Varun Suri vs State Nct Of Delhi
2017 Latest Caselaw 3475 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
    +         Crl. Revision Petition No.92/2017

                                                Date of Decision: 21st July, 2017

              VARUN SURI                                           ..... Appellant

                               Through      Mr.G.P. Thareja, Mr.Satyam Thareja,
                                            Ms.Shradha     Karol,    Mr.Sushant
                                            Sharma, Advocates.

                                       versus

              STATE NCT OF DELHI                                .....    Respondent
                               Through      Mr.Panna Lal Sharma, APP for the
                                            State with Inspector Anil Malik,
                                            Police Station Greater Kailash, Delhi

                                            Mr.Yashvir     Sethi,   Mr.Abhishek
                                            Paruthi and Mr.Deepak Mittal,
                                            Advocates for the complainant.

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

              P.S.TEJI, J.

1. The present revision petition has been filed under

Section 397 of Cr.P.C. read with Section 482 of Cr.P.C.

against order on charge dated 08.11.2016 whereby the learned

Addl. Sessions Judge has framed charge against the petitioner

Crl.Revision Petition No.92/2017 Page1 of 11 under Section 328 read with Section 376 IPC.

2. The facts of the case, as per the case of the prosecution,

in a nutshell are that the complainant was married to Gaurav

Sethi on 27.02.2014. The complainant did not have cordial

relations with her husband as her husband was heavy drinker

and was not responsible towards his work. During this time,

the complainant was working with ERD group as HR manager

in which company the petitioner joined on the post of Deputy

Manager in March, 2014. The petitioner advised complainant

to take time off from work and spend more time at home or

else, take divorce from her husband. Pursuant to this advice,

the complainant resigned from ERD group in August, 2014.

On the very next day, the petitioner asked complainant to meet

him in Greater Kailash. The complainant went there to meet

him. The complainant asked petitioner to have coffee.

However, the petitioner asked her to take a drive in the car

during which petitioner offered her coke (cold drink) and

muffin. After drinking coke, the complainant became semi-

conscious. Upon regaining consciousness, the complainant

Crl.Revision Petition No.92/2017 Page2 of 11 found that she had been raped by the petitioner. Upon raising

enquiry on the conduct of the petitioner, the petitioner

informed her that he loves and apologized for the act.

Thereafter, petitioner gave complainant false promises of

marriage and took her to Park Plaza Hotel Faridabad and

Corporate Suite Hotel Sector 62 Noida where he established

physical relations with her many times. The complainant also

gave her money after taking from her husband. However, the

behavior of the petitioner totally changed and petitioner started

blackmailing her on the basis of her videos and photographs

and threatened that he would get her indulged in prostitution

and flesh trade. He also threatened to kill her.

3. Vide order dated 06.09.1999, charge was framed against

the accused under Secitons 307/324 IPC to which he pleaded

not guilty and claimed trial.

4. In support of the revision petition, the petitioner has taken

the grounds that the learned Addl. Sessions Judge has wrongly

sifted the facts of the present case while noting that 'in the car

he offered her coke. After drinking she became semi conscious.

Crl.Revision Petition No.92/2017 Page3 of 11 She found that she was raped by the accused. When enquired

from him, he told her that he loves her'. It is clarified that at no

point of time, the prosecutrix has stated that she was raped in the

car on the next day of tendering her resignation. Neither the FIR

nor the statement of prosecutrix under Section 164 Cr.P.C.

records that she was raped in the car by the petitioner. The

learned Addl.Sessions Judge has failed to appreciate that there is

neither medical evidence nor physical evidence to support the

allegations of the prosecutrix relating to alleged intoxication.

The learned Addl.Sessions Judge has contradicted himself in

para 12 and 20 of the impugned order by placing reliance on

alleged assurances of marriage to justify delay in registering FIR

for the alleged 'rape in car' incident, that the learned

Addl.Sessions Judge has erred in not appreciating that the

prosecutrix continued to live with her husband in spite of getting

into alleged relationship with the petitioner. The credibility of

the statement of the prosecutrix and her own conduct is doubtful

in view of the allegations made by the prosecutrix against her

lawyer Sh.Randhir, Adv. and the record of messages which

Crl.Revision Petition No.92/2017 Page4 of 11 Sh.Randhir obtained by FSL from her phone; that the learned

Addl.Sessions Judge has erred in not appreciating that there has

to be a grave suspicion and not a mere suspicion to frame charge

against an accused.

5. Per contra, learned Additional Public Prosecutor for the

State has vehemently opposed the aforesaid contentions raised

on behalf of the appellant and submitted that the judgment of

conviction and order on sentence as passed by learned

Additional Sessions Judge do not suffer from any irregularity or

illegalities and is passed with a reasoned order, therefore, the

same is not liable to be interfered with.

6. Arguments advanced by the learned counsel for the

appellant as well as learned APP for the State were heard.

7. At the stage of framing of charge, the court is required to

judicially consider whether on consideration of the material on

record, it can be said that accused has been reasonably

connected with the alleged offence and on the basis of the said

material, there is reasonable probabilities and chance of the

accused being found guilty of the alleged offence. The court is

Crl.Revision Petition No.92/2017 Page5 of 11 required to pursue the evidence on record without going into the

deep probative value and conclude that there exists a ground for

presuming that offence has been committed or not. Section 227

of the Cr.P.C. provides for the eventuality when the accused

shall be discharged. If not discharged, the charge against the

accused is required to be framed under Section 228 of Cr.P.C.

8. In this case, the petitioner/accused was a co-employee

with the complainant. When the complainant was in depression,

the petitioner advised her not resign from the job to devote more

time at home as husband was a heavy drinker and was not a

responsible person and the relations between them were not

cordial. Taking this advice, the complainant resigned from the

job on the very next date when the petitioner called her to meet

at Greater Kailash. When she reached there, he asked her to take

a drive in the car where he offered a drink which was containing

intoxicating substance. Thus after consuming the same, she

became unconscious and taking advantage of that, the petitioner

raped her. After which she lodged a complainant on 08.12.2014.

She was medically examined on 08.12.2014 wherein the history

Crl.Revision Petition No.92/2017 Page6 of 11 narrated to the doctor, she reiterated that the petitioner sexually

assaulted and forcibly committed sexual intercourse with her.

The records from the hotels also show the stay of the petitioner

with the prosecutrix.

9. Her statement under section 164 Cr.P.C was recorded on

09.12.2014, wherein also she reiterated the allegations which she

alleged in her complaint made to the police.

10. The veracity of the allegations is to be tested at the trial

stage and the present case is one where the charge has rightly

been framed against the accused for the offence punishable

under Section 328 read with Section 376 IPC. Where the

materials placed before the court disclose grave suspicion

against the accused which has not been properly explained, the

court will be fully justified in framing a charge and proceeding

with the trial.

11. So far as the contentions raised by the petitioner to the

effect that no rape was committed upon the prosecutrix and all

the allegations are false, are matter of trial and same cannot be

adjudged at this stage as the trial is still going on and

Crl.Revision Petition No.92/2017 Page7 of 11 prosecution witnesses are yet to be examined. The petitioner

would be at liberty to raise all these pleas before the Trial Court

at the time of passing judgment after conclusion of evidence and

may adduce defence evidence in support thereof. There are

consistence cases cited by our Apex Court where it has been

held that the court does not have to rely on the allegations, but

has to form an opinion whether there is strong suspicion that the

accused has committed an offence.

12. Reliance in this regard may be placed on the judgment of

the Hon'ble Supreme Court in the case titled, State of Bihar

Versus Ramesh Singh (reported in AIR 1977 SC 2018), where

it has been observed that at the stage of charge, standard of

proof is quite different from the standard of proof at the stage of

final judgment. It is the duty of the Court to see that on the

allegation and evidence on record, whether there is suspicion

that accused might have committed the offence, then Court has

to frame the charges and proceed with the trial. Whereas

standard of the proof at the time of judgment is that whether

guilt of the accused has been proved beyond reasonable doubt

Crl.Revision Petition No.92/2017 Page8 of 11 and hypothesis of guilt is contrary to his innocence. ...... It is not

obligatory for the Judge at that stage of the trial to consider in

any detail and weigh in a sensitive balance whether the facts, if

proved, would be incompatible with the innocence of the

accused or not. .......... At that stage, Court is not to see whether

there is sufficient ground for conviction of the accused or

whether the trial is sure to end in his conviction.

13. Further strength in this regard could be drawn from the

judgment of Hon'ble Apex Court in case of Sajjan Kumar vs.

Central Bureau of Investigation (2010) 9 SCC 368 in which it

was further held that at the initial stage if there is a strong

suspicion which leads the Court to think that there is ground for

presuming that the accused has committed an offence, then it is

not open to the Court to say that there is no sufficient ground

for proceeding against the accused.

14. Also, in P. Vijayan v. State of Kerala and Anr.; AIR

2010 SC 663, it was held as under:

"14. In a recent decision, in the case of Soma Chakravarty v.State through CBI (2007) 5 SCC 403 this Court has held that the settled

Crl.Revision Petition No.92/2017 Page9 of 11 legal position is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials there for. Suspicion alone, without anything more, cannot form the basis there for or held to be sufficient for framing charge."

15. In a recent judgment, the Hon'ble Apex Court in

State of Rajasthan v. Fateh Karan Mehdu AIR 2017 SC

796, observed as under:

The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time and again explained by this Court. Further, the scope of interference Under Section 397 Code of

Crl.Revision Petition No.92/2017 Page10 of 11 Criminal Procedure at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.

16. In view of the above discussion, this court does not find

any illegality or infirmity or irregularity in the order on charge

and the charge framed against the petitioner by the Trial Court.

The petitioner has failed to make out its case to show that the

Trial Court has exceeded its jurisdiction or failed to exercise the

jurisdiction vested in it.

17. Consequently, the present revision petition is hereby

dismissed.

(P.S.TEJI) JUDGE JULY 21, 2017 dd

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