Varinder Kaur vs The State (Nct Of Delhi) & Anr. on 21 September, 2017

$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: September 21, 2017

+ CRL.M.C. 3931/2017

VARINDER KAUR ….. Petitioner
Through: Mr.V.Elanchezhiyan and
Mr.Nasim Anwar, Advocate
with petitioner in person.

versus

THE STATE (NCT OF DELHI) ANR. ….. Respondents
Through : Mr.Sanjeev Sabharwal, APP for
the State with SI Amit Sehrawat
and ASI Shri Ram, PS Hari
Nagar.

PRATIBHA RANI, J. (Oral)

Crl.M.A. No.15868/2017

1. Exemption allowed subject to all just exceptions.

2. Application is disposed of.

Crl.M.C. No.3931/2017

1. The petitioner, who is complainant in case FIR No.623/2014
initially registered under Section 509 IPC at PS Hari Nagar, has
invoked the inherent power of this Court under
Section 498 CrPC with
the following prayer:-

‘To set aside the judgment order to the extent of
discharging the respondent No.2/accused with respect to
S.354 passed by the learned ASJ-03, Tis Hazari (West),
Delhi in Criminal Revision No.54592/2016 Criminal

CRL.M.C. 3931/2017 Page 1 of 14
Revision No.56393/2016 dated 07.09.2017 and frame
charge under S.354
IPC and direct the respondent No.2
to face the trial under
Section 354 and Section 509 IPC.’

2. Mr.Sanjeev Sabharwal, APP for the State accepts notice.

3. Heard.

4. When the matter was taken up for hearing, learned counsel for
the petitioner not only read the FIR but also other documents
considered relevant and annexed with the petition. Learned counsel
for the petitioner sought adjournment but instead of adjourning the
matter, learned counsel for the petitioner was directed to file brief
written submissions and the matter was directed to be taken up at 2.15
pm.

5. At 2.15 pm again arguments were heard and the written
submissions filed by the counsel for the petitioner were also read by
him in the Court. Learned counsel for the petitioner has relied on two
decisions reported as
State of Punjab vs. Major Singh 1967 AIR 63
and
Samar Singh Puri vs. The State (NCT of Delhi) in Crl.Rev.P.
No.129/2009 decided on 09th May, 2011 in support of his contentions.

6. The written submissions filed by the petitioner are extracted
hereunder:-

‘No Court in the civilised world has two views with
respect to Touch a women without her permission, with
knowledge that her sex is delicate enough to be outraged
falls under S.354
IPC.

The statement recorded under S.164 Cr.P.C., which
unequivocally mentions that the accused touched her
breast while pushing her out of the room. Whether the
accused committedthe actus reus without any malum has

CRL.M.C. 3931/2017 Page 2 of 14
to be proved only through trial. Nevertheless, touching
the breast, which is intimate private part of the women
cannot be discounted with insufficiency of knowledge.
FIR also mentions pushing the prosecutrix. Given the
fact that the FIR is not an encyclopaedia, the statement
under S.164
Cr.P.C., has a legal sanctity and the same
cannot be discarded lightly at the stage of framing of
charges.

Further, the trial Court and the revisional Court
discharged the accused on the basis of two views, one
which gives rise to the mere suspicion and another grave.
The Court will only frame charges if there is grave
suspicion. Which is principle of law laid down under
Section 227 of the Cr.P.C. falling under Chapter XVIII of
Cr.P.C. Trial in Sessions case, whereas the present case
falls under Chapter XIX of
Cr.P.C. Trial of Warrant
cases by Magistrate. The First Schedule of
Cr.P.C. the
offences under S.354 and 509
IPC is trial by magistrate
and the provision that attracts for discharge is S.239
Cr.P.C.

There is marked difference in provisions of S.227 and
S.238
Cr.P.C. the former can be invoked only if there is
no sufficient grounds, whereas the later can be invoked
only if the charge against the accused is found
groundless. Hence both the trial Court and the
revisional Court committed serious miscarriage of ustice
by applying wrong provision.

The role of the victim after the Criminal Amendment Act,
2008(No. 5 of 2009) inducted victim’s right to
participation and to be heard. This Hon’ble Court in
predisposition without hearing the merits of the case,
within one minute, dismissed the petition, giving liberty
to file written synopsis, which is violation of all

CRL.M.C. 3931/2017 Page 3 of 14
principles of Natural Justice and a convention unheard
of.

The petitioner who is present in this Hon’ble Court, is a
victim of offences that carry moral stigma, demands by
virtue of the inherent powers to be heard modicum.
Predisposition of mind without hearing is antithesis of
the Judicial Convention, hence beg this Hon’ble Court to
be heard.

“Injustice is easy to bear, but what stings is justice.”‘

7. Mr.V.Elanchezhiyan, learned counsel for the petitioner has
submitted that although at the time of registration of FIR the petitioner
did not make any allegation which constituted an offence under
Section 354 IPC but in her statement under Section 164 CrPC she did
make such allegation. The FIR is not an encyclopedia and for purpose
of framing of charge, the statement which formed basis for registration
of FIR as well the statement under
Section 164 CrPC should have
been considered by the Court. It has also been submitted that in the
statement under
Section 164 CrPC, she has specifically mentioned that
accused touched her breast while pushing her out of the room and
whether such an act was with the requisite intention to outrage her
modesty, is a subject matter of trial. It has also been contended that
while exercising the revisional jurisdiction, the learned ASJ ought not
to have confirmed the order of learned MM discharging the accused
for the offence punishable under
Section 354 IPC. It has been
contended that the offence punishable under
Section 354 IPC and
Section 509 IPC being triable by the Court of Magistrate, at the stage
of framing of charge the relevant provisions governing the stage of
charge before the Magistrate are
Section 238 and 239 CrPC and not

CRL.M.C. 3931/2017 Page 4 of 14
Section 227 CrPC which is applicable in cases triable by the Court of
Sessions. Thus, the impugned order which has been passed citing the
provisions relating to sessions trial cases i.e. under
Section
227 Cr.P.C., has caused serious miscarriage. Learned counsel for the
petitioner has relied upon
State of Punjab vs. Major Singh 1967 AIR
63 and
Samar Singh Puri vs. The State (NCT of Delhi) in Crl.Rev.P.
No.129/2009 decided on 09th May, 2011 and submitted that the
decision in criminal revision petition is binding on this Court.

8. Before dealing with the submissions advanced by learned
counsel for the petitioner, it is necessary to refer to the contents of the
FIR, the allegations made in the statement recorded under
Section 164
CrPC as well the reasons for which the learned MM preferred to
discharge the accused for the offences under
Section 354/509 IPC.
The learned ADJ while affirming the order on discharge in respect of
the offence punishable under
Section 354 IPC, directed the accused to
be tried only for the offence punishable under
Section 509 IPC.

9. As per the FIR, on 11th June, 2014 on receipt of PCR call vide
DD No.20-A, it was marked to HC Jagdish Kumar No.167/West,
which was kept pending for inquiry. Thereafter the complaint (LC
No.812/SHO/HN/11/06/14) written in Hindi was received by the
police.

10. In the said complaint, which forms basis of registration of FIR
No.623/2014, PS Hari Nagar, the complainant reported that on
11th June, 2014 at about 8.00 am pursuant to the stay order passed by
the High Court, she went to the school to join her duty. She was
waiting for the Principal but as she had not reached, she talked to the

CRL.M.C. 3931/2017 Page 5 of 14
Chairman at 11.00 am and handed over the copy of the stay order to
the Chairman. She requested the Chairman with folded hands but he
said that he was not bound by the order of High Court, she could go
wherever she wanted. He mentally tortured her staring at her and
abused her. He also called the Peon and directed him to push her out
and himself also started speaking in abusive language. She told him
that she was an employee and at the work place why he was abusing
and misbehaving with her but he did not listen to her. He continued
speaking and she was sent outside the school gate. She called the
PCR and when Ct.Harjiwan responded to the call, she apprised him
about the incident and also played the recording by her of the
incident about the abusive misbehavior. Ct.Harjiwan advised her to
meet the SHO and play the recording in his presence and lodged the
FIR. Thereafter she visited the police station and got the FIR
registered. She also made request that legal action be taken against
the person who has abused her (Maa Bahen Ki Galiyan Di).

11. Copy of the chargesheet annexed with the petition reveals that
on 20th June, 2014 the complainant was produced for getting her
statement under
Section 164 CrPC recorded and on the basis of
allegations made therein i.e. touching of breast,
Section 354 IPC was
also added in the FIR.

12. On 27th September, 2016 after hearing the parties including the
complainant who was present with counsel, learned Trial Court, after
extracting the provisions of
Section 354 IPC and 509 IPC, discharged
the accused for the offence punishable under
Section 354/509 IPC for
the following reasons:-

CRL.M.C. 3931/2017 Page 6 of 14

‘Therefore, both under section 354 IPC and
section 509 IPC, the act of the accused should be with
the intention to outrage the modesty of a woman or with
the knowledge that by his act, the modesty of a woman
will be outraged.

I have heard the conversation as took
placed between complainant and accused at the time of
the incident. The said conversation recorded by the
complainant on her mobile phone and has been
placed on record in the form of CD. The recorded
conversation reflects that complainant started recording
the conversation, the moment she entered in the room of
the accused and the recording continued even after she
left the room of the accused. The live conversation
reflects that accused refused to accept the court order
and asked the complainant to leave his room. When the
complainant refused to do so, he started shouting on the
complainant and he kept on asking her as to how she
entered into his room without his permission. The entire
conversation reflects that the accused used abusive
language only once and that to, in the context of the
court and not the complainant. The accused used the
abusive language for court, however, no abusive
words have been used for the complainant in
the entire conversation. The conversation also reflects
that accused did not push the complainant. He called his
peon to move the complainant out of his room. The peon
also kept on requesting the complainant to leave the
room and it is clear from the conversation that she,
herself left the room and she was not pushed either by the
accused or by the peon. In the conversation, the
complainant kept on asking the accused to accept the
court order and not to use the abusive language, but at
no point of time, she has requested or asked the accused
not to misbehave with her by touching her breast or by
touching her private part or by twisting her hand. It is
highly inconceivable that the complainant did not utter
anything or protested against the above alleged act of the

CRL.M.C. 3931/2017 Page 7 of 14
accused, when she was otherwise regularly quarreling
with the accused and asking him to accept the court
order and not to use the abusive words and she
was conscious of the fact the entire conversation
is getting recorded on her mobile phone. The fact that
the accused refused to accept the court order is not
subject matter of present case. The fact that accused
shouted on the complainant and asked her to leave the
room does not constitute any offence, in the absence of
any word act or gesture on the part of the accused
intending to outrage the modesty of the complainant.
Therefore, no primafacie case is made out against the
accused. Accused is discharged in the present case.’

13. Aggrieved by the order on discharge, the complainant preferred
criminal appeal which was treated as revision petition by the learned
ASJ. State had also preferred a Criminal Revision Petition
No.12/1/2017 challenging the order on discharge passed by the
learned MM. Both the revision petitions i.e. Crl.Rev.No.121/2017
(preferred by the State) and Crl.Rev.No.32/2/2016 (preferred by the
complainant) were disposed of by the learned ASJ vide common order
dated 7th September, 2017 and allowed to the extent that accused was
sent to face trial for the offence punishable under
Section 509 IPC.

14. The prayer to direct the accused to face trial for the offence
punishable under
Section 354 IPC has been rejected by the learned
ASJ for the following reasons:-

(i) There was not an iota of allegations towards the offence
punishable under
Section 354 IPC.

(ii) The learned Trial Court has discussed the recorded conversation
in respect of the entire incident recorded by the complainant from the
time she entered the room of the Chairman of the school/accused

CRL.M.C. 3931/2017 Page 8 of 14
which continued even she left.

(iii) The recorded conversation reflected that the accused refused to
comply with the Court order and asked her to leave the room.

(iv) On her refusal to do so, the accused started shouting at her and
kept on asking her that how she entered his room without his
permission.

(v) In the entire conversation, the accused has used the abusive
language only at one time that too in the context of a Court order.

(vi) There is initial statement of the complainant lodged by the
complainant whereby the FIR was registered.

(vii) There is CD regarding conversation and its transcript, recorded
by the complainant regarding the incident.

(viii) There is a delay of nine days in getting the statement under
Section 164 CrPC recorded.

(ix) There was not an iota of allegations regarding offence under
Section 354 IPC in the initial complaint or in the CD recording.

15. After discussing the settled legal position at the stage of charge
and relying on the decision reported as
Dilawar Balu Kurane vs. State
of Maharashtra (2007) 2 SCC 135, the learned ASJ was of the view
that the evidence produced by the prosecution gives rise only to some
suspicion and not grave suspicion against the accused for the offence
punishable under
Section 354 IPC, hence the order of learned Trial
Court discharging the accused for the offence punishable under
Section 354 IPC was upheld.

16. At the time of consideration of charge, the learned Trial Court
was required to satisfy itself whether a prima facie case for

CRL.M.C. 3931/2017 Page 9 of 14
committing the offence punishable under
Section 354 IPC is made out
and relying on the recording done by the complainant herself and
placed by her on record which was duly referred even in the FIR, the
learned Trial Court was of the view that it was not a case of outraging
the modesty of a woman and the abusive behavior or refusal to comply
with the Court order cannot be a ground to frame a charge under
Section 354/509 IPC.

17. In the revision petition filed by the complainant, the learned
ASJ has taken the view that the ingredients of
Section 354 IPC are not
satisfied. The recording made by the complainant herself has been
referred to in the context that in the FIR no such allegation was made.

18. The submission made by learned counsel for the petitioner that
the Court was required to consider the provisions of
Section 238
239 CrPC and not 227 CrPC, cannot be taken as a ground to interfere
with the orders impugned.

19. In the decision reported as State of Maharastra Etc. Etc. Vs.
Som Nath Thapa Etc. JT 1996 (4) SC 615, one of the question of law
to be examined by the Apex Court was “When can charge be
framed?”. After reproducing Sec. 227, 228 in so far as session trial is
concerned and Sec. 239, 240 relatable to the trial of warrant cases and
section 245 (1) (2) qua the trial of summon cases, in para 29 to 33
of the judgment held as under :-

“29. Before adverting to what was stated in Antulay’s
case, let the view expressed in State of Karnataka Vs. L.
Muniswamy, 1977(3) SCR 113 be noted. Therein,
Chandrachud, J. (as he then was) speaking fore a three
Judge Bench stated at page 119 that at the stage of

CRL.M.C. 3931/2017 Page 10 of 14
framing charge the Court has to apply its mind to the
question whether or not there is any ground for
presuming the commission of the offence by the accused.
As framing of charge affects a person’s liberty
substantially, need for proper consideration of material
warranting such order was emphasised.

30. What was stated in this regard in Stree Alyachar
Virodhi Parishad’ case, which was quoted with approval
in paragraph 79 of State of West Bengal Vs. Mohd.
Khalid, 1995 (1) SCC 684 is that what the Court has to
see, while considering the question of framing the
charge, is whether the material brought on record would
reasonably connect the accused with the crime. No more
is required to be inquired into.

31. In Antulay’s case, Bhagwati, CJ, opined, after noting
the difference in the language of the three pairs of
section, that despite the difference there is no scope for
doubt that at the stage at which the Court is required to
consider the question of framing of charge, the test of
“prima facie” case has to be applied. According to Shri
Jethmalani, a prima facie case can be said to have been
made out when the evidence, unless rebutted, would
make the accused liable to conviction. In our view,
better and clearer statement of law would be that if there
is ground for presuming that the accused has committed
the offence, a court can justifiably say that a prima facie
case against him exists, and so, frame charge against him
for committing that offence.

32. Let us note the meaning of the word “presume”. In
Black’s Law Dictionary it has been defined to mean “to
believe or accept upon probable evidence”. (Emphasis
ours). In Shorter Oxford English Dictionary it has been
mentioned that in law”presume” means “to take as
proved until evidence to the contrary is forthcoming”,
Stroud’s Legal Dictionary has quoted in this context a
certain judgment according to which “A presumption is a
probable consequence drawn from facts (either certain,

CRL.M.C. 3931/2017 Page 11 of 14
or proved by direct testimony) as to the truth of a fact
alleged.” (Emphasis supplied). In Law Lexicon by P.
Ramanath Aiyer the same quotation finds place at page
1007 of 1987 edition.

33. The aforesaid shows that if on the basis of
materials on record, a court could come to the
conclusion that commission of the offence is a probable
consequence, a case for framing of charge exists. To put
it differently, if the Court were to think that the accused
might have committed the offence it can frame the
charge, though for conviction the conclusion is required
to be that the accused has committed the offence. It is
apparent that at the stage of framing of charge probative
value of the materials on record cannot be gone into, the
materials brought on record by the prosecution has to be
accepted as true at that stage.”

20. Reliance placed by the petitioner on the decision reported State
of Punjab vs. Major Singh (Supra) and
Samar Singh Puri vs. The State
(NCT of Delhi) (Supra) is misplaced as it is a case where the
complainant herself was recording the entire event and playing not
only before the SHO but also before the Court. It was only on the
basis of the recording made by the complainant that both the Court
below have given a concurrent finding that even prima facie the
ingredients of
Section 354 IPC are not satisfied.

21. It is worth mentioning that in the garb of petition under Section
482 CrPC, the petitioner has filed second revision petition which is
not maintainable. In the case
Wajid Mirza vs. Mohammed Ali Ahmed
Ors. 1982 CriLJ 890, the High Court of Andhra Pradesh has
observed as under :-

’23. This Court in Re Puritipati Jagga Reddy, (1979) 1

CRL.M.C. 3931/2017 Page 12 of 14
AJLJ 1 : AIR 1979 Andra Pra 146 at p. 149 (FB) held :

The language of sub-section (3) of Section 397 contains no
ambiguity. If any person had already chosen to file a revision
before the High Court or to the Sessions Court under sub-
section (1), the same person cannot prefer a further application
to the other Court. To put it in other words, sub-sec.(1) and (3)
make it clear that a person aggrieved by any order or
proceeding can seek remedy by way of revision either before the
High Court or the Sessions Court. Once, he has availed himself
of the remedy, he is precluded from approaching the other
forum. It is equally manifest from the provisions of sub-section
(3) that this bar is limited to the same person who has already
chosen to go either to the High Court or to the Sessions court
seeking a remedy and that it does not apply to the other parties
or persons.’

22. The Bombay High Court has taken the same view in the case
Inayatullah Rizwi v. Rahimatuallah Ors. 1981 CriLJ 1398 and
observed that :

‘We are, therefore, of the view that a revision to the High Court
would be tenable at the instance of a party who is unsuccessful
before the Sessions Judge, or who is aggrieved by his order. In
other words, a concurrent finding of the Sessions Judge and of
the Courts below become final, but when the Sessions Judge
reverse the order of the Court below in revision the defeated
party is not precluded from moving the High Court. The
consensus of judicial opinion as can be seen supports only this
view.’

23. It is pertinent to note that in the garb of Crl.M.C. under Section
482 Cr.P.C impugning the order passed by the learned ASJ in
Criminal Revision No.29/2012 is a second revision petition which is
barred under
Section 397(3) Cr.P.C. being filed by the same persons,

CRL.M.C. 3931/2017 Page 13 of 14
who had already invoked the revisional jurisdiction of the Sessions
Court. This Court cannot act as the second revisional Court in the garb
of exercising inherent power. A Division Bench of this Court in
W.P.(Crl.) No.80/
2010 Anur Kumar Jain vs. Central Bureau of
Investigation has observed as under:-

“(e) The exercise of power either under Section 482 of the
Code of Criminal Procedure or under
Article 227 of the
Constitution of India should be sparingly and in
exceptional circumstances be exercised keeping in view
the law laid down in Siya Ram Singh (supra), Vishesh
Kumar (supra), Khalil Ahmed Bashir Ahmed (supra),
Kamal Nath Others (supra), Ranjeet Singh (supra) and
similar line of decisions in the field.

(f) It is settled law that jurisdiction under Section 482 of the
Code of Criminal Procedure or under
Article 227 of the
Constitution of India cannot be exercised as a “cloak of
an appeal in disguise” or to re-appreciate evidence. The
aforesaid proceedings should be used sparingly with
great care, caution, circumspection and only to prevent
grave miscarriage of justice.”

15. Finding no illegality or perversity in the impugned orders so as
to call for any interference by this Court in exercise of inherent power
under
Section 482 Cr.P.C., the petition is dismissed.
Crl.M.A.No.15867/2017
Dismissed as infructuous.

PRATIBHA RANI
(JUDGE)
SEPTEMBER 21, 2017
‘st’

CRL.M.C. 3931/2017 Page 14 of 14

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