Delhi District Court
Sonia Jain vs . State & Ors. on 28 January, 2019
Sonia Jain Vs. State & ors.
CR No: 587/2017
&
State Vs. Vipin Kumar & Anr.
CR No: 57/2018
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I DWARKA COURTS: NEW DELHI.
CR No: 587/17
Ms. Sonia Jain
D/o Sh. S.K. Jain
R/o T-121, Second Floor, Shukar Bazar,
Uttam Nagar, New Delhi-59. ................ Revisionist
Versus
1. State (Govt. of NCT of Delhi)
2. Sh. Vipin Kumar
S/o Sh. Amar nath
R/o C-34, Street No. 14,
Madhu Vihar, New Delhi-59.
3. Sh. Arvind Kumar
S/o Sh. Baij Nath Kanojia
R/o T-123, II Floor, Shukar Bazar,
Uttam Nagar, New Delhi-59.
.............Respondents
&
CR No: 57/2018
State ( Govt of NCT of Delhi)
Through Public Prosecutor, Delhi
............ Revisionist
Versus
CR No:587/2017
& CR No. 57/2018 Page 1 of 28 D.O.J.28.01.2019
Sonia Jain Vs. State & ors.
CR No: 587/2017
&
State Vs. Vipin Kumar & Anr.
CR No: 57/2018
1. Vipin Kumar
S/o Amarnath
R/o H. No. C/34, Gali No. 14,
Madhu Vihar, Uttam nagar,
New Delhil.
2. Arvind Kumar
S/o Baij Nath Kanojia
R/o T-123, IInd Floor, Sukra Bazar
Uttam Nagar, New Delhi.
........Respondents
CR No. 587/2017
&
57/2018
Date of Institution 23.12.2017 &
03.02.2018
Police Station Bindapur
Reserved for orders on 19.01.2019
Judgment announced on 28.01.2019
JUDGMENT
1. These revision petitions under Section 397 Cr.P.C. are directed against the impugned order dated 01.12.2017 passed by Ld. MM-03/South West/Dwarka Courts, Delhi whereby Ld. MM has been pleased to discharge the accused persons i.e. accused Vipin Kumar CR No:587/2017 & CR No. 57/2018 Page 2 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
CR No: 587/2017 & State Vs. Vipin Kumar & Anr.
CR No: 57/2018 and accused Arvind Kumar (respondents herein).
2. Both these revision petitions are being taken up together as they arise out of the same order and involve common discussion of facts and law.
3. Both the revision petition arises out of FIR no.
398/2016, under Section 509 IPC registered at PS Bindapur on the basis of complaint dated 24.05.2016 of Complainant Ms. Sonia Jain.
4. Briefly stated facts relevant for disposal of both the revision petitions are as under:
5. The case of the prosecution is that on 30.05.2016 a complaint dated 24.05.2016 of Ms. Sonia Jain was received in PS Bindapur stating therein that on 23.05.2016 at about 7.25 PM when complainant was returning from market and was parking her scooter near stairs of her house along with her sister Shruti Jain, one person namely Mr. Vipin Kumar R/o shop no. 209, District Centre, Janakpuri, New Delhi who was standing at the gate of house no. T 121 ground floor, at the instance of Mr. Arvind Kanojia has passed remarks upon the complainant and started laughing and staring at her with bad intentions with a view to outrage her modesty and when complainant resisted, Mr. Vipin used filthy abuses of CR No:587/2017 & CR No. 57/2018 Page 3 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 sali, Bahanchod etc. to her in presence of her sister. Complainant further stated in her complaint that earlier also on 20.05.2016 at about 8 PM Mr. Vipin at the instance of Mr. Arvind Kanojia laughed and stared at her and pressed his eyes towards her with bad intentions when she was parking her scooter near the stairs of her house at T-121 and he was standing near the gate of Mr. Arvind flat T-121, Ground floor, 5. On 27.06.2016 statement under Section 164 Cr.P.C. of complainant was recorded.
6. After conclusion of the investigation, charge sheet for offence under Section 509 IPC was filed against the accused persons.
7. As per order dated 04.03.2017, cognizance of the offence was taken by Ld. Trial Court and summons were ordered to be issued against both the accused persons. Both the accused persons namely Vipin Kumar and Arvind Kumar appeared before the court and they were supplied copies of charge sheet and other documents.
8. Thereafter an application dated 19.08.2017 for discharge of accused Arvind Kumar was filed and after hearing arguments of the parties, both the accused persons namely Vipin Kumar and Arvind Kumar were CR No:587/2017 & CR No. 57/2018 Page 4 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 discharged vide order dated 01.12.2017.
9. Aggrieved by the impugned order dated 01.12.2017, the revisionists have challenged the impugned order dated 01.12.2017 stating therein that the Ld. Trial Court has completely ignored all the material facts, circumstances and evidences on record while passing the impugned order and same is based upon conjectures and surmises. It is stated in the revision petitions that Ld. Trial Court has committed a grave error in looking into the defence of the accused persons at the stage of framing of charge and has not follow the mandate of the judgment of Hon'ble Supreme Court in "State of Orisa Vs. Debendra Nath Padhi (2005) 1 SCC
568. It is further stated in the revisions petitions that Ld. Trial Court has relied upon a CD filed by the accused persons at the time of arguments on charge which was not verified and it cannot be ascertained as to when the CD was prepared and by whom and why the same was not handed over to the IO during investigation by the accused persons. It is further stated in the revision petitions that Ld. Trial Court has wrongly observed that there has been improvement in the statement under Section 164 Cr.P.C. of the complainant over the previous CR No:587/2017 & CR No. 57/2018 Page 5 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 complaint. It is further stated in the revision petitions that there is specific statement of the complainant containing the vulgar words used by the accused persons. It is further stated in the revision petitions that Form -1 of PCR is in favour of the complainant and not of the accused persons. It is prayed that impugned order dated 01.12.2017 be set aside.
10. Respondents namely Vipin Kumar and Arvind Kumar Kanojia have filed replies to the revision petition and have contested the same. In the reply, the respondents have stated that the contents of the revision petition are vague, false and quite absurd as the entire revision petition is based on the false facts. It is further stated by respondent Vipin Kumar in his reply that revisionist Sonia Jain has filed the false and frivolous complaint and Ld. Trial Court has rightly discharged the respondents. It is further stated by respondent Vipin Kumar that order of discharge is not solely based upon the video and observation with respect to the CD but also on the basis of material contradictions and improvements. It is stated that revisionist Sonia Jain and her family are in a habit of making false complaints and impugned order is a well speaking order.
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CR No: 57/2018
11. In the reply accused Arvind Kumar Kanojia has stated that revisionist Sonia Jain has not approached the court with clean hands and has suppressed the true and material facts and revision petition is not maintainable as no cause of action arose in favour of appellant. It is stated by respondent no. 3 that Ld. Trial Court has wrongly issued the notice to him without complying the procedure lay down in Section 401(2) Cr.P.C. . It is stated by accused Arvind Kumar Kanojia in his reply that on 23.05.2016 the complainant had made call to the police on 100 number and the same was only against accused Vipin and not against accused Arvind Kumar and the case has been wrongly registered on the basis of written complaint dated 24.05.2016 of the complainant. It is contended that IO has not conducted the fair investigation and has not collected the CCTV footage from the CCTV camera which was installed at the outside of the house of complainant. It is stated in the reply that he (accused Arvind Kumar) has presented a CD at the time of framing of charge and the same was played in the court and in the said CD the complainant is shown taking videography through her mobile phone of the incident in question for a considerable duration and CR No:587/2017 & CR No. 57/2018 Page 7 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 the complainant did not hand over the said video clips to the IO and the complainant withheld the best evidence available with her. It is stated by respondent Arvind Kumar Kanojia in his reply that in the PCR form, the name of accused Arvind Kumar Kanojia is not mentioned and he has been falsely implicated in this case. It is stated that revision petition is liable to be dismissed.
12. I have heard Ld. Counsel for the parties and carefully perused the records.
13. The contention of Ld. Counsel for the complainant Sonia Jain is that FIR was registered for the offence under Section 509 IPC on the basis of complaint of complainant wherein she has made allegations that accused Vipin Kumar at the instance of Arvind Kanojia had passed vulgar remarks on 23.05.2016 at her and was staring at her with bad intention with a view to outrage her modesty and when she resisted, accused Vipin used filthy abuse at her in present of her sister and on 20.05.2016 also accused Vipin at the instance of Arvind Kanojia laughed and stared at her and pressed his eye towards her with bad intention.
14. Ld. Counsel for the complainant has further contended that statement of complainant was recorded CR No:587/2017 & CR No. 57/2018 Page 8 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 under Section 164 Cr.P.C. and in the said statement also complainant has reiterated her allegations. Ld. Counsel for the complainant has contended that Ld. Trial Court has not appreciated the material on record correctly and has wrongly observed that there has been improvement in the statement under Section 164 Cr.P.C. of the complainant over the previous complaint. Ld. Counsel for the complainant has contended that Ld. Trial Court has wrongly relied on the CD filed by the accused persons as CD was required to be proved by recording evidence of the parties and moreover, Ld. Trial Court has also not correctly appreciated that incidence which took place on 23.05.2016 was reported on 24.05.2016 on account of complainant being female and incidence of 23.05.2016 had taken place in the evening although the call to the police was made on the same day. Ld. Counsel for the complainant has further contended that in the impugned order dated 01.12.2017 Ld. Trial Court has wrongly observed that complainant has filed cases against various persons of the locality with similar allegations. Ld. Counsel for the complainant has contended that order dated 01.12.2017 is liable to be set aside.
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15. Ld. Counsel for the complainant has relied upon the following judgments:
(i) State Vs. Anjum Khanna & Anr; 2017[4] JCC 2346
(ii) State Vs. Akhil Ahuja & ors. 2017[4] JCC 2772
(iii) State of Maharashtra Vs. Priya Sharan Maharaj & Ors. , 1997 Supreme Court Cases(Cri) 584.
16. Ld. Addl. PP for the State has contended that perusal of the charge sheet and documents placed along with the same reveal commission of offence under Section 509 IPC by the accused persons and Ld. Trial Court conducted the mini trial at the time of framing of charge by relying on the CD filed by the accused persons. Ld. Addl. PP for the State has contended that defence of the accused can not be looked into at the stage of framing of charge and accused persons could have proved their defence at the appropriate stage of trial.
17. Ld. Addl. PP for the State has contended that there are no contradictions in the statements of complainant and the charge for the offence under Section 509 IPC is liable to be framed and the impugned order is liable to be set aside.
18. Ld. Counsel for accused Vipin has contended that CR No:587/2017 & CR No. 57/2018 Page 10 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 impugned order whereby accused persons have been discharged is not solely based on the CD submitted by the accused persons but the material on record placed by the prosecution was not sufficient to frame charge against the accused. Ld. Counsel for accused Vipin has contended that Ld. Trial Court has correctly appreciated the material on record and the statement of complainant dated 24.05.2016 and statement under Section 164 Cr.P.C. and has arrived at the correct conclusion that complainant has falsely implicated the accused persons in the present case.
19. Ld. Counsel for accused Arvind Kumar has contended that on 23.05.2016 the complainant had made call to the police on 100 number and the same was only against accused Vipin and not against accused Arvind Kumar. It is further contended by Ld. Counsel for accused Arvind Kumar that the case has been wrongly registered on the basis of written complaint dated 24.05.2016 of the complainant. It is contended that police has withheld the CCTV footage of the place of the alleged incidence. It is contended that accused Vipin Kumar presented a CD at the time of framing of charge and the same was played in the court and in the said CD CR No:587/2017 & CR No. 57/2018 Page 11 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 the complainant is shown doing videography through her mobile phone of the incidence in question for a considerable duration and the complainant did not hand over the said video clips to the IO and the complainant withheld the best evidence available with her.
20. It is contended that in the CD filed by the accused persons and which was played in the court, the accused persons are not visible in the same which proves that accused persons were not present at the spot. It is contended that complainant and her family are habitual of filing false complaints. It is stated that impugned order does not suffer from any infirmity.
21. The case vide FIR No. 398/2016 under Section 509 IPC was registered at PS Bindapur on the basis of complaint dated 24.05.2016 of the complainant. In the complaint dated 24.05.2016 the complainant has alleged that on 23.05.2016 accused Vipin Kumar who was standing at the gate of house no. T-121, Ground floor at the instance of Arvind Kanojia, passed vulgar remarks at her and he also started laughing at her and staring her with a view to outrage her modesty when she was parking her scooter near the stairs of her house T-121 along with her sister. In the complaint dated 24.05.2016 CR No:587/2017 & CR No. 57/2018 Page 12 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 complainant has further stated that when she resisted, accused Vipin used filthy abuses of "sali Bahanchod" etc in presence of her sister. In the complaint dated 24.05.2016 the complainant has further stated that on 20.05.2016 at about 8 PM accused Vipin at the instance of Arvind Kumar looked and stared at her and pressed his eye towards her with bad intention.
22. During the course of investigation, the statement of complainant under Section 164 Cr.P.C. was recorded on 27.06.2016 wherein she has reiterated the allegations as made by her in previous complaint dated 24.05.2016 and has stated that accused Vipin Kumar continuously stared and laughed at her and also passed vulgar comments and said "Main Apko Kahi Ka Nahi Chhodunga"
in presence of her sister Shruti Jain.
23. In the statement under Section 164 Cr.P.C., the complainant has further stated that on 20.05.2016 also similar incidence had taken place and she did not lodge any complaint and accused Vipin Kumar is doing this act at the instance of Arvind Kumar.
24. Section 240 Cr.P.C. reads as :
Framing of charge.- (1) if, upon such consideration, CR No:587/2017 & CR No. 57/2018 Page 13 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
25. In CBI Vs. K. Narayana Rao, CA No. 1460 of 2012 , Hon'ble Supreme Court was pleased to hold:
12. While considering the very same provisions i.e. framing of charge and discharge of accused, again in Sajjan Kumar ( supra), this Court held thus:
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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case CR No:587/2017 & CR No. 57/2018 Page 14 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 against the accused has been made out. The test to determine prima face 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 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 basis infirmities, etc. However, at this stage, there cannot be a 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, though 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 cannot 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.
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(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.
26. In Anjumnissa Vs. State & Ors., 2018(2) AD(Delhi), Hon'ble High Court of Delhi has been pleased to hold:
6. At the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court does not have to, at that stage, appreciate the probative value of the material or the evidence to conclude whether the evidence is sufficient or not for convicting the accused.
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27. In B C Upreti & Anr. Vs. State & Anr. , Crl. Rev. P. 316/2011, Hon'ble High Court of Delhi has been pleased to hold :
20. While framing charge a magistrate is expected to apply his mind to the facts of the case, keeping in view the essential ingredients of the offence for which the accused is sought to be charged. The obligation to discharge the accused under section 239 arises when the magistrate considers the charge against the accused to be groundless. The real test for determining whether the charge is groundless is to find out that the materials available on record, even if un-rebutted, would not make out any case whatsoever. The word "groundless" means without any basis or foundation.
Where there is even a suspicion about commission of offence, the charge cannot be stated as groundless.
21. It is well settled that at the stage of framing of the charges, no roving enquiry is to be made nor the pros and cons of the materials could be weighed in detail as it would tantamount to a mini trial and such is not in the scheme of the code. The reason for this is that the prosecution ought to be allowed to bring its evidence at CR No:587/2017 & CR No. 57/2018 Page 17 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 the trial and the case ought not to be shut out at the threshold when there is reasonable material for holding trial.
22. The absence of details regarding the date time and manner of occurrence do not make out a case for discharge.
28. In the complaint dated 24.05.2016 and in the statement under Section 164 Cr.P.C. of the complainant which was recorded on 27.06.2016, the complainant has specifically stated that on 23.05.2016 accused Vipin Kumar had uttered words, made gestures and committed acts intended to insult her modesty.
29. Perusal of the statement under Section 164 Cr.P.C shows that in the said statement complainant has reiterated the allegations as made in her complaint dated 24.05.2016. However, in the statement under Section 164 Cr.P.C., the complainant has stated that accused Vipin Kumar also stated that "Mei Apko Kahi Ka Nahi Chhodunga" and the same was said with bad intention.
30. Section 162 (1) Cr.P.C. reads:
Statements to police not to be signed- Use of statements in evidence.- (1) No statement CR No:587/2017 & CR No. 57/2018 Page 18 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
31. The statement recorded under Section 161 Cr.P.C. is not substantive evidence and can be used for the CR No:587/2017 & CR No. 57/2018 Page 19 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 purpose of contradicting the witness. The statement recorded under Section 164 Cr.P.C. is also not substantive evidence and it can be used only to corroborate or contradict the witnesses.
32. In the impugned order, Ld. Trial Court has observed that complainant has made improvement in her statement under Section 164 Cr.P.C. .
33. It is to be noted that Ld. Trial Court has not correctly appreciated the import of recording the said statements under Section 161 Cr.P.C. and 164 Cr.P.C.. Ld. Trial Court has failed to appreciate that in the statement under Section 164 Cr.P.C., the complainant has substantially reiterated the contents of her complaint dated 24.05.2016.
34. In State Vs. Anjum Khanna & Anr., 2017[4] JCC 2346, the Hon'ble High Court of Delhi has been pleased to hold:
18. The submission made on behalf of respondent No.1 that there are improvements in the statement of the complainant recorded under Section 161 and 164 CrPC has to be rejected as it is settled legal proposition that FIR is not an encyclopedia of the entire case. It CR No:587/2017 & CR No. 57/2018 Page 20 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 may not and need not contain all the details. In case, the complainant fails to given entire particulars in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. (Vide: Rohtash v. State of Rajasthan (2006) 12 SCC 64; and Ranjit Singh and Ors. v. State of Madhya Pradesh JT 2010 12 SC 167).
35. In the impugned order dated 01.12.2017, Ld. MM has been pleased to observe:
8. Ld. Counsel for accused persons placed on record a CD. The same was played in the court.
In the said CD, the complainant is shown making videography through her mobile phone of the incident in question for a considerable duration. However, for the reasons best known to her, she did not file the said video clip on record nor gave the same to the IO during investigation. The said CCTV footage filed in the shape of CD on record by Ld. Counsel for accused persons at the time of hearing arguments on charge, demonstrates that it was the complainant herself who was outside in the gali. The accused persons are not visible in the same.
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36. In the impugned order dated 01.12.2017, Ld. Trial Court has relied on the decision in Smt. Kavita Vs. State of NCT of Delhi, 2016(4) JCC 2201 wherein Hon'ble High Court has been pleased to observe:
7. As noted above the Investigating Agency following the mandate of law, rightly placed the entire material before the learned Trial Court along with the charge sheet in the form of statements of the complainant, witnesses both supporting and not supporting the complainant and the CCTV footage.
Supreme Court in the decision reported as 2008 (14) SCC 1 Rukmini Narvekar vs. Vijaya Satardekar and Ors. considering the earlier decision in State of Orissa Vs. Dependra Nath Padhi held that even documents of the defence which are of impeccable character can also be looked into. It was held:
XXXXXXXXXXXX XXXXXXXXXXX
22. 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 case[(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where CR No:587/2017 & CR No. 57/2018 Page 22 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in 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. 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."
37. The plea which has been raised by the revisionists is that CCTV footage on which reliance has been placed by the accused persons is unverified and same is a defence of the accused persons and cannot be appreciated at this stage.
38. It is to be noted that the CCTV footage in the shape of CD is a record produced before the court by the accused persons and not the prosecution.
39. Ld. Counsel for accused Arvind Kumar has relied on decision in Shamsher Singh Verma Vs. State of CR No:587/2017 & CR No. 57/2018 Page 23 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 Haryana, 2016 (1) RCR (Criminal) wherein Hon'ble Supreme Court has been pleased to hold:
16. We are not inclined to go into the truthfulness of the conversation sought to be proved by the defence but, in the facts and circumstances of the case, as discussed above, we are of the view that the courts below have erred in law in not allowing the application of the defence to get played the compact disc relating to conversation between father of the victim and son and wife of the appellant regarding alleged property dispute. In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the Forensic Science Laboratory, by the defence. The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.
40. In State Vs. Akhil Ahuja & Ors, 2017(4) JCC 2772, Hon'ble High Court of Delhi has been pleased to hold:
29. xxxxxxxxxx xxxxxxxxxxxxxx CR No:587/2017 & CR No. 57/2018 Page 24 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
CR No: 587/2017 & State Vs. Vipin Kumar & Anr.
CR No: 57/2018 The cassette so placed before the Trial Court by the prosecution without complying with the certificate under Section 65B of Indian Evidence Act for its authenticity is no evidence. Similarly the CCTV footage of the Park Royal Hotel, Nehru Place without complying with the certificate under Section 65B of Indian Evidence Act for its authenticity is no evidence. Reliance is placed on the judgment of the Apex Court in case Anwar P.V. vs. D.K. Basheer; Civil Appeal No. 4226/12 decided on 18.089.2014.
41. As discussed above, in the written complaint dated 24.05.2016 and statement under Section 164 Cr.P.C., the complainant has made specific allegations of commission of acts which constitute offence under Section 509 IPC.
42. It is well settled proposition of law that whether or not the allegations are true is a matter which cannot be determined at the stage of framing of charge and any such determination can take place only at the conclusion of trial. Reliance in this regard can be placed on the decision of Hon'ble Supreme Court in Sheoraj Singh Ahlawat & ors. Vs. State of U.P. & Anr. 2013 Crl. L.J.331.
CR No:587/2017 & CR No. 57/2018 Page 25 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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43. Along with the application dated 19.08.2017 for discharge, accused Arvind Kumar Kanojia had filed copy of Delhi Police Control Room, Form-1 as per which complainant Sonia Jain had made a call to the police on 23.05.2016 at 18:58:10. However, copy of the said form-1 prima facie corroborates the complaint dated 24.05.2016 of the complainant Sonia Jain wherein she has stated that the alleged offence had taken place on 23.05.2016. In the circumstances, it cannot be said that lodging of written complaint by the complainant dated 24.05.2016 is fatal to the case of prosecution.
44. Section 509 IPC reads :
509. Word, gesture or act intended to insult the modesty of a woman.- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any objects, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
45. The plea as raised by accused Arvind Kumar Kanojia CR No:587/2017 & CR No. 57/2018 Page 26 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
CR No: 587/2017 & State Vs. Vipin Kumar & Anr.
CR No: 57/2018 is that no overt act of commission of offence under Section 509 IPC has been attributed to him and in the complaint dated 24.05.2016 and in the statement under Section 164 Cr.P.C., the complainant has named accused Vipin Kumar and she has only stated that offence was committed by accused Vipin Kumar at the instance of Arvind Kumar.
46. Perusal of the complaint dated 24.05.2016 and statement under Section 164 Cr.P.C. of the complainant recorded on 27.06.2016 would reveal that in the same the complainant has made specific allegations of passing of vulgar remarks and making gestures for commission of act intending to insult her modesty against accused Vipin and complainant has further stated that same were committed by accused Vipin at the instance of accused Arvind Kanojia. It is to be noted that complainant has not made any specific allegations of uttering of any words, making of any sound or gesture or exhibiting any object thereby intending to insult her modesty against accused Arvind Kumar.
47. In the circumstances, the material on record does not give rise to any strong suspicion which is sufficient to frame charge for the offence under Section 509 IPC CR No:587/2017 & CR No. 57/2018 Page 27 of 28 D.O.J.28.01.2019 Sonia Jain Vs. State & ors.
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CR No: 57/2018 against accused Arvind Kumar. However as per record, there is sufficient material on record to frame charge for the offence under Section 509 IPC against accused Vipin Kumar.
48. In view of the aforesaid discussions, impugned order dated 01.12.2017 stands modified accordingly. Both revision petitions are allowed against accused/respondent Vipin Kumar.
49. Nothing mentioned in this order shall tantamount to an expression of opinion on the merits of the allegations of complainant or the defence of the accused.
50. TCR be sent back to the court concerned along with copy of this judgment for framing of charge for the offence under Section 509 IPC against accused Vipin Kumar and for proceeding in accordance with law. Accused Vipin Kumar is directed to appear before Ld. Trial Court on 04.02.2019.
51. Revision file be consigned to record room.
Announced in the open ( HARISH DUDANI) Court on 28.01.2019 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed CR No:587/2017 & CR No. 57/2018 D.O.J.28.01.2019 Page 28 of 28 HARISH by HARISH DUDANI DUDANI Date: 2019.01.28 14:53:26 +0530