TMI Blog2017 (9) TMI 2023X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. 2. Application is disposed of. Crl.M.C. No. 3931/2017 3. 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. 4. Mr. Sanjeev Sabharwal, APP for the State accepts notice. 5. Heard. 6. 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. 7. At 2.15 pm again arguments were heard and the written submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, 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 mind without hearing is antithesis of the Judicial Convention, hence beg this Hon'ble Court to be heard. Injustice is easy to bear, but what stings is justice. ' 9. Mr. V. Elanchezhiyan, learned counsel for the petitioner has submitted that although at the time of registration of FIR the petitioner did not make any allegation which constituted an offence under Section 354 IPC but in her statement under Section 164 CrPC she did make such allegation. The FIR is not an encyclopedia and for purpose of framing of charge, the statement which formed basis for registration of FIR as well the statement under Section 164 CrPC should have been considered by the Court. It has also been submitted that in the statement under Section 164 CrPC, she has specifically mentioned that accused touched her breast while pushing her out of the room and whether such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he was not bound by the order of High Court, she could go wherever she wanted. He mentally tortured her staring at her and abused her. He also called the Peon and directed him to push her out and himself also started speaking in abusive language. She told him that she was an employee and at the work place why he was abusing and misbehaving with her but he did not listen to her. He continued speaking and she was sent outside the school gate. She called the PCR and when Ct. Harjiwan responded to the call, she apprised him about the incident and also played the recording by her of the incident about the abusive misbehavior. Ct. Harjiwan advised her to meet the SHO and play the recording in his presence and lodged the FIR. Thereafter she visited the police station and got the FIR registered. She also made request that legal action be taken against the person who has abused her (Maa Bahen Ki Galiyan Di). 13. Copy of the chargesheet annexed with the petition reveals that on 20th June, 2014 the complainant was produced for getting her statement under Section 164 CrPC recorded and on the basis of allegations made therein i.e. touching of breast, Section 354 IPC was also added in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not to use the abusive words and she was conscious of the fact the entire conversation is getting recorded on her mobile phone. The fact that the accused refused to accept the court order is not subject matter of present case. The fact that accused shouted on the complainant and asked her to leave the room does not constitute any offence, in the absence of any word act or gesture on the part of the accused intending to outrage the modesty of the complainant. Therefore, no prima facie case is made out against the accused. Accused is discharged in the present case. 15. Aggrieved by the order on discharge, the complainant preferred criminal appeal which was treated as revision petition by the learned ASJ. State had also preferred a Criminal Revision Petition No. 12/1/2017 challenging the order on discharge passed by the learned MM. Both the revision petitions i.e. Crl.Rev. No. 121/2017 (preferred by the State) and Crl.Rev. No. 32/2/2016 (preferred by the complainant) were disposed of by the learned ASJ vide common order dated 7th September, 2017 and allowed to the extent that accused was sent to face trial for the offence punishable under Section 509 IPC. 16. The prayer to direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision petition filed by the complainant, the learned ASJ has taken the view that the ingredients of Section 354 IPC are not satisfied. The recording made by the complainant herself has been referred to in the context that in the FIR no such allegation was made. 20. The submission made by learned counsel for the petitioner that the Court was required to consider the provisions of Section 238 239 CrPC and not 227 CrPC, cannot be taken as a ground to interfere with the orders impugned. 21. In the decision reported as State of Maharashtra Etc. Etc. v. Som Nath Thapa Etc. JT 1996 (4) SC 615, one of the question of law to be examined by the Apex Court was When can charge be framed? . After reproducing Sec. 227, 228 in so far as session trial is concerned and Sec. 239, 240 relatable to the trial of warrant cases and section 245 (1) (2) qua the trial of summon cases, in para 29 to 33 of the judgment held as under :- 29. Before adverting to what was stated in Antulay's case, let the view expressed in State of Karnataka v. L. Muniswamy, 1977(3) SCR 113 be noted. Therein, Chandrachud, J. (as he then was) speaking fore a three Judge Bench stated at page 119 that at the stage of framing cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage. 22. Reliance placed by the petitioner on the decision reported State of Punjab v. Major Singh (Supra) and Samar Singh Puri v. The State (NCT of Delhi) (Supra) is misplaced as it is a case where the complainant herself was recording the entire event and playing not only before the SHO but also before the Court. It was only on the basis of the recording made by the complainant that both the Court below have given a concurrent finding that even prima facie the ingredients of Section 354 IPC are not satisfied. 23. It is worth mentioning that in the garb of petition under Section 482 CrPC, the petitioner has filed second revision petition which is not maintainable. In the case Wajid Mirza v. Mohammed Ali Ahmed Ors. 1982 CriLJ 890, the High Court of Andhra Pradesh has observed as under :- 23. This Court in Re Puritip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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