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Wsi Sharmila vs State, Gnct Of Delhi & Anr on 19 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 19th March, 2020

+ CRL.REV.P. 302/2017 Crl.M.A. 6672/2017 (stay)
WSI SHARMILA ….. Petitioner
versus

STATE, GNCT OF DELHI ANR ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Prashant Manchanda, Advocate with petitioner in
person

For the Respondents: Ms. Meenakshi Dahiya, APP for the State
with SI Lichhman, P.S.SIU/Crime Branch

Ms. Kavita Jha, Advocate for respondent No.2.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT

SANJEEV SACHDEVA, J

1. Petitioner impugns order dated 17.04.2017 whereby the Trial
Court has directed registration of FIR against the petitioner under
section 6 of the Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as POCSO Act) and under section 218
Indian Penal Code (IPC for short) and to get the matter investigated
through a senior officer, not below the rank of Inspector.

2. Petitioner was the investigation officer in the case bearing FIR
Nos. 827/2016 under sections 354/506 IPC and Section 10/8 POCSO

CRL.REV. P. 302/2017 Page 1 of 15
Act Police Station: Aman Vihar against the class teacher of the child
victim and case bearing FIR No. 179/2017 under sections
376(2)/376(2)(j)/376(2)(i) IPC and Section 6 POCSO Act Police
Station: Aman Vihar against the father of the child victim.

3. As per the case of the Prosecution, on 09.08.2016 father of the
child victim gave a written complaint in Police Station Aman Vihar
against one teacher in the school of the child victim, wherein he
alleged that his daughter aged about 13 years studying in class 5th, on
06.08.2016, had told her mother that her class teacher had taken her to
a lonely/empty class room and touched her whole body with bad
intentions.

4. On the above complaint, Case FIR No. 827/16 under sections
354/506 IPC read with section 10 POCSO Act, was registered against
the class teacher at Police Station Aman Vihar. For investigation the
case was assigned to W/SI Manisha Sharma.

5. On 17.08.2016, during the investigation, the Investigating
Officer W/SI Manisha Sharma examined two friends/classmates of the
child victim and their statements were also recorded under section 164
Criminal Procedure Code.

6. Both the friends/classmates of the child victim disclosed in their
statements under section 164 Cr. P.C. that the child victim had told
them that her father used to rape her at her house in the absence of her

CRL.REV. P. 302/2017 Page 2 of 15
mother. They further stated that they had informed about the entire
incident to their class teacher.

7. During investigation, on 01.09.2016, the class teacher produced
a document (Mafinama/apology letter) allegedly prepared on
08.08.2016, in the presence of the school Principal and several other
teachers of the school in the office of the Principal.

8. It was contended that, on 08.08.2016 the class teacher had
called the parents of child victim to the school, after being informed
about the conduct of the father of child victim by her classmates.

9. The parents of child victim came to the school and the father of
the child victim admitted his guilt in front of several other teachers of
the school. Subsequent to this a document in the form of
“Mafinama”/apology letter was prepared in which the father agreed
not to repeat his wrongdoings. The “Mafinama”/apology letter also
bears the signature of five teachers of the same school as witnesses.
Besides the teachers the “Mafinama”/apology letter allegedly bears
the thumb impression of the parents of the child victim.

10. The opinion of the FSL Rohini is that the document is genuine,
to the extent that the questioned document bears the signatures of the
teachers and also bears the thumb impression of the mother of the
child victim.

CRL.REV. P. 302/2017 Page 3 of 15

11. In her statement recorded under section 164 Cr.P.C., the child
victim leveled allegations against the teacher and he was arrested on
10.03.2017.

12. On 15.02.2017, a case vide FIR No. 179/17 dated 15.02.2017
under sections 376 (2)(f)/376(2)(j)/376(2)(i) I.P.C. read with Section 6
POCSO Act was registered, on the statement of the classmates of the
child victim, against the father of the child.

13. The classmates had alleged in their statement that the child
victim used to tell them that “her father is a bad person. He used to
rape (Galat Kaam) the child victim in the absence of her mother”.
Father of the child victim was arrested on 17.02.2017.

14. On 17.02.2017, the victim child was medically examined
through W/SI Nishu, P.S Aman Vihar at Sanjay Gandhi Memorial
Hospital vide MLC No. 43A in which the victim child had alleged
that her class teacher had molested her in the school. Internal
examination was not conducted by the doctor at the time of
preparation of the MLC as her parents had not given the consent for
the same.

15. On 20.2.2017 statement under section 164 Cr. P.C. of the child
victim was recorded in case FIR No. 179/17 dated 15.09.2017 under
section 376 (2)(f)/376(2)(j)/376(2)(i) IPC read with section 6 POCSO
Act. In her statement the child victim stated that “My master and my

CRL.REV. P. 302/2017 Page 4 of 15
father are not guilty”. She exonerated both her father as well as the
teacher.

16. On 04.03.2017, investigation of both the cases i.e. FIR No.
827/16, dated 09.08.2016, under section 354/506 IPC read with
Section 10 POCSO Act, P.S. Aman Vihar against the class teacher
and FIR No. 179/17 dated 15.09.2017 under section 376
(2)(f)/376(2)(j)/376(2)(i) IPC read with section 6 POCSO Act against
the father were transferred to District Investigating Unit/Outer District
and the investigation of both the cases were marked to the petitioner –
W/SI Sharmila of District Investigating Unit /Outer District.

17. As per the petitioner – W/SI Sharmila, on 29.03.2017, after
taking the consent of the mother of child victim on a piece of paper,
the child victim was medically examined vide MLC No. 88 at Sanjay
Gandhi Memorial Hospital at 5.45 p.m.

18. The doctor mentioned in the MLC “brought by SI Sharmila
with reference to previous MLC No.43A done on 17.2.2017. She is
A/H/O sexual assault by her father from many months which she told
to her classmates friends and class teacher. Her father accepted this
crime but later on her father accused that teacher, that he is sexually
assaulting her daughter and filed FIR against him. Presently victim is
not giving any history regarding anybody. She seems to be very

CRL.REV. P. 302/2017 Page 5 of 15
scared and under pressure.” The Doctor opined in the MLC “Hymen
Torn”. “No External injuries seen”.

19. Later on that very day i.e. 29.03.2017, a complaint was lodged
at P.S Aman Vihar vide DD No. 29A signed by the child victim
against the Investigating Officer – petitioner – W/SI Sharmila,
alleging that she had inserted her finger in the private parts of the
victim and forced her to go for medical examination and there also
internal examination was carried out without her consent.

20. A complaint was filed against the Investigating Officer –
petitioner – W/SI Sharmila on behalf of the child victim before the
Trial Court on 13.04.2017. On 15.04.2017, the Trial Court called for a
report from the SHO, PS Aman Vihar and DCP, Outer District as to
what action had been taken on the complaint.

21. Status Reports were was filed on 17.04.2017. Status Report of
the DCP Outer District was that ACP/PG Cell Outer District has been
directed to conduct an inquiry and time was sought to complete the
inquiry and report. Status Report of the ACP Sultanpuri was that the
complaint of the child victim containing allegations against the IO
was referred to ACP-PG Cell, Outer District for inquiry.

22. On 17.04.2017 by the impugned order the Trial Court in the
FIR No. 827/16 against the class teacher held that the complaint
dated 29.03.2017 of the child victim showed that the offences

CRL.REV. P. 302/2017 Page 6 of 15
complained of against the petitioner I.O. W/SI Sharmila were
cognizable and accordingly directed the SHO, P.S. Mangol Puri to
register an FIR against the Petitioner I.O. W/SI Sharmila under
Section 6 of POCSO Act read with Section 218 IPC and get the matter
investigated through a senior officer, not below the rank of Inspector.

23. Pursuant to directions of this court, Status Report has been
filed by the Assistant Commissioner of Police that an enquiry was
conducted against W/SI Sharmila by Inspector Savita CAW Cell /
Outer District and ACP CAW Cell/ Outer District. During enquiry the
statement of Child victim was recorded on 28.04.2017 and statement
of W/SI Sharmila was recorded on 08.05.2017.

24. Status Report indicates that during enquiry statements of the
doctor who conducted the Medical Examination and the nurse of
Sanjay Gandhi Memorial Hospital, who assisted have been recorded
on 16.05.2017 23.05.2017 respectively.

25. The doctor in her statement has stated that on 29.03.2017 she
was on duty from 4 p.m. to 9 a.m. as CMO, Casualty Gynea at Sanjay
Gandhi Memorial Hospital, Mangol Puri, Delhi. In the evening the
petitioner W/SI Sharmila came to Gynea department along with the
child victim and her mother with her younger brother. Petitioner gave
a letter with the request to conduct the Gynea medical examination of
the child victim.

CRL.REV. P. 302/2017 Page 7 of 15

26. The doctor stated that as per the directions, she informed the
procedure of Gynea medical examination to the child victim and her
mother. She called the Nurse for assistance to prepare the MLC of the
child victim. She took the consent as well as thumb impression of
child victim and her mother on the MLC and then she prepared the
MLC No.88A of the child victim on 29.03.2017.

27. Both the doctor as well as the Nurse stated that they had
conducted the Gynea medical of child victim according to the
procedure and during Gynea medical examination they had not
inserted finger or any other medical tool in the vagina of the child
victim. They stated that W/SI Sharmila and the mother of the child
victim were behind the curtain during the medical examination of the
child victim.

28. Further, the doctor in her statement has stated that before or
during the medical examination of child victim, neither her mother
nor the child victim had told them that petitioner – W/SI Sharmila had
committed any penetrative assault on the child victim or had beaten
her. She has further stated that all the allegations are false and
baseless.

29. Status Report further states that during enquiry the nurse was
also examined and she has also stated same facts as narrated by the
doctor in her statement. Both the doctor and the nurse have stated that

CRL.REV. P. 302/2017 Page 8 of 15
they have no personal enmity with the child victim or
relationship/friendship with the petitioner – W/SI Sharmila and that
they had performed their duty and conducted the Gynea medical
examination of child victim as per procedure. They have stated that
allegation of beating the child victim is totally false.

30. The report further states that during enquiry a site plan was also
prepared where Gynea medical examination of child victim was
conducted. The spot remained full of ladies and hospital staff as the
spot is situated at Labour/OBS Room of Sanjay Gandhi Hospital. Said
place is not as lonely as the child victim had alleged.

31. The report further states that the allegations leveled by the child
victim could not be substantiated and it seems that the complainant
was under influence of her father as she was living with him under the
same roof.

32. Learned counsel for the petitioner submits that the allegations
leveled in the complaint were demonstrably unsustainable maliciously
instituted with an ulterior motive for wreaking vengeance against the
investigating officer with a view to shield the father of the
complainant in as much as the same was lodged at the instance and
under the pressure of her father. It is submitted that the allegations
have been leveled to prevent the investigating officer from carrying
out her duties.

CRL.REV. P. 302/2017 Page 9 of 15

33. Learned counsel for the petitioner submits that petitioner has
been falsely implicated. It is alleged that the complaint against the
petitioner was instituted by the mother of the child victim with an
ulterior motive to shield the father of the victim against whom FIR
No.179/2017 was registered under section
376(2)(f)/376(2)(j)/376(2)(i) IPC and section 6 POCSO Act for
sexually assaulting the child victim.

34. Per contra, Learned counsel for the respondent submitted that
the child victim was not produced before the CWC before subjecting
her to re-medical examination. Further, no statement of the child
victim was recorded before re-medical examination.

35. Learned counsel for the petitioner submits that the child victim
had turned hostile and her statement made under section 164 Cr.P.C
did not corroborate the allegations in the FIR.

36. It is submitted that during investigation of FIR No.179/2017 re-
medical examination of the prosecutrix was conducted wherein it was
found that the hymen was torn and the petitioner had filed an
application for shifting the prosecutrix to a children’s home.

37. Reference may be had to the judgment of the Supreme Court in
Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 wherein the
Supreme Court reiterated the principles laid down by it in Pepsi
Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 that

CRL.REV. P. 302/2017 Page 10 of 15
“Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not
that the complainant has to bring only two witnesses to support his
allegations in the complaint to have the criminal law set into motion.
The order of the Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and the law applicable
thereto. He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence
before summoning of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the
accused.”

38. The Supreme Court in Priyanka Srivastava v. State of U.P.,
(2015) 6 SCC 287 has held that “power under Section 156(3)
warrants application of judicial mind. A court of law is involved. It is
not the police taking steps at the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the authority of the Magistrate.
A principled and really grieved citizen with clean hands must have

CRL.REV. P. 302/2017 Page 11 of 15
free access to invoke the said power. It protects the citizens but when
pervert litigations takes this route to harass their fellow citizens,
efforts are to be made to scuttle and curb the same.”

39. Further, in Priyanka Srivastava (supra) the Supreme Court has
held that in an appropriate case, the learned Magistrate would be well
advised to verify the truth and also can verify the veracity of the
allegations. Regard being had to the nature of allegations of the case.

40. In the present case, complaint was made on behalf of the child
victim on 15.04.2017, when the Trial Court directed for filing of
status report as to what action had been taken. On 17.04.2017 the
status report filed by the DCP Outer District was that ACP/PG Cell
Outer District has been directed to conduct an inquiry and time was
sought to complete the inquiry and report.

41. The Trial Court, without waiting for the report or even
conducting any further enquiry passed the impugned order directing
registration of FIR against the Investigating Officer – Petitioner under
section 6 of POCSO Act and section 218 IPC.

42. In the peculiar facts of the present case, the Trial Court should
have proceeded with caution. The acceptance of the complaint,
without any corroboration and material to support the allegations was
completely unwarranted and shows complete non application of mind
to the facts of the case.

CRL.REV. P. 302/2017 Page 12 of 15

43. The Trial Court should have taken note of the fact that the
Petitioner was the third investigating officer in line. She had set the
investigative process into motion. The two friends of the child victim
had already given their statements against the father and mother of the
child victim based on which even an FIR was registered against the
father of the child victim.

44. Petitioner – Investigating officer was merely investigating and
taking steps to gather evidence for the prosecution. She had taken
steps to distance the child from her parents so that she could be away
from their control and influence and then give independent evidence.

45. Extra caution was required to be exercised by the Trial Court
especially when the custody of the child was with the parents and
there was already an FIR registered against the father based on the
statement of the two friends of the child victim.

46. Statement of the friends of the Child victim had been recorded
by the earlier IO under section 161 Cr.P.C. and same allegations were
repeated by them before the magistrate under section 164 Cr.P.C.

47. Trial Court should have also kept in mind the medical report
which states that hymen of the child victim was torn and there was no
report of a fresh or external injury reported. Further, that the
allegations levelled by the father of the child victim against the class
teacher was only of touching her and not of penetrative assault, but,

CRL.REV. P. 302/2017 Page 13 of 15
the allegations leveled against the father of the child victim, by the
two friends of the child victim, even before the petitioner took over
the investigation, was of penetrative sexual assault.

48. There was no plausible motive attributable to the petitioner for
the alleged offence of inserting her finger in the private parts of the
child victim.

49. Trial Court should not have overlooked the possibility of a false
complaint being made against the Petitioner – Investigating Officer
under the influence of the parents, especially when the father is an
accused of sexually assaulting the child victim and she is continuing
to reside with him.

50. The Trial Court instead of acting with caution and satisfying
itself about the veracity of the allegations, has acted in a haste and
without conducting any inquiry or waiting for the report of the inquiry
being conducted by the Assistant Commissioner of Police as directed
by the DCP, accepted the allegations on their face value and directed
registration of the FIR against the Investigating Officer.

51. As noticed hereinabove, the status report filed by the Assistant
Commissioner of Police, Special Investigating Unit Crime, Branch
before this court states that the allegations levelled by the child victim
could not be substantiated and it seems that the complainant is under
influence of her father as she is living with him under the same roof.

CRL.REV. P. 302/2017 Page 14 of 15

52. In view of the above, the impugned order dated 17.04.2017
directing registration of the FIR against the petitioner under section 6
POCSO Act and under section 218 IPC is set aside.

53. However, it it is open to the trial court to pass an appropriate
order after conducting a preliminary inquiry and prima facie satisfying
itself about the veracity of the allegations. It is clarified that nothing
stated herein shall constitute an expression of opinion on the merits of
the allegations.

54. Petition is allowed in the above terms.

55. Trial Court record be transmitted back to the trial court
forthwith.

56. Order Dasti under signatures of the court master .

SANJEEV SACHDEVA, J
March 19, 2020
HJ

CRL.REV. P. 302/2017 Page 15 of 15

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