Mehra Vs. Delhi Administration & Anr  INSC
880 (31 July 1996)
Punchhi, K.T. Thomas Thomas,J.
DAY OF JULY, 1996 Present:
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
following Judgment of the Court was delivered:
Mehra V. Delhi administration and another
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.
details of the case are these:
(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 untrue.
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.
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
returned to India on 127.1993 and thereafter filed a
petition for a writ of Habeas Corpus for securing the custody of the children.
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
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.
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.
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.
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
are, therefore, considering the main question whether the Sessions Court should
have framed the charge against the appellant as it did now.
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:
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 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).
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.
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
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.
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
record of the case and
documents produced therewith.
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
situation arise under Section 239 of the Code (which deals with trial of
warrant cases on police report).
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.
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.
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.
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.
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.
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
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.
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
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 down
here and prevent him from going back to U.S.A.
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.
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.
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 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.
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
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.
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.
therefore, quash the proceedings and the charge framed by the Sessions Judgement
and discharge the appellant. The appeal would stand allowed.