Delhi High Court
Kanwaljeet Dhammi vs State Of Nct Of Delhi on 13 January, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:13.01.2025
+ CRL.REV.P. 11/2023
KANWALJEET DHAMMI .....Petitioner
versus
STATE OF NCT OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Jayant K. Sud, Sr. Adv. with Mr.
Shivam Jasra, Mr. Kartik Jasra, Ms. Vidhi
Sharma, Mr. Sai Manik Sud, Ms. Shayal
Anand, Mr. Prannit Stefano, Mr. Gaurav
Meghwal & Mr. Akash Basoya, Advs.
For the Respondent : Mr. Ajay Vikram Singh, APP for the State.
SI Anup Rana.
Mr. Ajay Malhotra with Mr. Angad Singh
Khanna, Advs. for R-2.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed under Section 397 read with Section
482 of the Code of Criminal Procedure, 1973 (‘CrPC‘) challenging
the order dated 30.09.2022, passed by the learned Trial Court, in SC
No. 67/2021 arising out of FIR No. 724/2020, registered at Police
Station Paschim Vihar West, whereby formal charge for the offences
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punishable under Sections 376(2)(n)/506 of the Indian Penal Code,
1860 (‘IPC‘) was framed against the petitioner.
2. At the outset, it is noted that the name of the prosecutrix has
erroneously not been masked in the case record as well as order dated
06.01.2023, passed by a Cordinate Bench in the matter, wherein an
oral request was made to implead Respondent No.2. It is trite law that
in sensitive matters as the present one, the name and identity of the
victim ought not to be mentioned. Therefore, this Court considers it
apposite to direct the Registry to redact the name and identity of the
prosecutrix in the entire case record, including the previous order.
3. The brief facts of the present case are as follows:
3.1. On 31.08.2020, FIR No. 724/2020 was registered at Police
Station Paschim Vihar West for the offences under Sections
376/354/506/323 of the IPC. The petitioner is the younger brother of
Respondent No.2’s father. Respondent No.2 along with her mother
and three brothers had shifted to the residence of the petitioner in the
year 1988, after the death of her father. Respondent No.2 at that time
was only 10 years of age. It is alleged that sometimes when there were
no other members in the house, the petitioner used to forcefully catch
Respondent No.2 on some pretext and take her to the bathroom on the
terrace. It is alleged that the petitioner used to rape Respondent No.2
in the bathroom and when she protested, he threatened to kill
Respondent No.2’s mother and brothers. Even though Respondent
No.2 complained to her mother about the same, however, she
allegedly took no action as she had no source of income and was
dependant on the petitioner. It is further alleged that on one day, when
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Respondent No.2 was sleeping in her room, the petitioner took her to
his room and raped her there. It is alleged that the petitioner kept
raping Respondent No.2 by taking advantage of her circumstances.
The petitioner allegedly also administered some drugs to Respondent
No.2 and her health allegedly started deteriorating due to the same.
Respondent No.2’s mother allegedly scolded the petitioner whereafter
he had given beatings to Respondent No.2 and her mother. It is alleged
that Respondent No.2’s mother made a complaint to the police,
however, the matter was buried after the petitioner apologised. It is
further alleged that the petitioner again started raping Respondent
No.2 whereafter Respondent No.2 and her family shifted to a separate
house. The petitioner allegedly started threatening Respondent No.2
that he will defame her by showing her video to people. The petitioner
allegedly also threatened to implicate Respondent No.2’s brothers in a
false theft case.
3.2. In her statement under Section 164 of the CrPC, Respondent
No.2 reiterated the allegations. She stated that the incidents relate back
to the year 1988 when she and her family had shifted to the house in
Paschim Vihar. She stated that the petitioner used to rape her in the
bathroom on the roof. She also stated that he used to give her a
medicine and rape her during the day, and he used to threaten her that
he will throw out her mother and brothers from the house if she told
anyone about the incidents. She alleged that she had told her mother
about the same in the year 1988 itself who in turn told her
grandparents, however, they pressurised Respondent No.2 and her
mother to not report the incidents to the police. In the year 1990,
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Respondent No.2 and her family started living separately from the
petitioner, however, the petitioner used to rape her repeatedly
whenever her mother used to go to Punjab for collecting the pension.
She also alleged that the petitioner was threatening her to take back
the case and to tell everything to her husband.
3.3. Chargesheet was filed against the petitioner for the offences
under Sections 376(2)(f)/323/354/506 of the IPC. During
investigation, no information could be found about the earlier
complaint as the record had been destroyed. The petitioner was
interrogated who informed that property disputes were going on
between him and his brother’s family. It was found that FIR No.
52/2009 had been registered at the instance of the petitioner’s son
against the brother of the complainant for offences under Sections
420/468/471/448/34 of the IPC. It was noted that the petitioner was
not arrested as no evidence had come on file against him.
3.4. The petitioner preferred an application seeking further
investigation in relation to photographs of Respondent No.2 and the
petitioner in family functions, video recording of Respondent No.2 in
the petitioner’s house, statement of the petitioner’s relatives, etc.,
which was dismissed by the learned Trial Court by order dated
04.12.2021. The petitioner challenged the said order before this Court
in CRL.M.C. 1236/2022. By order dated 25.03.2022, this Court
directed that all documents/ records be placed before the learned Trial
Court and considered as per law at the time of arguments on charge.
3.5. By order on charge dated 17.09.2022, after going through the
complaint as well as the statement of Respondent No.2 under Section
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164 of the CrPC, the learned Trial Court found that a prima facie case
is made out against the petitioner for the offences under Sections
376(2)(n)/ 506 of the IPC. It was observed that on perusal of the
documents adduced by the petitioner, it is not made out that the
prosecution case is absurd. It was noted that the photographs merely
present the probability of the relation between the parties and the
affidavits of the relatives are of no assistance till the deponents aren’t
present in the witness box.
3.6. By the impugned order, formal charges were framed against the
petitioner.
4. The learned senior counsel for the petitioner submitted that the
allegations relate back to incidents that allegedly took place more than
30 years back and they are not substantiated by any evidence. He
submitted that the complaint has been made with the sole intention of
arm twisting the petitioner into withdrawing the FIR registered against
the brother of Respondent No.2.
5. He submitted that the petitioner had been receiving threats from
Respondent No.2 and her family members that he will be falsely
implicated if he did not take back the case against her brother and he
had made two complaints on 16.08.2020 and 28.08.2020 in relation to
the same.
6. He submitted that the petitioner and Respondent No.2 had never
lived together during the time of the alleged offence and there were 20
family members living in the house of 200 sq. yards. He submitted
that as per the owner of the house where the incidents allegedly took
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place, the roof and bathroom were never in possession of the petitioner
and his family members.
7. He submitted that the photographs show that the parties were
attending functions and shared a cordial relationship.
8. He submitted that even though, Respondent No.2 got married in
the year 1999, however, there is an unexplained inordinate delay in
filing of the complaint and the same is fatal to the case of the
prosecution. He further submits that it has been acknowledged in the
chargesheet that no evidence was found against the petitioner and the
entire case is based on the statement of the prosecutrix under Section
164 of the CrPC.
9. Per contra, the learned Additional Public Prosecutor for the
State submitted that the learned Trial Court has adequately appreciated
the material on record. He submitted that the contents of the FIR and
the statement of the victim recorded under section 164 of the CrPC
make out a prima facie case against the petitioner.
10. The learned counsel for Respondent No.2 vehemently opposes
the present petition and submitted that the allegations in the present
case are heinous in nature as Respondent No.2 was repeatedly raped
by the petitioner when she was merely 10 years old.
11. He submitted that the arguments taken by the petitioner are in
the nature of defence and they cannot be examined by the Court at this
stage.
12. He submitted that it is settled law that the mere statement of the
prosecutrix under Section 164 of the CrPC is sufficient to make out a
case against the accused and it is to be only seen that the same
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provides a ground for proceeding against the accused. He submitted
that the allegations made against the petitioner are clear and specific
and the petitioner is liable to face trial.
13. He submitted that Respondent No.2 has made specific
allegations against the petitioner and she cannot be precluded from
proving the allegations in trial.
ANALYSIS
14. At the outset, it is relevant to note that the scope of interference
by High Courts while exercising revisional jurisdiction in a challenge
to order framing charge is well settled. The power ought to be
exercised sparingly, in the interest of justice, so as to not impede the
trial unnecessarily. It is not open to the Court to misconstrue the
revisional proceedings as an appeal and reappreciate the evidence
unless any glaring perversity is brought to its notice.
15. Since the petitioner has assailed the impugned order whereby
the respondent has been charged for the offences under Section
376(2)(n)/506 of the IPC, it will be apposite to succinctly discuss the
statutory law with respect to framing of charge and discharge as
provided under Sections 227 and 228 of the CrPC. The same is set out
below:
“227. Discharge
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons for
so doing.
228. Framing of Charge
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(1) If, after such consideration and hearing as aforesaid, the Judge
is of opinion that there is ground for presuming that the accused
has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame
a charge against the accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, or any other Judicial
Magistrate of the first class and direct the accused to appear
before the Chief Judicial Magistrate, or, as the case may be, the
Judicial Magistrate of the first class, on such date as he deems fit,
and thereupon such Magistrate shall try the offence in accordance
with the procedure for the trial of warrant cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
subsection (1), the charge shall be read and explained to the
accused and the accused shall be asked whether he pleads guilty of
the offence charged or claims to be tried.”
16. It is trite law that the learned Trial Court while framing charges
is not required to conduct a mini-trial and has to merely weigh the
material on record to ascertain whether the ingredients constituting the
alleged offence are prima facie made out against the accused persons.
The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI : (2010)
9 SCC 368, has culled out the following principles in regards to the
scope of Sections 227 and 228 of the CrPC:
“21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the
charges under Section 227 CrPC has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been
made out. The test to determine prima facie case would depend
upon the facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge
and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece
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the case, the total effect of the evidence and the documents
produced before the court, any basic infirmities, etc. However, at
this stage, there cannot be a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.
(iv) If on the basis of the material on record, the court could form
an opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is
required to be proved beyond reasonable doubt that the accused
has committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a
charge the court must apply its judicial mind on the material
placed on record and must be satisfied that the commission of
offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to
find out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the
alleged offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to common
sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.”
(emphasis supplied)
17. In a recent decision in State of Gujarat v. Dilipsinh Kishorsinh
Rao : 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has
discussed the parameters that would be appropriate to keep in mind at
the stage of framing of charge/discharge, as under:
“7. It is trite law that application of judicial mind being necessary
to determine whether a case has been made out by the prosecution
for proceeding with trial and it would not be necessary to dwell
into the pros and cons of the matter by examining the defence of
the accused when an application for discharge is filed. At that
stage, the trial judge has to merely examine the evidence placed by
the prosecution in order to determine whether or not the grounds
are sufficient to proceed against the accused on basis of charge
sheet material. The nature of the evidence recorded or collected
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by the investigating agency or the documents produced in which
prima facie it reveals that there are suspicious circumstances
against the accused, so as to frame a charge would suffice and
such material would be taken into account for the purposes of
framing the charge. If there is no sufficient ground for
proceeding against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for presuming
that accused has committed the offence which is triable, then
necessarily charge has to be framed.
xxx
12. The primary consideration at the stage of framing of charge
is the test of existence of a prima-facie case, and at this stage, the
probative value of materials on record need not be gone into. This
Court by referring to its earlier decisions in the State of
Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State
of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of
evaluation to be made by the court at the stage of framing of the
charge is to test the existence of prima-facie case. It is also held at
the stage of framing of charge, the court has to form a presumptive
opinion to the existence of factual ingredients constituting the
offence alleged and it is not expected to go deep into probative
value of the material on record and to check whether the material
on record would certainly lead to conviction at the conclusion of
trial.”
(emphasis supplied)
18. In view of the above, it is clear that this Court, at this stage, is
not required to revaluate the evidence or hold a mini trial as the same
would tantamount to this Court assuming appellate jurisdiction. Thus,
all that has to be seen is whether the learned Trial Court has
adequately appreciated the material on record and whether, given the
material placed before it, there is grave suspicion against the accused
which is not properly explained.
19. It is the case of the prosecution that the petitioner, who is the
younger brother of Respondent No.2’s father, had taken advantage of
the financial position of Respondent No.2’s family and raped her
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multiple times in the year 1988 when Respondent No.2 was merely 10
years old.
20. The case of the prosecution in the present case is essentially
based on the statement of Respondent No.2.
21. A bare perusal of the order on charge dated 17.09.2022 shows
that the learned Trial Court has merely observed that a prima facie
case is made out from the complaint relying upon the statement made
by the prosecutrix under Section 164 of the CrPC.
22. Undisputably, mere testimony of the prosecutrix can be
sufficient for the purpose of conviction for the offence under Section
376 of the IPC and the same requires no corroboration. However, even
at the stage of framing charges as well, when the primary material on
record is only the statement of the prosecutrix, the Court after
considering the attending circumstances and other material has to
consider whether the same inspires such confidence so as to give rise
to grave suspicion against the accused person of having committed the
crime.
23. The primary thrust of the petitioner is on the argument that there
is a mammoth unexplained delay in registration of the FIR and that the
same was registered as a counter blast to an FIR registered at the
instance of the petitioner’s son against Respondent No.2’s brother.
24. The petitioner has also invoked the inherent jurisdiction of this
Court in the present case. It is argued that the proceedings are
manifestly frivolous and they have been instituted to wreak vengeance
against the petitioner. The petitioner has sought to put forth some
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photographs showing amicable relations between the families as well
as affidavits of certain family members.
25. Reliance has been placed on the case of Suresh Garodia v.
State of Assam : 2024 SCC OnLine SC 38, where the Hon’ble Apex
Court quashed the FIR in a case involving similar circumstances on
account of the prosecutrix instituted action after 34 years of the
alleged incident. The relevant portion of the aforesaid judgment is
reproduced hereunder:
“12. This Court, in the case of State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335], has observed thus:
‘102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(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.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(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 of-fence and
make out a case against the accused.
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(4) Where, the allegations in the FIR 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
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(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. 103. We
also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the
rarest of rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or
inherent powers do not confer an arbitrary jurisdiction
on the court to act according to its whim or caprice.’
13. In the said case, the Court has given a caution that the power
of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of rare
cases. The Court would normally not embark upon an enquiry as to
the reliability or genuineness or otherwise of the allegations made
in the FIR or the complaint.
14. However, we find that the present case would fall under
category Nos. 5 and 7 of the categories of cases culled out by this
Court in the said case.
15. We find that lodging a case after 34 years and that too on the
basis of a bald statement that the prosecutrix was a minor at the
time of commission of offence, could itself be a ground to quash
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the proceedings. No explanation whatsoever is given in the FIR
as to why the prosecutrix was keeping silent for a long period of
34 years. The material on record shows that the relationship was
consensual, inasmuch as the son who is born out of the said
relationship has been treated by the appellant as his son and all
the facilities, including cash money, have been provided to him.”
(emphasis supplied)
26. From a bare perusal of the FIR as well as the complainant’s
statement under Section 164 of the CrPC, it is clear that the
prosecutrix has not provided any explanation as to why she did not file
an FIR for more than 34 years. Furthermore, it is stated in the
chargesheet itself that no evidence was found against the petitioner in
relation to the allegations levelled in the present case. Thus, no proof
was found by the Investigating Agency to substantiate the allegations
either.
27. While there is mention that the mother of Respondent No.2
initially did not take action due to financial dependence on the
petitioner and pressure from Respondent No.2’s grandparents,
however, even if the said factors are considered to be true, it is still not
explained as to why Respondent No.2 did not initiate any action
thereafter. It is stated in the FIR itself that Respondent No.2 along
with her family had started living separately from the petitioner.
28. It can also not be ignored that there is an ongoing dispute
between the families of the petitioner and Respondent No.2 in relation
to property and the parties have been litigating since the year 2009
when the son of the petitioner registered a case against the brother of
Respondent No.2, even after she had grown into an adult and gotten
married in the year 1999. The same clearly shows that there is some
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29. All the aforesaid factors lead this Court to believe that the
allegations as made in the FIR are concocted and merely an
afterthought to wreak vengeance against the petitioner.
30. While this Court is cognizant that it ought to exercise caution
before stifling proceedings before the parties have had an opportunity
to lead evidence, however, in the present case, the only material on
record to ignite any suspicion is the statement of the prosecutrix,
which does not inspire much confidence due to the attenuating
circumstances, especially considering the magnitude of delay.
31. The petitioner has also sought to bring on record certain
photographs to show amicable relations between the families of the
parties. It is contested that the learned Trial Court has rightly held that
the same merely reflect the probability of how the relations were
between the parties when the photographs were taken.
32. Without getting into the said issue, even without adverting to
the material put forth by the petitioner, in the opinion of this Court,
considering the totality of circumstances, grave suspicion is not raised
against the petitioner.
33. It is argued on behalf of Respondent No.2 that her brother has
also been falsely implicated in a rape case by his neighbour due to
pressure from the petitioner. Insofar as the case against Respondent
No.2’s brother is concerned, it is not the remit of this petition to
endeavour into the merits of the said matter and the same will be
adjudicated as per law.
34. This Court is of the opinion that the statement of the petitioner
does not inspire confidence and the material on record does not
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establish a prima facie case against the petitioner so as to warrant
subjecting the petitioner to a trial.
35. In view of the aforesaid discussion, the impugned order is set
aside and the petitioner is discharged in SC No. 67/2021 arising out of
FIR No. 724/2020, registered at Police Station Paschim Vihar West.
36. The present petition is allowed in the aforesaid terms.
AMIT MAHAJAN, J
JANUARY 13, 2025
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