The central legal point established in the judgment is the requirement of grave suspicion to frame charges under S.354 IPC and the applicability of the provisions governing the stage of charge before the Magistrate.

PRATIBHA RANI, J.

Crl.M.A. No.15868/2017

1. Exemption allowed subject to all just exceptions.

2. Application is disposed of.

Crl.M.C. No.3931/2017

1. The petitioner, who is complainant in case FIR No.623/2014 initially registered under Section 509 IPC at PS Hari Nagar, has invoked the inherent power of this Court under Section 498 CrPC with the following prayer:-

‘To set aside the judgment order to the extent of discharging the respondent No.2/accused with respect to S.354 passed by the learned ASJ-03, Tis Hazari (West), Delhi in Criminal Revision No.54592/2016 & Criminal Revision No.56393/2016 dated 07.09.2017 and frame charge under S.354 IPC and direct the respondent No.2 to face the trial under Section 354 and Section 509 IPC.’

2. Mr.Sanjeev Sabharwal, APP for the State accepts notice.

3. Heard.

4. When the matter was taken up for hearing, learned counsel for the petitioner not only read the FIR but also other documents considered relevant and annexed with the petition. Learned counsel for the petitioner sought adjournment but instead of adjourning the matter, learned counsel for the petitioner was directed to file brief written submissions and the matter was directed to be taken up at 2.15 pm.

5. At 2.15 pm again arguments were heard and the written submissions filed by the counsel for the petitioner were also read by him in the Court. Learned counsel for the petitioner has relied on two decisions reported as State of Punjab vs. Major Singh 1967 AIR 63 and Samar Singh Puri vs. The State (NCT of Delhi) in Crl.Rev.P. No.129/2009 decided on 09th May, 2011 in support of his contentions.

6. The written submissions filed by the petitioner are extracted hereunder:-

‘No Court in the civilised world has two views with respect to Touch a women without her permission, with knowledge that her sex is delicate enough to be outraged falls under S.354 IPC.

The statement recorded under S.164 Cr.P.C., which unequivocally mentions that the accused touched her breast while pushing her out of the room. Whether the accused committed the actus reus without any malum has to be proved only through trial. Nevertheless, touching the breast, which is intimate private part of the women cannot be discounted with insufficiency of knowledge. FIR also mentions pushing the prosecutrix. Given the fact that the FIR is not an encyclopaedia, the statement under S.164 Cr.P.C., has a legal sanctity and the same cannot be discarded lightly at the stage of framing of charges.

Further, the trial Court and the revisional Court discharged the accused on the basis of two views, one which gives rise to the mere suspicion and another grave. The Court will only frame charges if there is grave suspicion. Which is principle of law laid down under Section 227 of the Cr.P.C. falling under Chapter XVIII of Cr.P.C. Trial in Sessions case, whereas the present case falls under Chapter XIX of Cr.P.C. Trial of Warrant cases by Magistrate. The First Schedule of Cr.P.C. the offences under S.354 and 509 IPC is trial by magistrate and the provision that attracts for discharge is S.239 Cr.P.C.

There is marked difference in provisions of S.227 and S.238 Cr.P.C. the former can be invoked only if there is no sufficient grounds, whereas the later can be invoked only if the charge against the accused is found groundless. Hence both the trial Court and the revisional Court committed serious miscarriage of justice by applying wrong provision.

The role of the victim after the Criminal Amendment Act, 2008 (No. 5 of 2009) inducted victim’s right to participation and to be heard. This Hon'ble Court in predisposition without hearing the merits of the case, within one minute, dismissed the petition, giving liberty to file written synopsis, which is violation of all principles of Natural Justice and a convention unheard of.

The petitioner who is present in this Hon'ble Court, is a victim of offences that carry moral stigma, demands by virtue of the inherent powers to be heard modicum. Predisposition of min