply because in the MLCs of the accused persons, no smell of alcohol has been found, it cannot be said at CR No. 05/13 Ankit Nanda Vs. State 9 this stage that they were not found consuming alcohol as it cannot be ignored that they all were medically examined in the midnight of 22/23.04.2009, whereas the alleged incident had taken place at around 2.30 PM on 22.04.2009 and there was a long gap of about 7/½ /8 hours from the time of commission of the alleged offence and their medical examination.
11. Therefore, in the absence of any lawful purpose of entry of the accused persons in the said complex having been brought on record during the investigation and further in view of the evidence as discussed above, it is clear that they all had entered the said complex for consumption of alcohol and hence, a prime facie case for commission of the offence of criminal trespass is made out against them and since the above trespass was committed in the said complex, which apart from an academic complex is also a residential complex, the offence of house-trespass is found to be prime facie committed by the petitioner and the other co-accused, which is made punishable by Section 448 IPC only.
12. Now coming to the other offence punishable U/s 509/34 IPC, it is the contention of the Ld counsel for the petitioner that the above offence U/s 509 IPC is prime facie made out only against the accused Nitin Kapoor, who was driving the above Accent car and it cannot be said to have been committed by the present petitioner simply by CR No. 05/13 Ankit Nanda Vs. State 10 operation of Section 34 IPC, which lays down the vicarious liability of a person for the acts committed by the others. It is his contention that the middle finger was allegedly shown to Ms. Vibha by the accused Nitin Kapoor only and even the lewd comments were passed upon her by the said accused and not by the petitioner and simply if it is alleged in her statement that her modesty has been outraged by all the accused persons, it is not sufficient to attract the provisions of Section 509 IPC qua the petitioner. Reliance has also been placed by the Ld counsel for the petitioner upon judgments in cases of P. Vijayan Vs. State of Kerala & Anr. 2010 (1) SCC (Crl.) 1488, Amitabh Adhar Vs. National Capital Territory of Delhi 2000 (4) AD (Delhi) 896, Soma Chakravarty Vs. State (Th. CBI) 2007 AIR (SC) 2149, Raju Pandurang Vs. State of Maharashtra & Anr. CDJ 2004 SC 407 and Ramkripal Vs. State of Madhya Pradesh CDJ 2007 SC 360.
13. A perusal of the record shows that as per the statement of Sh. Devender Malik, the accused persons had passed certain comments on some girl and boy students standing on the ' S abarmati ' T-point on their way back from the ' P aschimabad Dam' to the exit gate and further when they all had reached at the gate where the accused persons had been stopped by the guard, all the accused persons had again misbehaved with them and had used abusive words. It is also found recorded in the statement of Ms. Vibha that when they had reached at the northern CR No. 05/13 Ankit Nanda Vs. State 11 gate, all the four accused persons were shouting and seemed to be under the influence of liquor and when she had intervened, the accused persons had used filthy words and had again outraged her modesty. There is also one other statement of Mr. Rahul Manan, who was alongwith Ms. Vibha at the relevant time, to the same effect. Simply because Ms. Vibha or the complainant Sh. Devender Malik had not mentioned in their statements as to what were the exact words uttered or used by the accused persons which intended to assault or annoy her or to outrage her modesty is not a ground for discharge of the petitioner for the said offence as in the considered opinion of this court, the same will be a matter of trial and at the stage of charge, it is sufficient if after having a look at the contents of the charge sheet and the other material placed on record, it appears to the court that there is a prime facie case made out against the petitioner for commission of the said offence and it is also not necessary that the said material should be sufficient for or ultimately entail the conviction of the accused for the said offence at the end of the trial. Grave suspicion, as distinguished from mere suspicion, is sufficient to frame a charge for an offence against the accused and at the stage of charge, the court is not supposed to martial the evidence on record for a finding of guilt or innocence of the accused and it is sufficient if the court is of the view that there is sufficient material for proceeding further in the matter against the accused for the framing of the charge.
CR No. 05/13 Ankit Nanda Vs. State 12 These propositions of law have even been reiterated in cases P. Vijayan, Amitabh Adhar and Soma Chakravarty, Supra being relied upon by Ld counsel for the petitioner himself and the same do not in any way make out a case for discharge of the petitioner for the said offence. Even the cases Raju Pandurang and Ramkripal, Supra being relied upon by Ld counsel for the petitioner are not of any help to the case of the petitioner, though the propositions of law in the said case are not in dispute.
14. In view of the above discussion, it is held that from the contents of the charge sheet and the documents filed alongwith the same, a prime facie case for commission of the offences punishable U/s 448/509/34 IPC and Section 68 of the Punjab Excise Act, as extended to Delhi and in existence at the relevant time, is made out against the petitioner as well as the other co-accused, instead of the offences punishable U/s 452/509/34 IPC and Section 40 of the Delhi Excise Act, as observed by the Ld MM in her impugned order. Hence, the impugned order of the Ld MM stands modified to that extent. However, besides the above, a prime facie case for commission of the offence punishable U/s 506 IPC is also there against the other co-accused Nitin Kapoor, as observed by the Ld MM in her impugned order.
15. The offence punishable U/s 448 IPC is punishable with imprisonment of either description for a term which CR No. 05/13 Ankit Nanda Vs. State 13 may extend to one year and though the offence punishable U/s 509 IPC at present contains a punishment of simple imprisonment for a term extending upto three years, but at the relevant time of commission of the offences of this case, the same was punishable with simple imprisonment upto a period of one year only and even the offence U/s 506 IPC attracted in this case qua the other co-accused Nitin Kapoor is covered by the first part of the said Section which prescribes a punishment of imprisonment of either description for a term extending upto two years and hence, notices of accusation U/s 251 Cr.P.C. are required to be served upon the accused persons for the above said offences.
16. The revision petition stands disposed off accordingly. Let a copy of this judgment be sent to the Ld MM concerned for further proceedings. TCR be also returned back. File of the revision petition be consigned to record room.
Announced in the open court on 10.10.2013 (M.K.NAGPAL) ASJ/Spl. Judge, NDPS South District Saket Court Complex New Delhi CR No. 05/13 Ankit Nanda Vs. State