Crl.M.C. No. 167/2008 Page 1 of 31 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 167/2008 & Crl M A No. 657/2008 Reserved on: 14th May 2009 Decision on: 10th July 2009 PUNEET KUMAR ..... Petitioner Through: Mr. Brijesh Kalappa with Mr. Gopal Singh and Ms. Divya Nair, Advocate versus VANDANA & ORS ..... Respondents Through: Mr. Pawan Bahl, APP for State. Mr. Ashok Sethi with Mr. Rubinder Ghumman, Mr.Hari Mohan and Ms. Anu Mehta, Advocates for R-1. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in Digest? JUDGMENT 10.07.2009 S. Muralidhar, J. 1. The prayer in this petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) is for the quashing of the Complaint Case No. 1800/1 titled “Vandana v. Puneet Kumar” pending in the Court of the learned Metropolitan Magistrate (MM) and all proceedings consequent thereto including the summoning order dated 6th October 2007. Crl.M.C. No. 167/2008 Page 2 of 31 2. The petitioner is the nandoi of the complainant, i.e., the husband of the sister of the complainant’s husband. He is a member of the Indian Administrative Service (IAS) in the Kerala cadre. He is presently posted as Agricultural Secretary in the Government of Kerala. The petitioner avers that the marriage of the petitioner’s wife brother with the Respondent No.1 Vandana was solemnized in February 2002. A few months thereafter differences arose between the Respondent No.1 and her husband. Consequently, she left the matrimonial home and began living with her parents. On 10th April 2003, the Respondent No.1 got registered FIR No. 263 of 2003 at Police Station (P.S.) Rajouri Garden under Sections 498A/406/34 IPC against her husband, in-laws as well as the petitioner and his wife. That FIR in turn led to a fling of series of further complaints by the Respondent No.1. A total of nine criminal cases have been filed by the Respondent No.1 against her husband, in- laws and the petitioner. 3. As far as the present case is concerned, a warrant was issued in FIR No. 263/2003 for search of the petitioner’s house. Pursuant thereto on 1st September 2003 at about 5.50 p.m. the Respondent No.1 along with the Investigating Officer (IO) Smt. Kamlesh attached to P.S. Rajouri Garden along with two police constables went to the house of the petitioner at D-1, M.S. Apartments, Tilak Lane. The allegation by the Respondent No.1 is that during the search, which went on till about 9 pm, when she was alone in one of the bed rooms in the said premises, the petitioner entered the room. At that time the back of Respondent No.1was towards the petitioner. According to Respondent No.1, the petitioner slapped her Crl.M.C. No. 167/2008 Page 3 of 31 buttock, abused her in a filthy language and caught hold of her shirt from the front. When in order to save herself Respondent No.1 moved back, her chunni was removed from her body and the petitioner prevented her from proceedings towards the door. Upon Respondent No.1 raising an alarm, IO Kamlesh came there and thereafter the petitioner moved away. 4. According to Respondent No.1, she along with IO Kamlesh went to the P.S. Tilak Marg and lodged a complaint at 9.30 p.m. on 1st September 2003 about the above incident. However, no action was taken by the police. Therefore on 9th October 2003 she filed the aforementioned complaint in the court of the learned MM. The said complaint was accompanied by an application under Section 156(3) CrPC for a direction to the police to register an FIR and investigate the case. By an order dated 14th October 2003 a direction was issued by the learned MM to the SHO, P.S. Tilak Marg to register the case in accordance with law and submit a status or final report by 17th December 2003. This led to the registration of FIR No. 466 of 2003 at P.S.Tilak Marg followed by an investigation. 5. On 16th December 2003, the SHO Tilak Marg submitted a cancellation report in the court of the learned MM stating that no cognizable offence under Sections 354/509/34 IPC was made out and that it would be of no use to further continue the investigation. The Respondent No.1 filed her objection to the cancellation report. On 9th July 2004 the learned MM passed an order listing the complaint on 4th Crl.M.C. No. 167/2008 Page 4 of 31 November 2004 for the evidence of the complainant. In the said order the learned MM observed that he had perused the file including the protest petition and the material on record “and in view of which, finding it expedient in the interest of justice complainant is being afforded opportunity to lead her evidence……” 6. The complainant/Respondent No.1 examined herself as CW1, Vijay Anand as CW2 and SI Kamlesh as CW3. By the impugned order dated 6th October 2007, the learned MM concluded that a prima facie case was made out against the petitioner as far as the offences under Sections 341/354 and 509 IPC were concerned. However, it was held that no case under Section 506 IPC was made out. The petitioner was summoned accordingly. The present petition was filed on 11th January 2008. By an order dated 18th January 2008 while directing notice to issue to the Respondents, this Court directed that the further proceedings before the trial court shall remain stayed. 7. It is submitted by Mr. Brijesh Kalappa, learned counsel for the petitioner, that the criminal complaint by the Respondent No.1 against the petitioner was activated by malafides as it stemmed from the dispute she was having with her husband and in-laws. The petitioner was not in any way concerned with the personal life of the complainant. The complaint when read as a whole was inherently absurd, improbable and constituted an abuse of the process of law. That the complaint was full of falsehoods was evident from a comparison of the different versions given of the incident by the Respondent No.1 herself at different stages. Crl.M.C. No. 167/2008 Page 5 of 31 The version in the written complaint given by her to the police soon after the incident, differed from the one in the application filed by her in FIR No. 263/2003. Further, the version given by her in the complaint was different from the one given by her in the protest petition and in the pre- summoning evidence. It is submitted that no prudent person could ever imagine that an incident of indecent assault of the Respondent No.1 could happen and that too when she was visiting the premises of the petitioner armed with a search warrant and accompanied by a IO and two constables. Moreover, the search warrant was issued in a case where the petitioner was named as an accused. A number of people including the petitioner’s wife and aged mother were present in the house when the alleged incident is supposed to have taken place. The mala fides of the Respondent No.1 was apparent from the fact that she did not call her parents and maternal grandfather who were at that time standing outside the house. The complaint itself was filed almost forty days after the incident. During these forty days, the Respondent No.1 was continuously in court filing various applications and did not even once mention about the present incident. She was vigorously opposing the bail application of her husband. It is stated that the Respondent No.1 and her family members have filed almost 20-25 applications under the Right to Information Act, 2005 (RTI Act) seeking information about the petitioner, the status of these criminal cases and the stage of investigation. It is submitted that the petitioner’s wife and children have had to remain in Delhi to defend the criminal cases while he is presently posted in Kerala. Consequently, his matrimonial life has been badly disrupted. His entire family was undergoing severe mental agony on Crl.M.C. No. 167/2008 Page 6 of 31 account of the mala fides of the Respondent No.1. It is pointed that at the time of the search the Respondent No.1 wrongly claimed that some of the jewellery worn by the petitioner’s wife belonged to Respondent No.1 and on that basis she got them removed. Thereafter when it was found that these were not her jewellery, Respondent No.1 attempted to return them. However, on some legal advice she decided to retain them. Even prior to the date of search, Respondent No.1 gave a hand written application on 30th August 2003 at the P.S. Tilak Marg. According to Respondent No.1 during the search that took place on 1st September 2003, the petitioner was talking on phone to someone in Mukerjee Nagar about the quilts and pillow covers and the Respondent No.1’s husband Sumit Arora was having tea with two Constables. However in her application in the court of the learned MM made on the next day i.e. 2nd September 2003 for the release to her of the articles seized during the raid, the case made out by the Respondent No.1 was that it was Sumit Arora who was on the phone enquiring about the pillow covers. Her allegation against the IO Kamlesh was also inconsistent. It is submitted that the learned MM erred in ignoring the evidence of the SI Kamlesh who was very much present at the spot. SI Kamlesh did not support the version of the Respondent No.1. Mr. Kalappa places reliance on judgments in State of Haryana v. Bhajan Lal AIR 1992 SC 604, Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736 and KLE Society v. Siddalingesh (2008) 4 SCC 541. 8. Appearing on behalf of Respondent No.1, Mr. Ashok Sethi, learned counsel, submits that the so called investigation by the police of P.S. Crl.M.C. No. 167/2008 Page 7 of 31 Tilak Marg into the incident was an eye-wash. In the first place, the complainant herself was never examined by the SHO of P.S. Tilak Marg who was entrusted with the enquiry. The two Constables who supposedly accompanied the search party gave identical statements which when compared showed that they were probably prepared by the SHO himself. The closure report mentioned the watchman of the M.S. Apartments as having been examined. The duty roster of the watchman showed that the said person never on duty at the time the alleged incident took place. It is accordingly submitted that the learned MM was justified in ignoring the cancellation report which was full of contradictions and in basing the impugned order on the pre-summoning evidence. 9. It is further submitted by Mr.Sethi that the issues raised by the petitioner involve disputed questions of fact which cannot be examined in a petition under Section 482 CrPC. It is submitted that the proceedings under Section 498A, 406 IPC were being pursued bona fide and the mere pendency of those proceedings cannot be used to impugn mala fides to Respondent No.1. It is submitted that the police were clearly acting in connivance with the petitioner and the Respondent No.1 was in fact a victim of the said conspiracy. It is apprehended that in view of the fact that the petitioner was an IAS Officer he was able to wield influence. It is submitted that malafides had to be proved and not merely alleged. Reliance was placed on the judgment in State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542 and State of Karnataka v. M. Devendrappa (2002) 3 SCC 89. In support of the proposition that the Crl.M.C. No. 167/2008 Page 8 of 31 FIR need not be an encyclopedia and give in great detail all that happened, and that by analogy the complaint also need not give the complete details, a reference was made to the judgments in State of U.P. v. Ballabh Das AIR 1985 SC 1384 and Surjit Singh v. State of Punjab AIR 1992 SC 1789. 10. The submissions of the learned counsel have been considered. The law concerning the scope of the powers of this Court under Section 482 CrPC is well settled and requires no reiteration. For the purposes of the present case, some of the illustrative instances, warranting interference by the High Court, as set out in the decision in Bhajan Lal may be noticed. These are (AIR, p.629): “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of Crl.M.C. No. 167/2008 Page 9 of 31 which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” In Indian Oil Corporation v. NEPC, the law was again explained as under (SCC, p.748): “(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. Crl.M.C. No. 167/2008 Page 10 of 31 (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 11. In FIR No. 263 of 2003 registered at P.S. Rajouri Garden, Respondent No.1 alleged that she had been subjected to cruelty by her in-laws. The allegation inter alia was that the in-laws had retained 160 tolas of gold given by the parents of Respondent No.1 to her husband at the time of marriage. An application was filed by the Respondent No.1 Crl.M.C. No. 167/2008 Page 11 of 31 in the said FIR in the court of the learned MM on 30th August 2003 stating inter alia as under: “1. That the applicant is the complainant in the above FIR and she has been trying since the date of registration of the FIR with the police and I.O. to get her entire Istridhan recovered which includes 160 tolas of gold jewellery and 17 kgs. of silver ware and silver utensils apart from 14 tolas of additional of gold jewellery with the accused Puneet Kumar and Meeta Kumar. 2. That since 10th April 2003 i.e. from the date of registration of FIR the complainant has time and again requesting the police concerned to do the recovery and the complainant has been opposing the anticipatory bail aforesaid accused persons and Hon’ble Sessions Courts has dismissed the anticipatory bail of all accused persons and they applied to the Hon’ble High Court of Delhi for their anticipatory bail and they got interim protection but during the continuancy (sic) of the interim protection time and again the complainant requested the I.O. to conduct the raid to recover the Istridhan but nothing moved and there was zero recovery.” 12. It was further contended in the said application that on 28th July 2003 the High Court had granted anticipatory bail to the other accused but declined the application of the husband Sumit Arora since the stridhan articles were yet to be recovered. The police were delaying the arrest of the husband. It was alleged that in para 4 of the application as under: “On 30.8.2003 the complainant has come to know that her Istridhan is being hidden at premises No.D1 M.S. Apartment Tilak Lane, New Delhi and then immediately the complainant submitted a complainant to SHO/IO concerned and requested to conduct the raid at premises No.D1, M.S. Apartment, Tilak Lane and similar application also submitted to D.C.P. concerned but till Crl.M.C. No. 167/2008 Page 12 of 31 now police has done nothing and they are killing time that there is no police force and it will take time to arrange police force on one pretext or the other. The police is doing to help the accused persons to remove and hide the Istridhan hence this application for proper direction. It is, therefore, prayed that in view of the above direction be issued to the concerned I.O./S.H.O. to conduct raid simultaneously at the premises of the accused Puneet Kumar, Meeta Kumar at D-1 M.S. Apartment, Tilak Lane, New Delhi and the residence of the accused T.R. Arora and Mrs. Vanita Arota at 1361, Dr. Mukherjee Nagar, so as no shifting of goods/Istridhan takes place and I.O. also be directed to find out the details of lockers be also searched and all articles of complainant be seized as the complainant is having apprehension and police is helping the accused persons.” 13. On the same day an application was filed by Sumit Arora that he may be allowed to surrender before the learned MM. It was mentioned that he and the other accused had joined the investigation and cooperated with police officials (at the CAW Cell) and had tried their level best to return such of the dowry articles which were with them, but no action was taken on such request. 14. In the application of the Respondent No.1 the learned MM ordered a warrant to be issued for the search of the petitioner’s premises at D-1 M.S. Apartment, Tilak Lane, New Delhi. It appears that prior to proceeding to the petitioner’s premises along with the police party on 1st September 2003, Respondent No.1 gave a letter to the SHO PS Tilak Lane in Hindi, the English Translation of which reads as under: Crl.M.C. No. 167/2008 Page 13 of 31 “Sir I, Vandana complainant in FIR No. 263/03, today dated ******** 01/9 time around 5.50 PM to 9.30 PM today I went to my Nandoi, Mrs Meeta Kumar and Mr Puneet Kumar’s residence D-1, M.S. Apartments, Tilak Lane, New Delhi along with the copy of search warrant from the court and I.O. went to their residence, I along with I.O. Kamlesh went to the recovery. I have to go alone although I have requested repeatedly that my Nanaji who is an advocate and is 76 years old to be permitted along with me but Police did not give permission. During the search I found some gold jewellery and an old suit which they permitted me to pick and other gold jewellery and other articles which I wanted to pick was not permitted by Mr. Puneet Kumar and Mrs Meeta Kumar. During the search in one of the room in which Mr Puneet Kumar and I.O were along with me, then I.O. went out of the room for some time and I was alone then Puneet Kumar humiliated me using obscene words and actions and I cried aloud and called the police and I started crying and my legs were trembling and my health started deteriorating and then search was stopped and we came out. I am filing this report so that an appropriate action could be taken. Thanking you Vandana (Complainant) R/o 28/3A, Rajouri Garden New Delhi-110 027” 15. It requires to be noticed that the date 1st September 2003 appearing in the above letter appears to be an overwriting with the earlier date Crl.M.C. No. 167/2008 Page 14 of 31 written as 30th August 2003. The search took place in the premises of the petitioner up to 9 pm on 1st September 2003. As already noticed, Respondent No.1 was accompanied by two Constables as well as IO Kamlesh. The English translation of the seizure memo drawn up by IO Kamlesh in the presence of the witnesses and Respondent No.1 reads as under: “Seizure Memo of Stridhan In the presence of witnesses, the complainant in the above case got the house of sister-in-law Smt. Meeta Kumar D-1, M.S. Apartment, Tilak Lane searched in the presence of Smt. Meeta Kumar and Sh. Punit Kumar and Sumit Kumar Arora and on identification of articles claimed by the complainant were taken into police custody and possession as evidence through seizure memo and deposited in the Malkhana, which are as under: 1. One necklace yellow colour. 2. One chain yellow colour. 3. One ear Kante (Jarkan) 8 small jerkins one big jarkan. 4. One pair ear Kante(Jarkan) single jarkan. 5. One pair coca (Tops) yellow colour. 6. One old suit Mauve colour. 7. One C.D. in search of love. Sd/- Sunit Arora Sd/- Meeta Arora 1.9.03, 9.00 PM Sd/- Vandana 01.9.03 Time 9.00 P.M. Sd/- Ct.Narender No. 1850 W CAW Cell Attested Sd/- Kamlesh, SI CAW Cell/West 01.9.03 Note : Packet has been sealed with seal I.S.c. Sd/ Kamlesh.SI CAW Cell/West 1.9.03” Crl.M.C. No. 167/2008 Page 15 of 31 16. On 1st September 2003 itself at around 9.30 p.m., the complainant gave the following complaint in writing to the SHO, Tilak Lane in Hindi, the English translation of which reads: “To The SHO Police Station Tilak Lane New Delhi Sub: FIR No. 263/03, P.S. Rajouri Garden u/s 498A, 406, 34 IPC. Sir I, Vandana complainant in FIR No. 263/03, today dated ******** 01/9 time around 5.50 PM to 9.30 PM today I went to my Nandoi, Mrs Meeta Kumar and Mr Puneet Kumar’s residence D-1, M.S. Apartments, Tilak Lane, New Delhi along with the copy of search warrant from the court and I.O. went to their residence, I along with I.O. Kamlesh went to the recovery. I have to go alone although I have requested repeatedly that my Nanaji who is an advocate and is 76 years old