Victim, through the prosecution, has a right to examine all witnesses to prove her case beyond reasonable doubt: Delhi HC sets aside Mahila Court order discharging police witness without giving opportunity to prosecution to examine him
Justice Swarana Kanta Sharma [30-01-2024]

Read Order:  BHAWNA GROVER v. STATE GOVT OF NCT OF DELHI & ORS [DEL HC- CRL.M.C. 2437/2023]

Tulip Kanth

New Delhi, February 5, 2024: In a case pertaining to dowry harassment and cruelty charges, the Delhi High Court has opined that a victim has a right to prove the contents of the complaints. The High Court has called for examination of witnesses who were earlier discharged by the Mahila Court.

The Single-Judge Bench of Justice Swarana Kanta Sharma was considering petition filed under Section 482 of the Code of Criminal Procedure, 1973 the whereby the petitioner had called for the record of proceedings of an FIR pending before the learned Mahila Court and had also requested the Court to pass orders for summoning Respondents No.2 and 3 to face trial.

Brief facts, leading to the filing of present petition were that the petitioner got married to Nishant Grover (brother of Respondent no. 2) and a son was born out of their wedlock. Ever since the marriage, the respondents herein, who are the sister and brother-in-law of petitioner’s husband and the other accused persons had been causing harassment to the petitioner. It was stated that respondents no. 2 and 3 had a strong influence on the working of other family members of the in-laws of the petitioner. It was stated that the husband and parent’s in-laws of the petitioner had deceived petitioner's parents while arranging the marriage between the petitioner and Sh. Nishant Grover and had misrepresented that he was a graduate whereas he was only 12th pass. The respondents had demanded a car, besides other expensive electronic gadgets, articles, furniture and expensive gifts for themselves and their relatives. It was also stated that they all desired for performance of marriage functions in high class hotels/banquet hall or some expensive venue, so as to boost their image in their society.

As alleged, the petitioner’s parents had spent more than Rs 45 lakh on the marriage of their daughter and about Rs 6 lakh was given as cash on various occasions. However, respondents no. 2 and 3 and the in-laws of petitioner used to continuously harass the petitioner and she had to suffer insult and humiliation due to ridiculing, demeaning and humiliating remarks of respondents and petitioner’s husband and in-laws.

The petitioner was constrained to lodge a complaint to the police authorities and CAW Cell (West), Delhi, and thereafter an FIR was registered for offence under Sections 498A/406/34 of Indian Penal Code, 1860 which was pending trial before the Mahila Court. The Petitioner had also preferred a complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (PWDV Act) against the offenders. After conclusion of investigation in the present FIR, chargesheet was filed against the accused persons. Thereafter, vide the impugned order the respondent no. 2 and 3 were discharged in the present case, and charges against other accused namely Nishant Grover, Shashi Grover and Vijay Grover were framed only under Sections 498A/ 406/ 506/ 34 of IPC.

After a bare perusal of order on charge, the Bench opined that the Sessions Court was only examining the case to find out as to whether prima facie offence under Sections 395/412 of IPC was made out against the accused persons for the purpose of framing of charge, and all the observations made in the order also reflected towards the same.

The Sessions Court had only considered as to whether session triable offences were made out or not against the accused persons, and no order was passed regarding the other sections i.e. 498A/ 406/ 327/ 380/ 382/ 386/ 420/ 506/ 34 of IPC qua which the Court had directed the accused persons to appear before the Magistrate, who was directed to proceed as per law. In case, the Sessions Court would have passed an order on charge qua Sections 498A/ 406/ 327/ 380/ 382/ 386/ 420/ 506/ 34 of IPC also, it would have written so not only in the order, but would have also directed the Magistrate to frame charges under relevant sections of law against the accused persons.

As per the Bench, there was no illegality in the order passed by the Mahila Court, when after hearing arguments on charge on the remaining provisions of law, the Court had proceeded to discharge respondent no. 2 and 3, and frame charges against three accused persons for offence under Sections 498A/406/506 of IPC. The Bench dismissed the contention raised on behalf of petitioner that no order on charge afresh could have been passed by the Mahila Court since the Sessions Court had framed charges under all remaining sections of IPC.

Regarding the challenge to the order passed by Mahila Court on merits, the Bench noted that the order was passed about three years prior to the filing of present writ petition. The petitioner herein had failed to take any steps to challenge the said order before the Sessions Court. Though it had been contended that the petitioner could get a copy of the order only on 17.02.2023, it was unbelievable that despite the order being uploaded on the website of district court concerned, and despite petitioner and her counsel being present before the Mahila Court on several dates for the purpose of recording of prosecution evidence, she was not aware as to what order on charge had been passed in the present case.  “Since the petitioner has failed to avail appropriate remedy available to her under law, for assailing order dated 17.08.2020 on merits, this Court is not inclined to interfere with the said order, in the present writ petition”, the Bench further opined.

One of the main grievances of the petitioner was that the Mahila Court vide order dated 29.03.2023 had erroneously dropped two prosecution witnesses i.e. witnesses of CAW Cell on the basis of statement made by two accused persons. On this aspect, the Bench noted that as per the statement of the accused persons, they were not admitting the contents of the complaints and statements which were to be proved by the said witnesses. It was opined that the Mahila Court had committed an error by dropping the witness no. 2 i.e. W/SI Darshan and witness no. 3 ASI Sarla who were to prove the contents of FIR and proceedings before CAW Cell respectively.

“The victim has a right to prove the contents of the complaints and the fact that complaints were made with certain content on certain dates, which may be crucial to prove her case during the course of trial. Therefore, the order dated 29.03.2023 is set aside to the extent as discussed above, and it is directed that the witness no. 2 and 3 as mentioned in the main chargesheet be called for examination”, the Bench said.

Another grievance of the petitioner was that the Mahila Court had discharged PW-2 without giving an opportunity to the prosecution to examine the said witness, even though the APP had requested to defer his examination for want of police file.

It was noticed by the Bench that the witness who was the initial investigating officer in this case had been discharged by the Mahila Court, even when a request was made to defer his testimony as the police file was not available with the prosecution for refreshing his memory. “This Court takes note of the fact that it is an old case pertaining to the year 2012, and the victim, through the prosecution, has a right to examine all the witnesses to prove her case beyond reasonable doubt”, the Bench stated while further adding, “Thus, no reasons were given by the learned Mahila Court as to why the request of learned APP, to defer the examination of PW-2 who had conducted the initial investigation in the present case since the police file was not traceable, was declined by the Court. Thus, this Court is of the opinion that the learned Mahila Court should have granted an opportunity to examine the witness i.e. PW-2 which was denied for no reasonable cause.”

Thus, setting aside the order of the Mahila Court to this extent, the Bench directed that PW-2 Insp. Bharat Bhushan shall be re-called for the purpose of his recording of evidence and examination before the Court.