IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CRIMINAL PROCEDURE CODE. Judgment delivered on: WP (Crl.) No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CRIMINAL PROCEDURE CODE Judgment delivered on: WP (Crl.) No. 151/1999 SMT. KAMINI... Petitioner - versus - THE STATE and OTHERS... Respondents Advocates who appeared in this case: For the Petitioner : Mr Ashok Arora with Mr R. K. Sharma For the Respondent : Ms Mukta Gupta with Ms Rajdeepa Behura BADAR DURREZ AHMED, J (ORAL) 1. This writ petition was heard along with two other writ petitions being W. P (Crl.) 130/1999 and W. P (Crl.) 152/1999 which had been filed on behalf of other co-accused. The Hon'ble Judges of the Division Bench (V. S. Aggarwal and B. A. Khan, JJ.) hearing all the three writ petitions were in agreement that the Writ Petition (Crl) Nos. 130/1999 and 152/1999 were entitled to succeed. Consequently, insofar as the co-accused were concerned, their writ petitions succeeded and the Magistrate's impugned summoning order and pending criminal proceedings against them stood quashed. With regard to the present petitioner (Smt. Kamini), there was a difference of opinion amongst the two Hon'ble Judges. According to V. S. Aggarwal, J. the petitioner's writ petition was liable to be dismissed whereas according to B. A. Khan, J. the present writ petition of Smt. Kamini was also liable to succeed and the proceedings against her were liable to be quashed. In view of this difference of opinion between the said two Hon'ble Judges, as indicated in their separate opinions dated , the following order of reference to a third Judge was passed by that Bench on the same date:- We have prepared separate judgments allowing Crl. WP Nos. 130/99 and 152/99. A difference of opinion has, however, arisen on Crl. W.P. 151/99 filed by writ petitioner Kamini which is allowed by Khan, J. in consideration of totality of circumstances including inferable complainant's malafides but which is dismissed by Aggarwal, J. on the ground that complainant's malafides could be looked into by the trial court only and it was not for this court to conduct a probe or a meticulous examination of the allegations of the complaint with a view to quash it in exercise of its inherent or writ jurisdiction. This difference has converged on the following question:- (1) Whether Crl. W. 151/99 filed by Smt. Kamini was liable to be allowed or dismissed in the facts and circumstances of the case and whether this court was barred from considering the complainant's malafide even though inferable from the record of the case for exercising its inherent and writ power and whether it was trial court alone who could look into it Registry is directed to place the matter before Lord Chief Justice for an appropriate reference under Rules and till its outcome becomes known, criminal proceedings against writ petitioner Kamini shall stay meanwhile. 2. The counsel for the parties have been heard at length. The facts are indicated in the said two opinions of V. S. Aggarwal and B. A. Khan, JJ. And need not be repeated in detail.

2 However, for the purposes of felicity, three documents need to be considered and they are the complaint, the Section 161 Cr. P.C. statement of one Smt. Maya Devi and the Section 161 Cr. P. C. statement of Smt. Inderjeet Sethi. The same read as under:- COMPLAINT The Station House Officer Model Town Police Station Delhi-9. Sir, I am a resident of Flat No.7 and 8 Ground Floor, B-Block, Bijli Apartment, G.T. Karnal Road, Delhi. There is one Mrs. Kamini 2nd wife of Sh. Hira Lal Asrani who is living in Flat No. B-28, above the flat of the applicant. On 28th June, 96, in the afternoon she trespassed into my flat forcibly with about 10 other ladies resident of other flats. I was alone in the house. They started abusing and beating me. Mrs. Kamini is a special police officer, press photographer and reporter's as per her name plate. She lead of all the ladies. She beat me with her sandles and pressed my throat to kill me. She is continuing to threaten to kill me. Her husband Shri Hira Lal Asrani is at present President of the voluntary society of resident. She claims herself to be president of the society and a police officer. Please save me from her and her associated ladies and gents who are also threatening to kill even my husband. She has complained against my husband on the basis of hearsay. My husband Sudhir Kumar was not at home when they trespassed into my house and attacked me. The name of other ladies accompanying in the trespass and attack may be checked from her. One elderly lady from the other flat above my flat on hearing the commotion came rushing and saved me from their clutches. Kindly save me and my husband life from them and oblige. Yours faithfully. (SAROJ BAHL W/O Sh. Sudhir Bahl) Flat No.7 and 8 Dated B Block, Bijli Apartment G.T. Karnal Road Delhi-33. (underlining added) STATEMENT OF SMT. MAYA DEVI Statement u/s 161 Cr. P.C. Statement of Smt. Maya w/o Ishwar Singh r/o B/38, Bijli Apartment, G.T. Karnal Road, Delhi. Stated that I am residing in the above address and I am house wife and I am working as a maid servant. On , I was present in the house of my landlady Smt. Saroj Bahl who was also present in the house. I know Smt. Kamini from before and she alongwith some ladies came to the house and started assaulting my landlady Saroj Bahl and on hearing the noise our neighbour Mrs. Inderjeet Sethi also came under and with her help I and Mrs Sethi rescued Saroj Bahl. I do not know other women except Mrs. Kamini. Legal action be taken against her. Statement heard and found correct. Sd/- S.J. PS Model Town Dt (underlining added) STATEMENT OF SMT. INDERJEET SETHI Statement u/s 161 Cr. P.C. Statement of Smt. Inderjeet Sethi, r/o B/33 and 34, Bijli Apartments, G.T. Karnal Road, Delhi. Stated that I am residing in the above address and am a house wife. On , I was present at my house and on hearing the noise from the house of Smt. Saroj Bahl who is residing in my neighbour, I reached there and saw that Smt. Kamini, who is residing at B-28 to whom I know earlier, was accompanied with some ladies and was abusing Smt. Bahl and was beating Smt. Saroj Bahl with chappals whom I and the maid servant of Smt. Saroj Bahl rescued. I do not know the other ladies accompanying Mrs. Kamini. Legal action be taken against her. Statement heard and found correct. Sd/- PS Model Town Dt (underlining added) 3. The co-accused were the above 10 other ladies referred to in the said complaint. The proceedings against the said co-accused, as indicated above, have been quashed by both the Hon'ble Judges. Though, on different reasoning. While V. S. Aggarwal, J. was of the view that the co-accused were not identified or named, B. A. Khan J. was of the view that apart from the fact that the co- accused were not even named or identified, no cognizable offence was made out against them and their case fell under category 1 provided in the decision of the Supreme Court in the case of State of Haryana v. Bhajan Lal: 1992 Suppl. (1) SCC 335. Insofar as the present petitioner is concerned, V. S. Aggarwal, J. was of the view that her petition must fail on the basis of the following reasoning:- 30. It is on the basis of the same that the First Information Report has been recorded. Statement of Mrs. Maya who is stated to be a maid servant has also been recorded and even she recites that she only knows Mrs. Kamini, one of the petitioners and does not name any of the other ladies. Another statement has been recorded of Inderjeet Sethi. The

3 name of Mrs. Kamini is taken but not any other lady. 31. At this stage if there are mala fides or not that has to be looked into by the trial court and no opinion is being expressed but it is patent that name of Mrs. Kamini, one of the petitioners is specifically mentioned in unambiguous terms, a role has been assigned to her in the complaining statement. Further probing or meticulous examination of whether the same would succeed or not is not required nor it would be proper for this court to look into the same. In the face of the aforesaid it is entirely for the trial court to look into all the facts and draw an appropriate conclusion in accordance with law. The petition of Mrs. Kamini must therefore fail. On the other hand, B. A. Khan, J. was of the view that the petition must succeed and that all criminal proceedings against the petitioner must be quashed. The reasoning adopted by him was as under:- Writ petitioner Kamini's case, however, does not fall in this category. It would, therefore, have to be seen whether FIR, summoning order and criminal proceedings in her case could be quashed otherwise. This necessitates an overall look at the circumstances of the case against her and brings us to the terms of the complaint and attendant surrounding circumstances. It is a common ground that Kamini's husband was claiming to be the President of residents welfare society who according to complainant was indulging in some illegal activities including organising of plantation of trees in front of complainant's flat. The complainant also admits in her complaint that Kamini had also filed a complaint against her husband on the basis of hear-say. She further alleges that she was alone in her house when Kamini and 10 other ladies entered and started abusing her and beating her with chappals and tried to press her throat. Given regard to terms of complainant's complaint, it appears curious that police had not recorded any evidence in the matter for two years after the alleged occurrence till one Maya Devi claiming to be the maid servant of the complainant and Mrs. Inderjeet Sethi, a neighbour surfaced to record their supporting statements. Even these two witnesses could not name the other 10 ladies (Writ petitioners) who allegedly accompanied Kamini. It is also surprising that the investigating agency had not subjected the complainant to any medical examination who had complained of beating by chappals and her throat being pressed to kill her. The police had also taken a few more months to present the report leading to the passing of the summoning order by the Magistrate overlooking the sequence of events and the back-drop of the case and without caring to ascertain and find out whether the allegations made in the complaint and the available supporting evidence was good enough to bring the charge home to the accused. All this leaves no scope for doubt that criminal proceedings against Kamini were also attended by complainant's revenge, her oblique purpose to use court process and to settle scores with the accused and were borne of an ulterior motive of wreaking vengeance and personal grudge. This is not to suggest that complainant's malafides constituted the sole basis for this conclusion or that it amounted to or determination of reliability or correctness of the allegations or prejudging the probabilities involved but to underscore an inevitable inferences that were liable to be drawn in the facts and circumstances of the case attracting the court's writ power to set at naught the criminal proceedings which it felt would not serve the ends of justice. Regard being had to Kamini's counter complaint having ended and the housewives inhibiting the Bijli Apartments including Kamini and complainant Saroj Bahl having spend as good as four years in this long drawn process and the Magistrate's summoning order having been passed in a routine manner, there is no escape from conclusion that continuation of criminal proceedings against Kamini also would be vexatious and would serve no purpose, least of all any ends of justice. Kamini's writ petition (Crl. W.151/99) is also consequently allowed and FIR No.408/97 and the summoning along with pending proceedings quashed against her. 4. Considering the facts of the present case, there are a few points which need to be noted. The first is that the complaint was in the handwriting of the complainant Smt. Saroj Bahl. It was signed by her. It was handed over to the Station House Officer of Model Town Police Station, Delhi on , that is, two days after the alleged incident which allegedly took place in the

4 afternoon of The FIR being FIR No. 408/1997 was itself registered under Section 452/506/323/34 PC after 11 months. The Section 161 statements of Smt. Maya Devi and Smt. Inderjeet Sethi were recorded on , that is, almost two years after the alleged incident. 5. It is common ground that the principles for quashing of criminal proceedings have been laid down in State of Haryana v. Bhajan Lal (supra). The said principles, which are not exhaustive, are as under:- (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 offence and make out a case against the accused. (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 engranfted in any of the provisions of the Code or the concerned Act (under which a Criminal proceedings 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 or personal grudge. In the reference order, the question that has been referred actually comprises of two parts. The first being whether the present petition was liable to be allowed or dismissed in the facts and circumstances of the case and the second part being whether this Court was barred from considering the complainant's malafides, even though, inferable from the record of the case for exercising its inherent and writ power and whether it was the trial court alone who could look into it. Insofar as the second question is concerned, looking to the illustrative categories given in State of Haryana v. Bhajan Lal (supra), it is obvious that when a matter for quashing comes before the High Court, the Court has to look at the First Information Report, the complaint and other materials, if any, accompanying the same which include the evidence collected in support of the same. If by looking at these materials, the Court can reach a conclusion that the criminal proceeding is manifestly attended with mala fides and / or is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him / her due to private or personal grudge, then as per the Supreme Court decision in State of Haryana v. Bhajan Lal (supra), it would be a fit case for quashing. Therefore, the second part of the question which has been referred to this Court can easily be answered by stating what is clearly discernible from the Supreme Court decision in the case of State of Haryana v. Bhajan Lal (supra) that the Court is not barred from considering the complainant's malafides, provided the same can be inferred from the FIR/ Complaint and other materials including the evidence, if any, collected in support of the same. In this respect, I would agree with the opinion of Justice B. A. Khan and respectfully disagree with the opinion of Justice V. S. Aggarwal that the matter has to be left to the trial court. The key is that to determine the mala fides, only the FIR/Complaint or the accompanying documents, as indicated above, can be looked into as provided by the Supreme Court. If the High Court can, by looking at these documents, discern any mala fides or malicious intent on the part of the complainant, then the High Court can certainly exercise its powers and quash the criminal

5 proceedings. It need not wait for determination of this issue by the trial court after a full-blown trial. 6. This leaves me to discuss the first part of the question that has been referred to me and that is whether the present petition is liable to be allowed or dismissed on the basis of the facts and circumstances of the case. Here again, I find myself to be in agreement with the opinion expressed by Justice B. A. Khan and I have to respectfully disagree with the opinion of Justice V. S. Aggarwal. The reasons for my agreeing with the opinion of Justice B. A. Khan, apart from those he has already given in his opinion, are that the complaint and the two statements of Smt. Maya Devi and Smt. Inderjeet Sethi read together, clearly indicate that the case against the petitioner is ex facie untenable. In the complaint it is stated that the complainant was alone in the house. Two years later, the statement of one Smt. Maya Devi is recorded wherein she states that she is the maidservant and was present in the house when the alleged incident took place. Apart from this the complainant has stated that she was saved by one elderly lady from another flat above her flat. Both Smt. Maya Devi and Smt. Inderjeet Sethi (the alleged elderly lady from another flat) have stated that in the presence of each other, they rescued Smt. Saroj Bahl from the alleged assault by the petitioner and the other co-accused. Thus, it is apparent that the statements of Smt. Maya Devi and Smt. Inderjeet Sethi, which have been recorded two years later, while corroborating each other, negate the initial story indicated in the complaint of the complainant being rescued and saved by one elderly lady, not two ladies. Justice B. A. Khan in his opinion has already placed reliance on the illustrations given in category 3 and 7 of the Supreme Court decision in State of Haryana v. Bhajan Lal (supra). It must be noted that the categories set out in the said decision are only by way of illustration and are not exhaustive. The High Court has power to put an end to criminal proceedings whenever it feels that such proceedings are vexatious and would put an accused to undue burden if the accused is subjected to the full rigours of criminal trial. It must also be noted that in this case the alleged incident is of and now over 12 years have elapsed. Continuing with the criminal proceedings where even the Section 161 statements themselves, which were recorded two years after the alleged incident, negate the case of the complainant as set up in the complaint, would certainly not result in a conviction and to permit the judicial machinery to be used for the purposes of continuing a personal vendetta would definitely not be in the interest of justice. I have rendered my opinion on the question referred to me. The matter be now placed before Hon'ble the Chief Justice so that he can place the matter before a Division Bench for a final judgment. February 14, 2008 Sd./- BADAR DURREZ AHMED,J