2021 Supreme(Del) 540
IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
In The Matter of : Deepak Dua – Petitioner
Versus
State & Anr. – Respondents
CRL.REV.P. 968 of 2018 & CRL.M.A. 35640 of 2018 (Stay)
Decided On : 31-08-2021
Advocate Appeared:
For the Petitioner:Mr. Tanveer Ahmed Mir, Advocate with Mr. Gurpreet Singh, Mr. Bakul Jain and Mr. Jatin S Sethi, Advocates
For the Respondent:Ms. Kusum Dhalla, APP, Mr. GP Thareja, with Mr. Satyam Thareja, and Mr. Harshit Thareja, Advocates
Point of Law : Criminal Law - Gang Rape - Charge can be quashed if evidence which the prosecutor proposes to adduce to prove guilt of accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed particular offence and in such case, there would be no sufficient ground for proceeding with trial.
Headnote:
Criminal Procedure Code, 1973 - Section 397, 482, 227, 164, 438 - Indian Penal Code, 1860 - Sections 376, 506, 34 – Appellate court may take further evidence or direct it to be taken – Saving of inherent power of High Court – Discharge – Recording of confessions and statement – Anticipatory bail - Punishment for rape – Punishment for criminal intimidation – Common intention - Whether or not a prima facie case against the accused - Complainant that she joined a gym run by one Krishan Kumar in partnership with petitioner herein - Prosecutrix did not have good relations with her husband and they lived separately. It is stated that one day when prosecutrix was in the gym, her husband came there and started abusing her. It is stated that taking advantage of fact that she does not have good relations with her husband, accused started getting close to prosecutrix and committed offence.
Finding of the court : The words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution or not - Absence of application of judicial mind can lead to grave injustice which may entail an individual being driven through the rigours of the legal system due to no fault of their own. It is the duty of the Court to, ensure that such injustice can be mitigated and that an accused does not have expend their resources in contesting a potentially mala fide prosecution. This can also resultantly reduce the burden on trial courts and High Courts
Result : Petition disposed of.
JUDGMENT :
Subramonium Prasad, J.
1. This petition under Section 397 Cr.P.C read with Section 482 Cr.P.C is directed against the orders dated 04.09.2018 and 14.09.2018, passed by the learned Additional Session Judge (SFTC)-2, Karkardooma Courts, framing charges against the petitioner for offences under Sections 376-D/376(2)(n)/376(1) of the Indian Penal Code, 1860 (hereinafter, 'IPC').
2. Shorn of details, the facts leading to the present petition are as under :
(a) On the complaint of the prosecutrix, FIR No. 571/2016 was registered on 05.11.2016 at Police Station Ashok Nagar for offences under Sections 376/506/34 IPC. It is stated by the complainant that on 08.02.2012 she joined a gym run by one Krishan Kumar in partnership with the petitioner herein. It is stated that the prosecutrix did not have good relations with her husband and they lived separately. It is stated that one day when the prosecutrix was in the gym, her husband came there and started abusing her. It is stated that taking advantage of the fact that she does not have good relations with her husband, accused Krishan Kumar started getting close to the prosecutrix. It is stated that Krishan Kumar told the prosecutrix that since her weight is not reducing, it would be better for her to go to 148 Prayatan Vihar where a special machine had been installed to reduce her weight. It is stated that in November 2013, Krishan Kumar took the prosecutrix to 148 Prayatan Vihar. It is stated that when she reached 148 Prayatan Vihar, she saw that the petitioner herein was already present there. It is stated that when she asked Krishan Kumar as to what the petitioner herein is doing there, Krishan Kumar told the prosecutrix that the petitioner is his partner and he operates the said machine. It is stated that when the prosecutrix went into the room, Krishan Kumar put a knife on her and asked her to do what she was being told to do. It is stated that the petitioner herein and Krishan Kumar raped her and took obscene photographs and made videos of her. It is stated that after committing rape, Krishan Kumar showed the obscene photographs and videos to the prosecutrix and threatened her that if she told anyone about the incident her video and photographs would be uploaded on Youtube. It is stated that Krishan Kumar repeatedly blackmailed the prosecutrix. It is stated that in March 2014, Krishan Kumar took the prosecutrix to flat No.958 Jai Ambey Apartment where the petitioner herein was present and was consuming alcohol. It is stated that in the flat the prosecutrix was blackmailed by Krishan Kumar and the petitioner herein by showing her obscene photographs and videos. It is stated that after blackmailing the prosecutrix both Krishan Kumar as well as the petitioner committed rape on her. It is stated that when the prosecutrix asked Krishan Kumar as to why he was doing this to her, she was told that the petitioner and his wife (Vandana Dua) were his partners, and if she kept the petitioner herein happy, he would promote him and give him money as well. It is stated that Krishan Kumar promised to marry the prosecutrix. It is stated that on the pretext of marriage, Krishan Kumar established physical relations with her on several occasions. It is stated that Krishan Kumar kept on threatening the prosecutrix by showing her photographs and videos. It is stated that on 08.04.2016, Krishan Kumar made physical relations with the prosecutrix and threatened her with dire consequences. It is stated that on the basis of this complainant FIR No. 571/2016 was registered on 05.11.2016 at Police Station Ashok Nagar for offences under Sections 376/506/34 IPC.
(b) On 09.11.2016, the statement of the prosecutrix under Section 164 Cr.P.C was recorded wherein she alleged that the petitioner had also established unnatural sexual relations with her on the day she visited flat No.958 Jai Ambey Apartments.
(c) The petitioner approached the Sessions Court by moving an application under Section 438 Cr.P.C for grant
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