Khushwant Singh @ Sheeby Kohli vs State on 21 August, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: August 17, 2017
% Judgment Delivered on: August 21, 2017

+ CRL.REV.P. 603/2017

KHUSHWANT SINGH @ SHEEBY KOHLI ….. Petitioner
Through: Mr.Mohit Mathur, Sr. Advocate
with Mr.Rajinder Pal Singh
Mr.Mahipal Khanganwal,
Advocates

versus

STATE ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

Crl.M.A.13145/2017

1. Exemption allowed, subject to all just exceptions.

2. The application is disposed of.

CRL.REV.P. 603/2017

1. The petitioner has invoked the revisional jurisdiction of this
Court under Section 397 401 Cr.P.C. for seeking his discharge in
case FIR No.707/2015, under Section 328/376/506 IPC, PS Hari
Nagar and the inherent power vested in this Court under Section 482

CRL.REV.P. 603/2017 Page 1 of 9
Cr.P.C for quashing the above criminal proceedings initiated against
him.

2. Mr.Mohit Mathur, learned Senior Advocate submitted that in
view of the decision of the Supreme Court in Rukmini Narvekar vs.
Vijaya Satardekar Ors. (2008) 14 SCC 1, in exercise of its inherent
power under Section 482 Cr.P.C. this Court can examine the material
produced by the defence which demonstrates that the whole
prosecution in this case is based on a concocted story.

3. Mr.Mohit Mathur, learned Senior Advocate also placed reliance
on decision of Hon’ble Supreme Court in Dilawar Babu Kurane vs.
State of Maharashtra AIR 2002 SC 564 submitting that if two views
are equally possible the benefit should be extended to the accused.

4. Attention of this Court has also been drawn to the following
FIRs got registered by the same complainant against the petitioner and
other persons with similar allegations:-

Sl. FIR No. U/s PS Complainant Suspect
No.
1. 707/2015 376/506 Hari Smt. Rekha W/o Khushwant
dated IPC Nagar Saurabh Singh
14.05.15

2. 438/2015 506/34 Mianwali Rekha Khushwant
dated IPC Nagar Singh
23.06.15

3. 1653/2015 328/376 Hari Suman W/o Raghuvender
dated IPC Nagar Rakesh Singh
22.12.15

4. 1584/2015 376 IPC Dabri Rekha Rani D/o Rakesh Tyagi
dated Tirath Pal
31.12.15

CRL.REV.P. 603/2017 Page 2 of 9

As per Order dated 11.02.2016 passed by Ld. ASJ Dwarka
Courts, the FIR 1653/2015 was registered by the prosecutrix – Rekha
in a fictitious name – Suman.

5. Learned Senior Counsel for the petitioner also referred to the
status reports filed by the State at the stage of bail in various FIRs and
contended that on the basis of false and concocted story, the petitioner
has been charged for committing the offence punishable under Section
328/376/506 IPC. It has also been contended that during the alleged
incident of rape on two dates i.e. first on 7th May, 2015 at Amritsar
and second time on 13th May, 2015 at Delhi, as per CDR, the location
of the petitioner and the prosecutrix was not at the same place, hence it
was not a case to prima facie form a view to charge the
petitioner/accused for committing offence under Section 328/376/506
IPC.

6. In this petition, following prayers have been made by the
petitioner:-

“A. Set aside the impugned order dated 11/05/2017 passed
by the Hon’ble Court of Ms. Shail Jain, ASJ (Special Fast Track
Court)-01, West, Tis Hazari Court, Delhi framing charges
against the accused person Shri Khushwant Singh son of Shri
Kuldeep Singh under Section 328/376/506 of Indian Penal Code
in the matter titled as “State Versus Khushwant Singh” vide
State Case bearing no.149/16 in FIR No.707/15 at Police
Station-Hari Nagar and discharge the accused person in the
interest of justice;

B. To call upon or summon and examine the trial Court
record of case titled as “State Versus Khushwant Singh” vide

CRL.REV.P. 603/2017 Page 3 of 9
State Case bearing No.149/16 in FIR No.707/15 at Police
Station-Hari Nagar pending in the Court of Ms. Shail Jain, ASJ
(Special Fast Track Court)-01, West, Tis Hazari Court, Delhi
which is fixed for 08/09/2017 for prosecution evidence;

C. To expunge the remarks passed by Ms.Shail Jain, ASJ
(Special Fast Track Court)-01, West, Tis Hazari Court, Delhi
in impugned order dated 11/05/2017 in the case titled as
“State Versus Khushwant Singh” vide State Case bearing
No.149/16 in FIR No.70/15 at Police Station-Hari Nagar to
the effect that “It is argued on behalf of the accused by
Ld.Counsel that Relationship between prosecutrix and
accused were consensual.”

D. Stay the proceedings in case titled as “State Versus
Khushwant Singh” vide State Case bearing No.149/16 in FIR
No.70/15 at Police Station-Hari Nagar pending in the Court of
Ms.Shail Jain, ASJ (Special Fast Track Court)-01, West, Tis
Hazari Courts, Delhi which is fixed for 08/09/2017 for
prosecution evidence till the final disposal of the present
revision petition before this Hon’ble Court;
E. Pass such other and further orders which this Hon’ble
Court may deem fit and proper.”

7. While passing the impugned order on charge, in para 4, the
learned Trial Court had noted the contention on behalf of the
petitioner which reads as under:

“4. It is argued on behalf of the accused by Ld.
Counsel that allegations as leveled by the prosecutrix are
false. Prosecutrix had herself visited the accused.
Relationship between Prosecutrix and accused, were
consensual. Hence no charge under section
328/376/506 IPC is made out against the accused. With
these submissions, it is prayed by Ld. counsel for accused
that accused be discharged for the offences, he is charge
sheeted.”

CRL.REV.P. 603/2017 Page 4 of 9

8. When the attention of the learned Senior Advocate for the
petitioner was drawn to the submissions made in above para in the
order impugned, on instructions, he has not pressed the prayer ‘C’.

9. In the decision reported as Dilawar Babu Kurane vs. State of
Maharashtra AIR 2002 SC 564, in para 12 relied upon by the learned
Senior Counsel for the petitioner, it was held as under:

12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is that the
Judge while considering the question of framing the
charges under the said section has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made; where the materials placed
before the Court disclose grave suspicion against the
accused which has not been properly explained the Court
will be fully justified in framing a charge and proceeding
with the trial; by and large if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion
but not grave suspicion against the accused, he will be
fully justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot merely as a post office or a
mouthpiece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court
but should not make a roving enquiry into the pros and
cons of the mater and weigh the evidence as if he was
conducting a trial (See Union of India v. Prafulla Kumar
Samal and another (1979(3) SCC 5)

CRL.REV.P. 603/2017 Page 5 of 9

10. Learned Senior Counsel for the petitioner has also placed
reliance on the decision reported as Rukmini Narvekar vs. Vijaya
Satardekar Ors. (2008) 14 SCC 1, wherein in para 22 23 the
circumstances under which defence material can be considered have
been reiterated as under:-

22. Thus in our opinion while it is true that ordinarily
defence material cannot be looked into by the Court
while framing of the charge in view of D.N.Padhi case,
there may be some very rare and exceptional cases
where some defence material when shown to the trial
Court would convincingly demonstrate that the
prosecution version is totally absurd or preposterous,
and in such very rare cases the defence material can be
looked into by the Court at the time of framing of the
charges or taking cognizance. In our opinion, therefore,
it cannot be said as an absolute proposition that under
no circumstances can the Court look into the material
produced by the defence at the time of framing of the
charges, though this should be done in very rare cases
i.e. where the defence produces some material which
convincingly demonstrates that the whole prosecution
case is totally absurd or totally concocted.

23. We agree with Shri Lalit that in some very rare
cases the Court is justified in looking into the material
produced by the defence at the time of framing of the
charges, if such material convincingly establishes that
the whole prosecution version is totally absurd,
preposterous or concocted. However, in this case it
cannot be said that the evidence in the civil suit which
was produced by the defence before the trial Court
established convincingly that the prosecution case is
totally absurd or preposterous. In our opinion this is a
matter which has to be looked into by the trial Court.”

CRL.REV.P. 603/2017 Page 6 of 9

11. Although it has been argued before this Court that in view of
the decision of the Hon’ble Supreme Court in State of Orissa vs.
Debendra Nath Padhi (2005) 1 SCC 568 referred in the decision of
Hon’ble Supreme Court in Rukmini Narvekar vs. Vijaya Satardekar
Ors. (2008) 14 SCC 1 the documents produced by the defence can
be looked into which convincingly demonstrate that the whole story is
concocted, no such submission was made at the stage of charge before
the learned Trial Court.

12. The effect of Call Detail Records cannot be considered by this
Court in exercise of revisional jurisdiction about the location of the
parties and their mobiles being not at the same place for the reason
that it is a subject matter of trial. It may also be relevant to note here
that the submission by the learned defence counsel before the learned
Trial Court at the stage of charge was that physical relationship
between the accused and prosecutrix was consensual.

13. Merely because some other accused has been discharged by the
learned Trial Court in another case (FIR No.1584/2015 under Section
376 IPC, PS Dabri) registered on the complaint of the same
prosecutrix, such discharge order cannot have the effect of a ‘blanket
order’ entitling the accused in the FIRs registered at behest of the
prosecutrix, to seek discharge.

14. The scope and power of the Court in exercise of the revisional
jurisdiction against an order of charge, has been dealt with by the
Supreme Court in Munna Devi vs. State of Rajasthan and Anr.
(2001) 9 SCC 631. The short judgment is reproduced here under:-

“1. Leave granted.

CRL.REV.P. 603/2017 Page 7 of 9

2. Aggrieved by the framing of charges against him
under sections 376, 511, 451 and 354 of the Indian Penal
Code, the respondent-accused filed a revision petition in
the High Court which was allowed vide the order
impugned in this appeal by quashing the charges framed
against him. The appellant-complainant-prosecutrix has
filed this appeal submitting that the impugned order is
against the provisions of law as the High Court could not
prevent the holding of trial by sitting in appeal against
the order of framing of charge by sifting and weighing
the evidence recorded during the investigation.

3. We find substance in the submission made on behalf of
the appellant. The revision power under the Code of
Criminal Procedure cannot be exercised in a routine and
casual manner. While exercising such powers, the High
Court has no authority to appreciate the evidence in the
manner as the trial and the appellate courts are required
to do. Revisional powers could be exercised only when it
is shown that there is a legal bar against the continuance
of the criminal proceedings or the framing of charge or
the facts as stated in the first information report even if
they are taken at the face value and accepted in their
entirety do not constitute the offence for which the
accused has been charged. This Court in Kanti Bhadra
Saha Anr. v. State of West Bengal1 (2000 (1) SCC

722) has held that there is no legal requirement for the
trial court to write a reasoned or lengthy order for
framing the charges.

4. In the instant case, the learned judge ignored the basic
principles which conferred the jurisdiction upon the High
Court for exercise of revisional powers. It was premature
for the High Court to say that the material placed before

CRL.REV.P. 603/2017 Page 8 of 9
the trial court was insufficient for framing the charge or
that the statement of the prosecutrix herself was not
sufficient to proceed further against the accused-
respondent.

5. As the impugned order has been passed against the
settled position of law, it is unsustainable and is
accordingly set aside. The order of framing the charge
passed by the trial court against the accused is upheld
with directions to proceed with the trial of the case and
dispose of the same on merits in accordance with law.

6. The appeal is allowed accordingly.”

15. When the impugned order is examined in the light of the above
legal position as well the submission made before the learned Trial
Court at the stage of charge that it was a consensual physical
relationship, whether it was a case of consent or not, is a subject
matter of trial.

16. The impugned order does not call for any interference by this
Court in exercise of revisional or inherent jurisdiction.

17. The petition is dismissed.

Crl.M.A.13143/2017 (for directions) Crl.M.A.13144/2017 (stay)
Dismissed as infructuous.

PRATIBHA RANI
(JUDGE)
AUGUST 21, 2017
‘hkaur’

CRL.REV.P. 603/2017 Page 9 of 9

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