Akash Nangia & Anr v. The State Govt of NCT of Delhi

INDERMEET KAUR, J ^2-. 3. IS fN TME HIGH COIURT OF DELHI AT NEW DELHI Date ofJudgment: 22.09.2015 A) . -I CRL.M.C. 389/20l4 -V-:^^ SAPNA GALJTAM Petitioner Through Mr. Gaurav Mitra, Mr. Dhruv Kapur, Ms. Deepali Dwivedi and Mr. Siddharth, Advs. Versus STATE (3F NCT OF DELFIl & AMR. Respondents Through Ms. Kusum Dhalla, APP For the State along with AGP Yashodara Ravvat and SI Ram Avtar. I-CRL.M.C. 1139/2014 & CrI. M.A. No.S805/2014 SAPNA GAUTAM Petitioner Through Mr. Gaurav Mitra, Mr. Dhruv Kapur, Ms. Deepah Dwivedi and Mr. Siddharth, Advs. Versus STATE OF NCT OF DELKl & OTFIERS Respondents Through Ms. Kusum Dhalla, APP for the State along with ACP Yashodara Ravvat and SI Ram Avtar. Mr. Atul Guleria, Adv for Iv-4. Ci-I. M.C. No.3i!y/2(li-l. Ci-1. M.C. Nn.1139/20i-! A'; Crl. lU-v. P. NoJ3f)/2ni4 I'liyc I of Sfi + CRL.REV.P.336/2014&Crl. M.A. Nos.90S5/9014& 16836/2014 AICASH NANGIA & ANR Petitioners Through Mr. H.S. Phoolka, Sr. Adv. with Mr. ManjeetSingh Ahluwaliaand Ms. Shilpa Devvan, Advs. for petitioner No.l. Mr. Atul Guleria, Adv for petitioner No.2; •versus THE S TATE GOVT OF NCT OF DELHI Respondent Through-Ms. Kusum Dhalla, AFP for the State along with ACP Yashodara Rawat and SI Ram Avtar. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR ERMEET KAUR, J. (Oral) 1'heseare three petitionsin which SapnaGautam is the petitioner in the first two petitions.The third petition is revisionpetition filed by Akash Nangia and Sameer Dhingra impugning the order dated

14.03.2014 wherein the charge under Section 354 of the IPC has been (ramed against them. In the first petition (Crl. M.C. No.389/2014). the petitioner is aggrieved b}' the bail order dated 28.05.2013 wherein anticipatory protection has been granted to respondent Rajeev Chauhan. Submission Crl. MC. No.389/2()lI, Crl. iVI.C:. N6.U39/2I114^ Crl. Rev. P. No.33(i/2()14 Pa§e 2 of 18 being that this bail had been granted to the respondenton a wrong premiseand on incorrectfactual submissions.The orderofgrant ofbail is thus liableto be set aside.1osupportthis submission,learnedcounsel loi the petitionerhas placed relianceupon ajudgmentofthe Apex Court in (2012) 12 SCC 180 KammrSinshMeena Vs. State ofRaiasthanand Another as also another Judgment reported as (2008) 13 SCG 584 NarendraK: Amin (Dr.) Vs. State of Gujaratand Another. Submission being that there are wide powers with the Courtto ordercancellationof bail it therehas been a miscarriageofjustice.This is onesuch case. The second petition(Crl. IVI.C. No.1139/2014)has been filed by Sapna Gautam seeking re-investigationin the present FIR i.e. FIR No. 27/2013. Submissionbeing that the investigationhas-not been carried out fairly. Attention has been drawn to a vigilance report dated

05.08.2013 (which was submitted by the ACP duly approved) wherein certain investigations carried out by the CAW Cell (through Inspector Shashi) were necessarily to be ignored as Inspector Shashi was no longer vested with the inquiiy and the inquiry having.stood transfeired to the local police station Flazrat Nizammuddin on 14.12.2012, the report dated 07.02.2013 alleged to have been prepared by Inspector Crl. Ni).3!i9/201-t,Crl. iVI.C. No.l I3')/20I4 Crl. Rev. P. N().336/2()14 Pagc3 of 18 Shashi (of the CAW Cell) could not have been i-sed as a piece of evidence(as celied upon b)' tlie Trial Judge) neitherfor the purj^oseof grant of bail nor lor the purposesof investigation.Attention.has been drawn to the charge-sheet.Submissionbeing that in the charge-sheet, the accusedpersonshave been exoneratedalmostcompletelyand this is tor the reasonthat the subsequentInvestigatingOfficer(policestationat Mazrat Nizammuddin) namely Inspector Yashdhra Rawat was also followingthe tune ofInspectorShashi inspiteof the Vigilance,Enquiry report (dated 05.08.2013)having noted the fact that Inspector Shashi could not have carried out any investigation, in the matter yet the subsequent InvestigatingOfficer namely Yashodhra Rawat also had relied upon this report of Inspector Shashi and has thus.committed a tault in the investigation;the bias qua the petitioneris writ large: all this - has been done at the behest of the accused. This is a fit case where the petitioner having suffered a-grave •prisjudice is entitled to a re-investigation and a fresh charge-sheet should be directed to be filed. To support this submission reliance has been placed upon (2013) 5 SCC 762 Vinay Tvasi Vs. Irshad-Ali (ip; Deepak and others as also another Judgnient of the Apex Court reported as (20II) 3 8CC (CrI) 666 State of CrI. |\I.C. N().3ii')/2()l-l, Crl. iVi.C:. Nii.l 139/2()N & CrI. Rev. P. No.33f)/2(!14 Page Aof Punjab Vs. Central Bureau ofInvestigationand Othpr.^ Submission beingtiiatin caseswheretherehas beenafoul play and the investigation IS unfeirand tainted,afresh denovo investigationshouldbe ordered. Needlessto statethat theseargumentshave been reliited. Learned counsel appearing for respondent Rajeev Chauhav submitsthat the order ofgrant ofbail to the petitionerdoes not suffers from any infirmity; the charge-sheet has also been filed on a fair investigationcarried out by the investigatingagency and also suffers from no iilegahty;chargeshave also been framed. The prayers made in these two petitions(Crl. M.C. l\los.389/2014and 1139/2014)are Hable to be rejected. In the third petition,argumentshave been addressedby Mr. H.S. Phoolka, Sr. Advocate. His submission is that the order dated

14.03.2014 directing framing of charge against Akash Nangia and Sameer Dhingra suffers from an infirmity; attention has been drawn to. the complaint pursuant to which the present FIR has been registered. This complaint is dated

06.12.2012. Submission being that the complaint nowhere discloses the time, place and the date of the incident; it is just a general averment which has been made against the aforenoted c:i-|. M.C. No.J!{')/2(tI4, Crl. M.C. No.l 139/20N &.(j-l. Rev. P. No.336/2014 two petitionersand the ingredientsofthe complaintminusany detailsdo not make out any case against the petitioner;they have been falsely loped in; the petitionershad businessdealingswith the complainantand this is an admitted fact;the complainantonly to extortmoney from the petitionershas lodgedthis false complaintagainstthem. Learned counsel for the complainant has refuted these submissions. Argumentshave been heard. Recordhas been perused. The presentFIR No. 27/2013 has been registeredagainstthe three persons namely Rajeev Chauhan, Akash Nangia and Sameer Dhingra. Record disclosesthat the complainantwas known to Rajeev Chauhan since2009 and in faci; had a live-inrelationshipwith him. Hercomplaint was that she had agreed to have physical relationship with Rajeev Chauhan as he had promisedto marry her; at that point of time, she did nol know that Rajeev Chauhan was a married man having kids; relationship had been entered into between the parties only on the false promise of marriage. Allegations of rape qua the petitioner Rajeev Chauhan had been leveled by the complainant in her complaint dated

06.12.2012. Her statement was recorded under Section 161 of the Cr.PC Ci l. M.r. No.31!9/2(ll-l,C-l. iVI.C. No.I I3i)/20l-J & Crl. Ucv. P. No.336/2014 Page 6 ol' 18 on four differentoccasionsi.e. 29.01.2013,30.01.2013,07.02.2013and

14.02.2013.There is no statementofthe victimunderSection164 ofthe Cr.PC. Charge-sheetwas filed on 20.07.2013.Record shows that initial complainthad been lodged by the victim sometimein December,2012 before the CAW Cell. The InvestigatingOfficer in CAW Cell was InspectorShashi. The CAW Cell had thereafterfiled a closure report. Matter was thereaftertransferredto the local police station i.e. police stationHazratNizammuddin.InspectorShashihad notedthat she has no jurisdiction to investigate the matter. Vehement' submission of the learned counsel for the complainantis that inspite of this fact being knoM'n to Inspector Shashi, she had filed a report dated 07.02.2013 investigatinginto the alleged complaintsqua the complainantand this A'Vas at the behestof the accused;this report was heavily relied upon by the Trial Judge at the time of grant of bail to Rajeev Chauhan. Attention has been drawn to the order dated

28.05.2013 vide which the bail had been granted to the petitioner. Thereafter, an application had been filed by the complainant seeking cancellafion of the which had been disposed oTon 13.11.2013; the Sessions Judge was oi'the view that there is no ground for cancellation of the bail. "CrI. M.f:. No.Jfi'J^Ol-l,Ci-I. M.C. No.1139/2014 CrI. Rev. P. No.336/2014 Page 7 of IK n This Court had noted the contents of the bail order dated

28.05.2013. The contents of the complaint of the complainantdated (06.12.2012)disclose that the complainanthad business dealing with RajeevChauhan,AkashNangiaand SameerDhingra.She was runninga businessofDocumentand Data Digitizationunderthe name and styleof M/s ACML Data Soluations. She had come in contact with Rajeev Chauhavin this context.This was sometimein November,2009. He had assured help to her. She had entered into physicalrelationshipas he has promised to marry her; he had representedhimselfto be a divorcee; however it was later on known that he is not a divorcee and he was a married man. Admittedly she was in a live-in relationshipwith the accused Rajeev Chauhan. In the course of these proceedings, there were two documents which have been filed by accused Rajeev Chauhan. The first was the aliidavitdated 07.03.2013allegedto have been given by the prosecutrix where she had stated that she does not wish to pursue this case. This document had been given to the InvestigatingOfficer to get it veriiied. It had been verified that the document/affidavithad been signed by the complainant wherein she had admitted that she did not wish to pursue Crl. M.C. No.3!i9/2()i4,Cii. M.C. No.l 139/20I-I& Crl. Rev. P. No.33f)/20I4 these proceedings. Her submission before the Trial Judge and even beforethis Court is that this documenthad been signedunder pressure. V' document on 11.03.2013 on the pretext that the •proceedings in FIR No. 30/2012 (registeredunder Sections420/406 of the rPC by the EOW againstthe complainantat Chandigarh)would be settled and for this purpose she had agreed to sign this petition. This documentwas noted by the TrialJudge. The seconddocumentwhich had been filed by the accusedbefore the Trial Judge was a report dated 07.02.2013purportedto have been given by fhspector Shashi wherein certain investigationspurported to have been carriedout by InspectorShashi(even aftershe was no longer ^ InvestigatingOfficer) had been filed. This Court notes that this documenthad been filed by the accusedbut no reliancehas been placed on this documentby the Trial Judge at the time ofgrant ofbail to the respondent. The factual matrix of the case has been noted. It has been noted that the partiesare adults and the prosecutrixwas in fact 32 years ofage at that point of time. She had business dealings with Rajeev Chauhan; her contention that she had entered physical relationshipwith Rajeev CIrl. iM.C. No.3!!9/201-I,Crl. M.C. Nn.l139/20(4&Crl. Rev. P. No.33fi/2014 - Page9of 18 Chauhanonly on the falsepretextofmarriagehas also been noted. It has also been notedthatpartieswere known to one anothersinceNovember, 2009. Ihe Trial Judge had also noted the affidavit dated 07.03.2013 vvheieinthe complainanthad stated that she does not wish to pursueher case. Althoughthe reportofInspectorShashi dated 07.02.20,13had also been filed by (he accusedbut at the costofrepetition,this reportwas not taken into accountby the Trial judgefor the grantofbail. fhe Trial Judge had passed a reasoned order. It was a fair discretion which has been exercised by him in favour of the accused noting the lactual matrix as narrated above. There is nothing wrong in this order. The submission of the complainantthat the bail had been granted on a misconceptionof fact and was wholly based on the report dated 07.02.2013M'hich was an illegalinvestigationdoes not hold good as this was not the ground on which the bail had been granted lo the respondent. Tlie order suffer;: from no infirmity. This Court is not inclined to interfere with the order. This Court also notes thai the parameters of grant of bail and parameters ol cancellation of bail are distinct. In the former case, the ambit is wider; in the latter, the ambit is narrower and to cancel a bail it Crl. M.C. N().Jf!y/2()|.(, Ci-I. M.C . No.I I3')/20I4 i C rl. Rev. P. N().336/20l I Pime 10 ol lii has to be tor exceptional reason. It is also not the case of the complainantbefore this Court that after the grant of bail by the Trial ^ Judgeto RajeevChauhan(28.05.2013),therehas been any misuseofthe piocess ol the Court or the complainanthas been threatenedor that she has sufferedany coercionat the hands ofRajeev Chauhan.It is also not her casethat he is tryingto influenceher or any otherperson. In this background,this Court is of the consideredview that the order dated 28.05.2013 suffers from no infirmity. The bail cannot be cancelled.The first petition i.e. Crl. M.C. No. 389/2014 is accordingly dismissed. The second petition i.e. Crl. M.C. No. 1139/2014seeks a prayer ^ that reinvestigationshould be ordered in the present offence as the investigation"has not been carried out fairly and as noted supra, the vigilancereport dated 05.08.2013 has been largely relied upon by the complainant.The vigilancereportdated 05.08.2013has been perused.It notes that a complainthad been made by the complainantin the CAW Cell on 06.12.2012.InspectorShashihas been assignedthe investigation ol the case. Thereafter a closure report had been filed and the matter was transferredto the local police station at HazratNizarnmuddin.Inspector ( il. M.C. No.3!!y/2()l-(,CjI. M.f;. No.1139/201-1&. Crl. Rev. P. N().336/2014 Page 11 of Ki /ashodharaRawat was the concerned InvestigatingOfficer. A report had been preparedby InspectorShashi in CAW Cell on 07.02.2013but this lepoit has neither been circulatedto any person nor was used bj' Inspector Shashi. A copy of this report had been obtained by the respondent (Rajeev Chauhan) and he had filed it along with his bail apphcationbut as noted earlier,this reportwas not the premiseon which the bail had been grantedtothe respondenton 28.05.2013. The charge-sheetwhich has been filed has detailedthe allegations against all the three petitioner?;.Apart from the statements of the victim which has been recorded on four different dates i.e. 29.01.2013,

30.01.2013,07.02.2013& 14.02.2013,the call detail recordsexchanged between the victim and the accused have also been detailed. [,ocation of Ihe mobilephoneofthe three accusedpersonshas also been investigated upon. The charge-sheetclearly specifiesthat there are strong allegation against Rajeev Chauhan.under Section376 of the IPC and allegationof molestationagainstthe two accused namely Akash Nangia and Sanieer Dhingra v/hich make out a prima-facie case under Section 354 of the IPC. This Court also notes that after the filing of the charge-sheet, charges have also been framed; Rajeev Chauhan has been charged under Crl. M.C. No.3«9/2()M,Crl. iS'o.l139/2014& CrI. Rev. P. No.336/20I4 Page 12oI lS .X Section 376 of the IPC and Akash Nangia and Sameer Dhingra have been chargedunderSection354 ofthe IPC. In this charge-sheetthere is also no mentionofany reportdated 07.02.2013. The investigationin this backgroundsuffers from no infirmity. This is clearly not a case where the petitionerhas sufferedprejudice; leavealonegraveprejudicefor whichshe is seekingreinvestigation.The judgmentof Vingj^Jvg^(supra) in fact notes that it is only in the rarest of rare cases alone that a reinvestigationcan be ordered. This is definitelynot one such case. The prayer made in the second petition seeking reinvestigation is also declined. This Court notes that both these petitions i.e. Crl. M.C. No.389/2014and 1139/2014are an abuse of the process of the Court and a wastageof its precious time. Each of these petitionsis dismissed with costs quantified at Rs.20,000/- each. In the third petition, the petitioners are aggrieved by the order dated 14.03.2014vide which charge has been framed against the two petitioners namely Akash Nangia and Sameer Dhingra. The contents of the complaint dated 06.12.2012 have been perused. Her subsequent statements recorded under Section 161 of the Cr.PC dated 29.01.2013, Crl. M.C. N().38')/20N,Ci-l. M.C. No.l 139/2014 Crl. Rev. p. No.336/2014 Pii"e 13 ol IS r jO.01.2013,07.02.2013and 14.02.2013have also been perused.In her first complaintdated 06.12.2012,she had statedthat Akash Nangi is the co-ownerof SISL InfotechPvt. Ltd., Head Office,Chandigarh;Sameer ,Dhingra is the CEO of NetspiderIndia Pvt. based in Mumbai. Rajeev Chauhan had convinced hei-that she could be empanelled in the companiesof both Akash Nangiaand SameerDhingra.The complainant had shiftedto LajpatNagar. Altersometime,AkashNangiaand Sameer Dhingrastartedvisitingher on the pretextof business.One da)- Akash Nangiaand SameerDhingracame to her house In the absenceofRajeev Chauhan and by theirgestures,they did some mis-acts;they humiliated her. They statedthat ifshe could have relationshipwith Rajeev AA'ho is a married man having a child why she could not have relationshio with them; Akash Nangia was unmarried;they told her that they have seen hier recordedCD with RajeevChauhanwhereshe was gettingphysically intimate with him. These are the allegations in her complaint dated

06.12.2012 and her statement dated 29.01.2013. In her subsequent statements, there is mention of the aforenoted two petitioners. A perusal of this complaint and ingredients of the same clearly persuades this Court to hold that the ingredient of offence under Section 354 of the IPC Cil. M.r. No.3!i!)/2()I-l,CrI. iVI.C. No.l 139/201-1 CrI. Rev. P. No.336/20I4 j'nge 14 ons (which is the chargeframed againstthe petitioners)is not made out. 2j Section354 oi the IPG reads hereinas under:-"

¶354Asscmll or criminalforce to wonicm with intent to outrage her modesty.— Whoever a.s.sauHsor uses criminalforce to any M'oman, intendingto outrage or knowuigIt to he likely that-he will therebyoutrageher modest)',shallbe punished II'///? imprisonmentofeitherdescriptionfor aterm which may extendto tM'oyears, or with ftne, or with both. " There is no gain saying to the settledpropositionthat unless and until theie is specific and a prima-facie case made out against the peisons who are sought to be charged, the charge may not be framed. Vice-versa this Court also notes that it is only on a grave suspicion which has to be noted by the Court to arrive at this finding before framing of charge. The backgroundof the case, as noted above, clearly shows that the victim knew Rajeev Chauhan since November, 2009 and in the course of her business dealings with him, she also met the aforenoted two petitioners namely Akash Nangia and Sameer Dhingra, both of whom were holding position of authority in their respective fields; Akash Nangia was based in Chandigarh and Sameer Dhingra was based in Mumbai. Her allegation is that they had sometime when she had M.C. N().3t{9/20]4, CrI. M.C. No.113!)/20l-( &. CrI. Rev. P. No.336/2014 Page 15 oflS " shifted to Delhi (date, month and year not disclosed)visited her and thereaftersome indecentgestureswere made by them. They had toid her relationshipwith them, Akash Nangia told her that he is not man ied and ifshe could have relationshipwith amarriedman then why she could not have relationshipwith them. In the absenceofany date, time, month or year, the investigatingagencyhad reliedupon the month of September,,as the allegationsin the complainthad disclosed that it was in the month oJ~ September,2012 that Rajeev Chauhan was out of station.It was probablyat thai; time that the aforenotedpersons namely Akash Nangia and Sameer Dhingra had visited her house in Lajpat Nagar. The call detail records of September, 2012 has been verified. The investigating agency had noted that during this period of time, Sameer ' Dhingra was in Mumbai and Akash Nangia was not iri Delhi for the entire month of September, 2012. Even a,s per tlie investigating agency, this incident had probably occurred in September, 2012. The complaint was lodged in the police station on 06.12.2012 which was in the CAW "Cell wherein a closure report has been filed and thereafter transferred to the local police station at Hazrat Nazammuddin wlierein for the first time the statement of the Cv\. iVI.C. No..«i')/2()l-l,Crl. iVi.C.'No.1139/2(1H & Ci l. Rev. P. No,336/2()14 Page 16oI lS viclim was recorded on 29.01,2013.The allegationsqua the aforenoted petitioners have already been discussed supra. These allegations, as disclosedabove,which relateto an incidentwhich may have taken place in the month of September,2012 withoutany time, date, month or year and the complainthaving been lodged in December,2012 without any specificallegation,this Court is of the view that a prima-faciecase of framing of charge is not made out againstthe present petitioners.The definitionofassaultand criminal force which are ingredientsofoffence under Section354 of the IPG are defined in Sections351 and 350 of the tPC. The ingredient"outrage her modesty" has-not been describedin the IPG. This Court is howeverofthe consideredview that the general and bald allegationsmade by the complainantin a complaintrelatingto an offence which has probably occurred more than 2-3 months earlier (dates not known) and the statementthat some misacthas been down by the petitioners by gestures whic.h amounted to a humiliation, would not by itself makes oul a prima facie case under Section 354 of the IPG for vvliich the accused persons ha\'e been charged. This Court again notes that the investigating agency had noted that in this month of September, 2012, Sameer Dhingra was in Mumbai and Akash Nangia was Ci l. iVi.i:. Ni).J!:')/2()l-i. c:i l. M.C. No.l I3y/2()l ! & fi l. Rl-v. p. No.336/2014 Piige 17 ot lK out of country. In (2013) 3 SCC 330 Rajiv Thapar and Others Vs. Madan Lai 'Kajjmr.. Ihe Apex Court has noted that the allegationsleveled by the complainant lar h'om being sound appears to be almost non-existent; there was no reason why any specificationhas not been given. On general allegations,charge cannot be framed. Criminaljurisprudenceis tn'm. A man is presumedto be innocentunless proven guilty. A person is also not to be asked lo fece trial and suffer not only the humiliationof a long protracted litigation but also cannot be asked to suffer the pressure of an exercise which on the factual matrix, as narrated above, would be an exercise in futility as the allegations in the complaint taken as a whole would not be sufficient to uphold the impugned order. The third petition i.e. CRL.REV.P. 336/2014 is allowed. The order dated 14.03.2014 is set aside. The petitioners are discharged. Petitions disposed of in the above terms. INDERMEET KAUR, J SEPTEMBER 22,2015 A Crl. M.C. No.jii')/2014, Crl. ;V1.C. No. 1139/201-1 cit' Crl. Rev. P. No.33fi/2014 Page 18 oflS

* IN THE HIGH COURT OF DELHI AT NEW DELHI % DateofJudgment:22.09.2015 + CRL.REV.P. 336/2014 & Crl. M.A. Nos.9055/2014 & 16836/2014 AKASH NANGIA & ANR Petitioners Through Mr. H.S. Phoolka, Sr. Adv. with Mr. Manjeet Singh Ahluwalia and Ms. Shilpa Dewan, Advs. for petitioner No. 1. Mr. Atul Guleria, Adv for petitioner No.2. versus THE STATE GOVT OF NCT OF DELHI Respondent Through Ms. Kusum Dhalla, APP for the State along with ACP Yashodara Rawat and SI Ram Avtar. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET KAUR. J. (Oral) For orders, see file of Crl. M.C. No.3 89/2014. SEPTEMBER 22,2015 A