Delhi District Court
State vs Kawar Ramesh Singh on 24 April, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT
JUDGE (SOUTH DISTRICT) & ASJ/I/C (SOUTH &
SOUTHEAST): SAKET NEW DELHI
Criminal Revision No. 290/11
ID No.: 02406R0289322011
State
Through Public Prosecutor, Delhi. ...... Revisionist
Versus
1. Kawar Ramesh Singh,
s/o Sh. Gulab Singh
R/o H. No. B/1/1, Hauz Khas,
New Delhi.
2. Mohd. Azhar
s/o Sh. Mehandi Hasan,
R/o H. No. E42, Okhla Vihar,
New Delhi. ...... Respondents
Instituted on: 15.11.2011
Judgment reserved on: 24.04.2012
Judgment pronounced on : 24.04.2012
J U D G M E N T
1. This criminal revision petition has been preferred by the State Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 1 of 19 questioning the correctness, legality and propriety of the order dated 25.07.2011 passed by Sh. Naveen Arora, Additional Chief Metropolitan Magistrate (SouthEast) (hereinafter referred to as ACMM) whereby both the respondents were discharged in proceedings relating to criminal case no. 215/2 of 2009 registered on 08.10.2009 on the basis of charge sheet laid before the Metropolitan Magistrate on conclusion of investigation into FIR No.187/2004 for offences under Section 323/341/354/380/452/506/34 IPC of Police Station New Friends Colony.
2. On notice, respondents have appeared to contest the revision petition.
3. I have heard arguments. I have gone through the trial court record.
4. The FIR was registered on the basis of statement of Saood Ahmed recorded on 17.04.2004 respecting the incident that is alleged to have occurred at abut 12.30 PM on 15.04.2004 in property described as 274A, Alfalah House, Jamia Nagar, Okhala, New Delhi. According to the first informant, he was running an office in the name of Alfalah at the said premises. Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 2 of 19 On 15.04.2004, at about 02.30 PM, when he was sitting in his office, four persons are stated to have entered and demanded Rs. One Crore to be handed over. He alleged that on his refusal, one of the said persons went out and returned after 10 minutes, declaring that the vehicle had come and that the first informant be taken away. The first informant claims that when he wanted to make a telephone call, one of the said persons gave him fist blow while another boy of shorter height told him that he should call his brother with money or else his entire family would be liquidated. One of the two other persons then exhorted another not to indulge in conversation at that place and rather pick up the first informant and take him away. It was alleged in the FIR that the said persons were repeatedly telling him that they had been sent by K. R. Singh (respondent no.1 herein).
5. It is alleged that the first informant was then forcibly brought out of the house where his employee/receptionist Devender informed that the brother of first informant was coming. At that stage, the said employee Devender is also stated to have been subjected to physical assault and while the first informant was Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 3 of 19 being dragged out, the said group of four persons also picked up and took away the computer and the fax machine. The FIR further alleged that upon hearing this commotion Aaliya, aged 20 years, sister of the first informant came out, at which stage one of the said four persons gave her a slap and pulled away her burkha. On objection being taken, the first informant was beaten up and his sister was told that when his brother comes, he should arrange Rs. One Crore to be paid to take back the first informant.
6. The FIR also alleged that the said persons forcibly dragged out him and the employee Devender. As a result of the beating, the first informant fell unconscious. He had been brought near one Tata Safari vehicle in which two other persons were sitting. He alleged that attempt was made to make him sit in the said vehicle. He alleged that respondent no.1 was one of the said persons sitting in the Tata Safari with companion named Khursheed. He alleged that the respondent no.1 asked the other persons that the first informant was not to be spared till he handed over the money. He further alleged that he was dragged Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 4 of 19 upto Jamia Campus and then pressurised for returning the money and kept in illegal confinement. He claimed that he had subsequently raised alarm in the wake of which the said four persons had left the place.
7. As shown by the prosecution case on 15.04.2004 at 03.05 PM, a wireless massage had been received to the effect that certain persons were creating ruckus near the office of Alfalah House, in premises no. 274A, Jamia Nagar, Okhala, New Delhi. This was recorded vide DD no. 17 and was handed over at that stage to HC Iqbal Ahmed who is sated to have gone to the scene with Ct. Muninder Singh. In his endorsement on the statement of first informant. ASI Rajinder Singh recorded that it was he who had gone for inquiry pursuant to DD no. 17 on 15.04.2004 and that medical examination of Saood Ahmed had been arranged but since result thereof was not available and the statement had not been recorded, DD no.17 had been kept pending inquiry. The endorsement leading to the registration of the FIR was based on the aforementioned statement of Saood Ahmed and the MLC .
8. The case was registered in police station and taken over for Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 5 of 19 investigation. It may be mentioned here that during the course of investigation, information about the nature of injuries of the first informant was obtained from the Medical Officer who certified the same to be grievous. The record further shows that on 17.04.2004, the first informant made a supplementary statement to the effect that he had learnt the name of the four persons who had entered the his office which included that of Azhar (respondent no.2), the three others being Mahboob, Suhel @ Bunty and Nadeem. The charge sheet would further show that respondent no.2 came to be apprehended by the officials of police station New Friends Colony on 18.04.2004 in some other case. The supplementary statement of the first informant shows that he happened to visit the police station on 18.04.2009 where he came across respondent no.2 in custody of the police and informed the I.O. positively identifying him as one of the persons who had committed the aforementioned offences in his office on 15.04.2004.
9. The learned Magistrate took cognizance on the charge sheet vide order dated 08.10.2009 and issued process against both the respondents. After supply of copies under Section 207 Cr.P.C., Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 6 of 19 he considered the question of charge. He passed order dated 25.08.20011, holding that no case for charge was made out against both the respondents. It is this view which has been challenged through the revision petition at hand.
10.The law on the question of consideration of charge is well settled. If the criminal court, on consideration of the material submitted with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not required to be meticulously judged, nor is any weight to be attached to the probable defence of the accused.
11.In the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 Hon'ble Supreme Court observed as under :
"It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 7 of 19 judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. XXXXX Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. XXXXX If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 8 of 19 the other hand, it s so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."
12. In Union of India Vs. Prafulla Kumar Samal 1979 Crl. L. J. 154, Hon'ble Supreme Court made the following observations regarding the test to be applied at the stage of consideration of the case for charge :
"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.
The test to determine a primafacie 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 Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 9 of 19 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.
In exercising his jurisdiction under Section 227 the Judge which under the present Code is senior and experienced 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 basic infirmities 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."
13.Similar observations were made in State of M.P Vs. S. B. Johari 2000 Crl. L. J. 944(SC) in the following words :
"The Court is not required to Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 10 of 19 appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction 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 guilt 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 committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial."
14.In P. Vijayan Vs. State of Kerala 2010 Crl. L. J. 1427 while observing that the criminal court is not a mere post office to frame the charge at the behest of the prosecution, Hon'ble Supreme Court has observed that the court is required to exercise judicial mind to the facts of the case in order to determine whether a case for trial has been made out or not. In Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 11 of 19 this context, the following observations indicate the manner of assessment :
"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 and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of S. 227 the Judge has 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 ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
15.The observations on the basis of which the learned Magistrate has proceeded to discharge the two respondents herein need to be quoted in his own words. The same read as under: "As far as accused Mohd. Azhar is concerned. Admittedly his identification has Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 12 of 19 not been established during investigation by conducting TIP proceedings and it is well settled law that identification of any accused before the court for the first time is of no legal consequence and cannot be used against the accused for holding him guilty. Hence, accused Mohd. Azhar stands discharged for the reasons mentioned above.
As far as accused K. R. Singh is concerned. The only allegation which has come against him is that he was sitting in TATA safari on the front seat at the time of alleged incident and all those four persons who had entered into the office of the complainant had done it at his instance. K. R. Singh has been involved in this case on the point of his connection with other accused persons who were never arrested. Admittedly, accused K. R. Singh has not been the complainant nor he misbehaved with the sister of the complainant and he ever did not commit the theft of the articles. There is no evidence on record that accused K. R. Singh had ever asked the other accused persons (who were never arrested) to beat the complainant or to misbehave with his sister or to commit the theft in the property. There are various contradistinction in the case of the Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 13 of 19 prosecution itself. Statement of Devender Kumar clearly disclosed that no such theft was committed as alleged by the complainant and the sister of the complainant was not ill treated by any of those persons. There is also a material contradiction to the fact as to whether the complainant and Devender were taken from their office to Jamia Campus in TATA Safari car of K. R. Singh or they were dragged from there on foot. Story put forward by the complainant in itself is very vague. If some one has to take money from some one and he has already lodged an FIR in that regard then why he would commit such an act. The explanation tendered by the prosecution as there was no chance of early recovery of money in criminal proceedings that is why the accused committed this offence. But in fact no purpose was disclosed by the prosecution or the complainant as to why they took the complainant near Jamia Campus as what they were supposed to achieve by taking him to the Jamia Campus and why accused K. R. Singh left the spot from Jamia Campus leaving behind the complainant with other four accused persons as nothing has been disclosed as to why K. R. Singh Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 14 of 19 had come to spot if he was not to do anything there. From the allegation of the prosecution, it seems that K. R. Singh had come on the spot with his TATA Safari just to kidnap the complainant from his office till Jamia Campus but for what purpose it has not been explained. In the entire incident as told by the complainant the accused K. R. Singh kept on sitting on the front seat of Safari and from Jamia Campus he left the spot. None of the main accused who allegedly committed the office were arrested. Nothing has come on record about their identity.
All the above mentioned facts and circumstance are vague in the themselves and are leading to any conclusion. The entire case of the prosecution in itself is vague and full of contradictions which makes the entire material insufficient of forming any opinion for presuming the commission of the offence by the accused and for proceedings against him by framing charge."
16.To say the least, in my considered opinion, while considering the case for purposes of charge the learned Magistrate has not applied the law in its correct prospective. He appears to have Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 15 of 19 assumed that the case was at the stage of final analysis wherein he was required to consider as to whether prosecution has been able to bring home the guilt of both the respondents beyond all reasonable doubts. He entered into a roving inquiry sifting the evidence at length in a manner which is nor permissible nor called for at the stage of charge. The use of the expression that circumstances cannot be pressed against the accused for holding him "guilty" itself shows the impropriety of the approach adopted. The learned Magistrate appears to have entered into an exercise in speculation which was highly unjustified.
17.The respondent no.1 has been named even in the FIR. It is true that respondent no.2 is not shown by evidence to have himself entered into the office of first informant at any stage. But it cannot be ignored that he was sitting in the vehicle parked nearby and further that the first informant was dragged up to the said vehicle and attempt made forcibly to lift him into the said vehicle. The conversation that took place near the vehicle involving the respondent no.1 cannot be wished away.
18.The stage of charge is not the proper stage for veracity of the Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 16 of 19 evidence to be so deeply gone into. It does appear from the submissions of the counsel for respondent no.1 that there had been a monetary transaction/dispute involving the first informant on one hand and respondent no.1 on the other. It also appears that respondent no.1 had preferred a case against the first informant accusing him of cheating vide FIR no. 43/2000 of Police Station Crime Branch. But then, the said history by itself cannot lead to only one conclusion that the FIR at hand is motivated. The fact that an assault took place in which the first informant suffered injuries is supported by medical evidence. The nature of injuries has been found to be grievous. Prima facie, it is not believable that the first informant would falsely implicate the respondents for the said assault or injuries suffered by him while letting off the actual assailants for no reason.
19.As regards respondent no.2, it cannot be said that it is a case of no evidence. The identification by the first informant of the respondent no.2 in the police station on 18.04.2004 is presently described as chance identification. It can not be said at this Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 17 of 19 stage (as assumed by the ACMM in the impugned order) that the said meeting was deliberately arranged by the I.O. Such conclusion cannot be reached unless IO is being called upon to explain the situation in which said meeting took place. Even otherwise, the said meeting was preceded by a supplementary statement of the first informant mentioning the name of respondent no.2 as one of the assailants. His word in this regard is supported by supplementary statement of his sister, who is also a crucial witness to the incident.
20.In above facts and circumstances, the impugned order cannot be upheld. It deserves to be set aside. Prima facie charge is made out against both the respondents for offences for which the summoning order was initially passed by the learned Magistrate.
21.The revision petition is allowed. The impugned order is, thus, set aside. The ACMM is directed to proceed further against the two respondents after framing of charge in the light of above observations.
22.The respondents shall appear before the ACMM on 14.05.2012. Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 18 of 19
Needless to add, they shall be required to furnish fresh bail bonds for their presence during the trial to be regulated/controlled.
23.The trial court record be returned with copy of this judgment.
24.File of the revision petition be consigned to Record Room. Announced in open Court today on this 24th day of April, 2012 (R.K. GAUBA) ASJ/I/C (South & South East) Saket/New Delhi Crl. Rev. No. 290/2011 State Vs. Kawar Ramesh Singh & anr. Page 19 of 19