Delhi District Court
Sh. H.S.Bhatia vs State (Nct Of Delhi) on 7 July, 2014
1
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL
SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS
DELHI
CR.No.52/2014
Unique ID No.0240IR0076042014
Sh. H.S.Bhatia,
S/o Sh.Sardar Avtar Singh,
R/o 2/16, Sector 9, Judge Colony,
Vaishali, Ghaziabad , UP
.......Revisionist
Versus
STATE (NCT OF DELHI) ........Respondent
Date of institution :13.02.2014
Date of conclusion of arguments/
reservation of Judgment :05.06.2014
Date of pronouncement of judgment :07.07.2014
ORDER
1. Present revision petition has been preferred by the revisionist against the impugned order dated 16.01.2014 passed by the learned MM in case FIR No. 42/97,PS I.P.Estate u/s 409 IPC, titled as State Vs Harjinder Singh and Others whereby charges for offence punishable u/s 409/120 B IPC were ordered to be framed against the accused/revisionist and other coaccused.
2. Briefly stated, the necessary facts for disposal of the present revision petition are that a complaint dated 23.01.1997 was made by Sh. Shashi Bhushan, Deputy Secretary (Vigilance) through the SHO, PS I.P.Estate wherein it was mentioned that the CBSE in order to achieve its objectives undertakes printing of question papers and answer books etc. The papers utilized for this purpose are directly purchased from the paper mills and the same are held in huge quantity at the unit of the CBSE called the Paper Order on Rev.No.52/2014 T Page 1 of 7 2 Store. The CBSE had its godown/paper store at 17B, Indraprastha Estate, New Delhi where huge quantities of paper was stored. The godown was locked after every dispatch or receipt, the keys of which were with the Section Officer, Paper Store, Sh. H.S.Bhatia/revisionist. On 22.01.1997, Sh.M.C.Goel, Assistant Secretary (Admn. III) received a report from Sh.H.S. Bhatia/revisionist stating that a number of bundles of papers of different sizes, quantity as well as quality were missing from the store room. Accused No. 1/ Revisionist also reported that while preparing inventory of stocks in order to hand over charge to the accused No.3, he had noticed these short comings in the stock. Sh. M.C.Goel then informed the Deputy Secretary Sh. Dayal about the shortcomings and got verified the stock position and prepared inventory as per which, the verification of the stock held in November 1996 was found to be incorrect. It was also alleged that Sh. H.S.Bhatia/revisionist had also stated that he had found the stocks short even on 15.01.1997 and therefore, he had got the locks put on the godown/paper store changed immediately. On 17.01.1997, fresh stocks were received but on 21.01.1997, some more bundles were found to be missing from the fresh stocks. Sh.H.S. Bhatia/revisionist accordingly found that the bundles from the fresh stocks were found missing even on 21.01.1997 i.e. even after the locks were changed. He had apprehended connivance of the involvement of the security guards provided by M/s Dynamic Security Services who were posted at the premises. As the value of the missing stock of paper was approximately found to be worth Rs.1,35,750/- complaint was lodged with the PS I.P.Estate which led to the registration of the present case FIR No. 43/97.
3. After following the due process of law, the learned trial Court framed charges for the offence U/s 409 read with Section 120B IPC against the present revisionist as well as other accused persons on 24.8.2004 which was challenged before the Learned Sessions Court. Learned Sessions Court vide its order dated 24.12.2004, quashed the charge framed and remanded back the matter to hear the accused afresh on the point of charge.
Order on Rev.No.52/2014 T Page 2 of 7 34. Learned Trial Court thereafter heard the arguments on charge afresh and discharged the present revisionist and other accused persons vide order dated 2.11.2007 and matter was referred back to the SHO for further investigation. Thereafter, supplementary charge sheet was filed after re-investigation against the present revisionist and other accused persons. Learned trial Court, then after hearing the arguments on the point of charge on the basis of the said supplementary charge sheet, framed charge for the offence U/s 409 read with Section 120B IPC against the accused persons vide orders dated 14.8.2012 and 30.8.2012.
5. The said order of framing of charge was once again challenged before the Learned Sessions Court. Vide order dated 6.4.2013, learned Sessions Court set aside the order of framing of charge and remanded the matter back to hear the arguments on the charge afresh.
6. Consequently, the learned Trial Court after hearing fresh arguments on the point of charge, came to the conclusion that a prima facie case u/s 409/120 B IPC is made out and charge was framed accordingly on 16.1.2014. It is this order of the learned trial court which has been challenged by way of the present revision petition.
7. I have heard the learned counsel for the accused/revisionist and have perused the relevant record with utmost care. None was present to represent the State to address the arguments.
8. The material on record reveals that the accused No.1/revisionist was the Section Officer along with other coaccused Basudev Harit, Sukhbir Sharma and Arun Kumar, who were the Head Assistant, Assistant and Peon respectively and were responsible for the Paper Store. After completing the formalities regarding receipt of fresh stock and/or dispatch to printers, the godown used to be locked and sealed by a duly signed paper glued to the lock by gum and the keys remained with the accused No.1/ revisionist. It is also on record that the accused No.1/ revisionist was working in paper Order on Rev.No.52/2014 T Page 3 of 7 4 store since January 1993 as Head Assistant and thereafter since May 1996 as Section Officer and during his tenure as Section Officer, the alleged theft of paper was committed.
9. The charge sheet, supplementary charge sheet and other documents on record also reveal that there were negative entries in the stock register of year 1993-1994. Similarly there were entries in the register which were incorrectly made and that the Paper Store used to be opened on holidays as well. It is not in dispute that Sh.H.S. Bhatia/revisionist used to maintain the stock and was responsible for the upkeep of the Paper Store during the relevant period.
10. The legal proposition qua the framing of charge is well settled and has been quoted in a catena of decisions. In the judgment of R.S.Nayak Vs. A.R.Antulay and another passed in CA No.658 of 1985 Dated 17.4.1986 it has been observed that :
"The Cr.P.C. contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if he ' considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under Section 239 arises when ' the Magistrate considers the charge against the accused to be groundless.' The power to discharge is exercisable under Section 245 (1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction......". It is a fact that Section 227 and 239 provide for discharge being ordered before recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to Order on Rev.No.52/2014 T Page 4 of 7 5 in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections and legal position is that if the trial. Court is satisfied that a prima facie case is made out, charge has to be framed."
11. It has also been similarly opined in cases titled as P.Vijayan Vs. State of Kerala and Another reported as AIR 2010 SC 663 and Akashdeep Vs. State arising out of criminal revision petition 192/2009 decided on 7.7.2009. In P.Vijayan Vs. State of Kerala and Another while discussing the scope Section 227 of the Code , Hon'ble Supreme Court discussed many celebrated judgments such as State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39, Union of India Vs. Prafulla Kumar Samal (1979) 3 SCC 4, Soma Chakaravarty Vs. State through CBI (2007) 5 SCC 403 and observed that :
" 9) Before considering the merits of the claim of both the parties, it is useful to refer Section 227 of the Code of Criminal Procedure 1973, which reads as under:- "227.Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reason for so doing." 10) If two views are possible and one of them gives rise to suspicion only , as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing the balancing of evidence and probabilities which is really the function of the court, after the trial starts. At the stage of Section 227, the Judge has Order on Rev.No.52/2014 T Page 5 of 7 6 merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which exfacie disclose that there are circumstances against the accused so as to frame a charge against him."
12. In the most recent judgment of the Hon'ble Supreme Court tiled as State of Tamil Nadu Vs N. Suresh Rajan and Others reported as 2014 Crl. L.J. 1444, it has been held that :
"True, it is that at the time of consideration of the applications for discharge, the court can not act as a mouth piece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order on discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction.In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat & Ors. V.State of Utttar Pradesh & Anr. , AIR 2013 SC 52:(2012 AIR SW6171), in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra V.State (NCT of Delhi) (2008) 2 SCC 561 : (AIR 2008 SC (Supp) 2014:
2008 AIR SCW 96): It is trite that at the stage of framing of charge the court is required to evaluate the material and Order on Rev.No.52/2014 T Page 6 of 7 7 documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At this stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At this stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
13. It is apparent from the ratio of the aforesaid cited judgments that at the stage of framing of charge, the Court only has to prima facie see if there is sufficient material on record to frame charge against the accused and that there is grave suspicion and not just mere suspicion to proceed against the accused. It is also well settled that at the stage of framing of charge, the defence of the accused cannot be considered.
14. Hence, in my considered opinion, there is sufficient material on record to frame charges u/s 409/120-B IPC against the accused/revisionist and therefore, I do not find any infirmity in the impugned order. Revision petition is therefore, dismissed. Trial court record be sent to the learned Trial Court with copy of this order. Revision file be consigned to Record Room.
Dictated and announced in the open court, Today on 7th July 2014. (Hemani Malhotra) Additional Sessions Judge -05 Central District:Tis Hazari Courts, Delhi Order on Rev.No.52/2014 T Page 7 of 7