Delhi District Court
Amar Singh vs . Asha And Others on 7 April, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS
JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
SC No.24/11
PS:Kalyanpuri
U/S 452/395/397/354/509/323/506/120B/34 IPC
Amar Singh Vs. Asha and others
ORDER ON CHARGE
The facts of the case in brief are that the
complainant has been residing at 18/321 Kalyanpuri, Delhi
alongwith his old wife and one unmarried daughter. Smt.
Asha, Smt. Manju and Sunita are sisters, Shaker Lal, Umesh
and Anil are brother in law (jija), Surinder is sister's son, Babu
Ram is father and Sanjay is brother of Smt. Asha. Bir Singh is
her neighbour. Remaining are police officials. The son of the
complainant, late Sh. Rakesh was taken by his wife accused
Smt. Asha and her two brother in laws, Shanker Lal and
Umesh Kumar from Delhi to Meerut at about 11:00 am on
07.07.1999and thereafter he was taken to Nainital where he was found dead on 08.07.1999 at Gauri Hotel in very suspicious manner. The complainant later on came to know about his murder from the reliable sources. Subsequently, the dead body of his son was sent for postmortem and his viscera was preserved and the same was sent for examination and the result was awaited. Smt. Asha remarried S.C. No.24/11 Amar Singh v. Asha & Ors. Page 1 of 13 with her brother in law Shanker Lal and started living with him at Meerut. Accused Smt. Asha was having illicit relation with her jija accused Shanker Lal during the life time of her deceased husband. Accused Smt. Asha could not conceive during her cohabitation with the son of complainant and always suspected her husband not fit and competent to pregnant her and due to this reason she was always puzzled and always annoyed with him and ultimately she had developed love affairs with her jija Shanker Lal and with his help she had killed her husband and re married with accused Shanker Lal after his murder. After the remarriage with Shanker Lal, she had no relation with the complainant and his family. She and her above named relatives had the bad eyes on the property of the complainant even after the murder of her husband Rakesh and remarriage with accused Shanker Lal. On 01.11.91 at about 11:30 am accused Shanker Lal, Umesh, Sanjay, Anil, Surender, Veer Singh and Smt. Asha alongwith her two sisters Smt. Manju and Sunita and their mother came to the house of the complainant in a Tata Sumo No.UP 15 E 4221 and all entered into the house of the complainant armed with pistol and knives and forcibly obtained the keys of the steel almirah and teen box on the point of pistol and knives and opened the same and took the entire jewellery and valuables like clothes, etc. from the almirah and also took out cash amount of Rs.40,000/-. Those S.C. No.24/11 Amar Singh v. Asha & Ors. Page 2 of 13 jewellery, clothes and cash were kept for the marriage of his younger daughter Anita @ Kanchan whose marriage was due at that time. During the demand of keys, Sanjay had put the knife upon the private part of Anita and threatened to tear the same if the keys are not handed over to them. They also threatened the complainant that his other family members will be burn if they report the matter to the police or to any other concerned authority. The complainant alongwith some neighbourers went to the police station for lodging the report and despite his complaint made to the police no action was taken. Again on 24.11.99 at about 5:30 pm accused Shanker Lal, Umesh Kumar, Sanjay, Babu Ram and Surender and two police officers of Delhi Police named Rajender Kaushik and Tej Pal and two more police officers from the police of UP named Parmod Panwar, SI and one more officer whose name was not known to him, came to the house of the complainant and entered into his house while two police officers from UP as named above and two from Delhi Police as named above also entered into his house and took him away and made him forcibly to sit in a vehicle Tata sumo and was taken to the Meerut and two police officers of Delhi Police had left the house of the complainant directly to the PS Kalyanpuri, Delhi. At that time, the complainant was alone in his house but this incident was witnesses by many of the persons of the locality like Kaptan Singh, Jagdish Parsad Gupta, and other and the S.C. No.24/11 Amar Singh v. Asha & Ors. Page 3 of 13 complainant was also given beatings by all of them by slaps and blows and also abused in a very filthy language. The complainant was taken first to the H. No. 301, Nangla Battu, Meerut City, Meerut and he was confined in a room and all of them included two police officers of UP had drunk the wine and enjoyed upto 2 hours in the house of Sh. Shanker Lal. Thereafter, the complainant was taken to the Civil Line police station, and kept there till noon on 26.11.1999 when he was produced before the court of law and during that period of confinement no eatables were provided to him. When the complainant was confined in a room in H. No. 301 Nangla Battu, Meerut City, Meerut then the complainant had requested to Smt. Asha wife of his son Late Rakesh not to confine him in a room and also bitterly wept before her but she also abused and shouted upon him and asked Shanker Lal to beat him and to confine in a room. The entire happening was with the conspiracy of Smt. Asha. The complainant was produced before a court of Meerut city for an offence u/s 452/406/506/307/34 IPC vide FIR No. 538/99 in PS Civil Line, Meerut dated 26.11.1999 and the said case was fabricated there with the connivance of the concerned police of Meerut while neither complainant nor any of the family members ever went to Meerut to commit the alleged crime at Meerut. The complainant was released from the Meerut prison on 09.12.1999 and he came to Delhi on 10.12.1999 and S.C. No.24/11 Amar Singh v. Asha & Ors. Page 4 of 13 thereafter he approached to the concerned police station, Kalyanpuri as well as to the police station Civil Line, Meerut to make his report regarding this incident but his report was not lodged. Ultimately he sent written complaints to the Deputy Commissioner of Police, East District, Krishna Nagar, Delhi; to the Commissioner of Police, Delhi, PHQ, ITO, New Delhi to the Joint Commissioner of Police, Vigilance, PHQ ITO, New Delhi and Senior Superintendent of Police (SS) Meerut City, Meerut (UP) dated 22.12.99 but no action was taken. Therefore, he filed the present complaint against the accused persons.
2. My attention goes to a case reported as Union of India v. Prafulla Kumar, AIR 1979 SC 366 (1) the Apex Court observed that:
"10. Thus, on a consideration of authorities mentioned above, the following principles emerge:
(1) That 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;
(2) 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 proceedings with the trial.
(3) The test of determine a prima facie 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 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.S.C. No.24/11 Amar Singh v. Asha & Ors. Page 5 of 13
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a 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."
3. Thus, the court at the time of framing of charge as provided under Section 227 of the Criminal Procedure Code, here in after referred as the Code, has to see the material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Code. Absence of ground for proceeding against the accused means absence of a prima facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage 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. Thus, it is crystal clear that at the time of forming an opinion on the point of charge, the Court has to form a prima facie opinion of the S.C. No.24/11 Amar Singh v. Asha & Ors. Page 6 of 13 matter. No meticulous assessment of evidence is permissible at that juncture.
4. It has been argued on behalf of accused persons that essential ingredients for offence of decaoity punishable u/s 395 IPC are lacking. Therefore, no question arises for commission of offence u/s 397 IPC.
5. On the other hand it has been argued on behalf of complainant that all the allegations to make out a case of dacoity punishable u/s 395 & 397 IPC are there in the present case.
6. I have scrutinized the evidence on this aspect and find that CW1 deposed that accused persons were having knives and revolver in their hands. The number of accused persons were more than five. Therefore, this argument of Ld. Defence Counsel is not sustainable.
7. It has also been argued that complainant did not disclose any specific role to the accused persons regarding commission of offence by them. Complainant only gave general statement that accused persons were armed with pistol and knives.
8. It has been argued on behalf of counsel for complainant that complainant clearly disclosed about the every offence. Even otherwise it was a matter of trial where everything would be clarified in evidence.
9. I have considered this argument and I am of the S.C. No.24/11 Amar Singh v. Asha & Ors. Page 7 of 13 view that there is evidence on record showing the role played by the accused persons. Therefore, this argument is not convincing.
10. It has also been argued that there is delay of seven months in lodging of FIR about the alleged incident dated 01.11.1999. Besides, no medical record regarding sustaining of injury has been filed.
11. It has been argued on behalf of complainant that he had given the complaint related to the incident dated 01.11.1999 on the same date. He referred Ex.CW4/A in that regard.
12. I have considered this argument and I am of the view that the effect of delay is required to be decided at the time of decision of the case. Therefore, this argument is not convincing.
13. It has also been argued that accused no.11, 12 & 13 i.e. Pramod Panwar, Tej Pal and Rajender Kaushik are police officials. The police officials performed their duties in their official capacities and they are entitled for protection of provisions of Section 197 of the Code of Criminal Procedure, here in after referred to as the Code. No sanction for their prosecution as required u/s 197 Code was obtained.
14. It has been argued on behalf of Ld. Counsel for complainant that it is a matter of evidence whether accused Pramod Pawar, Tejpal and Rajender Kaushik were performing S.C. No.24/11 Amar Singh v. Asha & Ors. Page 8 of 13 their duties. However, they manhandled, abused and misbehaved with the complainant. Besides complainant was beaten by the public persons and the police officials. Therefore, the police officials are not entitled for protection of Section 197 Code.
15. In support of his arguments Ld. Defence Counsel relied on a case Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 wherein the Apex Court observed that:
"A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is an accused of an offence alleged to have been committed during the discharge of his official duty."
16. Ld. Defence Counsel further relied on a case P.K. Choudhury v. Commander, 48 BRF (GREF), (2008) 13 SCC 229 wherein the Apex Court observed that:
"Section 197 of the Code unlike the provisions of the Prevention of Corruption Act, postulate obtaining of an order of sanction even in a case where public servant has seized to hold office."
17. I have considered this argument. As per provisions of Section 197, sanction for prosecution is required if the alleged act is done in discharge of his official duty. The allegations leveled by the complainant are of such nature and those prima facie cannot be treated as the act done in discharge of their official duty. Therefore, this argument is not tenable and the principles of law laid down in above cases Rakesh Kumar Mishra v. State of Bihar,(supra) and P.K. S.C. No.24/11 Amar Singh v. Asha & Ors. Page 9 of 13 Choudhury v. Commander, (supra) will not provide any benefit to the accused persons.
18. Ld. Defence Counsel further argued that there is no sufficient material on record for framing of charge against accused persons and the court can look into the documents filed by the defence.
19. In support of his arguments he relied on a case Rukmini Narvekar v. Vijaya Satardekar And Others, (2008) 14 SCC wherein the Apex Court observed that:
"5. Thus in our opinion, while a dispute that ordinarily defence material cannot be looked into by the court by framing of a charge in view D.N. Padi case {(2005) 1 SCC 568; 2005 SCC (Cri.) 415}, there may be some very rare and exceptional cases where some defence material shown to the trial court would convincingly demonstrate that the prosecution version is totally observed or pre-postuous, and in such very rare cases, the defence material can be looked into by the court at the time of framing of charges or taking cognizance."
20. It has also been argued on behalf of Ld. Defence Counsel that complainant has failed to disclosed any prima facie case against accused persons and therefore, they are entitled for discharge. In support of his arguments, Ld. Defence Counsel further relied on a case Yogesh Alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394 wherein the Apex Court observed that:
"The test to determine a prima facie case depends upon the facts of which case and in this regard it is neither feasible nor desirable to laid down a rule of universal application. By and S.C. No.24/11 Amar Singh v. Asha & Ors. Page 10 of 13 large however, if two views are equally possible and the judge is satisfied with the evidence produce before him give rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused."
21. Ld. Defence Counsel further relied on a case Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 wherein the Apex Court observed that:
"In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose for finding out whether or not a prima facie case against a accused has been made out; where the material placed before the court disclosed 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; by and large if views are equally possible and judge is satisfied that the evidence produce before him while give rise to some suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused in exercising 227 of the Code***"
22. It has been argued on behalf of Ld. Counsel for complainant that judgment referred by Ld. Defence Counsel are not applicable on the facts of present case.
23. Although a number of rulings i.e. Sri Nilam Naik v. State of Orissa and Anr., MANU/OR/0247/1999; Smt. Padmamma v. A.V.R. Narsimba Rao and another,2005 CRI. L.J. 1160; Swapan Sarkar v. Santanu Bhowmik, MANU/WB/0107/ 2004; Iswar Chandra Behera v. State of Orissa, 2003(3) S.C. No.24/11 Amar Singh v. Asha & Ors. Page 11 of 13 Crimes 155 have been cited on behalf of accused persons, yet I am of the view that there is no requirement for their reproduction as a number of rulings on the same point have been discussed here in above.
24. A number of rulings i.e. Dr. P. Das Gupta v. The State & Anr., 2006 [3] JCC 1592; State of Orissa v. Debendra Nath Padhi, 2005 [1] JCC 109; S. Swaminathan v. State of Delhi, 2007 [4] JCC 2750; Chitresh Kumar Chopra v. State (Govt. Of NCT of Delhi), 2009(4) RCR (Criminal) 197; Kulwant Singh v. Omi Kabaria & Ors., 2007 [4] JCC 2663; and Insp. Bal Krishan v. State of Delhi, 2000 [1] JCC [Delhi] 102 have been relied on on behalf of complainant yet for the same reason, their reproduction are not necessary.
25. On perusal of the rulings referred to here in above and on applying the principles of law laid down therein on the basis of facts of the present case I scrutinize the evidence with a view to find out whether the evidence raise grave suspicion of commission of alleged offences against the accused persons. In other words it has to be seen whether the evidence on record show a prima facie case for commission of alleged offences against the accused persons. On sifting the evidence on record I find that evidence and material on record prima facie show existence of ingredients of the alleged offences. A strong suspicion has existed showing that the accused persons namely (1) Smt. Asha, (2) Shankar Lal, S.C. No.24/11 Amar Singh v. Asha & Ors. Page 12 of 13 (3) Surender, (4) Manju, (5) Umesh Kumar, (6) Sunita, (7) Anil, (8) Veer Singh, (9) Babu Ram, (10) Sanjay, (11) Rajender Kaushik, (12) Tej Pal and (13) Pramod Panwar have committed the offences punishable u/s 452/395/397/354/509/323/506/ 120B/34 IPC. Let charge against the accused persons be framed accordingly.
Announced in the Open Court
Dated:07.4.2012 (DR. T.R. NAVAL)
Additional Sessions Judge-02, East,
Karkardooma Courts, Delhi
S.C. No.24/11 Amar Singh v. Asha & Ors. Page 13 of 13