Delhi District Court
Rakesh Sehgal vs State on 11 July, 2017
IN THE COURT OF MS. VRINDA KUMARI:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03 (PC ACT) SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
Criminal Revision no.34/16 (8375/2016)
CNR No. DLST010044562016
Rakesh Sehgal
S/o Late Sh. Kundan Lal Sehgal
R/o A1/107, Safdarjung Enclave
New Delhi110029
.........Revisionist
Vs.
1. State
Through Public Prosecutor
Saket Court Complex.
2. Sh. Rohit Sehgal
S/o Sh. Ravinder Kumar Sehgal
R/o A1/107, Safdarjung Enclave
New Delhi 110029
3. Sh. Ravinder Kumar Sehgal
S/o Late Sh. Kundan Sehgal
R/o A1/107, Safdarjung Enclave
New Delhi 110029
4. Sh. Rakesh Sharma
S/o Late Sh. B.N. Sharma
C4/121, S.D. A, New Delhi
....... Respondents
CR No. 34/16 (8375/2016) 11.07.2017 Page no. 1/11
Date of filing of revision : 16.09.2016
Date of allocation : 17.09.2016
Arguments concluded on : 04.07.2017
Date of order : 11.07.2017
Revision petition under section 397 Cr.PC against the order
dated 28.06.2016 passed by Ld. MM04, South, New Delhi in case
bearing CC no.57/1 titled as 'Rakesh Sehgal Vs. Rohit Sehgal &
Ors.' vide which respondent no.2 to 4 were discharged.
ORDER
1. The present revision petition is directed against the impugned order dated 28.06.2016 passed by Ld. MM04, South, New Delhi in case bearing CC no.57/1 titled as 'Rakesh Sehgal Vs. Rohit Sehgal & Ors.' vide which Ld. Trial Court discharged respondents no.2 to 4.
2. Revisionistcomplainant Rakesh Sehgal is the younger brother of the respondent no.3Ravinder Kumar Sehgal. The dispute pertains to a Will dated 19.10.2004 of their mother Smt. Krishna Kumari Sehgal which is alleged to be a forged one. The case of the revisionistcomplainant is that his signature as well as those of their mother were taken on a blank paper by the accused for the purpose of getting the property mutated in the name of their mother. This blank paper was misused and converted into a forged Will. Further, the photograph of the CR No. 34/16 (8375/2016) 11.07.2017 Page no. 2/11 witnesses on the said Will was also manipulated. It is alleged that the purported thumb impression of the revisionist complainant on the said Will is, in fact, the thumb impression of the witness Rakesh Sharma (respondent no. 4). The revisionistcomplainant has claimed that Dr. S.R. Singh, Director, Truth Lab had analysed the thumb impression.
3. Presummoning evidence was led after which ld. Trial Court directed investigation U/Sec. 202 Cr.P.C.
4. After considering the presummoning evidence as well as the result of investigation U/Sec. 202 Cr.P.C., ld. Trial Court summoned all the accused persons for the offences U/Sec. 420/468/471/34 IPC vide its order dated 04.07.2014. The said order was challenged before ld. Sessions Court. Vide order dated 30.05.2015, it was observed by ld. Revisional Court that the stand taken by the complainant/respondent to the effect that his thumb impression was used by the revisionist for the purposes of creation of Will, stands to logic and reasoning and has to be tested on the anvil of evidence produced on behalf of prosecution. The revision was dismissed as not maintainable.
5. The complaint case was then listed for precharge evidence.
The order dated 23.08.2014 would show that the complainant adopted his presummoning evidence as precharge evidence and the accused persons were directed to crossexamine the complainant. While the case was at this stage, ld. Trial Court CR No. 34/16 (8375/2016) 11.07.2017 Page no. 3/11 observed vide order dated 06.02.2016 that there was no evidence of any witnesses regarding inducement by the accused persons and subsequent delivery of any property. Regarding the offence punishable U/Sec. 471 IPC, it was observed by ld. Trial Court that it was necessary for the complainant to prove that the Will was a forged document. Reliance was also placed on Mohd Ibrahim v. State of Bihar, (2009) 8 SCC 751. Observations were also made regarding applicability of Section 245(2) Cr.P.C, that is, discharge of accused without recording any presummoning evidence.
6. Thereafter, the complaint case was listed on several dates for arguments on applicability of Section 245(2) Cr.P.C. Vide the detailed impugned order dated 28.06.2016, ld. Trial Court discharged all the accused persons U/Sec. 245(2) Cr.P.C.
7. The impugned order has been challenged on various grounds. It is submitted that the impugned order, in fact, amounts to reviewing of the summoning order dated 04.07.2015 which is not permissible. It is further submitted that the said order also tantamounts to reversing the judgment dated 30.05.2015 of ld. Addl. Sessions Judge. Once the recording of presummoning evidence had commenced, powers U/Sec. 245(2) Cr.P.C could not have been exercised. On these grounds, the revisionist complainant has prayed for setting aside the impugned order.
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8. The respondents no. 2 to 4 have vehemently opposed the revision petition.
9. I have heard the rival contentions and have perused the record carefully including the trial court record.
10. The contention of the revisionist is that by pronouncing the impugned order, not only has ld. Trial Court reviewed its own summoning order but has also disregarded the observations of the Ld. Revisional Court recorded in the order dated 30.05.2015 while disposing of the revision petition bearing CR No. 63/2014 against the summoning order. It is further contended that the complaint case was already at the stage of precharge evidence and, therefore, section 245(2) Cr.P.C could not have been invoked. It is further submitted by the revisionistcomplainant that at the time of precharge evidence, the complainant had adopted only his evidence recorded at the time of presummoning evidence and no opportunity was afforded to him for leading further evidence in his favour which would have shown that there were sufficient grounds to frame charge against the accused persons.
11. On the other hand, the contention of the respondentaccused persons is that the discharge U/Sec. 245(2) Cr.P.C has the effect of acquittal and, therefore, only appeal could have been filed before Hon'ble High Court of Delhi U/Sec. 378(4) Cr.P.C.
CR No. 34/16 (8375/2016) 11.07.2017 Page no. 5/11 It is further submitted that the ingredients of Section 420/468/471 IPC for which the respondentaccused persons had been summoned were not made out.
12. First, I will consider the issue of maintainability of the instant revision petition in view of Section 378(4) Cr.P.C which provides as follows:
"378. Appeal in case of acquittal (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
13. The provision related to 'Trial of Warrant Cases by Magistrates' has been provided in Chapter XIX (Section 238 to
250). Part 'C' (Conclusion of Trial) of this Chapter deals with Acquittal or conviction. Section 248(1) Cr.P.C provides as follows:
"248. Acquittal or conviction (1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal."
14. Section 245 Cr.P.C in part 'B' of Chapter XIX talks of discharge of accused. It reads as follows:
CR No. 34/16 (8375/2016) 11.07.2017 Page no. 6/11 "245. When accused shall be discharged (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
15. Chapter XX 'Trial of Summonscases by Magistrates' (Section 251 to 259) provides in Section 256 Cr.P.C that on account of nonappearance or death of complainant after the issuance of summons to the accused, the accused shall be acquitted. In Section 258 Cr.P.C, it has been provided that where the proceedings in a summons case instituted otherwise than upon complaint are stopped by the Judicial Magistrate, the Judicial Magistrate shall pronounce a judgment of acquittal where evidence of the principal witnesses has already been recorded and in any other case the accused shall be released and such release shall have the effect of discharge.
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16. The scheme of the above said sections in both summons trial and warrant trial cases makes it clear that 'discharge' and 'acquittal' of the accused are not interchangeable terms. Thus the term 'acquittal' used in Section 378(4) Cr.P.C cannot be interpreted to include "discharge". The present revision petition against the order of discharge U/Sec. 245(2) Cr.P.C is, therefore, maintainable.
17. The next issue is whether or not power U/Sec. 245(2) Cr.P.C can be invoked by the Judicial Magistrate when the case is already listed for leading precharge evidence and where there are certain observations of the Revisional Court in respect of the summoning order of the Court.
18. Section 245(1) Cr.P.C contemplates discharge of accused after recording of the entire precharge evidence. Section 245(2) Cr.P.C empowers the Magistrate to discharge at any 'previous stage of the case', if he considers the charge to be groundless. The plain reading of Section 245 Cr.P.C would leave no doubt in mind that even though the case was listed for recording of precharge evidence, the Magistrate had the option to invoke Section 245(2) Cr.P.C.
19. The Court does not agree with the argument that an order U/Sec. 245(2) Cr.P.C in the instant case tantamounts to review of the summoning order or disregard of the observation of ld. Revisional Court in revision petition against the summoning CR No. 34/16 (8375/2016) 11.07.2017 Page no. 8/11 order. Sections 202 and 203 Cr.P.C in Chapter XV 'Complaints to Magistrates' (Section 200 to 203) make it amply clear that at the presummoning stage, the Court is required to weigh whether or not there was any sufficient ground for proceeding. At the stage of framing of charge, however, the evidence and material on record is to be weighed differently. At that stage, the material on record must be scrutinized to see if any case was made out against the accused that, if unrebutted, would warrant his conviction.
20. Now, I shall consider the material on record in the instant case and see whether discharging the accused persons without affording an opportunity to complainant to lead precharge evidence was proper in the light of the facts of the case.
21. In the impugned order, ld. Trial Court has referred to the report dated 12.08.2013 of the Finger Print Bureau, Delhi Police, Delhi countersigned by the Director of Finger Print Bureau in which it has been opined that the questioned thumb impression on the disputed Will had been found to be that of complainant himself. I have perused the report dated 12.08.2013. In this report, the result of the examination has been mentioned. However, there is no explanation as to on what basis and in what manner the Finger Print Analyst/expert has reached this conclusion. It is noteworthy that in the presummoning evidence as well as in the complaint, the complainant has CR No. 34/16 (8375/2016) 11.07.2017 Page no. 9/11 mentioned that the thumb impression of Rakesh Sharma (Accused no. 3) were used as the thumb impression of the revisionistcomplainant and that the thumb impression was analyzed by Dr. S.R. Singh, Director, Truth Lab, CR. Even though the Analysis Report of the Truth Lab was not placed on record by the revisionistcomplainant, ld. Counsel for the revisionistcomplainant has submitted during the course of arguments in the instant appeal that he wants to summon the record related to it and witnesses in this respect at the time of leading precharge evidence.
22. On the basis of the report dated 12.08.2013 of Finger Print Bureau, Delhi Police, Delhi countersigned by the Director, Finger Print Bureau, ld. Trial Court reached the conclusion that the complainant's contention of the Will being forged stood negated and it was also concluded on the basis of this report that allegations U/Sec. 468 and 471 IPC appeared to be baseless. As has been observed above, the said report dated 12.08.2013 is not supported by any explanation, reasons and manner of analysis. Further the complainant intends to rely upon the Analysis Report of Truth Lab in support of his case. In such circumstances, the Court is convinced that by not affording an opportunity to the complainant to explain and establish his case for purpose of framing charge, a grave prejudice has been caused to him. The impugned order dated CR No. 34/16 (8375/2016) 11.07.2017 Page no. 10/11 28.06.2016 is, therefore, set aside and the case is remanded back. Ld. Trial Court is directed to grant an opportunity to the complainant to lead precharge evidence after conclusion of which ld. Trial Court shall decide the issue of framing of charge or discharge, as the case may be, afresh.
23. The revision petition is disposed of accordingly.
24. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 11 th DAY OF JULY, 2017.
(Vrinda Kumari) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court New Delhi CR No. 34/16 (8375/2016) 11.07.2017 Page no. 11/11