Uttarakhand High Court
Sanjay Kumar vs State Of Uttarakhand on 5 April, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Judgment reserved on 28.02.2024
Judgment delivered on 05.04.2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 2604 of 2019
Sanjay Kumar. .......Applicant.
Versus
State of Uttarakhand
and others. .......Respondents.
Present:
Mr. Rajesh Sharma, learned counsel for the applicant.
Mr. Saurabh Pandey, learned Brief Holder for the State.
Hon'ble Rakesh Thapliyal, J.
1. By the instant C482 application, applicant is challenging the charge-sheet no. 135 of 2019 dated 15.05.2019 as well as cognizance order dated 19.08.2019 passed by the Chief Judicial Magistrate, Dehradun, arising out of FIR being Case Crime No. 08 of 2019 (State Vs. Sanjay Kumar) wherein applicant has been summoned to face the trial for the offence punishable under Section 354-A (iii) and (iv) IPC.
2. The genesis of the case is arising out of the FIR registered as Case Crime No. 08 of 2019, Police Station - Kotwali, Dehradun wherein allegations had been levelled against the applicant for the offences punishable under Sections 294, 354-A, 506 IPC. The matter was investigated by the Investigating Officer, however, on completion of the investigation, offences punishable under Section 294, 506 IPC were deleted and charge-sheet has been filed only for the offence punishable under Section 354-A IPC. Subsequently, Chief Judicial Magistrate took cognizance on the said charge-sheet for the offence punishable under Section 354A
(iii) and (iv) IPC and after taking cognizance, the case was registered as Criminal Case No. 08 of 2019 (State Vs. Sanjay 2 Kumar). Learned counsel for the applicant submits that in fact, no ingredient of Section 354-A (iii) and (iv) IPC are available and as such, no offence is made out against the applicant. It is contended by the learned counsel for the applicant that during investigation, the statement of respondent no. 3 / complainant - victim was recorded under Section 161 Cr.P.C. on 08.01.2019 and in her statement, she stated that she had been raped by the applicant three times and video was also made, however, no date when the said offence had taken place for the first time has been given by the victim.
3. Thereafter, complainant - victim was asked to give her statement under Section 164 Cr.P.C., however, complainant - victim was not ready and she said that she is not well and whenever she will be well, she will give her statement under Section 164 Cr.P.C. On 19.01.2019, victim appeared before the Investigating Officer for the purposes of recording her statement under Section 164 Cr.P.C. and thereafter, her statement were recorded under Section 164 Cr.P.C. and in her statement, she stated that first time, she was raped by the applicant on 10.03.2018 and again, she was raped twice by the applicant.
4. Thereafter, the investigating officer collected the CDR details of the applicant and victim and after examining the CDR details, during the course of the investigation it was found that the applicant, on the date of alleged incident of rape i.e. on 10.03.2018, was not present in Dehradun from 09.03.2018 to 11.03.2018. So far as the allegation with regard to the alleged preparation of video is concerned, both the mobile handsets of the applicants were taken into custody by the investigating officer and sent them for forensic examination to CFSL, Chandigarh. It has been found by the CFSL, Chandigarh that 3 there was neither any pornographic video nor any adultress message on the mobile handsets of the applicant. Despite the fact that neither any pornographic video nor any adultress message was found on the mobile handsets of the applicant, charge-sheet has been filed by the Investigating Officer purely for the reason that both the applicant and victim were in regular touch and they used to talk on mobile phone for long hours regularly and have long chats during night.
5. Learned counsel for the applicant submits that while submitting the charge-sheet, no evidence was found by the Investigating Officer, which constitutes the offence punishable under Section 376, 294, 506 IPC, however, based on the CDR details of the applicant and respondent no. 3 whereby it was revealed that both the applicant and victim were talking to each other on mobile phone for long hours regularly during night and have long chats, charge-sheet for the offences under Section 354A
(iii) and (iv) IPC has been filed.
6. Learned counsel for the applicant submits that repeatedly, applicant was changing her statement, therefore, her statement is not trustworthy and is doubtful. He further submits that it appears from charge-sheet, admittedly, no offence is made out against the applicant under Section 376, 294, 506 IPC and that was the reason only charge-sheet has been filed for the offence punishable under Section 354-A (iii) and (iv) IPC and that too is based on the CDR details of the applicant and victim, which appears to be consensual, as both used to talk on mobile phone regularly for long hours during night. Since this relation appears to be consensual, therefore, no offence punishable under Section 354-A (iii) and (iv) is made out against the applicant.
47. This matter came up before this Court on 26.11.2019 and on that date, the C482 application was admitted and notice was issued to victim and proceedings were stayed. Office report indicates that notice was served upon the victim personally. Despite personal service, victim did not turn up. Thereafter, matter was listed again and again but no one put appearance on her behalf, subsequently, the matter was listed on 28.02.2024 and on that date, learned Brief Holder produced the case diary. This Court also perused the case diary. On that date, learned Brief Holder has submitted that though the statement of complainant - victim recorded under Section 164 Cr.P.C. is supporting the prosecution case but the CFSL report is contrary to it. He submits that statement recorded under Section 164 Cr.P.C. is not corroborated by the CFSL report and the CFSL report is a primary piece of evidence and it cannot be ignored.
8. Mr. Saurabh Pandey, learned Brief Holder for the State submits that during investigation, it was found that as per the CDR details of the applicant, on the date of alleged incident i.e. on 10.03.2018 applicant was not present in Dehradun from 09.03.2018 to 11.03.2018. He further submits that so far as investigation with regard to the allegation of preparation of video is concerned both the mobile handsets of the applicant had been sent to CFSL by the Investigating Officer for forensic examination to CFSL, Chandigarh and on examination, no pornographic video or adultress message were found. He further submits that audio clips, which were handed over to the Investigating Officer, which has been endorsed in the case diary are of 15 Sec, 19 Sec and 2.15 Sec containing vulgar message, which outrage the modesty of the woman and as such, prima facie case is made out against the applicant.
59. So far as, scientific evidence of CFSL report is concerned, in reference to this Mr. Saurabh Pandey, learned Brief Holder submits that neither any pornographic video nor any adultress message were found on the mobile handsets of the applicant, even then, the audio clips presented by the prosecution in terms of the three audio clips, which can be secondary evidence not being supported by Section 65b certificate, is enough to bring out a case of Section 354-A (iii) and (iv) IPC but he fairly submits that after going through the case diary, the Investigating Officer though could not connect the accused with the allegation of rape, due to absence of applicant from Dehradun but CDR report reveals that both the applicant and victim used to talk regularly on mobile phone regularly during night and doing long chat and as such offence under Section 354-A (iii) and (iv) IPC are made out against the applicant. He further submits that so far conspiracy angle is concerned, which is also one of the grounds of the applicant that due to political rivalry he has been implicated since he belongs to a political party, this aspect has not been investigated by the Investigating Officer, therefore, matter can be remanded back for further investigation.
10. Learned counsel for the applicant has placed reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Rajesh Yadav and another Vs. State of U.P. 2022 Live Law (SC) 137 wherein it is observed and held that the evidence can be divided into three categories broadly namely (i) wholly reliable
(ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it makes the Court to believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require 6 corroboration, and in such a case, court can also take note of the contradictions available in other matters.
In the present case, learned counsel for the applicant submits that from the entire evidence, as collected by the Investigating Officer, admittedly complainant - victim cooked up a new story with regard to commission of rape when her statement was recorded under Section 161 Cr.P.C. followed by the statement recorded under Section 164 Cr.P.C. though after investigation nothing was found and that is the reason no charge- sheet for the offence under Section 376, 294, 506 IPC has been filed. This aspect clearly reveals that this appears to be a case of malicious prosecution and further reveals that the applicant has been implicated with ulterior purposes and motive. So far as offence punishable under Section 354A (iii) and (iv) is concerned in which charge-sheet has been filed against the present applicant, he submits that even from the evidence available, no such offence is made out against the applicant.
11. To examine this argument, it is pertinent to mention here that Section 354-A of the Act, 1989 has been inserted with effect from 03.02.2013 which provides that any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of the sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine or with both.
12. Learned counsel for the applicant submits that admittedly, there is no physical contact of the applicant with the victim, therefore, no offence is made out against the applicant under Section 376 IPC and furthermore, since there is no physical contact or demand or request for sexual favour, therefore, no offence under Section 354-A (iii) and (iv) are made out against the 7 applicant. At this juncture, Section 354A is being reproduced as under:
"354A Sexual harassment and punishment for sexual harassment -
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favours; or
(iii) Showing pornography against the will of a woman;
or
(iv) Making sexually coloured remarks."
13. Admittedly, the Investigating Officer has not collected any evidence and has filed charge-sheet based on the CDR details by drawing conclusion that both the applicant and victim were talking regularly on phone during night for long hours and doing long chats but this is not sufficient to constitute the offence punishable under Section 354 A (iii) and (iv) IPC. Mobile handsets of the applicant were sent to CFSL, Chandigarh for forensic examination and as per CFSL report, which is a scientific evidence, neither any pornographic video nor any adultress message were found on the mobile handsets of the applicant, therefore, on the basis of CFSL report itself no offence is made out against the applicant under Section 354A (iii) and (iv) IPC. Since charge-sheet has been filed based on the CDR details of applicant and respondent no. 3 wherein only this much was found that both the applicant and victim were talking regularly on mobile phone during night for long hours and doing long chats, which appears to be consensual. Learned counsel for the applicant submits that without any evidence charge-sheet has been filed by the Investigating Officer in a very casual manner despite the fact that CFSL report, which a scientific piece of evidence, is not supporting the prosecution case. He has placed reliance on the judgment rendered by Hon'ble Supreme Court in the case of 8 State of Haryana Vs. Bhajan Lal and others (1992) SCC (Crl.)
426. In this case, the Hon'ble Supreme Court provided a precise, clearly defined set of inflexible guidelines laying down instances where such and inherent power could be exercised. The extract of the judgment is being reproduced here as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.9
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
14. Learned counsel for the applicant has also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Vineet Kumar Vs. State of U.P. and others (2017) 4 SCC 633 and referred paragraph 25 and 41. In this judgment the Hon'ble Supreme Court has held that inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.
1015. Placing reliance on said judgment, learned counsel for the applicant submits that present case falls under the category (5), since the allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant. He further submits that this case also falls in the category (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive, which is evident from the fact that she cooked up a new story in her statement recorded under Section 161 and 164 Cr.P.C. though nothing was found to be true as per the charge-sheet itself.
16. I have carefully perused the statement of complainant - victim recorded under Section 164 Cr.P.C, contents of the FIR and the charge-sheet submitted by Investigating Officer. The issue that needs to be determined by this Court is whether the aforementioned material prima facie establishes that the offence under Section 354 A (iii) and (iv), IPC is made out against the applicant or not.
17. It is pertinent to mention that initially, the complainant - victim, as per the FIR, did not make any allegation regarding rape or the existence of video recordings or blackmailing attempt but subsequently, during her statement under Section 161 CrPC followed by the statement recorded under Section 164 Cr.P.C., the victim alleged that she had been raped by the accused on 10.03.2018 at his residence. However, upon investigation, it was found that the applicant was not present in Dehradun during the aforementioned date, therefore the Investigation officer submitted the charge-sheet only under Section 354 (A) (iii) and
(iv) and no chargesheet was filed for the offence punishable 11 under Section 376, 294, 506 IPC since nothing was found against the applicant. In the charge-sheet, the Investigating Officer has submitted that complainant - victim has shown the obscene message sent by the applicant on her Whatsapp and audio clips but in her statement recorded under Section 164 Cr.P.C., she nowhere stated that the applicant has shown her any pornography video or made any sexual coloured remarks. Even, during the course of the investigation, mobile phones of the applicant were sent to the CFSL, Chandigarh but no such video was retrieved from his mobile handsets or even from Whatsapp messages.
18. Furthermore, the CDR details between complainant - victim and the applicant indicates extensive conversations, hinting at the possibility of a consensual relationship between them. However, it is pivotal to underscore that the mere presence of conversations does not automatically imply guilt or validate the accusations of sexual harassment under Section 354A (iii) and (iv) IPC.
19. Upon closer examination, it is prima facie evident that the fundamental elements of Section 354 (A) (iii) and (iv) were conspicuously absent. There was a notable lack of substantiating evidence regarding sexually colored remarks or retrieved videos from the applicant's phones containing alleged pornographic material sent to the victim.
20. In a recent judgment, the Hon'ble Apex court in Ajeet Singh Versus State of Uttar Pradesh and Others 2024 SCC OnLine SC 11 has held, that a case where the allegations made were such that on the basis of the statements, no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused, the case would be fit case for quashing the F.I.R.
1221. The Delhi High Court in the case of Karunakar Patra v. State (NCT of Delhi), (2022) 1 HCC (Del) 314 while dealing with one such matter of section 354-A IPC the Delhi High Court has held that fake and frivolous cases of section 354-A IPC cause doubt on veracity of other genuine victims of the offence causing alarming situation in society and thus, it should be avoided. The relevant paragraph is reproduced herein under:
"15. This Court expresses its anguish at how provisions such as Sections 354-A, 506 IPC are falsely invoked at the drop of a hat to register one's displeasure at the conduct of another individual. This merely trivialises the offence of sexual harassment and casts a doubt on the veracity of the allegations filed by every other victim who has in reality faced sexual harassment, thereby setting back the cause of women empowerment."
22. In light of the aforementioned observations, it appears that that there are significant disparities in the allegations made by the victim in the FIR and statements made by her under Section 161 and 164 Cr.P.C.. These disparities create doubt on the genuineness of the case. Different allegations were levelled by the victim at different stages and in every stage, she tries to make out and improve her case. The allegations made by the complainant victim do not make out a prima facie case, therefore, present C- 482 application is allowed. Entire proceedings of Case Crime No. 08 of 2019 (State Vs. Sanjay Kumar) pending in the court of Chief Judicial Magistrate, Dehradun whereby applicant has been summoned to face the trial for the offence punishable under Section 354-A (iii) and (iv) IPC are quashed.
(Rakesh Thapliyal, J.) 05.04.2024 13 SKS