Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 1728

IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
Kumud Chawla & Ors. - Appellants
Versus
State Of NCT Of Delhi & Anr. - Respondents
Crl.Rev.P. 602 of 2022 & Crl.M.A.18571 of 2022
Decided On : 22-11-2022

Advocates appeared:
Mr. Angad Ahluwalia and Mr. Kushal Choudhary, Advocates, for the Petitioner; Mr. Naresh Kumar Chahar, APP for the State with SI Prem Pal Singh, CAW Cell, Central District, Delhi., for the Respondents; Mr. Manish Pradeep and Mr. Loveleen Kaithwas, Advocates., for the Respondents No. 2

At the stage of framing charges, the Court should only consider whether a prima facie case is made out, without conducting a mini trial or examining the probative value of evidence.

Headnote:
POCSO Act - Discharge of Accused - Sections 397, 401, 482 Cr.P.C. - FIR No. 44/2021 - Sections 323/354/354B/451/506/509/34 IPC read with Section 10 of POCSO Act - [SUMMARY]
Fact of the Case:

A complaint was made against the accused for house-trespass, causing hurt, using criminal force, and outraging modesty. The accused sought discharge, but the Trial Court dismissed the applications and framed charges based on the complaint and statements of the complainant and minor victim.
Finding of the Court:

The Trial Court found that there were sufficient grounds to proceed against the accused based on the material available on record, including the statements of the complainant and minor victim.
Issues: The issue was whether there were strong suspicions and prima facie evidence against the accused to frame charges, and whether the creditworthiness of the prosecution witnesses could be tested at trial.
Ratio Decidendi: The Court applied the principles of framing charges under Section 228 Cr.P.C. and discharge of accused under Section 227 Cr.P.C. It emphasized that at the stage of framing charges, the Court should not conduct a mini trial or examine the probative value of evidence, but only determine if a prima facie case is made out.
Final Decision: The petition seeking discharge was dismissed, and the charges framed by the Trial Court were upheld. The Court found no infirmity in the Trial Court's order and dismissed the petition.

JUDGMENT

Swarana Kanta Sharma, J. - The instant revision petition has been filed under Sections 397 and 401 read with Section 482 of the Code Of Criminal Procedure, 1973 ("Cr.P.C.") assailing the order dated 06.08.2022 passed by learned Additional Sessions Judge-01 (POCSO), Central District, Tis Hazari Courts, Delhi whereby the applications filed by the petitioners seeking discharge in Sessions Case No. 34/2022 in FIR No. 44/2021 dated 09.02.2021 were dismissed, and charges were framed under Sections 323/354/354B/451/506/509/34 IPC read with Section 10 of POCSO Act against petitioner no. 1 and 3, and under Sections 451/323/506/509/34 IPC against petitioner no. 2.

2. The brief facts of the case, leading to the filing of present petition are that a complaint was made by one 'DC' against the petitioners/ accused persons namely Kumud Chawla, Aayush Chawla and Sunil Chawla wherein it was alleged that all three accused persons, on 17.01.2021, after committing house-trespass, caused hurt to the complainant and her minor girl child, used criminal force and also outraged the modesty of both of them while passing filthy remarks. It was also stated that they were criminally intimidated and death threats were also extended to the complainant. On the basis of said complaint, the present FIR bearing no. 44/21 was registered on 09.02.2021 under Sections 323/354/354B/451/506/509/34 of Indian Penal Code, 1860 and Section 8 of The Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") at Police Station Prasad Nagar. Charge-sheet in the present case was filed on 28.01.2022, however arrest of none of them was deemed necessary by the Investigation Officer (IO). The petitioners were summoned vide order dated 28.01.2022 and all of them were admitted to bail on their appearance before the learned Trial Court on 03.03.2022.

3. Thereafter, three separate applications under Section 227 Cr.P.C. were moved on behalf of the petitioners seeking their discharge. The learned Trial Court vide order dated 06.08.2022 dismissed the said applications under Section 227 Cr.P.C. on the ground that the creditworthiness of the prosecution witnesses can be tested only during trial and proceeded to frame the charges The concluding part of the impugned order reads as under:

'15. Therefore, in view of settled legal propositions regarding order at the stage of charge, in the entire given facts and circumstances of the present case, I am of the considered opinion that it cannot be said there is no ground for proceeding against the accused persons. The creditworthiness of the prosecution witnesses can be tested only during trial. Thus, in the given set of circumstances, accused persons namely Sunil Chawla and Ayush Chawla presumably committed the offences punishable under section 323/506/34 IPC against complainant 'DC', minor victim 'I', Sh.'PC' husband of complainant and Sh. 'KS' father-in-law of complainant. Both of them also presumably committed offences punishable under sections 451/34 and under sections 509/34, 354/34 and 354B/34 against complainant 'DC' and minor victim 1' and under section 9 (g), (i) and (m) of POCSO Act punishable under Section 10 of POCSO Act against the minor victim 'I', a girl child of 11 years of age. Further, accused Kumud Chawla presumably committed the offences punishable under sections 451/323/506/509/34 IPC.

4. Learned counsel for the petitioners states that petitioners and respondent no. 2 are neighbours residing in the same building, and an FIR bearing no. 24/2021 dated 17.01.2021 under Sections 451/354/356/ 323/506/509/34 IPC at P.S. Prasad Nagar was first lodged by the petitioners in the present case, and it was only after a delay of 21 days that the present FIR was lodged by the complainant.

5. Learned counsel for the petitioners argues that the nine public witnesses in their statements under section 161 Cr.P.C. have not supported the case of prosecution. It is averred that one Vivek Hajela in his statement under section 164 C