Laxmi Devi & Ors vs State Of Delhi & Ors.
2011 Latest Caselaw 21 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CRL.REV.P. 689/2007



%                                                  Reserved on: 8th December, 2010
                                                   Decided on: 4th January, 2011



LAXMI DEVI & ORS                                                  ..... Petitioners
                                     Through:   Mr. Jai Bansal, Advocate.

                            versus

STATE OF DELHI & ORS.                                            ..... Respondents
                   Through:                     Mr. Manoj Ohri, APP for the State with
                                                SI Yogesh Kumar, PS Geeta Colony.


Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  Not necessary

2. To be referred to Reporter or not?                               Yes

3. Whether the judgment should be reported
   in the Digest?                                                   Yes

MUKTA GUPTA, J.

1. This revision petition impugns the order dated 29th September,

2007 passed by the learned Metropolitan Magistrate directing framing of

notice for offence punishable under Section 323/34 IPC against both the

Petitioners and for offence punishable under Section 354 IPC against the

Petitioner No. 2, also the notice framed for the said offences under Section

251 Cr.P.C.

2. The prosecution case in brief is that on 28th July, 2006 an

information was received at P.S. Geeta Colony vide DD No. 27/A regarding a

quarrel at House No. 1/8, Gali No. 5, Rani Garden, Shashtri Nagar, Delhi. On

reaching at the spot HC Om Veer Singh met Smt. Babita and her mother Smt.

Joginder Verma who stated that they had received injuries and thus, they were

taken to the SDN Hospital. Their examination was conducted and in the MLC

the Doctor opined the injuries to be simple blunt. No formal statement was

given by them. In view of the situation at the spot HC Om Veer Singh

prepared a Kalandra under Sections 107/151 Cr.P.C. which was presented

before the Executive Magistrate, Krishna Nagar. Both the parties gave their

written statements stating that they have settled the matter and they will live

peacefully and create no nuisance in future.

3. However, on 22nd August, 2006 Smt. Babita came to the police

station and got recorded her statement stating that she was a housewife living

with her husband. On 28th July, 2006 at about 7.00 P.M. she had come to visit

her mother Joginder Devi at Gali No. 5, Rani Garden, Shashtri Nagar along

with her husband and the motorcycle of her husband was parked at a little

distance near the house of their neighbour Mahender. Laxmi wife of

Mahender came out of her house and started abusing saying that people put

their cots opposite their house and also park their vehicle there. Though her

mother tried to stop Laxmi however, she started quarrelling. Mahender's

nephew Hoshiar Singh along with his associates came to intervene in the

matter and gave beatings to her, her mother and her husband. He caught her

breast and started doing wrong acts with her along with his associates due to

which she sustained injuries including on her breast and also used abusive

language against her. Hoshiar Singh also tore her shirt from the front side.

Babita further stated that till date she was silent however, now Laxmi and

Hoshiar Singh have threatened to lodge a complaint against them under

SC/ST Act and that is why she had come to lodge her complaint. On the basis

of her statement FIR under Section 323/354/34 IPC was registered and on

investigation being conducted a charge sheet was filed resulting in the framing

of the notice under section 251 Cr. P.C. which is impugned in the present

petition.

4. Learned counsel for the petitioners submits that since the matter

had been settled between the parties on the date of the incident, for the same

complaint no fresh FIR could be registered between the parties. Further as per

Babita's compromise statement pursuant to the Kalandra being filed it was

only a case where a quarrel had taken place and in the said statement there

was no allegation of molestation and in view of this contrary statement of the

complainant, no charge can be framed against the Petitioners. Reliance is

placed on Harvinder Singh Khurana and others vs. The State (NCT of Delhi)

and another, MANU/DE/2904/2007 wherein this Court quashed the FIR under

Sec. 498A/406 IPC being a gross misuse of criminal justice system as in the

earlier complaints there were no allegations of harassment for dowry. It is

further urged that since action had already been taken on the first complaint in

the form of Kalandra, the FIR and the trial thereon would amount to double

jeopardy and is impermissible in law.

5. Learned APP for the State on the other hand contends that the

incident is of 28th July, 2006 when on an information being received at the

Police Station HC Om Veer took the complainant and his mother to the

hospital where their respective MLCs were prepared. It is stated that the

medical examination of the complainant on the same date shows multiple

abrasions on various parts of the body including on the right upper part of the

chest. Merely because the complainant did not want to proceed with the

complaint on that date and compromised the matter and since it was being

compromised she did not give the complete details of the injuries caused to

her, it cannot be said that this belated complaint of her is false or sham and

cannot be proceeded forward. The complainant in her complaint itself has

explained the reason why she did not want registration of the case against the

Petitioners on the date of the incident. It is urged that merely giving

incomplete details in the first statement, which was a compromise statement,

does not belie the version of the complainant. Moreover, whether the

complainant is speaking the truth or not is a question which has to be gone

into at the stage of trial and at this stage the order that is required to be passed

is one of framing of the charge/notice. Reliance is placed on Soma

Chakravorty vs. State, through CBI, 2007 (5) SCC 403, State of Madhya

Pradesh vs. Sheetla Sahai and others, 2009 (8) SCC 617 and P. Vijayan vs.

State of Kerala, 2010 (1) SCALE 604.

6. It is further contended that this is not a case of double jeopardy.

Section 300 Cr. P.C. provides that once a person has been tried and convicted

or acquitted for an offence, by a court of competent jurisdiction he cannot be

tried for the same offence or on the same facts for any other offence for which

a different charge from the one made against him might have been made. The

Petitioners in the present case have neither been tried nor convicted or

acquitted of the said offence. The complainant at that stage did not lodge her

complaint and thus, it cannot be said that the present trial would amount to

double jeopardy.

7. I have heard learned counsel for the parties and pursued the

record. The issues that call for determination are whether the order impugned

and the trial pursuant thereto are illegal as the same amounts to double

jeopardy and whether at this stage in view of the fact that the complainant did

not make any allegation of molestation in her statement settling the matter on

28th July, 2006 the learned trial court at the stage of framing of notice could

come to the conclusion that there is no strong suspicion against the accused

for having committed the offence alleged.

8. The statement of the complainant that she, her mother and her

husband were beaten and her modesty was outraged is corroborated by the

MLC conducted on the same date at 10.30 P.M. that is soon after the incident

wherein the following injuries on the complainant were recorded:

1. Multiple abrasions at anterior aspect of left forearm (lower part)

2. Abrasions (multiple) at anterior aspect of right forearm (lower part).

3. Abrasion on right upper part of chest.

9. In State of Maharashtra and others vs. Som Nath Thapa and

others, 1996 (4) SCC 659 it was held:

"32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of

charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

10. At this stage this Court cannot appreciate the evidence and arrive

at the conclusion that the version of the complainant is false as she did not

make an allegation of molestation in her statement settling the matter on the

date of incident. This is in the realm of appreciation of the evidence and has

to be decided during the trial after recording of evidence.

11. I do not find any merit in the contention of learned counsel for

the Appellant that since a Kalandra u/Sec. 107/151 CrPC was lodged wherein

the parties settled the matter and undertook to live peacefully and not create

any nuisance in future, the FIR and the trial pursuant thereto amounts to

double jeopardy. In terms of Section 300 Cr.P.C., only if a person is acquitted

or convicted after trial by a court of competent jurisdiction he cannot be tried

again for the same offence. The explanation to the said Section further states

that the dismissal of the complaint or the discharge of the accused is not an

acquittal for the purpose of this Section. In the present case the complainant

did not even lodge her complaint on the date of incident. Moreover the

kalandra lodged under Sec. 107/151 CrPC was an action taken by the police

authorities against both the parties to prevent breach of peace which is a

preventive action and not a punitive action like the present one which is a trial

for adjudicating the allegations of the complainant against the petitioners for

committing offences punishable under the Indian Penal Code, 1860.

12. As regards the contention that in the statements made on the date

of incident compromising the matter, the complainant had not levelled any

allegation about the molestation and thus, no case for framing notice for an

offence punishable under Section 354 IPC is made out, it may be noted that

since that was only a statement settling a preventive action taken by the

police, the complainant was not required to give each and every detail of the

omissions and commissions on the part of the Petitioners on that date. Merely

because certain facts were not stated in the statement recorded on the date of

incident cannot be a ground to dislodge the FIR or discharge the accused for

the said offence. The law is well settled that even in the FIR, it is not essential

to give the entire details of the incident as the same is for the purpose of

setting the investigating machinery into motion. The details of the incident

have been mentioned by the complainant in the complaint on the basis of

which FIR has been registered which fact also finds support from her MLC.

At this stage the trial cannot be set at naught for the grounds agitated by the

Petitioners.

13. For the aforesaid reason, I find no illegality in the impugned

order. Hence, the present Revision Petition is dismissed.

(MUKTA GUPTA) JUDGE JANUARY 04, 2011 vn