Delhi District Court
State Of Nct Of Delhi vs Sobh Raj S/O Chhatra Pal on 11 March, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
CR No. 11/2014
State of NCT of Delhi
Through : Public Prosecutor, Delhi.
................ Revisionist
Versus
1. Sobh Raj S/o Chhatra Pal,
R/o Vill.: Hari, PS & Distt.: Satna, M.P.
Also at : A40, WPIA, Delhi.
2. Rajender Kumar S/o Shri Dhar.
3. Ashwani Kumar S/o Jai Pal
R/o Vill.: Mahem Karjana, Distt.: Rohtak, Haryana.
Also at : 102, Rajeev Nagar Extn., Begumpur, Delhi.
4. Veer Singh S/o Ram Dayal
R/o Vill.: Bahadurpur, PS : Beshma, Distt.: Aligarh, U.P.
Also at : Flat No. 9A, Block, Ph.II, Budh Vihar, Delhi.
5. Mahesh Kumar S/o Lt. Sh. Jagdish Prasad
R/o WZ634, Sri Nagar, Gali No. 2, Rani Bagh, Delhi.
................. Respondents
11.03.2014
O R D E R:
Present: Sh. Tofeeq Ahmed, Addl. PP for the Revisionist / State. (1) This Criminal Revision has been filed on behalf of the Revisionist / State against the impugned order of Ld. CMM dated 7.12.2013 State Vs. Sobhraj etc. (CR No. 11/2014) Page 1 of 7 in case FIR No. 445/02 Police Station Ashok Vihar under Section 407/411/511/120B IPC titled as State Vs. Sobh Raj & Ors., thereby discharging the respondents from the case. No notice has been issued on the same.
(2) The short ground on which the revision has been filed is that the Ld. CMM has failed to appreciate that the accused persons were apprehended red handed while removing the oil from the tanker on the basis of secret information and that the Ld. CMM has not considered the statement of the police witnesses present at the time of the raid and apprehension of the accused persons. It is further pleaded that the accused persons had committed penultimate act towards the commission of the offence and that when checked the seal of top dom, its cover was not found intact as the accused persons had made an attempt to commit the offence. It is pleaded that in this background, the accused persons (respondents before this court) cannot be given benefit of any faulty investigation. In this one page revision petition drafted by the Addl. PP for the State, no other ground is raised.
(3) It is noticed that all the grounds are general and vague and do not specify the illegality in the order. Brief facts as per case of prosecution are that one secret information was received at Police Post WPIA Police Station Ashok Vihar on 17.07.2002 to the effect that theft of oil was going on at A40, WPIA, Ashok Vihar. Pursuant to the said information, a raid was conducted and accused persons were arrested under the allegations that they State Vs. Sobhraj etc. (CR No. 11/2014) Page 2 of 7 were committing theft from oil Tanker No. HR55 - 1799 belonging to Bharat Petroleum Corporation Ltd. Bijwasan. As per the report of the Investigating Officer, the oil was to be delivered at Birla Transasia Carpets Ltd., Sikandrabad, U.P. It is also alleged that certain articles allegedly used by accused persons for committing theft were seized by police party and hence there are sufficient grounds to proceed against the accused persons after framing of charge.
(4) After completion of investigation, a charge sheet was filed in the court under Section 407/411/511/120B Indian Penal Code against the accused persons namely Shobraj, Rajender Kumar, Ashwani Kumar, Vir Singh and Mahesh Kumar. During the course of arguments before the Ld. Trial Court, it was argued on behalf of accused persons that ingredients of none of the offences are made out on record against any of the accused persons. Written arguments were also filed on behalf of one of the accused which are on record and which I have perused.
(5) Before coming to the merits of the allegations involved, I may observe that in the case of Union of India Vs. Prafulla Kumar Samal reported in AIR 1979 Supreme Court 366 the Hon'ble Apex Court observed as under:
"........ 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 accused has been made out. Where the materials placed before the Court disclose grave State Vs. Sobhraj etc. (CR No. 11/2014) Page 3 of 7 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 prima facie case could 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.
In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a PostOffice 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....."
(6) Further, in the case of Arun Vyas Vs. Anita Vyas reported in AIR 1999 Supreme Court 2071 the Hon'ble Supreme Court observed that:
"........ Section 239 has to be read along with S. 240 Cr. P. C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with S. 240 Cr. P. C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to State Vs. Sobhraj etc. (CR No. 11/2014) Page 4 of 7 discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like S. 468 Cr. P. C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of S. 468 Cr. P. C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify......"
(7) Applying the settled principles of law to the facts of the present case and after having gone through the record, arguments advanced before me and statements of the various witnesses cited by the prosecution, at the very Outset I may observe that the charges invoked by the prosecution are under Section 407 read with 411/511 and 120 B Indian Penal Code indicating that it is even the case of the prosecution that the alleged illegal act had not been completed but at the time when the accused were apprehended, it was the penultimate act and only attempt had been completed.
(8) Secondly the main offence alleged is under Section 407 Indian Penal Code (i.e. criminal breach of trust by carried). In order to invoke the provisions of Section 407 IPC, the first aspect which the prosecution is required to prima facie establish is the entrustment of property as a carrier, wharfinger or ware house keeper, commits criminal breach of trust in respect of such property shall be punished.
State Vs. Sobhraj etc. (CR No. 11/2014) Page 5 of 7 (9) Thirdly as per the definition of criminal breach of trust as given in Section 405 IPC, the prosecution was required to bring on record the details of the consignor. It is alleged that Bharat Petroleum Ltd. was the consignor but interestingly no document is on record to establish that Bharat Petroleum Ltd. was the consignor or that Birla Transasia Carpets Ltd. was the consignee.
(10) Fourthly the material on record shows that the quantity of the goods / oil which was allegedly entrusted (if any) to Birla Transasia Carpets Ltd. has not been brought on record.
(11) Fifthly the deficiency in the quantity found at the time of the delivery after the incident when the tanker was release by the order of court and the oil delivered to the alleged consignee has also not been specified, rather, it is alleged that the same was received by them in full quantity i.e. 12000 liters.
(12) Lastly there is no material on record establishing that the details of the contractor / transporter enlisted with the BPCL have been verified / confirmed.
(13) Hence, under the given circumstances, when the Ld. CMM has discharged the accused persons by holding that the ingredients of the alleged primary offence under Section 407 IPC were not prima facie made out, the said order cannot be faulted with. No doubt for the faulty investigations conducted by the prosecution, benefit of the same should not be given to the accused, but in a case where the prosecution has failed to State Vs. Sobhraj etc. (CR No. 11/2014) Page 6 of 7 bring on record material to prima facie specify the framing of charge, there can be no question of the benefit of the same not going to the accused. (14) In view of the above, I find no reason to interfere in the impugned order of Ld. CMM dated 7.12.2013. The revision petition is hereby dismissed being devoid of merits. Copy of this order be sent to the concerned court for placing on record. Revision file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 11.03.2014 ASJ (NW)II: ROHINI
State Vs. Sobhraj etc. (CR No. 11/2014) Page 7 of 7