Delhi District Court
Sudhir Ayra vs Govt Of Nct Of Delhi on 16 January, 2023
IN THE COURT OF SHRI SUBHASH KUMAR MISHRA
ADDL SESSIONS JUDGE-07, SOUTH EAST DISTRICT:
SAKET COURT: NEW DELHI
CR No. 227/2018
Sudhir Ayra
S/o P.P. Arya,
R/o A-409, Defence Colony,
New Delhi.
..........Revisionist
Vs.
Govt of NCT of Delhi
..........Respondent
Date of institution : 26.03.2018
Judgment reserved on : 16.01.2023
Judgment pronounced on : 16.01.2023
JUDGMENT
1. Vide this judgment, the revision petition challenging the order of Ld. Trial Court dated 15.01.2018, passed in the matter titled as "State Vs. Pawan Singh & Ors." in FIR No.41/2016, whereby the learned trial court held that there was sufficient material to frame charge under section 354D/34 of IPC against the petitioner and co-accused Pawan Singh and discharged the other co-accused persons namely Naman Jain and Mahender Singh, will be disposed of.
2. Shorn of unnecessary details, alleged facts of the case are CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 1 Of 10 that the accused Pawan Singh had been following the complainant and video-graphing the movements of the complainant on various occasions. On 30.01.2016, when the complainant was shopping, she got a call from her friend's brother informing that accused Pawan had his video. She lodged an FIR in this regard.
During the investigation, accused Pawan Singh disclosed that he had been recording the video of the complainant at the instruction of complainant's husband/petitioner namely Sudhir Arya, for which he had paid Rs.91,200/- by way of a cheque to the concerned agency and had also signed necessary form. The seized video camera was sent to FSL and after its forensic examination seventeen video files of the complainant were retrieved from it.
3. After completion of investigation final report was filed wherein the petitioner was made an accused along with other co- accused persons namely Pawan Singh, Naman Jain and Mahender Singh. However, vide its order dated 09.01.2016 the learned trial court declined to take the cognizance of the offence recording in its order that none of the allegations fall within the ambit of section 354-D of IPC because there was no allegation that accused attempted to contact complainant to foster personal interaction or that she made any indication of her disinterest.
It was also recorded therein that the alleged act is also not covered under section 509 of IPC because capturing any obscene picture of the complainant was missing there from.
4. Being aggrieved of the aforesaid order a revision petition CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 2 Of 10 was filed by the state in which the accused persons were summoned as respondents.
Vide its order dated 10.03.2017, Ld. ASJ-02/South-East, Saket Courts, Delhi, set aside the order of learned trial court, dated 09.06.2016, holding that there is sufficient material on record to proceed against respondents/accused persons for offence under section 354-D of IPC, broadly considering the following facts:-
a). That in the complaint it was mentioned by the complainant that accused Pawan Singh had been following her for several days which she came to know from her friend's brother and that accused also had her video;
b). That in her statement recorded under section 164 of CrPC as well the complainant said that Pawan Singh had been following her with a camera, shooting her video for the whole day;
c). That Sh. Sudhir Arya gave a cheque of Rs.91,200/- and had also signed the investigation requisition form for enquiry; and
d). That IO had seized the cheque and investigation requisition form signed by Sh.
Sudhir Arya.
5. Now, the impugned order dated 15.01.2018 has been challenged mainly on the following grounds:-
a). That prima facie case under section 354-D IPC is not made out because the essential ingredients of the offence or missing from the allegations;
b). That the petitioner himself has not committed any offence; and
c). That co-accused persons namely, Naman Jain and Mahender Singh have been discharged;
d). That there was no meeting of mind or common intention between the petitioner and co-accused Pawan Singh hence the petitioner can not be charged for the offence; and CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 3 Of 10
e). That under criminal law, there is no concept of vicarious liability.
6. Counsel for the petitioner argued that in this case prima facie offence under section 354-D of IPC is not made out because for attracting this section, the accused has not only to follow a woman but also to contact or attempt to contact her with a view to foster personal interaction, despite a clear indication of disinterest by such woman, however, these facts are missing from the allegations levelled in this case because there was no contact at all with the complainant in any manner whatsoever.
He also argued that the petitioner can not be charged under section 354-D of IPC because he is the husband of complainant and had availed the services of "Sleuths India Private Limited"
only to ensure the safety of his wife/complainant and he had not committed any offence because he never tried to foster personal interaction with her.
He argued that the signatures of the petitioner on the alleged cheque and inquiry requisition form are disputed and there is no forensic report filed by the prosecution, in this regard.
He further argued that as the co-accused Naman Jain and Mahender Singh have been discharged by learned trial court, now there exists no meeting of mind or common intention between the petitioner and the accused Pawan Singh, who has also been charged for the offence.
In support of his arguments, he placed reliance on following judgments:-
1. P. Vijayan vs. State of Kerala and others, 2010 (2) SCC 398
2. Union of India vs. Prafulla Kumar CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 4 Of 10 Samal, 1970 (3) SCC 4
3. Amit Pratap and others vs. State, 2012 (1) JCC 86
4. Rajiv Dixit vs. State of Madhya Pradesh, Manu/MP/1138/2017
5. SahIbe Alam vs. State, Menu/DE/0424/2002
6. Akunuri Raju vs. State of Telangana, Crl.P.No.8391 of 2018
7. Mahesh Chand vs. state of UP and others, Manu/SC/1552/2009
8. R. Kalyani vs. Janak C. Mehta and others, Manu/SC/8183/2008
9. Saraswathi chemicals, Vijayawada vs. State of Andhra Pradesh, Manu/AP/0656/2001
10. Jeetendra Nilesh Bhai Hersoda and others vs. State of Gujarat and another, Crl Misc. Application 20278/2015
11. Singaraju Soma Sekhar vs. State of Telangana and others, Manu/DL/1808/2020
12. Abdul Razak vs. State of Kerala and others, Manu/KE/5387/2019
13. Gugulothu Ravinder Naik vs. State of Andhra Pradesh, Manu/AP/1474/2022
7. Ld. Addl. PP for State/respondent and Counsel for the complainant argued that prima facie offence under section 354-D of IPC is made out against the petitioner as for attracting this section, only following a woman and contacting her is sufficient even if indication of disinterest by such woman is missing, which is required only in cases where accused attempts to contact a woman to foster personal interaction repeatedly. They argued that because by a comma the part "or attempts to contact such woman CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 5 Of 10 to foster personal interaction repeatedly despite a clear indication of disinterest by such woman" is separated from "follows a woman and contacts", mere following a woman and contacting her is also an offence.
They further argued that such contacts are not required to be physical only and it can be even an eye contact or an electronic contact as well i.e. by way of taking photographs or recording one's video film, which has happened in this case.
Following case laws were relied on in support of the arguments:-
a). Asian Resurfacing of Road Agency Private Limited vs. CBI, 2018 (16) SCC 299
b). Abhishek Verma vs. CBI, 2017 (166) DRJ 314
c). Bhavna Bai vs. Ghanshyam and others, (2020) 2 SCC 217
d). State of Orissa and others vs. Titaghur Paper Mills Company Private Limited and others, AIR 1985 SC 1293
8. Ld. Addl.PP for State/respondent and Counsel for the complainant also argued that initially the learned trial court, considering that there was no allegation that any attempt was made to contact the prosecutrix to foster personal interaction or that there was no allegation that she made any indication of her disinterest, had held that none of the allegations fall within the ambit of section 354-D of IPC and had declined to take the cognizance of the offence.
However, a revision petition was filed against that order and vide its order dated 10.03.2017, Ld. ASJ-02/South-East, Saket Courts, Delhi, set aside the order of learned trial court holding that there is sufficient material on record to proceed against respondent and other accused persons for offence under CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 6 Of 10 section 354-D of IPC and therefore the same issue cannot be re- agitated and considered again at this stage because a finding in this regard has already been given and the same cannot be reviewed.
9. Counsel for the petitioner argued that order dated 10.03.2017 was passed by the revisional court against the order of the Ld. Trial Court, declining to take cognizance, however, this petition has been filed against the order of Ld. Trial Court whereby charge has been framed. He also argued that the considerations for taking cognizance and for framing the charge are different and hence this issue can be looked into afresh at this stage.
10. I have given my thoughtful consideration to the arguments advanced by both the sides and have also gone through the Ld. Trial Court Record and the case laws relied on.
11. First of all it needs to be considered that if an issue which has already been considered earlier while deciding a revision petition against an order declining to take the cognizance of the offence can again be considered in a revision petition against an order of framing the charge.
12. In trial of warrant cases instituted on a police report the Magistrate, upon considering the police report and the documents sent with it under section 173 of CrPC and making examination, if any, and after giving the prosecution and the accused an opportunity of being heard, if considers the charge against the accused to be groundless, he discharges the accused.
CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 7 Of 10 However, if, upon such consideration, examination and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, he frames charge against the accused.
13. At the stage of taking the cognizance of an offence the Magistrate peruses the police report and the documents filed along with such report and after considering it if he deems fit, he takes the cognizance of the offence.
The only difference at the stage of taking the cognizance and framing of charge is that at the stage of framing of charge an opportunity is given to the accused of being heard.
Availing this opportunity, the accused points out the lacunae/defects in the case of prosecution showing that no case is made out against him.
14. In the instant case, the Ld. Trial Court had declined to take cognizance of the offence and when the said order was challenged in revision, an opportunity of being heard was given to the accused persons including the petitioner, and after considering the these issues, it was held by Ld. ASJ-02/South- East, vide its order dated 10.03.2017 that there is sufficient material on record to proceed against respondent/accused persons for offence under section 354-D of IPC.
15. Therefore, the aspect if there was only an allegation of mere "following and contacting" without the allegation of fostering personal interaction despite indication of victim's CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 8 Of 10 disinterest, and whether it constitutes an offence under section 354-D of IPC or not, has already been considered and decided by Ld. ASJ-02/South-East, in a revision vide its order dated 10.03.2017, after giving the petitioner an opportunity of being heard, akin to the opportunity given at the stage of framing the charge, on the very same issue, hence, it can not be considered again and decided in this revision because the same will be a review of an earlier order and will also amount to judicial impropriety.
16. Even otherwise, in the instant case the allegations are that the petitioner had taken the service of "Sleuths India Private Limited" for spying on his wife/complainant and consequently the co-accused Pawan Singh was stalking her. Therefore, even if the petitioner was not physically stalking his wife, he had availed the service of an agency to do so. Further, there was common intention between the company and the petitioner as per alleged agreement and hence, common intention extended between the petitioner and the accused Pawan Singh i.e. the agent of the company as well, despite the factum of discharge of co-accused Naman Jain and Mahender Singh by learned trial court.
17. Having discussed as above, this court does not find any illegality in the impugned order hence it needs no interference. Accordingly, the revision stands dismissed.
18. Nothing said herein above, shall, however, be construed as any expression of opinion on the merits of the case.
CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 9 Of 10
19. TCR be sent back along with a copy of this order. File be consigned to record room, as per rules.
(Subhash Kumar Mishra) Additional Sessions Judge-07, South-East, Saket Courts, ND 16.01.2023 CR No. 227/2018 Sudhir Arya Vs. Govt. of NCT of Delhi Page 10 Of 10