ATIQ ANSARI vs STATE (NCT OF DELHI)

SANJEEV SACHDEVA, J.

CRL.REV.P. 32/2018 & Crl.M.A.599/2018 (stay)

1.The petitioner is aggrieved by order dated 01.12.2017, whereby, the charge has been framed against the petitioner under Sections 328/376 IPC.Â

2.The allegations in the FIR are that the prosecutrix was known to the accused-petitioner. It is contended that, on 16.07.2017, the prosecutrix met

the petitioner along with her friend and after having lunch the friend left. Thereafter, the petitioner is alleged to have asked the prosecutrix to

accompany him to meet a lady client of his. They went to a hotel where the prosecutrix did not find the lady client. On being inquired, it is

alleged, that she was informed by the petitioner that the client would be joining them soon. Thereafter, it is alleged that she was given water to drink

by the petitioner from a bottle, on drinking which, she became in a semiconscious state wherein she could see but her body was not responding. It is

contended that she was thereafter sexually assaulted.Â

3.Learned counsel for the petitioner submits that there is no material to substantiate the subject allegations. He submits that his client has been

falsely implicated. However, in the subject petition, he is restricting his challenge to the framing of charge under Section 328 IPC.Â

4.Learned APP for the State submits that the offence under Section 328 was not prima facie made out, accordingly, chargesheet was also filed under

Section 376 IPC. However, the Court, after examining the record, framed charges under Section 376/328 IPC.

5.Learned APP for the State points out that as per the medical examination of the petitioner, no traces of any stupefying drug was found in the blood

stream of the complainant, who had been immediately medically examined. Learned APP for the State also points out that the water bottle from

which water was given to the complainant had been seized and sent for forensic examination. Â

6.At the time when charges were framed, the forensic report was not available. It has been received subsequently. Copy of the examination

report dated 27.03.2018 has been produced in Court. The same is taken on record.Â

7.The result of the examination report is as under:-

“11. RESULTS OF EXAMINATION REPORTÂ

On Chemical, Microscopic, TLC & GC-HS examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates,

tranquilizers and pesticides could not be detected in exhibit ‘4’.

8.Perusal of the medical record shows that no traces of any stupefying substance was found in the blood stream of the prosecutrix, even the Forensic

Science Laboratory Report dated 27.03.2018 shows that metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates,

tranquilizers and pesticides could not be detected in the water. There is thus no evidence to substantiate the commission of offence under Section 328

IPC.Â

9.Accordingly, the petition is allowed. The Order-on-Charge is modified. The petitioner is discharged of the offence under Section 328 IPC. Â

10.It is clarified that this order will have no bearing on the charge under Section 376 IPC. Â

11.The petitioner is further aggrieved by the directions passed by the Trial Court on the application, filed by the petitioner, under Section 91 Cr.P.C.Â

It is contended by the learned counsel for the petitioner that along with the said application the petitioner had filed before the Trial Court transcripts of

the conversation as well as SMSs, which were exchanged between the prosecutrix as well as the petitioner.Â

12.The Trial Court, while disposing of the said application, had only directed seizure of the call detail record and did not direct preservation of the

electronic evidence qua the SMSs as well as the conversation exchanged between the petitioner and the prosecutrix. Â

13.In my view, if there is any electronic evidence qua conversation and SMSs exchanged between the petitioner and the prosecutrix, and has any

bearing on the facts of the case, the Trial Court should direct preservation of such evidence, so that the same may be available at the appropriate

stage.Â

14.In view of above, the order dated 01.12.2017, insofar as it disposes of the application under Section 91 Cr.P.C., filed by the petitioner is concerned,

is set aside. The Trial Court is directed to examine the relevance of the said electronic evidence and pass appropriate orders with regard to the

preservation of the electronic evidence, if so warranted.Â

15.Order Dasti under the signatures of the Court Master.Â

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