D N Taneja vs State Nct Of Delhi
2013 Latest Caselaw 805 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on: 12th February, 2013
                                              Pronounced on: 18th February, 2013
+        CRL.M.C. 552/2013

         D N TANEJA                                                 ..... Petitioner

                            Through:     Mr. Uday Lalit, Sr. Advocate with Mr. N.
                                         Hariharan, Mr. Bhanoo Sood and Mr.
                                         Yogesh Dahiya, Advocates

                            versus

         STATE NCT OF DELHI                                         ..... Respondent

                            Through:     Ms. Rajdipa Behura, APP for the State


         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J.

1. The Petitioner invokes inherent powers of this Court under Section 482 of the Code of Criminal Procedure("the Code") for setting aside of the order dated 17.12.2012 passed by the learned Additional Sessions Judge("A.S.J.") and for quashing of FIR No.76/2012 dated 07.06.2012 registered at Police Station Barakhamba Road in view of the final report filed by the investigating agency.

2. The facts of the case and the contentions raised on behalf of the Petitioner can be broadly culled out from paras 2 and 3 of the impugned order which are extracted hereunder:

"2.Facts in brief, are that on the written complaint of prosecutrix dated 07.06.2012, the above FIR was registered under Section 376 IPC. After investigation, the investigating officer filed final report of cancellation under Section 173 Cr.P.C. dated 21.08.2012. Learned M.M. after considering the record concluded that there are sufficient allegations vide FIR and statements recorded by the investigating officer under Section 161 Cr.P.C. for taking cognizance of the offence against the accused and directed that the accused be summoned for 19.12.2012. The said order of Ld.MM is under challenge before this Court.

3.The revisionist has challenged the impugned order, inter alia, on the ground that the said order suffers from procedural illegality and lack of evidence. It is pleaded that although, from the facts no prima facie case is made out, but the Ld. M.M. has taken cognizance. He has failed to appreciate that the FIR was lodged after a period of 1½ years; the prosecutrix has made improvements in her statement under Section 164 Cr.P.C.; the complainant is a law student and intentionally delayed recording of her statement under Section 164 Cr.P.C.; negative opinion(no injury was found on the body of complainant/prosecutrix) was given by Doctor of RML Hospital who examined the complainant; the C.D. placed on evidence disclosed no offence; during the course of investigation, the prosecutrix herself gave in writing on 26.07.2012 that she had made the allegations under bad advice and did not wish to pursue her complaint; accordingly, the investigating officer had rightly filed the closure report. "

3. The learned A.S.J. while declining to interfere with the order dated 17.11.2012 passed by the learned Metropolitan Magistrate("M.M.") taking cognizance against the Petitioner reasoned that there was consistent complaint of rape in the statement made to the police under Section 161 of the Code and the statement recorded by the learned M.M under Section 164 of the Code. There were other supporting materials to the statements of the prosecutrix recorded under Sections 161 and 164 of the Code. The learned A.S.J. held that the delay in registration of the FIR and the negative opinion on MLC were not material because the prosecutrix in her statement had stated that because of fear and shame, she did not lodge any complaint against the Petitioner earlier.

4. I have heard Mr. Uday Lalit, learned Senior Counsel for the Petitioner and Ms. Rajdipa Behura, learned APP for the State.

5. It is not in dispute that the prosecutrix(the complainant) in her statement under Section 161 of the Code gave a detailed account as to how the Petitioner made advances, how he initially molested her and then on 17.10.2010 committed rape on her. It is also not in dispute that the prosecutrix was consistent in the allegations of molestation and rape even in her statement recorded on oath under Section 164 of the Code by the learned M.M.

6. The learned Senior Counsel for the Petitioner fervently argues that although there are allegations of molestation, rape etc. in the statements under Sections 161 and 164 of the Code, yet the circumstances under which the allegations were levelled will indicate that the same were totally false. The learned Senior Counsel states that wholesome powers

under Section 482 of the Code have been conferred on the High Court to put an end to the harassment and oppression of an accused where it is shown that the allegations levelled are totally false and unbelievable. The learned Senior Counsel points out that since the allegations of rape was of October, 2010, nothing much could have emerged from the MLC of the prosecutrix when she was medially examined in June, 2012 and the delay of 20 months by itself may not be sufficient for quashing of the FIR. Yet, these facts coupled with the prosecutrix's subsequent report dated 26.07.2012 to the SHO, the analysis of the CD presented by the prosecutrix herself which did not indicate commission of any offence; the statement of the Prosecutrix on oath dated 11.09.2012 made to the learned M.M. after filing of the cancellation report and the discrepancy regarding the place of incident in the statement under Sections 161 and 164 of the Code would clearly show that the case was clearly cooked up and this Court should come to the rescue of the Petitioner to put an end to his harassment.

7. The learned Senior Counsel with regard to the CD took me through the cancellation report. The portion of the report under Section 173 of the Code relied upon by the learned Senior Counsel is extracted hereunder:

"Case work begins from custody, the Video CD, was sent to FSL, Rohini Delhi for purpose of examination and copying the same. It's report is received vide FSL No.2012/P-4945/Phy- 182/12 dated 25.07.12, as per that original CD in sealed condition was deposited in open condition which was run on 03.08.12 to see it. CD is in VLC media file. Its recorded data is of 58:36 minutes. On running the CD it displays date as 2009-1-03 and time as 10:19:22.

In the CD voice is not coming that much clear and whatever persons are speaking in between themselves that conversation is not understandable. In video our persons was sitting on chair in front of mirror who appears of applying some cream on his face. Camera was moving regularly and its direction is also changing. Camera is not fixed at one place. A person sitting in front is not operating the same. The place where complainant is camera's location is nearby her. In video another girl was seen sitting with the man at around 10:30 p.m. At 10:41 p.m. near complainant a glass of juice appears, which she start drinking. At around after 10:42:54 p.m. a person looks like servant come and go from the room. Complainant appears to be walking freshly.

In video around 10:47:11 for a long period a door appears which is opened. In video at 10:55:11 again some person as like servant comes. The static position of the camera changes and man sitting in front has come near and start camera recording from the back side.

At around 11:07 p.m. the complainant appears while doing face cleaning by cotton and it appears that she was doing that willingly. After that video became dark and at 11:18:11 p.m. video ended. After seeing the video it appears that there was no misbehaviour or teasing was done with the complainant. After drinking of juice for a long time there it does not appear that she is under the influence of any toxicant. In the video the door of the room is also open and there is moment of different people in the room. While running the CD there was no any scene found which proves the complaint of complainant. While investigation going on in the case as on 26.07.12 complainant herself given in written that she filed this complaint on the wrong advice of someone and she has received her documents as well. She has written that this matter to be treated as closed.

Accused D.N. Taneja was also examined who has vehemently denied all these accusations. Wife and son of accused were also examined and they told that they live in a joint family on

the date of incident they were in home. Servants in their home are also examined, they also can't provide any information related to it.

There was also a delay of almost one and half years by the complainant in filing of police report, which cannot be explained, in CD no offensive act is found, the place of offence is also not confirmed by complainant after such long period, complainant is a student of law, complainant knowingly took so much of time in giving her statement u/s 164 Cr.P.C. she has given in written herself."

8. A written report dated 26.07.2012 submitted to the SHO is also extracted hereunder:

"To, The SHO Police Station Barakhamba Road New Delhi-110001.

Respect Sir, I had made a complaint to you on 07.06.2010 which resulted in FIR No.76/2012. I had made allegation of rape and misconduct against Mr. D.N. Taneja.

I regret that I had made those allegations under bad advice. I have found my document.

I am sorry that I made these allegations and I repent having made them. I do not wish to persist in them. Kindly treat the matter as closed. I will separately make suitable amends to Mr. D.N. Taneja.

Yours sincerely, Sd/- S Sonu D/o Lt. Sh. Jeewan Dass 51A, Ist Floor, Indra Park, Gali No.13, Near Chander Nagar, New Delhi."

9. On the other hand, Ms.Rajdipa Behura, learned APP submits that at the stage of taking cognizance the learned MM was not required to give any detailed reason. Moreover, the Court at that time is not to reach a conclusion whether the evidence collected is sufficient to base conviction of the accused. What is required to be seen is whether on the basis of material collected there are sufficient grounds for proceeding against the accused.

10. The learned Senior Counsel places reliance on a judgment of a Co-

ordinate Bench of this Court in V.K. Tulsian v. State, 2000 III AD(Cri) DHC 176 in support of his contention that where initially allegations of rape are levelled against an accused and during subsequent investigation it transpires that the allegations are false, the FIR can be quashed.

11. There is no gainsaying that as per the CD analysed by the Police, there was no indication that the offence of molestation or rape was committed by the Petitioner upon the prosecutrix. I have already extracted above an application dated 26.07.2012 written by the prosecutrix to the SHO, P.S. Barakhamba Road. In this application, the prosecutrix simply stated that she made allegations of rape and misconduct against the Petitioner. She further stated that the allegations were made under bad advice. She stated that she had found her document. She felt sorry for making the allegations and wanted the matter to be closed.

12. It is important to note that the prosecutrix nowhere stated that she had levelled false allegations against the Petitioner. The factum of withdrawal of the allegations, non-appearance of any misconduct in the CD, the delay in making the complaint about the sexual assault to the police, initial

reluctance, if any, on the part of the prosecutrix to make the statement under Section 164 of the Code to the learned M.M. on the ground that she was to take her examination, and the contradiction about the place of incident, particularly in view of her explanation in this regard that it was a typographical error were required to be gone into only at the stage of the trial.

13. Unfortunately the IO of the case W/SI Rajender Kaur took upon herself to undertake the job of the Court in disbelieving the statement under Sections 161 and 164 of the Code and on the basis of the CD and the application dated 26.07.2012 returned a verdict that the Petitioner was not guilty of the offence alleged against him.

14. V.K. Tulsian relied upon by the learned Senior Counsel is not of any avail to the Petitioner in view of the fact that in V.K. Tulsian, in her statement under Section 164 of the Code the prosecutrix specifically came out with the plea that she had lodged a false complaint against the Petitioner on account of frustration. In V.K. Tulsian, the prosecutrix had also given the reasons for the said frustration, which is not the case here.

15. It is very intriguing that even in the face of the statement under Section 164 of the Code recorded on oath before the learned M.M., the IO preferred to conclude that there was no ground for proceeding against the Petitioner. Not only this, the supervisory officers, that is, Inspector Amardeep Sehgal, SHO, P.S. Barakhamba Road and ACP H.P. Hareesh simply turned a blind eye to the cancellation report prepared by the IO. The manner in which the cancellation report has been submitted to the learned M.M., the only inference that can be drawn is that either the three

police officers were too inefficient to analyse as to on what material the accused should be challaned and when a cancellation report has to be filed or the cancellation report is motivated.

16. At the stage of taking cognizance, the learned M.M. was only required to analyse whether there exists sufficient ground for summoning the accused or not. The Magistrate was not required to see whether the material was sufficient to convict the accused. There is no error or illegality in the order dated 17.11.2012 passed by the learned M.M. and the order dated 17.12.2012 passed by the learned A.S.J.

17. The Petition is devoid of any merit; the same is accordingly dismissed.

18. Pending Applications stand disposed of.

19. In view of the observations made in para 15 of the judgment, the Commissioner of Police is required to look into the conduct of the IO, SHO and the ACP concerned and to take appropriate action against them within eight weeks and send a report to this Court within 10 weeks.

(G.P. MITTAL) JUDGE FEBRUARY 18, 2013 pst