Delhi District Court
Amar Nath Sharma vs . State on 17 December, 2013
Amar Nath Sharma vs. State
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
Criminal Revision No. 89/12
ID No. : 02401R0482792012
SH. AMAR NATH SHARMA
S/o Sh. K.N.Sharma
R/o A-79, Inderpuri
New Agra (U.P)
..............Revisionist
Versus
State (Govt. of NCT of Delhi)
............Respondent
Date of Institution : 11.10.2012
Date of order reserved on : 02.12.2013
Date of order : 17.12.2013
Present: Sh. L. S.Solanki, Advocate, counsel for revisionist
Sh. R.K.Tanwar, Additional Public Prosecutor for the State
ORDER:
1. This criminal revision has been filed against the impugned order dated September 11, 2012 passed by the Court of learned Metropolitan Magistrate-06, Central District, Delhi whereby the learned Trial Court dismissed the plea of discharge of revisionist Amar Nath Sharma.
2. Necessary facts in brief leading to filing the present criminal revision as set out in the impugned order are that on February 26, 2009, complainant M/s Hindustan Trust (Pvt.) Ltd, through its Managing Director Crl. Revision 89/12 Page 1 of 12 Amar Nath Sharma vs. State Sh. Umesh Sanghi had given a written complaint against one person named Sunil Dixit alleging that he had misappropriated the property of complainant company. It was reported that said Sunil who was working as Asst. General Manager with the complainant company collected the payment on behalf of the company from parties/purchasers but he did not deposit the said amount in the account of the company. It was further alleged that accused Sunil Dixit was entrusted with a stock of medicines to be given to the purchasers/parties but the said medicines were never delivered to them and he had misappropriated the same for his own use.
(i) Upon this, FIR No.181/99 was registered and investigation was carried out. During investigation, it was revealed that accused Sunil Dixit had taken the medicines from the complainant company in the name of purchasers i.e. M/s Mascot Sales Corporation, Agra, M/s Kamal Medicines Store, M/s Kasjang & M/s J. K. Drug Store, Agra. However, he did not deliver the goods to the said purchasers. Accused Sunil Dixit was arrested on May 29, 1999 and his statement was recorded.
(ii) Subsequently, on June 12, 1999 complainant company through its Managing Director Umesh Sanghi had given further information to the police under the heading of "In continuation to FIR No. 181/99" to the effect that one of their employees named Amar Nath Sharma (present revisionist) had committed defalcations and he had misappropriated the property of complainant company and committed breach of trust with respect to the property of complainant company. It was alleged that being the employee of complainant, accused Amar Nath Sharma had taken the goods from the company in the name of other parties including M/s Advait Medical Store, M/s J.K. Drug House, Agra, M/S Achhera Drug Distributors, Agra and M/s Mascot Sales Corporation, Agra but he did not send the goods to the Crl. Revision 89/12 Page 2 of 12 Amar Nath Sharma vs. State concerned parties. It was further alleged that he did not deposit the amount in the account of company, which he had collected from different parties on behalf of complainant company.
(iii) On the same day i.e. June 12, 1999, similar information was given by the complainant company under the same heading with respect to another employee Devender Kumar Pachori who has already been declared proclaimed offender by the learned Trial Court.
(iv) As per the charge-sheet, investigating officer carried out the investigation of the said two subsequent complaints in continuation of the investigation already going on upon the receipt of first complaint against accused Sunil Dixit. After completing the investigation, chargesheet was filed against accused Sunil Dixit and Amar Nath Sharma. Accused Devender Kumar Pachori could not be arrested and he was declared proclaimed offender.
3. At the time time of dealing with the contentions raised by the parties, learned Trial Court made the following observations:
"Apparently and visibly, there is no connection at all between the three complaints given by the complainant company against three different accused persons. There is no allegation that the accused persons were sharing any common intention whatsoever with respect to the offences in question. Though Section 34 IPC has been added by the IO in the charge-sheet, there is no material on record to show that the accused persons were even knowing each other or had acted in furtherance of their common intention. It is clear that except the name of the complainant being the Crl. Revision 89/12 Page 3 of 12 Amar Nath Sharma vs. State aggrieved party and a few common purchasers/parties like M/s. Mascot Sales Corporation and M/s. J. K. Drug Corporation, there is nothing common in the three complaints. Neither the said acts of the three accused persons were a part of same transaction nor were committed under any criminal conspiracy. The allegations show that the said three offences are entirely separate from each other and all the accused persons have a different role to play in their own individual capacity. There is no inter-se connection between the accused persons or their acts. There is no relation or nexus between the acts of the three accused persons.
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At the outset, it is conceded and admitted by both the sides that the act on the part of the IO was not proper. There was no connection between the three accused persons or three offences committed by them in their individual capacity. Merely because the complainant is the same or that he has mentioned "In continuation to FIR No. 181/99" in his subsequent complaints, that would not be a reason to club the investigation in the present case. It is apparent that the proper course should have to been to register separate FIRs on the separate complaints made by the complainant against separate accused persons."
4. While dismissing the plea of discharge of revisionist Amar Nath Sharma, learned Trial Court considered the subsequent complaint as separate FIR and to arrive at the said conclusion, reliance was placed on the judgments A.W. Khan vs. State [AIR 1962 Calcutta 641], Mani Mohan vs. Emperor [AIR 1931 Calcutta 745] and Apren Joseph vs. Crl. Revision 89/12 Page 4 of 12 Amar Nath Sharma vs. State State of Kerala [1973 Crl.J 185 (SC)].
5. Aggrieved by the impugned order, revisionist has filed the present criminal revision.
6. Learned counsel appearing for revisionist sagaciously contended that the subsequent complaint made by the complainant is nothing but the statement of the complainant recorded under Section 161 Cr.P.C and no reliance can be placed on the said statement in view of Section 162 Cr.P.C except for the purpose of contradictions. It was submitted that learned Trial Court has committed an error by treating the said subsequent statement as an FIR because from the charge-sheet, it is abundantly clear that that police had not considered the same as separate FIR but considered it as subsequent statement of complainant and filed the charge sheet against all the accused persons with the aid of Section 34 of the IPC. It was further submitted that since the investigating officer has not considered the subsequent statement as separate FIR, he had not complied with the mandatory provisions of Section 157 Cr. P.C. It was further argued that the facts of the case relied upon by learned Trial Court are totally different from the facts in hands. In the said cases, multiple information was given to the police about the commission of same cognizable offence whereas in the instant case complainant had given multiple information to the police about the different cognizable offences, accordingly, learned Trial Court had committed an error by placing reliance on the said judgments.
7. Though learned Additional Public Prosecutor fairly conceded that the investigating officer had committed a grave mistake by treating subsequent complaint as supplementary statement of the complainant, yet Crl. Revision 89/12 Page 5 of 12 Amar Nath Sharma vs. State submitted that learned Trial Court had rectified the said mistake by separating all the matters. It was submitted that since the subsequent complaints were nothing but separate FIR hence learned Trial Court has not committed any mistake by dismissing the plea of the revisionist.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. From the submissions advanced by counsel for both the parties, short but interesting question emerges as to whether the subsequent complaint lodged on behalf of the company can be considered as separate FIR as considered by the learned Trial Court.
10. Before proceeding further, I deem it appropriate to consider the judgments relied upon by the learned Trial Court
11. In Apren Joseph versus State of Kerala (Supra), murder of political rival had taken place during the intervening night of December 13, 1970 and December 14, 1970 at about 1 AM but no one dared to report the matter to the police prior to December 14, 1970 when PW2 Marco Mani came to know about the said murder and visited the place of occurrence and saw the dead body of deceased. Thereafter, he went to the police station located about 9 Kilo Meters away from the place of occurrence and lodged an FIR at about 8 AM. In the light of the above said facts, contention was raised on behalf of the appellants that the first information report was lodged after very long delay and thus in the circumstances of the case is fatal to the prosecution. While dismissing the said contention, it was observed by the Hon'ble Apex Court that "receipt and recording of Crl. Revision 89/12 Page 6 of 12 Amar Nath Sharma vs. State information report by police is not a condition precedent to the setting in motion of a criminal investigation. Nor, does the statue first provide that information report can only be made by an eye witness". At last, Court held "no duration of time in the extract can be fixed as reasonably for giving information of a crime to the police, the question of reasonable time being a matter of determination by the Court in each case. Mere delay in lodging the first information report with the police is, therefore not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausible of the explanation forthcoming for such delay, accordingly, must fall for consideration on all the facts and circumstances of a given case". From the above, it becomes clear that the facts of the case in hand are totally different from the case involved in the Apren Joseph' case. Thus, to my mind, the observations made by the Hon'ble Apex, in the said case are not helpful to the prosecution in any manner.
12. Similarly, in case A.W. Khan versus State (Supra), three charges of rape were levelled against the appellant. One was in respect of rape committed on a girl named Hayatun on March 18, 1960. Second allegation was in respect of rape of a girl called Kuchnur on March 17, 1960 and third charge was in respect of rape on another girl named Arisha on March 14, 1960. Father of the one of the victims made a petition before the Home Minister requesting to direct the police to search his daughter. Accordingly, Home Minister directed the police to investigate the matter. Accordingly, police registered an FIR on March 20, 1960 and thereafter police rescued two girls. In the light of above facts, a contention was raised that the subsequent statement of victims are hit by Section 162 Cr. P.C. but the said contention was declined. Since, the facts of the above said case are also totally different from the facts of the case in hand, thus the observations made therein are also not helpful to the prosecution in any Crl. Revision 89/12 Page 7 of 12 Amar Nath Sharma vs. State manner.
13. Similarly, the facts of the case Mani Mohan Ghosh (Supra) are totally different from the facts of the case in hand. In the said case, multiple informations were received about the missing of a girl. Initially police did not take any action but subsequently took action and thereafter registered an FIR whereas in the instant case, facts are totally different, thus the observation made in the said case is also not helpful to the prosecution in the manner.
14. In the instant case, on the complaint of company M/s Hindustan Trust Private Limited, an FIR bearing No. 181/99 was registered against the accused Sunil Dixit and thereafter he was arrested on May 29, 1999, thus police was investigating the matter qua accused Sunil Dixit on the allegations levelled by the complainant.
15. Admittedly, the complainant had made two separate complaints subsequently against two more persons namely Amarnath Sharma (present revisionist) and Devender Kumar Pachori (proclaimed offender). Investigating officer had considered both the said complaints as subsequent statement of the complainant in the present case and thereafter he filed chargesheet against all the accused persons under Section 408 IPC read with Section 34 IPC. It is admitted case of the prosecution that all the offences mentioned in the said three complaints are totally different and not connected to each other in any manner. Similarly, there is no nexus between the accused persons. Thus, investigating officer was not supposed to investigate the subsequent complaints with FIR No. 181/99. Rather, it was the duty of investigating officer to register a separate FIR on receipt of subsequent complaint but instead of registering separate FIR, he preferred Crl. Revision 89/12 Page 8 of 12 Amar Nath Sharma vs. State to carry on investigation in the previous FIR No. 181/99.
16. Needless to say that under Section 154 Cr. P.C. as soon as, police received any information of the commission of a cognizable offence police is duty bound to register an FIR and thereafter it is also the duty of the SHO to send the report forthwith to the concerned Magistrate empowering to take cognizance. Relevant portion of Section 157 Cr. P.C. read as under:
157. Procedure for investigation - (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the the facts and circumstances of the case, and, if necessary, to take measure for the discovery and arrest of the offender"
(emphasis supplied)
(i) Section 157 casts a duty upon the investigating officer to forthwith send the report of the cognizable offence to the concerned Magistrate. The purpose for forthwith sending the report to the concerned Magistrate is to keep the concerned Magistrate informed of the investigation of a cognizable offence so that he may be able to control the investigation and if required, to Crl. Revision 89/12 Page 9 of 12 Amar Nath Sharma vs. State issue appropriate directions. Mere delay in the despatch of the FIR itself is no ground to throw away the prosecution case in its entirely. Sending the report to the concerned Magistrate is a circumstance which provides a basis to raise suspicion that the FIR is the result of consultation and deliberations and it was recorded much later than the date and time mentioned in it, and discloses that the investigation is not fair and forth right, (Relied on Swati Ram v. State of Rajasthan, (1972) 2 Crimes 148 (Raj).)
17. Bare perusal of the Section 157 Cr. P.C. reveals that officer in charge of police station shall send the report to the concerned Magistrate empowering to take cognizance of offence, if from the received information or otherwise he has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 Cr. P.C. Under Section 156 (1) Cr. P.C., police official empowers to investigate any cognizable offence without the order of Magistrate. It means that under Section 157 Cr. P.C. in charge of police station is bound to send report forthwith to the concerned Magistrate, if he received any information about the commission of a cognizable offence or otherwise he has reason to suspect the commission of such offence. But in the instant case, investigating officer has not complied with the mandatory provision of Section 157 Cr. P.C. because he did not consider the subsequent complaints as separate FIR. Rather, he considered the subsequent complaints as supplementary statements of the complainant and due to that reason he has filed the chargesheet against all the accused persons under Section 408 IPC read with Section 34 IPC. Thus, from the facts in hand, it becomes clear that there was no confusion in the mind of investigating officer otherwise he would not have filed a single chargesheet against all the accused persons with the aid of Section 34 IPC.
Crl. Revision 89/12 Page 10 of 1218. Indisputably, the subsequent complaints were made in FIR No. 181/99 in which accused Sunil Dixit had already been arrested. The statement as referred to in Section 162 Cr. P.C. may be an oral statement or a statement in writing. Since, in instant case, complainant is a company and complaint was lodged through its Managing Director Umesh Sanghi, thus, he made his supplementary statement in writing. Mere fact that he made a supplementary statement in writing does not exclude the subsequent complaints from the purview of statement as referred to in Section 162 Cr. P.C.
19. Admittedly, under Section 162 Cr. P.C., statement made by a person in the course of investigation shall not be used for any purpose during inquiry or trial in respect of any offence under investigation except for the purpose of contradiction or re-examination with the permission of the Court. Since the subsequent statements were made during the investigation of a case, thus the said subsequent statements are hit by Section 162 Cr. P.C. during the inquiry/trial of the said case.
20. Though, under Section 219 Cr. P.C. there is provision to join three charges of same kind provided the same are committed within a period of 12 months but there is no provision under Code of Criminal Procedure where three different accused persons can be joined together for distinct offences having no nexus between them. Thus, to my mind, investigating officer has no jurisdiction to connect the subsequent complaints with the FIR No. 181/99. Such practice is alien to Code of Criminal Procedure, thus in my view is not permissible.
21. In view of the aforesaid discussion, I am of the considered Crl. Revision 89/12 Page 11 of 12 Amar Nath Sharma vs. State opinion that the learned Trial Court has committed an error by treating the subsequent complaints as separate FIR and separating the same for the purpose of trial, thus to my mind, impugned order is not sustainable. Accordingly, I hereby set-aside the same. Accordingly, revisionist stands discharged.
22. However, it is made clear that this order shall not come in the way, if State decides to register an FIR on the basis of subsequent complaints filed by the complainant and prosecute the accused in accordance with law.
23. Copy of the order be sent to the learned Trial Court immediately. TCR be sent back.
24. Criminal revision file be consigned to record room.
Announced in the open court on this 17th day of December, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
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