Sunder Kukreja v. The State

7.3. Learned counsel for the petitioner further states that no prima facie offence is made out against petitioner under Sections 354/354D/506 of IPC and the FIR was registered with a malafide intention, and thus, needs to be quashed as per the judgement of State of Haryana v. Bhajan Lal 1992 SCC (Crl) 426.

7.4. Learned counsel for petitioner states that there is a long history of litigation, including civil and criminal disputes, between the parties. It is argued on behalf of petitioner that with regard to the premises, an arbitral award was passed in favour of petitioner and further vide order dated 07.12.2015, this Court had granted unhindered access to the petitioner and his partners, to the premises M-Cinemas as well as book of accounts the firm/premises. It is stated that even though the arbitral award was in the favour of petitioner, the petitioner had gone to the premises only after giving several formal notices to the other side for accessing the books of accounts and there was no other intention of the petitioner to visit the said premises.

7.5. Learned counsel for the petitioner contends that there was no intimidation or fear caused by the petitioner, and to the contrary, it was the complainant who was seen threatening and intimidating the petitioner in the video recording where she can be seen tearing a copy of the order passed by this Court dated 07.12.2015 vide which the petitioner was granted unhindered access to the premises.

7.6. It is averred that the present FIR was filed five hours post the alleged incident, only with the intention of pressurizing the petitioner to give up his share and rights in the M-Cinema and to withdraw the criminal and civil cases filed by the petitioner against complainant‟s father.

8. On the other hand, Learned APP for the State submits that the complainant has supported her earlier version in her statement under Section 164 Cr.P.C. and considering the nature of allegations, no case is made out for either quashing of FIR or for discharge.

8.1. It is stated that the complainant had also given a pen drive containing camera recordings to the investigating officer to support her complaint, and the petitioner and complainant were seen making arguments with each other and complainant was seen crying in the said footage. It is also submitted that the petitioner failed to give any recording, despite stating that he would try to procure the same as his men were video-graphing the premises at the time of alleged incident.

9. Controverting the contentions raised on behalf of petitioner, learned counsel for the complainant states that complainant had filed the instant case against the petitioner after having been aggrieved by his repeated misbehaviour,and that despite her clear indication of disinterest, the petitioner had brought several men including a videographer and was recording her movementsat the premises.

9.1. Learned counsel for complainant states that the petitioners had also moved an application before the learned MM seeking further investigation under Section 173(8) Cr.P.C praying that the investigation of the present case was not properly conducted but the same was dismissed vide order dated 19.12.2017. it is also stated that a detailed order on charge had been passed by the learned MM after going through the CCTV footage provided by the complainant. Therefore, he states that there is no illegal or infirmity in the order on charge.

9.2. It is further submitted by learned counsel for complainant that another FIR bearing no. 1311/2015 for the offences punishable under Sections 354/506/34 IPC was registered at Police Station Amar Colony, New Delhi on the complaint of the wife of petitioner and after due investigation, a cancellation report was filed on 07.04.2016 before the learned Trial Court.

9.3. It is further submitted by learned counsel for complainant that with regard to consideration of the additional/new documents which admittedly were not part of the chargesheet, the same cannot be considered at this stage. For the same, reliance was placed on Tarun Jit Tejpal v. State of Goa 2019 SCC Online SC 1053. The counsel for complainant further stated that, without prejudice, if at all required, the language of charge framed can be corrected/ modified /altered as per law, in the interest of justice, by this Court, and reliance in this regard was placed on decisions in Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh 2021 (1) JCC 175 and Jitender Singh Tomar v. State 2019 (1) JCC 826 (Delhi).

10. This Court has heard the arguments on behalf of both the parties and has perused the material on record.

11. The law regarding framing of charge and discharge is contained under Sections 227 and 228 of Cr.P.C. While deciding as to whether a Court should either frame charges against an accused or discharge the accused, the Court is required to look into the facts and circumstances of the case and due consideration needs to be given to the material placed on record along with the investigation and the facts determined therefrom. From the said information, the Court is required to ascertain if the essential ingredients of an offence are prima facie made out or not. It is impermissible to conduct an in-depth appreciation of evidence and roving inquiry into the pros and cons of the case since a Court is not allowed to conduct a mini trial while passing an order on charge. [See Sajjan Kumar v. C.B.I. (2010) 9 SCC 368; Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460; Asim Sharif v. National Investigation Agency (2019) 7 SCC 148; Dipakbhai Jagdishchandra Patel v. State of Gujarat (2019) 16 SCC 547; and Vikram Johar v. State of Uttar Pradesh & Anr., 2019 SCC OnLine 609]

12. In the case at hand, learned counsel for petitioner argued that the offences for which the charges have been framed against the petitioner are not made out on the face of it. The petitioner herein has been charged under Sections 354, 354D and 506 of IPC.

12.1. Firstly, Section 354 of IPC relates to “Assault or criminal force to woman with intent to outrage her modesty.” In the present case, the complainant had specifically stated in her complaint, which culminated into FIR, as well as in her statement under Section 164 Cr.P.C. that on the day of incident i.e. 19.12.2015, when the complainant and petitioner were in the kitchen at the premises, the petitioner had pinched the buttock of complainant and pushed her, at which the complainant had gone outside screaming whereas the petitioner followed and laughed at her.

12.2. Secondly, Section 354D of IPC relates to “Stalking”. Inasmuch as this offence is concerned, the petitioner has given details in her complaint and statement under Section 164 Cr.P.C. as to how on the day of incident and for past 7-8 days, petitioner was making her feel uncomfortable through his staff and their dirty gazes. It is stated that men deployed by the petitioner at the premises used to continuously follow the complainant, video-graph her movements including her going to the washroom and despite repeated requests of complainant to the petitioner, the petitioner did not mend his ways. Rather, it is alleged that petitioner told the complainant to not enter the premises if she felt uncomfortable by his and his men‟s actions. It is further alleged that when the complainant was in the kitchen at premises, the petitioner had pinched her buttock upon which she screamed and went outside, and when she was leaving, the petitioner laughed at her and followed her.

12.3. Thirdly, Section 506 of IPC relates to “Criminal intimidation”. In this regard, the complainant has alleged in her complaint and statement under Section 164 Cr.P.C. that the petitioner was coming to the premises for last 7-8 days with his guards/bouncers who used to videograph every nook and corner of the premises, including staring at complainant and videographing her movements, and upon complainant‟s request to desist from doing the aforesaid acts, she was abused and threatened by the petitioner who told her that he had contacts with influential persons including members of judiciary. Thus, as alleged, she was intimidated to not file any complaint against the petitioner as the same would not be taken up due to influential position of the petitioner.

13. The perusal of charge-sheet also points out that the complainant had provided a CCTV footage in support of her case to the investigating officer, and the same revealed the incidents of arguments between the petitioner and complainant on the day of alleged incident and further, the complainant was also seen crying in the said footage. As stated before this Court, the said footage was also played before the Court of learned MM. Contrary to this, the petitioner, who had deployed his men on the premises for the purpose of videography, was also asked by the investigating officer to hand over video footage that he was in possession of, including any footage of the kitchen area. However, petitioner herein was unable to provide any footage whatsoever of the day of incident.

14. With regard to the contentions of learned counsel for petitioner, firstly, a delay of 4-5 hours in lodging of FIR cannot be termed as undue so as to disbelieve the contents of the same. Secondly, the ingredients of the offences alleged against the petitioner are made out, prima facie, for the purposes of framing of charge, as already discussed above. Thirdly, any previous enmity or litigation among the family members of the petitioner and complainant cannot be the ground to seek discharge as needless to say, each case has to be tested and tried on its own facts and circumstances, as per law.

15. Considering the aforesaid, and having taken note of the settled law on framing of charge and the allegations leveled against the petitioner, this Court is of the view that there exists sufficient material on record to frame charges against the petitioner for the offences so alleged.

16. This Court also notes that present petition has been filed under Section 482 Cr.P.C., under which, proceedings can be quashed by a High Court in order to prevent abuse of process of any Court or otherwise to secure ends of justice. With regard to quashing an order on charge and order passed by learned ASJ in a revision petition, a reference can be made to the recent decision of Hon‟ble Apex Court in Asian Resurfacing of Road Agency Private Ltd. v. C.B.I. (2018) 16 SCC 299, relevant portion of which is as under:

17. The guidelines for quashing of criminal proceedings have been laid down by the Hon‟ble Supreme Court in State of Haryana v. Bhajan Lal (supra), which are extracted herein-under for reference:

18. It is trite law that High Courts cannot embark upon the appreciation of evidence in a minute manner while considering the petition filed under Section 482 Cr.P.C. [See Priti Saraf & Anr. v. State of NCT of Delhi & Anr. 2021 SCC OnLine SC 206]. It is also settled that in a petition under Section 482 Cr.P.C., a High Court can neither test veracity of the allegations nor can it proceed in the manner that a judge conducting a trial is supposed to do on the basis of the evidence collected during the course of trial [See Mahendra KC v. State of Karnataka (2022) 2 SCC 129].

19. The power under Section 482 Cr.P.C. is an extraordinary power and the same cannot be exercised ordinarily by the Courts, in absence of exceptional circumstances. Testing the facts of the present case on the anvil of principles laid down by the Apex Court in Bhajan Lal (supra), this Court is of the considered view that neither the allegations leveled against the petitioner by the complainant are absurd or improbable, nor it is the case where no prima facie offence at all or no cognizable offence is made out. Even otherwise, no circumstances have been shown on behalf of petitioner for this Court to arrive at a finding that continuation of proceedings against him would amount to an abuse of process of law.

20. As far as contention of learned counsel for petitioner that formal charge framed against the petitioner is incorrect is concerned, this Court observes that the same is premised upon the allegations leveled against the petitioner by the complainant in the FIR and in her statement under Section 164 Cr.P.C., and the language of the charge qua the offence of stalking has been taken from the language used in statutory provision of Section 354D. It is for the complainant to show during the course of her examination that petitioner followed the complainant on several occasions with an intention to foster personal interaction, and for the petitioner to disprove the same in order to avoid the guilt under Section 354D(1)(i) of IPC. Furthermore, the said ground has been taken for the first time before this Court and the same was not agitated either before learned MM or learned ASJ. If at all the petitioner is aggrieved by the language of formal charge framed vide order dated 07.06.2019, he shall have the liberty to move appropriate application before the concerned Trial Court for the alteration of same.

21. Needless to state, the contentions of the petitioner before this Court and the documents relied upon by him are a matter of trial and the same can be dealt with by the learned Trial Court at appropriate stage.

22. In view of the foregoing discussion, this Court finds no error or infirmity in the orders passed by learned MM and learned ASJ, and thus, no case is made out for quashing/setting aside the impugned orders.

23. Accordingly, the present petition along with pending applications stands dismissed.

24. It is however clarified that this Court has not given any opinion on merits of the case and the observations made herein-above are only for deciding the present petition.

25. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J FEBRUARY 13, 2023