Sunday, 14 August 2016

Important Judgment on framing of charge

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
State of Maharashtra vs.Som Nath Thapa & Ors. 1996 Cr.5, 2448, the
Supreme Court observed:
“ If on the basis of materials on record a court could come
to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists.
To put it differently if the court were to think that the
accused might have committed the offence, it can frame the
charge, though for conviction, the conclusion is required to
be that the accused has committed the offence. It is
apparent at the stage of framing of a charge, probative
value of the materials on record cannot be gone into; the
materials brought on record by the prosecution has to be
accepted as true at that stage.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
 DECIDED ON : AUGUST 03, 2016

CRL.M.C.4665/2015 & CRL.M.A.16735/2015
GULVINDER KHATRI ..
versus
STATE (GOVT.OF NCT OF DELHI) & ANR. ..
CORAM:
HON'BLE MR. JUSTICE S.P.GARG



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 learned 
Metropolitan 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
State of Maharashtra vs.Som Nath Thapa & Ors. 1996 Cr.5, 2448, the
Supreme Court observed:
“ If on the basis of materials on record a court could come
to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists.
To put it differently if the court were to think that the
accused might have committed the offence, it can frame the
charge, though for conviction, the conclusion is required to
be that the accused has committed the offence. It is
apparent at the stage of framing of a charge, probative
value of the materials on record cannot be gone into; the
materials brought on record by the prosecution has to be
accepted as true at that stage.”
12. In ‘Amit Kapoor vs. Ramesh Chander and Another ’, 2012 (9)
SCC 460, Hon’ble Supreme Court discussed the ambit and scope of power 
with the Courts including the High Court under Section 397 and Section 482
of the Code.
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not be
appropriate for the court to scrutinize the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with
law.....
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the
charge has been framed properly and in accordance
with law in a given case, it may be reluctant to
interfere in exercise of its revisional jurisdiction unless
the case substantially falls within the categories
aforestated. Even framing of charge is a much
advanced stage in the proceedings under the Code of
Criminal Procedure.....
16. The above-stated principles clearly show that
inherent as well as revisional jurisdiction should be
exercised cautiously. If the jurisdiction under
Section 482 of the Code in relation to quashing of an
FIR is circumscribed by the factum and caution aforenoticed,
in that event, the revisional jurisdiction,
particularly while dealing with framing of a charge,
has to be even more limited. 
17. Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the Code,
unless the accused is discharged under Section 227 of
the Code. Under both these provisions, the court is
required to consider the 'record of the case' and
documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground
for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingredients of the Section exists, then the Court would
be right in presuming that there is ground to proceed
against the accused and frame the charge accordingly.
This presumption is not a presumption of law as such.
The satisfaction of the court in relation to the existence
of constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such
jurisdiction. It may even be weaker than a prima
facie case. There is a fine distinction between the
language of Sections 227 and 228 of the Code. Section
227 is expression of a definite opinion and judgment of
the Court while Section 228 is tentative. Thus, to say
that at the stage of framing of charge, the Court should
form an opinion that the accused is certainly guilty of
committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code.
19. At the initial stage of framing of a charge, the court
is concerned not with proof but with a strong suspicion
that the accused has committed an offence, which, if
put to trial, could prove him guilty. All that the court
has to see is that the material on record and the facts
would be compatible with the innocence of the accused
or not. The final test of guilt is not to be applied at that
stage.....”
13. In ‘P.Vijayan vs. State of Kerala and another’, 2010 (2) SCC
398, Supreme Court held :
“11. At the stage of Section 227, the Judge has merely
to sift the evidence in order to find out whether or not
there is sufficient ground for proceeding against the
accused. In other words, the sufficiency of ground
would take within its fold the nature of the evidence
recorded by the police or the documents produced
before the Court which ex facie disclose that there are
suspicious circumstances against the accused so as to
frame a charge against him.
12. The scope of Section 227 of the Code was
considered by this Court in the case of State of
Bihar v. Ramesh Singh : (1977) 4 SCC 39 wherein this
Court observed as follows:
“4....Strong suspicion against the accused, if the matter
remains in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong suspicion
which leads the Court to think that there is ground for
presuming that the accused has committed an offence
then it is not open to the Court to say that there is no
sufficient ground for proceeding against the accused.
The presumption of the guilt of the accused which is to
be drawn at the initial stage is not in the sense of the
law governing the trial of criminal cases in France
where the accused is presumed to be guilty unless the
contrary is proved. But it is only for the purpose of
deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the
Prosecutor proposes to adduce to prove the guilt of the
accused even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence,
if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for
proceeding with the trial....”
This Court has thus held that whereas strong suspicion
may not take the place of the proof at the trial stage, 
yet it may be sufficient for the satisfaction of the Trial
Judge in order to frame a charge against the accused.”
14. 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.
15. Again, the law is very clear that the court should refrain from
quashing the FIR on the ground that the allegations made in the FIR were
false. Inherent powers under Section 482 Cr.P.C. though wide have to be
exercised sparingly, carefully and with great caution and only when such
exercise is justified by the tests specifically laid down in the Section itself.
Authority of the court exists for the advancement of justice. If any abuse of
the process leading to injustice is brought to the notice of the court, then the
Court would be justified in preventing injustice by invoking inherent powers
in the absence of specific provisions in the statute [‘Subhkaran Luharuka &
Anr. vs. State’ (supra)]. In the instant case, it cannot be contended that the
allegations made in the First Information Report or the complaint do not
prima facie constitute offence or make out a case against the accused.
16. In the light of the above discussion, I find no merit in the
petition and it is dismissed. Pending application also stands disposed of.
17. Observations in the order shall have no impact on merits of the
case.
18. Trial Court record (if any) be sent back forthwith with the copy
of the order.

(S.P.GARG)
 JUDGE
AUGUST 03, 2016

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