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PETITIONER: SH. SATISH MEHRA

       Vs.

RESPONDENT: DELHI ADMINISTRATION & ANR.

DATE OF JUDGMENT:       31/07/1996

BENCH: M.M.PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                   THE 31 DAY OF JULY, 1996 Present:           Hon’ble Mr. Justice M.M. Punchhi           Hon’ble Mr. Justice K.T. Thomas In-personofor appellant S.N. Sikka Adv. for S.N. Terdol, Adv. for the Respondent No.1 N.B.Joshi, Adv. for the Respondent No.2                       J U D G M E N T The following Judgment of the Court was delivered: Shri Satish Mehra V. Delhi administration and another                       J U D G M E N T THOMAS,J.      Some eerie accusations have been made by a wife against her husband.  Incestous sexual  abuse, incredulous ex facie, is being  attributed to the husband. Police on her complaint conducted investigation  and laid  charge sheet  against the appellant, who  has filed this Criminal Appeal special leave as he  did not  succeed in his approach to the High court at the F.I.R. stage itself.      More details of the case are these: Appellant (Satish  Mehra) and  his wife  (Anita Mehra)  were living in  New York  ever since  their marriage.  They  have three children  among whom  the eldest daughter (Nikita) was born of  2nd April,  1988. Before and after the birth of the children relationship  between husband and wife was far from cordial. Husband  alleged that  his wife, in conspiracy with her father,  had siphoned  off a  whopping sum from his bank deposits in  India by forging his signature. He also alleged that his  wife is  suffering from  some peculiar psychiatric condition. He  approached a  court at  New York for securing custody of  his children.  On 31.10.1992  his wife  left his house with  the children  and then  filed a  complaint  with Saffolk County  Police Station (United States) alleging that her husband  had sexually  abused Nikita  who was  then aged four. United  States police  at the  local level  moved into action.  But   after   conducting   detailed   investigation concluded that  the  allegations  of  incestuous  abuse  are

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untrue.      On 7.3.1993, appellant’s wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered  that custody  of the  children be  given to the husband and a warrant of arrest was issued against Anita for implementation of the said order.      The battle  field between  the parties  was  thereafter shifted to  India as she came back home. On 19.3.1993, Anita filed a  complaint to  the "Crime  Against Women  Cell" (CAW Cell for  short) New  Delhi in  which she  stated  that  her husband committed  sex abuses with Nikita while they were in United States  and further  alleged that appellant committed certain  matrimonial  misdemeanour  on  his  wife.  But  the complain was close but want of jurisdiction for the CAW Cell to  investigate   into  what   happened  in  United  States. Appellant returned to India on 127.1993 and thereafter filed a petition  for a  writ of  Habeas Corpus  for securing  the custody of the children.      The present case is based on a complaint filed by Anita before Greater  Kailash Police station on 14.8.1993. FIR was prepared and  a case  was registered as Crime No. 197/93 for offences under  Sections 354 and 498-A of Indian Penal Code. On 25.8.1993,  the investigating  officer moved the Sessions Court for  adding Section  376 of the IPC also. The case was charge sheeted  by the  police and  it was  committed to the Court of Sessions.      As committal proceedings took place during the pendency of the  Special Leave  Petition,  this  Court  directed  the Sections judge  on 22.2.1996  "to apply its mind to the case committed and  see whether a case for framing charge/charges has been  made out  or no".  Learned  Session  judge,  by  a detailed order, found that no charge under Section 498-A IPC could be  framed  against  the  appellant,  but  charge  for offences under Sections 354 and 376 read with Section 511 of IPC should  be framed  against him.  Accordingly, the charge has been framed with the said two counts.      First  count  in  the  charge  is  that  appellant  had outraged the  modesty of  his minor  daughter aged  about  3 years during  some time  between March  and July, 1991 at D- 108, East  of Kailash, New Delhi by fondling with her vagina and also  by inserting  bottle into it and thereby committed the offence  under Section  354 of  the IPC. Second count in the charge  is that he made an attempt to commit rape on the said infant  child (time and place are the same) and thereby committed the  offence under  Section 376  read with Section 511 of the IPC.      At this stage it is superfluous to consider whether the FIR is  liable to  be quashed  as both  sides argued  on the sustainability of  the charge  framed by the Sessions Judge. We are, therefore, considering the main question whether the Sessions Court  should have  framed the  charge against  the appellant as it did now.      Considerations which  should weigh  with  the  Sessions Court  at   this  state  have  been  well  designed  by  the Parliament through  Section 227  of  the  Code  of  Criminal Procedure (for short ’the Code’) which reads thus:      "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 there is not sufficient      ground for  proceeding accused  and      record his reasons for so doing." Section 228  contemplates the  stage after the case survives

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the stage envisaged in the former section. When the Court is of opinion  that there is ground to presume that the accused has committed  and offence  the procedure  laid down therein has  to   be  adopted.   When  those  two  section  are  put juxtaposition with each other the test to be adopted becomes discernible:  Is  there  sufficient  ground  for  proceeding against the  accused? It  is axiomatic  that the standard of proof normally  adhered to  at the  final stage is not to be applied at  the stage  where the  scope of  consideration is where there  is "sufficient  ground for  proceeding".  (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018, and Supdt, & Remembrancer  of Legal  Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52).      In Alamohan  Das v.  State of  West Bengal (AIR 1970 SC 863) Shah,  j. (as  he then was) has observed in the context of considering  the scope  of  committal  proceedings  under Section 209  of the  old Code  of Criminal  Procedure (1898) that a  Judge can sift and weight the materials on record by seeing whether  there is sufficient evidence for commitment. It is  open to  the Court  to weight the total effect of the evidence and  the documents  produced to check whether there is any  basic infirmity.  Of course  the exercise is to find out whether  a prima facie case against the accused has been made out.      In Union  of India  v. Profullakumar- 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of  framing the  charge has "the undoubted power to sift and  wight the  evidence for  the  limited  purpose  of finding out  whether a  prima facie case against the accused has been  made out".  However, there  Lordships pointed  out that  the  test  to  determine  a  prima  facie  case  would naturally dependent  upon the  facts of  each case and it is difficult to  lay down  a rule of universal application. "By and large, however, if who view are equally possible and the Judge is  satisfied that  the evidence  produced before  him gives rise  to some  suspicion but not grave suspension, the Judge would  be fully  within his  right  to  discharge  the accused". At the same time the Court cautioned that a roving enquiry into  the pros  and cons of the case by weighing the evidence as  if he  was conducting the trial is not expected or even warranted at this stage.      An incidental question which emerges in this context is whether the  Session Judge  can look into any material other than those  produced by  the prosecution. Section 226 of the Code obliges  the prosecution to describe the charge brought against the  accused and to state by what evidence the guilt of the  accused would be proved. The Next provisions enjoins on the  Session Judge to decide  whether there is sufficient ground to  proceed against  the accused.  In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced  therewith.  He  has  then  to  hear  the submissions of the accused as well as the prosecution on the limited question  whether  there  is  sufficient  ground  to proceed. What  is the  scope  of  hearing  the  submissions? Should it be confined to hearing oral arguments alone?      Similar situation  arise under  Section 239 of the Code (which deals  with trial of warrant cases on police report). In  that   situation  the   Magistrate  has  to  afford  the prosecution and  the accused  an opportunity  of being heard besides considering the police report and the documents sent therewith. At  these two State the Code enjoins on the Court to give  audience to  the accused for deciding whether it is necessary to  proceed to  the next  State. It is a matter of exercise of  judicial mind.  There is  nothing in  the  code which shrinks  the scope of such audience to oral arguments.

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If the  accused succeeds  in producing any reliable material at that  stage which  might fatally  affect  even  the  very sustainability of  the case, it is unjust to suggest that no such material  shall be  looked into  by the  Court at  that stage. Here  the "ground"  may be any valid ground including insufficiency of evidence to prove charge.      The object  of providing  such  an  opportunity  as  is envisaged in  Section 227 of the code is to enable the Court to decide  whether it is necessary to proceed to conduct the trial. If  the case ends there it gains a lot of time of the Court  and  saves  much  human  efforts  and  cost.  If  the materials produced  by the  accused even at that early stage would clinch  the issue,  why should  the Court  shut it out saying that  such documents  need  be  produced  only  after wasting a  lot more  time in  the name of trial proceedings. Hence, we  are of  the view  that Sessions  Judge  would  be within his  powers to   consider  even  material  which  the accused may produce at the stage contemplated in Section 227 of the Code.      But when  the Judge  is fairly certain that there is no prospect of  the case ending in conviction the valuable time of the  Court should  not be wasted for holding a trial only for the  purpose of  formally completing  the  procedure  to pronounce the  conclusion on  a future  date. We  are  under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings  at the  stage of  Section 227  of the  Code itself.      In the  present case  learned Session  Judge has missed certain  germane   aspects.   Apart   form   the   seemingly incredulous nature  of the accusations against a father that he molested his infant child (who would have just passed her suckling stage  the) the  Sessions Judge  out  not  to  have overlooked the following telling circumstances.      The complaint made by her with the New York police that her husband  committed sexual offences against her 18 months old female child was investigated by the New York police and found the  complaint bereft  of truth hook, line and sinker. The present  charge is  that the  appellant  committed  such offences against  the same  child at East Kailash, New Delhi some time  during March  to July, 1991. There is now no case of what  happened in  United States. There is now no case of what happened  in United  States. The  Sessions Judge should have noted  that appellant’s  wife  has  not  even  remotely alleged in  the complaint  filed by  her on 19.3.1993 before CAW Cell  , New  Delhi that appellant has done anything like that while  he was  in  India.  Even  the  other  complaint. petition (on  which basis  the FIR  was prepared) is totally silent about  a case that appellant did anything against his daughter anywhere in India. when we perused the statement of Anita Mehra  (second respondent)  we felt  no doubt that the has been  brimming with  acerbity towards  the petitioner on account of other causes. She describes her marital life with petitioner as  ’extremely painful  and unhappy from the very inception". She  complains that petitioner has "a history of irrational outbursts  of temper  and violence".  She accused him of  being  alcoholic  and  prone  to  inflicting  server physical violence on her form 1980 onwards.      Thus her  attitude to  the petitioner, even de hors the allegation involving  the child,  was vengeful. We take into account the  assertion of  the of  the petitioner  that  the present story  involving Nikita  was concocted by the second respondent to  wreak her  vengeance  by  embroiling  him  in serious criminal  cases in India so that the could be nailed

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down here and prevent him from going back to U.S.A.      While hearing  the arguments we ascertained whether the spouses could  settle their  differences. Second respondent, who to  was present  in court,  made an  offer  through  her counsel that  she could  agree for  annulling  the  criminal proceedings against  the petitioner on the condition that he should withdraw  his claims  on the  bank deposits and would also relinquish  his claim  for custody of the children, and further he  should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on  the large  amounts in  bank deposits, and further agreed to  have the  divorce. But  he stood  firm that on no account custody  of the  children could  go  to  the  second respondent  but  if  made  to,  subject  to  his  rights  of visitation. This,  he said,  is because he is convinced that second respondent  is unsuitable  to be  entrusted with  the care of the children.      In the above context petitioner drew our special notice to a  medical report  issued by  Dr. Prabha Kapoor (Children Medical Centre,  Jorbagh, New  Delhi) On  26.7.1992.  It  is stated in  report, that  Nikita was brought to the doctor by the second  respondent and on examination of the genetals of the child the doctor noticed " a wide vaginal opening -wider than would be expected of her age group." On the strength of the aforesaid  medical report,  petitioner  made  a  frontal attack on  second respondent, alleging that in order concoct medical evidence  against him  the little  child’s  genitals would  have   been  badly  manipulated  by  its  mother.  To substantiate this  allegation he  drew our  attention to the U.S. police  report, in  which there is mention of a medical examination conducted  on  Nikita  by  a  U.S.  doctor  (Dr. Gordon) on  24.11.92. That doctor pointed out that there was absolutely no  indication of any sexual abuse when the child was physically  examined. If the medical examination done on the child  in November,  1992 showed  such normal condition, petitioner posed  the question  -who would have meddled with the child’s genitals before 26.7.93, to case such a widening of the  vaginal office?  (We now remember again that, as per present case,  the last  occasion when the petitioner should have abused  the child  was in  July, 1991).  The  aforesaid question,  posed   by  the  petitioner  in  the  context  of expressing grave  concern over what the mother might do with the little  female child for creating evidence of sex abuse, cannot be  sideline by  us in  considering whether  the case should proceed to the trial stage.      Petitioner invited  out attention  to the answers which Mrs. Veena  Sharma (of  CAWC) has  elicited from  Nikita,  a verbatim reproduction  of which  is  given  in  the  counter affidavit  filed   by  the   second  respondent.   The  said interrogation record  reveals that  Mrs.  Veena  Sharma  has practically put  on the  tongue of  the little girl that her father had molested her. The following questions and answers can bring the point home the questions. The questioner asked the child  "what your  dady did  with  you"  and  the  child answered that  he put  his finger  (and showed  her  private part). Not being satisfied with the answer the next question put to  the child  was "Dady  puts what  else". Then  Nikita answers "Dady  puts his  bottle". We  noticed with  disquiet that the questioner drew the picture of the petitioner -face body and  then asked  certain questions  such as  "where  is papa’s bottle?  Is it  on  the  cupboard?"  The  child  kept looking at  the drawn sketch and pointed to the part between legs. Questioner  then asked  if anything was missing in the picture, to which Nikita Answered "glesses". After the child again pointed  to the  private parts  between the  legs, the

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questioner wanted  the child  to draw  "papa’s bottle".  But then the  child told  her "you do it." The questioner at the stage had  the temerity  to draw  the picture of the private parts of child’s father. We are much disturbed at the manner in which  the little  child was  interrogated  by  the  said officer of  CAW Cell.  At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers.      Even overlooking all the inherent infirmities shrouding the testimony  of a tiny tot speaking about what her further did when  she was  aged 3  and even ignoring the appellant’s persistent submission  that the  little  child  was  briskly tutored by her mother to speak to the present version, There is no  reasonable prospect of the sessions court relaying on such  a   testimony  to   reach  the   conclusion  that  the prosecution succeeded  in proving the offence charged beyond all reasonable doubt.      Over and  above that,  what would be the consequence if this nebulous  allegation is allowed to proceed to the trial stage. We  foresee that Nikita, the child witness, now eight years and  four month  old, mus  necessarily be subjected to cross-questions involving  sex and sex organs. The traumatic impact on  the child  when she would be confronted by volley of questions  dealing with  such a  subject is  a matter  of concerned to us. We cannot brush aside the submission of the appellant that  such an  ordeal would  inflict the appellant that such an ordeal would inflict devastating  impairment on the development of child’s personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with  it as  an  inevitable  course  of  action  to  be resorted to. But in this case, when the trial is going to be nothing but  a farce,  such a course of action should not be allowed  to   take  place   on  account   of  the   impeding consequences befalling an innocent child.      After adverting  to the above aspects and bestowing our anxious consideration we unhesitatingly reach the conclusion that there  is no  sufficient ground to proceed to the trial in this case.      We, therefore,  quash the  proceedings and  the  charge framed  by   the  Sessions   Judgement  and   discharge  the appellant. The appeal would stand allowed.