SARITA ARORA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) By this writ petition filed under Article 226 of the Constitution of India the petitioner seeks to challenge the order dated 10.3.2011 passed by the learned Metropolitan Magistrate whereby the learned Metropolitan Magistrate framed the charge against the petitioner under Section 411/482/34 IPC and order dated 25.7.2011 passed by the learned Additional Sessions Judge whereby the learned Additional Sessions Judge upheld the order of charge passed by the learned Metropolitan Magistrate.

(2.) Arguing the present petition Mr.Mohd. Irfan, counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in the present case even after the investigation against her had stopped based on the closure report filed by the U.P. police in the case No. 352/2008 bearing FIR No. 118/2008 registered under Sections 420/467/471/411/34 IPC. Contention raised by counsel for the petitioner is that the petitioner had placed on record before the Trial Court as well as Revisional Court the said closure report of the U.P. police, but both the said Courts failed to consider the said closure report. Counsel further submitted that the petitioner was not apprehended or arrested from the spot and in fact the U.P. police on verification found the petitioner present in G.S.B.A. College, Noida where the petitioner had gone to meet her son, who is a student of the said college. Counsel also submitted that the concerned I.O. of U.P. police had collected the photocopy of the relevant page No. 175 of the visitor's register of G.S.B.A. college vide seizure memo, which recorded the arrival and departure entry of the petitioner and which fact clearly establishes that the petitioner had gone to meet her son at the said college at the relevant time of interception of the said car. Counsel further submitted that I.O. of the U.P. police had also taken sample of handwriting and the signatures of the petitioner on the visitor's register of the said college for sending the same for comparison to the FSL Agra, U.P. and as per the FSL report, Agra U.P. the sample of the handwriting of the petitioner tallied with that in the visitor's register of the said college. Counsel also submitted that there is no other evidence available with the Delhi Police for prosecuting the present petitioner in the present case except the alleged presence of the petitioner in the stolen car, which was not found to be true by the U.P. Police after the necessary verification was made by the U.P. police and based on which the U.P. police filed the closure report. Counsel also submitted that the Trial Court can look into the defence material placed on record even at the stage of framing of charges in very rare and exceptional circumstances when such defence material shown to the Trial Court convincingly demonstrates that the prosecution version is totally absurd or preposterous. In support of his arguments counsel for the petitioner placed reliance on the case of Rukmini Narvekar v. Vijaya Satardekar & Ors., 2008 4 JCC 2879. Counsel also submitted that both the Courts below had placed reliance on the judgment in the case of State of Orissa v. Debendra Nath Padhi, 2005 AIR(SC) 359, but failed to take note of the Rukmini's case, which is fairly applicable to the facts of the present case.

(3.) The present petition has been opposed by Mr. Navin Sharma, APP for the State. Mr. Sharma submitted that both the Courts below rightly placed reliance on the judgment of Apex Court in State of Orissa v. Debendra Nath Padhi as the said judgment is given by a larger Bench of three Judges while the judgment in the case of Rukmini Narvekar (supra )is given by a Bench of two Judges. Counsel also submitted that the petitioner has taken a plea of alibi by showing her presence in the said college at the time when stolen car was intercepted by the police. Counsel also submitted that the case registered against the petitioner in the present FIR is under Sections 411 and 482 IPC while the petitioner was charged under different sections in the FIR lodged against him by the U.P. police. Counsel also submitted that the defence of alibi cannot be appreciated by the Court at the stage of framing of charges and such defence can only be appreciated by the Trial Court during the trial of the case.