Delhi District Court
State vs . Anil Gupta Etc. on 31 October, 2013
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE 01 (NORTHWEST):
ROHINI COURTS: DELHI
State Vs. Anil Gupta Etc.
FIR No. 540/09
PS Jahangir Puri
31.10.2013
ORDER ON THE POINT OF CHARGE 1 Vide this order, I shall dispose of an application u/s. 227 CrPC filed on behalf of accused Naresh Gupta and Anil Gupta praying that they be discharged in the present case. 2 Brief facts necessary for adjudication of the application are that on 06.10.2009 complainant Ansaro Khatoon went to PS Jahangir Puri and filed a complaint regarding missing of her daughter i.e. the prosecutrix. She stated in her complaint that prosecutrix, who was aged about 16 years, used to go for work in a Kothi at Ashok Vihar, and that on 18.09.2009 also she had gone for her work to said place at about 11:00 AM but did not return back home thereafter. She expressed her suspicion that one Niranjan, who was working as servant in the said Kothi and Sumit, his friend, had kidnapped her daughter. On basis of this complaint, case FIR No.540/09 was registered at PS Jahangir Puri u/s.363 IPC against accused Niranjan and Sumit.
3 It appears from the perusal of the charge sheet that the investigations of the S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 1 of 20 present case were initially marked to SI Shri Bhagwan, however, on 02.02.2010, the investigations of the present case were assigned to HC Dalip. As per case of the prosecution, the prosecutrix was recovered on 03.07.2010 from Chaku Basti, Surya Nagar, Line Park, Muradabad, UP.
4 The first statement of the victim / prosecutrix was recorded on 03.07.2010, u/s. 161 CrPC by IO HC Dalip. In the said statement, she stated that she was doing work of looking after six months old child of Sh. Ashok at Kothi No.C1/23, PhaseII, Ashok Vihar, Delhi, and that on 18.09.2009, she had gone to said Kothi for work at about 12:30 Noon. On that day, Naresh, brother of Sh. Ashok, asked prosecutrix to accompany him to market on pretext of shopping, where she was made to smell or eat something by Naresh, owner of the Kothi. When she regained consciousness, found herself with Naresh, Niranjan Sardar and Santosh, who was servant in adjacent kothi, and said three persons committed wrong act with her. When prosecutrix resisted, Naresh threatened to kill her. Thereafter Niranjan and Santosh handed her over to one Anil Gupta, who kept her with him in Delhi for 2 / 3 days and thereafter he took her forcibly to Muradabad where he kept her in a vacant house. She alleged that Anil Gupta had promised to take her back to her parents but he did not do so and on 03.07.2010 while she was going to Mother Dairy Booth at Muradabad to bring milk, at about 9:00 AM, her mother found her. She stated that she wanted to stay with her mother. She prayed that action be taken against Naresh, Niranjan Sardar, Santosh and Anil Gupta. 5 On 03.07.2010 itself the prosecutrix was got medically examined and her MLC was prepared wherein the concerned doctor recorded brief history of the case, as told to her by patient, wherein she recorded that patient was giving history of abduction and sexual assault and that about 8 /9 months back she had been working as baby care taker at house S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 2 of 20 of Naresh at Ashok Vihar and that she used to move along with his family and that on one day, she went alone with Naresh, as usual for shopping and that on that day, they took a light lunch in the evening after which she became unconscious and found herself in a room with Niranjan, Naresh's servant and Santosh, who was servant at nearby house. Niranjan and Santosh handed over prosecutrix to Anil Gupta of Muradabad and she lived with him as husband and wife and never contacted her guardian or told them about these incidents. 6 The statement of prosecutrix u/s.164 CrPC was recorded on 04.07.2010. In the said statement, prosecutrix reiterated that she was employed in a Kothi at Ashok Vihar where three brothers Ashok, Suresh and Naresh stayed together and that one Niranjan was employed there as their domestic servant and one Santosh was employed in adjoining Kothi. She further stated that she used to accompany her employers and others to market and functions, etc. and that on that day, Naresh took her for shopping to market and thereafter on the same day he took her to a room where Naresh, Santosh and Niranjan committed wrong act with her against her wishes and also threatened to kill her in case she told about the incident to anyone. She also stated that these three persons kept her in Delhi for 2 days and thereafter handed her over to Anil Gupta, who assured her that he would take her to her parents, however, he took her to Muradabad where he kept her in a rented room. She claimed that Anil Gupta had not committed any wrong act with her. 7 On 06.08.2010, accused Anil Gupta was arrested, pursuant to secret information, in presence of prosecutrix and complainant Smt. Ansaro Khatoon. Supplementary statement of prosecutrix as well as Smt. Ansaro Khatoon were also recorded on 06.08.2010 by the then IO HC Dalip. In her supplementary statement, the prosecutrix stated that Anil Gupta had taken her from Naresh Gupta, his servant Niranjan Sardar and S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 3 of 20 another servant Santosh @ Rahul @ Sumit, kidnapped her and taken her to Muradabad where he kept her in a rented house and sexually abused her. He also threatened that in case she disclosed about the incident to anyone, then he would kill her and her family and would also display her obscene photographs, which had been taken by him, in the neighbourhood. She clarified that due to said threats, she could not disclose about the acts of Anil Gupta in her statement dated 04.07.2010.
8 On 16.08.2010 investigations of the present case were assigned to SI Vinita. The accused Sumit @ Santosh @ Rahul was arrested on 23.08.2010 and again supplementary statement of prosecutrix as well as Smt. Ansaro Khatoon were recorded qua the arrest of accused Sumit @ Santosh. In her supplementary statement dated 23.08.2010, prosecutrix stated that accused Santosh @ Rahul @ Sumit was the same boy, who had raped her along with Niranjan and Naresh and had threatened to kill her and thereafter handed her over to Anil Gupta.
9 Accused Naresh Gupta was formally arrested in the case as he had obtained anticipatory bail on 28.10.2010. Accused Niranjan could not be apprehended and PO proceedings were initiated against him.
10 On 03.11.2010, charge sheet in the present case was filed before the Court of learned MM. Thereafter accused Anil Gupta filed an application u/s.173 (8) CrPC before learned MM, wherein he prayed that appropriate directions for further investigation of the case be issued. In the said application, he took defence that prosecutrix had married him of her own will and accord as per Hindu rites and ceremonies at a temple at Village Shakurpur, Delhi, on 03.10.2009. He filed photographs of the alleged marriage. He also claimed that S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 4 of 20 prosecutrix had been given cell phone bearing No. 09319739625 by him and that she used to make regular calls from the said phone on the mobile phone of her mother bearing No. 09711415130 and that prosecutrix also gave call to her mother from his mobile phone bearing No. 08899608074. He also mentioned that during her stay at Muradabad, prosecutrix was living happily with him and that she had attended engagement ceremony of his relative Ms. Pinki and filed photographs of the said ceremony to show that prosecutrix had participated therein without any discomfort. He then stated that on 27.06.2010 prosecutrix had expressed her desire to meet her mother and accordingly, Uma Shankar @ Rahul, brother of accused Anil Gupta, came to drop prosecutrix at her parental home on 29.06.2010 and stayed back there, however, during her stay she was pressurized and tutored by her family to leave the accused and that in order to get rid of the accused, family members of prosecutrix hatched a conspiracy against accused Anil Gupta. He claimed that prosecutrix had been in regular touch with him even during her stay at her parental house and that on her request, he had gone to Jahangir Puri on 03.08.2010 and had been illegally detained by police officials of PS Jahangir Puri, who showed his date of arrest in record as 06.08.2010. The accused also mentioned about mobile phone No.07669607672 belonging to his brother Uma Shankar @ Rahul and mobile phone No.09818570405 belonging to his friend Raj Kumar Maurya and stated that the prosecutrix had been regularly calling on these two phone numbers and asking accused to send his family members to convince her family members to let her live with accused.
11 Subsequently on 22.01.2011, an additional application giving 18 points on which reinvestigation was desired was filed by accused Anil Gupta before learned MM. The application filed by accused Anil Gupta was allowed by learned MM Sh. V.K. Jha vide order dated 22.01.2011 and he directed IO to carry out further investigations touching on the issue S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 5 of 20 referred separately on behalf of the accused. He relied upon judgment in case of Rajnish Kumar Singhal Vs. State, 2001, Cri. L. J. 1192, for issuing these directions. 12 In the meantime, accused Naresh Gupta also moved an application before the Commissioner of Police alleging that he had been falsely implicated in the case by HC Dalip and Inspr. S.B. Yadav, then SHO of PS Jahangir Puri, as he had failed to meet desired demand of graft. He referred to various notices u/s.160 CrPC served upon him by the IO and pointed out that he had joined investigations as and when directed by the IO despite which his house had been raided on 16.07.2010 on which date a deal was arrived at between HC Dalip and Sh. Rattan Lal (cobrother of accused Naresh) to pay a settled sum of money to have name of accused Naresh cleared from the case. He claimed that it was pursuant to this deal that prosecutrix and her mother filed DD No.43B dated 22.07.2010 before SHO Jahangir Puri, wherein they specifically mentioned about the false implication of accused Naresh Gupta. He also referred to an application filed by the prosecutrix and her mother before learned MM for getting another statement, u/s.164 CrPC, of prosecutrix recorded, wherein she (prosecutrix) referred to Sh. Naresh Gupta, as a father figure. 13 It is seen from the record that nothing came out of DD No.43B dated 22.07.2010 while the application filed by the prosecutrix for getting another statement recorded u/s.164 CrPC was dismissed by learned MM vide order dated 29.07.2010. The complaint filed by accused Naresh Gupta was, however, considered by the Commissioner of Police. In his order dated 17.02.2011, the Commissioner of Police referred to the application filed by counsel for accused Anil Gupta and transferred the investigations of the case to Crime Branch with directions to not only investigate the matter in respect of the points mentioned in the said application but also to fix responsibility of the concerned police officials. In these S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 6 of 20 circumstances, the reinvestigations of the case in terms of order dated 22.01.2011, passed by learned MM, and 17.02.2011, passed by the Commissioner of Police, were done partly by SI Vinita Prasad of PS Jahangir Puri and partly by Inspr. Arti Sharma of Crime Branch. 14 In the meantime, it appears that matter was committed to the sessions Court. Vide order dated 22.09.2011, the learned Predecessor returned back the charge sheet to the Court of learned MM observing that committal had been done prematurely by learned MM and that outcome of order dated 22.01.2011 ought to have been awaited for. The matter was again put up before the Court of learned MM.
15 Before supplementary charge sheet could be filed, accused Naresh Gupta filed an application for conducting Narco Analysis / polygraph test on himself i.e. accused Naresh Gupta, prosecutrix and her mother Smt. Ansaro Khatoon. The application was dismissed by learned MM vide order dated 13.02.2012. In the meantime, supplementary charge sheet was also filed and matter was once against committed to the Sessions Court. 16 It is worthwhile to mention that a Vigilance inquiry was also conducted against HC Dalip and Inspr. S.B. Yadav, pursuant to which FIR No.100/11 u/s.7 / 13 PC Act and u/s. 384/201/120B IPC was registered against both of the said police officials. The anticipatory bail applications filed by them were dismissed by learned Special Judge vide order dated 21.05.2011 and by Hon'ble High Court of Delhi vide order dated 01.09.2011 and they both were arrested in the case registered against them. They were granted regular bail by learned Sessions Judge vide order dated 28.04.2012.
17 Detailed oral submissions have been made by Sh. Pradeep Rana, learned S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 7 of 20 counsel for accused persons. He has also filed brief synopsis / written submissions and judgments in support of his prayer for discharge of accused person Naresh Gupta and Anil Gupta.
18 On the other hand, learned Additional PP as well as Sh. R.S. Goswami, counsel for complainant have also addressed arguments at length and filed reply / written submissions and judgments in support of prayer that application filed by the accused persons be dismissed and charges be framed against them.
19 The accused persons also filed additional pleas in support of their plea for discharge.
20 I have heard rival contentions raised before me and also perused the record as well as judgments filed before me carefully.
21 It is settled legal position that while considering an application for discharge, the allegations made in the first information report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. The Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 8 of 20 examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.
22 The legal position and approach to be adopted by the Court at the stage of framing of charges or directing discharge was summed up by the Hon'ble Apex Court in case of Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, as under:
"10 Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 9 of 20 discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth piece 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 basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
23 In Niranjan Singh Karam Singh Punjabi etc. Vs. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228 CrPC, the Hon'ble Supreme Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? It was held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.
24 Further in case of State of Maharashtra and Ors. v. Som Nath Thapa and Ors. , 1996, Cri.LJ 2448, it has been held as under: "if on the basis of materials on record, a court could come to the S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 10 of 20 conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
25 In case of State of M.P. v. Mohanlal Soni, MANU/SC/0434/2000 : 2000 Cri.LJ 3504, it has been further observed that, "The crystallized judicial view is that 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 is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
26 Similar view has been taken in case of State of M.P. Vs. SB Johri and Others, decided by Hon'ble Supreme Court on 17.01.2000.
27 In case of Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr., (2008) 2 SCC 561, it was held that, "It is trite that at the stage of framing of charge the court is required S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 11 of 20 to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
28 Far from readily encouraging discharge, the Hon'ble Supreme Court in case of Smt. Rumi Dhar v. State of West Bengal and Anr., (2009) 6 SCC 364, held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed that, "While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law...."
S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 12 of 20 29 The Apex Court in Palwinder Singh vs. Balwinder Singh and others (2009) 2 SCC 850, further held that the jurisdiction of the learned Sessions Judge while exercising power under Section 227 Cr.P.C. is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time.
30 Similar view have been taken by Hon'ble Supreme Court in case of Sajjan Kumar Vs. CBI, decided on 20.09.2010.
31 This being the settled position of law, the facts of the present case are to be looked into to ascertain whether the accused persons namely Naresh Gupta, Niranjan Sardar (since PO), Santosh and Anil Gupta are entitled to be discharged or not. 32 As far as accused Sumit @ Santosh @ Rahul and Niranjan Sardar (since PO) are concerned, the statements of prosecutrix referred to in the foregoing paragraphs clearly gives rise to a strong suspicion and their prima facie involvement in the offences alleged against them. As far as accused Naresh Gupta and Anil Gupta are concerned, they both have relied heavily on the contents of the supplementary charge sheet filed by the Crime Branch. It has been contended that the investigations conducted by the Crime Branch demolish the previous report u/s.173 CrPC filed by the then SHO PS Jahangir Puri. 33 Perusal of the supplementary charge sheet filed by the Crime Branch shows that the IO has proceeded on presumption that the information supplied to her by the accused Anil Gupta that the mobile phone No. 9319739625 was in use of prosecutrix and that mobile phone No. 9711415130 belonged to mother of the prosecutrix was correct. From the S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 13 of 20 supplementary charge sheet itself, it is brought out that the mobile phone No.9319739625 had sim card issued in the name of one Om Prakash, 92/11, Moh. Dhaka, Muradabad, UP. The IO was told by Uma Shankar, brother of accused Anil Gupta, that he had taken this phone number from his friend in Muradabad but said friend was never produced by him before the IO. On the other hand, accused Anil Gupta himself produced one sim card No. RECRSC 032044784 which was issued to mobile phone No.09319739625 purportedly in use by the prosecutrix. The IO did not examine the prosecutrix regarding alleged use of mobile phone No. 09319739625. Similarly though mobile phone No.9711415130 is stated to be used by Smt. Ansaro Khatoon, perusal of the supplementary charge sheet shows that the sim card of the said mobile phone was in the name of one Kheru Nisha. The number was issued by Vodafone company and the CAF (Customer Application Form) obtained by the IO also found mentioned of details of someone else. The only connection IO could draw was that the CAF Form had photograph of complainant Smt. Ansaro Khatoon but again there is no statement of complainant recorded by the IO in this regard and IO has just mentioned that the complainant was non cooperative on the issue.
34 In these circumstances at this stage Court cannot draw any conclusion from the supplementary charge sheet filed by the IO that mobile phone No. 09319739625 was being used by prosecutrix or if the mobile phone No.9711415130 was in use by the mother of the prosecutrix. Thus the aspect of connectivity and / or exchange of calls between the said two numbers and the other mobile phone numbers belonging to accused Anil Gupta, his brother Uma Shankar, Sh. Raj Kumar (friend of Anil Gupta), HC Dalip and Rattan Lal (cobrother of accused Naresh Gupta) would require ocular evidence of the prosecutrix as well as her mother for the Court to draw specific conclusion in this regard. Similarly the transcripts of conversations purported to have taken place between complainant and Sh. Rattan Lal (co S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 14 of 20 brother of accused Naresh Gupta) and prosecutrix and Sh. Uma Shankar and Raj Kumar (brother and friend respectively of accused Anil Gupta) cannot be taken to be absolutely correct at this stage without necessary evidence.
35 Coming to the discrepancies in the statements made by the prosecutrix, which is the point No.13 of reference for further investigation, it is seen that the IO Inspr. Arti Sharma had no occasion to interact with the prosecutrix while reinvestigating the case as she has clearly mentioned in the supplementary charge sheet itself. In the supplementary charge sheet, IO has stated that prosecutrix was brought to her office only on 29.09.2011 by her mother and advocate and her written statement was handed over to her which she reproduced in writing u/s.161 CrPC. If that said statement is taken to be correct response of point No.13 contained in the reference, then none of the four accused including accused Anil Gupta and Naresh Gupta can be discharged. Rather all the discrepancies made by the prosecutrix in her earlier statements, those under Section 161 CrPC, u/s.164 CrPC and history mentioned on MLC, stand explained. The reason why prosecutrix had filed an application before learned MM for recording of a second statement u/s.164 CrPC and a complaint which was given DD No.43 B dated 22.07.2010 at PS Jahangir Puri, also stand explained and point out to specific role of Sh. Rattan Lal, cobrother of accused Naresh Gupta, in filing the same.
36 Moreover, the statement (s) dated 27.10.2010 of one Sudhir Kumar and Roopwati which were recorded by SI Balkar, against whom there is no allegation of mala fide, are also a pointer towards involvement of accused Anil Gupta in the crime. In her statement u/s.161 CrPC, Smt. Roopwati, landlady of the premises where prosecutrix and accused Anil Gupta were staying at Muradabad, reflects that the prosecutrix was under constant fear and S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 15 of 20 threat. Moreover the supplementary charge sheet filed by Inspr. Arti Sharma also shows that accused Anil Gupta was present in Delhi from 10.09.2009 to 23.09.2009, the period when prosecutrix went missing from her house (the prosecutrix was reported to have been missing from her house since 18.09.2009 and was purportedly handed over to accused Anil Gupta, in Delhi, by accused Niranjan Sardar and accused Sumit @ Santosh @ Rahul within 2 /3 days thereafter). The contradictions in the statements of the neighbourers recorded by SI Vinita Prasad and Inspr. Arti Sharma on one hand and SI Balkar and HC Dalip on the other would also require evidence. Further the statement of Ct. Pankaj u/s.161 CrPC, recorded by SI Vinita Prasad on 12.02.2011, which shows that the temple where accused Anil Gupta claims to have solemnized marriage with prosecutrix was not being used to perform marriages also contradicts claim of accused Anil Gupta. Consequently the claimed marital status between the prosecutrix and accused Anil Gupta and the reason why she was required to live under a pseudo name instead of her actual name also requires occular evidence of prosecutrix. At the present stage of framing of the charge from the entire material placed on record, it is not possible to draw a conclusion that no case for framing of the charge is made out against any of the accused persons including accused Naresh Gupta and Anil Gupta. Even otherwise as already observed herein above the entire reinvestigation was focused on material filed by the accused or procured by the IO upon information given by the accused persons. 37 The Hon'ble Apex Court in case of State of Orissa Vs. Debendra Nath Pandhi, 2003 II AD (SC) 309, had occasion to consider whether the trial Court can at the time of framing of charges consider material filed by the accused and answered the said question in negative by observing that, "We are unable to accept the aforesaid contention. The reliance on S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 16 of 20 Articles 14 and 21 is misplaced...Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is wellsettled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned Counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention out forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police...
As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material..."
38 Learned counsel for accused Naresh Gupta has contended that he is an innocent person and that the Vigilance inquiry report clearly brings out the manner in which he has been falsely implicated in the case by a couple of police officials who are in hand and S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 17 of 20 glove with the complainant and the prosecutrix and that he would suffer undue hardship by prolonged trial. As already observed herein prima facie case is made out against accused Naresh Gupta from the material placed on record by the prosecution with its charge sheet and supplementary charge sheet. The aspect whether the allegations made by accused Naresh Gupta against HC Dalip and Inspr. S.B. Yadav are correct or not are already subject matter of case FIR No.100/11 which is registered against them and they would face outcome thereof as and when the said matter is decided. However, registration of case FIR No.100/11 by itself does not give rise to inference that the present case is liable to be thrown out at initial stage itself without giving prosecution an opportunity to prove its case by leading necessary evidence. In case of Sheoraj Singh Ahlawat & Others Vs. State of UP and Another, 2013 Cri.L.J. 331, it has been held that, "Whether or not those allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. This may at times put an innocent party, falsely accused of commission of an offence to avoidable harassment but so long as the legal requirement and the settled principles do not permit a discharge the Court would find it difficult to do much, conceding that legal process at times is abused by unscrupulous litigants especially in matrimonial cases where the tendency has been to involve as many members of the family of the opposite party as possible.
While such tendency needs to be curbed, the Court will not be able to speculate whether the allegations made against the accused are true or false at the preliminary stage to be able to direct a discharge."
S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 18 of 20 39 The learned counsel for accused has relied upon judgment in case of Prashant Bharti Vs. State of NCT of Delhi, decided on 23.01.2013, MANU/SC/0063/2013, to contend that the digital evidence which has come on record by way of supplementary charge sheet coupled with the discrepancies in the statement of prosecutrix entitled the accused for discharge. However, the said judgment is not applicable in the facts of the present case as in the cited judgment, the prosecutrix had taken a plea of being sexually abused on the false promise of marriage by the accused whereas the documents placed on record showed that she was legally married to another person on the date of the alleged promise and otherwise also the mobile phone record of accused showed him to be present at another place then the alleged place of incident. Moreover, in the said case the Hon'ble Supreme Court had exercised its power u/s.482 of CrPC which are much wider than the powers vested in the Court of Sessions u/s. 227 and 228 of IPC. The other two cited judgments i.e. Dilawar Balu and Kurane Vs. State of Maharashtra, decided on 08.01.2002, MANU/SC/0005/2002, are also not applicable in the facts and circumstances of the present case. 40 The nutshell of foregoing discussion is that the prima facie charges u/s.372/ 342/ 376 (2)(g)/506 IPC are made out against accused Naresh Gupta, Niranjan Sardar (since PO), Sumit @ Santosh @ Rahul and charge u/s.328 IPC is made out against accused Naresh Gupta and charges u/s. 363/366/376/506 IPC are made out against accused Anil Gupta.
41 Application u/s. 227 CrPC filed on behalf of accused Naresh Gupta and Anil Gupta is dismissed accordingly and plea of accused Sumit @ Santosh @ Rahul for being discharged of alleged offence is also declined.
S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 19 of 20
Be listed for framing of formal charges on 05.12.2013.
(Announced in the open Court ) (Illa Rawat)
(Today on 31.10.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 20 of 20
S.C. No.24/12 : State vs. Anil Gupta Etc. : Page 21 of 20