Shamshad & Another vs State (Nct Of Delhi)
2009 Latest Caselaw 3897 Del

                     IN THE HIGH COURT OF DELHI

                         Crl.Rev.P. No.193 /2009


                            Reserved on       11th September 2009

                             Date of decision:       23rd September, 2009


         Shamshad & Another                         ....Petitioners
                  through: Mr. Haneef Mohd., Adv. with
                            Mr. Mustafa, Adv. & Mr. Anil Vyas, Adv.

                                   VERSUS


         State (NCT of Delhi)                         ....Respondent

through: Mr. Manoj Ohri, APP for the State.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1.Whether reporters of local papers may be allowed to see the Judgment? No

2.To be referred to the Reporter or not? No

3.Whether the judgment should be reported in the Digest? No

GITA MITTAL, J

1. The petitioners Shamshad and Mohd Rashid by way of the present

revision have prayed for setting aside of the order dated 20th January, 2009

passed by the learned Additional Sessions Judge, Rohini, Delhi framing

charges under Sections 376/343 of the Indian Penal Code against the

Shamshad-petitioner no.1 and under Section 363 read with Section 340 of

the Indian Penal Code against Mohd Rashid-petitioner no.2.

2. The case of the prosecution to the extent necessary for the purposes

of the present case is briefly set out hereafter. On 10th February, 2005, a

missing report was lodged by Noor Ahmed, father of Sadma as well as Mohd

Ayub, father of Taranum. These two girls were recovered vide D.D. No.17

dated 13th February, 2005 from the house of a relative of Mohd Rashid in

Roorkie, Uttar Pradesh. Statements of the two girls and their fathers were

recorded in which they made no allegations whatsoever against anybody.

Custody of the two girls was therefore handed over to their parents.

3. Subsequently, on or about 16th March, 2005, Mohd Ayub, father of

Taranum made a complaint to the court of Chief Metropolitan Magistrate

complaining of commission of offences under Sections 363/364/376 of the

Indian Penal Code against the petitioners and one Salim with regard to the

occurrence on the 9th February, 2005 and thereafter. The complainant

stated that he had also made a written complaint dated 4th March, 2005 to

the higher authorities of the police complaining the non-action of the police

in the matter. As nothing was done pursuant thereto, he was filing the

complaint before the court making a prayer that the accused persons be

summoned and punished.

4. On this complaint, the learned Metropolitan Magistrate passed an

order dated 11th May, 2005 directing the SHO, Police Station Punjabi Bagh

to register an FIR under the appropriate provisions of law; to get the same

investigated and file a report at the earliest. As a result, the police

registered FIR No.384/2005 under the provisions of Sections

376/363/342/34 of the Indian Penal Code on 18th May, 2005 against

Shamshad-petitioner no.1 and one Salim. It is noteworthy that no case was

registered against the accused Mohd Rashid, petitioner no.2.

5. On 28th May, 2005, during the course of investigation, the police

recorded statements of Mohd Ayub the complainant, the two girls as well as

Noor Ahmad, father of Sadma.

6. These statements were followed with the recording of the statement

of Taranum and Sadma on 6th June, 2005 by the learned Magistrate under

Sections 164 of the Code of Civil Procedure.

7. My attention is drawn thereafter to the detailed order dated 26th

August, 2006 recorded by the learned Magistrate complaining of the

manner in which the investigation of the case proceeded. The order notes

that the investigating officer was not present with the final report which

had taken more than one year and three months for submission. The

investigating officer had filed the final report in the case in court on that

day. The chargesheet was filed only against Shamshad-petitioner no.1

herein. He had placed the name of the accused Salim in Column no.2 and

in the body of the chargesheet, had mentioned that there was no evidence

against Salim. The learned Magistrate observed that the chargesheet was

completely silent about Mohd Rashid. It was observed that nothing has

been found mentioned even on a query made by the court. The

investigating officer orally informed the court that Rashid had married

Sadma who was a friend of Taranum the prosecutrix in the case, and had

accompanied her.

The learned Magistrate considered the statements given by the two

girls before the learned Magistrate under Section 164 of Cr.P.C. and

observed that the prosecutrix Taranum had given a statement on oath

assigning a specific role to Salim as well as Rashid. The court was of the

view that despite the statement of the prosecutrix Taranum with regard to

implication of Rashid for serious offences of kidnapping and other offences,

the accused person had been deliberately let off by the investigating

agency.

8. The learned Judge placed reliance on the judicial pronouncements

reported at 2004 (1) JCC 611 Jagadish Ram Vs. State of Rajasthan &

Anr.; (2003) 4 SCC 139 Dy. Chief Controller of Imports and Exports

Vs. Roshan Lal Aggarwal & Ors.; (2002) 1 SCC 241 S.W. Palanltkar

& Ors. Vs. State of Bihar & Ors. & 1967 (3) SC 668 = AiR 1968 SC

117 = 1968 CLJ 97 Abhinandan Jha & Ors. Vs. Dinesh Mishra in which

it was held that even though a final report stands filed by the police, the

Magistrate has ample powers to give directions to the police under Section

156(3) of the Cr.P.C. to make further investigation. It was further observed

that even if the process may have been issued against some of the

accused, in exercise of power under Section 190 of the Cr.P.C. the

Magistrate can on the next date, issue process to other persons against

whom there is material on record and whose name was not included as an

accused person in the chargesheet. It was observed that there was

sufficient material to issue non-bailable warrants against the accused Salim

whose name has been placed in Column No.2 but for the reason that no

parentage or the address of Mohd Rashid was on record, process could not

be issued against him. In this background, the court directed the police

station Punjabi Bagh to take up further investigation in the case with regard

to the role of Mohd Rashid and directed non-bailable warrants against the

accused Salim to issue for the next date.

No challenge has been laid to this order dated 26th of August, 2006 by

any person.

9. A supplementary charge sheet was then filed on 9th February, 2007

against the accused Mohd Rashid by the investigating officer. Counsel for

the complainant submitted that he is not pressing any other sections

besides the section in which cognizance was taken by the court on 19th

February, 2006 nor he is pressing the complaint case for any other accused.

Thereafter by an order passed on 12th September, 2007, it was observed

that the offences under Section 363/373 of the Indian Penal Code were

exclusively triable by the court of session and the case was committed to

the sessions court.

10. The material placed by the investigating agency before the court and

by the order dated 20th January, 2009, the trial court directed that the

material placed by the prosecution prima facie discloses commission of

offences under Section 363 of the Indian Penal Code by all the three

accused and commission of offences under Section 376/342 of the Indian

Penal Code against the accused Shamshad.

11. Before this court, learned counsel for the petitioner has assailed the

order dated 20th January, 2009 primarily on the ground that the first

statements made by the two girls as well as their fathers on 13th February,

2005 were totally exculpatory and did not disclose commission of any

offence by the petitioners. It is further contended that the statements

made by the girls and fathers were witnessed and signed by several

relatives and other persons as well and that the police also recorded D.D.

No.17 on 13th February, 2005 with regard to the recording of such

statements. The police specifically noted that the two girls left their home

for checking the result in the Hansraj School and from there they left for

touring and bathing in Haridwar with their friends without informing their

families. The police also noted that there was no disclosure of any

misbehaviour against these boys and that the girls did not want to be

medically checked up. For this reason, the custody of the girls was handed

over in good health to their fathers.

12. Mr. Haneef Mohd, learned counsel for the petitioner has vehemently

contended that in the light of these statements duly signed not only by the

two girls and their fathers, the complaint allegedly made on 14 th March,

2005 to higher authorities as well as the complaint filed on 16th March, 2005

under Section 156(3) of the Cr.P.C. before the court of the learned ACMM

deserve to be totally rejected. It is also urged that the statements

attributed to the prosecutrix under Section 161 of the Cr.P.C. made on 6 th

June, 2005 are totally fabricated and concocted. The submission is that the

contradictions with the first statement and the delay in making the

subsequent inculpatory statements renders them as totally suspect and

unworthy of any credence.

13. It is further urged that Sadma, the other girl who is alleged to have

been kidnapped, has not supported the prosecutrix or the complainant at

all. In view of the contradiction between the statement of the two girls who

were allegedly kidnapped, the accused persons are entitled to the benefit

of doubt and are bound to be discharged.

14. Learned counsel for the petitioner points out yet another circumstance

in support of the prayer for quashing of the order framing charges against

the petitioners and the prosecution. It is urged that in the original

statements made by all these persons, the accused Salim was not named

as even present or involved in any manner. Further that even in the

complaint filed by Mohd Ayub, he has not implicated Salim at all. It is only

in the statement of the prosecutrix recorded under Section 164 of the

Cr.P.C. that she has for the first time stated that Salim was waiting in the

auto rickshaw outside her school. The submission is that in this background

itself, the petitioners deserve to be discharged.

15. I have heard learned counsel for the parties at length. It cannot be

disputed that at the stage of consideration of the award, this court is only

required to consider whether the allegations in the complaint and the

material placed on record, prima facie give rise to grave suspicion of the

implication of the accused persons for the commission of offences for which

they have been arraigned to stand trial.

16. The main plank of the petitioner's contention before this court is

based on the first exculpatory statements made by the complainant, the

prosecutrix and all other witnesses on 13th February, 2005. So far as this

statement is concerned, the complainant as well as the prosecutrix have

stated that their signatures were taken on blank papers by the police.

They have also made allegations of police collusion with the accused

persons. The complainant has further stated that he was insisting upon

the police to register a case and to get the prosecutrix medically examined

but the police did not do so.

17. So far as the veracity and correctness of these submissions is

concerned, the same would require to be tested in the statement which

shall be made on oath before the court and shall require to stand the test of

cross-examination. However, at this stage, there is nothing on record

which would enable this court to discredit the explanation given by the

complainant or the prosecutrix. They have rendered an explanation for the

first statement which is attributed to them and made other allegations with

regard to the police inaction. The petitioners would have an opportunity to

challenge the statements made by the complainant and the prosecutrix

more than one month after the commission of the alleged offence on the

ground that the same was an after thought as has been urged before this

court.

18. In the statement under Section 164 of the Cr.P.C., the prosecutrix has

stated on oath that when the prosecutrix and her friend Sadma came out of

the school, they found Shamshad and Salim waiting in an auto rickshaw.

Mohd Rashid with two other boys was also waiting in another auto rickshaw.

Shamshad and Salim forcibly separated the two girls and seated them in

the two auto rickshaws. The complainant was placed in Shamshad's auto

rickshaw. The two girls were taken to Inter State Bus Terminus (ISBT) and

from there to Haridwar and thereafter to Roorkee to the residence of

relatives of Mohd Rashid. The prosecutrix has specifically stated that

Sadma and she were locked in different rooms and that Shamshed raped

her for three days.

It is stated by the prosecutrix that the physical relations were forcibly

established by Shamshad.

19. Sadma has not given any evidence of rape. In her statement under

Section 164 of the Cr.P.C. also recorded by the Magistrate on 19th

December, 2006, she had stated that the girls knew Rashid and Shamshad

before 9th February, 2005 and had respectively fallen love with them. She

also stated that after leaving their school on the 10th of February, 2005, the

girls sat with the boys in the park and apprehensive of being scolded by the

parents, accompanied the boys to Haridwar. Sadma stated that she had

married Mohd Rashid on 25th February, 2005 and had a son from this

marriage. She stated that neither her parents nor she has any complaint

against him and that she does not want legal action to be taken against

him.

20. The impact of this statement and the refusal to join the complainant

or Taranum in the allegations which have been made, would be examined

during trial. It is the case of the prosecution that the girls were minors at

the time of the incident and were taken out of the custody of their

guardians without their consent. In the face of the allegations in the

complaint; the statements given by the complainant and the prosecutrix

Taranum, it cannot at all be held that there is no prima facie evidence of

implication of the petitioners before this court for commission of the

offences with which they have been charged.

21. Learned counsel for the petitioner has contended that it was not open

for the learned Magistrate to summon any person other than those who

have been arrayed in the chargesheet filed by the police.

22. My attention has been drawn to the pronouncements of the Apex

Court reported at AIR 2001 SC 3524 = 2002 Crl. L.J. 90 Rajinder

Prasad Vs. Bashir & Ors. wherein it is stated that Section 190 of the

Code of Criminal Procedure empowers the magistrate to take cognizance of

any offence against such persons also who have not been arrested by the

police as accused persons, if it appears from the evidence collected by the

police that they were prima facie guilty of offences alleged to have been

committed. Section 209 of the Code provides prescribed procedure to be

followed by the Magistrate where the accused appears and is tried before

the Magistrate and if it appears to the Magistrate that the offence is triable

exclusively of the category of sessions, after compliance with the provision

of Sections 207/209 as the case may be, he shall transfer the case to the

court of sessions and subject to the provisions of the Code, pass

appropriate orders.

The Apex Court placed reliance on its earlier pronouncements

reported at 1967 (2) SCR 43 Raghubans Dubey Vs. State of Bihar and

further held that the cognizance taken by the Magistrate was of the offence

and not of the offender. Having taken cognizance of the offence, a

Magistrate can find out the real offender and if he comes to the conclusion

that apart from the persons sent by the police, some other persons were

also involved, it is his duty to proceed against those persons as well.

- 10 -

23. In 2001 Crl.L.J. 4173 : 93 (2001) DLT 8 Swil Limited Vs. State of

Delhi & Ors. (Supra), the Apex Court has held that as per Section 190 of

the Cr.P.C., under Section 204 Cr.P.C. the Magistrate is empowered to issue

process to the accused. At the stage of issuing process, it is for the

Magistrate to decide whether process should be issued against the

person/persons named in the chargesheet and also not named therein. The

Magistrate is required to apply independent mind not only from the facts

emerging from the investigation but by taking into account the statements

recorded by the police as well other documents tendered along with the

chargesheet.

24. On receipt of the complaint, even if a Magistrate orders investigation

under Section 156(3), the Magistrate has jurisdiction to apply independent

mind to the complaint which is placed before the court. In this behalf, the

observations of the Apex Court in the judgment reported at (1980) 4 SCC

631 H.S. Bains, Director, Small Saving-Cum-Deputy Secretary

Finance, Punjab, Chandigarh Vs. State (UT of Chandigarh), can be

usefully adverted to and read as follows:-

"5. Chapter XV (Sections 200 to 203) of the Code deals with "complaints to Magistrates". A Magistrate taking cog­ nizance of an offence on complaint is required by Section 200 to examine the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the ac­ cused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the com­ plaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of

- 11 -

the enquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding. Chapter XVI deals with "com­ mencement of proceedings before Magistrate" and Sec­ tion 204 enables a Magistrate to issue summons or a war­ rant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cog­ nizance of the offence there is sufficient ground for pro­ ceeding.

6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the com­ plaint under Section 203. If in his opinion there is suffi­ cient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case him­ self or direct an investigation to be made by a Police Offi­ cer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for pro­ ceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the com­ plaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a com­ plaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a re­ port under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witness­

- 12 -

es present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a re­ port under Section 173 will not have the effect of total ef­ facement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a com­ plaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, there­ after, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original com­ plaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."

25. In view of the above, the objection of the learned counsel for the

petitioners that the Magistrate had no power to direct summoning of the

petitioner no.2 or the other co-accused despite the final report presented

by the police, is wholly misconceived.

26. It has to be held that the statement made by the prosecutrix was

categorical. The two girls who were taken from Delhi to Haridwar have

been stated to be minors. The question of consent of their guardians would

be a material consideration during the trial. In view of the statements on

record, the present case is not a case where the material placed by the

prosecution raises only suspicion. The complainant has given an

explanation for the delay and attributed collusion to the police which would

be examined during trial. The first statement relied upon by the petitioners

- 13 -

is denied by the complainant and the prosecutrix. In this background, the

challenge by the accused persons to the order dated 20th January, 2009

framing charges against the petitioners and the order summoning the

petitioner no.2 is untenable and wholly devoid of legal merit.

This petition is accordingly dismissed.

Let the record of the trial court be returned to the trial court without

any delay.

September 23, 2009                                     Gita Mittal, J.
aa




                                    - 14 -