Delhi District Court
State vs R. M. Tufail on 22 August, 2007
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IN THE COURT OF MS. DEEPA SHARMA, ADDITIONAL
SESSIONS JUDGE: DELHI.
(Criminal Revision No. 05/2007)
IN THE MATTER OF:
State ....... Revisionist.
VERSUS
R. M. Tufail
5/27 A JUNGPURA-B,
MATHURA ROAD,
NEW DELHI ........ Respondent
ORDER
1. This is a revision petition against the order of Ld. MM whereby the accused has been discharged of the offences u/s 186,353,332,506 IPC. The petition has been filed by the state Notice of revision petition was sent to the respondent and counsel Shri K.Ansari with Shahid Ali had filed the vakalatnama and represented the accused/respondent.
2. I have heard the arguments of Ld. APP and of Ld. counsel for the accused and have gone through the trial court record which has been summoned.
3. It is apparent that the alleged incident, of which the respondent has been an accused, had taken place during the trial of the famous Red Fort shoot out case pending in the court of Shri -2- O.P.Saini, Additional Sessions Judge, Delhi.
4. It is submitted that on 11.11.03 during the proceedings of that case before Shri O.P.Saini, Ld. Additional Sessions Judge, the complainant SI Harender Singh was present being IO of case FIR No.319/00 u/s 25 Arms Act, PS Kalyan Puri which was being tried jointly with the Red Fort shoot out case. On that day, ten parcels of computer had been produced in the court. The respondent/accused was the counsel for few accused persons in that case. Accused started pressing the seal of parcel with force and the complainant of this case brought this fact to the notice of the court. It was at that time that the respondent/accused R.M.Tufail told SI Harender was levelling false allegations and an altercation took place and R.M.Tufail slapped SI Harender Singh on the face. SI Harender gave a complaint to the Ld. Judge and the complainant was medically examined and the FIR was registered and after completion of the investigation the challan was filed. It is submitted that there exists prima facie case against the accused for framing of the charges for the offences u/s 186/353/332/506 IPC and the Ld. trial court should have framed the charge but the trial court has discharged the accused vide its order dated 15.11.06. It is submitted that the order of discharge of Ld. trial court is against the law and the same be set aside. It is submitted that accused was discharged on the following grounds :
(a) Copy of order summoning SI Harender Singh and copy of summon issued to SI Harender Singh were not annexed with the charge sheet.-3-
(b) No order of joint trial of the Red Fort shoot out case and of FIR No.319/00 in which SI Harender Singh was the IO, filed with the charge sheet.
(c) Since Mr. R.M.Tufail had submitted his apology and felt sorry and that apology was accepted by the court of Shri O.P.Saini, Ld. Additional Sessions Judge and did not propose any action, so it was incumbent on the complainant SI Harender Singh and police to treat the matter closed.
5. It is submitted that the order has caused grave miscarriage and failure of justice and has caused irreparable loss and injury to the interest of the petitioner and the public at large and the same is liable to be set aside on the following grounds :
(a) Copy of the order sheet in which the proceedings held in the court on 11.11.03 had been recorded by Sh. O.P.Saini, ASJ is placed on record and this shows that the accused had admitted the alleged allegations in the open court and learned MM has failed to appreciate this fact.
(b) It is further submitted that Ld. MM has failed to appreciate that accused had threatened the complainant in the open court. Therefore offence u/s 506 IPC is also made out and this fact is not considered by Ld. MM.-4-
(c) Ld. MM has failed to appreciate that the Ahlmad of the court of Sh. O.P.Saini, Ld. ASJ has been cited as a prosecution witness alongwith original record to prove that SI Harender Singh was present in the court as witness.
6. It is prayed that the order of Ld. MM be set aside and appropriate directions be issued in this case.
7. Ld. counsel for the accused/respondent has contraverted the arguments of Ld. APP and has submitted that the order of Ld. MM does not suffer with any infirmity or impropriety and liable to be sustained. It is submitted that Ld. Trial Court has correctly appreciated all the facts and circumstances of the case and correctly discharged the accused.
8. I have perused the file of the Ld. Trial Court as well as the statements of the witnesses recorded u/s 161 Cr.PC forming the part of the police file which is produced for my perusal by Ld. APP. It is apparent that Ld. MM has completely mixed up the principles of law to be followed at the stage of framing of the charges and the principles of law to be followed at the stage of conviction of accused after holding the trial. At the time of the framing of the charges, the strong suspicion against the accused is sufficient to frame charges. The court is required to apply its judicial mind to the facts of the case to find out from the evidence produced whether or not a prima facie case has been made out. If so, the charge should be made. If not, accused -5- be discharged. The court is not required to consider the probative value of the statements of witnesses recorded u/s 161 Cr.PC or otherwise. It only needs to see, if uncontradictory statement of PWs is sufficient to prima facie satisfy all the ingredients of the offence. The principle to be followed in case of conviction is "proof beyond reasonable doubts". In trial, the court considers the merit of testimony of witness, looks for collaborations in the form of evidence of other witnesses or documents on record and also take into consideration the documents which ought to have been produced, but not produced by prosecution in trial. It is at this stage that the court has to apply Principle of Probity to see whether all the evidences on record are sufficient to bring home the guilt of the accused, whether a witness is to be believed or not. The Ld. MM has applied the principles which are required to be followed by court during the trial of the case. The principle to be followed while framing of the charge has been laid down in the case State of Maharashtra Vs. Somnath Thapa 1996 Cr.L.J. 2448 and the same principle is followed in many other cases that:
"If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charges though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing the charge, probative value of the materials brought on record -6- cannot be gone into. The materials brought on record by the prosecution has to be accepted as true at that stage."
9. Therefore, from the above case law, it is apparent that court is not required to see the substantive value of evidences on record at this stage.
10. It has also been held in number of pronouncements that the court is not required to give reasons for framing the charge since there is no legal requirement and this has been held by the Hon'ble Supreme Court in the case Kanti Badre Shah and Ant. Vs. West Bengal JT 2000 (1) SC 13 and the similar view is held by Supreme Court in another case UP Pollution Control Board Vs. Mohan Makins Ltd. 2000 (III) AD 254 (SC.) Therefore the court is not required to discuss in detail each and every evidence on record while ordering for the framing of the charge.
11. In this case there is no denial that complainant SI Harender Singh is a police officer and thus a public servant. There is no denial that incident of slapping of SI Harender Singh did take place, in the open court and this fact is also clear from the copy of the proceedings of the court of Sh. O.P.Saini, ASJ filed alongwith a challan and from statements recorded u/s 161 Cr.PC of witnesses, i.e. complainant, Inspector Surender, Shri Bakshish Singh, special public prosecutor, statement of ASI Sheodan Singh, HC Naresh, Naib Court in the court of Sh. O.P.Saini, ASJ, constable Arun Kumar, SI Abhinender Jain, SI Amardeep, constable Brahmanand.
-7-12. The next question to be determined by the court is to find out if a prima facie case for the offences u/s 186,332,353 and 506 IPC has been made out or not under which the present challan has been filed by the prosecution. In order to see the existence of a prima facie case for these offences u/s 332, 186, 353 IPC, the court has to see whether SI Harender Singh was discharging his public duty at the time of the incident or not. The presence of SI Harender Singh in the court is apparent from the statements of above mentioned PWs and also from the complaint and from the proceedings of the court of Sh. O. P. Saini, ASJ. It is also clear that at the time of the incident SI Harender Singh was opening the case property produced in the court during the trial of Red Fort shoot out case. It is argued on behalf of the accused that there is nothing on record to show that SI Harender Singh was summoned by the court in this case and that there is no document to show that there was any order of the joint trial of Red Fort shoot out case alongwith FIR No.319/00 Arms Act, PS Kalyan Puri.
13. This argument of Ld. Counsel has not force in view of the FIR recorded on statement of SI Harender Singh and in which complainant SI Harender Singh has clearly stated that he was IO in case FIR No.319/00 dated 26.12.00 u/s 25 Arms Act, PS Kalyan Puri and that this case was jointly tried with Red Fort shoot out case in the court of Sh.O.P.Saini, ASJ, Room No.116, Tis Hazari. PW HC Brahmanand has also made the similar statement u/s 161 Cr.PC. Ld. MM at the stage of framing of the charge has wrongly disbelieved the uncontradicted statements of these witnesses and relying on certain -8- documents which do not form the part of the challan, discharged the accused. From reading the order of Ld. MM it appears that Ld. MM has given the benefit of doubt to the accused, for non filing of certain documents by prosecution alongwith challan. He seems to have followed the principle which he is required to follow on the conclusion of the trial of the case after framing of the charge.
14. It is to be seen now if the allegation in the statement of witnesses and the proceeding of Ld. ASJ Sh. O.P. Saini prima facie covers the ingredients of Section 332, 186 and 353 IPC.
Section 332 reads as under -
"Whoever voluntarily causes hurt to any person being a public servant .............. in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant ............."
Section 353 reads as under -
"Whoever assaults or uses criminal force to any person being a public servant ............... in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant ..........."
15. From the statement of SI Harender Singh and HC Brahmanand, it is prima facie clear that SI Harender Singh was present in the court as IO of case FIR No.319/00 dated 26.12.00 u/s 25 Arms Act, PS Kalyan Puri which was being jointly tried with the -9- main case i.e. Red Fort shoot out case the FIR No. is 688/00 u/s 302 IPC, etc. and 3/4 Explosives Act and 25/27 Arms Act. The proceedings of the court of Sh. O. P. Saini, ASJ, whose copy is on file, also shows that SI Harender Singh was in discharging of his public duty in the presence of Ld. ASJ Sh. O. P. Saini and was acting in his capacity of Public Servant. All these evidences prima facie satisfy the ingredients of Sections 186, 332 and 353 IPC. Moreover, it is also apparent that there are certain categories of offences of which the joint trial has been ensued by virtue of Section 220 Cr.PC. Moreover, Ahlmad of the court of Shri O.P.Saini, ASJ has also been cited as a prosecution witness. Ld. MM could have only formed an opinion that there was no joint trial of FIR No.688/00, PS Kotwali and FIR No.319/00, PS Kalyan Puri only after holding a trial when defence counsel would have got an opportunity to cross examine the PWs, complainant and HC Brahmanand and would be able to prove that they had made a false statement u/s 161Cr.PC to this effect. At the stage of framing of the charge, the court is not required to go into the veracity of the statement of PWs or look for collaboration.
16. The observation of Ld. MM to the effect that it was incumbent on the part of the complainant or the police to treat the matter as closed keeping in view the apology submitted by the accused, is also contrary to the law and he should have kept in mind while making this observation that the offences u/s 186, 332 and 353 IPC are not compoundable u/s 320 Cr.PC.
17. The challan in this case has also been filed for the offence -10- u/s 506 IPC and there is nothing in the order of Ld. MM to show if the offence u/s 506 IPC has been made out or not. Ld. MM has not discussed this aspect of the prosecution case.
18. It seems Ld. MM has not applied his mind properly. The criminal intimidation has been defined u/s 503 IPC and the statements of the witnesses clearly prima facie establish the commission of an offence of criminal intimidation punishable u/s 506 IPC. The offence u/s 506 IPC also therefore has been prima facie made out against the accused. The statements of PWs, proceedings of the court of ASJ dated 11.11.03, prima facie satisfies all the ingredients of Section 186, 332, 353 and 506 IPC.
19. The order of Ld. MM is based on surmises, conjectures and is against the established principles of law. The order on charge of Ld. MM dated 15.11.06 is hereby set aside. I order for framing of charges for offences u/s 186, 332, 353 and 506 IPC.
20. The Trial Court Record be sent back to the concerned court alongwith a copy of this order and the accused is directed to appear before the concerned court on 5.09.07.
Announced in the open court on
this 30th of August, 2007 (DEEPA SHARMA)
ADDITIONAL SESSIONS JUDGE: DELHI.