Delhi District Court
State vs . on 20 October, 2011
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA COURTS,
DELHI.
FIR No. : 880/05
PS : Preet Vihar
Offence complained of : 341/323/34 IPC
Date of commission of offence : 30.11.2005
Unique Case ID No. : 02402R0316222006
STATE Vs.
1.Jaswant Singh S/o Sh. Harbans Singh
2. Jitender Singh S/o Sh. Harbans Singh Both are R/o H. No. C-159, Preet Vihar, Delhi.
............ Accused persons Sh. Brahm Dev S/o Sh. Ram Nath R/o H. No. 765/RC Block, Aadarsh Nagar, Khora Colony, Ghaziabad, U.P. ............. Complainant Date of Institution : 03.06.2006 Plea of accused persons : Pleaded not guilty Date of reserving judgment/ order : 18.10.2011 Date of pronouncement : 20.10.2011 Final Order : Acquitted BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 30.11.2005 at 8:15 PM in front of H. No. C-159, Preet Vihar, Delhi falling within the jurisdiction of PS- Preet Vihar, complainant Brahm Dev dropped one woman and asked the fare and on asking the fare, the said woman refused to pay the same and called her sons namely accused Jaswant Singh and Jitender Singh, who came inside from the house and started giving beatings to the complainant Brahm Dev and caused simple hurt to him in FIR No. 880/05 Page No. 1 / 8 furtherance of their common intention. Thus, both the accused persons are alleged to have committed offences u/s 341/323/34 IPC.
FIR On the basis of the said facts and on the complaint of the complainant Sh. Brahm Dev, an FIR bearing number 880/05 was lodged at Police Station Preet Vihar on 30.11.2005.
CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 03.06.2006.
The accused persons were summoned to face trial and they were supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a Charge for the offences punishable under section 341/323/34 IPC was framed against both the accused persons namely Jaswant Singh and Jitender Singh and read out to the said accused persons, to which the accused persons pleaded not guilty and claimed trial on 18.05.2010.
JUDICIAL RESOLUTION The ingredients to prove the offence punishable under section 323/34 IPC are as follows:-
(1)That the accused persons voluntarily caused hurt to the complainant.
(2)That hurt was such which caused bodily pain, diseased or infirmity to the complainant.
(3)That the said acts were committed in furtherance of common intention of the accused persons.
The ingredients to prove the offence punishable under section 341/34 IPC are as follows:-
(1)That the accused persons wrongfully and voluntarily obstructed the complainant/ victim.
(2)That obstruction was such as to prevent the complainant/ victim from proceeding in any direction in which he has right to proceed.FIR No. 880/05 Page No. 2 / 8
(3)That the said acts were committed in furtherance of common intention of the accused persons.
In order to prove the above said allegations, the prosecution has cited 5 witnesses, of which the complainant/ injured namely Brahm Dev has been cited as PW-1 in the list of witnesses.
Except PW- complainant/ injured Brahm Dev, all the remaining 4 witnesses cited by prosecution are formal witnesses and sufficient only to prove that injured Brahm Dev received simple injuries and that an FIR with respect to the said incident was lodged on the same day at PS- Preet Vihar vide FIR bearing No. 880/05.
The main witness in the present case is Brahm Dev and he was summoned on the several occasions since framing of charge but he was not traceable. Summons were issued to the said witness through IO/ HC Narender Pal Singh as well as through DCP concerned and IO submitted in his report Ex. PX that he tried to search for the said witness but he could not be traced. In support of his report, IO recorded the statement of public witnesses namely Rajender Dhawan, Banti and Umrai Singh and as per the said statement, the said witness has left the given address and his whereabouts are unknown. Thus, in view of the report of the IO/ HC Narender Pal Singh Ex. PX, statement of Rajender Dhawan, Banti and Umrai Singh and also in view of the statement of IO/ HC Narender Pal Singh recorded on 18.10.2011, the court came to the conclusion that the said witness is not traceable and ordered vide order dated 18.10.2011 that the said witness be not summoned again and therefore dropped him from the list of witnesses.
In the absence of the testimony of the complainant, the prosecution can never prove that the injuries caused to the complainant in the present case was a result of an act of accused persons.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses. None of the remaining witnesses is an eye witness to the incident and no other witness is competent enough to prove the guilt FIR No. 880/05 Page No. 3 / 8 of the accused persons in the absence of the testimony of complainant/ victim Brahm Dev.
The case is at the stage of PE, however, in the absence of the testimony of the complainant, there is nothing incriminating against the accused persons for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 341/323/34 IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of FIR No. 880/05 Page No. 4 / 8 Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the FIR No. 880/05 Page No. 5 / 8 accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to FIR No. 880/05 Page No. 6 / 8 strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held FIR No. 880/05 Page No. 7 / 8 to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 341/323/34 IPC to make the ends of justice meet.
Final Order In the opinion of the court, in absence of the testimony of complainant Brahm Dev and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused persons to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against the accused persons namely Jaswant Singh and Jitender Singh qua offences u/s 341/323/34 IPC in the present summons police case and hereby releases the accused persons namely Jaswant Singh and Jitender Singh u/s 341/323/34 IPC, which shall have the effect of acquittal.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bonds and the surety bonds of both the accused persons as well as sureties shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 20.10.2011.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 20.10.2011 Certified that this judgment contains 8 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 20.10.2011 FIR No. 880/05 Page No. 8 / 8