Delhi District Court
State vs . Vinod Sharma on 15 December, 2011
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI. FIR NO. : 35/09 PS : Preet Vihar Offence complained of : 447/427 IPC Date of commission of offence : 23.01.2009 Unique Case ID No. : 02402R0084982009 STATE Vs. Vinod Sharma S/o Girdhari Lal Sharma R/o President Gufawali Mandir, Preet Vihar, Delhi. .............. Accused Sh. D. P. Singh ( J.E.), Eastern Division No. 5, Dilshad Garden, DDA Office Complex, Delhi. ............. Complainant Date of Institution : 21.03.2009 Plea of accused : Pleaded not guilty. Date of reserving judgment/ order : 01.12.2011 Date of pronouncement : 15.12.2011 Final Order : Acquitted BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 23.01.09 at unknown time the accused entered into the property of DDA i.e. Plot near Gujawala Mandir, G Block, Preet Vihar, Delhi by breaking the boundary wall of DDA Plot and thereby accused committed the offence punishable U/s 447/427 IPC. FIR On the basis of the said allegations and on the complaint of the FIR No. 35/09 Page No. 1 / 11 complainant Sh. D. P. Singh, an FIR bearing number 35/09 under sections 447/427 IPC was lodged at Police Station Preet Vihar on 23.01.09. NOTICE After investigation, chargesheet under section 173 Cr.P.C was filed on 21.03.09 The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 205 Cr.P.C. On the basis of the chargesheet, a notice for the offence punishable under section 447/427 IPC was framed against the accused Vinod Sharma and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 28.06.11. JUDICIAL RESOLUTION In order to frame the charges U/s 447/427 IPC the prosecution is required to prove following facts. The facts required to be proved by the prosecution with respect to the offence U/s 447 IPC are as under: (i) Entry into or upon property in the possession of another. (ii)If such entry is lawful, then unlawfully remaining upon such property. (iii) Such entry or unlawful remaining must be with intent (a) to commit an offence; or (b) to intimidate, insult or annoy any person in possession of the property. The facts required to be proved by the prosecution with respect to the offence U/s 427 IPC are as under: FIR No. 35/09 Page No. 2 / 11 (i) That the accused committed mischief. (ii) That he thereby caused loss or damage to the amount of fifty rupees or more. In order to prove the above said allegations, the prosecution cited 4 witnesses, of which the eye witness/complainant is Mr. D. P. Singh who has been examined as PW1. PW1 Sh. D. P. Singh stated in his examinationinchief that in the month of January, 2009 he was informed by his staff that some persons from Gufawala Mandir have broken the wall of DDA for keeping the construction material as construction work was going on in the mandir. When he reached the mandir he found that construction was going on in the mandir and DDA wall was broken and construction material was kept in DDA plot. The witness thereafter called the chowkidar of the mandir and asked him as to who has broken the wall to which the said chowkidar has replied that the wall was broken on the directions of President of Gufawala Mandir namely Vinod Sharma. Thereafter he called police and on arrival of police he gave a written complaint to the police which is Ex.PW1/A. The witness also correctly identified the accused Vinod Sharma. He also identified the photographs of the spot as Mark P1 to P5 ( not exhibited as the photographer was not examined). The witness was also cross examined by the Ld. APP for the State with the permission of the court wherein he stated that he had written in his complaint Ex.PW1/A that when he reached Gufawala Mandir on the date of incident he found that DDA wall was demolished by accused Vinod Sharma. The witness denied that any site plan was prepared in his presence by the police officials and he also failed to remember if the police had interrogated the labours/masons present there. The witness also failed to remember whether the accused was arrested in his FIR No. 35/09 Page No. 3 / 11 presence or not. The witness was cross examined at length by ld. counsel for the accused wherein the witness has admitted that no evaluation as regards the loss suffered by DDA due to demolition of wall was done by him and that the same was rebuild by the mandir authority. The witness further stated that he was informed about the breaking of the wall by baildar Vinod Kumar and that neither the wall was broken by accused Vinod Sharma himself nor the witness had seen anyone breaking the wall. The witness also stated that the chowkidar who had informed him that the wall was broken on the directions of the accused, was also present there when the police came at the spot. Other suggestions made by ld. defence counsel was denied by the witness. Besides this witness other three witnesses cited by the prosecution are police witness of which HC Ramadhar is the investigating officer and Ct. Mohan Singh is the police official who had accompanied the IO to the spot. HC Sanjay Kumar is the duty officer who had recorded the FIR of the present case on 23.01.09
. Thus, none of the said three police witnesses are witnesses to the offence U/s 447 IPC or offence U/s 427 IPC. Rather, even the complainant himself is not an eye witness to any of the two offences with which the accused has been charged as he has clearly stated in his testimony that he was informed about the breaking of the wall by baildar Vinod Kumar and he was informed that the wall was broken on the directions of the accused Vinod Sharma by the chowkidar of the mandir. The witness has clearly stated in his testimony that "the wall was not broken by Vinod Sharma.....I have not seen anybody breaking the wall." Thus, the entire testimony of the sole witness cited by the prosecution with respect to the offences U/s 447/427 IPC is hearsay evidence partly heard from baildar Vinod Kumar and partly heard from the chowkidar of the mandir. The investigating agency FIR No. 35/09 Page No. 4 / 11 has neither cited baildar Vinod Kumar as a witness nor the chowkidar of the mandir has been cited as a witness. Rather, the labours/masons present at the spot at the time of incident have also not been examined by the investigating agency. The fact that these witnesses have not been examined by the investigating agency goes in favour of the accused and against the prosecution as not examining such witnesses lead to a presumption U/s 114 Illustration (g) of Indian Evidence Act which states that the court may presume the evidence which could be and is not produced would, if produced be, unfavourable to the person who holds it and thereby the court may draw adverse inference as regards to the non examination of baildar Vinod Kumar, chowkidar of the mandir and labours/masons present at the spot.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C. R. ( Criminal) 480 the division bench of Honorable Justices Sh. S. B. Sinha and Sh. Dalveer Bhandary observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure memo who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witnesses. Even their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
" The Court may presume
(a) ***
(b) *** FIR No. 35/09 Page No. 5 / 11 (c )***
(d) ***
(e) ***
(f) ***
(g) that evidence which could be and is not produced would,if produced be, unfavourable to the person who holds its." An adverse inference, therefore, could be drawn for nonexamination of material witnesses." ( emphasis supplied) In view of the testimony of PW1 D. P. Singh, the court is of the opinion, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 447/427 IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses FIR No. 35/09 Page No. 6 / 11 has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an FIR No. 35/09 Page No. 7 / 11 end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the FIR No. 35/09 Page No. 8 / 11 case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3057 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra FIR No. 35/09 Page No. 9 / 11 Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments and in view of the testimony of PW1 Sh. D. P. Singh, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 447/427 IPC to make the ends of justice meet.
Final Order In view of the testimony of PW1 Sh. D. P. Singh and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused person to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against the accused Vinod Sharma qua offences u/s 447/427 IPC in the present summons police case and hereby releases FIR No. 35/09 Page No. 10 / 11 the accused Vinod Sharma under sections 447/427 IPC, which shall have the effect of acquittal.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 15.12.2011.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 15.12.2011 Certified that this judgment contains 11 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 15.12.2011 FIR No. 35/09 Page No. 11 / 11