Delhi District Court
Sandeep Kumar & Anr vs . The State on 22 May, 2017
Sandeep Kumar & Anr Vs. The State
CR No. 213/2017
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE
(PC ACT) CBI-I DWARKA COURTS; NEW DELHI
1. Sandeep Kumar
S/o Sh. Dalbir Singh
R/o House No. 77, Village
Nangli Sakrawati
New Delhi.
2. Satish
S/o Sh. Rishal Singh
R/o Village Gangdawa
District Jhajjar
(Haryana)
......... Petitioners/Revisionists
VERSUS
The State
...........Respondent
CR No. 213/2017
Date of Institution 12.05.2017
Reserved for orders on 17.05.2017
Judgment announced on 22.05.2017
CA No:213/2017 Page 1 of 17 D.O.O. 22.05.2017
Sandeep Kumar & Anr Vs. The State
CR No. 213/2017
JUDGMENT
1. This is a revision petition under Section 397 Cr.P.C. against the order dated 10.02.2017 passed by Ld. MM-06/South West/Dwarka Couts/New Delhi in case FIR no. 279/2014, under Section 186/353/509/34 IPC, PS Dwarka North, New Delhi whereby Ld. MM has been pleased to frame notice under Section 251 Cr.P.C. against the revisionists.
2. Briefly stated facts relevant for disposal of the revision petition are as under:
3. It is stated in the revision petition that on the date of incidence i.e. 25.04.2014 at about 5.35 PM, complainant reached the office of the revisionists and enquired about one Raj Kumar who was working as a driver with the revisionists and complainant also enquired about the owner of the shop and revisionist no. 1 told the complainant that he is the owner of the shop and thereafter complainant started quarreling with revisionist no. 1 without disclosing her identity and the complainant was also not in proper uniform of Police. It is further stated that the complainant put pressure upon the revisionists to call the said Raj Kumar but revisionist no. 1 told the complainant that the said Raj Kumar is not working with them and after hearing the same, the complainant threatened the revisionists to falsely implicate them in a CA No:213/2017 Page 2 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 false criminal case. It is further stated in the revision petition that the revisionists approached the police station Dwarka North to lodge their complaint against the complainant regarding the incident but police officials did not register the complaint of the revisionists. It is further stated that after hearing the arguments on charge, Ld. MM was pleased to frame charge for offences under Sections 186/353/509/34 IPC against the revisionists vide impugned order dated 10.02.2017. It is stated that the impugned order is based on surmises and conjectures and the Ld. Trial Court has not fully appreciated the version of the complainant which is contradictory in nature. It is stated that complainant has not specified the person who abused her and the Trial Court failed to appreciate that the CCTV was installed in the office of the revisionists but the police officials removed the same. It is stated that the complainant has stated in her complaint that mother of the victim was also present but her name has not been mentioned in the charge sheet. It is stated that impugned order is liable to be set aside.
4. I have heard Ld. Counsel for the parties and perused the records.
5. The contention of Ld. Counsel for the revisionists is that the present case was registered on the basis of complaint of SI Anita and there are contradictions in her complaint and offences under Section 186/353/509 IPC are CA No:213/2017 Page 3 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 not attracted.
6. Ld. Counsel for the revisionists has further contended that the police officials had not disclosed their identity to the revisionists and no person from the public has been joined in the investigation and the CCTV footage of the spot of incidence has not been made part of the record.
7. Ld. Addl. PP for the State has contended that as per the allegations as contained in the complaint of SI Anita, offences under Section 186/353/509/34 IPC are made out. Ld. Addl. PP for the State has further contended that the complaint of SI Anita is also supported by the statement of other witnesses namely HC Kehar Singh and Ct. Dharmender who were also present at the spot along with SI Anita. Ld. Addl. PP for the State has contended that the accused persons were arrested at the pointing out of SI Anita and supplementary statement under Section 161 Cr.P.C. of SI Anita to this effect has been recorded on 09.05.2015 and in the circumstances, there was no requirement of conducting TIP proceedings.
8. Ld. Addl. PP for the State has further contended that at the stage of framing of charge, only prima facie view of the matter is taken and entire evidence is not to be weighed meticulously.
9. The present revision petition arises out of FIR No. 279/14, under Sections 186/353/509/34 IPC, PS Dwarka North which was registered on the basis of CA No:213/2017 Page 4 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 complaint of SI Anita wherein she stated that on 25.04.2014 she along with HC Kehar Singh and Ct. Dharmender had gone in search of one accused Raj Kumar and at 5.35 PM they reached Max Property Office, Main Uttam Nagar, Najafgarh Road, Near Ganda Nala and one person was standing outside the said office and she gave her introduction to the said person and asked about the Raj Kumar and the said person stated that Raj Kumar is working with them and he will call him and told them to sit inside and all the members of police party sat in the said office and she (SI Anita) asked that who is the owner of the said shop and with whom Raj Kumar is working and in the meantime one of the said persons stated loudly that she should do her work and need not ask unnecessary things and she (SI Anita) told the said person as to why he is behaving in such a manner and in the meantime other person started abusing her and staring in dirty manner shouted at her and stated that "tujhme jayada garmi hei kaya, abhi nikalu teri garmi", thereafter SI Anita call on 100 number and thereafter said persons after pushing Ct. Dharmender ran away from the said spot by saying that neither they will be found by them nor Raj Kumar and such like police officers are kept by them in their pocket.
10. The contention of Ld. Counsel for the accused persons/revisionists is that offences under Section CA No:213/2017 Page 5 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 186/353/509 IPC are not made out.
11. Section 186 IPC reads as:
Obstructing public servant in discharge of public functions.- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
12. Section 353 IPC reads as :
Assault or criminal force to deter public servant from discharge of his duty.-Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
13. Section 509 IPC reads as :
Word, gesture or act intended to insult the CA No:213/2017 Page 6 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 modesty of a woman.- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
14. In her complaint, SI Anita has clearly stated that she had given her introduction to the accused persons/revisionists while she had made enquiries about the Raj Kumar.
15. As per allegations in FIR, the said Raj Kumar was not produced before the police party and after misbehaving with the police party and using criminal force against one of the members of the policy party who was discharging his duties as a public servant, the accused persons( revisionists herein) escaped from the spot.
16. As per allegations of prosecution, the accused persons had used words and made gestures intending that the said words shall be heard and gestures shall be seen by SI Anita, a female officer and thereby intruding upon the privacy of the female officer.
CA No:213/2017 Page 7 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017
17. Section 240 Cr.P.C. reads as :
Framing of charge.- (1) if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, an he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
18. In Union of India V. Prafula Kumar Samal AIR 1979 Supreme Court 366, Hon'ble Supreme Court was pleased to hold:
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the 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 CA No:213/2017 Page 8 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 accused has been made out;
(2) Where 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 and proceeding with the trial.
(3) The test of 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 the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office 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 documents produced before the Court, any basis infirmities CA No:213/2017 Page 9 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 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.
19. In State of M.P. V. S.B. Johari, AIR 2000 Supreme Court 665, Hon'ble Supreme Court was pleased to hold:
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It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilty of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused CA No:213/2017 Page 10 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya etc., reported in ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 : 1990 Cri LJ 1869), after considering the provisions of Ss 227 and 228, Cr. P.C. Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may pursue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar V. Ramesh Singh ( 1977) 4 SCC 39: ( AIR 1977 SC 2018 : 1977 Cri LJ 1606), Union of India V. Prafulla Kumar Samal ( 1979) 3 SCC 4: ( AIR 1979 SC 366:
1979 Cri LJ 154) and Supdt. of Remembencer of Legal Affairs, West Bengal v. Anil Kumar CA No:213/2017 Page 11 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 Bhunja (1979) 4 SCC 274 : ( AIR 1980 SC 52 :
1979 Cri LJ 1390), and held thus :- "From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.'
20. In State of M.P. v. Mohan Lal Soni, AIR 2000 Supreme Court 2583, Hon'ble Supreme Court was pleased to hold:
7. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
9. Yet in another decision of this Court in CA No:213/2017 Page 12 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 : 1990 Cri LJ 1869) it is held that at the time of framing charges having regard to Sections 227and 228 of Cr.P.C. the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
The Court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case.
21. In State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 Supreme Court 2041, Hon'ble Supreme Court was pleased to hold:
8. The law on the subject is now well-settled, as pointed out in Niranjan Singh Punjabi v.
Jitendra Bijjaya, ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 ), that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom CA No:213/2017 Page 13 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore , at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
22. In CBI Vs. K. Narayana Rao, CA No. 1460 of 2012 , Hon'ble Supreme Court was pleased to hold:
12. While considering the very same provisions i.e. framing of charge and discharge of accused, again in Sajjan Kumar ( supra), this Court held thus:
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21. On consideration of the authorities about the CA No:213/2017 Page 14 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima face case would depend upon the facts of each case.
(ii) Where 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 and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused CA No:213/2017 Page 15 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) 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 CA No:213/2017 Page 16 of 17 D.O.O. 22.05.2017 Sandeep Kumar & Anr Vs. The State CR No. 213/2017 stage, he is not to see whether the trial will end in conviction or acquittal.
23. In the impugned order dated 10.02.2017, Ld. MM has observed " on the basis of charge sheet, prima facie offence U/s 186/353/509/34 IPC is made out against both the accused persons".
24. In view of aforesaid discussions , I find no infirmity in the impugned order dated 10.02.2017. The revision petition is devoid of merits and the same is dismissed.
25. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned to record room.
Announced in the open (HARISH DUDANI) Court on 22.05.2017 Special Judge,( PC Act) CBI-I Dwarka Courts, New Delhi.
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