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Judgment
Rakesh Kainthla, Judge
The present revision is directed against the order dated 08.01.2026, passed by learned Additional Chief Judicial Magistrate-Kasauli, District Solan, H.P. (learned trial Court), vide which the cancellation report submitted by the police in F.I.R. No.100 of 2024 was accepted and the protest petition filed by the petitioner (complainant before the learned trial Court) was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
Briefly stated, the facts giving rise to the present petition are that the informant (name being withheld to protect her identity) visited the police station on 13.12.2024 and filed a complaint to the police, asserting that the informant was residing with her friend ‘M’ and she was employed by ‘A’. The informant, her friend ‘M ’, and her employer ‘A’ had stayed in HPTDC, Hotel New Ros Common, Kasauli, District Solan, H.P. on 03.07.2023. The informant met two persons. She and her friend started talking to them. One identified himself as Mohan Lal and the other identified himself as Rocky Mittal. The accused asked the informant and her friend to visit their room. Rocky Mittal promised to cast the informant as a heroine in his music album. Mohan Lal promised to get the informant a government job. They also offered liquor to the informant and her friend. The informant and her friend declined, but the accused forcibly administered liquor to them. The accused raped the informant in the presence of her friend and recorded the incident. They also took the informant’s photographs. They threatened the informant. The informant was called to Panchkula two months before reporting the matter to the police. An attempt was made to falsely implicate her. The police registered the FIR and investigated the matter. The informant's statement was recorded by the learned Magistrate. The informant was asked to identify the room, but she declined, stating that she was feeling sick. The informant and her friend identified the place on 16.12.2024. The police prepared the site plan and seized the record. The Manager of the hotel revealed that the CCTV footage was preserved for one month and was deleted thereafter. It was found that one room was booked in the name of the informant and her employer, and three persons had stayed in the room. Only four rooms were booked in the hotel on 03.07.2023. The informant's friend ‘M’ visited the police station and stated that no such incident had taken place in her presence. The statement was video recorded, enquiries were made of the occupants of the hotel, and they stated that they were not aware of any such incident. No employee of the hotel had heard anything on the date of the incident. One bottle of beer was purchased by Jagjeet Singh, one of the occupants. The employer of the informant had also accompanied her on the date of registration of the FIR. A false FIR was lodged by the informant in connivance with her employer. There was a delay in reporting the matter to the police. The only witness to the incident had not supported the informant's version. Therefore, it was prayed that the FIR be cancelled.
The informant filed a protest petition reproducing the contents of the FIR. It was asserted that the informant had corroborated her statement before the Learned Magistrate. The police failed to properly investigate the matter and mechanically filed the closure report. The accused were not arrested. No Test Identification Parade (TIP) was conducted. The mobile phones of the accused were not seized. The informant's friend was repeatedly called to the police station. The call detail record and customer application form were withheld. The original documents were not seized, and only photocopies were seized. The record of CCTV footage was not seized by the police. The informant had stated before the Medical Officer that she was ready to give the history and get herself medically examined. However, she did not have a separate set of clothes and could not produce her clothes to the Medical Officer. Therefore, it was prayed that the cancellation report be rejected, cognisance of the offences be taken, the process be issued to the accused and the police be directed to seize the original hotel register, original DVR, CCTV footage, mobile phones of the accused, call detail records.
The learned trial Court held that the informant's version was inherently improbable. No person would have joined a stranger in a room. There was no evidence of forcible administration of the liquor. No person stated that anything was heard on the date of the incident. The matter was reported to the police after the lapse of 18 months. The CCTV footage was not available because of the lapse of time. The informant had not undergone medical examination. She had not narrated the incident to her employer. The informant could not identify the room for a considerable period. The informant's friend did not support her version. Mere consistency in the statement of the informant was not sufficient to summon the accused. Therefore, the learned Magistrate accepted the cancellation report and rejected the protest petition.
Being aggrieved by the order passed by the learned trial Court, the petitioner has filed the revision asserting that the learned trial Court conducted a mini trial assessing the probabilities on the basis of assumption. Adverse inferences were drawn, which were not permissible. The interim reliefs sought by the petitioner were not granted. The informant’s consistent statement was ignored. The Court has to see a prima facie case while summoning the accused and not evaluate the evidence. The investigation was not proper. The Investigating Officer confined himself to the commission of the rape, but did not examine the applicability of other sections of the IPC and the Information Technology Act. There was inordinate delay in recording the statements of the witnesses and seizure of the record. The investigation was one-sided to favour the accused. The standard guidelines to investigate and prosecute the offences against rape issued by the Ministry of Home Affairs were ignored. The informant should not be penalised for fault in the investigation. Therefore, it was prayed that the present revision be allowed and the order passed by the trial Court be set aside.
I have heard M/s Mohit Girdhar and Sanyam Yadav, learned counsel for the petitioner, Mr Jitender Sharma, learned Additional Advocate General, for the respondent /State and M/s Ankush Dass Sood and N.S. Chandel, Senior Advocates, assisted by Mr Ankit Dhiman, learned counsel for the accused.
Mr Mohit Girdhar, learned counsel for the petitioner, submitted that the learned trial Court erred in accepting the cancellation report submitted by the police and rejecting the protest petition filed by the petitioner. The police had not properly conducted the investigation. The interim relief sought by the petitioner/informant was not granted by the learned Magistrate. The police had conducted a one-sided investigation. The informant’s consistent statement was ignored. The learned trial Court erred in evaluating the evidence and commenting on the informant’s conduct. The informant's statement is required to be accepted in the cases of sexual assault, and the learned trial Court ignored this principle. Therefore, he prayed that the present revision be allowed and the order passed by the learned trial Court be set aside. He relied upon the following judgments in support of his submissions:
State vs Mohd. Javed Nasir & Ors. 222/DHC/005071;
Sachindra Priyadarshi vs. State of NCT of Delhi: 2025:
DHC:6773;
Hazrat Deen vs. The State of Uttar Pradesh 2022 Live Lal (SC) 134; and S vs. The State and Ors. Manu/DE/6978/2023;
Gagan Bihari Samal and Anr. vs. State of Orissa 1991(3) SCC562.
Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the matter was reported to the police after the lapse of 18 months. The informant was called to the police station in Haryana two months before reporting the matter to the police. She had not made any complaint to the police at that time. The informant's friend denied the informant's version in her statement before the learned Magistrate. The informant's employer also did not corroborate her version. The CCTV footage was found to have been overwritten, as it is preserved only for 1 month. No resident or employee of the hotel corroborated the informant's version. There is no evidence of purchase of the liquor by the accused. A special investigation team was constituted to carry out the investigation, and the investigation was properly conducted. No case was made out for submitting a charge sheet before the Court. There is no infirmity in the order passed by the learned trial Court. Hence, he prayed that the present revision be dismissed.
Mr. Ankush Dass Sood and Mr. N.S. Chandel, learned Senior Advocates for the accused, adopted the submissions of Mr Jitender Sharma, learned Additional Advocate for the respondent/State. They further submitted that the present FIR was lodged as a counterblast to the FIR lodged by the accused against the informant for attempting to blackmail them. There is no explanation for the delay. The informant had deliberately filed the complaint belatedly, knowing that the CCTV footage would not be preserved. She had not identified the room and had feigned sickness. The informant's friend did not support her version, and it is inherently improbable that the accused would have raped the informant and kept her friend sitting as a witness to depose against them. The informant’s testimony is sufficient in a rape case, but it should be of sterling nature. In the present case, the informant's testimony was contradicted by her friend, and there was no material to summon the accused. Summoning of the accused is a serious matter and liberty of a person should not be curtailed simply because some person has levelled an allegation against him. Therefore, they prayed that the present petition be dismissed.
I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.
It was laid down by the Hon'ble Supreme Court in Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400, that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion by examining the complainant and two witnesses on oath. It was observed at page 80:
28.Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and whether that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
Therefore, the submission that the learned trial Court should have summoned the accused merely because the informant had made a statement on oath complaining of the rape without looking into the attending circumstances cannot be accepted. It was laid down by the Bombay High Court in Gulam Mohd. Kabir Mohd. Mir v. State of Maharashtra, 2008 SCC OnLine Bom 1257: 2008 Cri LJ 2426, that the magistrate has to see the inherent improbabilities of the prosecution’s case at the time of summoning of the accused. It was observed at page 2432:
23.Section 204 falls in Chapter XVI of the Code. This Chapter relates to commencement of proceedings before a Magistrate. At the time of issuing process, what the Magistrate is required to find out is whether there is a prima facie case for issuance of process. The Magistrate has to take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. In other words, the Magistrate has to apply his judicial mind to find out whether an offence under the provisions of I.P.C. has been spelt out prima facie or not. Having seen the nature of judicial function the Magistrate is required to discharge, one can safely equate this inquiry under Section 167(2) of Cr. P.C. with that contemplated under Section 207 of Cr. P.C. This inquiry by no stretch of imagination can be said to be administrative. It is nothing but a judicial inquiry requiring application of judicial mind.
Thus, the Learned Magistrate was required to satisfy himself regarding the prima facie correctness of the allegation before summoning the accused.
It is the specific case of the informant that her friend was present during the incident, and she had witnessed the incident. However, the victim's friend had made a statement before the learned Additional Chief Judicial Magistrate, on 16.01.2024, that Rocky Mittal was identified by the informant. They talked to Rocky Mittal for 20-25 minutes. Thereafter, informed and she went to their home. They took the meal with their employer. Thereafter, they returned to Delhi. No rape had occurred in her presence. She was asked to depose by the informant and her employee. She was promised a huge amount of money for deposing against the accused.
Thus, it is apparent that out of two persons present in the room, one person has not supported the informant's version and has categorically stated that no such incident had taken place in her presence. Thus, the statement of the informant’s friend demolishes the informant's version.
The incident was reported to the police after the lapse of 18 months. It was specifically stated in the complaint made to the police that the informant was called to Panchkulla, and an attempt was made to falsely implicate her two months before the incident. The informant's statement was recorded on 25.09.2024 before the police at Panchkulla and does not mention the commission of any rape; rather, it was mentioned that the informant would file a complaint of the incident, which had taken place against her before Kasauli or at Delhi, but the nature of the incident was never revealed. The informant waited for two months before making the complaint at Kasauli. Thus, the learned trial Court was justified in holding that there was inordinate delay in reporting the matter to the police.
The informant was taken for the medical examination, and she refused to undergo internal and local examination as per the endorsement made by the doctor on the MLC. An explanation was provided in the present petition that the informant did not have spare clothes with her and that is why she could not get herself medically examined; however, this explanation is not supported by any material on record. It is not explained what the clothes have to do with the internal and local examination of the victim. Thus, this explanation is not acceptable.
The police recorded the statements of the occupants of the hotel and no person deposed that anything unusual was noticed by him/her. The informant’s employer stated before the learned Magistrate that he had asked the informant and her friend to roam outside the hotel. He has not stated that any complaint of rape was made by any person to him. Thus, there is no corroboration to the informant’s testimony from any independent source.
It was laid down by this Court in Khan Mohammad v. Talib Hussain, 1994 SCC OnLine HP 44: 1995 Cri LJ 1401 that a Magistrate has to satisfy himself that the evidence led before him is worthy of some credit. It was observed at page 1402:
6……The principle laid down in the above said cases is that the object of examination of the complainant and his witnesses under Section 200 of the Code is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided, therefore, to find out whether there is or not sufficient grounds for proceeding. If, in the opinion of the Magistrate concerned, there is no sufficient cause for proceeding, he may, for reasons to be recorded briefly, dismiss the complaint; if, on the contrary, the Magistrate taking cognisance of the offence is of the opinion that there is sufficient cause for proceeding. He should issue process against the accused in accordance with Section 204 of the Code. It may be that the evidence which is required to be adduced by the complainant at that stage may not be sufficient for recording a finding of conviction, but that fact would not absolve the complainant who wants the Magistrate to issue a process against the accused person from leading some credible evidence, as may prima facie show the commission of the offence. The words “sufficient grounds” used in Section 203 and Section 209 of the Code have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit and not sufficient ground for the purpose of conviction.
In the present case, the informant’s version was contradicted by the only witness named by her and was not corroborated by any material on record and the learned Magistrate was justified in holding that it was not credible to summon the accused.
It was submitted that the statement of the informant's friend was recorded belatedly, and she was won over by the accused persons. This submission will not help the informant. The Court is concerned with the material on record and cannot act on conjecture and surmises. There is nothing on record to show that the statement made by the informant’s friend before the Magistrate was made under some coercion. Therefore, her testimony cannot be rejected because of some delay in recording her statement by the Learned Magistrate.
The judgments in State vs. Mohd Javed Nasir (supra), Sachindra Piryadarshi (supra), Hazrat Deen(supra), S (supra) and Gagan Bihari (supra) deal with the parameters for framing charges against the accused and hold that the victim's statement is normally to be accepted as correct. There can be no dispute with this proposition of law, but it only applies when the victim is the sole witness to the incident and not to a case where the victim has named one eyewitness and she has refused to support the victim’s case by saying that no incident had taken place. It was laid down by the Hon'ble Supreme Court in Tameezudeen Versus State 2009(15) SCC 566 that the principle that the prosecutrix’s version has to be accepted in all cases is not correct. It was observed:
“7.It is true that in a case of rape, the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles that govern the appreciation of evidence in a criminal matter.”
This position was reiterated in Raju v. State of M.P., (2008) 15 SCC 133: (2009) 3 SCC (Cri) 751: 2008 SCC OnLine SC 1808, wherein it was observed:
11.It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim, but at the same time, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily, such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
Therefore, the accused cannot be summoned merely because the informant had said that she was raped.
It was submitted that there are various infirmities in the investigation. The police failed to arrest the accused. The infirmities in the investigation will not take away the effect of the delay in reporting the matter to the police, and that the eyewitness has not supported the informant's version. As far as the arrest of a person is concerned, it was laid down by the Hon'ble Supreme Court in Joginder Kumar v. State, 1994 (4) SCC 260, that a person is not to be arrested because it is lawful to do so, but only when his arrest is necessary. In the present case, no prima facie case was made out for the arrest of the accused, and a person cannot be arrested because another goes to the police station and makes a complaint against him. Accepting this proposition would put the life of every citizen in danger because anyone can go to the police station and make a complaint against another.
It was submitted that the informant had a right to declare her friend hostile and demonstrate that she was deposing falsely. This submission will not help the informant. There is no material on record to show that her friend is deposing falsely. She has made the statement on oath, and the same is to be accepted as correct. Further, the informant's friend could have been contradicted with reference to the previous inconsistent statement, but there is no previous inconsistent statement, and it is difficult to see how she could have been contradicted on oath.
It was submitted that the informant should be afforded a chance to prove her case and her FIR should not have been cancelled without affording such opportunity to her. This submission will not help the informant. This is contrary to the judgment of the Hon'ble Supreme Court in Pepsi Food (Supra), wherein it is stated that a person cannot be summoned because the complainant states something on oath, which is supported by two witnesses brought by him. In the present case, the informant's statement is not even supported by her witnesses. Thus, the accused cannot be summoned simply because the informant has made an unsubstantiated allegation against them.
It was submitted that the informant made the statement before the Magistrate on oath in which she corroborated her testimony and this was sufficient to summon the accused. This submission will not help the petitioner/informant. It has already been found out above that there is no material to corroborate the informant's version. Therefore, the accused cannot be summoned simply because the informant had supported her version on oath.
It was submitted that the learned Magistrate had not granted the interim direction prayed for by the informant. This submission will not help the informant. The police specifically stated that the CCTV footage was overwritten because it is preserved only for one month, and the statement of the Manager to this effect was recorded. Therefore, CCTV footage could not have been seized. The accused never denied their presence in the hotel, and the call detail record or the location would not have assisted the Court in determining the truthfulness or otherwise of the complaint. Even otherwise, the call detail record has been brought on record. Further, the police had seized the photocopies of the register, and the original register would not have helped, especially when the presence of the accused, informant, her friend and her employer in the hotel is not disputed by any person. Therefore, no advantage could have been derived by granting the interim directions prayed for by the informant.
No other point was urged.
In view of the above, the present revision fails, and the same is dismissed. Pending application(s), if any, also stand disposed of.
32 A copy of the judgment, along with the record of the learned trial Court, be sent back forthwith.