Delhi District Court
Jagey Ram vs The State on 2 April, 2012
IN THE COURT OF SH. K.S. PAL : ASJ : KKD COURTS (E) : DELHI
Crl. Rev. No. 09/2011
1. Jagey Ram
son of Sh. Ganpat
2. Hari Chand
son of Sh. Ganpat
both R/o Jhuggi No. E-122,
Indra Camp, Mandawali,
Delhi 110092
3. Ant Ram
son of Sh. Gorey Lal
4. Ramadheen
son of Sh. Gorey Lal
5. Tulsi Ram
son of Sh. Gorey Lal
All r/o Jhuggi No. E-127,
Indra Camp, Mandawali,
Delhi 110092
.......Revisionists
Versus
1. The State, Govt. of NCT of Delhi
2. Prem Lal
son of Sh. Prem Lal,
R/o r/o Jhuggi No. E-127,
Indra Camp, Mandawali,
Delhi 110092
.......Respondents
Crl. Rev. No. 09/11 Page 1 of 5
02.04.2012
ORDER
1. By this order I dispose of this criminal revision petition u/s 397/399 Cr.PC filed by the five revisionists against the impugned order dated 25.11.2010 passed by learned MM, Karkardooma Courts, Delhi in case titled Prem Lal Vs. Jagey Ram etc. bearing CC no. 1652/03, thereby framing the charge u/s 323/380/34 IPC against the revisionists. The impugned order for framing the charge has been assailed by the revisionists on the ground that in a warrant trial case instituted otherwise then on a police report, an opportunity should have been given to the revisionists / accused persons to cross examine the witnesses of the complainant recorded at pre charge stage u/s 244 Cr.PC. It is alleged that after summoning the revisionists as accused persons in the aforesaid criminal complaint on the basis of pre summoning evidence, charge has been framed against them without giving an opportunity to them to cross examine the witnesses, recorded in pre charge evidence u/s 244 Cr.PC, hence, it is prayed that the impugned order dated 25.11.2010 framing the charge against the present revisionists / accused persons without giving an opportunity to them to cross examine the witnesses recorded in pre charge evidence u/s 244 Cr.PC being illegal and contrary to law be set aside in the interest of justice.
2. Trial court record was summoned and notice of this criminal revision petition was served upon respondent no. 1 and 2.
3. I have heard the arguments made by learned counsel for revisionists as well as learned counsel for respondent no. 2 Prem Lal.
4. During the course of arguments, learned counsel for revisionists Crl. Rev. No. 09/11 Page 2 of 5 vehemently contended that in a warrant trial case instituted otherwise than on a police report, court is bound to record pre charge evidence u/s 244 Cr.PC by giving opportunity to the accused persons to cross examine the witnesses of the complainant before framing of charge and since this opportunity of cross examining the witnesses of complainant / respondent no. 2 herein has not been given and as such, this impugned order dated 25.11.2010 passed by learned MM is liable to be set aside. Learned counsel for revisionist in support of his submissions has placed reliance on the cases reported as Jagdish Vs. State 2010 (4) JCC 2784; Ajay Kumar Ghosh Vs. State of Jharkhand 2009 AIR SC 2282 and Dhanno Vs. State & Ors. 2009 (1) SCC 145.
5. Learned counsel for respondent no. 2, on the other hand, placed reliance on the cases reported as Brahmeshwar Rai Vs. State 1984 CLJ 1676; Ravi Shankar Mishra Vs. State 1991 CLJ 213; Manjit Kaur Vs. State 27 (1985) DLT 31.
6. I have bestowed my careful consideration to the rival submissions made by learned counsel for revisionists as well as learned counsel for respondent no. 2 in the light of the facts and circumstances of this case as well as the cases relied upon in support of their respective submissions. Moreover, I have also gone through the trial court record including the impugned order dated 25.11.2010 passed by learned MM in the criminal case titled Prem Lal Vs. Jagey Ram etc. bearing CC no. 1652/2003.
7. From the perusal of trial court record, it is clear that in the aforesaid criminal complaint after recording the pre-summoning evidence as well as the inquiry report of concerned SHO, all the accused persons were summoned for facing trial for the offences punishable u/s 380/452/323/506 Part IPC and all the Crl. Rev. No. 09/11 Page 3 of 5 five accused persons appeared before the court after receiving the summons. Thereafter pre-charge evidence has been recorded by examining three witnesses without giving an opportunity to the accused persons to cross examine these three witnesses and ld. trial court framed the charge against the accused persons, the present revisionists for the offences punishable u/s 323/380/34 IPC and this impugned order dated 25.11.2010 for framing the charge against the accused persons / present revisionists has been challenged.
8. The law is well settled that in a warrant trial case instituted otherwise than on a police report, the court is bound to record pre-charge evidence after summoning of the accused persons by giving an opportunity to the revisionists / accused persons to cross examine the witnesses to be examined at the time of pre-charge stage. This is clear from the perusal of Section 244 and 245 Cr.PC. I find force in the submissions made by learned counsel for the revisionists that the impugned order dated 25.11.2010 for framing the charge against the accused persons / revisionists by recording pre-charge evidence but without giving an opportunity to the accused persons to cross examine those witnesses is illegal and not in accordance with law. In this respect cases relied upon by learned counsel for the revisionists are fully applicable and particularly in para 9 and 10 of the judgment of Hon'ble High Court of Delhi in the case Jagdish Vs. State 2010 (4) JCC 2784 clearly lays down that in a warrant trial case instituted otherwise than on a police report, an opportunity has to be granted to the prosecution / complainant to lead pre charge evidence u/s 244 Cr.PC by giving an opportunity to the accused persons to cross examine the witnesses of complainant examined during pre-charge evidence and accused persons cannot be deprived of this legal right to cross examine such witnesses of complainant and in the absence of such an opportunity, accused persons are certainly prejudiced. The cases relied upon by the learned counsel for the respondent no.
Crl. Rev. No. 09/11 Page 4 of 52 in support of her statements are not much helpful due to distinguished facts and circumstances and infact these cases relied upon by respondent no. 2 are on the point of charge.
9. In the present case, no doubt, learned MM recorded pre-charge evidence by examining three witnesses but no opportunity has been given to the accused persons for cross examination before framing the charge against them and as such the impugned order dated 25.11.2010 is illegal and not in accordance with provisions of Section 244/245 Cr.PC. Accordingly, the impugned order dated 25.11.2010 for framing the charge against the accused persons / present revisionists is set aside by giving direction to the concerned trial court to give an opportunity to the accused persons / present revisionists to cross examine the witnesses examined by complainant / respondent no. 2 in his pre-charge evidence and then to decide the question about the framing of charge against the accused persons / present revisionists. With these directions, the present criminal revision petition stands disposed of.
10. A copy of this order be sent to the ld. court concerned with TCR. Revision petition file be consigned to RR.
Announced in the open court
on 02nd April 2012 (K.S.PAL)
ASJ: KKD Courts: Delhi
02.04.2012
Crl. Rev. No. 09/11 Page 5 of 5