Delhi District Court
Arvind Gupta vs State on 1 December, 2015
IN THE COURT OF Dr. T.R. NAVAL, DISTRICT & SESSIONS JUDGE, SHAHDARA, KARKARDOOMA COURTS, DELHI C.R. No. 59/15 Unique Identification No. 02402C0232682015 Arvind Gupta ....Revisionist vs. State, GNCT of Delhi & Ors. .....Respondent
Date of Institution : 08.07.2015
Date of Argument : 01.12.2015
Date of Order : 01.12.2015
Order
This order will dispose off a revision u/s 397/399 of Code of Criminal Procedure, herein after referred to as "the Code" against order dated 29.04.2015 passed by Ms. Ritu Singh, Ld. MM, Mahila Court (1), Shahdara, Delhi in case FIR No.207/13 PS Jagatpuri.
2. I have heard arguments of Ld. Addl. PP for State and Ld. Counsel for respondent and perused the trial court record.
3. On perusal of trial court record, I find that Ld. MM discharged the accused person for the offence punishable u/s 354/354B by observing as under :
"According to Section 354 IPC intention to outrage the modesty of the complainant/victim is an essential ingredient to constitute offence U/s 354 IPC. However, from the facts and circumstances of the case, as detailed in the FIR, it appears that the clothes of CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 1/7 mother of complainant were torn during course of scuffle and prima facie it appear that the accused did not have pre-requisite intention to outrage the modesty of Smt. * * */victim.
Section 354 B IPC, which came into force w.e.f. 03.02.2013 required that criminal force or assault takes place against woman with intention of disrobing or compelling the victim to be naked. However, from facts of this case, it is unlikely that accused had intention of disrobing Smt. * * */victim, as her clothes were torn in course of scuffle of complainant with accused. Accordingly, essential ingredients of Section 354 B IPC is not satisfied in this case.
Accordingly, this court is of the opinion that no case is made out against the accused persons U/s 354 IPC."
4. Having aggrieved of that order of discharge, complainant preferred the present revision.
5. The impugned order has been assailed on the grounds, inter alia, that impugned order has been passed in hurried manner without application of mind; it is passed on conjunctures and surmises; it is clear that intention of the respondent was to insult and disrobe her in the presence of their associates; she was disrobed and her modesty was outraged; Ld. MM did not consider the statement of victim u/s 164 of the Code which clearly attract the provisions of Section 354 and 354 B IPC; tearing of the clothes of the victim clearly shows the intention of the respondents/accused persons to outrage her modesty; the torn clothes i.e. kurta and salwar have been seized by the IO. It has been prayed that impugned order may be set aside and appropriate directions may be issued for framing of charge against the accused/respondent nos. 2 to 4.
CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 2/75. On the other hand, it has been argued by ld. Counsel for the accused persons/respondents that order of ld. MM is legal and justified. There was no intention of the respondents to outrage the modesty of the victim or to disrobe her which is essential ingredient of section 354/354B IPC. Therefore, order of Ld. MM is beyond any illegality or impropriety or mistake or incorrectness. He prayed for dismissal of the revision.
7. It would be appropriate to reproduce the provisions of section 354 and 354 B which runs as under :
"354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.] 354B. Assault or use of criminal force to woman with intent to disrobe e. - Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which sahll not be less than three years but which may extend to seven years, and shall also be liable to fine."
(Emphasis supplied)
8. It would also be appropriate to reproduce principles of law laid down in case reported as Union of India v. Prafulla Kumar, AIR 1979 SC 366 (1) the Apex Court observed that :
CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 3/7"10. Thus, on a consideration of authorities mentioned above, the following principles emerge:
(1) 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 whether or not a prima facie case against the accused has been made;
(2) 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 proceedings with the trial.
(3) The test to determine a prima facie case wold 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 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. Thus, the court at the time of framing of charge as provided under Section 227 of the Criminal Procedure Code, herein after referred as the Code, has to see the material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Code. Absence of ground for proceeding against the accused means absence of a prima CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 4/7 facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage 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. Thus, it is crystal clear that the at the time of forming an opinion on the point of charge, the Court has to form a prima facie opinion of the matter. No meticulous assessment of evidence is permissible at that juncture.
10. On considering the rival contentions of Ld. Addl. PP for State and Ld. Counsel for the respondents/accused, I come to the conclusion that there is sufficient material on record for framing of charge against all the respondents/accused persons for the offence punishable u/s 3543/354B/34 IPC. The reasons which support my decision are firstly that as per provisions of Section 354 and 354 B not only intention of the accused is to be seen but also it is to be considered whether act of the accused was likely to outrage the modesty of the victim. Although in the present case none of the witnesses clearly stated that there was intention of the accused persons to outrage the modesty of the victim yet especially when any woman is subjected to such a nature of force in which the clothes of the woman are torn leads to the presumption that act of the accused CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 5/7 persons/respondents was likely to outrage the modesty of the victim.
11. Secondly, as per principles of law laid down in Prafulla Kumar (supra) and in various other cases, charge is to be framed on the basis of prima facie material. It is not to be seen at this stage whether the case would result in acquittal or conviction. The principles of law laid down in case Prafulla Kumar (supra) also guided me to hold that there was sufficient material on record to frame charges against all the accused/respondents for the abovementioned offences.
12. Thirdly, the victim in her statement recorded u/s 164 of the Code clearly stated that accused persons/respondents torn her clothes. The complainant mentioned in his report that clothes of the victim were torn during the scuffle. Whether there was intention of the accused to outrage the modesty or they conducted themselves while scuffling with the victim, in such a way which may outrage her modesty can only be decided after considering the evidence which the parties may adduce during the trial for that framing of charge is necessary.
13. Lastly, the fact of contradictions in the contents of the complaint and statement of victim recorded u/s 164 of the Code is required to be seen during the trial. At the stage of charge, the accused are not entitled to get benefit of all these contradictions.
CR No. 59/15 Arvind Gupta vs. State 01.12.2015 Page 6/714. Consequent upon the above reasons and discussion, it is held that impugned order is not beyond any illegality, impropriety, incorrectness or mistake. Therefore, impugned order is set aside. Revision is allowed.
15. Case is remanded back to Ms. Ritu Singh, Ld.MM, Mahila Court (1)/successor court, Shahdara, KKD Courts, Delhi with a direction to frame charge against the accused persons not only for the offences u/s 323/451/506/34 IPC but also u/s 354/354B IPC.
16. Parties are directed to appear before said court on 15.12.2015 for further orders.
TCR be returned with copy of this order.
Revision file be consigned to Record Room.
Announced in open court (Dr. T.R. Naval)
on 1st December, 2015 District & Sessions Judge
Shahdara, KKD Courts, Delhi.
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