Ravi vs State Of N.C.T Of Delhi on 12 May, 2022

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Delhi High Court - Orders

Ravi vs State Of N.C.T Of Delhi on 12 May, 2022

1. This petition is filed against an impugned order dated 03.07.2021 passed by the learned ASJ (West), Tis Hazari Court, Delhi in Session's Case No.482/2020 dismissing an application under Section 91 Cr.P.C. filed by the petitioner.

2. The petitioner moved an application under Section 91 Cr.P.C. to bring on record the contents of the CDs which were placed on record by the learned counsel for the accused in a sealed cover. It was submitted those videos may be seen by the Court so that he can make submissions.

3. The brief facts of the case are a complaint was made by the prosecutrix alleging inter alia she was raped by the accused on the false pretext of marriage and the accused has made certain videos of the act and has been threatening to make the view viral thus establishing physical relations with her 4-5 times against her wishes and on the pretext of marriage.

Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54

4. It is argued by learned counsel for the petitioner such video and CD/DVDs are placed before the Court and the victim is also not denying its authenticity and hence be taken on record and the state be directed to investigate on the same. The application under Section 91 Cr.P.C. was filed when the matter was listed for framing of charge.

5. The learned trial court on the basis of State of Orissa V. Debendra Nath Padhi AIR 2005 SC 359, had dismissed the said application holding the entitlement of accused to seek an order under Section 91 Cr.P.C. would ordinarily not come till the stage of evidence.

6. The learned trial court in its impugned order held Section 91 Cr.P.C. cannot be invoked by the accused at the stage of framing of charge and even though the victim has not denied the video but that would only strengthen her case to an effect she alleges the accused had made videos of the act and was threatening her. Admittedly the source of video has not been disclosed, particularly, the mobile phone of the accused was seized and was sent for analysis and the FSL report is negative as nothing could be found there. The impugned order notes the accused had probably saved the videos somewhere else and did not cooperate with the Investigating Officer during investigation and further the Court went on to say the argument the expression in the video suggest the victim was a consenting party is liable to be rejected as it is the case of the prosecution that consent of the victim was obtained on the basis of false pretext of marriage, which was patently false since the accused was a married man at such time, hence his application was rejected.

7. The learned counsel for the accused had placed reliance upon Rukmini Narvekar Vs. Vijaya Satardekar and Ors. AIR 2009 SC 1013 wherein the Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54 Supreme Court held as under :

17. We have carefully perused the decision of this Court in the State of Orissa v. Debendra Nath Padhi (supra).

Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.PC and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lai's case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision in State of Orissa v. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr.Rajbir Sinhh Dalal v. Chaudhari Devi Lai University, Sirsa And Anr. MANU/SC/7924/2008 :(2008)9SCC284. As observed by this Court Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid s formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.

18. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54 whole prosecution version, is totally absurd, preposterous or concocted.

8. Further reference was made to Nitya Dharmananda @ K.Lenin & Anr. Vs. Sri Gopal Sheelum Reddy also known as Nithya Bhaktananda and Anr. Criminal Appeal No.2114/2017 arising out of Special Leave Petition Crl.No.8279/2016 passed by the Supreme Court on 07.12.2017 wherein it observed as follows :

5. Learned counsel for the defence, on the other hand, submitted that if the investigator is not fair and the material of sterling quality, though seized during investigation and available with him, is deliberately left out from the chargesheet, there is no bar for the court to summon the said material.

6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the. chargesheet, has crucial bearing on the issue of framing of charge.

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9. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

9. Thus, it is argued the accused be allowed to handover the videos/CDs etc. to the Investigating Officer so that those may be investigated.

10. Heard.

Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54

11. Nitya Dharmananda @ K.Lenin (supra) is not applicable in the present matter since in the said case the evidence which was sought under Section 91 Cr.P.C. was already lying with the Investigating Officer who had collected it but deliberately left it out from the chargesheet, hence it was held there is no bar for the Court to summon the said material. However, the facts of the present case are slightly different. Here the FIR was lodged on 21.10.2020; the petitioner was arrested on 21.10.2020 and the chargesheet was filed on 03.12.2020.

12. Admittedly, during the investigation of the case, the accused did not handover these CDs/videos etc. to the Investigating Officer and rather had handed over his own mobile phone by deleting all the stuff, per CFSL report. It was only on 11.08.2021 his father filed a complaint to police disclosing about such CDs etc. being made available to him much after the filing of the chargesheet by the friend of accused. The argument is not convincing. It rather appears the accused was having these videos, CDs etc. right from the beginning and though he did not produce it before the Investigating Officer during investigation but after filing of chargesheet, probably, under some legal advice, his father filed an application to take such CDs on record, firstly before police and then before Court.

13. Admittedly, the accused has also moved an application with the learned MM under Section 173(8) Cr.P.C. for further investigation qua these CDs and such application is still pending.

14. Thus considering these facts, it is not a case where one can say the impugned order is incorrect on facts. It is also equally true the law as it stand today, does not bar the Court to look into the material produced by the defence at the time of charge in rare cases wherein he shall have to Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54 convincingly demonstrate the prosecution case is absurd, thus, the petition is disposed of with a direction to the learned trial court that while hearing arguments on charge it may also examine if the material which the petitioner intends to produce is of a rare quality which would make the prosecution case absurd per Rukmini Narvekar (supra) and while looking so shall not be influenced by its observations made in order dated 03.07.2021.

15. In view of above, the petition stands disposed of. Pending application also stands disposed of.

YOGESH KHANNA, J.

MAY 12, 2022 VLD Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:18.05.2022 11:54

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Delhi High Court - Orders