Full Text
HIGH COURT OF DELHI
AVIRAL SINGH ..... Petitioner
Through: Mr. Asim Naeem, Mr. Manjoor Ansari, Mr. Pawan Rana and Mr. Aviral Singh, Advs.
Through: Ms. Nandita Rao, ASC for State
Mr. Nipun Katyal, Mr. Asim Naeem and Ms. Cherry Gupta, Advs. for R2
JUDGMENT
1. This petition seeks quashing of FIR No. 491/2021 dated 5th September 2021, P.S. Pandav Nagar, East District Delhi, under sections 354/354B/354D/509 IPC. The FIR was registered on the complaint of Smt. Monika Bhargav, resident of C-12T, Delhi Police Apartments, Mayur Vihar, Phase 1, Delhi. She complained that the petitioner (Aviral Singh Rana) resident of A-11S, Delhi Police Apartments, Mayur Vihar, aged about 20-25 years, has been stalking her since the last some days and has made her life hell. She alleged that he passes filthy remarks on her and whistles at her when she passes by. According to her, he once pulled her ‘chunni’ also and when she opposed, he twisted her arm and pulled her collar and told her that his mother is an advocate who has connections in the police department. She alleged that on 3rd September 2021, in the evening, when she was coming back towards her house, taking advantage of darkness in the stairs, he caught her from the back and outraged her modesty, and then ran away when he saw her motherin-law coming. She stated she was 7 months pregnant at that time. Investigation
2. As per the status report, during investigation, the place of incident was inspected. There was no CCTV camera which covered the place. The sole CCTV camera covered the car parking area of the nearby flats. The alleged incident had taken place on the stairs between 2nd and 3rd floor, beneath flat number C-12T, residence of the complainant. One more CCTV camera installed at the main gate of the complainant's flat on the 3rd floor also did not cover the place of the incident. Besides that, the camera did not have recording feature and was only used as a dooreye. The complainant's statement under section 164 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) was recorded which corroborated her version of the incident. Her husband and the mother-in-law were also examined.
3. The complainant's husband produced a pen-drive containing a video recording dated 4th September 2021 where the petitioner and his mother are seen shouting and banging on the complainant's door, but it had no relevance with the allegations in the FIR. No CCTV footage or audio video recording was placed by the complainant pertaining to the alleged incident.
4. As per the status report, further investigation was carried out. The petitioner and his mother Ms. Pawan Rana were interrogated. Ms. Rana produced the pen drive of the CCTV footage that covers the car parking area. According to her, the drive had footage of 3rd September 2021 between 6pm to 10pm when the complainant along with the husband and child is seen going in a car outside the society at the alleged time of the incident. The said pen-drive has been sent to the FSL; the result is awaited.
5. At the behest of Ms. Rana, previous FIR No. 490/2021 under sections 354B/ 323/509/34 IPC, PS Pandav Nagar had been registered against the complainant in the present case. Ms. Rana had alleged that a meeting regarding seepage of water had been called by the President of the Delhi Police Welfare Society, Mayur Vihar where she was abused, molested, and physically assaulted by family members of the complainant.
6. It is noted that quashing petition has also been filed with respect to FIR No. 490/2021 being Writ Petition (Crl.) 2318/2021 (Suresh Kumar & Anr. v. State of NCT of Delhi) which is still pending before this Court.
7. Further investigation revealed that two witnesses, namely Sh. Liju George and Smt. Divya Tiwari, neighbors of the accused/ petitioner claimed that the accused was present at their house and in the society and remained present from 6 pm to 9.30 pm and did not go anywhere else, as has been alleged. Their statements were recorded under Section 161 Cr.P.C. Another local witness, Shri Hari Singh Rawat, President of the R.W.A, was examined, who stated that all incidents which happen in the society always come to his notice, being the President, however the present incident is not within his knowledge. He further stated that on 4th September 2021, a meeting was called on the mantle of seepage in the block of Ms. Rana's flat from the flat of Mr. Suresh Kumar (complainant’s family).
8. Status report further notes that the complainant's family owns two flats C-12T and A-12T, in different blocks of the same society. Flat A- 12T was given on rent by the complainant's family, which is at present locked. The petitioner and his mother reside in the same block in flat A- 11S on the second floor, which is diagonally beneath the flat A-12T. There was some dispute between the complainant, and the petitioner and his mother, on the issue of water seepage from the third floorcomplainant's flat, to the second floor flat of the petitioner's mother, which resulted in a dispute before the society members and FIR NO. 490/2021 was registered on 5th September 2021; FIR No. 491/2021 was also registered on the same day at P.S. Pandav Nagar.
9. Status report categorically states that except for the statement of complainant, no other oral or documentary evidence has come on record but since specific allegations were made, charge-sheet was filed. Submissions on behalf of Petitioners
10. Petitioners contended that they were residing in flat number A- 11S, and the complainant was residing in flat number C-12T, and the distance between the two flats is about 300 meters, in different blocks. The complainant's mother-in-law has the flat A-12T, which was rented out. There were seepage issues from the flat, since the terrace of the flat was used to install a swimming pool by the complainant's mother-in-law. On 3rd September 2021, at about 10.30am, when flat-owners of the block went to the terrace of the flat, they started misbehaving with them, and started abusing the petitioner's mother, who called a PCR, as also the Secretary of the society.
11. The Secretary asked for the meeting on the next day, 4th September 2021, at about 11am. The incident was also informed to the father-in-law of the complainant, and a meeting was held on 4th September 2021, in the society office at about 11.30 am. There were about 15 members / flat owners and other executive members. At about
12.30 pm, Mr. Suresh Kumar (Retd. ACP Delhi Police) Mr. Kapil Kaushik, (husband of the complainant and also ASI Crime Branch), Ashu Kaushik (sister-in-law of the complainant), came to the meeting and when issues were being resolved, the said three people started abusing the petitioner's mother and molesting and beating her. The said incident was recorded in the CCTV camera. The three assailants went away from there and the PCR call was made multiple times but the police did not come to the society’s office.
12. When they finally came, and visited the complainant's house, the petitioner, who was at this time at his flat, was informed by somebody about the incident. The petitioner and his mother then came back to the society and she fainted; ambulance was called and the petitioner took his mother to LBS Hospital where an MLC was conducted. and then the police asked the petitioner to get the mother to the police station where she gave a written complaint. As per the petitioner, the police persons started pressurizing petitioner's mother to compromise but when she denied, they refused to register the FIR. Subsequently, they came to know on 5th September 2021, at 11.30 pm midnight, this FIR had been registered against the petitioner.
13. Regards the complainant's allegations, it was contended that firstly, the complainant did not make any PCR call or police complaint about the said incident. Secondly, petitioner is permanently studying in Dehradun since the last five years and occasionally comes to Delhi, only on vacation, or for some urgent work and does not know the complainant and has never met with her. Thirdly, petitioner came to Delhi in the last week of August 2021 for the second dose of COVID-19 vaccination since the appointment was fixed for 2nd September 2021 and was about to return on 3rd September 2021, as he was having fever due to vaccination. Fourthly, the question of stalking does not arise when the petitioner is residing in Dehradun and no complaints at any stage have been filed. Fifthly, the complainant is residing in a different block which is about 300-400 meters away. Sixthly, the complainant herself stated that she was seven months’ pregnant and residing on the third floor and it was unlikely that she would be roaming alone in the society. Seventhly, there are 16 CCTV cameras installed in the society and none of the CCTV cameras noted the movement of the petitioner in the society. Eighthly, the CCTV recording provided by the petitioner showed that the complainant was going outside the society along with the husband and child at about 8pm when she alleged that the incident happened. This recording was handed over to the police but they did not file it in Court. Even on 4th September 2021, when she made the PCR call, she does not mention the alleged incident. Police registered the false FIR NO. 491/2021 at midnight and only then the previous complaint of the petitioner's mother was converted into an FIR 490/2021. Clearly, since the attempt to compromise the previous complaint by the petitioner's mother did not fructify and therefore, they registered this false FIR. Ninthly, CDR of the petitioner's mobile was at the same location throughout the day and there was no location movement in the CDR report. Tenthly, none of the guards or the President of the society, to whom all incidents are reported, stated that any incident, as alleged by the complainant, had happened; further, complainant's family was in their flat and even if, assuming such an incident had happened, why did her family not chase the petitioner despite having been in the police. Submissions on behalf of Respondent no.3/ Complainant
14. It was contended that it was not the stage of quashing of the FIR since the trial is yet to take place and the alibi would have to be proved. The meeting was on 4th September 2021 and the complaint was made at 1:00 pm in the afternoon whereas the incident had already happened on 3rd September 2021 and both the FIRs were registered on 5th September
2021.
15. It was also submitted by respondent no.3 that vague allegations have been made that the accused had been reprimanded for obscene behavior even previously. The other allegations are relating to dispute with the tenants of the complainant's family on issues of seepage, however, it is noted that they are not related to the incident alleged by the complainant. The focus, in the counter, is on the seven-month’s pregnancy and her resultant delicate health of the complainant and the incident of dispute on the seepage.
16. The Supreme Court in State of Haryana v. Bhajan Lal (1992) Supp (1) SCC 335 stated that it was not possible to give an exhaustive list of cases where FIRs could be quashed, however, had provided a list of situations where such a power under Section 482 Cr.P.C. would be exercised. This list is extracted as under:
(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. (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.” (emphasis supplied)
17. Serial No.7 in that list includes a situation where a criminal proceeding is attended with mala fide or is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, due to a private and personal grudge. The focus of the petitioner's submission is largely within this parameter, as also on the basis that the investigation has clearly stated that there is absolutely no evidence to corroborate the complaint's statement, provided either through the CCTV recordings, independent witnesses or in surrounding circumstances. All this may need to be assessed. The Court has perused the documents and heard the contentions / submissions of the parties.
18. Taking the complainant's case at the highest, that this incident on 3rd September 2021 had occurred, there was no reason for the FIR to be registered on 5th September 2021, particularly when the complainant's family were former and current police personnel. It would be expected, as normal course of behavior, that if the complainant's modesty was outraged and she was being stalked previously, that timely complaints would have been made and pursued with the police for further investigation. There is absolutely no record of any such complaint of stalking made by the complainant, which to this Court seems unbelievable, considering that the complainant has stated in the statement as recorded in the FIR that, “the petitioner had been stalking me for the last few days and he has made my life hell” and further, “he passes bad and indecent remarks on me when I pass by him, whistles at me, pulled my chunri once” and “when I opposed, he twisted my hand with force, held my collar and said, I am the ruler.”. Only after these, she states the incident of 3rd September 2021, where she alleges that he accosted her in the darkness of the stairs to her flat.
19. Firstly, the incidents which have been alleged prior to 3rd September 2021 of continuous stalking and harassment, don't have any specificity whatsoever, are not elaborated in any detail as to how and on what dates such incidents happened. Secondly, no complaint was ever filed regarding these previous incidents at any point of time; complainant has not produced any record of the same. Thirdly, petitioners' RTI application of 2nd January 2022, elicited a response from the Manager of the Delhi Police Apartment Society who stated that no complaint had been received against her son Aviral Singh in the Society Office till the date of that response. Thus, there is a conspicuous lack of any such complaint prior to 3rd September 2021 when the alleged incident happened. Fourthly, there is also no explanation available as to how, if the incident that happened on 3rd September night, did the complainant and her family wait to file a complaint till after the imbroglio in the society meeting on 4th September 2021. Fifthly, none of the witnesses, i.e. the society members, have stated that this issue of petitioner’s son having allegedly accosted complaint in the previous night came up in the meeting of 4th September 2021 which was 11:30 am onwards and all the concerned parties were present at that meeting, albeit for resolving the water seepage issue.
20. The information as per the FIR was received only on 5th September 2021 at 23.15 hours which is about 48 hours ahead of when the incident had occurred. Despite that complainant's family was well placed to pursue the police department to take steps against the petitioner, they did not do so for 48 hours, seems incredulous. Moreover, as noted in the status report, except for the complainant's statement, no other oral or documentary evidence is available in support that the incident happened. The status report is categorical in its assertion that the neighbours of the accused claimed that the accused was present at his house and in the block of the society from 6 to 9.30 pm. Also importantly, the statement of Mr. Hari Singh Rawat, President of the RWA is dispositive, in that if such an incident had happened in the society on 3rd September 2021, it is quite impossible that it was not reported to any of the security guards or to any member of the society or to the President of the RWA, which seems quite unbelievable. The CCTV footage provided by the petitioner, which was not taken on record by the police, claims to show that the complainant, the husband and the child were leaving at that time from the society premises. However, the Court has not reviewed the said CCTV footage and without any forensic evidence, it may not be correct to solely take that into account.
21. Coming to sl. no. 7 in Bhajan Lal’s (supra) enunciation, in the Court’s opinion this would be a classic case of a vexatious and mala fide proceedings instituted basis a personal grudge. The incident which led to the registration of FIR No.490/2021 happened in the noon in society’s office. As noted above, the chaos and an altercation occurred amidst and attempt to resolve a seepage issue from A-12T flat of the complainant and inhabited by a tenant and A-11S flat inhabited by petitioner’s family, which was an old consistent problem. The FIR states that Suresh Kumar, a young couple, and the other lady (which happened to be the sister-inlaw Anshu of the complainant) started abusing the petitioner's mother, beating her in front of the managing committee and touching her personal parts and tearing her suit. They apparently also stated to the petitioner's mother, who was an advocate, that “tum jaise do take ki vakil ko hum aise hi marte rehte hain”. Considering that this incident took place in front of the managing committee members of the society, at this stage it would be difficult to disbelieve the allegation made by the petitioner’s mother. For the moment, assuming that those allegations were correct, they did not result in the FIR till 23:09 hours of 5th September 2021 (as recorded in the FIR itself). Considering that FIR No.491/2021 was registered at 23:30 hours on 5th September 2021, the timing of the registration of the FIR is suspiciously immediately subsequent to registration of FIR 490/2021, even though the complaint had been given by the petitioner's mother on the same day of 4th September 2021 when PCR call had been made at 1:12:25 pm where it was stated that the lady has been beaten up. The second PCR call at 1:15:31 pm states that the lady caller is stating that some people are beating her up and pushing her around.
22. Therefore, ex facie, while complaint of petitioner’s mother, of an incident which happened in front of many people, in society’s office and for which PCR calls were made, ended up in an FIR being registered 36 hours later, on 5th September 2021 at midnight, just about then was this FIR 491/2021 registered at the behest of the complainant alleging an incident which no one saw, no one reported on that day, and no one reported ever previously. In the opinion of the Court, this is a classic situation where a vexatious self-proceeding is initiated at the behest of the complainant, presumably instigated by a family taking advantage of a vulnerable situation of complainant i.e. her pregnancy.
23. As regards the Section 164 Cr.P.C. statement recorded by the complainant seeming to corroborate her FIR, the decision of the Supreme Court in Ram Kishan Singh v. Harmeet Kaur A.I.R. 1972 SC 468 has been relied upon by the petitioner, where it states that “a statement under Section 164 Cr.P.C. is not substantive evidence, it can be used to corroborate the statement of a witness it can be used to contradict the witness”. In any event, in these circumstances, the Bhajan Lal (supra) parameters would squarely apply.
24. Accordingly, in these circumstances, the FIR No. 491/2024 P.S. Pandav Nagar and proceedings emanating therefore are quashed.
25. In light of the above discussion and assessment, this petition is disposed of.
26. Judgment be uploaded on the website of this Court.
JUDGE SEPTEMBER 18, 2024/SM/kp