Delhi District Court
Sukhbir Singh vs The State on 2 February, 2022
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ
(FTSC) (RC), SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI.
CNR No.DLSW010137462019
CR No. 537/2019
Sukhbir Singh,
(SI Delhi Police 791/D
PS Dwarka South)
S/o Late Sh. Dharampal Singh,
R/o Gali No.9, Gopal Nagar,
Najafgarh,
New Delhi. .....Revisionist
VS.
1. The State
2. Sh. Vipul Kambiri,
S/o Sh. Surender Kambiri,
R/o Flat No.103,
Sabka Ghar Apartment,
Plot No.23, Sector6,
Dwarka, New Delhi.
3. Sh. Kunal Aggarwal,
S/o Sh. Prakash Aggarwal,
R/o Flat No.130, DDA Pocket1,
Sector6, Dwarka, New Delhi. .....Respondents
Date of institution of revision : 06.12.2019
Date on which order reserved : 24.12.2021
Date on which judgment pronounced : 02.02.2022
Sukhbir Singh Vs. State,
CR No. 537/2019 1 of 20
ORDER
1. This is a revision petition U/s 397(1) Cr.P.C., filed by the revisionist SI Sukhbir Singh, for settingaside the impugned order dated 20.11.2019 passed by the court of Sh. Himanshu Raman Singh, ld. MM, Dwarka Courts, New Delhi in a case bearing FIR No.202/2018 PS Dwarka South, titled as State Vs. Kunal Aggarwal & Ors., U/s 186/353/332/427/34 IPC.
2. The brief facts of the case, as per the revisionist, are that on 10.07.2018 at 4.00 PM, a PCR call was received in the Police Station Dwarka South that "Jhagde Main Goli Chali Hai" at Sector11, Manish Market, near Metro Station from mobile No. 8076577460, which was recorded vide DD No.5A. It is further alleged that SI Sohanveer Singh and Inspector Ashok Kumar, the then SHO, were informed about this call and the said call was also received by ERV I/C ASI Sukhbir Singh, who alongwith HC Gangadhar & Ct. Manish was on patrolling duty in ERV Gypsy at bus depot, Sector8, Dwarka, Delhi. It is further alleged that IO SI Sohanveer Singh contacted the ERV and alongwith SI Sumit Dhankar reached at the spot and found that some boys were having food in front of "Kabab Tales Dhaba". It is further alleged that on enquiry about the call, the boys being under the influence of alcohol, started misbehaving Sukhbir Singh Vs. State, CR No. 537/2019 2 of 20 with the police team. Since the dhaba was found running and serving food at 4.00 AM, they were enquired about the licence/permission for running the dhaba in the night or any ownership document for running the dhaba but they refused to produce the same. One lady also came there and started misbehaving with the police party. In the meantime, the then SHO came on the spot to verify the call and he asked the IO to take both the boys in PS for further enquiry in view of continuous nuisance and misbehaviour. However, the call was found bogus, as being made by some public person. It is further alleged that on being asked by IO SI Sohanveer Singh to respondents No. 2 & 3 to sit in the ERV Gypsy, respondent No. 2 started manhandling and assaulted ASI Sukhbir Singh, the revisionist herein, grabbed his collar and tried to drag him and due to which the revisionist sustained injuries. Respondent No. 3 smashed his hand against the rear window of the pane of ERV Gypsy and broken the same. It is further alleged that when PSI Sumit Dhankar tried to get the respondents No. 2 & 3 sit in the Gypsy, they pushed and thrashed him also and, therefore, an FIR bearing No. 202/18, U/s 186/353/332/427/34 IPC was registered in the PS against the respondents on the statement of ASI Sukhbir Singh. It is further alleged that the injured police officials namely ASI Sukhbir Singh & PSI Sumit Dhankar were got medically examined at DDU Hospital and Sukhbir Singh Vs. State, CR No. 537/2019 3 of 20 doctor opined the nature of injury as "Simple Sharp" on the MLC of ASI Sukhbir Singh and "Simple Sharp Injuries" on the MLC of PSI Sumit Dhankar. Both the respondents were also medically examined, which clearly show that they were in drunken condition. Respondents No. 1 & 2 were arrested and were produced before the Hon'ble Court and the Hon'ble Court was pleased to release the respondents on bail on the same day. After taking the permission U/s 195 Cr.P.C., the chargesheet was filed.
3. During trial, after hearing the arguments, the Ld. Trial Court vide impugned order dated 20.10.2019 discharged the accused persons i.e. respondents No. 2 & 3 herein and also issued directions to the Worthy Commissioner of Police, Delhi to take departmental action against the erring police officials and also directed for registration of criminal case against the erring officials. Thus, vide present revision petition, the revisionist has challenged the aforesaid order dated 20.11.2019 of the Ld. Trial Court and has prayed that the aforesaid order be setaside.
4. It is argued on behalf of the revisionist that the Ld. Trial Court has passed the impugned order in a mechanical way without considering the factual position of the case. It is argued that the Ld. Trial Court erred in passing the Sukhbir Singh Vs. State, CR No. 537/2019 4 of 20 impugned order, which is without merits and against the settled principles of law. It is further argued that the Ld. Trial Court misconstrued the principles laid down in various judgments and has erred in applying the observation of the Hon'ble Supreme Court in the case of "Ramleela Maidan Incident" and thereby directing the Worthy Commissioner of Police to take departmental action against the revisionist.
5. It is further argued on behalf of the revisionist that the police authorities have rightly prosecuted the respondents No. 2 & 3 while taking proper sanction U/s 195 Cr.P.C. from the concerned ACP. Ld. Counsel for the revisionist argued that there is a primafacie case against the accused persons and at the stage of framing of charge, the probative value of the materials on record cannot be gone into and the materials brought on record by the prosecution has to be accepted as true at that stage. It is further argued that at the stage of framing of charge, the material or document of the accused cannot be considered by the court and the court may only conduct limited evaluation of materials and documents on record and sifting of evidence to primafacie find out whether sufficient ground exist or not for the purpose of proceeding further with the trial and for that purpose the court can consider the material produced by the prosecution alone and not the one produced by the accused.
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It is further argued that it is settled law that the complainant and the investigating officer can be the same person and it does not vitiate the investigation. Ld. Counsel for the revisionist relied upon the following judgments in support of his arguments :
i) State of Maharashtra etc. Vs. Som Nath Thapa etc., AIR 1996, SC 1744;
ii) Mukesh Singh Vs. State (Narcotic Branch of Delhi), 2020 AIR (SC) 4794;
iii) State of Orissa Vs. Devendra Nath Padhi, JT 2004 (10) SC 303;
6. Ld. Counsel for the revisionist has also argued that there was no reason for the police to frame the accused and they have only done their duty. It is argued that it was the accused persons, who did not cooperate with the police and was running the dhaba at 4.00 AM without any licence and did not show any documents and rather quarrelled with the police under the influence of liquor. It is argued that no complaint was ever made by the accused persons against the police and what was the illegal demand has not been disclosed by the accused persons. It is further argued that the accused persons were challaned separately U/s 28/112 D.P. Act to which they pleaded guilty. It is requested that the impugned order dated 20.11.2019 of the Ld. Trial Court may kindly be setaside.
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7. The Addl. PP for the State has submitted that the State has not challenged the impugned order dated 20.11.2019 of the Ld. Trial Court and the present revision petition has been filed by the revisionist in his individual capacity.
8. Ld. Counsel for respondents No. 2 & 3 have filed written reply to the revision petition. It is argued that the respondents No. 2 & 3 have been falsely implicated by the police officials by concocting a false and baseless story, which shows how the revisionist and his fellow police officers have twisted the true facts and is the glaring example of high handedness of the police and is also the classic example of abuse of power, position and law by the police officials. It is submitted that the allegations of hitting of glass pane and oozing out of blood from the hands of all four including PSI Sumit Dhankar is falsified by a bare perusal of MLC of PSI Sumit Dhankar, which states "No any external injury is seen at the time of examination". It is further submitted that when there is an observation by the doctor of no external injury and opinion is of simple injury, then there was no question of any Sharp Weapon, as alleged in said MLC. It is further submitted that there is no proof regarding the broken rear window pane of the Gypsy as neither any video or photographs of the said broken Gypsy glass were taken nor any broken glass or Gypsy of which Sukhbir Singh Vs. State, CR No. 537/2019 7 of 20 the glass was broken, were seized. It is further submitted that despite the availability of public witnesses, as per the admitted case of prosecution, no person was cited as a witness. It is further submitted that no call detail record of police officials or police witnesses was seized or placed on record to prove their exact location. It is argued that in view of the abovementioned facts, the order dated 20.10.2019 was passed after proper appreciation of facts and evidence on record and after proper application of mind and therefore, the respondents No. 2 & 3 are rightly discharged by the Ld. MM. Ld. Counsel for the revisionist has relied upon the following judgments in support of his arguments :
i) Union of India Vs. Prafulla Kumar Samal & anr., 1979 AIR 366;
ii) State of Karnataka Vs. L. Muniswamy & Ors., 1977 AIR 1489;
iii) Bhagwan Singh Vs. State of Rajasthan, AIR 1976 SC 985; and
iv) Megha Singh Vs. State of Haryana, AIR 1995 SC 2334.
9. Heard. Record perused.
10. In the present case, the criminal machinery was set into motion by a PCR call made at 3.50 AM on 10.07.2018 regarding the incident of firing, which is recorded in the Delhi Police Control Room FormI as "QRL GOLI CHAL Sukhbir Singh Vs. State, CR No. 537/2019 8 of 20 RAHI" and the place of incident is recorded as Sector12, Dwarka, Mini Market, Manish Market, near Sector11, Dwarka Metro Station. The informer's telephone number is recorded as 918076577460.
11. The MPV number CYT79 reached at the spot at 3.58 AM on 10.07.2018 and reported at 4.23 AM as follows "RCD 4 MIN CALLER KI 2 U/K LADKO SE QRL... GOLI CHALNE WALI KOI BAAT NAHI HAI... CALLER NASHE SHARAB MAI HAI... SI SOHANVEER MOKA HAWALE... C/ROOM INFD 10.07.2018 04:24:54 SHO WITH STAFF MOKE PAR HAI... C/ROOM INFD".
The MPV free time is recorded as 4:23:43 AM 10.07.2018.
12. The information was received in the PS at 4.00 AM and was recorded vide DD No. 5A dated 10.07.2018 and was marked to SI Sohanveer for necessary action.
13. Another information was received in PS at 4.30 AM vide DD No. 6A through phone by SHO PS Dwarka South that when he reached the spot i.e. Sector11, Dwarka, Manish Market, he had seen three boys and one ladies misbehaving with ASI Sukhbir Singh, IC ERV23.
Sukhbir Singh Vs. State, CR No. 537/2019 9 of 20
14. The FIR No. 202/2018, U/s 186/353/332/427/34 IPC dated 10.07.2018 was registered on the written statement of ASI Sukhbir Singh, who stated that he is posted in PS Dwarka South and on 9/10.07.2018, he alongwith HC Gangadhar was on night patrolling duty from 10.00 PM to 6.00 AM on ERV vehicle DL 1CS 0509. At around 4.00 AM while he was patrolling near DTC Depot, Sector8, Dwarka, he received the information regarding firing at Manish Market, Sector11, Dwarka, on which he while passing from PS, took the IO SI Sohanveer Singh, PSI Sumit Dhankar and Ct. Manish and went to the Second Floor of Manish Market. He further stated that in the meanwhile, PCR C79 Incharge ASI Satish Kumar also reached at the spot. They found that 34 boys were having food on the second floor and one dhaba with the name Kabab Tales was found open in which food was being prepared. IO SI Sohanveer Singh asked the aforesaid boys about the firing but instead of giving proper answer, the two boys out of those, started misbehaving, who were appearing to be in inebriated condition. On enquiry, their names were found to be Kunal Aggarwal & Vipul Kambiri. Kunal Aggarwal stated himself to be the owner of the dhaba and refused to show any licence. In the meanwhile, SHO PS Dwarka South also reached at the spot to verify the call and the sister of Kunal Aggarwal started misbehaving, on which SHO PS Dwarka South ordered to Sukhbir Singh Vs. State, CR No. 537/2019 10 of 20 take both the boys to PS. On the directions, ASI Sukhbir Singh & PSI Sumit Dhankar took both the boys near the vehicle and asked them to sit but Vipul Kambiri held the collar of the uniform worn by ASI Sukhbir Singh and torn the buttons, while Kunal Aggarwal hit his right hand on the rear glass due to which the glass broke and hit Kunal, Vipul, ASI Sukhbir Singh & PSI Sumit Dhankar due to which blood started oozing from the hands of all the four persons.
15. IO SI Sohanveer Singh prepared rukka stating the facts on the same lines and got the FIR registered.
16. The accused persons i.e. respondents No. 2 & 3 were arrested and were released on bail on the same day. The Ld. Trial Court while granting bail to the accused persons observed as follows :
" As per the case stated by the IO, call from one phone number was received regarding firing of gun and therefore, police visited the shop of accused where an altercation took place. It is stated by the IO that the efforts are being made to trace out the person, who made the bogus call. It is expected that proper investigation shall be carried out regarding the call made. CCTV footage be also collected of the adjoining area."
Sukhbir Singh Vs. State, CR No. 537/2019 11 of 20
17. Perusal of the chargesheet would reveal that not even the name of the caller, who has made the alleged bogus call is mentioned. The chargesheet even does not mention the phone number from which the alleged bogus call was received. There is only one statement U/s 161 Cr.P.C. of one Ajay Kumar, S/o Rajesh Singh, R/o J5, J Block, Gali No. 37B, III Floor, West Delhi, Age 25 years, Mobile No. 8076577460 that he resides on the aforesaid address on rent and that his permanent address is Village Kharva, Tehsil Anupshehar, District Buland Shehar, UP. He works as driver in Delhi and on 10.07.2018 in the night he was going on his motorcycle from Palam Airport through Sector11, Dwarka Metro Station to his house and at around 3.35 AM, when he reached near Metro Station Sector11, he heard a sound of firing from Mini Market, Sector11, Dwarka and he made a call at 100 number and he went to his house. He stated that he had not seen any person firing the gun.
18. Except for the aforesaid statement of Ajay Kumar, there is apparently no investigation qua the caller of the bogus call. No CAF Form or CDR or location details of the mobile No. 8076577460 was obtained by the IO, despite the specific directions by the Ld. Trial Court to make proper investigation regarding the caller. Ld. Counsel for the respondents has raised allegations that the caller of the Sukhbir Singh Vs. State, CR No. 537/2019 12 of 20 bogus call was a police official and the police is trying to screen the caller of that bogus call. The apprehensions raised by the ld. Counsel for the respondents are not baseless as the PCR FormI clearly records that the caller is having a quarrel with two unknown persons and that the caller is in inebriated condition and that he was handed over to SI Sohanveer Singh at the spot and even the SHO PS Dwarka South was also present at the spot with staff. Further, the information, which was given by the SHO PS Dwarka South, which was recorded vide DD No. 6A, was also records that there were three boys and one ladies. It is clear that there was one more person at the spot apart from the accused persons, whose identity has been apparently concealed by the IO. Thus, it is quite apparent that despite specific directions and allegations, the IO has not brought the complete information regarding the caller of the bogus call on record. Further, there is no reason on record why no action was taken by the IO/SHO against the maker of bogus call.
19. The PCR FormI clearly records that the call was received at 3.50 AM and MPV CYT79 reached at the spot at 3.58 AM on 10.07.2018. The DD No.5A dated 10.07.2018, PS Dwarka South reveals that the information regarding the call received at 4.00 AM on 10.07.2018 and the statement of Sukhbir Singh Vs. State, CR No. 537/2019 13 of 20 ASI Sukhbir Singh also confirmed the fact that he received information at 4.00 AM while he was patrolling near DTC Depot, Sector8, Dwarka. Thus, the version of the prosecution that ASI Sukhbir Singh while going from PS Dwarka South while picking IO SI Sohanveer Singh, PSI Sumit Dhankar and Ct. Manish reached at the spot and thereafter, the PCR arrived, is not found to be convincing. According to the PCR FormI, the MPV had already reached at the spot at 3.58 AM and admittedly, around that time ASI Sukhbir Singh was on patrolling duty near DTC Depot, Sector8, Dwarka, thus, there is no question of PCR reaching the spot after ASI Sukhbir Singh. Hence, there is serious contradiction on the face of the prosecution story.
20. Further, it is the case of the prosecution that accused Vipul Kambiri caught hold of the collar of the uniform worn by ASI Sukhbir Singh due to which the buttons were torn. It is strange that none of the buttons have been seized neither the uniform, which was worn by ASI Sukhbir Singh, has been seized in the present case.
21. Not even a single photograph or video of the spot has been clicked or brought on record by the IO. It is also pertinent to observe that despite specific directions by the Ld. Trial Court during the bail order that the CCTV footage of the Sukhbir Singh Vs. State, CR No. 537/2019 14 of 20 adjoining area be also collected, no efforts were made to collect the CCTV footage and to brought them on record. The chargesheet is completely silent in this regard.
22. Further, it is the case of the prosecution that accused Kunal Aggarwal hit his right hand on the rear glass of the vehicle due to which the glass broke and hit Kunal, Vipul, ASI Sukhbir Singh & PSI Sumit Dhankar and blood started oozing from the hand of all the four persons. At this juncture, it is important to refer to the MLCs of the aforesaid four persons.
23. The MLC of accused Vipul Kambiri records "Mild Abrasion over Left Hand. No other external injury seen at the time of medical examination." The injury is opined to be Simple. It also records BAC to be 25 mg/100ml.
24. The MLC of accused Kunal Aggarwal records "Mild Injury (cut) over right elbow and forearm." The injury is opined to be Simple. It also records BAC to be 12 mg/100ml.
25. The MLC of ASI Sukhbir Singh records "Mild Abrasion over Right Hand". The injury is opined to be Simple and the type of weapon is opined to be Sharp.
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26. The MLC of PSI Sumit Dhankar records "No any other external injury seen at the time of medical examination". The injury is opined to be Simple and the type of weapon is opined to be Sharp.
27. None of the MLCs mentioned above, describes about the oozing of blood from their hands. None of the MLCs describes any incised wound on any of the persons except one cut injury over the right elbow and forearm of Kunal Aggarwal and even there, oozing of blood is not mentioned. It is hard to believe the version of prosecution that due to hit of broken glass, ASI Sukhbir Singh & PSI Sumit Dhankar received any cut injury or there was any bleeding from their hands. The MLC of ASI Sukhbir Singh records only mild abrasion over right hand and it is strange that the type of weapon is opined to be Sharp by the doctor. It is rightly observed by the Ld. Trial Court that it is a matter of common understanding that mild abrasion is caused by hard and blunt surface and not by a sharp edged weapon. Further, the MLC of PSI Sumit Dhankar records that there is no external injury, but surprisingly, the injury is opined to be Simple and the type of weapon is opined as Sharp by the doctor. Thus, the opinion on the MLCs infer that the MLCs are managed and are likely to have been procured. Though, Sukhbir Singh Vs. State, CR No. 537/2019 16 of 20 the MLCs of accused Vipul Kambiri and Kunal Aggarwal records BAC to be 25mg/100ml and 12mg/100ml respectively, however, no report of the machine or the lab, which has calculated such figure, has been annexed with the MLCs. This court is of the view that given the facts and circumstances of this case, not much reliance can be placed on the MLCs.
28. In the present case, no independent public witness has been joined by the IO during the investigation. It is true that merely because the informant/complainant himself conducted the investigation will not vitiate the investigation. However, it is held in Mukesh Singh case (supra) that the question of bias or prejudice would depend upon the facts and circumstances of each case and the matter has to be decided on case to case basis. In the present case, the prosecution against the accused persons is of misbehaviour and assault upon the police persons, who had come on the PCR call regarding firing. There is apparently a conflict of interest as the complainant ASI Sukhbir Singh and the other injured PSI Sumit Dhankar had accompanied the IO SI Sohanveer Singh to the spot of incident. There is likelihood of bias to have crept in and therefore, IO SI Sohanveer Singh should not have proceeded with the investigation of the present case for a fair and impartial investigation. This a Sukhbir Singh Vs. State, CR No. 537/2019 17 of 20 disturbing feature and an infirmity, which reflects upon the credibility of the prosecution case. Reliance is placed upon Bhagwan Singh Vs. State of Rajasthan, AIR 1976 SC 985 and Megha Singh Vs. State of Haryana, AIR 1995 SC 2334.
29. It is settled law that at the time of framing of charge, the court has to consider only the materials and documents of the prosecution and not of the accused. The court has to see whether there are sufficient grounds for proceeding against the accused and for that purpose the court can sift and weigh the evidence for the limited purpose of finding out whether or not a primafacie case against the accused has been made out. If the materials disclose grave suspicion against the accused, which has not been properly explained, the court will be justified in framing the charge. However, if two views are equally possible and the Judge is satisfied that evidence produced while giving rise to some suspicion but not grave suspicion against the accused, it will be within his right to discharge the accused. The Judge is not supposed to act merely as a post office or a mouth piece of a 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 in the case and so on.
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Reliance is placed upon Union of India Vs. Prafulla Kumar Samal & anr., 1979 AIR 366.
30. In the present case, considering the material and evidence brought on record by the prosecution itself, a number of discrepancies have been noted in the prosecution version. Even if the case of the prosecution is taken as it is without it being rebutted or challenged in crossexamination, it is found to be insufficient to form a strong suspicion that the accused persons could have committed the alleged offences. The Ld. Trial Court rightly came to the finding that there is no sufficient ground for proceeding with the trial and correctly discharged the respondents No. 2 & 3 and ordered appropriate action against the erring police officials.
31. No illegality, infirmity or perversity is found in the impugned order dated 20.11.2019 of the Ld. Trial Court. It is found to be detailed, well reasoned and legally sound decision.
32. The revision petition is hereby dismissed and the impugned order dated 20.11.2019 of the Ld. Trial Court is upheld.
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33. A copy of this order be made available to both the parties and be also sent to the ld. Trial Court alongwith the TCR.
34. Revision file be consigned to Record Room.
Pronounced in open Court SUSHIL
Digitally signed by
SUSHIL ANUJ TYAGI
on this 02nd day of February, 2022
ANUJ TYAGI Date: 2022.02.02
16:15:00 +05'30'
(SUSHIL ANUJ TYAGI)
Additional Sessions Judge,
Fast Track Special Court (RC)
South West District:
Dwarka Courts: New Delhi.
Sukhbir Singh Vs. State,
CR No. 537/2019 20 of 20