Delhi District Court
Cr No. 159/13. Naresh Kumar vs . State & Another. on 27 March, 2014
CR No. 159/13. Naresh Kumar Vs. State & Another.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Criminal Revision No. 159/2013.
Naresh Kumar,
S/o Sh. Suresh Singh Sirohi,
R/o RZC73, Sri Chand Park,
Matiyala Extension,
Uttam Nagar, New Delhi59. ... Revisionist.
Vs.
1. State of GNCTD,
Through SHO PS Bindapur.
2. Kavita Devi Yadav,
W/o Sh. Hari Lal Yadav,
R/o RZB90, Matiyala Extension,
Uttam Nagar, New Delhi59. ... Respondents.
Date of Institution. : 24.8.2013. Arguments Advanced On. : 22.3.2014. Date of Order. : 27.3.2014. 27.3.2014. Present: Revisionist (one of the accused against whom charge
for the offence u/s 354/354A r/w/s 34 IPC was Page No. 1. Contd... ... ...
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framed by the ld. Trial Court vide impugned order) in person.
Sh. Pramod Kumar, ld. Addl. PP for State/respondent no. 1.
Respondent no. 2complainant in person. The present criminal revision petition is fixed for order for today.
Arguments on the present criminal revision petition were addressed by Sh. Aditya Singh, ld. counsel for revisionist, Sh. Aditya Kumar, substitute ld. Addl. PP for Staterespondent no. 1 and Sh. A.K. Johri, ld. counsel for respondent no. 2, on 22.3.2014.
I have perused the entire record including TCR carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 r/w/s 399 CrPC filed by the revisionist is to the impugned order dated 8.8.2013 of Ms. Tyagita Singh, ld. MM, Dwarka Courts, Delhi, in case titled as "State Vs. Rajender Singh & Others", FIR No. 166/13, u/s 354A/34 IPC of PS Bindapur, whereby the ld. Trial Court has framed the charge for the offences u/s 354/354A r/w/s 34 IPC against all the accused persons including this Page No. 2. Contd... ... ...
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revisionist.
2. The background admitted facts revealed from the record as well as from the arguments of ld. counsels for parties are that in January 2010, the revisionist had filed an application for eviction of tenant (respondent no. 2 herein) u/s 14 (1) (e) r/w/s 25B of the Delhi Rent Control Act, 1958, before the ld. Rent Controller, which was allowed vide order dated 8.3.2010. Aggrieved from the said judgment, the respondent no. 2 filed a Civil Misc. Main bearing CM (M) No. 1567 of 2010 before the Hon'ble Delhi High Court and when on 8.12.2010, the aforesaid CM (M) came for hearing before Hon'ble Delhi High Court, the respondent no. 2 chose not to press the said petition and sought sometime for vacating the tenanted premises and therefore on the submissions made by the ld. counsel for respondent no. 2, limited notices to that extent, were issued to opposite parties. Meanwhile, the revisionist had already filed an execution petition before the ld. Rent Controller, but due to the limited notices issued by Hon'ble Delhi High Court vide order dated 8.12.2010, the proceedings before the ld. Execution Court came to a standstill. Thereafter, the revisionist moved an early Page No. 3. Contd... ... ...
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hearing application before Hon'ble Delhi High Court, upon which Hon'ble Delhi High Court vide order dated 10.2.2011, clarified that there is no stay of the trial Court proceedings. Thereafter, on 25.3.2011, respondent no. 2 in the execution proceedings gave an undertaking that she would vacate the premises by 25.4.2011. In the meanwhile, the respondent no. 2 taking a complete somersault from her undertaking given before the ld. Execution Court, filed applications bearing CM No. 7908 of 2011 and CM No. 7909 of 2011 before the Hon'ble Delhi High Court for setting aside the order dated 8.3.2010 passed by the ld. Rent Controller in the eviction proceedings and also seeking stay of judgment dated 8.3.2010. When the said applications came up for hearing before Hon'ble Delhi High Court on 25.4.2011, the Hon'ble Court dismissed the same vide order dated 25.4.2011 with costs of Rs. 15,000/. Thereafter, the respondent no. 2 assailing the said order dated 25.4.2011 of Hon'ble Delhi High Court, filed a SLP (C) No. 18738 of 2011 before Hon'ble Supreme Court, which was dismissed vide order dated 14.7.2011. Thereafter, on 29.7.2011, the ld. Execution Court issued warrants of possession in favour of the revisionist alongwith police protection, which Page No. 4. Contd... ... ...
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were executed and possession of the property in question was handed over to the revisionist on 3.8.2011. Thus with police aid, revisionist came in legal and physical possession of the property in question. When on 22.8.2011 at about 4.45 pm, the revisionist visited the property in question, he found that the lock on the main door of the property was broken and when he went inside the property, he found that the respondent no. 2 with her family had illegally entered into the property. Thereafter, the revisionist called the PCR by making a call at phone no. 100 and a case FIR No. 218/11, u/s 380/448/452/34 IPC of PS Bindapur was registered against the respondent no. 2 and when the police came to arrest the respondent no. 2, she poured kerosene oil on herself to evade arrest and to maintain pressure on the police by threatening to burn herself. Thereafter, the respondent no. 2 filed an anticipatory bail application before the ld. Sessions Court, Dwarka Courts, Delhi, which was rejected and after that, she filed an anticipatory bail application before Hon'ble Delhi High Court, which was also rejected vide detailed order dated 1.3.2012 and thereafter, the respondent no. 2 was taken into custody by the local police, but was released on bail. Meanwhile, even after execution of Page No. 5. Contd... ... ...
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eviction orders against the respondent no. 2, the respondent no. 2 was maintaining the possession of the property in question. Therefore, the revisionist was constrained to file a suit for possession against the respondent no. 2, which was decreed in favour of the revisionist, vide order dated 14.2.2013 passed by Sh. Navin Arora, ld. SCJ/RC, Dwarka Courts, Delhi, and possession after execution of the decree of possession was handed over to the revisionist on 30.3.2013. Thereafter, on the complaint of the revisionist to the SHO concerned, the present case FIR No. 166/13, u/s 354/354A/34 IPC of PS Bindapur against all the accused persons including this revisionist.
3. The brief facts of the case of the prosecution are that the respondent no. 2 gave a handwritten complaint to the SHO of PS Bindapur on 13.4.2013, wherein it was mentioned by the respondent no. 2 Kavita Devi Yadav W/o Hari Lal Yadav R/o RZB90, Matiala Extension, Uttam Nagar, New Delhi, that on 12.4.2013 at about 6.30 pm, she was bringing milk from Mother Dairy and was on the way to her home. When she reached in front of office of Rajender, Rajender, Kamal, Ishwar and Naresh were Page No. 6. Contd... ... ...
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sitting in the office of Rajender and drinking tea. Rajender saw and called her inside the office of Rajender and Rajender, Kamal and Ishware told her that Naresh (revisionist herein) is also sitting there and they told her that since her dispute of home is continuing, they would get the same settled, but put a condition that the respondent no. 2 would have to do sex with all of them. They further told to the respondent no. 2 that the papers of the disputed property would also be done in her (respondent no. 2) name. On hearing this, the respondent no. 2 stated that her case with regard to the home is going on in Hon'ble Delhi High Court. Saying this, she tried to leave. However, Naresh, Rajender, Kamal and Ishwar put their hands on the breast of respondent no. 2 and attempted to rape her, but the respondent no. 2 ran away.
4. On the basis of the said complaint a case u/s 354A/34 IPC was registered and after completion of investigation, charge sheet u/s 354A/34 IPC was filed and, accordingly, ld. Trial Court has framed the charge u/s 354/354A r/w/s 34 IPC against all the accused persons including this revisionist.
Page No. 7. Contd... ... ...
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5. The relevant portion of impugned order of the ld. Trial Court is reproduced below: "... ... ... Perusal of original complaint of complainant dated 13.4.2013 reveal that complainant has levelled specific allegations of outraging the modesty and proposal to have sex with her, against all accused persons. Hence, offence u/s 354 and 354A r/w 34 IPC is made out against all accused persons.
Hence, charge u/s 354/354A/34 IPC framed against all accused to which they pleaded not guilty and claimed trial. ... ... ..."
6. Ld. counsel for revisionist has submitted that in view of the background of civil litigation between the parties relating to tenancy lost by the respondent no. 2 upto Hon'ble Supreme Court and in view of the categorical statements u/s 161 CrPC of six other proposed independent prosecution witnesses annexed with the charge sheet, it is clear that no such incident as alleged by the respondent no. 2 had taken place and that the respondent no. 2 had leveled false and baseless allegations to settle the score with the revisionist for getting the tenanted premised evicted. He has further submitted that the said six proposed witnesses are prosecution's own witnesses and that the allegations of Page No. 8. Contd... ... ...
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the respondent no. 2 cannot be considered in isolation of said statements. He has further submitted that even the investigating agency had mentioned in the charge sheet that sufficient evidence for arresting the accused persons including this revisionist were not found. He has further submitted that since no other proposed material to substantiate the allegations of the respondent no. 2 have been brought on record, therefore, the revisionist is entitled for discharge. He has also submitted that the impugned order suffers from illegality and impropriety, in view of the aforesaid reasons and may, accordingly, be set aside.
7. Per contra, ld. counsel for respondent no. 2 has stated that a separate revision petition has been filed by the respondent no. 2 for addition of Sections 376 (2) (g) r/w/s 511 IPC against all the 4 accused persons including this revisionist and that from the allegations of the respondent no. 2 clearly offences u/s 376 (D) r/w/s 511 IPC against all the 4 accused persons, including this revisionist, are made out. He has further submitted that at the stage of charge, the Court is not supposed to meticulously examine the material and to conduct a roving inquiry and Page No. 9. Contd... ... ...
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the allegations of the respondent no. 2 have to be taken on face value. He has lastly prayed that the present revision petition may accordingly be dismissed.
8. No doubt the respondent no. 2 has made allegations for the offences u/s 354/354A/34 IPC against all the accused persons including this revisionist. There is also no doubt to the proposition that at the stage of charge, the meticulous examination of the material produced by the prosecution is not permitted and no roving inquiry can be conducted.
9. However it was held in case titled as "Surajmal Barithia Vs. State of West Bengal", 11 (2003) DMC 546 (Cal) (DB), that vague allegations are not acceptable. Further, Hon'ble Delhi High Court in case titled as "Smt. Neera Singh Vs. State (Govt. Of NCT of Delhi) & Others", Criminal MC No. 7262/2006, held that "vague allegations as made in the complaint by the petitioner against every member of the family of husband, cannot be accepted by any Court at their face value and the allegations have to be scrutinized carefully by the Court before framing of charge". Further, in case titled as Page No. 10. Contd... ... ...
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"Pepsi Food Ltd. & Another Vs. Special Judicial Magistrate & Others", AIR 1998 SC 128, it was held that summoning an accused in a criminal case is serious matter and criminal law cannot be set into motion as matter of course.
10. Further, the Hon'ble Supreme Court in case titled as "Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra", 2008 (2) RCR (Criminal) 896, in para nos. 14 and 15, has held as under: "14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
Page No. 11. Contd... ... ...
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15. It is trite that the words "not sufficient ground for proceeding against the accused"
appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See : State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 and Prafulla Kumar Samal (supra)]."
11. Also, the Hon'ble Delhi High Court in case titled as "Neeraj Gupta & Others Vs. CBI", 2007 (3) RCR Criminal 872, in para no. 11, has held as under: Page No. 12. Contd... ... ...
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"11. The task of the court, at the charge framing stage is to assess the overall weight of the evidence presented before it and reasonably infer whether grave suspicion exists that the accused, prima facie committed the offence alleged. The exercise of sifting the evidence involves, to a certain extent, value determination about the tentative worth of such evidence. Yet this exercise cannot be confused to a standard discharged at the time of trial i.e. proof beyond reasonable doubts. The court has to make a reasonable assessment; if upon application of such a bench mark, no prima facie case is made out, accused would be entitled to be discharged. It is also settled law that if two views are possible, the one favouring the accused is to be preferred."
12. Further, as per Section 239 CrPC, a Magistrate is supposed to consider the police report and the documents sent with it u/s 173 CrPC and to make such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, he shall discharge the accused.
13. Thus, the six separate statements of the proposed six Page No. 13. Contd... ... ...
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prosecution witnesses u/s 161 CrPC given to the police, were also required to be considered by the ld. Trial Court while passing the order on the point of charge. Further considering the either background of tenancy related litigation between the parties and the fact that there was no other circumstantial material against the revisionist, the ld. Trial Court ought to have been cautious and should have carefully considered the entire material.
14. Out of six proposed prosecution public witnesses, Sh.
Balram Singh S/o Radha Kishan R/o RZ73A, Shri Chand Park, Matiala, is an independent and neighbouring natural witness and has stated in his statement u/s 161 CrPC that on 12.4.2013 from 5.00 pm to 8.00 pm, Kavita Devi (respondent no. 2) remained sitting in the gali outside the House No. RZC736, near the house of Rajender (one of accused) and kept on abusing the plumber and during this time, Naresh Kumar (revisionist) was present in his house. The second proposed prosecution witness Arboon Khatoon W/o M.D. Alam R/o G66, JJ Colony, Sector 3, Dwarka, New Delhi, has stated in her statement u/s 161 CrPC that on 12.4.2013 from 3.00 pm till night, she was sitting in the gali and that Page No. 14. Contd... ... ...
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neither any lady had come nor any quarrel took place in the office of Rajender. The next proposed prosecution witness Shiv Kumar Solanki S/o Uma Shankar Solanki R/o E51, PhaseII, Papankalan, Dwarka, in his statement u/s 161 CrPC has stated that from 12.4.2013, he worked as plumber from 9.00 am to 8.00 pm, in the house of Naresh Kumar (revisionist) and on that day, a lady named Kavita (respondent no. 2) quarreled with him and kept sitting in the gali and Naresh Kumar remained in his house. The other proposed prosecution witness Dhir Singh S/o Ganga Singh R/o Village Hakpur, Post Bejui, Thana Beturk, District Muradabad, UP, in his statement u/s 161 CrPC has stated that on 12.4.2013, he was working as painter from 8.00 am to 8.00 pm, in the house of Naresh Kumar (revisionist) and during this time, Naresh Kumar remained in his house. The next proposed prosecution witness B. Kanjana W/o B. Bhumiyai R/o G46, Papankalan, Behind NSIT, Sector 3, Dwarka, New Delhi, in her statement u/s 161 CrPC has stated that she is running an NGO in the office of Rajender and she remained in the said office on 12.4.2013 from 9.00 am to 8.00 pm and no incident of eve teasing with any lady took place at about 6.00 pm. The next proposed prosecution Page No. 15. Contd... ... ...
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witness Barua Ram S/o Atula Ram R/o F40, PhaseII, Sector 3, JJ Colony, Dwarka, New Delhi, in his statement u/s 161 CrPC has stated that on 12.4.2013 from 3.00 pm to 8.00 pm, he kept sitting in the office of Rajender and no lady came to the office of Rajender and neither any teasing of any lady or quarrel with her, took place.
15. Thus, out of the six proposed prosecution witnesses as per the case of the prosecution itself, four were neighbouring witnesses who were naturally present near the place of alleged incident and have stated that no such incident as alleged by the respondent no. 2 had taken place. Thus, the said six proposed prosecution witnesses have given their statements totally contradictory to that of the respondent no. 2 and have denied that any such incident as alleged by her, had taken place. The said six statements are part of the case of the prosecution and should have been considered by the ld. Trial Court before framing of charge. The ld. Trial Court should not have considered the statement of the respondent no. 2 in isolation, which is not supported with any other material and rather is contradicted by the aforesaid six proposed prosecution witnesses.
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16. Ld. counsel for respondent no. 2 during the course of arguments had argued that since the revisionist is working in Delhi Police as a Head Constable, therefor, he had influenced the investigation and the statements of the said six proposed prosecution witnesses, were falsely obtained. However during the course of arguments he had admitted that no such complaint to any senior police officer or even to the ld. Trial Court, was ever made regarding the fact that the investigation was not done properly and fairly by the investigating officer. Once the said six statements of proposed prosecution witnesses are part of the case of the prosecution, therefore, the same have to be considered at the stage of charge, as it is a State case and not a complaint case and the offences in question are offences against the State. It is interesting to note that the State has not challenged the impugned order in any separate revision petition for addition of the charge for the offence u/s 376 (D) r/w/s 511 IPC against all the accused persons including this revisionist, whereas respondent no.2 has filed a separate revision petition to the said effect, which is also fixed for order for today. Page No. 17. Contd... ... ...
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17. It is no rule of law that allegation of a complainant have to be taken on face value blindly even if it is not supported by any other material and even if totally contradicted by statements of large number of independent and natural proposed prosecution witnesses present near the spot.
18. Considering the totality of the facts and circumstances, background litigation between the parties and the statements u/s 161 CrPC of the aforesaid six proposed prosecution witnesses, it cannot be said that strong suspicion existed against the revisionist for framing of charge u/s 354/354A/34 IPC. The charge can be framed only if strong suspicion exists against an accused. It is not that on every slightest suspicion, a charge has to be framed.
19. In the case of "Union of India Vs. Prafulla Kumar Samal & Another", (1979) 3 SCC 4, it was held that mere suspicion is not sufficient to hold that there is sufficient ground to proceed against the accused.
20. Further, as cited above, if two views are possible, one favouring the accused has to be taken at the stage of Page No. 18. Contd... ... ...
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charge. Thus, I am of the considered opinion that no strong suspicion existed against the revisionist that he had committed the aforesaid offences and the order of the ld. Trial Court for framing of charge qua him was not correct. Accordingly, revision petition is allowed. Resultantly, the impugned order regarding framing of charge u/s.354/354A r/w/s 34 IPC against the revisionistaccused Naresh Kumar, is set aside. He stands discharged. His personal bond and surety bond cancelled and his surety is discharged.
21. A copy of this order alongwith TCR be sent to the ld. Trial Court, for information and further proceedings as per law for 9.4.2013 for 2.00 pm.
22. Respondent no. 2complainant is directed to appear before the ld. Trial Court on the given date and time.
23. Revision petition file be consigned to record room. Announced in the open Court on 27.3.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 19. Contd... ... ...