Delhi District Court
State vs . Surender Kumar Bansal on 8 December, 2011
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS,
DELHI.
FIR No. : 126/04
PS : Preet Vihar
Offence complained of : 342/323/34 IPC
Date of commission of offence : 13.03.2004
Unique Case ID No. : 02402R0305702004
STATE Vs. Surender Kumar Bansal
S/o Sh. Ram Singh Bansal
R/o H. No. 80 A, Shiv Puri, PS Preet Vihar, Delhi.
.................. Accused
Sh. Sanjay Sharma S/o Sh. Diwakar Prasad
R/o H. No. 15 Taimoor Nagar, New Friends Colony, Delhi.
................ Complainant
Date of Institution : 03.09.2004
Plea of accused person : Pleaded not guilty
Date of reserving judgment/ order : 08.12.2011
Date of pronouncement : 08.12.2011
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 13.03.2004 at about 11:00 AM
at H. No. 80A, Ground Floor, Shiv Puri, Delhi falling within the jurisdiction of PS
Preet Vihar, accused Surender Kumar Bansal along with his other associates (not
arrested) voluntarily confined complainant Sanjay Sharma in a room of the above
FIR No. 126/04 Page No. 1 / 9
said house and also caused simple injury to complainant Sanjay Sharma in
furtherance of their common intention. Thus, accused Surender Kumar Bansal is
alleged to have committed offences u/s 342/323/34 IPC.
FIR
On the basis of the said facts and on the complaint of the complainant
Sh. Sanjay Sharma, an FIR bearing number 126/04 was lodged at Police Station
Preet Vihar on 13.03.2004.
CHARGE
After investigation, chargesheet under section 173 Cr.P.C was filed
on 03.09.2004.
The accused was summoned to face trial and he was supplied the
copy of charge sheet as per section 207 Cr.P.C.
On the basis of the chargesheet, a Charge for the offences
punishable under section 342/323/34 IPC was framed against accused Surender
Kumar Bansal and read out to the said accused, to which the accused pleaded not
guilty and claimed trial on 04.07.2006.
JUDICIAL RESOLUTION
The accused Surender Kumar Bansal is alleged to have committed
offences punishable u/s 342/323/34 IPC.
The ingredients to prove the offence punishable under section 342/34
IPC are as follows :
(1)Wrongful restraint of a person.
(2)Such restraint must prevent that person from proceeding beyond
certain circumscribing limits.
(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 323/34
FIR No. 126/04 Page No. 2 / 9
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.
In order to prove the above said allegations, the prosecution has cited
6 witnesses, of which the complainant/ victim namely Sanjay Sharma has been
cited as PW1 in the list of witnesses and material witness namely Nabir Hazarika
has been cited as PW 2 in the list of witnesses. All the remaining witnesses are all
formal witnesses and none of them is a witness to the incident.
Except complainant Sanjay Sharma and material witness Nabir
Hazarika, all the remaining 4 witnesses cited by prosecution are formal witnesses
and sufficient only to prove that a complaint was made by complainant Sanjay
Sharma alleging that he was confined by accused on the basis of which the
present FIR was lodged at PS Preet Vihar vide FIR bearing No. 126/04.
The main witnesses in the present case are Sanjay Sharma and
Nabir Hazarika and they were summoned on the several occasions since framing
of charge but they were not traceable. Summons were issued to the said
witnesses through IO/ ASI Lal Ji Tiwari as well as through DCP concerned but the
said witnesses could not be traced. IO submitted in his report Ex. PW2/A that the
witness Sanjay Sharma sold his property and his present whereabouts were not
known to any person in the village and also submitted in his report Ex. PW2/C that
witness Nabir Hazarika was living as tenant at the given address and he has left
the given address and his present whereabouts were also not known to any person
in the locality. In support of his report, IO recorded the statement of local police of
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said village and two persons from the village which is Ex. PW2/B. Thus, in view of
the report of IO/ ASI Lal Ji Tiwari Ex. PW2/A and Ex. PW2/C, statement of local
police and two persons from the village Ex. PW2/B and also in view of the
statement of IO/ ASI Lal Ji Tiwari recorded on 21.07.2007 as well as on the report
on summons through DCP, the court came to the conclusion that the said
witnesses are not traceable and ordered vide order dated 08.12.2011 that the said
witnesses be not summoned again and therefore dropped them from the list of
witnesses.
In the absence of the testimony of complainant Sanjay Sharma and
witness Nabir Hazarika, the prosecution can never prove that accused Surender
Kumar Bansal was confined in a room by the accused and that he also caused
injuries to complainant Sanjay Sharma.
Besides these, two other witnesses have been examined by
prosecution i.e., PW1 DO/ HC Mahesh Chand and PW 3 Ct. Raj Kumar.
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
of the accused in the absence of the testimony of complainant/ victim Sanjay
Sharma and witness Nabir Hazarika.
The case is at the stage of PE, however, in the absence of the
testimony of complainant Sanjay Sharma and other witness Nabir Hazarika, there is
nothing incriminating against the accused 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
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proceedings qua offences u/s 342/323/34 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. Explanation2
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
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
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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
accused. In conclusion we hold:
(1) The dictum in A.R. Antulay's case is correct and still holds
FIR No. 126/04 Page No. 6 / 9
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 reaffirm 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 straitjacket
formula. Their applicability would depend on the factsituation 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 timelimits 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 timelimits 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
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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
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 timelimits 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 sevenJudge 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 straitjacket 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
FIR No. 126/04 Page No. 8 / 9
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
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 342/323/34 IPC to make the ends of justice meet.
Final Order
In the opinion of the court, in absence of the testimony of complainant
Sanjay Sharma and material witness Nabir Hazarika and in the light of the aforesaid
discussion and cited judgments, the court while protecting the right of the accused
to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to
stop the proceedings against accused Surender Kumar Bansal qua offences u/s
342/323/34IPC in the present summons police case and hereby releases accused Surender Kumar Bansal which shall have the effect of acquittal.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 08.12.2011.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 08.12.2011 Certified that this judgment contains 9 pages and each page bears my signature.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 08.12.2011 FIR No. 126/04 Page No. 9 / 9