Delhi District Court
Shivam Mittal vs State on 1 August, 2022
IN THE COURT OF SHRI ANIL KUMAR
ADDL. SESSIONS JUDGE - 03 : SOUTH DISTRICT
SAKET COURT : NEW DELHI
Cr No. 76/20
CNR no. DLST01-001869-2020
NIKHIL MALHOTRA
S/O SH. PARVESH MALHOTRA
H.NO. 182 A, DDA FLATS,
SHAHPUR JAT,
NEW DELHI
SHIVAM MITTAL
S/O LT. SH. ROHIT MITTAL
H.NO. 154A, DDA FLATS,
SHAHPUR JAT,
NEW DELHI
.....Revisionists
Versus
STATE
THROUGH S.H.O.
PS: HAUZ KHAS
NEW DELHI ... Respondent
Date of Institution : 15.02.2020
Date of Arguments : 01.08.2022
Date of Judgment : 01.08.2022
CA No.76/2020
Nikhil Malhotra & ors vs. State. Page no. 1 of 8
JUDGMENT
1. Present revision is filed under section 397 of code of criminal procedure on behalf of revisionists against the order(s) dated 29.08.2018 and 05.09.2019 passed by the court of Ld.MM-02, South, Saket Court.
2.1 Alongwith present revision petition, revisionist has filed an application for condonation of delay. Revisionists have stated that the revisionist no.2 is pursuing M Com from Indira Gandhi Open University and during the month of Sep, 2019 he was busy preparing and writing his End Term examination. It has been further stated that certified copy of impugned order was received on 18.1.2020 and thereafter took 10 days for drafting of application and petition. It is further stated that certified copy of formal framing of charge was required during drafting and same was applied on 28.1.2020 and same was received only on 13.2.2020. It has been further stated that delay in filing present revision is neither intentional nor deliberate but due to unavoidable circumstances beyond the control of revisionists.
2.2 It is stated by Ld.APP for State that this criminal revision is barred by the period of limitation and there are no legally sound and material grounds to condone the delay.
2.3 By way of present revision petition, revisionist have challenged the order dt. 29.8.18 and 5.9.19. Order on charge was passed on 29.8.18 and charges were framed on 5.9.19. This Court is of the opinion that order on charge is merged with charges which were framed on 5.9.19 and computation CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 2 of 8 of limitation will start from 5.9.19. Present revision petition is filed on 15.02.2020. There is a delay of about 70days. Keeping in view the fact that at the relevant time one of the revisionist was studying and period taken for obtaining the certified copy, I find that revisionists have been abled to sufficiently explain the cause of delay and delay is liable to be condoned but subject to cost. Hence, application for condonation of delay is allowed subject to deposit of cost of Rs.5000/- with DLSA, South, Saket. Cost deposited receipt be furnished before Trial Court. Delay in filing present revision petition stands condoned.
3. Brief fact on the merit of the case, as per chargesheet, is that complainant had been observing for the past 5 days that someone was clicking her photos while she was sleeping and the persons would run away when she tried to catch them. On 14.6.15 complainant observed that someone was repeating the offence and she saw face which looked familiar to a guy whose stays four houses away and called her landlord's daughter and gave the description of the person who said his name is Shivam. Complainant took Shivam's phone number from the landlord's daughter and informed him that she would come to his house and contact the police. He accepted his fault of clicking of photos which were there in his mobile phone and was shown to police and complainant received sorry message from Shivam and Nikhil.
4. After investigation of the matter, investigation officer submitted the chargesheet u/s 354C/354D/34 IPC. Vide order dt 29.08.2018 Ld.Trial Court discharged the petitioners for offence u/s 354D IPC but found that there is a prima facie case for framing of charges of offence u/s 354C/34 IPC against CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 3 of 8 the accused persons and accordingly charge u/s 354C/34 IPC was framed against accused persons on 05.09.2019.
5. Being aggrieved by impugned orders dt.29.8.18 and 5.9.19 revisionists preferred the present revision petition.
6. It is stated by Ld. Counsel for the revisionists that revisionist no. 1 works as an Engineer with a private firm and Revisionist No. 2 works as an Accountant with a Fashion Designer. Complainant has falsely accused the revisionists in her complaint and the investigation agencies failed to collect even an iota of evidence against the revisionists. Ld. Court has erred miserably in interpreting the offence specified under section 354C and has wrongly applied the same to the facts of the case. Case against the revisionists is based on false allegations, none of which can be relied upon by Court. A bare perusal of the charge sheet makes it abundantly clear that the charges against revisionist are groundless and based on surmises and conjectures. Ld. Trial Court has passed erroneous order in undue haste. Ld Trial Court has acted in an arbitrary manner and conducted itself in undue haste. Ld. Trial Court failed to take into account the various lacunae in the statements made by Complainant, and yet charged the Revisionist in spite of the same, makes evident that the impugned order(s) Dt. 29.08.2018 and 05.09.2019 were erroneous in nature. Charges framed by Ld. Court on 29.08.2018 were framed in the absence of counsel even after the Respondents apprised the Ld. Court that they would be comfortable answering any questions in presence of their counsel. Even after repeated requests by the Revisionist that their counsel be present for the framing of charges, the Ld. Court continued to frame charges against the Accused. The same goes against CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 4 of 8 the ethos of a fair, equitable criminal trial and therefore the charges framed against the revisionists are liable to be set aside. Ld. Court has failed to apply judicial mind to facts of the case and has passed a mechanical order without appreciating the contentions of the revisionists and therefore the charges framed against revisionists are liable to be set aside.
7. On the other hand, it is submitted by Ld.APP that the offence for which revisionists have been charged by ld.Trial Court are clearly made out upon plain reading of complaint statement of victim lady. The incident was of around midnight, when the victim lady was sleeping in her bedroom. It can be easily made out that no lady would expect clicking her photograph while she is asleep in her bedroom. There is nothing wrong or illegality in the order of Ld.MM vide which the revisionists have been charged for the offence u/s 354C/34 IPC. The Ld.MM had taken care and after perusal of the evidence, have also discharged the revisionists for the offence u/s 354D IPC. There is no irregularity in the impugned orders., hence, this revision is liable to be dismissed.
8. I have heard Ld. Counsel for revisionists and Ld. APP for the State and given my thoughtful consideration to their respective submission. Trial Court record perused.
9. Sec 354C IPC reads as under:
"Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 5 of 8 person at the behest of the perpetrator or disseminates such image1 shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanations
1. For the purpose of this section, "private act"
includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
2. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section."
10. Ld.Trial Court in impugned order has observed as under:
"The court is of the view that prima facie the ingredients of section 354C of IPC is made out against CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 6 of 8 both the accused person. 354 IPC is attracted where the accused watches, captures image of woman engaging in private act in circumstances where she would usually not expect to be observed. In the present case it is alleged that on 14.06.2015 the complainant was being observed by the accused person while she was sleeping and the complainant had seen the accused and recognized them. It is further stated that the accused had admitted that they clicked the photographs from their mobile phone and they were in their mobile. The time when alleged incident took place was at night where the complainant and another person with her were sleeping and it is a place where it is not expected that they would be observed by another person. It would have to be seen as to whether it would be construed to be a private act or not. Therefore, the plea of the accused at this stage is not sustainable."
11. In the instant case, revisionists have been charged for the offences punishable u/s 354C/34 IPC on the basis of the allegations raised by respondent that she was clicked by revisionists while she was asleep in her bedroom and the complainant had seen the revisionists and recognized them.
12. Having regard to the aforementioned facts and position of law, I am of the view that impugned order suffers from gross illegality and infirmity for the reason that material before the trial court was totally lacking on the essential ingredient of Section 354C/34 IPC despite that, Ld. Trial Court CA No.76/2020 Nikhil Malhotra & ors vs. State. Page no. 7 of 8 proceeded to frame the charge for said offence against the revisionists. Mere fact that photograph was clicked by revionist while complainant was sleeping does not meet the essential ingredient for the offence u/s 354C IPC. In the facts and circumstances of the case, it cannot be said that complainant was engaging in any private act. In the considered opinion of the court, the chargesheet does not disclose any primafacie case for framing of charge for said offence and hence, the revisionists were not liable to be charged for said offence.
13. In the backdrop of above circumstances, I am of the considered view that impugned orders dated 29.08.2018 and 05.09.2019 are liable to be set aside. Accordingly, revision stands allowed. Impugned orders are set aside. Revisionists are discharged for the offence u/sec. 354C/34 IPC.
Revision file be consigned to record room.
Trial court record be sent back with copy of this judgment.
Digitally
signed by
ANIL ANIL KUMAR
Date:
KUMAR 2022.08.06
Announced in open Court on 1.8.22. 10:35:43
+0530
(Anil Kumar)
Addl. Sessions Judge-03(South)
Saket Courts/New Delhi/ 1.8.22
CA No.76/2020
Nikhil Malhotra & ors vs. State. Page no. 8 of 8