Delhi District Court
Shaji E.J vs The State (Nct Of Delhi) on 15 April, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CR No.09/2015
Shaji E.J., S/o Ismail,
R/o Q. No.4, 2nd Floor,
Police Colony, Uttam Nagar, Delhi. .....Revisionist.
V E R S U S
The State (NCT of Delhi)
New Delhi. .....Respondent.
Date of filing of petition. : 01.04.2015.
Date of arguments. : 10.04.2015.
Date of judgment. : 15.04.2015
:J U D G M E N T:
1. Aggrieved by the order on charge dated 05.01.2015, passed by the Ld. MM (West), Tis Hazari Courts, Delhi in a case bearing FIR No.197/2011 PS Uttam Nagar U/s 25/29 Arms Act titled as State Vs. Sweekar Luthra & Ors., whereby co accused Sweekar was discharged in the matter and charges were directed to be framed against the accused (revisionist herein) U/s 25/29 Arms Act, the revisionist has preferred the instant revision petition on 01.04.2015 interalia praying for setting aside the impugned order on charge dated 05.01.2015 and seeking discharge of the revisionist from the case.
2. Briefly stated, the story of prosecution, is that on 28.04.2011 at about 8.20 PM, accused Sweekar was arrested in Kalandra U/s 41.1 Cr.P.C by SI Chattar Singh and the said Shaji E.J. Vs. The State (CR No.09/2015) Page No.1 of pages 9 accused made a disclosure statement to the effect that he had handed over one pistol and two live cartridges to coaccused (revisionist herein), who is suspended constable in Delhi Police. Thereafter, a raiding team was formed and accused Shaji was informed about the disclosure of coaccused Sweekar. Accused Shaji (revisionist herein) got recovered one pistol with two live cartridges from his Maruti car. Thereafter, the recovered pistol and cartridges were sent to FSL and after obtaining sanction U/s 39 Arms Act, 1959 with respect to prosecution of accused Shaji from Additional DCP, charge sheet was filed in the court. Ld. MM took cognizance on the charge sheet and summoned both the accused persons. Copy of charge sheet was supplied to the accused persons including revisionist herein and then after hearing arguments on the point of framing of charge, vide the impugned order dated 05.01.2015, Ld. Trial Court discharged the coaccused Sweekar Lutha and order to frame charge U/s 25/29 Arms Act against the accused Shaji E.J (revisionist herein), which is being assailed by the revisionist on various grounds as enumerated in his revision petition itself.
3. Copy of the petition was supplied to the State and arguments were advanced by Ld. Addl. PP on behalf of the State, whereas counsel for the revisionist led his arguments on behalf of the revisionist. I have also perused the entire material placed on record particularly the contents of revision petition specially the grounds taken therein.
4. It is submitted by Ld. Counsel for revisionist that the impugned order on charge dated 05.01.2015 can not be sustained anymore in the eyes of law as the same suffers from grave error i.e. it has not been appreciated that there is not a single iota of evidence to link the revisionist with the commission of alleged offence, except the alleged disclosure Shaji E.J. Vs. The State (CR No.09/2015) Page No.2 of pages 9 statement of coaccused namely Sweekar Luthra, who has already been discharged by Ld. Trial Court. Further there is nothing on record to connect the revisionist with coaccused. The alleged recovery has been shown from a Maruti car, allegedly parked on the road side, and there is nothing on record to suggest that the said car belongs to the revisionist. It is claimed that SI Charan Singh, who was having a grudge against the revisionist, has taken a revenge from the revisionist as during the year 2002 to 2007, revisionist and said SI Charan Singh were posted in Special Staff and said SI used to expect some work from him, which the revisionist was not providing to him and as such he has been roped in this false case by SI Charan Singh. Further the revisionist has been lifted from his residence, which is situated in police quarters and also a thickly populated area, but no single independent witness has been joined in the investigation regarding his arrest as well as to the effect of recovery of alleged weapon at the instance of revisionist.
Per contra, according to Ld. Addl. PP for the State the revision petition as filed by the revisionist is devoid of merits as it has been failed to point out any illegality or patent error in the impugned order on charge dated 05.01.2015 and as such the instant revision petition is liable for dismissal. The revisionist has got recovered one pistol with two live cartridges from his Maruti car. The plea as raised on behalf of the revisionist in the instant revision are the defence taken by the revisionist/accused and they can not be looked into at this preliminary stage of framing of charge as these are the matter of trial. Since there are sufficient material on record for framing of charge U/s 25/29 Arms Act, so Ld. Trial Court has rightly ordered to frame the charges.
Shaji E.J. Vs. The State (CR No.09/2015) Page No.3 of pages 9
5. Law in respect of the question of framing of charge is well settled.
At this preliminary stage of trial, the Court is not required to see and evaluate the evidence proposed to be led by the prosecution meticulously with an idea to find out the guilt or otherwise of the accused. At this stage, the Court is required to see only prima facie evidence and even the charge can be framed on the basis of grave suspicion. At the same time it is also well established that the Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on.
In the celebrated judgment of the Hon'ble Supreme Court reported as AIR 1979 SC 366 titled as Union of India Vs. Prafulla Kumar Samal and Another it was held that, "the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out. In para 10 of the judgment, the Court further observed: (1).That the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(2).Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge Shaji E.J. Vs. The State (CR No.09/2015) Page No.4 of pages 9 and proceeding with the trial.
(3).The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4).That in exercising his jurisdiction under Section 227 of the Code of Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In Sajjan Kumar Vs. C.B.I 2010 (4) CC Cases (SC) 94, wherein it was held that: "if two versions are available by the evidence on judicial record, the accused may be discharged and the version favours the accused shall be adopted."
In 1994 (1) C.C. Cases 578 (HC) titled as Bhim Singh Vs. State, it was held that: Shaji E.J. Vs. The State (CR No.09/2015) Page No.5 of pages 9 "The stage of framing of charges is an important stage in the criminal trial and the Judge concerned has to carefully evaluate and consider the entire available material on record and he must judiciously apply his mind. Framing of charges erroneously would mean futile criminal prosecution for several year. The responsibility of the Judge concerned is particularly far greater in our country because of long delay in criminal trials and final disposal of criminal cases."
6. After giving my thoughtful consideration to the respective rival submissions of both the sides, I have come to the considered opinion that the instant revision petition as filed by the revisionist is liable to succeed as in the instant case the origin of the case itself is doubtful. The revisionist was arrested in this case on the disclosure statement of coaccused Sweekar Luthra, who has been discharged by Ld. Trial Court vide the impugned order and the said disclosure statement can not be relied upon for framing of charges against the accused/ revisionist herein in the instant case in the circumstances, where firstly there is nothing on record to show any connection between the revisionist and coaccused and further admittedly the recovery shown to be effected from the revisionist is made from a Maruti Car, which was parked on road side, and there is nothing on record to suggest any connection between the said Maruti Car and the accused (revisionist herein) i.e. the said car belongs to revisionist. It seems that the IO had taken a callous and careless approach in conducting the investigation of the instant case.
Further perusal of the record reveals that in this case Shaji E.J. Vs. The State (CR No.09/2015) Page No.6 of pages 9 accused Sweekar was arrested in Kalandra U/s 41.1 Cr.P.C by SI Chattar Singh on 28.04.2011 at about 8.20 PM and consequent upon making of disclosure statement, accused Shaji (revisionist herein) was arrested. The revisionist has placed on record documentary material procured through RTI Act, 2005 i.e. photocopy of record of "Wireless Log & Diary"
pertaining to period 27/28.04.2011, wherein on 28.04.2011 at 1.44 AM an information has been got recorded by the wife of revisionist to the effect that her husband Ct. Shaji E.J has been taken away by some people, who were in civil dress from Q. No.4, Type II, Staff Quarter, PS Uttam Nagar. The document filed on record by the revisionist, strengthen the claim of revisionist that he was lifted from his house and then subsequently booked in this case. Further the accused (revisionist herein) has been arrested from a thickly populated area and neither at the time of arrest of accused nor at the time of recovery of alleged weapon any independent witness has been joined in the investigation and non joining of independent witness further casts shadow of doubt on the whole prosecution version.
The courts have to be extremely careful in such circumstances. Unless there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the accused/revisionist to face the trial. A criminal trial is not exactly a pleasant experience. The person like the revisionist herein, who is a Government servant would certainly suffer great prejudice, where he is to face prosecution on absurd allegations. More over, it is well settled law that by and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against Shaji E.J. Vs. The State (CR No.09/2015) Page No.7 of pages 9 the accused, he will be fully within his right to discharge the accused.
7. In the light of aforesaid, the impugned order on charge dated 05.01.2015 is liable to set aside and same stands set aside accordingly. The revisionist is discharged from the case. His bail bond also stands discharged.
8. Copy of the judgment be sent to Ld. Trial Court for information.
9. Revision files be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR1)
Court on 15th April, 2015) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
Shaji E.J. Vs. The State (CR No.09/2015) Page No.8 of pages 9
CR No.09/2015
Shaji E.J. Vs. The State NCT of Delhi
15.04.2015
Present: As before.
Vide a separate judgment, revision petition of the revisionist stands allowed.
Copy of the judgment be sent to Ld. Trial Court for information.
Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ/Spl. Judge (NDPS) (West) 15.04.2015 Shaji E.J. Vs. The State (CR No.09/2015) Page No.9 of pages 9