Penal Code, 1860 – Ss. 354A/506 IPC – Criminal P.C. 1973 – Ss. 228 & 482 – Quashing of FIR – Framing of Charge – If on the basis of the materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence; a case of framing of charge exists. For the purpose of framing charge under Section 228 Cr.P.C., the Court is to consider judicially whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed and that on the basis of the said material there is a reasonable probability or chance of the accused being found guilty of the offence alleged. If the answer is in the affirmative, the Court will be at liberty to presume “that the accused has committed an offence” as mentioned in Section 228 of the Code for the purpose of framing charge.
Framing of Charge
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON’BLE MR. JUSTICE S.P.GARG
DECIDED ON : AUGUST 03, 2016
CRL.M.C.4665/2015 & CRL.M.A.16735/2015
GULVINDER KHATRI ….. Petitioner Through : Petitioner in person. versus STATE (GOVT.OF NCT OF DELHI) & ANR. ….. Respondents Through : Mr.Tarang Srivastava, APP. Mr.Narender Kumar, Advocate, for the complainant.
1. Present petition under Section 482 Cr.P.C. has been preferred by the petitioner for quashing of FIR No.675/2013 registered under Sections 354A/506 IPC at Police Station Mehrauli. The petition is contested by the respondent/complainant.
2. The petitioner urged that the instant FIR has been lodged by the complainant to pressurize him to settle the criminal prosecution instituted by him against her vide Complaint Case No.261/1/11 titled Gulvinder Khatri vs.State & Ors. in which complainant’s son along with others has been summoned to face trial under Sections 323/452/506/147/149/34 IPC vide order dated 19.12.2011. Allegations made in the FIR 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 petitioner. Allegations leveled by the complainant cannot be taken on its face value. The Investigating Officer did not offer any reasonable opportunity to the petitioner to submit his version on the record. He further urged that earlier the complainant had falsely lodged FIR No.589/2013 under Sections 354A/509 IPC at PS Mehrauli on 28.08.2013 for which a quashing petition (Crl.M.C.182/2015) has been filed before this Court. He had already filed a Civil Suit No.198/2013 on 24.08.2013 against her where she was directed to park her car No.HR 99QT 4083 in the common parking space of a building allotted to her, in a way that it did not obstruct the petitioner’s car bearing No.DL 2C AH 6121 either in the parking of her car or in taking it out from its parking space. He further urged that on 28.08.2013 at around 11.20 a.m., he had come down from his upper ground floor of the building holding a camera and had taken photographs of the car bearing No. HR 99QT 4083 owned by the prosecutrix obstructively parked against his car No.DL 2C AH 6121. After clicking two three photographs, he had handed over the camera and the newspaper from the street abutting the parking bay to his wife, Savita Khatri standing over the upper ground floor balcony of his flat. While he was busy in clicking the photographs, he noticed that the complainant was approaching towards the parking bay from the opposite side by talking on her mobile but she did not come close to him and he watched him from a distance. The petitioner had taken only less than ten minutes in clicking photographs and thereafter, he went straightaway to Saket Metro Station to reach Narela Sub-City situated about 60 kilometres away from his abode to attend the pre-decided meeting with Regional Manager, Region IV, State Bank of India.
3. He urged that earlier the complainant had instituted a complaint case bearing No.535/1/12 against him before the learned Metropolitan Magistrate, Saket Courts. Her application under Section 156(3) Cr.P.C. was dismissed on the basis of negative status report dated 21.06.2012 vide order dated 31.07.2012. Finally, complainant opted to withdraw the complaint case on 29.04.2014. It was further contended that on 25.09.2013 a hand written complaint to the SHO PS Mehrauli vide DD No.26B, was made in which the complainant leveled false allegations of sexual harassment and criminal intimidation. Vital discrepancies have emerged in her statement given to the police and the one recorded under Section 164 Cr.P.C. before the learned Magistrate.
4. He further urged that the investigation was not carried out fairly. Legality and propriety of order dated 12.09.2014 of learned Metropolitan Magistrate on the point of charge whereby allegations of the prosecutrix were accepted at their face value was also challenged. The evidence brought on record by the petitioner was not taken into consideration. Reliance was placed on
Subhkaran Luharuka & Anr. Vs. State (Govt.of NCT of Delhi) & Anr; 2010 (3) JCC 1972
Vimal Suresh Kamble vs.Chaluverpinake Apal S.P. and Anr. Appeal (Crl.)1449/1995;
Sukhbir Yadav vs.State Crl.A.679/2003; Dr.M.M.Mandakumar vs.N.A.Nisa and Anr. Crl.M.C.1006/2015;
Suraj Mal vs. State, AIR 1979 SC 1408
and Ashok Narang vs.State Crl.A.932/2009.
5. Learned counsel for the complainant controverting the arguments urged that the impugned order of the court below does not suffer from any illegality.
6. The petitioner and complainant were acquainted with each other. Relations between the two were strained specifically over parking of the vehicle in the common parking area. It is relevant to note that FIR No.589/2013 under Sections 354A/509 IPC came to be recorded at PS Mehrauli on 28.08.2013 on the complainant’s complaint. Charge-sheet in the said FIR has since been filed and charge vide order dated 12.09.2014 has been framed against the petitioner. Crl.M.C.182/2015 filed by the petitioner for quashing of the said FIR has been decided / dismissed today vide a separate order.
7. In the instant case, the complainant informed the police on 25.09.2013 vide DD No.26B “When she was cleaning her Scooty on 23.09.2013 at around 8.45 a.m., Gulvinder Khatan Advocate threatened to commit rape upon her and could not escape him. Then she called SI Virender on phone and who told her as to what he could do. When she left for her office on 25.09.2013, he tried to caught hold of her in the stairs, her chunni came in his hands and he said if she did not fulfil his desire, he would spoil her face with acid and he would get both her children kidnapped and killed.”
8. She recorded her 164 Cr.P.C. statement on 28.10.2013 stating that “On 23.09.12 I was cleaning up my scooty. At that time Gulvinder Khatri who is an Advocate and my neighbour came and said to me that I will rape you. Immediately, I phoned SI Virender Singh who already has my case. He said I cannot do anything in this case. Next day when I left for office then Gulvinder tried to catch me. I immediately ran then chunni came in his hand. Then he left chunni and said fulfil my wish else with acid your face will be spoiled. You accept my terms else your children also will be kidnapped and murdered. You are seeing that you have made so many complaints but nothing happened to me and nor anything will happen because I am an Advocate, everybody feared of me.”
9. It is a matter of record that the petitioner was arrested and released on bail. Upon completion of investigation, a charge-sheet has been filed in the Court. The Trial Court took cognizance of the offence and summoned the petitioner. Vide order dated 12.09.2014 charge under Sections 354/506 II IPC has been framed against the petitioner. Thereafter, instant petition for quashing of the FIR has been filed. The petitioner has not given plausible explanation as to why there is inordinate delay in filing the present petition for quashing of the FIR which came into existence in 2013. Subsequent to the registration of the FIR not only a charge-sheet has been filed against the petitioner but he has been charged for commission of offence under Sections 354/506 II IPC by an order dated 12.09.2014.
10. On perusal of the contents of the complaint and attendant circumstances, it cannot be inferred, at this stage, that the allegations leveled by the complainant are frivolous/false. The incident was reported to the police promptly. The prosecutrix alleged sexual harassment by the petitioner on 23.09.2013 and 25.09.2013. In both her complaints to the police and statement under Section 164 Cr.P.C., she has implicated the petitioner for sexual harassment and criminal intimidation. The plea that these charges are false as various inconsistencies, discrepancies or improvements have occurred between the two versions given before the police and learnedMetropolitan Magistrate, cannot be gone through at this stage. These pleas are primarily the defence which the petitioner requires to establish during trial. Statement of the prosecutrix cannot be discarded at this stage.
11. Allegations against the petitioner are specific and cannot be brushed aside at this stage. The pleas raised for discharge/quashing of the FIR are primarily arguments on the merits of the case which are to be taken into consideration after the parties are given opportunities to establish their respective cases during trial. At the stage of framing of charge, the court has no jurisdiction to go into the merits of the allegations, and is only required to evaluate the material and documents on record with a view to find out if the facts emerging from taken at their face value disclose the existence of all ingredients constituting the alleged offence. The Trial Court was not required to weigh the evidence as if it was for conviction or acquittal. In