Delhi District Court
Dr. Amitabh Maini vs State Of Nct Of Delhi on 22 September, 2020
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 567/2019
Dr. Amitabh Maini,
s/o Sh. Om Prakash Maini,
R/o A9A/4, Vasant Vihar,
New Delhi. ....Revisionist.
Versus
1. State of NCT of Delhi.
2. Mrs. Harmandeep Kaur,
W/o Sh. Mohinder Pal Singh,
R/o A2, Ground Floor,
Chander Nagar, Janak Puri,
New Delhi. .....Respondents.
Date of Institution : 04.10.2019.
Date of Arguments : 31.08.2020.
Date of Pronouncement : 22.09.2020.
ORDER
The present is a revision u/s 397/399 Cr.P.C filed against CR No. 567/19 (Parveen Singh) Page No. 1 of 19 ASJ03/NDD/PHC: 22.09.2020 order of charge dated 05.08.2015 and notice of charge dated 21.11.2015 passed by the court of Ld. MM, PHC.
2. The brief facts as per the revision petition are, that in the night of 8/9.01.2007, on receipt of DD No. 23B, SI Ravi Kant with a constable went at Fuzia Restaurant, Malcha Marg, New Delhi and met injured Dr. Amitabh Maini, Ms. Inger Solbarg and Shivender Bannerjee. Injured were taken to Indian Spinal Injuries Centre, Vasant Kunj for medical examination. Thereafter, statement of appellant was recorded who alleged that on 09.01.2007, he alongwith his friend Shivender and Ms. Inger Solberg were having dinner at Fuzia Restaurant. At about 11.45 p.m, at the counter of the restaurant, one sikh person, one hindu and two women were fighting. He further alleged that he asked those persons to remain silent however,they attacked him and his friends with beer bottles. Thereafter, the accused persons fled from the spot in a white colour Hyundai Accent car bearing no. DL4CM6626. On the statement of the appellant, FIR was lodged.
3. During the investigation, registered owner of DL 4CM 6626 was traced and it was found to be registered in the name of Harmandeep Kaur. She submitted that her husband Mohinder Pal Singh was driving the vehicle and she produced accused Mohinder Pal Singh. On inquiries, Mohinder Pal Singh disclosed about one Jaswinder Singh and he was called at the house of accused Mohinder Pal Singh. Both these accused were CR No. 567/19 (Parveen Singh) Page No. 2 of 19 ASJ03/NDD/PHC: 22.09.2020 identified by eye witness Jaideep Singh. However, despite her active involvement in assault, Harmandeep Kaur and wife of Jaswinder Singh were let off by the police. After completion of investigation, charge sheet u/s 341/323/34 IPC was filed against accused Mohinder Pal Singh and Jaswinder Singh.
4. It is further submitted in the revision petition that on 10.01.2007, accused Mohinder Pal Singh filed a false complaint with the police alleging that the revisionist and his friends had outraged the modesty of his wife. It is further submitted that soon after submitting the said false complaint and without complying with the mandatory provisions provided u/s 154 (3) Cr.P.C, Harmandeep Kaur filed a false criminal complaint u/s 200 Cr.P.C alongwith application u/s 156 (3) Cr.P.C in the court of ld. ACMM, PHC. Vide order dated 31.01.2007, the said court had directed the registration of FIR and called for the status report from PS Chankya Puri. Thereafter, FIR no. 39/2007 was registered. On 12.07.2007, a status report was filed by SI Ravi Kant stating that the complaint of the complainant was an afterthought and a cancellation report was filed by the police. On 18.09.2007, in view of the cancellation report, Ld. MM had issued a notice to Harmandeep Kaur. The said notice was accepted by the counsel for the complainant, who was present in the court and he sought time to file protest petition. Thereafter for almost two years, complainant Harmandeep Kaur did not appear and her counsel sought many adjournments for taking CR No. 567/19 (Parveen Singh) Page No. 3 of 19 ASJ03/NDD/PHC: 22.09.2020 appropriate steps. After two years, on 03.08.2009, complainant appeared and her case was transferred to Mahila Court. However, the complainant again stopped appearing and vide order dated 23.04.2010, the complaint case of the complainant was adjourned sine die. It is further submitted that after four years of her complaint, on 29.04.2011, Harmandeep Kaur filed a protest petition praying for rejection of the cancellation report dated 03.08.2007 and for taking cognizance of offences u/s 341/354/506(II)/509/34 IPC. Vide order dated 25.01.2012, the protest petition was treated as a complaint case and cognizance was taken u/s 200 Cr.P.C. Thereafter, on various dates, the complainant did not appear. On 21.08.2013, pre summoning evidence of complainant was recorded. Vide order dated 30.04.2014, ld. trial court, on the basis complaint case and pre summoning evidence of the complainant, summoned the revisionist to face trial for offences u/s 341/354/506 (II) and adjourned the matter for 16.08.2014. It is further submitted that on 02.02.2015, revisionist appeared before the court and he was released on bail. Thereafter, the matter was adjourned for framing of charge. On 05.08.2015, ld. trial court invoked the provisions of section 227 Cr.P.C and held that there was sufficient material to frame charge u/s 341/34/506 (II) IPC against the revisionist. On 21.11.2015, charges u/s 341/354/323/506 (II) IPC was framed against the revisionist and matter was adjourned for evidence. Thereafter, for around two years, the complainant did not appear and on 03.08.2019, examination CR No. 567/19 (Parveen Singh) Page No. 4 of 19 ASJ03/NDD/PHC: 22.09.2020 in chief of complainant was recorded. It is further submitted that it is evident from the record that after summoning of revisionist, the court straightaway listed the matter for framing of notice and never listed the matter for pre charge evidence. Hence, the present revision challenging the order dated 05.08.2015 and notice of charge dated 21.11.2015.
5. The grounds taken in revision petition are, that the impugned order dated 05.08.2015 and notice of charge dated 21.11.2015 are passed without application of judicial mind and are against the mandate of law. It is further submitted that while passing order on charge and framing of charges, Ld. trial court failed to note that section 2(x) Cr.P.C defines warrant case to mean those offences under the IPC which are punishable with death, imprisonment for life or imprisonment for a term exceeding two years and that the offences under section 354 and 506 (II) were punishable with 5 and 7 years respectively. It is further submitted that the ld. trial court did not adhere to the statutory mandate of the provisions of section 244 (1) Cr.P.C before proceeding to invoke either the provisions of section 245 Cr.P.C or 246 (1) Cr.P.C. It is a well settled law that the evidence of the complainant recorded u/s 200 Cr.P.C before the accused is summoned, will not be considered evidence within the meaning of section 244 and 246 Cr.PC and cannot be used for framing of charge in warrant triable case. It is further submitted that in a warrant triable case, the right to cross examine has been held a valuable statutory right and the accused would have to be CR No. 567/19 (Parveen Singh) Page No. 5 of 19 ASJ03/NDD/PHC: 22.09.2020 given opportunity to cross examine the witnesses. The order dated 05.08.2015 and notice of charge dated 21.11.2015 framed by ld. MM are unwarranted and uncalled for in as much as the revisionist lost the opportunity to establish that there were no grounds to proceed against him and he lost his statutory right to plead for discharge u/s 245 (1) Cr.P.C. Ld.trial court failed to differentiate between the scheme under section 238 falling under chapter XIX A and section 244 which falls within chapter XIX B of Cr.P.C. Reliance has been placed on the following judgments:
(a) Ajay Kumar Ghosh v. State of Jharkhand & Ors (2009) 14 SCC 115
(b) Sunil Mehta & Ors. v. State of Gujarat & Ors. (2013) 14 SCC 115.
(b) Jagdish & Ors. v. State & Ors. Crl. Rev. P. No. 672/2009.
6. Alongwith the revision petition, an application for condonation of delay in filing the revision petition has been filed.
7. It is submitted in the application that the trial court orders were illegal as the trial court failed to follow the statutory procedure u/s 244 to 246 Cr.P.C. It is further submitted that the anomaly came to the notice when on 06.08.2019, the present counsel appeared in the matter for the first time and noticed that although the ld. trial court was trying a warrant trial case and no precharge evidence was recorded by the trial court, no right to cross examine the witnesses before framing the charge was given to the accused. On 06.08.2019, while the trial court insisted on recording of cross examination of CW1 (the respondent no. 2 herein), this ambiguity was CR No. 567/19 (Parveen Singh) Page No. 6 of 19 ASJ03/NDD/PHC: 22.09.2020 pointed out by the counsel. It is further submitted that throughout this period, the petitioner was unrepresented by the services of a counsel and he was appearing and defending the trial in person. Being a layman, he was not aware of the procedure and did not bring it to the notice of the court. For the first time the petitioner appointed a counsel who appeared on 03.08.2019, and the anomaly was immediately brought to the notice of the trial court on 06.08.2019. It is further submitted that the delay in filing the revision petition was neither intentional nor deliberate. Hence, the present application for condonation of delay of 03 years, 09 months and 15 days.
8. In the reply, it is submitted that the case is pending at the stage of complainant's evidence since 22.04.2016, which only came to be recorded on 03.08.2019, as a result of delay caused by the applicant/ revisionist for not appointing a lawyer for himself despite specific directions of the ld. trial court. It appears from the trial court record that revisionist was directed to engage a lawyer from legal aid after an application dated 30.08.2016 u/s 303 Cr.P.C was filed pointing out the mischief that the revisionist could play taking a plea at a later stage, that he was not represented by a counsel. It is further submitted that the revisionist is a doctor by profession and is well educated man. On 17.07.2017, ld. trial court directed the revisionist / applicant to go to NDDLSA for engaging a counsel. However, the revisionist refused and deliberately avoided engaging a counsel till the court appointed a remand advocate on 19.07.2019.
CR No. 567/19 (Parveen Singh) Page No. 7 of 19 ASJ03/NDD/PHC: 22.09.2020
Subsequently, the revisionist engaged a private counsel to represent him. There is a severe delay in the trial of the subject complaint case for an incident which took place on 08.01.2007. The revisionist appeared as accused on 02.02.2015 before the ld. trial court and sought bail. The revisionist, on receipt of summons, chose not to engage a counsel and for his bail, completed all the related formalities. On 14.07.2015, when the scrutiny of all the documents was complete and the matter was argued on charge by the revisionist as he submitted that he did not require any counsel and would argue the matter himself. The two impugned orders are correct in law and there is no legal infirmity in them.
9. It has been contended by ld. counsel for revisionist / applicant that the trial court record clearly reveals that the applicant/ revisionist never had the benefit of any counsel and when he engaged a counsel, it was found that the trial court had not followed the legal procedure which had resulted in miscarriage of justice as no pre charge evidence was recorded by the trial court and trial court straightaway proceeded to frame charges by skipping the provisions of section 244 to 246 Cr.P.C. Thus, there might have been a delay and there might have been some role played by the revisionist in as much as he failed to engage a counsel, in order to avoid miscarriage of justice, delay if any, needs to be condoned.
10. Per contra, ld counsel for respondent/ non applicant has contended that the delay is of more than 03 years and the conduct of the CR No. 567/19 (Parveen Singh) Page No. 8 of 19 ASJ03/NDD/PHC: 22.09.2020 respondent was very clear during the trial. The only ground taken is that the applicant/ revisionist did not have legal assistance. However, it is apparent from the record of the trial court that despite the trial court asking the accused numerous times to engage a counsel, he refused to do so. Not only that he refused to have a counsel appointed from legal aid when the trial court proceeded to do so. He not only rejected that counsel but made a written application that the trial court cannot force him to engage a counsel. Therefore, on this pretext, he cannot be allowed to take advantage of his own wrong.
11. I have heard ld. counsel for revisionist as well as ld. Addl. PP for State and perused the record very carefully.
12. In the present application, the ground taken for condoning the delay is that, the applicant/ revisionist was not having proper legal assistance and was without a counsel till August 2015. However, a perusal of the trial court record reveals that on 14.07.2015, accused / revisionist submitted before the court that he did not require any legal assistance and would argue himself on the point of charge whereafter, he argued and impugned order dated 05.08.2015 was passed. Thereafter, an application u/s 303 Cr.P.C was filed by the complainant. On 01.07.2017, revisionist filed a reply to the application and stated that he did not wish to engage a counsel and would argue the application himself. Thereafter, the court vide its order dated 17.07.2017, observed that it would be in the interest of justice that CR No. 567/19 (Parveen Singh) Page No. 9 of 19 ASJ03/NDD/PHC: 22.09.2020 accused/ revisionist be provided with legal aid as per rules and ld. Secretary, NDDLSA was directed to provide legal aid to the revisionist. On 25.09.2019, the revisionist argued that he did not need any legal assistance and as per section 303 Cr.P.C, he had a right to defend himself and he had a fundamental right to have an effective representation in this case. He also showed lack of faith in the appointment of legal aid counsel as he had apprehensions that legal aid counsel may not defend him properly. Thus, the court observed that the the revisionist/ accused was a highly educated person and no court of law could force anyone, educated or uneducated, to have legal aid, if the person refused to take legal aid.
13. Thus, it is very clear from the record of the trial court that the revisionist had not only deliberately not engaged a counsel but also declined all offers/ efforts of the court to provide him professional legal assistance. Therefore, on this ground, there is no merit to allow the present application of condonation of delay.
14. However, there is an important legal question which has been raised in the present revision petition and i.e. that the trial before the ld. trial court is for the offences which are warrant triable and the trial court without following the provisions of section 244 to 246 Cr.P.C i.e. recording pre charge evidence and giving accused an opportunity to cross examine the witnesses of the complainant, straightaway proceeded to frame charge on the basis of evidence which was recorded prior to the summoning of the CR No. 567/19 (Parveen Singh) Page No. 10 of 19 ASJ03/NDD/PHC: 22.09.2020 accused.
15. Thus, it is important to decide whether there is an illegality which has been committed by the ld. trial court because if there has been any illegality, by not deciding this appeal on merits, the court will be perpetuiting that illegality. Thus, the present application for condonation of delay is allowed. However, considering the conduct of the revisionist, he is burdened with a cost of Rs.15,000/ to be deposited with PM Care Relief Fund.
16. Now coming onto the merits of the appeal.
17. There is no dispute with the fact that the offences for which the trial is being conducted are warrant triable. However, the bone of contention between the parties is, that whether trial court after summoning the accused could have straightaway proceeded to pass an order of charge against the accused and and frame charges.
18. It has been contended by ld. counsel for revisionist that the procedure followed by ld. trial court was patently illegal. He has further contended that the procedure for warrant trial has been clearly laid down in sections 244 to 246 Cr.P.C and as per the same, after the accused had been summoned, the trial court was required to record evidence u/s 244 Cr.P.C whereafter, the trial court was to give an opportunity to the accused to cross examine the witnesses of the complainant and then, on the basis of that evidence, the trial court had to decide either to frame charges or discharge CR No. 567/19 (Parveen Singh) Page No. 11 of 19 ASJ03/NDD/PHC: 22.09.2020 the accused. However, the trial court failed to follow this procedure and thus, committed a patent illegality. He has relied upon the judgment passed by Hon'ble Supreme Court in Sunil Mehta & Anr. v. State of Gujarat (2013 9 SCC 209 and of Hon'ble Delhi High Court in Jagdish & Ors. v. State & Ors. MANU/DE/2562/2010.
19. Per contra, ld. counsel for respondent has contended that u/s 244 Cr.P.C, the accused has no right to cross examine the witnesses. He has further contended that numerous judgments of various High Courts have held that accused does not have a right to cross examine and cannot claim the said right. However, the courts should give an opportunity to the cross examine the witnesses. He contended that an opportunity to cross examine is not the same thing as a right to cross examine. He has further contended that any irregularity in framing the charges cannot in any manner effect the final judgment and therefore, as many years have passed, matter should not be relegated to the stage of charge. He has relied upon the judgment of Hon'ble Punjab & Haryana High Court in R.K Joshi & Anr. v. State of Haryana & Anr. (2007) 2 RCR (Cri) 47, wherein it has been held as under:
21. So far as the argument of the learned counsel for the petitioner to the effect that 'evidence' would mean evidence which has been tested by crossexamination is concerned, reference may be made to the definition of 'evidence' under Section 3 of the Indian Evidence Act, 1872, which reads as under: CR No. 567/19 (Parveen Singh) Page No. 12 of 19 ASJ03/NDD/PHC: 22.09.2020 "Evidence" "Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence." Thus, it follows that all statements which the Court permits or requires to be made before it by witnesses in relation to facts under inquiry would be evidence. The provisions regarding the manner in which examination of witnesses is to take place and the order of examination as provided under Sections 137 and 138 in Chapter x of the Evidence Act, cannot be pressed into service to agitate that 'evidence' referred to in Section 244 of the Code inheres to crossexamination also. Thus, under Section 244 of the Code, sworn statement in chief examination, even when not tested by a cross examination, would continue to be evidence.
20. He has further contended that any irregularity in framing of charge cannot in any manner vitiate the trial and therefore, even if the proceedings were irregular, the order of the ld. trial court cannot be set aside at this stage especially when the charge had been framed and the cross examination of the complainant's witnesses had been recorded.
21. I have considered the rival submissions.
22. With all due deference to the judgments cited by ld. counsel for respondent, I find that firstly as per the law of precedent, if there are judgments of Hon'ble Supreme Court on a particular legal issue, any CR No. 567/19 (Parveen Singh) Page No. 13 of 19 ASJ03/NDD/PHC: 22.09.2020 conflicting view by any High Court cannot be considered. Secondly, if there are judgments of two High Courts i.e. one of our High Court and other of another High Court then the judgment of Hon'ble Delhi High Court has to be binding on this court.
23. On the issue whether in warrant trial case, it is mandatory for the trial court to record pre charge evidence and whether at that stage the accused has a right to cross examine the witness of complainant, Hon'ble Supreme Court in Sunil Mehta (supra) had held as under:
16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning ofSection 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
17. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to crossexamine the witnesses concerned.
18. 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 244after 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 crossexamining the witnesses with a view to showing that the witness is either unreliable or that a CR No. 567/19 (Parveen Singh) Page No. 14 of 19 ASJ03/NDD/PHC: 22.09.2020 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. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to crossexamine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box.
19. Thirdly, because the right of crossexamination granted to an accused under Sections 244 to 246even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the Court has found a case justifying framing of charges against the accused, the accused has a right to crossexamine the prosecution witnesses under Section 246(4) does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that the Parliament intended to take away any such right at the precharge stage.
24. Further, Hon'ble Supreme court in Ajoy Kumar Ghose v. State of Jharkhand & Anr (2009) 14 SC 115 has held: The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of CR No. 567/19 (Parveen Singh) Page No. 15 of 19 ASJ03/NDD/PHC: 22.09.2020 Section 244(1) Cr.PC., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.PC by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge. Now here, there is, however one grey area is on account of phrase "or at any previous stage of the case". The question is as to whether, even before any proceed to frame a charge. Teh debate on this question is not new, though there is no authoritative pronouncement of this Court, on that issue. There are cases, where the High Courts have specifically taken a view that the phrase does not empower the Magistrate to frame any charge in the absence of any evidence, whatsoever. It must be, at this stage, borne in mind that the word used in Section 246 Cr.PC is "evidence", so also, in Section 244 Cr.PC., the word used is "evidence". Therefore, ordinarily, the scheme of the Section 246 Cr.PC is that, it is only on the basis of any evidence that the Magistrate has to decide as to whether there is a ground to presume that the accused has committed an offence triable under this Chapter. (emphasis added)
25. On the same issue, Hon'ble Delhi High Court in Jagdish (supra) has held as under:
15. Considering the fact the trial court in a warrant trial case instituted otherwise than on a police report, is empowered to record precharge evdience under Section 244 of the Cr.PC, after summoning the accused persons, the petitioners cannot be deprived of their right to crossexamine such witnesses when such an opportunity is granted to them, to enable them demolish the case of the complainant, if possible. The material, on the basis of which the trial court could have analysed the charges levelled by the complainant against the petitioners so as to decide as to whether a case has been made out for proceeding against them, is completely lacking. Absence of such an opportunity to CR No. 567/19 (Parveen Singh) Page No. 16 of 19 ASJ03/NDD/PHC: 22.09.2020 the petitioners has certainly prejudiced their case.
16. In these circumstances, it has to be held that failure to follow the prescribed procedure as laid down in Section 244 Cr.PC, is itself sufficient to set aside the order dated 31.08.2009, impugned by the petitioners herein. Ordered accordingly. The trial court shall hold an enquiry under Section 244 of the Cr.PC for pre charge evidence, and only after analyzing the evidence brought on the record and deciding the nature of the offence, if any, under the relevant Sections, the learned Additional Sessions Judge shall conclude as to whether or not any offence is made out against the petitioners, in terms of Sections 245 & 246 of the Cr.PC.
26. Therefore, from the aforesaid pronouncements, it is very clear that in warrant trial case, if a Magistrate proceeds to frame charges u/s 246 Cr.P.C, it has to be done by the MM on the basis of the evidence which is recorded u/s 244 Cr.P.C i.e. after summoning of the accused meaning thereby, in the presence of the accused.
27. The words used in section 246 Cr.P.C "or at any previous stage of the case" only refer to the evidence u/s 244 Cr.P.C and give a discretion to the Magistrate to frame a charge on the basis of any evidence which has been recorded under section 244 Cr.P.C although, the complainant might not have brought its entire evidence which he or she intends to bring u/s 244 Cr.P.C. Therefore, the law as settled by Hon'ble Supreme Clourt and followed by Hon'ble Delhi High Court is, that in a warrant trial case, the Magistrate can only frame charges on the basis of evidence which has been recorded u/s 244 Cr.P.C and any failure to do so is CR No. 567/19 (Parveen Singh) Page No. 17 of 19 ASJ03/NDD/PHC: 22.09.2020 a patent illegality as it results in a prejudice to the accused.
28. In the light of this law, if the proceedings of the trial court are seen, it is found that the accused appeared before the trial court on 02.02.2015 and the trial court admitted him on bail. The matter was listed for scrutiny of documents and framing of notice on 06.05.2015. Thereafter, on 14.07.2015, court heard the arguments on charge and on 05.08.2015 passed an order whereby it ordered framing of charges u/s 341/354/506 (II) IPC. On 21.11.2015, ld. trial court framed charges against accused u/s 341/354/506(II) IPC.
29. Thus, it is very clear that ld. trial court, after the summoning of accused, did not record any evidence u/s 244 Cr.P.C. Thus, there was no material before the ld. trial court which it could have considered in order to frame charges against the accused u/s 246 Cr.P.C and thus, the failure of the ld. trial court to follow the prescribed procedure u/s 244 Cr.P.C is sufficient for setting aside the impugned orders dated 05.08.2015 and the charge as framed on 21.11.2015. They are accordingly set aside.
30. However, as the matter has been pending for more than12 yeas and starting the matter afresh would cause further delay. The purpose of section 244 Cr.P.C is that evidence under that provision has to be recorded in the presence of accused and he has to be afforded an opportunity to cross examine complainant's witnesses. As the charges against the accused have been set aside and the manner in which the CR No. 567/19 (Parveen Singh) Page No. 18 of 19 ASJ03/NDD/PHC: 22.09.2020 proceedings have been conducted has been found to be illegal, it can be safely considered that after summoning of accused, testimony of CW1 as recorded on 03.08.2019 was recorded in his presence. Therefore, the said testimony can be considered as the evidence brought by the complainant u/s 244 Cr.P.C. It is therefore directed that instead of calling CW1 again for her examination in chief, the trial court shall consider the testimony of CW1 as recorded on 03.08.2019 as her examination in chief u/s 244 Cr.P.C and afford accused/ revisionist an opportunity to cross examine CW1. Thereafter, if the complainant wishes to bring any other pre charge evidence, the trial court shall afford such an opportunity to the complainant and after the completion of precharge evidence, the trial court shall proceed to decide the question of framing of charge. The revision petition is accordingly disposed of. Copy of this order alongwith trial court record be sent back. File be consigned to record room.
Announced in open court (Parveen Singh) today on 22.09.2020 ASJ03, New Delhi Distt., (This order contains 19 pages Patiala House Court, Delhi. and each page bears my signatures.) CR No. 567/19 (Parveen Singh) Page No. 19 of 19 ASJ03/NDD/PHC: 22.09.2020