9911796707
TMI Blog2013 (5) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed under Section 482/483 Cr.P.C. against the impugned order dated 13.05.2011 passed by the learned ACMM, Saket Courts, Delhi, whereby the learned Judge has taken the cognizance of the offence punishable under Section 376(g) of the Indian Penal Code, 1860 and summoned the petitioners/accused, namely, Sarat Chander, Praveen Bhargava and Ramesh Thakur under Section 204 Cr.P.C. Vide the above noted petitions, the petitioners are seeking quashing of the order dated 13.05.2011 and FIR No. 610/2007 registered at PS-Malviya Nagar, Delhi. 2. Crl. Revision Petition No. 208/2012 has been filed by the State for quashing the order dated 13.05.2011 passed by the learned ACMM in the complaint case No. 77/2007 filed by the complainant. 3. Since the petitioners are seeking quashing of the impugned order dated 13.05.2011 and FIR No 610/2007 vide all the above noted petitions, therefore, this Court has decided to dispose of all the petitions by a common judgment. 4. The factual matrix of the cases are that the respondent No. 2/complainant lodged a complaint on 24.05.2007 directly with Commissioner of Police against the petitioners namely Sarat Chander, Praveen Bhargava and Ramesh Thakur for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also an Engineer by profession and presently staying at E-14/3, DLF Phase-I, Gurgaon, Haryana and posted as Chief Engineer (Projects) in Delhi Jal Board. 12. Ld. Counsel for the petitioners has submitted that the investigation has revealed that the respondent no. 2/complainant is an educated working lady and living with her family, i.e., mother, brother etc. at her permanent address at 80/A, Malviya Nagar, New Delhi (as given by her in her complaint). She is an MBA and also pursued a course of CCTV Report Reading and Paper Report Making from UK. 13. On the date of occurrence, i.e., on 08.10.2006, she was in employment with Kaveri Construction Pvt. Ltd. controlled and operated by one Vijay Kataria, a Contractor with Delhi Jal Board where the petitioners are working. This is the First introduction and educational background of respondent no. 2/complainant. 14. Further investigation reveals that on interrogation of Sarat Chander he disclosed that the complainant came to his office and introduced herself as Ms. Shivani, claiming to be a student of Journalism and she wanted to collect data to write a story on Sonia Vihar Treatment Plant Project. This fact reveals that the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Board and said that they would help her in getting a job in Delhi Jal Board. 19. It is further stated that, they were carrying some pastries, which they offered her to eat. After eating the pastries, she felt drowsy. Thereafter, she was physically exploited by all. These persons had sexual intercourse with her one by one without her consent. Thereafter, she regained her consciousness and when her friend Ruby Thakur arrived there, everything was told to her. 20. Ld. Counsel for the petitioners submitted that shockingly, the complainant despite such a serious offence, which she alleges has taken place on 08.10.2006 chooses not to file any complaint of any nature till 24.05.2007 either before the Police or any other law enforcing agency and even no plausible explanation of such an enormous delay of more than 8 months has been furnished in the complaint or even subsequently in her protest petition. 21. He further submitted that although in the complaint dated 24.05.2007 she has made allegations of commission of offences of gang rape, which allegedly took place on 08.10.2006 at Shivalik, Malviya Nagar, New Delhi, whereas she also made complaint of other offences of molestation, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the call details of the complainant and petitioner Sarat Chander were collected, examined and investigated. The analysis of call details, Cell ID locations, Cell ID Chart reveals that no plausible explanation was furnished by the complainant and it shows some startling facts of the two mobile phone numbers of the complainant and the involvement of one Vijay Kataria. 28. He further submitted that the enquiries and investigations were also made in respect of the presence of petitioners Praveen Bhargava and Ramesh Thakur on the date of incident, i.e., on 08.10.2006. Their call records were obtained and analysed accordingly. The fact of examination of one Smt. Bindu Sharma, W/o, Late Sh. Arvind Sharma reveals that Praveen Bhargava along with his wife had come to visit her ailing husband at Sunder Lal Jain Hospital, Ashok Vihar, Delhi. The mobile phone location of the petitioners during the said date/time has also been mentioned in the police report. The conclusions of the police, stated to have found in Para 25 of the cancellation report, are as under:- During investigation sufficient evidence came on record to establish that the allegations of Ms. Vani Whig that Sara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the subject matter of the trial held by him, the Magistrate shall stay the complaint case proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. 31. It is further submitted that the records of the complaint case also establishes that complainant had been consistently pressing for the arrest of all the accused which is evident from the order dated 10.08.2007. It is apparent that ld. ACMM vide order dated 10.08.2007 declined a application moved by the complainant seeking direction for arrest of accused observing that "at this stage, when the investigation is in progress, it is not proper for the court to issue directions for the arrest of accused persons. It is bound and duty of the IO to apprehend the accused persons when the material has come against them during the investigation" 32. Ld. Counsel submits that it is thus quite clear and apparent that the sole aim for making of the complaint and initiation of criminal proceedings at such a belated period of time are and were actuated by the complainant with ulterior motive and sole intent to cause harm to the petitioners by securing their arrest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reports dated 23.05.2008 and 13.08.2008 before this court. The report dated 23.05.2008 reveals as under: (a) The medical examination of respondent no. 2 was conducted on 15.06.2007. (b) The clothes i.e. Trouser, shirt and underwear stated to have been worn by the petitioners on the day of incident were taken into police possession and was sent for examination at FSL. Result was obtained. (c) On 21.08.2007 the respondent no. 2 gave one bed sheet having blood stains, claiming the same to be on bed on the day of incident and it was sent to FSL Rohini for examination. Report of FSL was received. (d) The bed sheet was again sent to FSL Rohini, Delhi for DNA profiling and the report was received. The blood samples of alleged persons namely Sarat Chander, Praveen Bhargava and Ramesh Thakur have been deposited at FSL Rohini for DNA profiling and opinion thereof is still awaited. 37. Whereas the other Status report dated 13.08.2008 states as under: The complainant of the present case was served a notice on 09.03.2008 to join the investigation for providing blood sample for DNA profiling but neither she joined the investigation nor she has replied to the notice due on which the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police. 41. With regard to the so called CD containing a vital piece of evidence allegedly a video recording of the alleged rape being used to threaten complainant and played on 09.10.2006 and allegedly seen by one witness Sant Ram as per summoning order and as per the complaint at B.M. Dhaul's Office at Delhi Jal Board, Faiz Road, Delhi. These facts were also thoroughly investigated and examinations of said Sant Ram and B.M. Dhaul are available on CD. Admittedly, this CD was never produced nor submitted, although it is available with Mr. Vijay Kataria (as per audio recording between Sarat Chander and Vijay Kataria). The details of investigation into the issue are also stated in the cancellation report. On the basis of material, the police concluded that Vijay Kataria is involved in a conspiracy with the complainant to implicate the petitioners. The audio version also proves that the CD was in possession of the said Vijay Kataria and not with Sarat Chander and others, as alleged by the complainant. 42. Ld. Counsel further submitted that the investigation has also revealed that complainant and Vijay Kataria were together involved in the conspiracy. The conduct of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AM to 06.19 PM. The same IMEI No. 357926008481870 was used between 01.10.2006 to 31.12.2006 by Mr. Vijay Kataria on his mobile phone no. 9810798109 (except on 25.10.2006) from 10.17 AM to 08.09 PM. This fact has been noted in the cancellation report filed by the police. 46. The police in Para 52 of the Cancellation Report noted as under:- All these findings prove that both Ms. Vani Whig and Vijay Kataria were in constant touch with each other and the versions given by both are incorrect when they deny the knowledge of telephone number 9910222660. It also proves that Ms. Vani Whig was in telephonic contact with Vijay Kataria on the alleged day of incident i.e. 08.10.2006 and had called him up immediately after she had sexual intercourse with Sarat Chander at B-136, Shivalik, Delhi. This finding shows that Ms. Vani Whig and Vijay Kataria were together involved in a conspiracy to lure Sarat Chander to B-136, Shivalik, Delhi on a Sunday evening to implicate him in the present case. 47. It is also stated in the Cancellation Report that relationship between Kataria and the officials of DJB was turning sour, therefore, Mr. Vijay Kataria was making complaint to Lt. Governor against fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that Vijay Kataria has been connected in various capacities i.e. MD/Business and Financial Advisor with Kaveri Infrastructure and is/was a contractor with Delhi Jal Board. b. Vijay Kataria has strained relations with Praveen Bhargava, Ramesh Thakur, Sarat Chander and B.M. Dhaul. Vijay Kataria had filed complaints against these officers with the office of Hon'ble L.G., Delhi. The Engineers themselves had previously filed complaints at various police stations apprehending implication in false cases by Vijay kataria. c. Ms. Vani Whig was working in Vijay Kataria's company since 2005. d. Ms. Vani Whig met Sarat Chander under a fake identity of a report named "Shivani" e. Ms. Vani Whig called Sarat Chander seven times on the day of the incident. f. The accommodation B-136, Shivalik, Delhi was hired by another employee of Kaveri Infrastructure named Ms. Ruby Thakur for which she falsely introduced Ms. Vani Whig as her married sister and for which Ms. Ruby Thakur paid Rs. 88,000/- as advance rental for four months. As discussed in detail earlier, neither Ms. Vani Whig nor Ms. Ruby Thakur have offered any plausible reason for hiring this relatively expensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Faiz Road, Karol Bagh (Office of DJB). Further both of them did not disclose true facts during investigation of this case. m. The DNA tests have proved beyond doubt that the allegations of the complainant in this case are not proved. The investigations conducted so far reveal that the complainant, Ms. Ruby Thakur, Vijay Kataria, Sant Ram and possibly some others have hatched a deep rooted conspiracy to implicate the alleged accused persons in a false case and hence Cancellation Report is being filed." The police officials in Para 88 of the Cancellation Report submitted that the invocation of provision U/s. 182 Cr.P.C. against complainant would be pressed through an appropriate application before the Hon'ble Court subsequently. 52. On 02.06.2010, the Ld. ACMM, on receipt of the aforesaid Cancellation Report, ordered that copy of the same be supplied to the complainant for enabling her to file protest petition/objections, if any. Accordingly, on 08.07.2010, the complainant filed her protest petition along with her supporting affidavit, wherein she stated that the report filed by the police may be ignored and the Court should take cognizance of the offence and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l details etc., which had completely belied the oral statements of the complainant and the so called independent witnesses (rather interested) through their extensive and in depth investigations based on which respondent No. 1/State has drawn the conclusions for submitting the Cancellation Report in the present case/FIR. 57. The casual and mechanical approach and non-application of mind by the learned Trial Court in dealing with the Cancellation Report and application of law is ex facie evident from bare perusal of this report in as much as the same has neither been accepted in toto nor it has been rejected. There has been only piecemeal acceptance of some part of the conclusion drawn by the police. This piecemeal and selective reliance on the contents of the final report cannot be sustained in the eyes of law. 58. Admittedly, the allegations in the complaint/FIR are pertaining to two different incidents at two different places and on two different dates. The complaint/FIR clearly reveals that one incident is with respect to alleged commission of offence under Section 376(g) IPC at Shivalik, Malviya Nagar on 08.10.2006 (by the petitioners) and the other relates to the alleged com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have been made by the suspects, was ever recovered in the present case. However, it was revealed that the CD was in possession of Vijay Kataria, Director of Kaveri Infrastructure Pvt. Ltd. The learned ACMM has failed to invite his attention to paragraphs 38 to 44 of the Cancellation Report as the same has not been considered by him. In addition to the above, the observation with regard to the so called CD, as made by the learned ASJ, New Delhi, while passing the order dated 24.06.2011 granting interim anticipatory bail to the petitioners read as under: 11. There is one other material aspect which cannot be ignored and the same relates to the alleged CD of the offence of gang rape. No such CD had been recovered by the police during the investigation and the interrogation of the above co-accused Sarat Chander had brought the investigating agency to a conclusion that the prosecutrix had introduced herself to the above co-accused with a fake identity of a journalist named "Shivani" and it was in furtherance of the above criminal conspiracy hatched between her and the above Mr. Vijay Kataria that she had subsequently invited the above co-accused Sarat Chander at the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the investigation process or influencing the witnesses are also not there as the investigation already stands concluded and even the cancellation report has been filed in the court, which though has been rejected by the Ld. ACMM concerned. As far as the recovery of the alleged CD, as is being much stressed by Ld. Counsels for the complainant/prosecutrix is concerned, the same is also not possible for the simple reason that the investigation has already come to an end and the applicant/accused has already been summoned by the Ld. ACMM concerned for the above said offence and no further investigation in the case was directed by the Ld. ACMM. Even otherwise, as stated above, the chances of there being any such CD of the incident being in possession of the applicant/accused are not there and the CD, if any, appears to be in possession of the above Mr. Vijay Kataria, as suggested by the above recording of the conversation between the co-accused Sarat Chander and the above Mr. Vijay Kataria. Though Ld. Counsels for the complainant have relied upon an order dated 05.12.2008 in Bail Application No. 2384/2008 titled as Dilip Thakur Vs. State and a judgment/order dated 01.03.1995 in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affidavit in as much as submitting that petitioner Praveen Bhargava has been using one number, i.e., 9958772222, which is stated to have been in the name of the said petitioner. She submitted that neither the call records of this mobile number have been verified nor the details have been taken during investigation. Whereas, as a matter of fact, the petitioner has annexed the clinching document dated 13.06.2011 received from Nodal Officer of Airtel certifying that the said mobile number was activated on 19.03.2008 and whereas as per respondent No. 2, the alleged occurrence took place on 08.10.2006. 67. The learned counsel for the petitioners has relied upon the judgment of Vijay Shekhar & Anr. Vs. UOI & Ors. 2004 (2) JCC 1123, wherein the Supreme Court, while quashing the complaint and the entire proceedings pending before the court of learned MM, in Para 8 has observed as under:- 8. Be that as it may from the above pleadings and the arguments addressed on behalf of the respective parties before us today, it is clear that the complaint in question is a product of fraud and a total abuse of the process of court. There is also serious doubt whether the procedure required under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any action taken pursuant to the said complaint gets vitiated. Therefore, we think the complaint registered before the Metropolitan Magistrate, Court No. 10 at Ahmedabad in Criminal Case No. 118 of 2004 dated 15.1.2004 and all actions taken thereon including the issuance of non-bailable warrants is liable to be declared ab initio void, hence, liable to be set aside. 68. Regarding power and jurisdiction of this Court to entertain the present petition under Section 482 Cr.P.C., the Apex Court in the recent decisions in Prashant Bharti v. State of NCT of Delhi 2013 (2) AD (S.C.) 89" on 23.01.2013 has in a similar and identical case observed inter alia as under:- 19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan La/Kapoor (Criminal Appeal No...... of 2013, arising out of SLP (Crl.) no. 4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under: 22. The issue being examined in the instant case is the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) 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. (iii) 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? (iv) 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? 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 waste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of malice in order to wreck vengeance on the petitioners because the petitioners refused to live in relationship with the complainant. This Court, after dealing with the facts, at para 8, made the following observations as under: 8. It is settled law that the Court should refrain from quashing FIR on the ground that allegations made in FIR were false. However, when FIR is lodged with mala fide motives to wreck vengeance, the Courts have interfered as an exceptional matter and quashed the FIRs. In M/s. Eicher Tractors Limited & Ors. v. Harihar Singh & Anr. 2009 (1) JCC 260, State of Karnataka v. M. Devendrappa 2002 (1) JCC 214, State of Haryana v. Bhajan Lal 1992 SCC (Crl.) 426 and Madhavrao J. Scindhia v. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating Agency with the heading "Official no's list given by DJB" and then "Subscriber Detail of phone numbers"(which is at page No. 509 written at bottom of the page with TCR). 78. Learned counsel submitted that it will also be relevant, at this stage, to give some call detail analysis from the mobile phone call records/documents available in the TCR which is re-produced as under:- Call Details Analysis of the two phone Nos. used by complainant (w.e.f. 01.10.2006 to 31.12.2006). 79. He submitted that the analysis of the call details in respect of mobile phone No. 9818185579 on 08.10.2006, which is part of record, is as under:- The above call records' chart shows that the complainant has been in constant touch with Vijay Kataria and she has made calls and received various calls on her above mobile number on 09.10.2006 and 10.10.2006 and thereafter from 9910222660 (used by Vijay Kataria) at short intervals. 80. The analysis of the call details in respect of the second mobile phone No. 9810021490 of complainant on 08.10.2006, which is also part of record, is as under: - 81. Learned counsel submitted that the above said call record shows that from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in paragraphs 12, 13, 14 and 15 of the Cancellation Report (at pages 95 to 96 of the petition). The exact chart prepared on the basis of call details analysis of two telephone numbers used by respondent No. 2 (9818185579 and 9810021490) is at para 16 of the Cancellation Report at page 97-98 of the petition, whereas contents of paragraphs 68-69 shows that both, i.e., the complainant and Vijay Kataria, were found together in the same locality, i.e., Delhi Jal Board office on 09.10.2006. All this clearly shows the prior meetings of mind between the complainant and Vijay Kataria and further becomes very relevant and gives startling facts to establish that:- i) The respondent No. 2 was and has been working with M/s. Kaveri Infrastructure of which Vijay Kataria was the Financial Advisor (please see Para 47 at page 110 of the petition). Complainant has been in constant touch with Vijay Kataria. This would be clear from the frequency of the calls between her and Mr. Vijay Kataria even at odd hours and even on holidays. ii) These call details prove the proximity of respondent No. 2 and Vijay Kataria from analysis of call details. The frequency of calls between complainant and Mr. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail records/print outs in respect of call details of the mobile phone Nos. 9818241666 and also 9811195078 of the petitioner both used by petitioner-Praveen Bhargava. 86. The call details in respect of mobile No. 9818241666 is available from page No. 811 to 823 written at bottom of the page with TCR and whereas the call details of the phone No. 9811195078 is available at page No. 825 written at bottom of the page on TCR. The photocopies of the said call details are also being enclosed herewith and are respectively marked as Annexure-Y as at pages 215-221 & Annexure Z as at page No. 222 of the index in vol. 2 filed with the written submissions. 87. A bare perusal of the call details undoubtedly made investigating agency to establish and conclude about the presence of the petitioner at his residence at Greater Kailash-1, New Delhi, on the date of alleged incident, i.e., 08.10.2006 and during the period of the alleged time of occurrence between 6.00 pm to 8.00 pm, as claimed by her during the course of hearing. It is a matter of record that no exact time of the alleged occurrence has been mentioned by her at any stage and all through. 88. Nonetheless the call details of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at petitioner- Praveen Bhargava has started proceeding from his residence G.K-1 along with his wife to visit the said ailing colleague at Sunder Lal Jain Hospital and on his way a second call was received by him from 9818133783 (used by Ramesh Thakur) at 21:27:28 hours on 08.10.2006. At that point of time, the location of said petitioner with his mobile phone was found at Palika Place near Panchkuian Road/Motia Khan, while he was on his way to Sunder Lal Jain Hospital, Ashok Vihar. All these call records, when seen and read with submissions made by the investigating agency in paragraphs 22 to 25 of the Cancellation Report at page 100-101 and then also at paragraphs 64 to 66 of the Cancellation Report at page 116-117 of the petition become very relevant in order to establish the factum of petitioners being falsely implicated in the present case. Then, at para 24 of the Cancellation Report there is also a reference to the revelation made by Smt. Bindu Sharma w/o Late Mr. Arvind Sharma that on 08.10.2006 in the late evening the petitioner and his wife had come to visit her late husband at Sunder Lal Jain Hospital, Ashok Vihar, Delhi. This fact was confirmed by respondent No. 1 by refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mr. B.M. Dhaul for molesting her and also for giving her threats. In the complaint, respondent No. 2 stated that the aforesaid apartment was of her friend Ruby, who was in the process of shifting from her old place to the new one in Shivalik. 97. Ld. Counsel submitted that the complaint of the prosecutrix was found completely false and motivated and ultimately, Cancellation Report was filed in the Court of learned ACMM, Saket, who did not accept the same and was pleased to summon the petitioner and others vide impugned order dated 13.05.2011. As per the closure report of the police, the present case is of deep rooted conspiracy hatched by Mr. Vijay Kataria, Managing Director of Kaveri Infrastructure/the employer of the complainant involving the complainant, another employee Ms. Ruby Thakur and Mr. Sant Ram, who is facing various criminal cases in the Courts of law. The learned ACMM ignored the fact that thorough investigation has clearly shown that sufficient evidence has come on record to establish that it was the culmination of a well planned conspiracy hatched to implicate the petitioner with the ulterior motive of subjecting him to undue pressure and influence. During invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... began at 10.37 AM and the last call was 10.20 PM in the night. viii. On the day of the incident at 08:17 pm complainant received a call from mobile phone No. 9910222660 (Vijay Kataria) and this call lasted for 290 seconds. The Cell ID location analysis of mobile phone number 9818185579 (complainant's phone) reveals that this call began at Cell ID 40661 which is Malviya Nagar, Shivalik, Delhi (place of occurrence) and ended at Cell ID 8941 which is Malviya Nagar, Delhi (complainant's residence). She also spoke with someone who called her from her Malviya Nagar residence number 011-65634607 (probably her mother) at 07.56 PM (incoming call for 15 seconds), i.e., immediately after the incident, but she chose not to disclose this incident as alleged. ix. Vijay Kataria and complainant have gone to great lengths to prevent any link between them from surfacing. They have used multiple mobile phone numbers to hoodwink the investigating agency regarding their interaction with each other. However, as discussed in detail earlier, their links have been established from the different numbers and handsets they have used over a period of time and being together at the Cell phone based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with the DNA Profile of prosecutrix and further no DNA Profile could be generated from the pant, shirt and the underwear. It is clear that the blood and semen on the bed sheet neither matched with that of the complainant nor with that of the petitioner. 99. Learned counsel further submitted that the learned ACMM considered the following points to take cognizance of the offences despite Cancellation Report filed by the police:- i. There was a sexual intercourse between complainant and accused Sarat Chander. ii. CD of the sexual intercourse was made as stated by independent witness Sant Ram. The presence of other two accused persons was seen by independent witness Sant Ram on the CD. iii. It is not digestible that in the common parlance of dignified Indian woman, prosecutrix/complainant would offer herself as a prey to some evil designs of her employer. iv. As there was sexual intercourse between complainant and Sarat Chander and as complainant and Sant Ram had seen CD where all three accused were doing the alleged activity, the statement of Ms. Ruby showing all the three persons hurriedly leaving the scene of crime and thereafter finding the complainant bleeding and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned ACMM on Section 114A of the Indian Evidence Act is totally misconceived as provisions of the same are applicable only when the prosecutrix states in her evidence before the Court that she did not consent. The stage of raising the said presumption does not arise at this stage at all as no trial has yet commenced. 105. Learned counsel has argued that there was a conspiracy in which the complainant was used as a tool in the hands of the Managing Director of the company, namely, Mr. Vijay Kataria is clear from the constant touch with him, who had falsely denied the knowledge of telephone No. 9910222660. The investigation has disclosed that complainant was in telephonic contact with Vijay Kataria on the alleged day of the incident, i.e., 08.10.2006 and had called him up immediately after she had alleged sexual intercourse with Sarat Chander at B-136, Shivalik, Delhi. This finding shows that she and Vijay Kataria were together involved in a conspiracy to lure Sarat Chander to that apartment on a Sunday evening and implicate him in the present case. 106. Learned counsel further argued that question of commission of offence of gang rape U/s. 376(g) IPC does not arise at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /appellant and we find ourselves in agreement with the view of the High Court that the testimony of the prosecutrix is not reliable. Having carefully scrutinized her evidence, we find that her testimony does not inspire confidence and her conduct appears to be highly unnatural. On an overall appreciation of the evidence of the prosecutrix and her conduct, we have come to the conclusion that PW 1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 482 Cr.P.C. has to be exercised sparingly and such power was not to be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Code, as it is prohibited under Section 397(3) Cr.P.C. However, the High Court can entertain a petition under Section 482 of the Code, when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provision of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court. 111. Thus, the legal position that emerges is that this Court is not expected to throw out a case on technicalities but is expected to interfere wherever there has been miscarriage of justice or misuse of judicial mechanism or procedure. This Court is not expected to be a mere silent spectator when it is made out that that criminal prosecution is an abuse of process of the Court. This Court, in its discretion, is expected to prevent the abuse of process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sarat Chander offered to extend his help in getting good job to the complainant in Delhi Jal Board. It was alleged that on this pretext, Mr. Sarat Chander took her mobile number and started calling her on her mobile phone. In the end of September, 2006, Mr. Sarat Chander met her in a restaurant, called Ruby Tuesday at District Centre, Saket. Mr. Sarat Chander gave a gift of pen set to her and also collected her CV for the purpose of arranging an interview for better job. 114. Further alleged, that on 08.10.2006, Mr. Sarat Chander asked the complainant on mobile phone to come at Tivoli Garden for collecting interview letter of Delhi Jal Board. Complainant has alleged that at that time, she was at her friend's place at B-136, IInd Floor, Shivalik, New Delhi and was busy in helping her friend in shifting the house from old residence. Accordingly, she expressed her inability to come to Tivoli Garden. Upon this Mr. Sarat Chander told her that the matter was urgent, therefore, she should receive this letter by today itself. He offered to come at B-136, IInd Floor, Shivalik, New Delhi for delivering the letter. Thereafter, he alongwith his two colleagues, namely, Mr. Praveen Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r U/s. 204 Cr.P.C. was passed. 122. The present revision petition has been preferred before this Court as the petitioner felt aggrieved of the order of taking cognizance despite the fact that the police thoroughly investigated the case and filed the closure report, on the following grounds:- The learned ACMM has failed to appreciate the fact that U/s. 190 Cr.P.C., the Court of MM is empowered to take cognizance: (a) Upon receiving a complaint of facts which constitute such offence. (b) Upon police report of such facts. (c) Upon information received from any person other than police officer or upon his own knowledge that such offence has been committed. 123. Learned standing counsel submitted that at the time of passing of the order of cognizance on 13.05.2011, both police report and the complaint were pending before the learned ACMM and by this order it is not clear as to whether cognizance is taken on the complaint or on police report. 124. He submitted that in the police report none of the allegation of complainant was found to be true or corroborated by facts emerged during the investigation, so there was no occasion of taking the cognizance on police report. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that during the investigation this statement of Sant Ram was found unreliable because of following facts:- (a) The complainant in her complaint has stated that CD was played only when Sant Ram had already been sent out of the room by Mr. B.M. Dhaul. Whereas Sant Ram in his statement has stated that when he entered in the room of Mr. B.M. Dhaul, the CD was being played. These statements are contradictory to each other and falsify each other. (b) By the study of CDRs of mobile phone of complainant, her presence in office of Jal Board was not established on the date and time on which Sant Ram has allegedly seen the complainant and playing of CD in the office of Mr. B.M. Dhaul. (c) During the course of investigation, it was found that Sant Ram had remained involved as co-accused in several cases registered against Vijay Kataria, who is the employer of the complainant. The said Kataria has been on inimical terms with all three alleged accused persons in this case. (d) During the investigation, it was revealed that the alleged CD, which complainant alleged to be in possession of the alleged accused persons, was in fact seen in possession of Mr. Vijay Kataria. During investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the premises B-136, Shivalik was not taken on rent for the purpose as mentioned in complaint or as deposed by Ruby Thakur in her statement. 131. It is further revealed from the statement of Mr. M.L. Sharma, owner of B-136, Shivalik that this premise was used only by the complainant and he had seen Ruby Thakur only on the day when she had come to take the possession. Further this premise is very close to the parental house of the complainant. So there was no explanation as to why she has chosen to live in this accommodation, when her own house was so close by. 132. He submitted that both the complainant and Ruby Thakur have tried to build up the story that after the incident till the complainant reached her house she remained afraid and perplexed. During the investigation, it was found that complainant, on the date of incident was using two mobile phones, i.e., 9818185579 and 9810021490. When the C.D.R. of these numbers were analyzed, it was found that soon after the incident at about 7.56 PM, complainant received a call from the landline number of her house, thereafter, at about 8.17 PM she had a conversation with a person using mobile No. 9910222660 for about 290 seconds (5 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. Thirdly, the complainant/prosecutrix, on and around the time referred to in the complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally because the complainant was a major on the date of occurrences, which fact emerges from the "certificate of marriage" dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations leveled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, the factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the-complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant that the DCP (South) is personally involved in the matter as on the day following the incident, the local SHO had called the complainant under instructions of the DCP (South). 140. Learned senior counsel further submitted that no action was taken by the Police on the complaint of the complainant. Rather the complaint was sent to the Vigilance department for inquiry and the Complainant was harassed, humiliated and embarrassed by the male Police officials, who asked indecent questions from the complainant. It is apparent that even before entertaining her complaint, the police was already briefed. It was later on transpired that the DCP (Vigilance) was in fact wife of DCP (South). Instead of sending the complaint to the concerned Police Station, the same was referred by the Commissioner (Vigilance) to the Vigilance Department, which is an unusual course of action. All this peculiar procedure was adopted as the call details of the accused would show that they were friendly with the DCP (South), whose wife was entrusted with the enquiry. Right from the inception, the conspiracy between the accused and the Police Officials to save them was apparent and glaring. 141. Learned sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up accommodation at B-136, Shivalik, Delhi, on rent, for some specific purpose. The complainant could not give any plausible explanation as to why she had made 7 calls to Sarat Chander on the date of incident. She was in constant touch on 08.10.2006, the date of incident, with Sarat Chander and Vijay Kataria. Her call pattern does not co-relate well with the allegation of being gang raped. The location of Ramesh Thakur's phone on 08.10.2006 shows that Ramesh Thakur's phone (9811168133) was either at his residence at Rohini or at Ashok Vihar. Praveen Bhargava's phone (9818241666) does not show any record between 06:09 p.m. and 08:32 p.m. on 08.10.2006. His phone location was at G.K.-1. Available evidence indicate that both Praveen Bhargava and Ramesh Thakur were not even close to the place of occurrence at the alleged date and time. She made false allegations against Ramesh Thakur and Praveen Bhargava in a conspiracy to falsely implicate them in a rape case. The clothes worn by the Complainant were sent to FSL, Rohini and the report mentioned that no semen could be detected on these exhibits, thus, the forensic examination of these clothes remained un-corroborative to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons had turned sour; the accused persons had filed written complaints expressing their apprehension of being implicated by Vijay Kataria in false cases. Investigation shows that C.D. was in possession of Vijay Kataria. Sant Ram and complainant gave different version regarding playing of the C.D. Sarat Chander admitted having sexual intercourse with complainant. Nothing has come on record to show that Sarat Chander had committed rape on complainant. The allegation of complainant that Sarat Chander had called her on her phone, is not supported by her phone records. She had called Sarat Chander 7 times from her mobile No. 9810021490 between 10:43 a.m. to 06:33 p.m. Sarat Chander was using his mobile phone No. 9810024703. In the C.D. played in the office of Mr. B.M. Dhaul, there were only Sarat Chander and complainant in the C.D. The other two accused Ramesh Thakur and Praveen Bhargava were not seen in the CD. 146. Mr. Mittal further submitted that cancellation report in Para 22 mentioned that Ramesh Thakur was only using one mobile number 9811168133. The letter dated 25.06.2007 issued by Delhi Jal Board, which contains the details of the mobile numbers of the accused persons sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of witness Sant Ram was also totally ignored by the police. Sant Ram has stated in his statement under section 161 Cr.P.C. that around 11-12th October, 2011 at 11:00-11:30 a.m. when he went to the office of Mr. B.M. Dhaul, Chief Engineer, DJB, he was told by the peon that a meeting is going on, but he still went inside. He saw that a VCD is being run on the computer, which he watched for 6-7 seconds and he saw some objectionable scenes. On seeing him, Mr. Dhaul switched off the computer and he noticed a girl there, who was crying. The witness stated that he saw that the same girl was in C.D., in unconscious stage, in an objectionable position, with Praveen Bhargava, Sarat Chander and Ramesh Thakur and in the scene Praveen Bhargava was doing the wrong thing and the remaining two were standing. 151. In the entire closure report, there is no mention of statement of complainant recorded under Section 164 Cr.P.C.; wherein she had clearly stated that she was made to eat one pastry, after which she felt drowsy and was not in her senses; she felt that three persons, namely, Sarat Chander, Praveen Bhargava and Ramesh Thakur were raping her, but she could not resist, and was unab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate, otherwise, the holding of a trial will be stalled. Even if the police report is to the effect that no case is made out against the accused, the magistrate can take into account the statements of the witnesses, examined by the police during the investigation and take cognizance of the offence and order the issue of process to the accused. [Refer (1989) 2 SCC 132 "M/s. India Carat Private Limited Vs. State of Karnataka &Anr." and "Dr. Mrs. Nupur Talwar Vs. CBI, Delhi & Anr. 2012 (1) ACR 332 (SC). 157. Upon receipt of police report under Section 173(2) Cr.P.C., a magistrate is entitled to take cognizance under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer. [Refer 2009 Crl. L.J. 3430 "Chittaranjan Mirdha Vs. Dulal Ghosh & Anr."] 158. Learned counsel submitted, in the present case there are no malafides, which can be attributed to the Complainant. The Police report in this regard is totally erroneous. Be that as it may, it is the settled law that a criminal prosecution, if otherwise justifiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence was committed against her will. [Refer AIR 1996 SC 922 "Bodhisattwa Gautam Vs. Ms. Subhra Chakraborty''.] He submitted that the call records as per Trial Court in FIR No. 610/2007, PS Malviya Nagar are as under:- He also submitted that the record of calls made by accused Praveen Bhargava to Higher Ministry and police official is as under:- 165. I have heard the learned counsel for the parties. 166. The present petitions are for quashing the impugned order dated 13.05.2011 passed by the learned ACMM, Saket Courts, Delhi, whereby the learned Judge has taken the cognizance U/s. 204 Cr.P.C. for the offence punishable U/s. 376(g) IPC and summoned the petitioners. 167. Admittedly, respondent No. 2/complainant filed a complaint for the offence mentioned above on 24.05.2007 belatedly after more than eight months for an incident which is alleged to have taken place on 08.10.2006. 168. Since, the complainant made the complaint for a gang rape belatedly for eight months and that too against Senior Officers of Delhi Jal Board, therefore, the Investigating Authority investigated the case in-depth before taking any legal action on the complaint. 169. During inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (Criminal) No. 463/2008 and sought directions from this Court to scrap the entire blood sampling, DNA profiling and comparison process being conducted in violation of law and insisted on the arrest of the accused persons. The aforesaid Writ Petition was disposed of vide order dated 14.08.2008, whereby this Court directed the IO, namely, Inspector Jaswant Kaur to accompany the complainant to the CFSL, CBI, Lodhi Road, CGO Complex, New Delhi on 18.08.2008 at 11.00 am, where she had to give her blood sample. The above named IO was further directed to file a report before the Trial Court as early as possible. 176. The complainant, instead of complying with the directions passed by this Court, filed the SLP (Criminal) No. 6306/2008 against the order dated 14.08.2008 passed by this Court, however, same was dismissed vide order dated 16.01.2009 by the Apex Court. 177. Having no option, complainant, on 04.02.2009 provided her blood samples for the DNA test at AIIMS, New Delhi. On receiving the report from FSL, scientific and forensic evidence did not support the version of the complainant. 178. On the delay of filing the complaint, the case of the respondent No. 2/complainant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.10.2006 from 07.06 pm to 07.56 pm and the same handset being IMEI No. 357926008481870 was also used to operate the mysterious telephone number 9910222660 on 25.10.2006 from 10.17 am to 06.19 pm. Importantly, the same IMEI number was used between 01.10.2006 to 31.12.2006 by Mr. Vijay Kataria on his mobile No. 9810798109 (except on 25.10.2006) from 10.17 am to 08.09 pm. 184. On the basis of above, in cancellation report the police has established that the complainant and Vijay Kataria were in constant touch with each other. She was in contact on phone with Vijay Kataria on the alleged date of incident, i.e. on 08.10.2006 and had called him up immediately after the alleged incident. Thus, it is proved that the complainant and Vijay Kataria were together involved in a conspiracy to lure Sarat Chander at the aforesaid place. 185. The cancellation report has also established that the relationship between Vijay Kataria and officials of Delhi Jal Board were not cordial, therefore, Vijay Kataria had been making complaint to Lieutenant Governor against four engineers of Delhi Jal Board. 186. On the issue relating to CD, the investigation has established that Sant Ram and complainant gav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ria) and this call lasted for 290 seconds. The cell ID location analysis of mobile phone number 9818185579 (Ms. Vani Whig's phone) reveals that this call began at Cell ID 40661 which is Malviya Nagar, Shivalik, Delhi (Place of occurrence) and ended at Cell ID 8941 which is Malviya Nagar, Delhi (Ms. Vani's residence). She also spoke with someone who called her from her Malviya Nagar residence number 011-65634607 (probably her mother) at 07.56 p.m. (incoming call for 15 seconds), i.e., immediately after the incident, but she chose not to disclose this incident as alleged. Even after returning home no family members observed any abnormality in her behaviour. 190. The allegation of molestation by Sh. B.M. Dhaul at DJB office is not proved as statements of Sant Ram and Ms. Vani Whig are at variance. Sant Ram and Vijay Kataria are close friends and have common criminal cases amongst them. Vijay Kataria and Ms. Vani Whig have gone to great lengths to prevent any links between them from surfacing. They have used multiple mobile phone numbers to hoodwink the investigation regarding their interaction with each other. However, as discussed in detailed earlier, their links have been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not. Cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence which appears to have been committed. 197. The theory of CD has been rejected by the police as it was founded only on the basis of the statements of the complainant and witness Sant Ram. The learned Magistrate has also accepted the same. There is no challenge by the complainant. Therefore, cognizance for an offence under Section 376(g) IPC could not be and cannot be taken on the basis of statements of the said very witnesses, i.e., complainant and Sant Ram. 198. However, the learned ACMM has made contrary observations in the impugned order as under:- ...As far as the presence of other two accused persons are concerned, it was seen by Ms. Ruby Thakur. Further, the presence of other two accused when sexual activity on comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the complainant, reveal that the petitioner had been in touch with the above Officers even before the complaint made by the complainant and after the complaint. The petitioners, being in the senior position in Delhi Jal Board, are answerable to the above noted officers for the any issue arises regarding the supply of water in Delhi. Therefore, it does not establish that any favour has been sought by them by calling to the above officers. 205. It is held in case of Vijay Shekhar (supra), that if there is evidence to prove that the complainant is a fraudulent one, the same is liable to be quashed. Even, if anyone make representation which he knows to be false and injury ensues therefrom is always to be viewed seriously. A collusion or conspiracy with a view to cause the damage to the other person amounts to fraud. 206. It is pertinent to mention here that the State has preferred Criminal Revision Petition No. 203/2011 titled as State through DCP Crime Vs. Sarat Chander & Ors. before the Court of learned District Judge-cum-ASJ, South District, Saket Courts, Delhi against the same very impugned order dated 13.05.2011 passed by the learned ACMM, South District, Saket, Delhi. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope and exercise of powers under Section 482 Cr.P.C., also took into consideration the well settled position of law as laid down by the Hon'ble Supreme Court and has extensively quoted the said legal position from the landmark judgment titled " State of Haryana Vs Bhajan Lal & Ors. 1992 (Supp) (1) SCC 335" (para 102-103. 105), wherein the Hon'ble Supreme Court in para 102 has categorized all cases where the extraordinary power under Article 226 or the inherent powers U/s. 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. The even categories/guidelines to give an exhaustive list of myriad kind of cases wherein such power should be exercised were also quoted therein. 211. On the basis of the said guidelines, the case of the petitioners squarely fall within the guideline Nos. (3), (5) and (7) of the above referred judgment. 212. At this stage it would also be relevant to place on record the findings and observations made by this Court while quashing the FIR as also the summoning order passed by the learned MM U/s. 376 IPC. This Court in case titled V.K. Tulsian Vs. State- 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incident, i.e., B-136, 2nd Floor, Shivalik, New Delhi, but was found far away at Sunder Lal Jain Hospital, Ashok Vihar, Delhi, at the alleged time of the offence, therefore, the question of commission of gang rape under Section 376(g) IPC does not arise at all. 217. It is settled law that conviction of an accused on the basis of the testimony of the prosecutrix is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, sort of corroboration that she is making a truthful statement. Proceedings initiated and continued for oblique motives or to take vengeance on the other party are liable to be quashed. Proceedings are also liable to be quashed if 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
