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TMI Blog2013 (5) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 committing gangr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 complainant concealed her origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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, extortion, threat etc. which falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sarat Chander along with Ramesh Thakur and Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 in a totally false and fabricated case FIR knowing fully well that allegations ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 blood sample of the petitioners could not be collected at FSL Rohini for DNA profiling, whereas the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 complainant on the one hand submitting that she was unconscious and her explanation after the alleged incident that she was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bile 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 four engineers of DJB. 48. On the issue relating to CD, it is stated in the investigation report that Sant Ram and complainant ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accommodation and the source of funds for the same has also not been disclosed. g. On the day of incident, Ms. Vani Whig was using two mobile phones bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt 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 summon the petitioners. A copy of the said protest petition dated 08.07.2010 is annexed as Annexure-P9. 53. Learned counsel submitted that in the protest petition neither any materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigations 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 commission of offences under Sections 354/384/506/34 IPC at the DJB Office, Jhandewalan on 09/10.10.2006 (by B.M. Dhaul and the above three persons). It is not understandable as to how coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 above place of commission of the alleged offence and had established physical relations with him. It is also being stated that it is only because of this reason that the above pen set was gifted by the co-accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sanjay Sharma Vs. State- 1995 JCC 303, of our own High Court in support of their contention for rejection of the grant of anticipatory bail to the applicant/accused, but it is observed that there is no similarity betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 the Code of Criminal Procedure was really followed by the Magistrate at all while taking cognizance of the offence alleged. In this background of inherent falsehood that could be ex facie noticed from the contents of the complaint and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reon 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 the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 69. The learned ACMM had taken cognizance and summoned the petitioners/accused to appear to contend that the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing 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 and with a view to spite him due to private and personal grudge, the FIR can be quashed .... [Emphasis provided] 73. All the above quoted observations in all the above referred judgments squarely apply to the facts and circumstances of the present case for enabling this Court to exercise its inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds/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 this mobile number-9810021490 the complainant (on the date of incident, i.e., 08.10.2006) has made 8 outgoing calls at different points of time to Sarat Chander on his mobile phone No. 9810024703. Perusal of the contents of paragraphs 12 to 18 of the Cancellation Report become very relevant in order to appreciate the conclusions drawn by the Investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Vijay Kataria even on the date of incident -08.10.2006 and thereafter undoubtedly shows the close proximity between them and also establishes that for implicating the petitioners-DJB officials, the complainant was working at the behest and on instructions of Vijay Kataria. iii) On the date of incident, the complainant has been found using the instrument with IMEI N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner Praveen Bhargava in respect of 08.10.2006 (i.e. the date of alleged incident) shows that on the said date, total 16 number of incoming and outgoing calls were received and made from the said petitioner's aforesaid number 9818241666. Relevant Call Details Chart in respect of the petitioner's aforesaid number 9818241666 from page No. 815 written at bottom of page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 referring the case diary from the police file. 92. Learned counsel also submitted that the analysis of the call details in respect of the mobile phone No. 9811168133 (Vodafone) used by Ramesh Thakur (petitioner in Crl. M.C. No. 2019/2011) on the date of alleged incident, i.e., 08.10.2006 [from instrument bearing IMEI No. 353766006556100]. All call details (made received) on 08.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 investigation it was revealed that Mr. Vijay Kataria had great influence and control over the prosecutrix, which is amply clear from the audio tape recorded conversation between the petitioner Sarat Chander and Mr. Vijay Kataria. The conversation leaves no room for doubt that the prosecutrix has been acting completely at the behest of Mr. Vijay Kataria and has falsely got implicated the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 location of Faiz road, Karol Bagh (office of DJB)., Further both of them did not disclose true facts during investigation of this case. xii. The DNA Tests have proved beyond doubt that the allegations of the complainant in this case are not proved. xiii. There was inordinate delay of eight months in not reporting the matter to the police or to any other authority. Neither the complainant nor Ms. Ruby Thaku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 crying position, it suggests res gestate. 100. Learned counsel submitted that the aforesaid grounds are infact no grounds in law to take cognizance of the offences. As regards point Nos. i and ii, it is submitted that the learned ACMM has also ignored the fact that Sant Ram and Ms. Vani gave different versions regarding the CD being played. Sant Ram stated that when he entered BM Dhaul's office, Ms. Vani has clearly sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 as the various calls on telephones have been thoroughly analyzed during investigation, which go to show that co-accused Mr. Ramesh Thakur on 08.10.2006 (the day of incident) was present at his residence in Rohini, Delhi. It was Sunday. He visited Sunder Lal Jain Hospital, Ashok Vihar to meet a sick colleague, who had suffered a heart attack and had later died the same night. He had stayed with the family in the hospital. In the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the evidence on record and, therefore, warrants no interference. This appeal is dismissed. 110. In the case of Meena and Another Vs. State of Haryana (Crl. M.C. No. 1104 of 2008 in High Court of Punjab and Haryana) and in Lakhwinder Singh Vs. State of Punjab, 2004 (4) RCR (Cri.) 104, it was held in para Nos. 12 and 19 as under:- 12. The observations made above leave no manner of doubt that the wholesome jurisdiction conferred upon the High Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 or criminal miscarriage of justice by exercise of jurisdiction under Section 482 Cr.P.C. 112. In the case of Vijayan Vs. State of Kerala 2008 (12) Scale 107, it is observed that, the present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint. At a realization drawn upon her that she has been subjected to rape by the accused, no complaint for grievance was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Bhargav and Mr. Ramesh Thakur came at the above mentioned place. 115. It is further alleged that they offered some pastry to complainant, which she consumed and after consuming the same became semi-unconscious. In that condition, all the three persons named above committed rape with her one by one. These persons also prepared a CD of this incident. Thereafter, they all left the place. At that time, she was bleeding and traumatized. It was alleged that when they were coming down from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 as per Section 190 Cr.P.C., to take cognizance, it is an important requirement that the police report must contain such facts which constitute such offence. 125. Learned counsel submitted that after taking the cognizance on complaint, the summoning order cannot be passed without examining the complainant or her witnesses. If the case is instituted upon police report, it is an important requirement that there must be sufficient material in the report to form a prima facie view that the offence has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence 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 investigation it was found that Vijay Kataria had discussed the CD and its contents with Mr. Sarat Chander. It was found that Vijay Kataria had discussed the CD and its contents with Mr. Sarat Chander and he even threatened the petitioner with exposure of the contents of the CD. 129. The learned ACMM has erred while observing that statement of Ruby Thakur is also corroborating the version given by the complainant. The falsehood and fabrication of the statement of Ms. Ruby Thakur is evident from the following facts:- (a) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odation, 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 minutes approx.). As per the cell ID chart, these conversations started from Shivalik and ended at Malviya Nagar. Again at about 8.27 PM, 9.55 PM and at 10.20 PM, complainant sent the SMS to this number. 133. He submitted that these facts falsify the story of being afraid and horrified. Ruby Thakur was also having a mobile and on same day at about 12 noon she had a long conversation of about 9 minutes with her employer Vijay Kataria. Meaning thereby that she was in touch with Vijay Kataria, but this alleged horrified inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecutrix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervening 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 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination. Accordingly, the chargesheet and framing of charges were quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 senior counsel further submitted that in these circumstances, the complainant was constrained to file an application under Section 156(3) Cr.P.C. on 02.06.2007. On 04.06.2007, when the case came up for hearing before the learned ACMM, the action taken report was called from the DCP by the said Court for 18.06.2007. Thereafter, FIR in question was registered on 09.06.2007 at PS Malviya Nagar. 142. Learned senior counsel further submitted that the investigation of the said complaint continued almost three years, therefore, the police filed a final report of Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 support the allegation of rape. 144. According to FSL Report dated 26.09.2007, human blood stains and human semen stains were found on the given bed sheet. FSL was requested to generate DNA profile from the bed sheet. The persistent resistance on the part of complainant to provide her blood sample for DNA analysis was found to be intriguing. The blood samples and the bed sheet were sent to CFSL, Lodhi Colony. The report mentioned that no female fraction DNA could be generated from the source of bed sheets; DNA profile generated from the female fraction DNA ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show that Ramesh Thakur was using two mobile numbers, i.e., 9818133783 and 9811168133. According to Cancellation report Para 23 without obtaining the call details and location details of mobile number 9818133783, of accused Ramesh Thakur, the police could not have reached to a conclusion that on the day of incident he was in Rohini. 147. Ld. Counsel further submitted that in para 24 of the Cancellation Report, it is mentioned that on 08.10.2006 at 08:32 p.m. and again at 09:27 p.m., Praveen Bhargava received a call from Ramesh Thakur (Cell No. 9818133783). However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unable to stop them, as she had no control over her senses. This statement of the Complainant was deliberately ignored by the police in its closure report. Minor discrepancy in the version of Complainant and Sant Ram, regarding playing of CD would not discredit their statements and the same cannot be discarded in this manner. It was not appreciated that Sant Ram is an independent witness. 152. Mr. Mittal further submitted that petitioner Parveen Bhargava had contacted various senior police officials and senior officers in Delhi Government to take their favour so that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and based upon adequate evidence, does not become vitiated on account of malafides or political vendetta of the first informant or the Complainant. [Refer 1992 Suppl. (1) SCC 335 State of Haryana Vs. Bhajan Lal .] 159. The malafide of the informant are of secondary importance. At the trial, it is wide open to the accused to cross examine the witnesses and to adduce defence evidence and to test the veracity of the evidence collected during the investigation.[Refer 1992 (Suppl. 1) SCC 222 State of Bihar Vs. P.P. Sharma .) 160. The allegations made in the complaint will be decided at the time of trial. [Refer (1986) 3 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly, 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 investigations, the police recorded statements U/s. 161 Cr.P.C. of independent and material witnesses, conducted medical examination, polygraphs tests, DNA profile and examined call details of the petitioners, complainant and other related persons. 170. Inquiries and investigations were made in respect of presence of petitioners, i.e., Praveen Bhargava and Ramesh Thakur on the date of incident, i.e., 08.10.2006 at the alleged place of offence, i.e., B-136, Second Floor, Shivalik, Malviya Nagar, New Delhi. After the inquiries and investigations, on the basis of available evidence the police came to the conclusion that petitioners, Praveen Bhargava and Ramesh Thakur were not even found close to the place of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) 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 is that while committing the gang rape upon her, the petitioners had prepared a CD and threatened her not to disclose to anyone. Further they insisted to make complaint against Vijay Kataria, i.e., her former employer. It is alleged in the complaint that the said CD was played on 09.10.2006 in B.M. Dhaul's office at Delhi Jal Board, Faiz Road, Delhi, which was seen by one Sant Ram. 179. The police thoroughly investigated on the issue of CD by examining said Sant Ram and B.M. Dhaul. Police has concluded in its final report that although the aforesaid CD was available with Vijay Kataria (as per audio recording between Sarat Chander and Vijay Kataria), however, the said CD was never produced by anyone. 180. On the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijay 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 gave different versions regarding CD played in the office of Delhi Jal Board. 187. In addition to the systematic independent scientific analysis such as DNA test, polygraph tests, call details of the complainant and all the alleged persons and some other persons who have bearing on the case, the IO also recorded the oral evidence in the form of statements. The statements of Mr. M.L. Pandey, Ms. Ruby Thakur, Mr. M.L. Sharma and Mr. Sunil Kumar, recorded by the police, as discussed above, were found to be at variance. Therefore, the police has concluded that Vijay Kataria is in conspiracy with the complainant in implicating the petitioners. 188. All the petitioners were examined, interrogated and their call details were verified. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 established from the different numbers and handsets, they have used over a period of time and their being together at the cell phone based location of Faiz Road, Karol Bagh (Office of DJB). Further both of them did not disclose true facts during investigation of this case. 191. On receipt of the said closure report, vide order dated 02.06.2010, learned ACMM directed to supply the copy of the same to the complainant for enabling her to file objection, if any. Accordingly, on 08.07.2010, the complainant filed her protest petition, whereby it is stated that police record may be ignored and the court should take cognizance of the offence and summon the petitioners. 192. Though, the investigation has established that the complainant lured pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, 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 complainant was going on, as depicted in CD was seen by one independent witness, namely, Shri Sant Ram.... 199. Moreover, the learned ACMM has wrongly relied upon Section 114A of the Indian Evidence Act, which cannot be relied upon at the stage of summoning the accused. The said provision is applicable for trial. 200. It is pertinent to mention here that the mobile No. 9958772222 owned by petitioner Praveen Bhargava was activated on 19.03.2008, much after the alleged occurrence. Therefore, if the police has not examined call details of this telephone number, that will not prejudice the allegation of the complainant. 201. Admittedly, complainant has been working with M/s. Kaveri Infrastructure of which Mr. Vijay Kataria was the Financial Adviser. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said proceedings have also been summoned by this Court to avoid multiplication of proceedings, which has been registered as Crl. Revision Petition No. 208/2012 and the same has been heard together by this Court and is being disposed of together. 207. The Apex Court has taken a view in the case of Prashant Bharti (supra) that to invoke its inherent jurisdiction U/s. 482 Cr.P.C., the High 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. 208. It is pertinent to mention here that power under Section 482 Cr.P.C. has to be exercised sparingly and in the interest of justice. However, allowing the criminal prosecution pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- 2000 3 AD (Cr) DHC 176, came to the conclusion that the complaint filed by the complainant under Section 376 IPC was found to be false on investigation. The police filed Final Report under Section 173 Cr.P.C. before the learned Magistrate praying that the case be cancelled as there was no substance in the allegations contained in the FIR. The learned Magistrate instead of accepting the report opined that an offence under Section 376 IPC was made out and consequently the accused was summoned. 213. The Supreme Court in State of Karnataka Vs. L. Muniswami Ors-AIR 1977 SC 1489, wherein the relevant observations with regard to powers of the High Court to quash the proceedings were explained and it was observed that if the High Court comes to the conclusion that allowing the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 218. In view of the above legal position, this Court is not expected to throw out a case on technicalities but is expected to interfere wherever there has been failure 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 the criminal prosecution is an abuse of process of the Court. 219. In view of the above discussion and legal position, I set aside order dated 13.05.2011 passed by the learned ACMM, Saket Courts, New Delhi. Consequently, FIR No. 610/2007, P.S. Malviya Nagar, New Delhi and the proceedings emanating therefrom, if any, are hereby quashed. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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