* IN THE HIGH COURT OF DELHI AT NEW DELHI + [CASE NUMBER] ARUNA CHADHA Petitioner Through Mr. [ENTITY], Sr. Advocate with Ms. [ENTITY], Advocate versus STATE OF DELHI Respondent Through Mr. [ENTITY], ASG with Mr. [ENTITY], Advocate, Mr. [ENTITY], ASC, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate & Mr. [ENTITY], Advocate Inspector [ENTITY], IO. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL ORDER
22.11.2013 [CASE NUMBER] in [CASE NUMBER]
1. By virtue of this application under [SECTION] of the [ACT] the Petitioner [ENTITY]) seeks clarification of the order dated 25.07.2013 passed by this Court and setting aside of the order dated 14.08.2013 passed by the learned District & Sessions Judge (D&SJ), [ENTITY] in [CASE NUMBER] titled State v. [ENTITY] & Ors. and the order dated 17.08.2013 passed by the learned Additional Sessions Judge (ASJ), Fast Track Court for sexual offences as the same are contrary to the judgment dated 25.07.2013 passed by this Court.
2. The facts leading to the filing of the instant application can be recapitulated hereunder:
3. The order dated 10.05.2013 framing charge against the Petitioner and the co-accused [ENTITY]) passed by the learned D&SJ, [ENTITY] came to be challenged by the Petitioner by virtue of [CASE NUMBER] before this Court. The revision petition was partly allowed and the charge for the offences punishable under [SECTION] and [SECTION] of [ACT] was set aside against the Petitioner and trial was ordered to be proceeded in respect of rest of the offences including offence under [SECTION] [ACT].
4. According to the Petitioner, in pursuance of the order of this Court dated 25.07.2013, the matter came up for hearing before the learned ASJ, Fast Track Court who by his order dated 27.07.2013 observed as under:
"I have carefully gone through the same, whereby inter alia the petition filed by the petitioner/accused [ENTITY] has been partly allowed to the extent that the framing of charge for the offence punishable u/[SECTION] and [SECTION] [ACT] is set aside and inter alia in para 40, it has been held that the charge u/[SECTION] against co-accused [ENTITY], which cannot be sustained. Since no charge against co-accused under these sections could have been framed, the petitioner ([ENTITY]) could not have been guilty of abetting these offences.
In the circumstances, let a notice of the application dated 27.07.2013 for early hearing filed on behalf of accused [ENTITY] be issued to the State/IO. A notice be also issued to the counsel for the accused [ENTITY], in view of the changed circumstances, in terms of the order dated 25.07.2013 of the Honble Delhi High Court.
Put up on 31.07.2013 at 2.00 PM, for further proceedings."
5. On the subsequent date, that is, 31.07.2013, the learned ASJ directed the matter to be placed before the D&SJ, North-West, [ENTITY] on 05.08.2013 for assigning the case to some other court of competent jurisdiction as vide order dated 25.07.2013 passed by this Court, the charge for the offences punishable under [SECTION] [ACT], [SECTION] [ACT], [SECTION] and [SECTION] [ACT] framed against the accused persons had been set aside. The relevant portion of the said order is extracted hereunder:
"It is to be mentioned that this Court is the special fast track Court for the sexual offences against the women. The present case was assigned to this Court for the reasons that the accused persons were also charged for the offences inter-alia u/[SECTION] [ACT], [SECTION] [ACT], [SECTION] [ACT], [SECTION] [ACT]. But vide order dated 25.07.2013, the Honble Delhi High Court has deleted/set aside the charges for the offences u/[SECTION] [ACT], [SECTION] [ACT], [SECTION] [ACT], [SECTION] [ACT] framed against the accused persons.
In view of above and in the circumstances, let the case file complete in all respects, be sent to the Court of Learned District & Sessions Judge, North-West District, Delhi for 05.08.2013 with a prayer to withdraw this case from this Court and to assign the same to some other Court of competent jurisdiction. Learned counsel for the accused are directed to appear before the Court of Learned District & Sessions Judge, North-West District, Delhi on 05.08.2013."
6. The matter was listed before the learned D&SJ(NW) on 05.08.2013 and he adjourned the case to be listed for arguments on the bail application on 13.08.2013. However, on 14.08.2013, the learned D&SJ while interpreting the order dated 25.07.2013 passed by this Court took a view contrary to the view taken by the learned ASJ and observed that by the order dated 25.07.2013 (of this Court), the charge under [SECTION] and [SECTION] [ACT] has been set aside against accused [ENTITY] alone. He held that the observations of the learned ASJ that this Court has set aside the charge under [SECTION] [ACT] against co-accused [ENTITY] also did not reflect the correct position. The learned D&SJ went on to add that since accused [ENTITY] had not preferred any revision petition against the order dated 10.05.2013, therefore, the charge framed against him had attained finality due to the bar of limitation. The relevant portion of the order dated 14.08.2013 passed by the learned D&SJ(NW) is extracted hereunder:
"There is nothing in the order dated 25.07.2013 in [CASE NUMBER][CASE NUMBER] of Honble High Court which indicates that the State and accused [ENTITY] were put to notice of the charges against accused [ENTITY] to indicate suo moto exercise of revisional power of Honble High Court on the question of charges framed against accused [ENTITY]. Therefore, charges under [SECTION] read with [SECTION] [ACT] and [SECTION] read with [SECTION] [ACT] are set aside against accused [ENTITY] alone and the observation of Ld. ASJ, Special Fast Tract Court in the order dated 31.07.2013 indicating that Honble High Court has set aside charges under [SECTION] [ACT] against accused [ENTITY] does not seem to reflect correct position.
If the revision petition is not yet filed by accused [ENTITY] till date against the order dated 10.05.2013, then the charges framed against him have attained finality due to bar of limitation. It is only those accused persons who challenge the order of a criminal court in a revision petition or in a petition under [SECTION] [ACT] who derive benefit out of the order of Honble High Court and the same benefit cannot be automatically extended to the other accused persons who have not challenged the order ([PRECEDENT], [PRECEDENT], Crl. Miscellaneous Application No.512/2010 U/[SECTION] [ACT] Sudhir Kumar Agarwal v. State of Uttrakhand & Another with Criminal Miscellaneous Application No.478/2010 u/[SECTION] [ACT] titled [PRECEDENT] [PRECEDENT] decided on 03.08.2012 by Uttrakhand High Court and [CASE NUMBER] decided on 06.03.2013 by Delhi High Court titled [PRECEDENT]). Therefore, when Honble High Court has chosen to set aside the charges under [SECTION] read with [SECTION] [ACT] and [SECTION] read with [SECTION] [ACT] against accused [ENTITY] alone on her revision petition, the charges under [SECTION] [ACT] against accused [ENTITY] cannot be said to have been automatically set aside.
Therefore, the case is still a case of sexual assault on a woman, till there is specific judicial order of deletion of charges under [SECTION] [ACT] against accused [ENTITY] for which he may approach Honble High Court like co-accused [ENTITY]. The trial of both the accused persons in this case is inseparable, so the bail application should not be heard by this court. Therefore, in the light of instructions of Honble High Court in [CASE NUMBER] dated 02.01.2013, the case file is transferred to the court of Sh. [ENTITY], Ld. ASJ, Special Fast Track Court(NW), [ENTITY] Courts, Delhi."
7. The learned Sr. Counsel for the Petitioner urges that the order passed by this Court was very clear that the charge of abetment to rape/carnal intercourse against the order of nature was set aside against the Petitioner on the view that since the co-accused [ENTITY] had not committed any offence under [SECTION] [ACT], the Petitioner also could not have been charged for abetment of these offences. Referring to paras 34 to 40 of the judgment dated 25.07.2013, the learned Sr. Counsel for the Petitioner urges that the learned D&SJ could not understand the purport of the order dated 25.07.2013 resulting in prejudice to the Petitioner in as much as if the evidence with regard to the offence under [SECTION] [ACT] against the co-accused is let in, that would prejudice the Petitioner's case as the evidence with regard to sexual exploitation may then become relevant for the offence of abetment to suicide and this Court's finding that the charge under [SECTION] against the co-accused [ENTITY] was not made out and for abetment of these offences was not made out against the Petitioner will be rendered nugatory.
8. For the purpose of forming an opinion whether the view as taken by the learned D&SJ in the order dated 14.08.2013 could have been taken, it would be appropriate to refer to paras 34 to 40 of the order dated 25.07.2013 passed by this Court in [CASE NUMBER], which are extracted hereunder:
"OFFENCE UNDER [SECTION] & [SECTION] [ACT]
34.It is frankly conceded by the learned ASG that there is no direct evidence of commission of rape or unnatural offence by co- accused [ENTITY] or its abetment by the Petitioner. The learned ASG challenges the observation of the trial court whereby the learned ASJ observed that the investigation carried out by the investigating agency was tainted or that the investigating agency intentionally did not go into the aspect of sexual exploitation of the deceased by the accused persons. It is argued that the investigating agency in its quest for truth examined various employees of MDLR as also the family members of the deceased X yet no direct evidence with regard to the sexual exploitation was available. He states that in this case no direct evidence was possible, except the disclosure of any incident relating to the offence by the deceased to any co- employee or to the family members. But none of the witnesses examined during investigation came forward with any such disclosure. Albeit, the learned ASG urges that in view of the statement under [SECTION] of the Code of Dr. [ENTITY], the postmortem report and the supplementary disclosure statement of the Petitioner dated 10.08.2012 recorded by the IO it can be inferred that deceased X was being subjected to sexual exploitation and thus, the Trial Court was justified in framing the charge under [SECTION] and [SECTION] [ACT].
35.On the other hand, Mr. [ENTITY] learned senior counsel urges that even if the material collected by the prosecution and as relied upon by the learned ASJ is taken on its face value still it cannot be inferred that any offence under [SECTION] [ACT] was committed by co-accused [ENTITY] and thus there could not be any question of abetment of these offences by the present Petitioner. In her statement under [SECTION] of the Code Dr. [ENTITY] informed the IO that deceased X visited her clinic with Petitioner [ENTITY] on 09.03.2012, X informed her about her early pregnancy and that she wanted to get it terminated by pills as she was unmarried. In her statement, Dr. [ENTITY] informed the IO that she gave abortion pills to the deceased with which she (the deceased) aborted successfully. According to Dr. [ENTITY] deceased X visited her again alone on 14.05.2012 for a routine check-up. She last visited her alone on 19.06.2012 for a routine check-up.
36.Relying on the statement of Dr. [ENTITY], the learned senior counsel argues that through Dr. [ENTITY] statement what can be inferred is that the Petitioner simply accompanied the deceased to her own ([ENTITY]s) gynecologist as a help to her. On the next two subsequent visits the deceased visited the doctor alone (without [ENTITY]s company) and thus there was nothing to indicate from Dr. [ENTITY] statement that she (the Petitioner) had abetted the commission of any offence under [SECTION] and [SECTION] [ACT].
37.Referring to the observations in the post mortem report, e.g., "Vaginal Orifice: Remnants of hymen present as tags of epithelialisation at the rim of vaginal orifice, signs of old hymen rupture with healing. Recent mucosal excoriatins with reddened base in an area of 0.3 cm x 0.4 cm were present at the vaginal introitus
"Anal orifice: The anal orifice appears dilated and patulous with keratinisation of the mucosal wall beyond the anal verge. A healing mucosal tear sized about 0.6 cm x 0.4 cm with areas showing grayish white fibrosis admixed with area of reddening were present at the posterior part of anal orifice ".
"The findings suggest that the deceased was habituated to vaginal and anal penetration."
the learned senior counsel contends that it nowhere points out the role of the co-accused [ENTITY] in the commission of these offences or its abetment by the Petitioner.
38.Referring to the early pregnancy (of five weeks) noticed on 09.03.2012 by Dr. [ENTITY], the learned senior counsel urges that admittedly the deceased was not in [ENTITY]s employment since December 2011 till May, 2012. Thus, the pregnancy if any, on 09.03.2012, could not have been on account of any illicit sexual intercourse by [ENTITY] or its abetment by the Petitioner.
39.Relying on the Privy Council decision in [PRECEDENT] the learned senior counsel urges that the disclosure statement made by the Petitioner was totally inadmissible and cannot be looked into at all for any purpose being a statement made to the police, as under [SECTION] of [ACT] only that portion of the confessional statement is admissible which relates to any fact discovered in consequences of the information received from a person accused of any offence. Since there was no discovery of any fact, the learned senior counsel argues that the ASJ erred in taking aid of the disclosure statement.
40.Apart from the supplementary disclosure statement of the Petitioner '[ENTITY]' there is nothing to indicate that co-accused [ENTITY] had illicit relations with 'X' or that she had multiple pregnancies. In the absence of discovery of any fact in pursuance of the disclosure statement, the same is clearly inadmissible in evidence and has to be kept out of consideration. The statement of Dr. [ENTITY] nowhere leads to the conclusion that the pregnancy carried by the deceased was due to any illicit relationship with co-accused [ENTITY] particularly when she was not even in employment of MDLR during the period of expected pregnancy. All the more, there is not even a shred of evidence to indicate that co-accused [ENTITY] committed sexual intercourse with deceased 'X' or had carnal intercourse against the order of nature with her or that the same was against her (the deceased) will or without her consent or that the Petitioner facilitated in any act of rape or unnatural offence alleged to have been committed by [ENTITY]. Similarly, what could only be inferred from the postmortem report was that the deceased was habituated to vaginal and anal penetration, but there was nothing to indicate that it was co-accused [ENTITY] who was responsible for the same and that the Petitioner had abetted the alleged vaginal and anal penetration against the deceased's will and without her consent.
It is apparent that the learned ASJ unjustly admitted into evidence the confessional statement made by the Petitioner and illegally put the burden to prove the same on the co-accused and the Petitioner which is not permissible. The learned ASJ fell into gross error in framing the charge under [SECTION] against the co-accused [ENTITY] which cannot be sustained. Since no charge against co-accused under these Sections could have been framed, the Petitioner could not have been guilty of abetting these offences."
9. Mr. [ENTITY], the learned ASG appearing for the State opposes the petition primarily on the ground that in view of [SECTION] of the [ACT], this Court is debarred to alter or review its judgment after the same has been signed. Referring to [PRECEDENT], [PRECEDENT] and [PRECEDENT] [PRECEDENT], the learned ASG argues that once a matter is finally disposed of, in the absence of any specific statutory provision, the Court is not competent to issue any fresh directions under [SECTION] [ACT] He submits that in any case there was no prejudice to the Petitioner.
10. There is no dispute about the proposition of law that after the disposal of the main case, on moving of an application under [SECTION] [ACT], it is not permissible for the Court to review the order passed in the main petition or to issue further directions to the order passed in the main petition. In [ENTITY]), on a petition moved by the Respondent, directions were issued to the SSP to look into the allegations made by the Respondent and to register a criminal case if the offence was made out. The said order was passed by the High Court without notice to the opposite party and the petition was disposed of. Subsequently, on moving of a miscellaneous application, that order was reversed by the High Court stating that since the Judicial Magistrate, Kharar has already taken cognizance of the matter, the Petitioner need not prosecute with his allegations with the SSP and, therefore, no action may be taken by the SSP on the complaint made by the Respondent. The subsequent order was held to be not permissible by the Hon'ble Supreme Court.
11. In [ENTITY]), in a criminal petition under [SECTION] [ACT], the High Court while disposing of the petition declined to transfer the investigation of the case to the CBI and directed the SP, CID to continue with the investigation. On an interlocutory application filed after three and a half years, the learned Single Judge transferred the investigation to the CBI and directed the State police to hand over the case record to the CBI, which was held impermissible.
12. Similarly, in [PRECEDENT] [ENTITY]), the applicant sought clarification of the earlier order of the High Court directing restoration of possession of the property to Respondent No.1 by seeking a declaration that it was not binding on the applicant and did not affect her possession but the Respondent disputed the allegations. In that context, it was held that the controversy could not have been gone into within the meaning of clerical or arithmetical error. In all these cases directions contrary to the main order were sought by one or the other party and thus, the order passed was altered or reviewed which is not the case here. Thus, the authorities cited above are not attracted to the facts of this case.
13. I have taken pains to extract the relevant portions of the order dated 25.07.2013 and have highlighted the requisite portions of the earlier said order to make the trial court understand that the charge for abetment against the Petitioner([ENTITY]) for the offences punishable under [SECTION] [ACT] and [SECTION] [ACT] was set aside only on the ground that no offence under [SECTION] [ACT] was made out against the co- accused([ENTITY]). It is intriguing to note as to how the straight and simple order could not be understood by the trial court.
14. The learned ASG referring to [SECTION] [ACT] urges that the Petitioner and for that matter the co-accused also ought to have moved an application before the learned ASJ, Fast Track Court/D&SJ for amendment of the charge. The learned Sr. Counsel for the Petitioner, however, submits that once the order dated 25.07.2013 was placed before the learned D&SJ/ASJ, Fast Track Court, no application was required to be moved and he was expected to act on the order suo moto. At the same time, the learned Sr. Counsel refers to the order dated 17.08.2013 whereby the learned counsel for the co-accused had submitted before the learned ASJ that the charge against the accused persons was required to be reframed in view of the order dated 25.07.2013 passed by this Court, yet the charge was not amended. The learned Sr. Counsel further submits that although the learned ASJ was not a Court subordinate to the court of D&SJ while hearing a Sessions Trial, yet he is seemed to have been swayed by with the interpretation of the order dated 25.07.2013 as made by the learned D&SJ in his order dated 14.08.2013 and did not follow the order dated 25.07.2013 passed by this Court. The learned ASJ while referring to the order dated 14.08.2013 passed by the D&SJ observed as under:
"The case file has been received again by this court from the court of Learned District & Sessions Judge, North-West District, Delhi along with order dated 14.8.2013 wherein the Learned District & Sessions Judge (N-W), [ENTITY], Delhi has inter-alia held that " therefore, charges u/[SECTION] read with [SECTION] [ACT] and [SECTION] read with [SECTION] [ACT] are set aside against accused [ENTITY] alone and the observation of Ld. ASJ, Special Fast Tract Court in the order dated 31.07.2013 indicating that Honble High Court has set aside charges under [SECTION] [ACT] against accused [ENTITY] does not seem to reflect correct position." And that " therefore, when Honble High Court has chosen to set aside the charges under [SECTION] read with [SECTION] [ACT] and [SECTION] read with [SECTION] [ACT] against accused [ENTITY] alone on her revision petition, the charges under [SECTION] [ACT] against accused [ENTITY] cannot be said to have been automatically set aside. Therefore, the case is still a case of sexual assault on a woman, till there is specific judicial order of deletion of charges under [SECTION] [ACT] against accused [ENTITY] for which he may approach Honble High Court like co-accused [ENTITY]."
In this scenario, the court of the Learned District & Sessions Judge, (North-West District), [ENTITY], Delhi, being superior to this court, let the matter be proceeded with in the light of order dated 25.07.2013 of the Honble Delhi High Court and the order dated 14.08.2013 of the Learned District & Sessions Judge (North-West District), [ENTITY], Delhi."
15. It is admitted by the learned ASG that the State has not challenged the order dated 25.07.2013 passed by this Court. Yet, in view of the fact that the charge has not been amended in terms of the order of this Court, the Petitioner's apprehension of prejudice cannot be stated to be totally ill founded.
16. The least that can be said is that there was a total non-application of mind by the learned D&SJ in giving his own interpretation to the order dated 25.07.2013. Since the orders dated 14.08.2013 and 17.08.2013 passed by the Trial Court run contrary to the order dated 25.07.2013 passed by this Court, the same cannot be sustained. The Trial Court is directed to amend the charge against the accused persons in terms of the order dated 25.07.2013 passed by this Court.
17. The learned ASG states that a direction ought to be issued to the Trial Court to decide the case expeditiously. The counsel for the Petitioner also requests for an expeditious trial. It is evident that some precious time was wasted in shuffling the file to and fro from the Court of ASJ and D&SJ and then not following the order of this Court forcing the Petitioner to approach this Court. It is expected that the Trial Court shall conduct the trial of the case expeditiously and conclude the same at an earlier date.
18. Learned counsel for the parties inform that the matter is fixed before the Trial Court on 28.11.2013. The parties are directed to appear before the Trial Court on the date fixed.
19. The Trial Court record be remitted to the Trial Court through a Special Messenger immediately.
20. The application is disposed of in the above terms.
([ENTITY]) JUDGE NOVEMBER 22, 2013 pst