Vishal Tandon v. State

20. Further, in the case of State vs. Arun Kumar & Anr.: 2014 SCC Online SC 1018, it was held by Hon'ble Supreme Court that “even at the stage of charge, if two views are possible and one of the views gives rise to suspicion only as distinct, from grave suspicion, the Court would be empowered to discharge accused at that stage”.

21. Recently, this court in the matter of Rukma Singh vs. State NCT of Delhi (Crl. Rev. No. 125/2017) decided on 04.07.2019, held as under: ''The Trial Court has by the impugned order acted in a mechanical manner and has not correctly appreciated the facts of the case. The reasoning of the trial court appears to have been clouded by the allegations against the other co-accused."

22. In addition to the above, this Court in Bhagwanti vs. State: 2001 SCC Online Del 1102 reiterated “the principle that at the stage of framing of charge broad probability of the case, total effect of the evidence and documents produced before it and any basic infirmity appearing in the case can be considered. Only where grave suspicion arises against the accused would it be proper to frame a charge. If there are vague and bald allegations without anything more, charge cannot be framed.”

23. In the case of Prashant Bharti vs. State of NCT of Delhi: 2013 (9) SCC 293, the Hon’ble Supreme Court observed as under: -

Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C. 30.[1] Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.[2] Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.[3] Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.[4] Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.[5] If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

24. As stated that the facts and circumstances of the present case are squarely covered under Steps observed by the Hon'ble Supreme Court of India in the above referred decision. Ld. Trial Judge has failed to consider that where the allegations were none other than the allegation of rape, this Court in the matter of Alok Kumar vs. State & Anr.: 2010 SCC Online Del 2645, while dealing with the petition under Section 482 Cr.P.C. for quashing of FIR in a case where the complainant getting FIR registered under Section 376 IPC against the petitioners out of malice in order to wreck vengeance on the petitioners because petitioners refused to live in relationship with the complainant, held as under:

motives to wreck vengeance, the Courts have interfered as an exceptional matter and quashed the FIRs. In M/s Eicher Tractors Limited& Ors. vs. Harihar Singh & Anr.: 2009(1) JCC260, State of Karnataka vs. M. Devendrappa: 2002 (1) JCC 214, State of Haryana vs. Bhajan Lal: 1992 SCC(Crl.) 426 and Madhavrao J. Scindhia vs. Sambhajirao C. Angre: 198 SCC (Crl.) 234, Supreme Court held that where allegations made in an FIR or complaint were so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion, this was sufficient ground for quashing the FIR. The Apex Court also held that where criminal proceeding is manifestly attended with mala fide and where proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, the FIR can be quashed."

25. As stated in the present petition that there is no evidence collected by police that the complainant was residing in the property bearing no. U-46B, Jawahar Nagar, Delhi. There is no evidence that the complainant was present at the property in question on the day and time of incident. No complaint was made by complainant or her son/nephew to the police immediately after the incident. MLC was done at 07.10 p.m. i.e. after about 6 hours from the date of alleged incident. PCR form records the presence of WAKIL SAHAB i.e. Ashok Kumar at the spot and further, the dispute of property is also reported. However, MLC of complainant did not record alleged history of any sexual assault/molestation. FIR in question was registered after the registration of FIR No.145/17 at the behest of accused No.2.

26. After hearing this matter, few questions came in mind as under: a. Is it reasonable to believe that a woman aged about 50 years old could be molested/raped by inserting hand in her private part, in the presence of her adult son and nephew aged about 34 years and that too when the adult son and nephew are having criminal antecedents? b. Is it reasonable to believe that a mother and father would ask their son aged about 18 ½ to commit the alleged act of molestation/rape by putting hand on private part of a woman aged about 50 years? c. Why the Investigating Officer did not make the CD/Video clip of the incident as a part of charge sheet? d. Why the CD/Video Clip was not taken on record of Charge sheet when same was available with the same police station in file of FIR No. 145/17?

27. In addition to the above, prosecutrix is an employee of Ashok Kumar and just to solve the civil dispute, implicated the petitioner in the present case at the instance of Ashok Kumar. Said Ashok Kumar tried to pressurize the petitioner by creating these kinds of nuisance and implicate the petitioner in false cases and wants to grab the whole property occupied by the petitioner.

28. This court in the matter of Ramesh Thakur vs. State: 2013 SCC Online Del 2161, while considering the allegations of gang rape, held that:

even on the allegations being accepted in toto, prima facie no offence could be made out. The Courts have consistently put an end to criminal proceedings which are an abuse of process of court. At the initial stage, at the summoning stage and even if charges have been framed, this Court has the inherent powers U/s 482 Cr.P.C. to quash proceedings and to pass such orders as are necessary to prevent abuse of process of any court or otherwise to secure ends of justice".

29. Learned APP appearing on behalf of the State submits that in the present case, the IO had asked accused No.2 for her mobile phone for sending same to FSL for establishing the authenticity of video recorded by the said phone. However, she refused and instead provided a CD despite the fact that the IO had asked her to provide the mobile phone so that said phone can be sent to FSL for examination. The said mobile phone has not been provided by accused No.2. However, this fact has been disputed by accused No.2 in FIR No.145/2017.

30. The accused No.2 is personally present in court and submits that even today she has video recording in the phone in question and is ready to give it to the IO for examination.

31. Accordingly, the accused No.2 is directed to hand over the phone to IO SI Sanjay Kaushik within two days and on receipt of the same, IO is directed to send the same for examination to the FSL.

32. On receipt of the requisition, Director, FSL concerned is directed to prepare report within one week.

33. The above named IO is further directed to collect the report and place the same on record at least three days before the next date of hearing.”

3. Accordingly, IO has submitted FSL report dated 13.02.2020 whereby stated as under:

4. Since the Trial Court was not having the benefit of FSL report, therefore, impugned order on charge dated 07.08.2019 passed by learned ASJ, Tis Hazari Courts, Delhi is set aside and Trial Court is directed to pass order on charge afresh after taking into consideration the submission of petitioner made in the present petition, submissions of learned APP and the FSL report.

5. If the petitioner is still aggrieved, he may challenge the same before the appropriate forum.

6. The petitions are, accordingly, allowed and disposed of.

7. Pending applications stand disposed of.

8. Order be uploaded on the website of this Court forthwith.

JUDGE FEBRUARY 02, 2021