Rajat Mittal vs State
2015 Latest Caselaw 8382 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : OCTOBER 09, 2015
                           DECIDED ON : NOVEMBER 05, 2015

+      CRL.REV.P. 642/2014, CRL.M.A.Nos.16219/14 & 20097/14

       RAJAT MITTAL                                       ..... Petitioner
                           Through :    Mr.Sidharth Luthra, Sr.Advocate
                                        with Mr.Mahavir Prasad Mittal &
                                        Mr.Anupam Prasad, Advocates.

                           versus

       STATE                                               ..... Respondent
                           Through :    Mr.Sanjeev Sabharwal, APP with
                                        Insp.Kamlesh.
                                        Mr.Rituraj Shahi, Proxy counsel for
                                        the complainant along with
                                        complainant in person.

        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 propriety of an order dated

30.08.2014 of learned Additional Sessions Judge by which the petitioner

was charged for commission of offences under Sections

328/376/420/506/313/406 and 376 read with Section 417 IPC. Status

Report is on record.

2. I have heard the learned Senior counsel for the petitioner and

learned Additional Public Prosecutor and have examined the Trial Court

record. Admittedly, the prosecutix 'X' (assumed name) and the petitioner

were acquainted with each other since 2006. 'X' lodged a comprehensive

written complaint implicating the petitioner for committing various

offences on 01.03.2012. Upon completion of investigation, a charge-sheet

against the petitioner under Sections 376/328/506 IPC was filed. It is

relevant to note that the petitioner's mother and sister were not charge-

sheeted though they were also implicated in the complaint. By an order

dated 2.2.2013, the learned Metropolitan Magistrate took cognizance

under Section 190 (1) (b) Cr.P.C. for the offences under Sections

376/328/506 IPC and committed the case to the Court of Sessions on

06.05.2014. By the impugned order the learned Sessions Court, prima

facie, found the petitioner to have committed the aforesaid offences.

3. During the course of arguments, the learned Senior counsel,

on instructions, stated at Bar that the petitioner has opted not to challenge

the impugned order on charge under Sections 376/506/420/417 Cr.P.C.

Learned Senior Counsel restricted the arguments to challenge the legality

of charges under Sections 313/328 and 406 IPC.

This Court is conscious that at the stage of framing of charge,

the court is not required to meticulously judge the truth, veracity and

effect of the evidence. There has to be strong suspicion which leads the

court to think that there is a ground for presuming that the accused has

committed the offence. This strong suspicion is to be founded on material

laid before the court on which the court can form a presumptive opinion

regarding the existence of factual ingredients constituting the offence

alleged, only then the court is justified in framing the charges against the

accused.

4. On perusal of the materials collected during investigation by

the Investigating Agency, I find no sufficient ground to proceed against

the petitioner under Sections 328/313/406 IPC. There is a bald statement

of the prosecutrix in the complaint that on 10.12.2007 when the petitioner

visited her residence and expressed desire to have a cold drink, she

brought cold drink in two glasses; one for herself and the other for the

petitioner. The petitioner then desired to have some snacks also with the

cold drink. When she went to the kitchen to bring the snacks and took her

cold drink on return, it tasted a little different. Soon her limbs started

shaking and the cold drink fell from her hands; she became unconscious.

When she regained senses, she was shocked to find herself completely

nude. During investigation, allegations of having been administered some

poisonous or stupefying substance could not be verified or confirmed.

The prosecutrix did not get herself medically examined any time soon

after the said incident. Nature of 'substance' allegedly mixed in the cold

drink could not be ascertained. Nothing emerged as to from where any

such 'substance' was procured by the petitioner. It is on record that

subsequent to that, the petitioner and the prosecutrix had maintained their

friendly relations. Physical relations were established; albeit on the

alleged promise of marriage on various occasions. 'X' did not complain

about petitioner's conduct promptly to the police. In Prashant Bharti vs.

State (NCT of Delhi) (2013) 9 SCC 113, the victim had alleged that the

accused therein had offered her cold drink (Pepsi) allegedly containing

poisonous/intoxicating substance. After drinking the same, she felt

inebriated whereupon the appellant started misbehaving with her and also

touched her breasts. She was taken for medical examination but no

evidence of poisoning was found by the police during investigation. The

Apex Curt quashed the charge under Section 328 IPC observing that

allegations levelled by the prosecutrix of having been administered some

intoxicant in a cold drink could not be established by the cogent evidence.

5. Regarding Section 313 IPC, I find no cogent material on

record to presume if 'X' was ever forced or compelled to abort pregnancy,

as alleged. After a considerable delay in 2012 only, 'X' complained that

she became pregnant thrice, in June, 2009 and once in November, 2011.

She further disclosed that the pregnancies were got terminated by the

petitioner on the pretext that they could not marry till the marriage of his

sister Ms.Vandana. She resigned to her fate and obliged the petitioner

with his demands including demands of maintaining physical intimacy. In

the complaint, no where it finds mention if at any stage the prosecutrix

was forced or compelled to abort the pregnancies against her wishes. The

allegations are vague and uncertain. Nothing was revealed as to when and

where the pregnancies were aborted/terminated and what was its duration

that time. As observed, the parties maintained physical relations even

subsequent to that and as per the averments in the complaint, they had

physical relations on 28.01.2012 too. In 161 Cr.P.C. statement, the

prosecutrix disclosed that the accused used to bring some 'pills' to get the

pregnancies aborted. Again, nothing was divulged as to from where the

petitioner used to procure the pills or whether these were administered to

her against her wishes. Apparently, abortions (if any) were with the free

consent of the prosecutrix. Section 313 would be attracted only if it is

established that the pregnancy was terminated without the free consent of

the prosecutrix. In the instant case 'X' willingly submitted herself to

abortion (if any) and even thereafter, had sexual intercourse with the

petitioner.

6. Regarding Section 406 IPC, again, its ingredients are not

attracted. To constitute the offence of 'criminal breach of trust', there

must be dishonest misappropriation by a person in whom confidence is

placed as to the custody or management of the property in respect of

which the breach of trust is charged. There must be entrustment, there

must be misappropriation or conversion to one's own use or use in

violation of any legal direction or of any legal contract; and thirdly the

misappropriation or conversion or disposal must be with a dishonest

intention. All these ingredients are lacking in the instant case. The

prosecutrix alleged in the complaint that she had given `6 lacs on one

occasion and `3.5 lacs on 23.01.2012 to the petitioner on the pretext of

investment for common benefit of the parties. Apparently, payment (if

any) by the prosecutrix to the petitioner was with her free consent and

nothing is in the complaint to show if it was to be entrusted to him for

return after a specific period. Details of such payment have not come on

record.

7. In the light of the above discussion I am of the view that

there is no cogent and sufficient material on record to presume

commission of offence under Sections 328/313/406 IPC. The impugned

order to this extent is unsustainable and the petitioner is discharged of the

offences under Section 328/313/406 IPC. The Trial Court shall proceed

as per law against the petitioner for commission of other offences for

which he has been charged.

8. The Revision Petition stands disposed of in the above terms.

All pending applications also stand disposed of. Trial Court record be sent

back forthwith along with the copy of the order.

(S.P.GARG) JUDGE NOVEMBER 05, 2015 sa