Surender Pal Anand vs State & Anr.
2013 Latest Caselaw 1193 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       CRL.M.C. 3168/2010


+                            Date of Decision: 11th March, 2013

#      SURENDER PAL ANAND               ..... Petitioner
!                    Through: Mr. K.C. Mittal, Advocate

                               versus

$      STATE & ANR.                    ..... Respondents
                Through: Mr. M.N. Dudeja, APP for the State
                         Mr. R.S. Nirwal, Advocate for R-2

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                              ORDER

P.K.BHASIN, J:

By way of this petition under Section 482 of the Code of Criminal Procedure,1973 the petitioner-accused seeks quashing of the order dated 16th April, 2010 passed by the learned Metropolitan Magistrate in a criminal complaint under Section 200 Cr. P.C. filed by respondent no.1 herein against him and his wife as well as against her own husband whereby the petitioner was summoned as an accused for the commission of the offence punishable under Section 376 IPC for raping respondent no.2-

complainant and complainant‟s husband was ordered to be summoned for the commission of offences under Sections 323/506(II)/34 IPC.

2. The relevant facts of the case noticed by the Magistrate and his findings in the order dated 16th April, 2010, which was passed after recording the pre-summoning evidence of respondent no.2- complainant, are as under:-

"Accused no.3 is husband of the complainant. The complainant herself is a teacher by profession. After their marriage, on 14.12.1998, the complainant along with her husband visited South Delhi Institute to pursue B.Ed. Course where she met accused no.1 who represented that he can assist them in procuring the admission form and help them with her admission for the said course with Meerut University. Soon thereafter, the accused no.1 stated that he can arrange for the admission through a person called Mr. Ved Suri. Accused no.1 and 3 accompanied her to Meerut where she got admission to a B.Ed. Course. Subsequently, the accused no.1 started developing intimacy with accused no.3 In between, the complainant had to spend six months in her parental house due to some quarrel of the accused no.3 with her laws. On coming to know about family disturbances, the accused no.1 had stated that accused no.3 should ask for his share from the joint family and for this purpose, he could arrange an Advocate in Tis Hazari Courts, namely, accused no.2 who is the wife of the accused no.l. Subsequently, the in laws of the complainant gave share to the accused no.3 who shifted to flat no. DB- 44E, LIG Flats, Hari Nagar, Nevi Delhi and was also given gold jewellery, approximately 30 tolas and cash of

Rs.8,00,000/-. In new house, the accused no.1 used to visit almost daily and consume liquor with accused no. 3. Subsequently, the accused no. 3 became an addict of liquor due to which he went into depression. The accused no.1 disclosed himself to be a qualified MBBS Doctor and started giving treatment to the accused no.3 and on this pretext, he used to take money from the complainant.

It is stated on 02.07.03(this date as per the statement of the complainant is 17.03.2003 and not 02.07.03 as appears to have been typed by some mistake) at about 8 or 8.30 pm, accused no.1 and 2 came to the house of the complainant. Subsequently upon a phone call, one lady along with a child came to the complainant's flat, she was taken to a room by accused no.1 and 2. the complainant heard abuses etc. It is stated that there was a discussion about the issue of the DNA of the child upon which accused no.1 and 2 gave beatings to the lady and killed the child. The dead body of the child was wrapped in a newspaper. The said lady informed the complainant that her name is Poonam and requested her to inform the police. Upon this, even the complainant was given beatings by the accused no.1 and 2.

On the next day, the accused no.1 came to the complainant's house and gave some medicines to the accused no.3 due to which he became unconscious. The accused no.1 wanted to have sexual relationship with the complainant to which she objected and was, therefore, beaten and raped. It is alleged that this continued for the period of one month during which the complainant was raped continuously by the accused no.1. Around this time even the accused no.3 also started giving beatings to the complainant. It is stated that in December, 2003 complainant became pregnant and upon this, the accused no.1 threatened her that in case she gave birth to the baby, she as well as the accused no.3 will be killed. However, the complainant gave birth to the child at R.B. Jain Hospital at Khyala New Delhi.

After sometime, the accused no.1 and 3 started saying to the complainant that if she wanted to save accused no.3, she will have to sell the flat. She was taken to a Property Dealer. In June 2007, the flat was sold for Rs.25,00,000/- out of which only Rs.15,00,000/- were given to the complainant and remaining sale proceeds were taken over by the accused no.1 and 2. It is alleged that accused no.1 and 2 have indulged in cheating and blackmailing the innocent persons. It is stated that accused no.3 also connived with accused no.1 and 2 and he also pressurized the complainant to leave her house. It is stated that complainant is being pressurized to give the child to the accused no.1 and the accused no.3 is also putting the pressure on the complainant to bring Rs.20,00,000/- from her parents. It is stated that despite numerous complaints made to the police, no action has been taken by the police.

A status Report was called by Ld. Predecessor Court and upon perusal thereof the matter was adjourned for pre- summoning evidence.

In order to support the averments made by the complainant in her complaint, she examined herself as CW1. She supported the case made in the complaint and has also stated that the complaint has been drafted by her counsel on her instructions. The complaint is itself exhibited as Ex. CW1/E. She has stated that on 18.07.03, the accused no. 1 had put a pistol on her head and committed rape upon her against her consent. She submits that on the same day, she gave a complaint at PS Hari Nagar which is mark A. She has categorically stated that subsequently, she was also raped regularly by the accused no. 1 and due to such continual sexual assault which was apparently done in connivance with her husband i.e. accused no. 3 she gave birth to a baby namely Ritvik. She also reported the matter to the police on 15.01.09 and 12.01.09 vide complaints mark B and C. She also approached the DCP of Rajouri Garden vide complaint dated 04.08.09 which is mark „F‟.

No further CW was examined.

It has been already observed in the order passed at the first call that the Ld. Counsel for the complainant had impressed upon commission of offence punishable under Section 376 IPC by the accused no. 3 and commission of offences punishable under Section 323/506(II) r/w Section 34 IPC at behest of the accused no. 1 to 3 collectively. Ld. Counsel has conceded that the ingredients of the commission of the offences punishable under section 420/406/409A and 120 IPC could not be brought forth by the complainant in her sworn testimony.

The complainant in her examination in chief has stated on oath that she was raped against her consent on 18.07.03 by the accused no. 3. She has also stated on oath that the accused persons had in furtherance of their common intention, given beatings to her and had threatened her with due consequences i.e. to face the threat of being killed along with her old parents. The incident in this regard is stated to have occurred in the month of June 2005. Due to the beatings given to her, she had received injuries on her right hand due to which she was medically examined. She also submits that all the accused persons threatened to kill her as well as her child."

3. As a result of this order the petitioner and complainant‟s husband were summoned but only the petitioner appears to have felt aggrieved since he had been summoned for a grave offence of rape.

4. Mr. K.C. Mittal, learned counsel for the petitioner-accused submitted that the alleged incident of rape was committed in July, 2003 but the complainant did not report the matter to the police

for many years and even the present complaint case in Court was filed in the year 2009 and so that delay by itself should have been considered by the learned Magistrate to be a good ground for throwing away the complaint at the outset instead of taking cognizance and summoning the petitioner. It was also contended that even though there is a reference in the impugned order to one complaint dated 18th July,2003 which the respondent no.2- complainant claimed to have lodged with the police but since no reference to that complaint was made in the complaint itself it is clear that was a fabricated document brought on record for the first time during pre-summoning evidence of the complainant.

5. However, in my view the delay aspect would be a matter for consideration by the Sessions Court where the case already stands committed since the offence of rape is exclusively triable by Sessions Court. The Sessions Court can examine whether the complainant had actually reported the incident of rape to the police in July,2003 itself or not and also whether her version could be rejected even if no such complaint had been given by her to the police. The learned Magistrate was fully justified in passing the impugned order on a prima facie view of the pre-summoning statement of the prosecutrix-complainant. According to the statement of the complainant she could not seek police assistance

as she was under continuous threat to her life by the petitioner and his wife, who however has been let off by the Magistrate. This claim of the prosecutrix was sufficient to ignore the delay in her approaching the Court under Section 200 Cr.P.C. at least for the purpose of taking cognizance and summoning the accused.

6. Before directing the respondent No.2 to adduce her pre- summoning evidence the Magistrate had dismissed the complaint on 08th July, 2009 due to non-appearance of the complainant and her counsel. However, in revision petition filed by the complainant dismissal of the complaint in default was set aside by the Sessions Court. Mr. Mittal had also grievance to make that the Sessions Court had restored the complaint without any notice to the petitioner which could not have been done. In support he relied upon the judgment of Supreme Court reported as 2009(2) Supreme Court Cases 363. In my view, this argument has also no merit and deserves to be rejected. Since the complaint was dismissed before taking of cognizance by the Magistrate no notice of revision petition was required to be given to the petitioner and that position has been accepted by the Supreme Court also in the judgment cited by Mr. Mittal.

7. This petition is devoid of merit and so is dismissed but making it clear that nothing stated in this order shall prevent the

Sessions Court for taking any independent decision in the matter on merits.

P.K.BHASIN, J

March 11, 2013