TaxTMI 
TaxTMI 
2013 (5) TMI 1068
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....e above noted four petitions have been filed under 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 Chande....
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....th Delhi Jal board. 11. Third petitioner Sarat Chander is also an Engineer by 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 Vi....
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....d Ramesh Thakur (Petitioners herein) all officials working with Delhi Jal Board and said that they would 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, Ne....
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.... petitioners had come to the aforesaid address and raped her. 27. Ld. Counsel further submitted that the call details of the 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 investigati....
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....hat an investigation by the police is in progress in relation to the offence which is the subject matter of the trial held by him, the Magistrate shall 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....
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.... 36. Ld. Counsel further submitted that the pursuant to the above directions respondent no. 1 filed two status reports dated 23.05.2008 and 13.08.2008 before this court. The report dated 23.05.2008 reveals 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 inv....
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....h the alleged crime. However, the DNA extracted from the blood stains of the bed sheet does not match the DNA profiling. This fact has also been mentioned in cancellation report filed by the police. 41. With regard to the so called CD containing a vital piece of evidence allegedly a video recording of the 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 c....
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....357926008481870 on 25.10.2006 from 07.06 PM to 07.56 PM and the same handset being IMEI No. 357926008481870 was also used to operate the mysterious telephone no. 9910222660 on 25.10.2006 from 10.17 AM to 06.19 PM. The same IMEI No. 357926008481870 was used between 01.10.2006 to 31.12.2006 by Mr. Vijay Kataria on his mobile 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 cas....
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....profiling, polygraphs test, FSL report, CFSL Report, call details analysis made following observations at Para 83 of the cancellation report, which is as under: a. During the course of investigation it has been found that Vijay Kataria has been connected in various capacities i.e. MD/Business and Financial Advisor with Kaveri Infrastructure and 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....
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....rs to hoodwink the investigation agency regarding their interaction with each other. However, as discussed in detailed earlier, their inks have been established from the different numbers and handsets they have used over a period of time and them 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. m. The DNA tests have proved beyond doubt 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 complaina....
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....L. Sharma, Mr. Sunil Kumar, examination of Smt. Bindu Sharma, the petitioners and other DJB officers read along with all the clinching, cogent and scientific evidences like all the medical examination reports, FSL and CFSL reports, DNA profiling and blood samples of all concerned, Polygraphs Test, Mobile call details etc., which had completely belied the oral statements of the complainant and the so called independent witnesses (rather interested) through their extensive and in depth investigations 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 perta....
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....g displayed at the DJB office. 62. Learned counsel submitted that the above observations deserve to be set aside as there is not even an iota of material to establish and prove the above findings as admittedly, Ms. Ruby Thakur claimed to have arrived after the alleged incident and then secondly, no CD, as alleged and claimed to have been made by the suspects, was ever recovered in the present case. However, it was revealed that the CD was in possession of Vijay Kataria, Director of Kaveri Infrastructure Pvt. Ltd. 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....
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....he discretion vested in the court to grant anticipatory bail to the applicant/accused should be exercised. The identity of the applicant/accused in this case is not disputed and there are also no chances of his fleeing away as he is employed in a very senior position in a government office. The chances of his tempering with the investigation process or influencing the witnesses are also not there as the investigation already stands concluded and even the cancellation report has been filed in the court, which though has been rejected by 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,....
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....ed persons. Therefore, the impugned order depicts total non application of mind and is a gross abuse of process of law. 66. Learned counsel submitted that even the falsity of conduct of the complainant is ex facie evident from the fact that the complainant/respondent No. 2, in her protest petition has made a false statement supported by her affidavit in as much as submitting that petitioner Praveen Bhargava has been using one number, i.e., 9958772222, which is stated to have been in the name of the said petitioner. She submitted that neither the call records of this 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 lear....
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.... 11. Thus, it is clear a fraudulent act even in judicial proceedings cannot be allowed to stand. 12. In view of our finding that the complaint filed before the Court of Metropolitan Magistrate, Court No. 10 at Ahmedabad in Criminal Case No. 118 of 2004 dated 15.1.2004 is ex facie an act of fraud by a fictitious person, and an abuse of the process court, every and any action taken pursuant to the said complaint gets vitiated. Therefore, we think the complaint registered before the Metropolitan Magistrate, Court No. 10 at Ahmedabad in Criminal Case No. 118 of 2004 dated 15.1.2004 and all actions taken thereon 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 48....
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....ent abuse of process of the court, and secure the ends of justice. 23. 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 of the Cr.P.C.:- (i) 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? (ii) 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. (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 resu....
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....ve and in support of his arguments, reliance was also placed on the judgment delivered by this Court in Alok Kumar Vs. State & Anr. 2010 (4) JCC 2385, wherein this Court was dealing with the petition under Section 482 Cr.P.C. for quashing of FIR in a case of a live-in-relationship of the complainant and the petitioners therein and the complainant getting a FIR registered under Section 376 IPC against the petitioners out of malice in order to wreck vengeance on the petitioners because the petitioners refused to live in relationship with the complainant. This Court, after dealing with the facts, at para 8, made the following observations as under: 8. It is settled law that the Court should refrain from quashing 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 Cou....
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.... 2. Ms. Ruby Thakur- 9818642224 3. Mr. Sarat Chander- 9810024703 4. Mr. Ramesh Thakur- 9811168133 5. Mr. Praveen Bhargava - 9818241666 6. Mr. Vijay Kataria-9810798109, 9818998187 and 9810222660. 77. Above mentioned mobile numbers are extracted from the evidence collected and reference was drawn to the communication letter No F-DJB I AC(CTB)/Inf/07-67 dated 25th June 2007 received from office of Delhi Jal Board and also on the basis of a document/chart prepared by the Investigating Agency with the heading "Official no's list given by DJB" and then "Subscriber Detail of phone numbers"(which is at page No. 509 written at bottom of the page with TCR). 78. Learned counsel submitted that it will also be relevant, at this stage, to give some call detail analysis from the mobile phone call records/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 record....
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....ish the use of phones by Mr. Vijay Kataria in making various calls to the complainant and other common numbers in September 2006. Between 23.09.06 to 25.09.06, this very mobile number 9818998187 also shows use of another instrument with IMEI No. being 351800016976150. (iii) In respect of phone No. 9810798109 (in the name of Vijay Kataria) with relevant details are at page 687 written at bottom of the page with TCR. 84. Learned counsel further submitted that the analysis of the call details of these mobile phones have been stated in paragraphs 12, 13, 14 and 15 of the Cancellation Report (at pages 95 to 96 of the petition). The exact chart prepared on the basis of call details analysis of two telephone numbers used by respondent No. 2 (9818185579 and 9810021490) is at para 16 of the Cancellation Report at page 97-98 of the petition, whereas contents of paragraphs 68-69 shows that 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 establis....
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....he spoke with someone from her residence at 7.56 p.m. also called Sarat Chander at 8.09 p.m. and then was also found to be in constant touch with Vijay Kataria through a call (lasting 290 seconds and also through SMS on the same very mobile number 9910222660) which she denies before the investigating authorities. It is only on the basis of the said sound digital evidence which cannot be found fault with, the conclusion has been given by the investigating agency. 85. Learned counsel for the petitioner submitted that the respondent No. 1/State has also collected the call detail records/print outs in respect of call details of the mobile phone Nos. 9818241666 and also 9811195078 of the petitioner both used by petitioner-Praveen Bhargava. 86. The call details in respect of mobile No. 9818241666 is available from page No. 811 to 823 written at bottom of the page with TCR and whereas the call details of the phone No. 9811195078 is available 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 ....
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.... all the occasions at different period of time are found stated in the call details chart in respect of petitioner's mobile No. 981824166. 91. The said call records also establish that he received an incoming phone call on 08.10.2006 at 20:32:30 from 9818133783 (used by Ramesh Thakur). At this time the record establishes that he was at his residence at GK-1. The investigations also records and reveals that one Mr. Arvind Sharma, an officer/colleague of Delhi Jal Board was admitted in Sunder Lal Jain Hospital, Ashok Vihar on 08.10.2006. Thereafter, the call record establishes that petitioner- Praveen Bhargava has started proceeding from his residence G.K-1 along with his wife to visit the said ailing colleague at Sunder Lal Jain Hospital and on his way a second call was received by him from 9818133783 (used by Ramesh Thakur) at 21:27:28 hours on 08.10.2006. At that point of time, the location of said petitioner with his mobile phone was found at Palika 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....
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....uth District) for registration of an FIR, which got registered on 09.06.2007 bearing No. 610/2007. In her complaint, she had alleged that on 08.10.2006 at B-136, 2nd floor, Shivalik, New Delhi, the petitioners had sexual intercourse with her against her will or consent and even made a CD of rape. 96. The alleged motive of making the CD was to force her to file a complaint with the police against the M.D. of her company and also to provide them with confidential documents of the company. The complainant thus sought legal action against the petitioners for committing gang rape on her and on one Mr. B.M. Dhaul for molesting her and also for giving her threats. In the complaint, respondent No. 2 stated that the aforesaid apartment was of her friend Ruby, who was in the process of shifting from her old place to the new one in Shivalik. 97. Ld. Counsel submitted that the complaint of the prosecutrix was found completely false and motivated and ultimately, Cancellation Report was 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 ....
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....ntroduced complainant as her married sister and for which Ms. Ruby Thakur paid Rs. 88,000/- as advance rental for four months. Neither complainant nor Ms. Ruby Thakur have offered any plausible reason for hiring this relatively expensive accommodation and the source of funds for the same have also not been disclosed. vii. On the day of incident, complainant was using two mobile phones bearing Nos. 9810021490 & 9818185579. She was using 9810021490 to call Sarat Chander while she used 9818185579 to keep in regular touch with Vijay Kataria. On the day of incident there were 11 calls/SMS between Ms. Vani and Mr. Vijay Kataria. The first call began at 10.37 AM and the last call was 10.20 PM in the night. viii. On the day of the incident at 08:17 pm complainant received a call from mobile phone No. 9910222660 (Vijay Kataria) and this call lasted for 290 seconds. The Cell ID location analysis of mobile phone number 9818185579 (complainant's phone) reveals that this call began at Cell ID 40661 which is Malviya Nagar, Shivalik, Delhi (place of occurrence) and ended at Cell ID 8941 which is Malviya Nagar, Delhi (complainant's residence). She also spoke with someone ....
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.... 80-A, Nil Block, Malviya Nagar which is hardly two KMs away from the rented accommodation where only a bed, cooler and settee has been placed and neither the complainant has been able to explain as to why she needed an extra accommodation when her own house was only a couple of KMs away. This finding in the cancellation report again points towards the fact that B-136, Shivalik, Delhi was taken up on expensive rent of Rs. 22,000/- per month for a specific purpose which is different from the reason stated. xv. That the CFSL report of the blood sample and the bed sheet does not show any male fraction DNA from the source of bed sheet and even the female fraction DNA was not consistent with the DNA Profile of prosecutrix and further no DNA Profile could be generated from the pant, shirt and the underwear. It is clear that the blood and semen on the bed sheet neither matched with that of the complainant nor with that of the petitioner. 99. Learned counsel further submitted that the learned ACMM considered the following points to take cognizance of the offences despite Cancellation Report filed by the police:- i. There was a sexual intercourse between complainant and....
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....nant. 103. He further submitted that the place of alleged rape is a rented accommodation @ Rs. 22,000/- per month, whereas the salary of the complainant was just Rs. 10,000/- per month with Kaveri Infrastructure. Ms. Ruby Thakur, who is also working with Kaveri Infrastructure was having two accommodations simultaneously with her, namely, C-34, Malviya Nagar, and B-136, Shivalik, Delhi and the Cancellation Report shows that there was some pre-established link and prior understanding between Kaveri Infrastructure, Ruby Thakur and complainant for having taken up the accommodation at B- 136, Shivalik, Delhi on rent for some specific purpose other than the reason stated. 104. Learned counsel further submitted that reliance of the learned ACMM on Section 114A of the Indian Evidence Act is totally misconceived as provisions of the same are applicable only when the prosecutrix states in her evidence before the Court that she did not consent. The stage of raising the said presumption does not arise at this stage at all as no trial has yet commenced. 105. Learned counsel has argued that there was a conspiracy in which the complainant was used as a tool in the hands of the Managing D....
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....elay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version as done by the High Court in the present case." 109. He also relied upon Narayan Alias Naran Vs. State of Rajasthan (2007) 6 SCC 465, wherein it has been observed that "the learned counsel for the appellant has taken us through the evidence on record. We have carefully perused the evidence of the prosecutrix/appellant and we find ourselves in agreement with the view of the High Court that the testimony of the prosecutrix is not reliable. Having carefully scrutinized her evidence, we find that her testimony does not inspire confidence and her conduct appears to be highly unnatural. On an overall appreciation of the evidence of the prosecutrix and her conduct, we have come to the conclusion that PW 1 is not a reliable witness. We, therefore, concur with the view of the ....
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....f the process of any court or otherwise to secure ends of justice. Section 482 of the Code of Criminal Procedure contains a non-obstante clause to the effect that nothing in the Code of Criminal Procedure shall be deemed to limit the powers of the High Court to prevent abuse of the process of Court. Therefore, filing of the charge-sheet in Court does not in any manner affect the amplitude of the wholesome jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure. The only rider being, that greater the power, Criminal Misc. No.M-1104 of 2008 7 greater the care and caution in exercise thereof This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006 (3) RCR (Cri.) 941, held as under:- Power under Section 482 Cr.P.C. has to be exercised sparingly and such power was not to be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Code, as it is prohibited under Section 397(3) Cr.P.C. However, the High Court can entertain a petition under Section 482....
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....se vide letter of Vigilance dated 09.06.2007. Accordingly, FIR bearing No. 610/2007 was registered at P.S. Malviya Nagar. The said complaint was against Mr. Sarat Chander, Chief Engineer, Mr. Praveen Bhargav, Superintending Engineer, Mr. Ramesh Thakur, Superintending Engineer and Mr. B.M. Dhaul, Chief Engineer of Delhi Jal Board. It was alleged in the complaint that complainant in the year 2006 was working with a contracting firm dealing with Delhi Jal Board. As a part of her duties, she came in contact with accused Mr. Sarat Chander at the office of Delhi Jal Board at Jhandewalan in the month of August, 2006. Thereafter, Mr. Sarat Chander became friendly with her and continued to meet her on subsequent dates. It was alleged that accused Mr. Sarat Chander offered to extend his help in getting good job to the complainant in Delhi Jal Board. It was alleged that on this pretext, Mr. Sarat Chander took her mobile number and started calling her on her mobile phone. In the end of September, 2006, Mr. Sarat Chander met her in a restaurant, called Ruby Tuesday at District Centre, Saket. Mr. Sarat Chander gave a gift of pen set to her and also collected her CV for the purpose of arranging a....
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.... terms:- By the investigation conducted so far, it is quite clear that Ms. Vani Whig, 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. Hence a final report in the form of cancellation is being filed. 120. Learned counsel further stated that while submitting the Closure Report, it is also recommended that proceedings U/s. 182 IPC against the complainant would be initiated subsequently. 121. After filing the Closure Report, notice was issued to the complainant, who filed the protest petition. After hearing the arguments, vide order dated 13.05.2011, the learned ACMM, Saket took cognizance of the offence U/s. 376(2)(g) IPC and summoning order U/s. 204 Cr.P.C. was passed. 122. The present revision petition has been preferred before this Court as the petitioner felt aggrieved of the order of taking cognizance despite the fact that the police thoroughly investigated the case and filed the closure report, on the following grounds:- The learned ACMM has failed to appreciate the fact that U/s. 190 Cr.P.C., the Court of MM is empowered to take cognizance: ....
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....that the learned ACMM has erred while making the observation that the presence of the other two accused persons was established in the alleged gang rape because it was depicted on a CD and the CD had been seen by an independent person, namely, Sant Ram being run in the office of Mr. B.M. Dhaul. Accordingly, the learned ACMM has relied upon that statement of Sant Ram to pass this observation. 128. In his statement, Sant Ram stated that when he entered in the room of Mr. B.M. Dhaul, one girl was sitting inside and on the screen of the computer inside, a CD was being played, in which, one out of these three was shown committing sexual intercourse with the girl sitting inside the office and remaining two were seen by him standing there in the video recording. The learned ACMM has not considered the fact that during the investigation this statement of Sant Ram was found unreliable because of following facts:- (a) The complainant in her complaint has stated that CD was played only when Sant Ram had already been sent out of the room by Mr. B.M. Dhaul. Whereas Sant Ram in his statement has stated that when he entered in the room of Mr. B.M. Dhaul, the CD was being played. These....
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....ructure, rather this premises was taken on rent by Ruby Thakur on her own and she had deposited Rs. 88,000/- as security on her own. This premise had been taken on rent only eight days before the alleged incident took place. Ruby Thakur introduced herself to the landlord as an I.A.S. aspirant and complainant as a medical student, living separately from her husband for the purpose of studies of M.B.B.S. This premises was taken on a monthly rent of Rs. 22,000/- Learned standing counsel submitted that the total salary of Ruby Thakur and the complainant was not even sufficient to afford this rent. 130. It is further revealed during investigation that Kaveri Infrastructure paid the rent of C-34, Malviya Nagar to the owner Mr. M.L. Pandey till March, 2007, i.e., for about six months after the alleged rape incident. So by these facts, it is clear that the premises B-136, Shivalik was not taken on rent for the purpose as mentioned in complaint or as deposed by Ruby Thakur in her statement. 131. It is further revealed from the statement of Mr. M.L. Sharma, owner of B-136, Shivalik that this premise was used only by the complainant and he had seen Ruby Thakur only on the day when sh....
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....a Nagar with him. It is pertinent to mention here, that Sant Ram is a witness in a case FIR No. 54/2006 U/s. 307 IPC, PS Chandi Nagar, Baghpat U.P., which was registered on the complaint of Vijay Kataria. 136. Learned standing counsel has relied upon a case of Prashant Bharti (Supra) wherein on the similar facts and circumstances, the Supreme Court/in Para 20 has observed as under:- 20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a mar....
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....2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and 15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a "certificate of marriage" dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the "certificate of marriage" dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poison....
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....t, which the accused persons have in high rungs of the Government, be it bureaucracy or the police. Every effort was made, at every level of the Government machinery to scuttle rightful legal action on the complaint of the complainant and when they were forced to register an FIR, since the complainant had already moved to the Court for registration of the same, every attempt was made to save the accused persons by referring to some extraneous material. 139. It is submitted that on 24.05.2007, the respondent No. 2/complainant lodged a complaint with Commissioner of Police, against the petitioners for committing rape upon her on 08.10.2006, threatening her of dire consequences and exposing a C.D. made by them during the commission of rape upon her and against Mr. B.M. Dhaul for molesting her. The Commissioner of Police was personally conveyed by the complainant that the DCP (South) is personally involved in the matter as on the day following the incident, the local SHO had called the complainant under instructions of the DCP (South). 140. Learned senior counsel further submitted that no action was taken by the Police on the complaint of the complainant. Rather the complaint was....
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....ved with her by pressing her breast with his hands, forcibly. Threats were extended of dire consequences by exposing the CD. The Complainant gathered courage and lodged complaint with Commissioner of Police. 143. That after the investigation, which continued for almost three years, the police filed a final report of cancellation/closure report, before the Court of learned A.C.M.M., dated 02.06.2010. The cancellation/closure report was allegedly based on the allegations that the complaint contained extremely serious allegations by a lady victim against persons, who happened to be government servants in responsible positions. There is no logical explanation for the Complainant, deciding to file the complaint after a lapse of about 8 months. There allegedly being some pre-established link between Kaveri Infrastructure, Ruby Thakur and complainant for having taken up accommodation at B-136, Shivalik, Delhi, on rent, for some specific purpose. The complainant could not give any plausible explanation as to why she had made 7 calls to Sarat Chander on the date of incident. She was in constant touch on 08.10.2006, the date of incident, with Sarat Chander and Vijay Kataria. Her call patt....
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....an in the C.D., however, he did not see anyone else in the C.D. except Sarat Chander and complainant. Sarat Chander had a conversation with Vijay Kataria, which is recorded in his mobile phone; CFSL, Lodhi Colony, has authenticated the voices on the recorded material as those belonging to Sarat Chander and Vijay Kataria; this conversation proves that C.D. was in possession of Vijay Kataria and not with Sarat Chander and others, this also negates the allegation of extortion. During investigation it has been established that the mysterious number 9910222660 was being used by Vijay Kataria. Findings prove that complainant and Vijay Kataria were in constant touch with each other. Complainant and Vijay Kataria were together involved in a conspiracy to lure Sarat Chander to 8-136, Shivalik, Delhi, to implicate him in the case. Relationship between Vijay Kataria and accused persons had turned sour; the accused persons had filed written complaints expressing their apprehension of being implicated by Vijay Kataria in false cases. Investigation shows that C.D. was in possession of Vijay Kataria. Sant Ram and complainant gave different version regarding playing of the C.D. Sarat Chander admit....
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....re was apparent lack of effort and interest on the part of the police to recover and place the C.D. on record. 149. He submitted, the closure report totally ignored the statement of Ruby Thakur recorded under Section 161 Cr.P.C. where she had stated that when she was going upstairs to 136, Shivalik, she saw three persons going downstairs; one of the persons collided with her. When she reached the flat, she saw that the door was open; and when she entered the bedroom she saw complainant sitting naked in semi-conscious state; at that time, she was totally naked and was crying badly; when she regained consciousness, then on asking she told Ruby that three persons have committed rape on her and she wants to commit suicide. There is nothing on record to disbelieve such statement of Ruby Thakur. 150. Apart from the statements of prosecutrix and Ms. Ruby Thakur, the significant statement of witness Sant Ram was also totally ignored by the police. Sant Ram has stated in his statement under section 161 Cr.P.C. that around 11-12th October, 2011 at 11:00-11:30 a.m. when he went to the office of Mr. B.M. Dhaul, Chief Engineer, DJB, he was told by the peon that a meeting is going on, but ....
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.... accused in ensuring that neither the C.D. is recovered nor the hard disc of the computer has the film) 154. The police has to conduct a comprehensive inquiry and investigation, before filing the final report. The pick and choose policy and only considering the evidence, favorable to the accused persons was itself a ground for not considering the final report. The order of the learned ACMM cannot be assailed at all. 155. Ld. Sr. Counsel further submitted that at the stage of taking cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.[Refer (2008) 2 SCC 492 "S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Limited & Ors."] 156. Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate, otherwise, the holding of a trial will be stalled. Even if the police report is to the effect that no case is made out against the accused, the magistrate can take into account the statements of the witnesses, examined by the police during the investigation and take cognizance of the offence a....
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....ysis of the material nor an assessment of reliability and genuineness of the allegations in the complaint is warranted. [Refer (2006) 6 SCC 736 "Indian Oil Corpn. Vs. NEPC India Limited".] 163. The High Court would not be justified in quashing an FIR by appreciating and shifting the materials collected during the investigation. At this stage, the High Court would be entitled to only examine the allegations made in the FIR and would not be entitled to appreciate by way of shifting the materials collected in the course of investigations including the statements recorded under Section 161 Cr.P.C. [Refer JT 2002 (3) SC 89 "M.L. Bhatt Vs. M.K. Pandita".] 164. Mr. Mittal further submitted that Section 114-A enables a Court to raise a presumption that a woman who was the victim of rape had not consented and that the offence was committed against her will. [Refer AIR 1996 SC 922 "Bodhisattwa Gautam Vs. Ms. Subhra Chakraborty''.] He submitted that the call records as per Trial Court in FIR No. 610/2007, PS Malviya Nagar are as under:- He also submitted that the record of calls made by accused Praveen Bhargava to Higher Ministry and police official is as under:- 165. I....
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....O stated to be wearing on the date of incident. On a later date, i.e., on 21.08.2007, after more than two months, complainant had handed over one bed sheet to the IO stated to be used on the bed on the date of incident. 173. All the petitioners were interrogated, examined and they also submitted their blood samples for their DNA profiling. They all were also subjected to polygraph tests. Their call details were verified. 174. It is pertinent to mention here that the FSL vide its report dated 29.02.2008 had required the presence of complainant for collecting of blood samples for matching the DNA profile generated from the bed sheet. However, she refused to give her blood sample for DNA profiling to match/compare and co-relate with the evidence provided by her. 175. Rather, in protest, the complainant filed a Writ Petition (Criminal) No. 463/2008 and sought directions from this Court to scrap the entire blood sampling, DNA profiling and comparison process being conducted in violation of law and insisted on the arrest of the accused persons. The aforesaid Writ Petition was disposed of vide order dated 14.08.2008, whereby this Court directed the IO, namely, Inspector Jaswant K....
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.... the police concluded that petitioners Praveen Bhargava and Ramesh Thakur were not found even near the alleged place of offence. 182. It is important to note that the complainant was working with M/s. Kaveri Infrastructure Private Limited, a company in which Mr. Vijay Kataria has been a Director. The police also examined Mr. Vijay Kataria and his details of mobile numbers between September, 2006 till December, 2006, which found that one mobile instrument bearing IMEI No. 358061003458460 was used to operate all three mobile numbers, i.e., 9910222660, 9810798109 and 9818998187 at different points of time. The police has established that the aforesaid telephone numbers were used by Mr. Vijay Kataria. 183. The investigation further revealed that the complainant had used number 9818185571 on handset bearing IMEI No. 357926008481870 on 25.10.2006 from 07.06 pm to 07.56 pm and the same handset being IMEI No. 357926008481870 was also used to operate the mysterious telephone number 9910222660 on 25.10.2006 from 10.17 am to 06.19 pm. Importantly, the same IMEI number was used between 01.10.2006 to 31.12.2006 by Mr. Vijay Kataria on his mobile No. 9810798109 (except on 25.10.2006) from ....
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....epth investigation that 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. On the day of incident, Ms. Vani Whig was using two mobile phones bearing number 9810021490 & 9818185579. She was using 9810021490 to call Sarat Chander while she used 9818185579 to keep in regular touch with Vijay Kataria. One the day of the incident at 08.17 pm. Ms. Vani Whig received a call from mobile phone number 9910222660 (Vijay Kataria) and this call lasted for 290 seconds. The cell ID location analysis of mobile phone number 9818185579 (Ms. Vani Whig's phone) reveals that this call began at Cell ID 40661 which is Malviya Nagar, Shivalik, Delhi (Place of occurrence) and ended at Cell ID 8941 which is Malviya Nagar, Delhi (Ms. Vani's residence). She also spo....
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.... two different incidents at two different places and on two different dates. As per complaint/FIR, 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). Nonetheless, no cognizance was taken in respect of the other alleged offences committed on 9/10.10.2006, which related to the alleged CD, as no CD was ever recovered/produced and the only hollow explanation for delay of eight months in filing the complaint was that she did not report the matter under the fear of CD. 196. No doubt, at this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not. Cognizance means the p....
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....igation that the aforesaid accommodations were taken for some specific purpose other than the reason stated. 203. It is also established during investigation 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. Both the persons, namely, Ruby Thakur and Sant Ram were associated with Vijay Kataria. Ruby Thakur was his employee and Sant Ram has remained involved as co-accused in case FIR No. 557/06, PS Malviya Nagar with him. Sant Ram is a witness in case FIR No. 54/2006 U/s. 307 IPC, PS Chandi Nagar, Baghpat, U.P., which was registered on the complaint of Vijay Kataria. 204. The call details of the petitioners with Senior Officers of Delhi Government and Senior Police Officers, which are relied upon by the complainant, reveal that the petitioner had been in touch with the above Officers even before the complaint made by the complainant and after the complaint. The petitioners, being in the senior position in Delhi Jal Board, are answerable to the above noted officers for the any issue arises rega....
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....nally, the law relating to using of inherent powers by the Hon'ble High Court under Section 482 CrPC for quashing of the FIR's and proceedings arising there from is very clear that this power can be used with caution and in exceptional circumstances in the cases where there is no case made out against the accused/petitioners from the FIR, the allegations contained therein, the material on record which is the Charge sheet and other documents. In case, the allegations and material do not fulfill the ingredients of the offences alleged against the petitioners, the High Court should quash the cases using its inherent powers under Section 482 CrPC. On this issue, the law is also very clear, that miscarriage of justice and abuse of process of law takes place if the trial is continued in these types of cases. [Emphasis Supplied] 210. In the above referred judgment, this Court while dealing with the scope and exercise of powers under Section 482 Cr.P.C., also took into consideration the well settled position of law as laid down by the Hon'ble Supreme Court and has extensively quoted the said legal position from the landmark judgment titled " State of Haryana Vs Bhajan Lal....
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.... location was considered and it was found that the appellant was not with the complainant at the time of occurrence of the offence of rape. 215. From the record, it has emerged that complainant was working in Vijay Kataria's company since 2005. She met petitioner Sarat Chander under a fake identity of a reporter named Shivani. She called Sarat Chander seven times on the day of incident. The accommodation, i.e. the place of occurrence, was hired by another employee of M/s. Kaveri Infrastructure named Ms. Ruby Thakur for which she falsely introduced complainant as her married sister. For the said accommodation Ms. Ruby Thakur paid Rs. 88,000/- as advance rental for four months. The said expensive rental accommodation was beyond their known sources of income. 216. In view of the above facts, location of co-accused Ramesh Thakur and Praveen Bhargava was found nowhere near the place of alleged incident, i.e., B-136, 2nd Floor, Shivalik, New Delhi, but was found far away at Sunder Lal Jain Hospital, Ashok Vihar, Delhi, at the alleged time of the offence, therefore, the question of commission of gang rape under Section 376(g) IPC does not arise at all. 217. It is settled law ....
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.... to 19:56:57 (For this PI see at Page 533 & page 681 TCR) 681 TCR) Document 2 Date Time Call Type Called Calling Dur. in see 08.10.06 10:37:00 08.10.06 10:37:08 SMS Out 9910222660-Vijay 1 Kataria (VK) SMS Out 9910222660- (VK) 1 Cell 17 Cell 2- Location 08941-Malviya Nagar 08941-Malviya Nagar 08.10.06 11:20:10 Outgoing 9810798109- (VK) 13 08941 I 08941 Malviya Nagar 08.10.06 11:20:39 Outgoing 9910222660- (VK) 159 08941 108941 Malviya Nagar 08.10.06 14:11:05 Outgoing 9910222660- (VK) 17 08941-Malviya Nagar/ 03042 08.10.06 14:22:49 Incoming 9910222660- (VK) 7 4066340663- B Block, Shivalik 08.10.06 16:31:05 Incoming 9910222660- (VK) 47 40663 40663. B Block, Shivalik 08.10.06 16:41:58 Incoming 9910222660- (VK) 23 20781 / 20781 - Main Mkt. Malviya Nagar 08.10.06 19:56:58 Incoming 01 165634607 (Resi 11 No of Resp no-2) 40663 / 40663- B Block, Shivalik 08.10.06 20:17:38 Incoming 9910222660- (VK) 290 40061 I 08941- Malviya Nagar 08.10.06 20:27:48 SMS Out 9910222660- (VK) 1 08941 I 08941 Malviya Nagar 08.10.06 21....
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.... below) Vijay Kataria mobile No. 9810798109 at page 627 (bottom) Vijay Kataria is also using the IMEI No. 358061003458460 of Kiti Chandwani (ie as at Sr. No. 1 above) Vijay Kataria is also using the instrument with IMEI No. 355057000498960 & 358061003458460 (as at Sr. No. 1 above) on 12.09.06 at page No. 669 weritten at bottom of the page in the name of Kirti Chandwani Document 5 Date Time Call Type Called-Calling Dur in Cell 1/Cell 2- sec 08:10:06 08:34:08 Incoming 9899971630 301 08.10.06 12:08:50 Outgoing 9868815018 117 Location 03152103152-GKI 06292106292- Sidharth Enclave 08.10.06 12:56:37 Outgoing 9810127695 266 07381-Okhla-11/ 44392-Jasola Vihar 08.10.06 14:01:49 Outgoing 9818133783 332 08312 Ashram (Ramesh Thakur) 08351-GK 08.10.06 16:04:26 Incoming 9871643644 52 03152103152-GK-I 08.10.06 17:01:13 Incoming 9313703393 08.10 06 18:09 25 Outgoing 9811355365 08.10.06 20 32 30 Incoming 9818133783 (Ramesh Thakor 183 (13152103152-GK-1 200 031521 03152- GK-1 83 03152103152-GK-1 08.10.06 20:48:01 Outgoing 9810043482 ....