Delhi District Court
Kartar Singh vs State (Nct Of Delhi) on 8 April, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE-02(WEST), DELHI.
Crl Rev No. 29/2019
1. Kartar Singh,
s/o Sh. Ram Phal
2. Hari Chand
s/o Sh. Chandgi Ram
3. Jai Kishan,
s/o Sh. Rishal Singh
4. Jai Prakash,
s/o Sh. Ram Mehar
All R/o H.No. 748/37, Kabir Basti,
West Firni Road,
Village & P.S Mundka,
Delhi
.......... Revisionist(s).
Versus
1. State (NCT of Delhi)
2. Sh. Dharam Dev,
s/o Sh. Neki Ram,
R/o 748/37, Kabir Basti,
West Firni Road,
Village & P.S Mundka,
Delhi
..........Respondents
C.R No.29/2019 Kartar Singh Vs State & Ors. Page 1 of 7
Date of Institution : 14.01.2019
Date of Assignment : 14.01.2019
Date of Arguments : 08.04.2019
Date of Judgment : 08.04.2019
JUDGMENT:
1. The present revision has been preferred under section 397 Cr.P.C. against the order dated 19.12.2018 (hereinafter called 'impugned order') as passed by Ld. MM-6, (West), Delhi, (hereinafter called the Ld. Trial Court). Feeling aggrieved by the aforesaid impugned order, the present revisions petition has been preferred by the revisionist on the grounds as set out in the revision petition.
2. The facts of the case are that revisionist has filed the complaint u/s 200 Cr.P.C against respondents. Alongwith the complaint, revisionist has also filed an application u/s 156(3) Cr.P.C for seeking direction to the SHO PS Mundka for registration of FIR against the respondents which was dismissed.
3. Thereafter, respondent no. 2 led his evidence under section 200 Cr.P.C. and examined himself as CW-1, Dr. Ajay Kumar CMO of Sanjay Gandhi Memorial Hospital, Delhi as CW- 2 and Smt. Mamta as CW-3 and on the basis of their evidence, Ld. Trial Court summoned the revisionists as accused persons.
4. The revisionist appeared before the court and the matter was fixed for complainant evidence and on C.R No.29/2019 Kartar Singh Vs State & Ors. Page 2 of 7 18.07.2018, CW-3 Ms. Mamta appeared before the Ld. Trial Court and sought to adopt her pre summoning evidence as post summoning evidence. Thereafter, revisionist has also moved an application u/s 273 Cr.P.C seeking direction from the court to direct CW-3 Ms. Mamta to present herself for examination in chief as per the mandate of section 273 Cr.P.C.
5. The main ground pleaded in the revision is that Ld. Trial Court without considering the provisions of section 273 Cr.P.C which clearly provides that all the evidence taken in course of the trial or proceeding shall be taken in the presence of his pleader, has dismissed the application of the revisionist thereby depriving them of their legal right and opportunity. Therefore, it is pleaded that impugned order is totally illegal, biased, mechanical and curtailing the rights of the revisionist and hence, does not sustain in the eyes of law.
6. I have heard Ld. Counsel for revisionist and have perused the impugned order as well as trial court record.
7. The main issue involved here whether by passing impugned order, Ld. Trial Court has curtailed the right of revisionist by not allowing for recording of evidence of CW-3 Ms Mama on oath.
8. I have carefully perused the impugned order. The only reason given in the impugned order thereby dismissing the application u/s 273 Cr.P.C is that since CW-3 was already examined in pre summoning evidence, hence if she is allowed C.R No.29/2019 Kartar Singh Vs State & Ors. Page 3 of 7 to adopt her evidence recorded earlier, in pre charge evidence also, it will have sanctity of law being recorded on oath before the court.
9. Since the offences for which revisionists are facing trial, is a warrant trial case, it is necessary to appreciate the procedure relating to Warrant-trial case which starts from section 244 Cr.P.C onwards. For the better appreciation, section 244 Cr.P.C is reproduced hereunder:
"244. Evidence for prosecution.--(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
10. Section 244 Cr.P.C is applicable where the following conditions are fulfilled:
(i) it has to be a warrant case;,
(ii) it has to be on a complaint and not on a police report;
In case, the above two requirements are fulfilled, C.R No.29/2019 Kartar Singh Vs State & Ors. Page 4 of 7 section 244 Cr.P.C makes it mandatory for the Magistrate to hear the prosecution and take all such evidence as may be produced in support of the prosecution when the accused appears or produced before him/her.
11. Furthermore, section 273 Cr.P.C clearly provides that all the evidence taken in the course of the trial or other proceeding shall be taken in the presence of accused or his pleader. Nowhere, it provides any discretion upon the court now to allow the recording of evidence of any witness.
12. In other words, section 273 Cr.P.C clearly makes it obligatory for the Magistrate to ensure that the evidence of all the witnesses is recorded in the presence of accused thereby safeguarding the interest of justice and ensuring right to fair trial which is a fundamental right of every citizen as embodied in Article 21 of the Constitution of India.
13. The intent of the legislature is very clear from a conjoint reading of section 244 & 273 Cr.P.C that every evidence must be recorded in the presence of accused so that he/she may have every opportunity to counter the witness and to defend himself.
14. In view of above discussion, it is clear that after the appearance of revisionist before the Ld. Trial Court, in view of the mandate of section 244 & 273 Cr.P.C, Ld. Trial Court was under obligation to allow the recording of CW-3 Ms. Mamta in the presence of revisionist(s)/accused persons which was not followed.
C.R No.29/2019 Kartar Singh Vs State & Ors. Page 5 of 715. In Sunil Mehta & ANR. Vs. State of Gujarat & Anr., Crl. Appeal No. 327 of 2013, Hon'ble Supreme Court of India has held as under:
"Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that no case against the accused has been made out which may warrant his conviction."
16. Therefore, this court is of the considered opinion that the impugned order is illegal and suffers from inherent defect and hence, same is accordingly set aside with direction to Ld. C.R No.29/2019 Kartar Singh Vs State & Ors. Page 6 of 7 Trial Court to record the evidence in terms of provisions of section 244 & 273 Cr.P.C. In other words, the evidence of complainant's witnesses shall be recorded on oath. Revision petition, accordingly stands allowed in aforesaid terms.
17. Let the copy of this order be sent to Ld. Trial Court / Successor Court with TCR. Revision petition/ proceedings be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON THIS 08.04.2019 (POORAN CHAND) ADDI. SESSIONS JUDGE-02 (WEST):DELHI C.R No.29/2019 Kartar Singh Vs State & Ors. Page 7 of 7