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V.K.Singh

Advocate at Supreme Court of India.

www.vksnco.com

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases ,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

Contact :

Mobile : 91-9811645002

Email : lawofficevksingh@gmail.com

 

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. That, the prosecutrix has alleged that she met with accused when she get the invitation of attending the seminar on 13.12.2016 is also unbelievable as date 13.12.2016 was gazette holiday on the occasion of Milad-Un-Nabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail by ld. Defence counsel also reflects that no seminar / conference was held on 13.12.2016 at IIM, Noida, U.P. as it was gazette holiday nor any invitation letter issued from IIM, Noida to the prosecutrix has been placed on record nor the same was handed over by the prosecutrix to the I.O. at the time of the investigation of the present case FIR.

  1. … this witness has admitted that the entrance of the hotel is manned by security guard 24 hours and no one can enter in the hotel without permission of the guard and there are guidelines of Delhi Police not to allot any room to local resident of Delhi and they had checked the IDs of the guests before allotting them room and retained their copies and as the prosecutrix has supplied her I.D. proof and as per I.D. proof, she was not resident of Delhi and was allotted Room no.224 for one night and room no.223 was booked for 2 nights and they did not receive any complaint from any guest of the aforesaid rooms during their stay. .. she could have brought the incident to the notice to the guard of that hotel or could have make a call to the police or to inform the manager or to the waiter or could have easily come out from the hotel room to make a call to the police or raised an alarm but she did not make any call nor bring the notice of hotel staff or to any one of the alleged incident of rape.

.. There is delay of 32 days to report the matter to the police and the prosecutrix is not been able to explain the delay to lodge the complaint to the police for the alleged offence of rape….

xxx xxx xxx

  1. That, there is no evidence in respect of intoxicated substance allegedly given by the accused to the prosecutrix in a coffee and there is no medical report in this regard and the prosecution is not able to prove the same against the accused.
  2. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charges of the offence u/s328/376(2)(n)/343/506 IPCagainst the accused beyond reasonable doubt and hence, accused XXXXXXX  is hereby acquitted from the charges punishable u/s 328/376(2)(n)/343/506 IPC.”

(emphasis supplied)

The appellant-prosecutrix submits that the Trial Court had failed to appreciate that there is a presumption under Section 114A of the Indian Evidence Act, 1872, as to absence of consent in a case for prosecution of the offence under Section 376IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) IPC had shifted to the accused-respondent no. 2.

The appellant-prosecutrix further contends that the Trial Court had erred in not appreciating the fact that the appellant- prosecutrix is a chronic asthmatic patient, cannot do regular activities without medication, has a physical deformity in her left leg and is also suffering from cerebral palsy due to which it is difficult for her to raise her voice even in an emergency situation.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

In the present case, it is noteworthy that the appellant-prosecutrix had refused internal medical examination.

Further this Court is in agreement with the view of the Trial Court that testimony of the appellant-prosecutrix is ‘highly unreliable’, ‘untrustworthy’ and ‘inspires no confidence’ for the following reasons:-

  1. The appellant-prosecutrix alleged that she had received an invitation to attend a seminar on 13th December, 2016 at IIM, Noida. However, 13th December, 2016 was a gazetted holiday on the occasion of Milad- Un-Nabi (Birthday of Mohammad). Furthermore, the RTI reply sent by IIM, Noida stated that on account of the gazetted holiday, there was no seminar scheduled for 13th December, 2016 and they had not sent any invitation to the appellant-prosecutrix. B. There is a major contradiction in the statement of the appellant-

prosecutrix inasmuch as, in the written complaint dated 05th January, 2017 made to the DCP, Dwarka, and the complaint dated 17th January, 2017 to the SHO PS Pahar Ganj, the appellant-prosecutrix had not mentioned that she had come in contact with the accused-respondent no. 2 through LinkedIn for the purpose of research work. However, she has mentioned the aforesaid fact in her statement before the Court.

  1. The appellant-prosecutrix had submitted her I.D. proof to the hotel and in the same she had mentioned her address of Aligarh, UP as Delhi Police Guidelines do not permit the hotel to allot a room to a local Delhi resident.
  2. The entrance of the hotel room is manned by security guards 24 hours and no one can enter the hotel without the permission of the guard. The appellant-prosecutrix could have easily come out of the hotel room to make a call to the police or raise an alarm or could have requested any of the hotel staff to make a call. The appellant- prosecutrix is mobile and does not suffer from such a serious disability that she could not have raised an alarm.

Appellant-prosecutrix had made 529 calls to accused-respondent no.2 between 16th December, 2016 (after the date of rape) to 29th January, 2017 (before filing of the complaint). Her act of making so many repeated calls is not consistent with her allegations.

Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to enure to the benefit of the accused-respondent no. 2. Consequently, the present appeal being bereft of merits, is dismissed.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 626/2019 & CRL.M.As. 10219-10221/2019

XXXXXXXXXXXXX             ….. Appellant

versus

STATE AND ANR.                ….. Respondents

 

 

in view of the judgment of the Allahabad High Court in Sukhwasi v. State of Uttar Pradesh [2007 (59) ACC 739], a petition under Section 156(3) CrPC could well be considered to be a complaint and proceeded with on that basis.

In the judgment of the Supreme Court in Tapinder Singh v. State of Punjab AIR 1970 SC 1566 to contend that no enquiry or investigation can be undertaken by the police without the prior registration of an FIR.

In the judgment in Madhu Bala v. Suresh Kumar (1997) 8 SCC 476, it was submitted that the application under Section 156(3) CrPC could be treated as a complaint. If the learned MM differed with the view expressed by the police in the status report, he could proceed to record the complainant‟s evidence. It is further contended that under Section 460 CrPC, the irregularity in the magistrate taking cognizance under Section 190(1)(a) or (b) is a curable one and the criminal proceedings do not get vitiated on that score.

Although the Supreme Court  in P.Sirajuddin v. State of Madras AIR 1970 SC 520 held that it is permissible for the police to conduct a preliminary enquiry even before the registration of an FIR, those observations were not in the context of the order passed by the a Magistrate while exercising powers under Section 156 (3) CrPC. That section makes it clear that the only option available thereunder to the Magistrate is to order “an investigation.” There is nothing in Section 156 (3) CrPC to suggest that a Magistrate can ask for a „status report‟ from the police which is not meant to be a report of investigation in terms of Section 173 (1) CrPC. Even if the Magistrate does not expressly pass an order to that effect, when pursuant to an application under Section 156 (3) CrPC he asks for a report from the police, the police has to register an FIR and submit a report of investigation. Even if no FIR is formally registered but a detailed investigation is carried out and a report submitted, the learned Magistrate is bound to apply his mind to such report and discuss its contents before proceeding to the next stage.

. In Madhu Bala v. Suresh Kumar, the Supreme Court in para 10 observed as under:

“From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking, the police to ‘register a case’ makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable ‘case’ and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be ‘to register a case at the police station treating the complaint as the First Information Report and investigate into the same.” (emphasis supplied).

The Supreme Court in H.S. Bains v. U.T. of Chandigarh (supra). There the Supreme Court explained the courses open to the learned MM to follow upon receipt of such report by the police as under (SCC @ p. 634-35):

“It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”

In Hemant Dhasmana v. CBI (supra) the Supreme Court revisited the law on the topic and in para 15, it was observed as under (SCC @ p. 542-43):

“15. When the report is filed under the Sub-section the magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offence were also detected, the Court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contract conclusions made by the investigating officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging there from and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code.”

A reference was made to the judgment of the three-Judge Bench in Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537 where again the three options open to the court on a receipt of the report under Section 173(2) CrPC were discussed. Those three options read as under (SCC @ p.543

“(1) The court may accept the report and drop the proceedings; or (2) the court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) the court may direct further investigation to be made by the police.”