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Vishal Chawla vs State on 16 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: May 09, 2019
Pronounced on: July 16, 2019

+ CRL.REV.P. 1168/2018 CRL.M.As. 50351-50352/2018

VISHAL CHAWLA ….. Petitioner
Through: Mr. N. Hariharan, Senior Advocate
with Mr. Pramod Kr. Dubey,
Mr. Mrinal Bharti, Mr. Arham,
Mr. Siddharth Bajpai,
Mr. Kushank Sindhu Ms. Pinky
Dubey, Advocates

Versus
STATE ….. Respondent
Through: Mr. M.S. Oberoi, Additional
Public Prosecutor for State with
WSI Manisha
Mr. Santosh Kumar, Advocate for
Respondent No. 2

CORAM:
HON’BLE MR. JUSTICE SUNIL GAUR

ORDER

Vide impugned order of 30th November, 2018, petitioner has been
put on trial on the charge which reads as under:-

“That on the intervening night of 28/29.09.2017 at
your house bearing no. B-20, Ist Floor, Maharani Bagh, NFC,
New Delhi within the jurisdiction of P.S. New Friends Colony,
you had committed rape upon victim Ms. MD, W/O Sh. RKD,
aged about 32 years (particulars withheld as per law but
Crl. Rev. P. 1168/2018 Page 1 of 6
explained to the accused as per details mentioned in the
charge sheet) and you thereby committed an offence
punishable u/s 376 of the SectionI.P.C., 1860 and within my
cognizance.”

The facts giving rise to this petition, as noticed by the trial court in
the impugned order, are as under:-

“Coming to the facts of this case, FIR No. 308/17 was
registered on 29.9.2017 at PS New Friends Colony on the
written complaint of the prosecutrix/ Ms. „MD‟ and she has
stated that the accused had picked her from Surya Hotel and
they had gone to accused‟s house and after consuming whisky/
liquor she was feeling dizzi and the accused, Vishal Chawla
had caught her hand and persuaded her to have a look at his
house and he pushed her on the bed and removed her
undergarments and forcefully raped her. The victim/
prosecutrix had again reiterated the same facts when her
statement was recorded by the IO/W/SI Seema on 29.09.2017.
However, during her statement recorded by the Ld. MM u/s
164 SectionCr.P.C., the prosecutrix had stated that when the accused
was showing his bedroom then he closed the door from inside
and tightly held her and gave bite on her neck and he pushed
her on the bed and pressed her body here and there and as she
was feeling dizzi and weak and did not know what to do. She
also stated that the accused was also lying on the bed and
condition of her clothes was not proper.”

Quashing of impugned order is sought by learned senior counsel
for petitioner who submitted that the first information of this incident
given to the police was of prosecutrix being teased and as per prosecution
case, FIR of this case has been registered on the basis of a statement
written by husband of prosecutrix in which allegations of rape have been
levelled against petitioner. Learned senior counsel for petitioner
vehemently contended that the aforesaid version stands contradicted by
Crl. Rev. P. 1168/2018 Page 2 of 6
the statement of the prosecutrix recorded under Section 164 Cr.P.C. in
which she has not levelled any allegation of rape against petitioner. It is
contended that the medical evidence belies the allegations of rape levelled
against petitioner.

Reliance was placed by learned senior counsel for petitioner upon
decisions in SectionBhagwanti vs. State 2001 (60) DRJ 603; Vipin Kaushik @
Vickey Ors. Vs. The State of NCT of Delhi 2018 SCC OnLine Del
9648; R.Palanisamy Vs. State By Inspector of Police 2013 (2) MWN (Cr.)
525 (DB); Prashant Bharti Vs. State (NCT of Delhi) (2013) 9 SCC 293;
Priya Sharan Maharaj @ Yadavendra Parashar and others Vs. State of
Maharashtra 1995 SCC OnLine Bom 414; Union of India Vs. Prafulla
Kumar Samal Anr. (1979) 3 SCC 4; Dilawar Balu Kurane Vs. State of
Maharashtra (2002) 2 SCC 135 and P.Vijayan Vs. State of Kerala and
Another (2010) 2 SCC 398 to submit that initial version of prosecutrix
stands contradicted by her statement under Section 164 Cr.P.C. and so,
trial of petitioner for the offence of rape would be an abuse of process of
the Court. Thus, quashing of the impugned order is sought.

On the contrary, learned Additional Public Prosecutor for
respondent-State as well as learned counsel for the complainant/
prosecutrix supported the impugned order and submitted that the
statement of prosecutrix under Section 164 Cr.P.C. is required to be put
to the prosecutrix in evidence and the initial version given by her needs
no corroboration, as the prosecutrix is not to be treated as an accomplice.
To submit so, reliance was placed upon Supreme Court’s decision in Om
Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214. Reliance was

Crl. Rev. P. 1168/2018 Page 3 of 6
also placed upon Supreme Court’s decision in Sajjan Kumar Vs. Central
Bureau of Investigation (2010) 9 SCC 368 and Ramprasad Vs. State of
Maharashtra 1999 Cri.L.J 2889 to submit that it is within the domain of
the trial court to consider the evidentiary value of the statement of
prosecutrix and at this stage, it cannot be said that there are not sufficient
grounds to proceed against petitioner. So, it was submitted that the
impugned order does not suffer from any infirmity and this petition
deserves rejection.

Submissions advanced by both the sides and impugned order as
well as decisions cited, have been duly considered.

The legal position emerging from the decisions cited is that a Judge
is not mere post office to frame the charge at the behest of the prosecution
but has to exercise his judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution.
In assessing this, it is not necessary for the court to enter into pros and
cons of the matter or to weigh and balance the evidence and probabilities.
In Prashant Bharti (Supra), charge under Section 376 etc. had been
framed and Supreme Court had brought to an end the criminal
proceedings while reiterating the parameters which govern the exercise of
power of the court under Section 482 Cr.P.C. at the charge stage. The
four tests highlighted in the aforesaid decision are as under:-

“30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing raised
by an accused by invoking the power vested in the High
Court under Section 482 CrPC:

Crl. Rev. P. 1168/2018 Page 4 of 6

30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused i.e. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint i.e. the material is such as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false?
30.3. 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?

30.4. 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?

30.5. 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 CrPC. 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.”

Upon testing the instant case on the aforesaid parameters, this
Court finds that trial court in the impugned order has come to the
conclusion that there are no categorical allegations of rape against
petitioner in the statement of the prosecutrix recorded under Section 164
Cr.P.C. but has chosen to put petitioner on trial for a serious offence
under Section 376 IPC by merely observing that the stand taken by

Crl. Rev. P. 1168/2018 Page 5 of 6
petitioner needs to be tested at trial. Such an approach does not commend
to reason, particularly when the prosecution case stands demolished in
view of the stand taken by the prosecutrix under Section 164 Cr.P.C.
Pertinently, even the FSL report does not incriminate the petitioner.

Supreme Court in P.Vijayan (Supra) has emphatically reiterated
that if two views are possible, then the one which gives rise to suspicion
only, as distinguished from grave suspicion, will empower the trial judge
to discharge the accused.

In the considered opinion of this Court, the material on record does
not give rise to any suspicion, what to talk of grave suspicion, to justify
trial of petitioner for the serious offence under Section 376 IPC. If the
impugned order is allowed to stand, it will defeat the ends of justice.

Consequentially, I have no hesitation to conclude that continuance
of proceedings arising out of FIR in question would be an exercise in
futility. Accordingly, the impugned order is hereby quashed.

This petition and applications are accordingly disposed of.
Dasti.

(SUNIL GAUR)
JUDGE
JULY 16, 2019
r

Crl. Rev. P. 1168/2018 Page 6 of 6

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