MANU/DE/0606/2024

Equivalent/Neutral Citation: 2024:DHC :557

IN THE HIGH COURT OF DELHI

W.P. (Crl.) 600/2023
Decided On: 24.01.2024
Priya Vs. State of NCT of Delhi and Ors.
Hon'ble Judges/Coram:
Swarana Kanta Sharma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Abhishek Paruthi and Harshit Thareja, Advocates
For Respondents/Defendant: Amol Sinha, ASC
JUDGMENT
Swarana Kanta Sharma, J.
1. Ms. Priya i.e. the petitioner is a victim and informant of FIR No. 210/2021, registered
at Police Station Sector 23, Dwarka, Delhi under Sections 506/509 of Indian Penal
Code, 1860 ("IPC"), whereas respondent no. 2 Monu is the accused in the said FIR.
2 . By way of instant petition filed under Article 226 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, 1973("Cr.P.C"), the petitioner seeks
following prayers:
"A. Issue an Order for further investigation directing the prosecution agency to
entrust the further investigation to a competent superior officer in FIR no.
210/2021 PS. Dwarka, Delhi, registered under Section 506/509 IPC for a fair
trial to the Victim;
OR
In the alternative direct the Ld. Trial Court to issue an Order for further
investigation directing the prosecution agency to entrust the further
investigation to a competent superior officer in FIR no. 210/2021 PS. Dwarka,
Delhi, registered under Section 506/509 IPC for a fair trial to the Victim;
B. Setting aside the Order dated 08.12.2022 passed by the Ld.Trial Court in
Criminal Case no. 1328/2022;
C. Set aside the consequential proceedings inter-alia including Order dated
23.03.2022 passed by the Ld. Trial Court to secure the ends of justice and pass
appropriate directions for further proceedings;"
3 . Facts of the case, necessary for adjudication of present petition are that on
26.05.2021, Ms. Priya i.e. the petitioner herein had handed over a complaint at P.S.
Dwarka wherein she had narrated that while she was at her parental home, alongwith
her mother and sister-in-law in Dwarka on 25.05.2021,at about 9:20 PM, they had
heard loud noise of firecrackers and bike horns from the street, outside their house.

04-07-2024 (Page 1 of 5) www.manupatra.com Ramesh Gupta

This had caused fear among them, which had prompted them to look out of the window,
and they had seen that a boy named Monu was creating disturbances with his bike. She
had alleged that previously also, Monu had harassed "P", the complainant's younger
sister, and had obstructed her path, leading to filing of a previous complaint with the
police which was later withdrawn due to a compromise arrived at between the party and
in light of an apology tendered by the father of Monu. It was further alleged that on the
night of incident, during the PCR call, when the complainant had gone downstairs in an
attempt to note down the bike's registration number, Monu had confronted her, and
verbally abused her and attempted to touch her. Monu's family members engaged in a
quarrel with the complainant's family. It was also alleged that Monu, in an inebriated
state, had used indecent language and issued threats, including threatening to kill her
and her family members. The complainant had expressed her concern in the complaint
that if a resolution was not reached, her younger sister might be compelled to commit
suicide. On these allegations, the present FIR was registered on 28.05.2021, under
Sections 506/509 of IPC.
4 . As per chargesheet and status report placed on record, during the course of
investigation, the apology letter dated 02.09.2020 signed by the accused's father, for
previous instances of misbehaviour of accused with complainant's sister, was collected
by the police. The accused/respondent no. 2 was interrogated and arrested on
17.06.2021 and released on bail on the same day since the offences were bailable in
nature. The bike of the accused was also seized and deposited in malkhana by the I.O.
The statement of "P" i.e. younger sister of complainant was recorded under Section 164
of Cr.P.C. by the learned Magistrate on 12.10.2021. After completion of investigation,
chargesheet was filed against the accused under Sections 506 and 509 of IPC.
5 . Vide order dated 23.03.2022, the learned Additional Chief Metropolitan Magistrate,
South-West, Dwarka Courts had framed charge under Sections 506/509 of IPC against
the accused.
6. The case of petitioner is that she was never informed about the filing of chargesheet
nor was she called upon by the police for recording her statements or for any other
purpose during the course of investigation as well as at the time of framing of charge,
and the I.O. concerned had defeated the rights of victim herein in order to shield the
accused by carrying out selective and biased investigation and filing an incomplete and
perfunctory chargesheet against the accused, while completely ignoring the mandate of
Cr.P.C. and the procedure for investigation. It is her case that it was only somewhere in
first week of May, 2022, that the petitioner had received a notice/summons from the
learned Trial Court to appear before it and it was only thereafter that she had learnt that
chargesheet had already been filed in the present case and the charges had been framed
in absence of the petitioner herein. It is stated that despite specific allegations of
committing offence under Section 354 and 354D of IPC levelled by "P" in her statement
recorded under Section 164 of Cr.P.C., the said sections were not invoked in the
chargesheet by the police, and accordingly, charges could not also be framed by the
learned Trial Court for these offences, and only Sections 506/509 of IPC were invoked
on the basis of complaint submitted by the petitioner herein.
7. Learned counsel for the petitioner argues that the chargesheet filed in this case was
not a proper charge sheet and for the reasons best known to the investigating officer,
even the statement of petitioner/complainant was not recorded under Section 164 of
Cr.P.C. before the learned Magistrate, which is against the mandate of Section 164(5A)
of Cr.P.C. It is also submitted that the chargesheet did not contain any statement of
witnesses including the complainant herein under Section 161 of Cr.P.C. It is also

04-07-2024 (Page 2 of 5) www.manupatra.com Ramesh Gupta

pointed out that even no site plan of the place of incident has been prepared and filed
along with the chargesheet which would eventually lead to failure of prosecution in
proving the place of occurrence of crime and it will be fatal for the case of
petitioner/victim herein. It is argued that it is shocking that only the statement of
complainant's younger sister was recorded under Section 164 of Cr.P.C., however, the
sections invoked in the chargesheet were on the basis of complaint of the petitioner
only and her statement under Section 164 of Cr.P.C. was never recorded in this case. It
is submitted by the learned counsel for petitioner that an application was moved on
behalf of the petitioner herein before the learned Trial Court seeking addition of charges
i.e. charge under Section 354/354D of IPC against the accused on the basis of
statement of petitioner's younger sister recorded under Section 164 of Cr.P.C., however,
the Trial Court had held that the prosecution had only relied upon the complaint given
by the petitioner herein regarding incident which had taken place on 25.05.2021 and
the prosecution had not considered the allegations levelled by petitioner's younger
sister qua a past incident which had been compromised among the families, and thus,
charges only under Section 509/506 of IPC could be framed. It is submitted that the
petitioner had also moved an application before the learned Trial Court for ordering
further investigation in the present case since the investigation conducted by the I.O.
was improper and incomplete, but the learned Trial Court had dismissed the application
on the ground that in view of judgment of Hon'ble Apex Court in case of Vinubhai
Haribhai Malaviya v. State of Gujarat MANU/SC/1427/2019 : 2019:INSC:1146 : (2019)
17 SCC 1, the Trial Court could not have ordered further investigation after charges had
been framed. In this regard, learned counsel for the petitioner submits that though the
Trial Court cannot order for the investigation, the powers of constitutional Courts are
wide in addressing the rights of the victim and for ordering further investigation in case
where the investigation conducted by the I.O. is inherently incomplete and where the
chargesheet lacks even basic the fundamental requirements of law. It is further stated
that after the present FIR was registered on the basis of complaint lodged by petitioner,
the wife of the accused had also falsely implicated the family of the petitioner herein in
a frivolous case i.e. FIR bearing no. 210/2021, registered at Police Station Sector 23,
Dwarka, Delhi, under Sections 354/354B/509/323/34 of IPC and in the said case, the
I.O. had conducted proper investigation including recording of statements of witnesses
under Section 161 and 164 of Cr.P.C. as well as preparation of site plan, and all these
documents were filed along with the chargesheet before the Court. Therefore, in these
circumstances, it is prayed on behalf of petitioner that this Court orders the
investigating agency to conduct further investigation in this case, considering the
aforesaid lapses on part of the I.O.
8 . Learned ASC for the State, at the outset, fairly submits that it appears from the
records of the case that the investigation in this case was not conducted properly by the
I.O. concerned. It is submitted that if this Court deems it fit, it may direct the police to
conduct further investigation on points such as recording of statement of petitioner
herein under Section 164 of Cr.P.C. who was the original complainant in the present FIR
since the offence made out from the allegations made by her falls under Section 509 of
IPC, on point of preparation of site plan in the present case, and on the issue as to
whether Section 354 and 354D of IPC are made out or not and whether are to be
invoked or not in the present FIR.
9 . This Court has heard arguments addressed on behalf of petitioner as well as State,
and has carefully perused the material placed on record by both the parties.
10. In the present case, the petitioner has contended at the outset that she was never
informed about completion of investigation, filing of chargesheet as well as about

04-07-2024 (Page 3 of 5) www.manupatra.com Ramesh Gupta

framing of charge against the accused in the present case, even though she was the
complainant/informant in the present case. In this regard, this Court notes that as per
Section 173(2) of Cr.P.C., it is the duty of the investigating officer concerned to inform
the complainant/informant about the completion of investigation. This Bench in case of
P v. State Crl.M.C. 528/2023 had also taken note of a similar situation where the
complainant had not been informed about the filing of chargesheet and she had
remained absent from the Court at the time of framing of charge and could get to know
about the faulty investigation conducted by the investigating officer only at a later stage
when she was summoned by the Trial Court, and while taking note of the same, this
Bench had held as under with regard to Section 173(2) of Cr.P.C.:
"11. This Court notes that Section 173(2)(ii) mandates the officer in charge of
the police station that upon completion of the investigation, he shall:
i. Forward the report to the Magistrate empowered to take cognizance
of the offence on a police report, and;
ii. Communicate the action taken by him to the first informant.
12. Thus, Section 173(2)(ii) casts a duty upon the officer in- charge of the
police station to communicate to the complainant about the action taken by him
i.e. filing of the final report before the concerned Magistrate.
***
19. It is observed that in Section 173(2)(ii), the legislature has used the word
"shall" in respect of duty of the officer in-charge of police station to
communicate about the action taken by him, which clearly conveys the intent of
legislature that it is utmost essential on the part of investigating agency to
intimate the complainant about the completion of investigation."
11. In the case at hand, nothing has been placed on record by the State to show that
the investigating officer had informed the petitioner herein about the completion of
investigation and filing of chargesheet.
12. Be that as it may, at this stage, this Court has taken note of the lapses on part of
investigating officer and the deficiencies in the chargesheet, as pointed out by the
learned counsel for petitioner.
13. A bare perusal of the chargesheet reveals that though it has been mentioned therein
that the ASI concerned had visited the site i.e. the place of incident and had prepared a
site plan, no such site plan was filed along with the chargesheet in the present case nor
was there any mention of site plan in the index of documents filed alongwith the
chargesheet. Even during the course of arguments, it was fairly submitted by learned
ASC for the State, on instructions from current I.O., that no site plan was prepared in
the present case.
14. This Court further notes that the investigation in this case was conducted clearly
against the mandate of Section 164(5A) of Cr.P.C. which mandates that in cases where
the alleged offence falls under Section 509 of IPC, it shall be the duty of investigating
officer to produce the complainant/victim before the Magistrate for the purpose of
recording her statement under Section 164 of Cr.P.C. However, strangely in the present
case, the complainant herein was not produced before the Magistrate for the purpose of
recording of her statement under Section 164 of Cr.P.C. nor was her statement recorded

04-07-2024 (Page 4 of 5) www.manupatra.com Ramesh Gupta

under Section 161 of Cr.P.C. by the I.O.
15. Interestingly, in this case, the investigating officer had got the statement of sister
of the complainant recorded under Section 164 of Cr.P.C. wherein allegations pertaining
to offences under Section 354/354D of IPC were levelled by her against the accused in
respect of some prior incidents, however, this statement and allegations levelled by her
were not considered by the I.O. while filing the chargesheet, nor were any reasons
assigned for not considering her statement for making out any offence in the present
case, and the chargesheet in this case was filed only under Sections 506/509 of IPC,
solely on the basis of complaint lodged by the petitioner, without there being any
statement of petitioner recorded under Section 164 of Cr.P.C.
16. Learned ASC for the State had also submitted during the course of arguments that
considering these aspects and lapses in conducting the investigation, this Court may
direct the investigating agency to conduct further investigation for the purpose of
recording statement under Section 164 of Cr.P.C. of the complainant/petitioner, for the
purpose of preparation of site plan of the incident, and for the purpose of ascertaining
as to whether the statement of petitioner's younger sister is to be considered in the
present case or not and as to whether offence under Sections 354/354D of IPC would be
made out against the accused or not.
17. Therefore, considering the aforesaid facts and circumstances of the case, and the
fact that the powers of Constitutional Courts are not limited in ordering any further
investigation even if charges have been framed and if glaring deficiencies on part of
investigating agency are pointed out, this Court is of the opinion that the petitioner who
is the complainant in the present FIR cannot be made to suffer due to lapses on part of
prosecution. In view thereof, this Court deems it appropriate as well as utmost
necessary to direct further investigation to be conducted by the investigating officer on
three points, as taken note of in the preceding paragraph and as submitted by learned
ASC for the State.
18. In the present case, a prayer had also been made for setting aside order dated
23.03.2022 vide which charges were framed against the accused only for offence under
Section 506/509 of IPC. However, in this regard, this Court is of the opinion that since
further investigation has been directed by this Court and a supplementary chargesheet
would be filed by the investigating officer, on which cognizance will be taken as per
law, the learned Trial Court will be required as per law to alter the charge or frame
additional charge in the present case on the basis of further investigation conducted by
the investigating officer, if the material so requires. Thus, this Court is not inclined to
set aside order dated 23.03.2022 passed by the learned ACMM.
19. However, it is directed that the further investigation shall be completed by the I.O.
in this case within a period of one month and supplementary report shall be filed as per
law, under intimation to the petitioner herein.
20. With these directions, the present petition stands disposed of.
21. The judgment be uploaded on the website forthwith.
© Manupatra Information Solutions Pvt. Ltd.

04-07-2024 (Page 5 of 5) www.manupatra.com Ramesh Gupta