Delhi District Court
Amar Sabharwal vs State ( Govt. Of Nct Of Delhi) on 7 September, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I.D No. : 02403R0132092016
Criminal Revision Number : 43/02/2016
New Case no. : 8612/16
Amar Sabharwal,
s/o Late Sh. Balwant Sabharwal,
r/o ES-342, E Space, Nirvana
Country, Sector-50,
Gurgaon,
Haryana. ... Petitioner/Revisionist
Versus
State ( Govt. of NCT of Delhi)... Respondent
Date of receipt of file in this Court : 09.05.2016
Date when arguments were heard : 06.09.2016
Date of order : 07.09.2016
ORDER
1. The present Revision is directed against the impugned order on charge and formal charge dated 02.02.2016 of learned M.M., New Delhi District, PHC, New Delhi in proceedings arising out of FIR No.63/2013, PS IGI Airport, under Section 354/509 IPC. Vide impugned order dated 02.02.2016, the learned Trial Court directed CR no. 43/2/16 Amar Sabharwal Vs. State. page 1 of 17 framing of charges under section 354/509 IPC against the accused person/revisionist and also framed formal charge under the said provisions of law against him.
2. I have heard the submissions on behalf of ld counsel for the Petitioner/Revisionist and also that of learned Addl. PP on behalf of Respondent / State and carefully perused the record including the trial Court record.
3. Learned counsel for the Petitioner / Revisionist has argued that the ld. trial court gravely erred in not discharging the revisionist in this case despite the absence of any grave suspicion against him for commission of the offences u/s 354/509 IPC. He contended that barring self serving statements of the complainant and the hearsay testimony of three prosecution witnesses, there was no further material placed on record to establish the prosecution case against the accused/revisionist. He referred to the judgment of Hon'ble Delhi High Court in case Prashant Bhaskar Vs. State ( Govt of NCT of Delhi ), 2014 (1) JCC 750 and argued that the first statement of the complainant /prosecutrix dated 02.03.2013 would show only vague allegations u/s 509 IPC, the FIR dated 02.03.2013 was also registered only under Section 509 IPC, whereas, subsequently, the complainant improved her version in her statement dated 28.05.2013 under Section 164 Cr.P.C and therefore, the improved statement under section 164 Cr.P.C can not be made the basis of charging the revisionist under Section 354 IPC. He contended that in that regard the first statement dated 02.03.2013 of the prosecutrix which is immediately after the occurrence should be taken into consideration at the stage of charge,whereas the statement under CR no. 43/2/16 Amar Sabharwal Vs. State. page 2 of 17 Section 164 Cr.P.C should have been discarded by the learned trial court while directing the framing of the charge against the revisionist. He contended that the revisionist lacked mens rea for commission of offences under Section 354/509 IPC. He contended that the investigating officer did not placed on record the departmental inquiry conducted by M/s Air India, Ltd on record, wherein the revisionist was absolved full day that the revisionist was not guilty and did not commit any sexual harassment against the complainant. He argued that the ld. trial court did not look into the said inquiry report in view of the judgment of Hon'ble Apex Court in case in case of State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359 : ( 2005) 1 SCC 568. He, however, referred to the judgment of Hon'ble Supreme Court of India in case of Rukmini Narvekar Vs. Vijaya Satardekar & Ors, ( 2008) 14 SCC 1 and submitted that in rare and exceptional cases where defence material would convincingly demonstrate to the learned trial court that the prosecution version was totally absurd or preposterous, the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. He also referred to the judgment of Hon'ble Supreme Court of India in case Union of India Vs. Prafulla Kumar Samal, ( 1979) 3 SCC 4 and argued that where two views are possible and no grave suspicion exists, then the accused must be discharged in a case. He contended that the impugned order does not reflect application of mind to the relevant issues by the learned trial court and as such the impugned order is liable to be quashed and referred to judgment of Hon'ble Supreme Court of India in case Mehmood Ul Rehman Vs. Khazir Mohammad Tunda & Ors., ( 2015) 12 CR no. 43/2/16 Amar Sabharwal Vs. State. page 3 of 17 SCC 420. He argued that statement recorded u/s 164 Cr.P.C can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of witness who made it. He in that regard referred to the case of Utpal Das Vs. State of West Bengal,( 2010) 6 SCC 493. He referred to the statements of Gaurav Cheema and Saurav Ghera as recorded u/s 161 Cr.P.C on 05.03.2013 and statement of Ms.Neha Makan u/s 161 Cr.P.C dated 06.03.2013 and argued that although on the relevant date they all were cabin crew members with complainant of flight AI-020 but their statements are hearsay evidences and can not be relied upon. He also referred to the judgment of Hon'ble Delhi High Court in case of L.K.Advani Vs. Central Bureau of Investigation, 1997(41) DRJ 74. He thus prayed that the impugned order suffers from material illegality,should be set aside and the revisionist be discharged in this case.
4. Per contral, Learned Addl. PP for State/ Respondent has submitted that there is no material illegality or irregularity in the impugned order and that from the facts of the case a grave suspicion arises against the accused /revisionist to frame charge u/s 354/509 IPC against him. He argued that the documents / evidence produced by the accused can not be looked into at the stage of framing of the charge and that the plea of revisionist can be proved by him by leading defence evidence. He submitted that all the arguments of learned counsel for the revisionist would be of no assistance at this stage as the same are matter of trial. He argued that at the stage of charge only a grave suspicion is sufficient to frame the charge for which the complaint dated 02.03.2013, the statement of complainant/prosecutrix u/s 164 CR no. 43/2/16 Amar Sabharwal Vs. State. page 4 of 17 Cr.P.C dated 28.05.2013 and the statement of prosecution witnesses u/s 161 Cr.P.C would suffice. He argued that the judgments as relied upon by the ld counsel for the revisionist would not help him at this stage.
5. Before proceeding further, it would be pertinent to discuss the law regarding consideration on charge. It is a settled law that at the time of consideration on charge, the court has the power to sift and weigh the evidence although for a limited purpose for finding out whether a prima-facie case against the accused has been made out which would depend upon the facts of each case and if two views are equally possible and if court is satisfied that the evidence produced before it while giving rise to some suspicion but does not raise grave suspicion against the accused, the court would be fully within its right to discharge the accused. My views are substantiated by the judgments in cases Union of India Vs. Prafulla Kumar Samal and Anr. AIR 1979 SC 366, Sarbans Singh & Ors Vs. State of NCT of Delhi 2005 (1) JCC 255 and Dilawar Balu Kurane Vs. State of Maharashtra AIR 2002 SC
564. In the case of Union of India Vs. Prafulla Kumar Samal and Anr. (Supra) , the Hon'ble Supreme Court of India held as follows :
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(I) 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 weather or not a prima facie case against CR no. 43/2/16 Amar Sabharwal Vs. State. page 5 of 17 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 would 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 experienced court can not act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad possibilities 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 inquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial.
The Hon'ble Supreme Court of India in the case titled as Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao ( 2012) 9 SCC 512 has referred to its judgment in the case of Sajjan Kumar Vs. CBI, (2010)9 SCC 368 : (2010) 3 SCC ( Cri.) 1371 wherein it was held as follows :
"19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is CR no. 43/2/16 Amar Sabharwal Vs. State. page 6 of 17 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves 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.
20. A Magistrate enquiring into a case under Section 209 Cr.P.C is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 Cr.P.C, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Section 227 and 228 Cr.P.C 21 On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles CR no. 43/2/16 Amar Sabharwal Vs. State. page 7 of 17 emerge:
(i)The Judge while considering the question of framing the charges under Section 227 Cr.P.C 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The court can not 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, etc. However, at this stage, there cannot be roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, through for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record can not be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
CR no. 43/2/16 Amar Sabharwal Vs. State. page 8 of 17
(vi) At the stage of Sections 227 and 228 , the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) 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".
15. From the above decisions, it is clear that 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, in that event, it is not open to the court to say that there is no sufficient ground for proceeding against the accused. A Judicial Magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the material on record,but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while CR no. 43/2/16 Amar Sabharwal Vs. State. page 9 of 17 exercising jurisdiction, under section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. The provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure.......
In a recent judgment, The Hon'ble Supreme Court of India in case titled as Sonu Gupta Vs. Deepak Gupta and Others ( 2015) 3 SCC 424 has held as under :
9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against the particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of the charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.
6. The factual matrix of the case shows that the case incident CR no. 43/2/16 Amar Sabharwal Vs. State. page 10 of 17 is dated 02.03.2013 at about 02.45a.m in flight no. AI 020, IGI Airport, New Delhi, wherein as per the case of the prosecution, the prosecutrix was member of a cabin crew of the above said flight along with three other cabin crew members namely Neha Makin , Gaurav Cheema and Sourabh Ghera, whereas, the revisionist / accused was the Captain of said flight alongwith Mr. Simran and Mr. P.Dhiman. The departure of the said flight was from Delhi to Kolkatta back to Delhi from International departure of IGI Airport. The complaint/prosecutrix initially gave a complaint dated 02.03.2013 to SHO PS IGI Airport upon which FIR no. 63 dated 02.03.2013 u/s 509IPC was registered, however, in her statement dated 28.05.2013 u/s 164 Cr.P.C she also alleged about some other incidents upon which after investigation the charge sheet was filed against the revisionist not only under Section 509 IPC but also under Section 354 IPC.
7. The ld trial court vide impugned order dated 02.02.2016 held that the contentions raised by the ld. counsel for the accused to the effect that the IO did not inquire about the incident from Air India Office,did not obtain the inquiry report, FIR was registered only u/s 509IPC, other Pilots/Captain in the cockpit were not examined by the IO and there was delay in the allegations with respect of offences u/s 354 IPC would not serve any fruitful purpose at the stage of charge as these were only matters of trial.
The ld. trial court also held in the impugned order after referring to State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359 that it was no more res integra that the documents/evidence produced by the accused can not be looked into at the stage of framing of charge. The ld. trial court held that in the facts of the CR no. 43/2/16 Amar Sabharwal Vs. State. page 11 of 17 present case, the complaint, statement of the complainant u/s 164 Cr.P.C, the statements recorded by the IO and the material on record was sufficient to frame charges under Section 509/354 IPC against the accused / revisionist as prima facie case under said sections was made out against him. The ld. trial court thereafter framed formal charge under Section 354/509 IPC against the accused/revisionist.
8. The complaint dated 02.03.2013 of the complainant / prosecutrix (name withheld and be referred to as X), upon which the case FIR u/s 509 IPC was registered, would show that it had the subject of untoward conduct by the co-employee / Pilot / revisionist. It was alleged in the said complaint that on 02.03.2013 she went as a crew member of flight AI-020, departure 14:45hours, Delhi- Kolkatta-Delhi. When at Delhi-Kolkatta sector, the passengers started alighting in the aeroplane then one passenger with the jump seat boarding card came to her and she went to the cockpit to intimate the accused / revisionist and asked him after showing him the boarding card that where that passenger was to be seated, there were two seats in the front, three seats at the back and that there were four cabin crew members. The revisionist stated to the complainant that she should make the passenger seat in her lap ( apni god me bitha lo ). The complainant objected to the statement of the revisionist to which the revisionist told her 'tujhe pata nahi woh custom wala hai. Teri sari bag khol kar rakh dega. Tere sare kapre utrwa dega. Ek Ek cheez ki or teri talashi lega'. The complainant has further alleged in the said complaint that the Pilot / revisionist looked at her and spoke to her in a cheap and inhuman manner. It is further alleged that the revisionist CR no. 43/2/16 Amar Sabharwal Vs. State. page 12 of 17 stated to her that she should leave the cockpit and should send the person inside, the revisionist was trying to touch her, she while going backwards came out of the cockpit and the passenger went inside and sat in the cockpit. The said passenger remained sitting in the cockpit for the entire daily/ Kolkatta sector. The complainant specifically alleged that she remained silent being cabin crew incharge and if she would leave the flight than only three cabin crew members would remain due to which either the flight would become late or would be cancelled resulting in giving a bad name to the company and therefore she completed the flight by keeping her self calm and composed.
9. In her statement under Section 164 Cr.P.C dated 28.05.2013, the complainant / prosecutrix has inter alia stated that at the time of boarding of the said flight at IGI, T-3 terminal, she along with one Mr. Khera (Ghera) was helping 4-5 wheel chair passengers to sit in the aircraft, thereafter, the Captain / revisionist entered the aircraft shouting that they were delaying the flight to which she replied that only after the boarding of said wheel chair passengers, the boarding for other passengers could start. She specifically stated that while she went in the cockpit to introduce herself to the Captain / revisionist and co-pilot then the revisionist kept holding her hand for few seconds and said 'arey 'X' kaisi hai tun' and she shrugged her hand away from him. Thereafter she has mentioned about the above said incident of passenger Deepak Jaiswal holding jump seat boarding card wherein to her question that where he is to be seated, the revisionist replied 'apni godi main bitha ley' . She has stated that upon repeating the question it was again replied by the revisionist CR no. 43/2/16 Amar Sabharwal Vs. State. page 13 of 17 'apni godi main bitha ley, bola na tujhey'. She also mentioned about the incident wherein the revisionist stated 'tujhe pata nahi woh custom wala hai. Teri sari bag khol kar rakh dega. Tere sare kapre utrwa dega. Ek Ek cheez ki or teri talashi lega'. She further stated that thereafter she got upset, told him not to use such type of language and projected through her body language that she was not comfortable with his action, his communication and body language with her. She specifically alleged in the said statement that the revisionist pulled her towards himself for which she showed her anger and later he pushed her saying 'too ja yaha se.' The above mentioned part of the statement u/s 164 Cr.P.C would be relevant for the purpose of disposal of the present revision petition.
10. The statements of Gaurav Cheema, Neha Makan and Sourabh Ghera u/s 161 Cr.P.C would show that although they were in the said flight at the relevant time but they are not the eye witnesses of the case incident as they specifically stated that the said incident was informed only by the complainant to them.
11. The above said complaint dated 02.03.2013 of the complainant as made to SHO PS IGI Airport would show that by using the above said words 'apni god main bitha ley', the revisionist intending to insult the modesty of a woman (complainant) uttered the above said words intending that such words should be heard by her and thereby uttered the words intending to insult the modesty of a woman (the complainant). The said allegations are also contained in the statement of the prosecutrix under Section 164 Cr.P.C. Although in her statement dated 02.03.2013 to SHO PS IGI Airport, the complainant did not CR no. 43/2/16 Amar Sabharwal Vs. State. page 14 of 17 mention about her actual touching by the revisionist or use of criminal force against her by the revisionist intending to outrage her modesty, however, the statement of the complainant u/s 164 Cr.P.C dated 28.05.2013 would show that the complainant has stated that the revisionist kept holding her hand for few seconds, uttered the words 'apni god main bitha ley', 'tujhe pata nahi woh custom wala hai. Teri sari bag khol kar rakh dega. Tere sare kapre utrwa dega. Ek Ek cheez ki or teri talashi lega' and despite the complainant projecting to him through her body language that she was not comfortable with his actions, body language and communication, the revisionist pulled her towards himself for which the complainant showed him anger. Although there seems to be an improvement in the statement of the complainant dated 28.05.2013 u/s 164Cr.P.C over her statement dated 02.03.2013, however, the revisionist would not be able to derive any benefit from it at this stage of charge as the veracity of the said statements can only be a matter of trial. The above said statements themselves alone would raise a grave suspicion against the revisionist/accused that he while intending to insult the modesty of the complainant, a woman, uttered the above said words intending that such words would be heard by her and also used criminal force to her intending to outrage or knowing it to be likely that he would thereby outrage her modesty, hence, there are sufficient grounds to frame charge against him under Section 354/509 IPC.
12. The learned trial court rightly held in the impugned order by referring to State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359 that it was no more res integra that the CR no. 43/2/16 Amar Sabharwal Vs. State. page 15 of 17 documents / evidence produced by the accused could not be looked into at the stage of framing of the charge. The learned trial court thus rightly did not take into consideration the inquiry report dated 17.07.2013 of Complaints Committee of Air India which admittedly was not a part of the charge sheet. The judgment of Hon'ble Supreme Court of India in case Rukmini Narvekar ( Supra), as relied upon by the ld counsel for the revisionist, is distinguishable on the facts of the case and would not help the revisionist. Further in that case, the Hon'ble Apex Court held that in very rare and exceptional cases some defence material can be looked into at the stage of framing of charge when it would convincingly demonstrate that the prosecution version was totally absurd or preposterous. The inquiry report of the complaints committee of the office of the parties can not be said to be a rare and exceptional case which could convincingly demonstrate that the prosecution version was totally absurd or preposterous. In the said circumstances, the ld. trial court rightly did not consider the said inquiry report as it was not a part of the charge sheet. The judgment of Prashant Bhaskar (Supra) would also not help the revisionist as it is distinguishable on the facts of the present case as in that case the first statement did not mention the petitioner in that case as present at the time of the incident, whereas, the second statement made serious allegations against that petitioner. In the present case, however, both the statements of the complainant were directed against the revisionist herein and the first statement also implicated the revisionist making serious allegations against him. There can be no doubt over the law as laid down in the case of Mehmood Ul Rehman ( Supra ), however, it CR no. 43/2/16 Amar Sabharwal Vs. State. page 16 of 17 would not help the revisionist in this case as the impugned order in fact reflects the application of mind to the relevant issues by the learned trial court. The other judgments as relied upon by the ld counsel for the revisionist are also distinguishable on the facts of the present case and would not help the revisionist. The pleas as raised by the ld. counsel for the revisionist can be seen and considered at the stage of trial.
13. In view of the above said discussion, the facts of the case, the complaint dated 02.03.2013 upon which the case FIR was registered, the statement of the complainant dated 28.05.2013 under Section 164 Cr.P.C and the material on record raise grave suspicion to frame charge against the revisionist / accused under Section 354/509 IPC. The ld. trial court thus rightly directed to frame the charge and framed the said charge against the revisionist in the impugned order and there is therefore no material illegality or infirmity in the impugned order.
14. There is thus no merits in the present revision petition and it is dismissed accordingly.
15. It is however clarified that nothing mentioned in this order shall be a reflection on the merits of this case and all the observations as made in this order have only been made for the disposal of the present revision petition.
16. The TCR along with copy of this order be sent to learned trial Court.
17. Revision file be consigned to record room as per rules.
Announced in the open ( Amit Bansal ) Court on 07.09.2016 Addl. Sessions Judge -04, New Delhi District, Patiala House Courts, New Delhi/ 07.09.2016 CR no. 43/2/16 Amar Sabharwal Vs. State. page 17 of 17 CR no. 43/2/16 Amar Sabharwal Vs. State. page 18 of 17