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Vijay Shankar vs State Of Nct Of Delhi on 13 February, 2020

Criminal Revision No. 328/2018                                         D.O.D.: 13.02.2020



 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE­03 & SPECIAL JUDGE (COMPANIES ACT) : SOUTH­WEST
         DISTRICT, DWARKA COURTS: NEW DELHI

Registration No. CR/328/2018
CNR No. DLSW01­014906­2018

Vijay Shankar,
S/o Sh. Sita Ram,
R/o B­98, Vikas Nagar,
Ranhola, New Delhi.
                                                       .....Petitioner/Revisionist
                                       Versus
1.        State of NCT of Delhi.

2.        Kamlesh,
          W/o Sh. Alam Singh,
          R/o B­16, Gali No.1,
          Ranhola Road, Uttam Nagar,
          New Delhi
                                                                 .....Respondent

Date of Institution              : 08.08.2018
Date on which Order was reserved : 12.02.2020
Date on which Order pronounced : 13.02.2020

O R D E R:

1. Feeling aggrieved from the order dated 04.07.2018 (hereinafter referred to as the impugned order) passed by Ld. MM­03 (Mahila Court), South­West District, Dwarka Courts, Delhi, whereby, the ld. Trial Court has ordered for framing charge for the offences under Section 354/354B/323/509 IPC against the petitioner in State Case arising out of FIR No.216/2015 registered at PS Bindapur, he has invoked the revisional jurisdiction of this Court.

Criminal Revision No. 328/2018 D.O.D.: 13.02.2020

2. Brief facts relevant and necessary for deciding the present revision petition are that FIR no.216/2015 (supra) was registered in respect of offences under Section 354/354B/379/323/509 IPC at PS Bindapur on 09.02.2015 on the complaint of complainant Ms. 'K' (identity withheld), wherein she alleged that on 07.02.2015 at about 10.00 pm near MCD School, DDA Flats, Bindapur, Delhi, while she alongwith her neighbourer Ms. 'S' (identity withheld) were returning back from the house of her relative and reached near MCD School, one car being driven by the petitioner herein, came from behind and stopped near them. The petitioner alighted from the said car and abused her and tapped his hand on her chest and dragged her from her chest, due to which her wearing upper shirt torn off and her wearing gold chain fell down and she sustained injuries. When she raised alarm, he fled away in the same car. After completion of investigation, the petitioner stood chargesheeted for the offences punishable under Section 354/354B/379/323/509 IPC. After hearing arguments on the point of charge, ld. MM discharged the petitioner for offence under Section 379 IPC while observing that there is no allegation that chain was intended to be taken away by the petitioner/accused. However, she formed opinion that there was sufficient material to frame charge in respect of offences under Section 354/354B/323/509 IPC and consequently, directed to frame charge against the petitioner for said offences vide impugned order which is under challenge in the present revision petition.

3. The impugned order is assailed inter alia on the grounds that Trial Court failed to appreciate the plea raised by him that at the time of alleged incident, he was attending marriage at parental house of his wife situated far away from the place of alleged incident and had produced toll receipt of his vehicle before it; Trial Court failed to appreciate that phone call details of Vijay Shankar Vs. State & Anr. Page 2 of 6 Criminal Revision No. 328/2018 D.O.D.: 13.02.2020 petitioner showed his location to be that of U.P. and not of Delhi and petitioner had also filed receipt regarding purchase of fuel i.e. petrol for his vehicle from U.P. and Trial Court also failed to appreciate the fact that civil dispute was already pending between the parties regarding forgery of title deeds of the property of petitioner herein and few other litigation were already going on before different Courts of law.

4. Ld. counsel for the petitioner had argued on the aforesaid lines as are also the grounds of challenge raised in the present revision petition. He pointed out that FIR No.298/2018 under Section 448/468/471/120­B/506 IPC was registered at PS Ranhola against the complainant of present case, on the complaint of wife of present petitioner. He also pointed out that FIR No.93/2015 under Section 451/354/34 IPC was registered at PS Ranhola against present petitioner on the complaint of daughter of complainant of present case. He vehemently argued that present petitioner was out of Delhi on the alleged date, time and place of incident in question and he had produced relevant documents regarding purchase of fuel of his vehicle and receipt regarding payment of toll tax but all those documents were ignored by Trial Court while passing the impugned order. He further argued that FIR in question is counter blast to the previous FIRs got registered against complainant of this case and her husband and therefore, it is a fit case where charge should not have been framed against present petitioner and he ought to have been discharged, it being lodged on the basis of fictitious story and in order to pressurize the petitioner to succumb to their terms and to extort money from him and to grab his property. Ld. counsel, therefore, urged that the impugned order may be set aside while allowing the present revision petition and petitioner may be discharged.

Criminal Revision No. 328/2018 D.O.D.: 13.02.2020

5. On the other hand, ld. Addl. PP on behalf of the State/respondent no.2 and counsel for respondent no.2/complainant had supported the impugned order by arguing that impugned order is justified under the law and is based upon proper appreciation of facts and circumstances available on record and does not call for interference in the exercise of revisional jurisdiction of this Court.

6. Before dealing with the rival submissions made on behalf of both the sides, legal position at the stage of charge is to be noted. Law regarding considerations at the stage of charge is well­settled now. The Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is no more res­integra that when the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be justified in framing the charge. The judge should not make a roving inquiry into the pros and cons of the matter and to weigh the evidence as if he was conducting a trial. If on the basis of materials on record, Court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the Courts were to think that the accused might have committed the offence it can frame a charge, though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge, probative value of the materials on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce, are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Vijay Shankar Vs. State & Anr. Page 4 of 6 Criminal Revision No. 328/2018 D.O.D.: 13.02.2020 Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the Code.

7. Now coming back to the facts of the present case. No doubt, the petitioner took the plea of alibi before ld. MM by claiming that he was not even present in Delhi at the time of alleged incident in question and produced aforesaid two documents regarding purchase of fuel and payment of toll tax but it is well settled law that plea of alibi is in the form of defence which is raised by an accused and same cannot be appreciated or given any kind of credence at the stage of charge. Even otherwise, it cannot be said at this stage that merely because some fuel was purchased and toll tax was paid in respect of any vehicle passing from toll booth while going to U.P., it was the petitioner who was actually travelling in the said vehicle.

8. There are direct and specific allegations, as already noted above, levelled against the petitioner by complainant/prosecutrix, which are sufficient to raise grave suspicion against him for the offences punishable under Section 354/354B/323/509 IPC. Moreover, the said allegations are shown to have been reiterated by complainant even in her statement under Section 164 CrPC recorded by ld. Link MM on 14.05.2015. Further, the prosecution is also relying upon statement under Section 161 CrPC of PW 'S', which also prima facie corroborates the allegations appearing in the FIR.

Criminal Revision No. 328/2018 D.O.D.: 13.02.2020

9. In the case titled as 'Sheoraj Singh Ahlawat & Ors. Vs. State of U.P. & Anr.', (2013) 11 SCC 476, Hon'ble Apex Court has held that the question as to whether the allegations levelled in the complaint or in the statements under Section 161 CrPC are true or not, cannot be decided at the stage of framing of charge and same can only be done at the stage of conclusion of the trial. That being the legal position on the point in issue and considering the facts of the present case on the touchstone of the legal position as laid down by Hon'ble Apex Court as well as by various High Courts, this Court completely agrees with the view taken by ld. Trial Court that prima facie case is made out against petitioner herein for offences punishable under Section 354/354B/323/509 IPC. Consequently, the revision petition sans merit and stands dismissed accordingly. The petitioner is directed to appear before Trial Court/Successor Court on the date already fixed. However, it is hereby made clear that nothing mentioned herein shall tantamount to expression of any opinion on the merits of the case and the Trial Court shall proceed with the matter in accordance with law.

10. TCR be sent back alongwith copy of this order to the Court of Ld. MM/Successor Court, as per rules, for information and necessary compliance.

11. File of revision petition be consigned to Record Room.

                                                   VIDYA            PRAKASH

Announced in open Court today                      PRAKASH          Date: 2020.02.13
                                                                    12:14:56 +0530
on 13.02.2020                                   (Vidya Prakash)
                                     ASJ­3 & Special Judge (Companies Act)
                                        Dwarka Courts (SW)/New Delhi




Vijay Shankar Vs. State & Anr.                                                 Page 6 of 6