Dr Vijay Kumar Kadam vs State & Anr
2015 Latest Caselaw 1063 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : JANUARY 20, 2015
                          DECIDED ON : FEBRUARY 05, 2015

+      CRL.REV.P. 511/2013 & CRL. M.A. 17351/2013, CRL. M.A.
       13499/2013

       DR VIJAY KUMAR KADAM         ..... Petitioner
                    Through : Mr. R.K. Pandey and Ms.Kanika
                              Kadam, Advocates.

                          VERSUS

       STATE & ANR                                ..... Respondent
                          Through :   Mr. Navin K. Jha, APP for State
                                      along with IO/SI Ajay Kumar, P.S.
                                      Dabri.
                                      Mr. Sameer Chandra, Advocate for
                                      R2.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant revision petition has been preferred by the

petitioner to challenge the legality and correctness of an order dated

02.08.2013 by which charge under Sections 323/342/376/511 IPC was

ordered to be framed against him. Prayer has also been made for quashing

of the FIR 394/11 registered at Police Station Dabri. Respondent

No.2/complainant has contested it.

2. In a complaint case filed under Section 200 Cr.P.C., the

respondent No.2 alleged that on 26.11.2011 when she had gone to the

petitioner‟s office to inquire whether she could resume her duties, at

around 09:30 a.m., the petitioner closed the door from inside and pushed

her on the sofa. Thereafter, he started using unparliamentary and obscene

words stating that he would not at all spare her He forcibly broke open the

„nada‟ of her salwar after pushing her down on the „sofa‟ and removed her

under-garments. When he was in the process of removing his under-

garments, she protested and used legs and fists to get rid of him. At that

point of time, the petitioner slapped and inflicted injuries on her breast

and private parts. She, however, succeeded in coming out of the room

after opening the door and intimated the incident to PCR. Before arrival of

PCR, she was beaten by the petitioner and his associate Anita Chaudhary.

She was also criminally intimidated. Police of PS Dabri brought her to

the police station. She was medically examined at Deen Dayal Upadhyay

hospital. She lodged complaint in writing to the police and the matter was

assigned for investigation to SI Moolchand. The police, however, did not

take any action in the matter.

3. On her application under Section 156 (3) Cr.P.C., by an order

dated 29.11.2011, FIR was registered on 08.12.2011 at the police station.

During investigation, in an inquiry conducted by ACP(PG)/SWD

allegations levelled by the victim could not be substantiated. The

Investigating Officer submitted cancellation report. However, by an order

dated 19.04.2012 the court ordered reinvestigation. Again, after

reinvestigation, when closure/cancellation report was filed second time,

the learned Metropolitan Magistrate by an order dated 16.05.2013 took

cognizance of the offences under Section 354/323/342/376/511 IPC and

summoned the petitioner. After committal of the case to Sessions, instant

charge order was passed, which is under challenge.

4. Learned counsel for the petitioner urged that R.S.Verma,

Binesh Kumar, Mir Singh and Vipin Solanki, officials in the hospital who

nurtured ill-will against the petitioner hatched a conspiracy to implicate

him and hired the complainant to execute their plan. One „Heena‟ had

lodged complaint for outraging her modesty against R.S.Verma and Vipin

Solanki and FIR 373/11 dated 9.11.2011 was lodged against them at

Police Station Dabri. The petitioner was threatened by them and he

lodged complaints to the Principal Secretary, Department of Health and

Family Welfare, Govt.of NCT of Delhi against them. Consequently, both

were transferred on 24.11.2011. It is further urged that respondent No.2

used to work at two places (Dada Dev Hospital and Anganwadi ICDS

Sagarpur (Project) and was removed from the hospital by her company

Core Security Services for indiscipline, rampant corruption and polluting

environment of the hospital. On 26.11.2011 when the petitioner reached

office at about 09:00 a.m., the respondent No.2 and her associate Saroj

Rani, chased him; forcibly entered in the office and bolted it from inside.

Sensing trouble, he shouted for help and tried to escape crying „Bachao-

Bachao‟. The respondent blocked the way and attacked him with fists; his

shirt and baniyan were torn. He managed to come out of the room with

the assistance of guard Ramesh and was taken to administrative officer‟s

room. The whole incident was recorded in CCTV. In the independent

Vigilance enquiry, the petitioner was given clean chit and allegations were

found false and fabricated. It is further contended that in CCTV footage,

respondent was seen causing abrasions on her chest/breasts and thighs to

create evidence. There was no material before the learned Trial Court to

proceed against him. Duration of the prosecutrix inside the room was

only for one minute and eighteen seconds which makes the allegations

inherently improbable. The complaint was made at behest of the third

party with ulterior motives. Contradictory and inconsistent statements

have been given by the witnesses during investigation.

5. Learned counsel for the respondent/complainant urged that at

the initial stage of framing of charge the court is concerned not with proof

but with a strong suspicion that the accused has committed the offence,

which if put to trial, could prove him guilty. Statements of the prosecutrix

and her witnesses cannot be disbelieved at this juncture.

6. Allegations in the complaint case, prima facie, constitute

cognizable offences. The petitioner was specifically named and definite

role was attributed to him for committing various offences. Despite filing

two cancellation reports after registration of the FIR by the police,

cognizance was taken by an order dated 16.05.2013 with detail reasons. It

is unclear if the revision petition of the petitioner challenging the

summoning order has been allowed/disposed of.

7. In the instant case, statements of the prosecutrix and her

witnesses including Saroj Rani and Vipin Solanki were recorded. They

have supported the complainant‟s version. Their version cannot be

rejected or thrown away at this stage. The Ocular testimony of the

prosecutrix, prima facie, is in consonance with medical evidence where

abrasions were found over her breasts and thighs. The pleas raised for

discharge or quashing of the FIR are primarily arguments on the merits of

the case which are to be taken into consideration after the parties are given

opportunities to establish their respective cases during trial. At the stage

of framing of charge, the court has no jurisdiction to go into the merits of

the allegations, and is only required to evaluate the material and

documents on record with a view to find out if the facts emerging

therefrom taken at their face value disclose the existence of all ingredients

constituting the alleged offence. The Trial Court was not required to

weigh the evidence as if it was for conviction or acquittal. In State of

Maharashtra vs.Som Nath Thapa & Ors. 1996 Cr.5, 2448, the Supreme

Court observed:

" 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 at the stage of framing of a 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."

8. In Amit Kapoor vs.Ramesh Chander & Anr. (2013) 1 SCC

(Cri) 986 the Supreme Court observed as under:-

9. "Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which is subject to final culmination of the proceedings. The legislature in its wisdom has used the expression 'there is ground for presuming that

the accused has committed an offence'. This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste, A Bench of this Court in the case of State of Maharashtra v. Som Nath Thapa and referred to the meaning of the word 'presume' while relying upon the Black's Law Dictionary. It was defined to mean 'to believe or accept upon probable evidence'; 'to take as proved until evidence to the contrary is forthcoming'. In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence."

10. In the light of the above discussion, the revision petition filed

by the petitioner lacks merits and is dismissed. Pending applications also

stand disposed of.

11. Observations in the order shall not have any impact on the

merits of the case.

(S.P.GARG) JUDGE FEBRUARY 05, 2015/sa