Delhi District Court
Sh. Dipanshu vs State (Govt. Of Nct Of Delhi) on 12 December, 2017
Criminal Revision No.268/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 268/2017
Under Section : 354/509 IPC
FIR No. : 389/2014
PS : Pandav Nagar
CNR No. : DLET01-011808-2017
In the matter of :-
SH. DIPANSHU
S/o. Sh. Bhagwati Prashad,
R/o. H.No.C-90D, Janta Garden,
Mayur Vihar, Phase-I, Delhi.
............PETITIONER
VERSUS
STATE (GOVT. OF NCT OF DELHI)
.........RESPONDENT
Date of Institution : 14.10.2017
Date of Receiving : 16.10.2017
Date of reserving order : 23.11.2017
Date of pronouncement : 12.12.2017
Decision : Petition is allowed.
ORDER
1. This revision petition is directed against the order dated 14.07.2017, passed by the trial court in a case titled as State v. Deepanshu Sharma, bearing FIR No.389/2014, under Section 354/509 IPC. Vide impugned order dated 14.07.2017, ld. trial court ordered to frame charges against petitioner herein for offence punishable under Section 354A IPC.
Page 1 of 9 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017 BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that complainant Smt. Bhawna Taneja made a written complaint to police alleging that in response to an ad for theater artist, she met petitioner Dipanshu at Mayur Vihar, Phase-I. After having some talks, complainant told petitioner that she was to leave for Metro Station as her friend was waiting. Petitioner offered to drop her on the way via his room. He took her to his room on the pretext of changing his clothes. In his room, he started changing clothes in presence of the complainant and complainant out of embarrassment started looking in different direction. Thereafter, petitioner asked about the chain of the complainant and complainant gave her locket to the petitioner, in order to see the same and thereafter, same was returned to her. Thereafter, petitioner put his hands on the shoulders of complainant with foul intentions. Complainant pushed him, opened the door of his room and went out to take a rickshaw for Metro Station. Thereafter, she made call to her friend and to police at 100 number.
3. Ld. trial court after hearing both parties decided to frame charges against petitioner for offence under Section 354A IPC. Petitioner was discharged for alleged offence under Section 354 and 509 IPC. GROUNDS : -
4. Being aggrieved of the impugned order dated 14.07.2017, petitioner has preferred this revision petition on the following relevant grounds :-
● That Section 354(A) (1) (I), under which charges have been framed against the petitioner, states about physical contact and advances both. The use of word 'and' requires that there should Page 2 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017 be a physical contact with sexual advances/ overtures. Therefore, the provision is applicable in a situation where the accused does not stop after committing a single isolated act of criminal force but rather goes on to commit several other similar acts which end up converting his actions into advances of a sexual overture. However, the said ingredients are completely missing in the present case. Even if the entire allegations on record is accepted as true, then also it does not satisfy the ingredients of Section 354A of IPC as there is no allegation of physical contact and advances which involved use of criminal force or any unwelcome and explicit sexual overtures.
● That complainant was certainly not harassed. As per Black's Law Dictionary 'harassment' is defined as words, conduct or action (usually repeated or persistent) that being directed at a specific person annoys, alarms or causes substantial emotional distress in the person and serves no legitimate purpose. Thus, harassment is repeated conduct that is not wanted and is known to all parties as offensive. However, the complaints in the present case do not speak of any repeated action hurled upon her and without prejudice the present incident was a solitary incident with no repetition at all.
● That the allegations made in FIR and complaint are so absurd, on the basis of which no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the petitioner. The veracity of the complaint filed by complainant to the police or DCW was not investigated upon by the IO. The contradictions in the information provided to the DCW and in the complaint filed Page 3 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017 with SHO, have not been notified by IO. It would be pertinent to mention that sole basis of prosecution against petitioner was testimony and statements of complainant and in such cases, the court and police should have strictly verified the testimony of the complainant. There is inconsistency in various statements of complainant, which have not been noted by the Magistrate before framing the charges against the petitioner. High Court of Delhi in case of Shankar v. State (N.C.T) of Delhi, 2010 SCC OnLine Del 2310, held that "if the conviction is based solely on testimony, it needs to be strictly verified if the testimony is truthful." ● That the relevant material like letters from neighbours, call records and audio recording of threat call were also not brought on record for perusal of court and vital information was withheld. The material evidence has clearly been ignored by ld. MM. In Shakuntala v. State of Delhi, 2007 SCC OnLine Del 204, High Court of Delhi held that "the trial court, even at the time of framing charges, must consider the entire evidence collected by IO or deliberately left out by the IO."
● That the case of prosecution is prima facie, fabricated and concocted, which has no natural flow. Even as per the concocted version of the complainant she had several instances to leave the company of petitioner, she still chose not to. In fact, there was no need for the complainant to accompany petitioner, who she had met for the first time, to his house to change clothes. The story of complainant is highly improbable for anyone. No natural inference can be drawn from the complaint and there is no existence of any connecting factor/link.Page 4 of 9 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017 ● That the case of prosecution is completely silent regarding motive/ reason for the petitioner's alleged behaviour. ● That petitioner should not be made to face trial on the hope and expectation that some material may be found to implicate accused. The criminal trial should be based on definite allegations, prima facie establishing commission of an offence by petitioner, which fact has to be proved by leading unimpeachable and acceptable evidence. (ref. Satish Mehra v. State of NCT of Delhi & Anr.) ● That at the stage of framing of charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the petitioner. It cannot be expected to accept all that the prosecution states as gospel truth, even if it is opposed to common sense or the broad probabilities. While there is no ground to proceed in the case, ld. MM has wrongly and erroneously framed charge under Section 354A IPC against petitioner. It was held in UOI v. Prafulla Kumar, AIR 1979 SC 366 (1) that "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."
● That petitioner cooperated in the investigation, in fact facilitated the investigation at each step by submitting his cell phones, SIM card, call records and stating the true facts of the incident and the reason behind the false and frivolous case.
Page 5 of 9 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017 APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
5. Ld. counsel for petitioner made extensive arguments with help of certain case laws, which are as follows :-
● Anup Kumar Srivastava v. State, 2013 SCC OnLine Del 4670. ● Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC
135.
● Ashok Kumar Nayyar v. State, 2007 (6) AD (Delhi). ● Shankar v. State (N.C.T.) of Delhi, 2010(5) ILR (Del) 635. ● Shanta Kumar v. Council of Scientific & Industrial Research, 2017 SCC OnLine Del 11327.
● Shakuntala v. State of Delhi, 2007 (139) DLT 178. ● Union of India v. Prafulla Kumar Samal & Anr., (1979) 3 SCC 4.
6. The crux of his arguments was that merely touching without explicit sexual overtures does not amount to commit offence under Section 354A IPC. Evidence on the record does not show any sexual overture on the part of petitioner. Even petitioner had given complaint to the police and neighbour of petitioner had also given her statement/application to the police/IO, but same were not formed part of chargesheet. The complaint made by petitioner and statement/ application given by Smt. Rani Devi and Mr. Vinod Kumar Sharma should have been considered before framing of charge and these documents, though collected during investigation, but not relied upon by IO show that petitioner was falsely implicated in this case. Even conduct of complainant was not probable because she had at least six occasions to get out of given situation, but she did not do so.
Page 6 of 9 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017
7. Ld. Addl. PP for State submitted that at this stage, court cannot preview the allegations made by complainant and the allegations do make out a case of offence under Section 354A IPC.
8. The allegations made in the initial complaint were reiterated by the complainant in her statement under Section 164 Cr.P.C. She explained in her statement under Section 164 Cr.P.C that petitioner had asked her that what was she wearing around her neck and when complainant felt that petitioner wanted to touch her, then she stood up and gave her locket to petitioner for his perusal. Thereafter, petitioner again told complainant that there was something on her neck and he started moving towards complainant, but complainant took back steps. Petitioner caught hold of her through her shoulder and then complainant pushed her, opened the room and fled away. The introductory part of her complaint mentioned about her reluctance to accompany the petitioner to his room, but on insistence of petitioner, she went to the room of the petitioner in his car as petitioner had assured to drop her on the way at Akshardham Metro Station.
9. To decide, if the allegations made by complainant make out a case for offence under Section 354A IPC, it is relevant to look into the ingredients of this offence. Section 354A IPC talks about four kind of acts on the part of accused. It is the first act which is relevant for the purpose of this case. This act is explained in following terms "physical contact and advances involving unwelcome and explicit sexual overtures." The aforesaid language of the required act makes it clear that physical contact has to be coupled with advances involving unwelcome and explicit sexual overtures.
Page 7 of 9 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017
10.In the present case, the alleged physical contact is in the form of putting hands on the shoulder of complainant/holding complainant through her shoulder (as per 164 statement). The rest of the allegations are that complainant had felt awkward when petitioner was changing his cloth in her presence and complainant felt that petitioner was having some foul intentions to touch her. However, it has to be seen that complainant has not alleged that she asked petitioner to keep away from her and not to try to make any kind of physical contact. The statement of complainant only shows that she had been tolerating petitioner's act though she was not liking it.
11.The term 'explicit sexual overture' is very important for the purpose of offence under Section 354A IPC. Some act of the accused, which is not explicit with sexual overture, but is assumed to be done with foul intentions by the complainant, cannot be covered under Section 354A IPC. The act of accused has to be explicit rather than implied. It would be a different thing to say that complainant did not like act of the accused or that she was not comfortable with the alleged act of the accused/ petitioner. However, to make out a case under 354A IPC, prosecution has to show that the act of accused was embedded with explicit sexual overtures. Every kind of physical contact cannot be covered under Section 354A IPC. Had it been the case that petitioner tried to touch or hold the complainant despite explicit forbiddance on the part of complainant, then there could have been some ground to assume that the alleged physical contact with complainant in the form of putting hands over her shoulder, was embedded with some sexual intentions. However, it is not the case herein.
Page 8 of 9 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.268/2017
12.In these circumstances, I do find that the allegations made by complainant fail to stand the test of satisfaction of ingredients for offence under Section 354A IPC. For such reasons only, I find that impugned order is not sustainable as no charge against petitioner for offence under Section 354A IPC can be framed.
13.In view of my aforesaid finding, there is no occasion to look into the other aspects as argued by ld. counsel for petitioner. Present criminal revision petition is allowed and impugned order dated 14.07.2014 is set aside. Petitioner is discharged for offence under Section 354A IPC as well.
14.Petitioner is directed to furnish bond under Section 437A Cr.P.C in the sum of Rs.25,000/- with one surety in the like amount before the trial court, as per satisfaction of the trial court. He is directed to appear before the trial court on 16.12.2017.
15.TCR be sent back along with copy of order to the trial court. File be consigned to record room as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3,
Karkardooma
Courts, Delhi
Date: 2017.12.12
17:16:50 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 12.12.2017 Special Judge (PC Act) CBI, East
(This order contains 9 pages) Karkardooma Courts, Delhi
Page 9 of 9 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi