37# $

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.REV.P. 574/2016
% Decided on: 15th September, 2016
SMT KAVITA ..... Petitioner
Represented by: Mr. B.N. Singh, Mr. Robin
George and Ms. Bharti,
Advocates.
versus

STATE (GOVT OF NCT OF DELHI) & ANR ..... Respondents

Represented by: Ms. Rajni Gupta, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl. M.A. No. 14283/2016 (Recalling of order/restoration)
For the reasons stated in the application Crl. Rev. Petition
No.574/2016 is restored to its original position.
Application is disposed of.
CRL.REV.P. 574/2016
1. FIR No.914/2014 was registered for offences punishable under
Sections 376D/354B/509/34 IPC on the statement of the complainant who
stated that her sisters-in-law, brothers-in-law, tenant Pradeep and both his
sisters used to speak ill of the character of the complainant. On the day of
incident Laxmi, her sister-in-law Jyoti, brother-in-law Rinku again spoke ill
about her and when she tried to clarify the facts by going downstairs
suddenly her brother-in-law Rinku and tenant Pradeep used abusive
language. They repeatedly called her prostitute and asked her to have

CRL.REV.P. 574/2016 Page 1 of 10

relations with them. A scuffle ensued wherein Rinku caught hold of her suit
which got torn. When she tried to compose herself Rinku caught hold of her
hands and Pradeep put his hand in her salwar and inserted his finger in her
private part. She further stated that she could withdraw from there and in the
meantime, the neighbours and her husband came whereafter Rinku and
Pradeep ran inside their house and closed the door. Jyoti with folded hands
pleaded to finish of the matter however, there were exchange of abuses even
thereafter from both sides. She made a call to 100 number however, the
Investigating Officer came after one hour and refused to take her statement
asking her to give an application in the Police Station. Thus on her written
complaint she sought action.
2. Statement of the complainant was recorded under Section 164 Cr.P.C.
wherein she reiterated the allegations made in her complaint. During the
course of investigation it was also found that a CCTV camera was installed
at the spot. Thus CCTV footage was looked into and the allegations of the
complainant that Rinku tore her suit whereafter he caught hold of her hands
and Pradeep put his finger in the private part of the complainant was not
Substantiated. Recording of the CCTV footage for the relevant time was
seized. Hard disk and the DVR of the CCTV were sent to the CFSL which
found no tampering in the recording of the hard disk because the video
footage was continuous and the mentioned timings were running second by
second. On the basis of the complaint, the statement of the complainant
under Section 164 Cr.P.C., statement of witnesses and the CCTV footage
charge sheet was filed without arresting Rinku and Pradeep Kumar in the
above noted FIR.

CRL.REV.P. 574/2016 Page 2 of 10

3. Vide the impugned order dated 11th May, 2016 learned Trial Court
discharged Rinku and Pradeep. The learned Trial Court noted that Shakeela,
wife of Aslam, resident of first floor though supported the version of the
prosecutrix however, the other residents of the house namely Seema, Laxmi,
Sunita and Kishan Pal residing on the ground floor and the second floor
stated that there were abuses only from both the sides. The learned Trial
Court also noted that during investigation it was revealed that there was a
property dispute between both the sides, litigation was pending and FIR had
been filed against the husband of the prosecutrix which was pending
investigation. Another FIR filed by the husband of the prosecutrix, after
investigation was pending trial before the Court concerned. It was also noted
that both the sides kept on filing complaints against each other. As per the
CCTV footage no physical scuffle could be seen between the accused
persons and the prosecutrix as alleged by her and the prosecutrix was seen
continuously angrily shouting against the persons stating ill about her
character while other persons were pacifying her. There was no scene as
alleged by the prosecutrix about there being a physical scuffle, Rinku
catching hold of her suit, pulling it out, her suit getting torn and thereafter
Rinku holding her hands and Pradeep putting his hand in her lower and his
finger in her private part. The learned Trial Court noted that out of the
statements of six independent witnesses recorded, only one witness
supported the version of the prosecutrix and the rest have not supported her
case. The learned Trial Court also noted that despite repeated request of the
Investigating Officer, the prosecutrix did not produce her clothes which were
allegedly torn during the incident. Relying upon the decision of the Supreme

CRL.REV.P. 574/2016 Page 3 of 10

Court reported as 1979 (3) SCC 4 Union of India vs. Prafulla Kumar Samal
learned Trial Court discharged the accused.
4. The only contention of the learned counsel for the petitioner before
this Court is that in view of the statement of the prosecutrix duly reiterated
under Section 164 Cr.P.C. and supported by one independent witness, the
learned Trial Court could not have discharged the accused and the accused
ought to have faced trial. It is contended that the learned Trial Court at this
stage entered into the realm of appreciation of evidence which was not
permitted.
5. Fair investigation and a fair trial to the accused is a constitutional
mandate and the same cannot be violated. Emphasizing the need of placing
on record the documents which are in favour of the accused, the Supreme
Court in the decision reported as 2013 (9) SCC 276 Manjeet Singh Khera vs.
State of Maharashtra held:
8. The Court also noticed that seizure of large number of
documents in the course of investigation of a criminal case
is a common feature. After completion of the process of
investigation and before submission of the report to the
Court under Section 173 Code of Criminal Procedure, a fair
amount of application of mind on the part of the
investigating agency is inbuilt in the process. These
documents would fall in two categories: one, which
supports the prosecution case and other which supports the
accused. At this stage, duty is cast on the investigating
officer to evaluate the two sets of documents and materials
collected and, if required, to exonerate the accused at that
stage itself. However, many times it so happens that the
investigating officer ignores the part of seized documents
which favour the accused and forwards to the Court only
those documents which supports the prosecution. If such a
situation is pointed out by the accused and those documents

CRL.REV.P. 574/2016 Page 4 of 10

 which were supporting the accused and have not been
forwarded and are not on the record of the Court, whether
the prosecution would have to supply those documents when
the accused person demands them? The Court did not
answer this question specifically stating that the said
question did not arise in the said case. In that case, the
documents were forwarded to the Court under
Section 173(5) Code of Criminal Procedure but were not
relied upon by the prosecution and the accused wanted
copies/inspection of those documents. This Court held that it
was incumbent upon the trial Court to supply the copies of
these documents to the accused as that entitlement was a
facet of just, fair and transparent investigation/trial and
constituted an inalienable attribute of the process of a fair
trial which Article 21 of the Constitution guarantees to
every accused. We would like to reproduce the following
portion of the said judgment discussing this aspect:

21. The issue that has emerged before us is,

therefore, somewhat larger than what has been
projected by the State and what has been dealt with
by the High Court. The question arising would no
longer be one of compliance or non-compliance
with the provisions of Section 207 Code of Criminal
Procedure and would travel beyond the confines of
the strict language of the provisions of Code of
Criminal Procedure and touch upon the larger
doctrine of a free and fair trial that has been
painstakingly built up by the courts on a purposive
interpretation of Article 21 of the Constitution. It is
not the stage of making of the request; the efflux of
time that has occurred or the prior conduct of the
accused that is material. What is of significance is if
in a given situation the accused comes to the court
contending that some papers forwarded to the court
by the investigating agency have not been exhibited
by the prosecution as the same favours the accused
the court must concede a right to the accused to

CRL.REV.P. 574/2016 Page 5 of 10

 have an access to the said documents, if so claimed.
This, according to us, is the core issue in the case
which must be answered affirmatively. In this
regard, we would like to be specific in saying that
we find it difficult to agree with the view taken by
the High Court that the accused must be made to
await the conclusion of the trial to test the plea of
prejudice that he may have raised. Such a plea must
be answered at the earliest and certainly before the
conclusion of the trial, even though it may be raised
by the accused belatedly. This is how the scales of
justice in our criminal jurisprudence have to be
balanced.

6. Emphasizing the need to place all the relevant documents i.e. the ones
that favour the prosecution and those favouring the accused on record the
Rajasthan High Court in the decision reported as 2006 CriLJ 2151 Neelesh
Jain vs. State of Rajasthan held:
15. At times, the prosecution has used the loophole in the
law, in the garb of using the power and Section 173 of the
Code, to withhold those documents, which weaken their
case against the accused. However, such a free exercise of
power is against the spirit of the Code. Once a person has
been accused of the commission of an offence, it is for the
investigating agency to discover if in fact the offence has
been committed by the said offender or by someone else.
Like an archaeologist, the investigator must brush layers of
evidence to reach the truth. But in his endeavour to book the
accused, he cannot collect one- sided evidence and present
it to the court. For the investigating agency has to be
impartial in its investigation. Moreover, the prosecutor
cannot convert himself into a persecutor by submitting one
side of the investigation and by withholding relevant portion
that would favor the accused person. Neither the
investigating agency, nor the prosecution is supposed to

CRL.REV.P. 574/2016 Page 6 of 10

 merely claim, "Ashwatham maro," without informing the
Court as to who has died, the Man or the elephant.

16. In case the prosecution is permitted to withhold vital

evidence from the court, the unscrupulous prosecution
would be permitted to keep the Court in the dark. The law
does not permit the prosecution to play fowl with the Court.
Like any party before the Court, the prosecution, too, must
come to the court with clean hands. If information is
withheld from the Court, then adverse inference should be
drawn against the prosecution. Such an inference flows
legally from Section 114 of the Evidence Act.

7. As noted above the Investigating Agency following the mandate of

law, rightly placed the entire material before the learned Trial Court along
with the charge sheet in the form of statements of the complainant, witnesses
both supporting and not supporting the complainant and the CCTV footage.
Supreme Court in the decision reported as 2008 (14) SCC 1 Rukmini
Narvekar vs. Vijaya Satardekar and Ors. considering the earlier decision in
State of Orissa Vs. Dependra Nath Padhi held that even documents of the
defence which are of impeccable character can also be looked into. It was
held:
“20. We have carefully perused the decision of this Court
in State of Orissa v.Debendra Nath Padhi [(2005) 1 SCC
568: 2005 SCC (Cri) 415]. Though the observations in para
16 [Ed.: See also para 23 in Debendra Nath Padhi, (2005)
1 SCC 568] of the said decision seem to support the view
canvassed by Shri Rohatgi, it may also be pointed out that
in para 29 of the same decision it has been observed that the
width of the powers of the High Court under Section 482
CrPC and Article 226 of the Constitution is unlimited
whereunder in the interests of justice the High Court can
make such orders as may be necessary to prevent abuse of

CRL.REV.P. 574/2016 Page 7 of 10

 the process of the Court or otherwise to secure the ends of
justice within the parameters laid down in Bhajan Lal
case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : JT
(1990) 4 SC 650]. Thus we have to reconcile paras 16
[Ed.: See also para 23 in Debendra Nath Padhi, (2005) 1
SCC 568] and 29 of the decision in State of
Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568: 2005
SCC (Cri) 415].

21. We should also keep in mind that it is well settled that

a judgment of the Court has not to be treated as Euclid's
formula [vide Rajbir Singh Dalal (Dr.) v.Chaudhari Devi
Lal University [(2008) 9 SCC 284: (2008) 2 SCC (L&S)
887: JT (2008) 8 SC 621] ]. As observed by this Court
in Bharat Petroleum Corpn. Ltd. v.N.R. Vairamani [(2004)
8 SCC 579: AIR 2004 SC 4778] , observations of courts are
neither to be read as Euclid's formula nor as provisions of
the statute.

22. Thus in our opinion, while it is true that ordinarily

defence material cannot be looked into by the court while
framing of the charge in view of D.N. Padhi case[(2005) 1
SCC 568 : 2005 SCC (Cri) 415] , there may be some very
rare and exceptional cases where some defence material
when shown to the trial court would convincingly
demonstrate that the prosecution version is totally absurd or
preposterous, and in such very rare cases the defence
material can be looked into by the court at the time of
framing of the charges or taking cognizance. In our opinion,
therefore, it cannot be said as an absolute proposition that
under no circumstances can the court look into the material
produced by the defence at the time of framing of the
charges, though this should be done in very rare cases i.e.
where the defence produces some material which
convincingly demonstrates that the whole prosecution case
is totally absurd or totally concocted.”

CRL.REV.P. 574/2016 Page 8 of 10

8. The issue before this Court is whether on the basis of this impeccable
evidence of CCTV footage the Court could have discharged the accused or
not. It is trite law that even at the stage of charge the Court is required to
consider the entire material placed by the prosecution. For the purpose of
considering whether charge can be framed against the accused, the Court can
sift the material placed before it. In Union of India vs. Prafulla Kumar
Samal (Supra) it was held:
“10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:

(1) That the Judge while considering the question of

framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out.

(2) Where the materials placed before the Court disclose

grave suspicion against the accused which has not
been properly explained the Court will be fully
justified in framing a charge and proceeding with the
trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of

the Code the Judge which under the present Code is a
senior and experienced court cannot act merely as a

CRL.REV.P. 574/2016 Page 9 of 10

 Post Office or a mouthpiece of the prosecution, but has
to consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiry
into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.”

9. Thus at the stage of framing charge, on evaluation of the entire

material if the Court finds that there is no strong suspicion against the
accused for having committed the offence alleged, the accused is entitled to
be discharged. As noted above the Court considered the entire material
placed on record by the prosecution and in view of the unimpeachable
documentary material in the form of CCTV footage which as per the CFSL
report was not tampered with, no such incident as alleged of molestation or
rape having taken place, the learned Trial Court rightly came to the
conclusion that there was no strong suspicious for the accused to have
committed the offence and discharged them.
10. Finding no infirmity in the impugned order, the present petition is
dismissed.

(MUKTA GUPTA)
JUDGE
SEPTEMBER 15, 2016
‘vn’

CRL.REV.P. 574/2016 Page 10 of 10