CRL.M.C./7032/2006 of RINKU @ KISHORE AGGARWAL Vs STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. M.C. No. 7032/2006

% Date of Decision: 7[th] January, 2008

# Rinku @ Kishore Aggarwal .....Petitioner

! Through Mr. R.K. Saini, Advocate

versus

$ State of NCT of Delhi ..... Respondent

^ Through Mr. M.N. Dudeja, APP for the State.

Complainant in person with Mr. Puneet Verma, Advocate

CORAM:

* HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see

the judgment?(No)

2. To be referred to the Reporter or not?(No)

3. Whether the judgment should be reported in the digest?(No)

ORDER

P.K.BHASIN, J:

The present petition is filed by the petitioner under Section 482 of the Code of

Criminal Procedure, 1973 for quashing of the order dated 25.03.2004 passed by

the learned Metropolitan Magistrate whereby the Final Report dated 03.01.2004 filed by the police for cancellation of the case against the petitioner-accused arising out of FIR No. 392/2001 u/s 376 IPC registered at Sangam Vihar police station on 19-7-2001 was rejected and police was directed to file fresh report under Section 173 Cr.P.C.

2. Relevant facts of the case are that FIR no. 392/2001 was registered at Sangam Vihar Police Station against the petitioner for the offence under Section 376 of IPC on the allegations that on 18.07.2001 at about 7.45 p.m. the prosecutrix had gone to collect her suit from her tailor and on her way back home petitioner-accused, who was running shop of building material, stopped her and offered her cup of tea and thereafter took her to the first floor of his shop and raped her. After the incident the petitioner-accused went to the police station and on her signed complaint case u/s 376 IPC was registered. However, the prosecutrix later on backed out from her statement made to the police when her statement was got recorded under Section 164 Cr.P.C. on 7-08-2001 wherein she claimed that her family was also having building material shop and about 2-3 months back some dispute arose with the petitioner and on 18-7-2001 there was fight also with him and in bid to teach him lesson she had got the case of rape registered against him and that her complaint lodged with the police was out of anger and not correct.

3. The police then filed report on 20-8-2001 before the concerned Metropolitan Magistrate requesting for closure of the case in view of the prosecutrix claiming in her statement under Section 164 Cr.P.C that she was not raped by the petitioner-accused. The Metropolitan Magistrate, however, declined to accept the cancellation report and vide impugned order directed the police to file report under Section 173 Cr.P.C. after observing that the case was registered on the complaint of the prosecutrix herself and not her parents and her MLC showed that she was raped under threat.

4. Aggrieved by the said order passed by the Metropolitan Magistrate the petitioner has filed this petition for setting aside of the order dated 25.03.2004 and for accepting the Final Report of the police for closure of the case against him. Learned counsel for the petitioner submitted that since the prosecutrix had claimed in her statement under Section 164 Cr.P.C. and also before the Magistrate when the Cancellation Report was filed that she had lodged false complaint no useful purpose would be served in unnecessarily putting the petitioner to trial and that in any case the Magistrate could not have directed filing of challan against the petitioner when the police did not consider that case of rape was made out. In support of his contention the learned counsel for the petitioner also cited judgments of the Hon’ble Supreme Court reported as “M.C. Abraham & Anr. v.

State of Maharashtra & Ors.” 2003 (1) Crimes 302 (SC), “Kanwar Pal Singh v. State

of Haryana” AIR 1994 SC 1045 and “Sampat Singh & Ors. v. State of Haryana” (1993) 1 SCC 561.

5. Learned APP for the State opposed this petition on the ground that there was no error in the impugned direction of the learned Metropolitan Magistrate warranting interference by this Court in exercise of its jurisdiction under Section 482 Cr.P.C.

6. I have considered the rival submissions and have also gone through the material on record. In my view the learned Metropolitan Magistrate on receipt of the report from the investigating agency to the effect that no case was made out against the petitioner-accused for the offence of rape could have after disagreeing with that conclusion of the investigating agency either taken cognizance on the basis of whatever material the investigating agency had collected during the investigation or ordered further investigation into the matter but he could not have directed the police to challan the accused for the offence of rape and this is what the Magistrate conveyed to the police when he directed filing of report under Section 173 Cr.P.C. Learned Counsel for the petitioner was right in contending that no such direction could be given to the police. I, however, do not find any force in

the submission of the learned counsel for the petitioner that the FIR of the present case should be quashed because of the prosecutrix having stated in her statement under Section 164 Cr.P.C. that she had lodged false complaint in fit of anger because of some prior incident in which there was some altercation between the petitioner and the family of the prosecutrix as that would be matter to be taken into consideration by the learned Metropolitan Magistrate. So, in my view this matter needs to be disposed of with direction to the learned Metropolitan Magistrate concerned to re-consider the matter on the basis of the complaint of the prosecutrix based on which FIR under Section 376 IPC was registered as also any other material which the investigating agency had collected upto the date of filing of its report requesting for closure of the case including the statement of the prosecutrix recorded under Section 164 Cr.P.C. and then to take an appropriate decision whether cognizance could be taken on the basis of that material or not or whether the matter requires further investigation.

7. In view of the fore-going, this petition is disposed of with direction to the learned Metropolitan Magistrate to re-consider the matter, as aforesaid, on the basis of the material collected by the police upto the date of filing of its closure report and take appropriate decision then. It is however clarified that this Court has not considered the material collected during investigation by the investigating agency and nothing observed in this order would be taken by the Magistrate as any

opinion of this Court on the merits of the case. The matter be taken up by the

learned Magistrate for consideration on 18[th] January, 2008.

P.K.BHASIN,J

January 7, 2008