Delhi District Court
Madhuri Bandoni vs State Through Government Counsel on 30 July, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Criminal Revision
Registration No. 42/2017
CNR No. DLSW010009522017
Madhuri Bandoni,
W/o Pramod Bandoni,
R/o House No. 310, 3rd Floor, Street No.11,
Lajwanti Garden,
New Delhi.
..... Revisionist/accused
Versus
State through Government Counsel
..... Respondent
Criminal Revision under section 397 Cr.P.C. against
order dated 06.12.2016 in case FIR no. 111/2012 P S Chhawla
by Ld. Metropolitan Magistrate
Date of Institution : 30.01.2017
Arguments heard on : 03.07.2018
Date of Judgment : 30.07.2018
JUDGMENT
1. Revisionist/accused has filed the revision petition under CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 1 of 14 section 397 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) against impugned order dated 06.12.2016 of the Court of Sh. Santosh Kumar Singh, Ld. Metropolitan Magistrate05, South West, Dwarka Courts, New Delhi, whereby the charge under section 363/374 IPC was framed against the accused.
2. I have heard the revisionist through Sh. Mahesh Thakur, Ld. Counsel and respondent through Sh. Pramod Kumar, Ld. Addl. PP for State. I have perused the record of revision and of Trial Court. I have given my thoughtful consideration to the contentions put forth and relied upon precedents.
3. Revision petition rests on the premise laid by petitioner that the Ld. Trial Court had failed to appreciate the provisions related with section 363 IPC; decided the case in a mechanical way; failed to appreciate that the kidnapping is not a continuing offence. Also has been argued that as per material on record the revisionist came in contact with prosecutrix only when prosecutrix was sent to her home as a house maid by coaccused Vidhya Mehta. The moment the CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 2 of 14 prosecutrix decided to stay with coaccused Vidhya Mehta, the offence, if any, is completed. Also has been argued that Ld. Trial Court erred in appreciating law that the prosecutrix was unlawfully engaged in compulsory labour whereas it is an admitted fact that co accused Vidhya Mehta was running a placement agency and the prosecutrix was sent to the home of revisionist at a reasonable remuneration. Also has been argued that the Ld. Trial Court has not properly appreciated the fact that FIR was lodged against some unknown person; prosecutrix left her home wilfully just to check the result; at the time of leaving her home she was not under influence of any one; girl first came to the contact of co accused Vidhya Mehta; prosecutrix came in contact with revisionist only after 56 days; prosecutrix was sent to the house of revisionist for house hold work at remuneration of Rs.4,000/ per month; prosecutrix worked at house of revisionist wilfully for around one month and came back to her own home; revisionist was charge sheeted by IO for the offence under section 374 IPC only.
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4. Sh. Pramod Kumar, Ld. Addl. PP for the State argued that there is no illegality or infirmity in the order passed by the Ld. Trial Court and the revision petition be dismissed. Ld. Addl. P.P. for the State relied upon Wasif Vs State 2014 (2) JCC 1421.
5. Sections 363, 368 & 374 of IPC read as under:
" 363. Punishment for kidnapping. Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
374. Unlawful compulsory labour. Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 4 of 14 description for a term which may extend to one year, or with fine, or with both."
6. The law on the question of consideration of charge is well settled. If the criminal court, on consideration of the material submitted with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not required to be meticulously judged, nor is any weight to be attached to the probable defence of the accused.
7. In the case of "State of Bihar Vs. Ramesh Singh", AIR 1977 SC 2018, Hon'ble Supreme Court observed as under :
"It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 5 of 14 under S. 227 or S.228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
XXXXX Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But 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 then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.
XXXXX If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."
8. In "Union of India Vs. Prafulla Kumar Samal", 1979 Crl. L.J.154, Hon'ble Supreme Court made the following observations regarding the test to be applied at the stage of consideration of the case for charge :
"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. 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 CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 6 of 14 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. In exercising his jurisdiction under Section 227 the Judge which under the present Code is 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."
9. Similar observations were made in State of M.P Vs. S. B.Johari 2000 Crl. L. J. 944 (SC) in the following words :
"The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial."
10. In the case of "P. Vijayan Vs. State of Kerala," 2010 Crl. L. J. 1427, while observing that the criminal court is not a mere CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 7 of 14 post office to frame the charge at the behest of the prosecution, Hon'ble Supreme Court has observed that the court is required to exercise judicial mind to the facts of the case in order to determine whether a case for trial has been made out or not. In this context, the following observations indicate the manner of assessment :
"In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of S. 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its field the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
11. Ld. Counsel for the revisionist relied upon (1) Dipakbhai Dineshbhai Shah Vs State of Gujrat 2016 SCC OnLine 6368; (2) Banu Ramchandra Borgaonkar Vs State of Maharashtra 2015 SCC OnLine Bom 6380; (3) Vikram Sinha Vs State of Jharkhand 2013 SCC OnLine Jhar 766; (4) Kaini Rajan Vs State of Kerala (2013) 9 Supreme Court Cases 113; (5) CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 8 of 14 Suresh Sakharam Nangare Vs State of Maharashtra (2012) 9 Supreme Court Cases 249; (6) Virendra Singh Vs State of Madhya Pradesh (2010) 8 Supreme Court Cases 407; (7) Nemai Chattoraj Vs Queen Empress MANU/WB/0083/1900; (8) Emperor Vs Nanhua Dhimar & Others 140 The Indian Law Reporters (Vol. LIII) Allahabad Series; (9) Madan Lal Vs Dr. Jaswant Batra 1994 (28) DRJ; (10) Thakorlal D. Vadgama Vs The State of Gujarat (1973) 2 Supreme Court Cases 413; (11) Vikas Kumar Vs State 2016 SCC OnLine Del 3012; (12) Deep Chand @ Dipu Vs State 1999 (51) DRJ; (13) Vinod S. Panicker Vs Sub Inspector of Police & Another 2012 SCC OnLine Ker 31774; (14) Ahammed Kutty Hotel Vs Sub Inspector of Police 2014 SCC OnLine Ker 27464; (15) P. Ahammed Koya Vs Sub Inspector 2015 SCC OnLine Ker 21927; (16) Ayoob Vs State of Kerala 2015 SCC OnLine Ker 21929; (17) Faisal Vs State of Kerala 2015 SCC OnLine Ker 30926; (18) Anuroop Vs State of Kerala 2014 SCC OnLine Ker 21711 and (19) Mathai Vs Sub CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 9 of 14 Inspector of Police 2014 SCC OnLine Ker 15068.
12. Ld. Counsel for the revisionist argued that neither the revisionist had taken nor enticed the minor girl nor had took her out of the keeping of lawful guardian of such minor nor compelled her to labour against her will; so prayed for setting aside of the impugned order and the discharge of the revisionist.
13. In the case of Nemai Chattoraj (Supra) it had been held by Calcutta High Court that the offence of kidnapping a person from lawful guardianship is completed when such person is actually taken from or out of the keeping of lawful guardianship and it is not an offence continuing so long as the person kidnapped is kept out of such guardianship.
14. The minor prosecutrix of age 15 years in her statement to the Ld. Magistrate given under section 164 Cr.P.C. on 10.07.2012 had interalia stated that despite having done a lot of labour, she was not satisfied with her result of class 10th and so was frightened to go CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 10 of 14 back home and instead on 25.05.2012 in order to go to the home of her maternal aunt went to Uttam Nagar by bus but was not knowing way to reach there and while roaming reached in market, sat outside clinic of Doctor. Also is narrated by prosecutrix in the said statement that after sometime an old lady of age about 60 years came out from said clinic and talked with her. The prosecutrix told all facts and then the old lady asked her not to fear, not to go to her home and she will send her to such place where nobody will scold her and where she will get to study as well as will get money. For 4 5 days, the prosecutrix remained with old lady coaccused doctor V. Mehta after which said lady Doctor (coaccused) sent the prosecutrix to revisionist lady for doing work at a flat at Lajwanti Apartment where she was told to do the household work and that she will get Rs.4,000/ per month. As per the version of prosecutrix in the statement, at the place of revisionist she worked for 2022 days then the revisionist sent her to parental home of revisionist at Najafgarh, where she worked for 10 days and on one day on finding opportunity, she went to her home without telling anyone. CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 11 of 14
15. The trial court had framed charge for the offence punishable under section 363/374 IPC against (1) V. Mehta, the stated old lady Doctor and (2) the revisionist.
16. In the gamut of allegations, there is no whisper of revisionist having enticed or taken away the minor prosecutrix out of keeping of her lawful guardian. Instead the allegations are levelled against the old lady Doctor V. Mehta (coaccused) by the prosecutrix that from outside her clinic she had taken the minor prosecutrix to her home where minor prosecutrix was kept for 45 days. It is also the fact of the matter, that from the allegations, it is nowhere borne out that when from outside the clinic of the lady Doctor V Mehta (coaccused) when the prosecutrix was moved to the home of co accused V Mehta, then the revisionist accused shared any common intention for taking minor prosecutrix out of keeping of her lawful guardianship.
17. Facts remains that the allegations borne out of the record from amongst the statement under section 164 Cr.P.C. of the CNR No. DLSW010009522017 Madhuri Bandoni Vs State Page 12 of 14 prosecutrix, the minor prosecutrix was kept for 2022 days at her home by the revisionist for the house hold chores and later for about 10 days the minor prosecutrix was allegedly sent by revisionist to her parental home to do the work there. The prosecutrix had been allegedly induced by coaccused lady V. Mehta on the pretext that she will not be scolded but instead she will be provided with facility of study besides which she will get money; yet neither at the place of revisionist nor at the parental home of revisionist any facility of study was there for the minor prosecutrix but in fact simply minor prosecutrix was allegedly enticed afore elicited and instead made to work for house hold chores at the home of revisionist and her parental home from where she could only escape after finding opportunity. Accordingly, there exists a prima facie case against the revisionist lady for allegedly wrongfully concealing/keeping in confinement the minor prosecutrix for the offence punishable under section 368 IPC read with section 363 IPC. Charge needs to be framed accordingly by the concerned Magisterial Court Trial against the revisionist.
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18. No charge is made out against the revisionist for offence under section 374 IPC for unlawfully compelling minor prosecutrix to do compulsory labour.
19. Revisionist/accused is directed to appear before the Magisterial Trial Court on 06.08.2018.
20. Trial court record alongwith copy of this judgment be sent back to concerned Magisterial Trial Court for necessary compliance and framing of amended charge against the revisionist accordingly.
21. File of revision petition be consigned to record room. Digitally signed by GURVINDER
GURVINDER PAL SINGH
PAL SINGH Date: 2018.07.30
14:24:11 +0530
Announced in the open court (GURVINDER PAL SINGH)
th
on date 30 July, 2018 ASJ05/SW/DWARKA COURTS,
NEW DELHI (pb)
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