On 31st August, a bench of Delhi High Court consisting of Justice Subramonium Prasad while hearing a revision petition held that when an FIR is registered after a long time it should contain a more graphic description of the incident that has transpired and it should contain all the details and names of all the accused who have committed the offence or were part of the offence.

Facts of the case:

The petitioner had approached this Court challenging the orders dated 04.09.2018 and 14.09.2018, passed by the learned Additional Session Judge, dismissing application for discharge filed by the petitioner and directed framing of charges against the petitioner for offences under Section 109 IPC read with Section 376-D IPC. The petitioner was charged under Sections 376(D)/ 377/109/506/34 IPC. In the charge-sheet, the material against the petitioner is the statement by the prosecutrix under Section 164 Cr.P.C wherein she has stated that when she reached 958, Jai Ambey Apartment, the petitioner herein and Deepak Dua were present there and after sometime the petitioner herein went out and locked the door from outside.

Contention of the petitioner:

Mr. Tanveer Ahmed Mir, learned Counsel appearing for the petitioner submitted the following:

  1. It was submitted that the petitioner is being roped in by the prosecutrix only to extort money from the petitioner and her husband, Deepak Dua.
  2. It was also submitted that in this complaint there is no allegation of rape against the petitioner or her husband, Deepak Dua.
  3. He further contends that the prosecutrix filed an application under Section 156 (3) Cr.P.C before the Chief Judicial Magistrate for registration of FIR against Krishan Kumar for alleged forgery regarding the same property at Sector 76 Noida for which the prosecutrix had filed complaint with the Commissioner of Police, Delhi and as such there was no allegation of rape against the petitioner or her husband, Deepak Dua.
  4. The learned counsel for the petitioner stated that after failing in her attempt to get the property/money from Krishan Kumar, the prosecutrix has now set her sights on the petitioner and her husband, knowing that they are the owners of the gym.

Contention of the respondent:

Mr. G.P. Thareja, learned Counsel appearing for the prosecutrix and Ms. Kusum Dhalla, learned APP for the State contented the followed:

  1. It was submitted that the fact that whether the prosecutrix has taken the flat, bearing No.958 Jai Ambey Apartments, on rent or not are all matters to be seen in trial and they cannot be examined now.
  2. Ms. Kusum Dhalla, learned APP supported the order of the Trial Court and states that arguments raised by the petitioner should be considered only at the time of trial and cannot be considered at this stage.

Observation and judgement:

The following observation has been made by hon’ble bench of the court:

  1. The Court has the 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. After analysing the materials before it, if two views are 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 justified in discharging the accused in exercising its jurisdiction under Section 227 Cr.P.C.
  3. The only allegation against the petitioner is that she was present at Flat No.958 Jai Ambey Apartment property which in the charge sheet it is mentioned has been taken on rent by her stating that she is the wife of Krishan Kumar.
  4. Absence of application of judicial mind can lead to grave injustice which may entail an individual being driven through the rigours of the legal system due to no fault of their own. It is the duty of the Court to, therefore, ensure that such injustice can be mitigated and that an accused does not have expend their resources in contesting a potentially mala fide prosecution.
  5. The prosecutrix did not state that the petitioner herein was at 958, Jai Ambey Apartments when the rape was committed on her and in her statement under Section 164CrPC which is inapplicable.

Thus, based on the above, orders dated 04.09.2018 and 14.09.2018 were set aside and the petitioner stood discharged.

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