Full Judgment Text
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13.02.2023
Pronounced on: 20.03.2023
+ CRL.REV.P. 1158/2018
STATE ..... Petitioner
Through: Mr. Naresh Kumar Chahar,
APP for State with SI Amit,
P.S. Madhu Vihar.
versus
ARUN TYAGI & ORS. ....Respondents
Through: Mr. Gaurav Malhotra,
Advocate for R-1 & 2.
Mr. Mayank Sharma
and Mr. Anshul
Kulshreshtra, Advocates
for R-3.
CRL.REV.P. 232/2019
STATE (NCT) OF DELHI .....Petitioner
Through: Mr. Naresh Kumar Chahar,
APP for State with SI Amit,
P.S. Madhu Vihar.
versus
ARUN TYAGI & ORS. .....Respondents
Through: Mr. Gaurav Malhotra,
Advocate for R-1 & 2.
Mr. Mayank Sharma and Mr.
Anshul Kulshreshtra,
Advocates for R-3.
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
CRL.REV.P.1158/18 & connected matter Page 1 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
JUDGMENT
SWARANA KANTA SHARMA, J.
1. Since both Crl.Rev.P. 232/2019 and Crl.Rev.P. 1158/2018
arise out of same set of facts and contentions and the issue before this
court in both the petitions is inter-connected, the same are being
decided through this common judgment.
2. The State has preferred the present revision petitions under
Sections 397/401 read with Section 482 of the Code of Criminal
Procedure, 1973 ( hereinafter ‘Cr.P.C.’ ) seeking setting aside of
impugned orders passed by learned Additional Sessions Judge-03,
Shahdara District, Karkardooma Court, Delhi ( hereinafter ‘learned
ASJ’ ) in Sessions Case No. 412/2017 whereby, vide order dated
25.09.2018, the learned ASJ had allowed the application filed by the
respondents to take on record certain documents as a part of their
arguments on charge and thereafter, had discharged the respondents
vide order dated 17.11.2018 in FIR bearing no. 764/2014, registered
at Police Station Madhu Vihar, East Delhi for offences punishable
under Sections 393/354/34 of the Indian Penal Code,1860
( hereinafter ‘IPC’ ).
3. Briefly stated, the present FIR was registered on 08.07.2014
on the basis of complaint lodged by the complainant who had alleged
that on 09.05.2014, she along with her husband had gone to a park
for morning walk and exercise and while the complainant was
exercising, a stone had hit her. It was stated that when she had gone
to look for the person who had thrown stone at her, it had turned out
to be respondent no.1, who had then caught hold of the complainant
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
and all of a sudden, respondent no. 2 and respondent no. 3 had also
come out, who were hiding behind cars. It was alleged that
respondent no. 1 had thrown the complainant on the ground and
respondent no.3 had beaten the complainant with shoes and had
inappropriately touched her. It was further alleged that all the
respondents had threatened the complainant and had asked her to
take back the cases filed against them. The complainant had also
alleged that respondent no.1 had pulled out a gun and threatened to
kill the complainant, and had torn her clothes as well. Subsequently,
the respondents had fled the spot upon seeing the husband of
complainant and after she had raised the alarm.
4. During the course of proceedings before the learned ASJ, the
counsel for respondent no. 3had moved an application dated
22.03.2018 under Section 227 Cr.P.C. seeking discharge as well as to
file certain documents. Learned ASJ vide impugned order dated
25.09.2018, being satisfied by the documents filed on behalf of
respondent no.3, allowed the application and took on record the
documents before hearing the arguments on charge. The relevant
portion of the said order reads as under:
“...In my view all the documents as referred above are
very much essential for deciding the question of
charge . Accordingly, I allow the application and these
documents are taken on record. This application is
allowed and the document i.e complaint dated
08.05.2014 recorded vide DD no.29B at PS Madhu
Vihar as well as FIR. no.669/14 registered in the same
PS shall form part of the record...”
CRL.REV.P.1158/18 & connected matter Page 3 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
5. By way of impugned order dated 17.11.2018, the learned ASJ,
after hearing the arguments on charge and considering the case of
prosecution as well as the documents filed by the respondents, was
pleased to discharge all the respondents. The relevant portion of the
said order reads as under:
“3. In light of the background of the incidents wherein
two successive FIRs were lodged in the year 2013 and
2014 at the instance of accused Saira against husband
of complainant, I have no doubt left in my mind that
the present FIR was lodged solely with a view to create
pressure on the accused persons herein who happened
to be prosecutrix and important public witnesses in the
FIR lodged against husband of complainant. It would
not be out of place to mention here that both the FIRs
lodged against husband of complainant have been
compounded after a settlement had taken place
between Saira Anees and husband of complainant. The
complainant and her husband who were present in the
court on previous occasions had requested me to drop
the proceedings in the present case qua accused Saira
Anees. Not only this, as mentioned in order dated
27.03.2018, IO has cited at least two witnesses in the
present FIR, both of whom are residing of same
apartment in the park of which the alleged incident had
taken place on 09.05.2014. They have stated in clear
terms that no incident as alleged by prosecutrix had
taken place on 09.05.2014. Rather, after incident dated
08.05.2014 relating to misbehaviour by Kuldeep
Aggarwal with Saira Anees (which consequently
resulted in registration FIR No.669/14 against him),
none of the persons who are accused herein had even
visited the park.
5. Under these circumstances, in my view, there is no
prima facie case existing against any of the accused
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
persons. I, therefore, discharge all of them of the
offences in question...”
6. Aggrieved thereof, the State has preferred the present petitions
assailing both the abovesaid orders passed by learned ASJ.
7. Learned APP for the State vehemently submits that learned
ASJ has erred in allowing the application filed by the
respondents/accused persons and taking on record the documents
filed by them, which were in relation to an incident that took place
on 08.05.2014 for which a separate FIR bearing no. 669/14 was
registered at Police Station Madhu Vihar, Delhi. It is stated that these
documents are in no way connected with the present case and could
not have been relied upon to discharge the respondents. To buttress
his contentions, learned APP has placed reliance on the decision of
Hon‟ble Apex Court in State of Orissa v. Debundra Nath Padhi
(2005) 1 SCC 568 . It is argued that there is enough material on
record to make out a prima facie case against the accused persons
and charges ought to be framed against them. It is stated that merely
because an FIR was lodged by the respondents previously against the
present complainant cannot be a ground to hold that present FIR is
frivolous and counter-blast to the same, at the stage of charge.
8. Learned APP for the State further argues that it is settled law
that at the stage of framing of charge, the truth, veracity and effect of
the evidence proposed to be adduced is not meticulously judged and
the test at this stage is only limited to presuming that the accused had
committed the offence. It is vehemently submitted by APP for the
state that individual conscience of the court is connected with larger
CRL.REV.P.1158/18 & connected matter Page 5 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
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NEUTRAL CITATION NO. 2023:DHC: 1979
consciousness of justice and the objectivity is the connecting link,
and in the present case, there is no objectivity in the impugned order
dated 07.11.20218 since learned ASJ failed to appreciate the facts
and circumstance of the present case and the same is based on
presumption, conjectures and surmises and as such cannot stand the
scrutiny of law and thus is liable to be set aside.
9. Per contra , learned counsel for the respondents submits that
learned ASJ, after giving due consideration to all the facts and
circumstances of the present case and after considering the evidence
placed on record before it, has rightly passed both the impugned
order, and that there is no illegality, irregularity or infirmity in the
same. Reliance in this regard is also placed on decision of Nitya
Dharmananda v. Shree Gopal Salem Reddy (2018) 2 SCC 93.
10. This Court has heard learned counsels for both the parties at
length and has perused the material on record.
11. The arguments of the petitioner are twofold; firstly , it has been
contended that the application filed by the respondents for filing
additional documents before hearing arguments on charge was
wrongly allowed by the learned ASJ vide order dated 25.09.2018,
and secondly , that the said documents were taken into consideration
while passing the impugned order dated 17.11.2018 whereby the
respondents were discharged on the basis of the additional
documents filed by them, without appreciating facts and
circumstances of the present case.
12. At the outset, in order to appreciate the contentions raised on
behalf of petitioner, this Court takes note of the decision rendered by
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
Three-judge Bench of Hon‟ble Apex Court in Debundra Nath Padhi
(supra) wherein it was held that at the stage of framing of charge, the
accused has no right to produce any material and trial courts cannot
consider any material produced before it by an accused. The relevant
observations of Hon‟ble Apex Court read as under:
“8. What is to the meaning of the expression 'the record of
the case' as used in Section 227 of the Code. Though the
word 'case' is not defined in the Code but Section
209 throws light on the interpretation to be placed on the
said word. Section 209 which deals with the commitment
of case to Court of Session when offence is triable
exclusively by it, inter alia, provides that when it appears to
the Magistrate that the offence is triable exclusively by the
Court of Session, he shall commit 'the case' to the Court of
Session and send to that court 'the record of the case' and
the document and articles, if any, which are to be produced
in evidence and notify the Public Prosecutor of the
commitment of the case to the Court of Session. It is
evident that the record of the case and documents
submitted therewith as postulated in Section 227 relate to
the case and the documents referred in Section 209. That is
the plain meaning of Section 227 read with Section 209 of
the Code. No provision in the Code grants to the accused
any right to file any material or document at the stage of
framing of charge. That right is granted only at the stage of
the trial.
18. ...It is well-settled that at the stage of framing of
charge, the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel for the
accused would mean permitting the accused to adduce his
defence at the stage of framing of charge and for
examination thereof at that stage which is against the
criminal jurisprudence. By way of illustration, it may be
noted that the plea of alibi taken by the accused may have
to be examined at the stage of framing of charge, if the
contention of the accused is accepted despite the well-
CRL.REV.P.1158/18 & connected matter Page 7 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
settled proposition that it is for the accused to lead
evidence at the trial to sustain such a plea. The accused
would be entitled to produce materials and documents in
proof of such a plea at the stage of framing of the charge,
in case we accept the contention put forth on behalf of the
accused. That has never been the intention of the law well-
settled for over one hundred years now. It is in this light
that the provision about hearing the submissions of the
accused as postulated by Section 227 is to be understood. It
only means hearing the submissions of the accused on the
record of the case as filed by the prosecution and
documents submitted therewith and nothing more. The
expression 'hearing the submissions of the accused' cannot
mean opportunity to file material to be granted to the
accused and thereby changing the settled law. At the stage
of framing of charge, hearing the submissions of the
accused has to be confined to the material produced by the
police”.
13. Similarly, the Hon‟ble Apex Court in M.E. Shivalingamurthy
v. Central Bureau of Investigation (2020) 2 SCC 768 , had also held
that at the stage of charge, only the materials brought on record by
prosecution have to be considered. The relevant portion of the
judgment is reproduced as under:
“18. The defence of the accused is not to be looked into at
the stage when the accused seeks to be discharged under
Section 227 Cr.P.C. (See State of J&K v. Sudershan
Chakkar). The expression, "the record of the case", used in
Section 227 Cr.P.C., is to be understood as the documents
and the articles, if any, produced by the prosecution. The
Code does not give any right to the accused to produce
any document at the stage of framing of the charge. At
the stage of framing of the charge, the submission of the
accused is to be confined to the material produced by
the Police (See State of Orissa v. Debendra Nath Padhi).
CRL.REV.P.1158/18 & connected matter Page 8 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
28. It is here that again it becomes necessary that we
remind ourselves of the contours of the jurisdiction under
Section 227 of the Cr.P.C. The principle established is to
take the materials produced by the prosecution, both in the
form of oral statements and also documentary material, and
act upon it without it been subjected to questioning through
cross-examination and everything assumed in favour of the
prosecution, if a scenario emerges where no offence, as
alleged, is made out against the accused, it, undoubtedly,
would enure to the benefit of the accused warranting the
Trial Court to discharge the accused.
29. It is not open to the accused to rely on material by
way of defence and persuade the court to discharge
him .
30. However, what is the meaning of the expression
" materials on the basis of which grave suspicion is aroused
in the mind of the court's ”, which is not explained away?
Can the accused explain away the material only with
reference to the materials produced by the prosecution?
Can the accused rely upon material which he chooses to
produce at the stage?
31. In view of the decisions of this Court that the accused
can only rely on the materials which are produced by the
prosecution , it must be understood that the grave suspicion,
if it is established on the materials, should be explained
away only in terms of the materials made available by the
prosecution. No doubt, the accused may appeal to the
broad probabilities to the case to persuade the court to
discharge him.”
(Emphasis supplied)
14. Thus, as a general rule, the defence of accused cannot be taken
into consideration at the stage of charge, and only the material
submitted before the Court by the prosecution, on the basis of
CRL.REV.P.1158/18 & connected matter Page 9 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
investigation, has to be considered for ascertaining as to whether a
prima facie case is made out against the accused.
15. However, the Hon‟ble Apex Court in Nitya Dharmananda
(supra) has held that if some material of „sterling quality‟ is withheld
by the prosecution, the same can be summoned or relied upon by the
Court. The relevant observations are as under:
“8. Thus, it is clear that while ordinarily the Court has to
proceed on the basis of material produced with the charge
sheet for dealing with the issue of charge but if the court is
satisfied that there is material of sterling quality which has
been withheld by the investigator/prosecutor, the court is
not debarred from summoning or relying upon the same
even if such document is not a part of the charge sheet. It
does not mean that the defence has a right to invoke
Section 91 Cr.P.C. de hors the satisfaction of the court, at
the stage of charge.”
16. Earlier, in case of Ajay Kumar Parmar v. State of Rajasthan
(2012) 12 SCC 406 , the Hon‟ble Supreme Court had approved the
permissibility to consider defence of accused only in rarest of rare
cases, if such material demolishes the whole case of prosecution.
These observations are reproduced as under:
“...at the time of framing the charge, the only documents
which are required to be considered are the documents
submitted by the investigating agency alongwith the
charge-sheet. Any document which the accused want to
rely upon cannot be read as evidence. If such evidence is to
be considered, there would be a mini trial at the stage of
framing of charge. That would defeat the object of the
Code. The provision about hearing the submissions of the
accused as postulated by Section 227 means hearing the
submissions of the accused on the record of the case as
filed by the prosecution and documents submitted
CRL.REV.P.1158/18 & connected matter Page 10 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
therewith and nothing more. Even if, in a rare case it is
permissible to consider the defence evidence, if such
material convincingly establishes that the whole
prosecution version is totally absurd, preposterous or
concocted, the instant case does not fall in that category...”
17. Having taken note of the aforesaid judicial precedents, and
having gone through the records of the case, this Court finds merit in
the contention of learned APP for the State that learned ASJ erred in
allowing the application filed by accused persons and taking on
record the previous FIRs registered at their behest against the
husband of complainant in present case, and then subsequently
discharging the accused persons placing heavy reliance upon the said
material, for the reasons stated in succeeding paragraphs.
17.1. Firstly , it is no more res integra that at the stage of framing of
charge, the Court is not authorized to undertake an extensive analysis
of the evidence or engage in a wide-ranging investigation of the
merits of the case, and a mini-trial or an in-depth appreciation of
evidence and roving inquiry into the pros and cons of the case is not
permitted [See Sajjan Kumar v. C.B.I. (2010) 9 SCC 368; Amit
Kapoor v. Ramesh Chander (2012) 9 SCC 460 ; Asim
Shariff v. National Investigation Agency (2019) 7 SCC 148 ; and
Dipakbhai Jagdishchandra Patel v. State of Gujarat (2019) 16 SCC
547 ].
17.2. Secondly , as also discussed in preceding paragraphs, the
accused
is not permitted to rely upon any material by way of defence and no
provision in Cr.P.C. gives any right to the accused to produce any
CRL.REV.P.1158/18 & connected matter Page 11 of 14
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
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NEUTRAL CITATION NO. 2023:DHC: 1979
documents at the stage of framing of charge [See Debundra Nath
Padhi (supra); SMS Pharmaceuticals v. Neeta Bhalla (2005) 8 SCC
89; Bharat Parikh v. CBI 2008 10 SCC 109; M.E.
Shivalingamurthy (supra) ].
17.3. Thirdly , even considering the decisions of Hon‟ble Apex Court
as reproduced in para 15 and 16 above, the defence of accused can
only be considered, in rarest of the rare case, and if the same is of
„sterling quality‟, capable of establishing the whole version of
prosecution to be absurd, preposterous or concocted.
17.4. Fourthly , as far as law on cross-FIR is concerned, it has been
expressly held by the Hon‟ble Apex Court that each case has to be
decided on its own merits and the evidence collected in one case
cannot be used or relied upon in the another case. Reliance in this
regard can be placed upon decision of A.T. Mydeen v. The Assistant
Commissioner 2021 SCC OnLine SC 1017 , whereby it has been held
as under:
“25. So far as the law for the trial of the cross cases is
concerned, it is fairly well settled that each case has to
be decided on its own merit and the evidence recorded
in one case cannot be used in its cross case. Whatever
evidence is available on the record of the case only that
has to be considered. The only caution is that both the
trials should be conducted simultaneously or in case of
the appeal, they should be heard simultaneously.
However, we are not concerned with cross-cases but
are concerned with an eventuality of two separate trials
for the commission of the same offence (two
complaints for the same offence) for two sets of
accused, on account of one of them absconding.”
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59
NEUTRAL CITATION NO. 2023:DHC: 1978
NEUTRAL CITATION NO. 2023:DHC: 1979
17.5. Fifthly , the FIR in the case at hand was registered in respect of
an incident dated 09.05.2014, whereas an FIR bearing no. 669/14, for
an incident dated 08.05.2014 registered at P.S. Madhu Vihar was
taken on record by learned ASJ and relied upon to discharge the
accused, which was not even a cross-FIR, rather an FIR lodged
previously at the behest of the accused persons. In the impugned
order, learned ASJ, at the stage of framing of charge, had primarily
observed that since this previous FIR and also an earlier FIR of the
year 2013 were lodged at the behest of the accused in present case
against the husband of complainant, the complainant had lodged the
present complaint culminating into FIR No. 764/2014 at P.S. Madhu
Vihar only with a view to pressurize the accused i.e. the complainant
in previous FIRs.
18. In the considered opinion of this Court, in view of the
decisions of Hon‟ble Apex Court on the issue of framing of charge as
well as on right of accused to produce his or her defence at this stage,
the learned ASJ committed an error in allowing the application filed
by the accused persons/respondents and taking on record the
previous FIRs filed by the accused persons against the husband of
complainant. The documents taken on record vide order dated
25.09.2018 cannot be held to be of „sterling quality‟ and of nature to
prove that the case of prosecution was entirely absurd and concocted,
in view of the observations made hereinabove. Further, reliance
placed on these FIRs and consequent observations that present case
was filed with a view solely to pressurize the accused and no case
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
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was made out against the accused persons was also bad in law in
view of the settled law on framing of charge.
19. Thus, in view of the foregoing discussion, the impugned orders
dated 25.09.2018 and 17.11.2018 passed in Sessions Case No.
412/2017by learned ASJ are set aside.
20. The matter is remanded back to the concerned Trial Court for
passing an order on charge afresh, in view of the material placed on
record by the prosecution and as per the settled principles of framing
of charge.
21. Accordingly, the present petitions, along with pending
applications if any, are disposed of in above terms.
22. A copy of this judgment be forwarded by the Registry to
learned Trial Court for information and compliance.
23. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
MARCH 20, 2023/kss
Corrected and uploaded on: 26.04.2023
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:26.04.2023
18:27:59