Delhi District Court
Avtar Singh Bhadana vs The State Of Nct Of Delhi on 30 September, 2010
Page No.1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 03.07.2010
Date of judgment reserved on : 17.09.2010
Date of decision : 30.09.2010
Criminal Revision No.17/10
IN THE MATTER OF :
Avtar Singh Bhadana
S/o Late Sh. Nahar Singh
R/o 16, Janpath, New Delhi. ..... Revisionist
Versus
The State of NCT of Delhi. ..... Respondent
ORDER
Question raised before court in the present revision is whether summoning of the petitioner Sh.Avtar Singh Bhadana a member of parliament for offences U/s 186/353/332/342/506/34 IPC was legally permissible or justified either by invoking powers in jurisdiction U/s 319 Cr P.C or by exercise of jurisdiction U/s 190 Cr P.C with an analogy that cognizance taken by Magistrate was of the offence and not the offenders when charge sheet was filed in this case? In support of arguments that summoning of petitioner as accused was illegal, ld. counsel Mr.Tanveer Ahmed Mir relied upon our Delhi High Court by Justice Badar Durrez Criminal revision No.17/10 Page No.1 of 8 Page No.2 Ahmed in a case Anirudh Sen Vs State 2006 (9) AD 62. Ld APP did not dispute the legal proposition referred to by ld counsel in the said judgment and to my view the legal proposition squarely applies in the present case in favour of the petitioner revisionist.
A criminal case FIR No.6 dated 21/1/2008 was registered at police station Tuglak Road on the basis of a written complaint given by Inspector Delhi Police Mr. Vimal Kumar, then posted with President Cell Security, New Delhi. Present petitioner revisionist Sh. Avtar Singh Bhadana the then M.P was named as an accused in that FIR and the FIR allegations were that the petitioner accused posing himself as VVIP started abusing and manhandling the complainant informant and he was further alleged to be under the influence of liquor escorted by his armed security guards and they as a team forcibly tried to drag complainant informant inside their vehicle car DL8CV1 (SUV) and with the intervention of other Delhi Police security officials that informant complainant could save himself. According to FIR the complainant informant was on a duty at hotel Taj Man Singh in connection with the visit and stay of Prime Minister of U.K to India and informant was to look after and facilitate the alighting of VVIP's at the main porch of the hotel. The vehicle car belonging to accused was alleged to be a hindrance in the porch when a VVIP was expected to reach and when asked to remove that vehicle from the porch that this incident occurred.
After the investigation of this case charge sheet with six Criminal revision No.17/10 Page No.2 of 8 Page No.3 accused persons kept in column No.4 with present petitioner accused kept in column No.2 was filed for the offences U/s 186/353/332/342/506/34 IPC. Petitioner revisionist was kept in column No.2 with the observations that he was not being sent up for trial and charge sheet mentioned that there was no sufficient evidence against the petitioner for his arrest or for his prosecution for the said offences.
Trial court record reveals that on charge sheet being presented before Ld Magistrate, cognizance of offence was taken on 25/3/2009. Six accused persons mentioned in column No.4 in the charge sheet appeared before the ld Magistrate and then matter remained adjourned on several dates till it was heard on the point of charge against those six accused persons on 21/4/2010 and order was passed on the point of charge against those six accused persons on 24/4/2010 wherein five of those six accused persons were discharged in view of absence of sanction for the prosecution in terms of Section 197 Cr P.C against them. Charge for offences U/s 186/353/332/342/506/34 IPC was directed to be framed against accused Vijay Pal. On that stage Ld Magistrate found that there was sufficient material to proceed against Sh.Avtar Singh Bhadana who had been kept in column No.2 in the charge sheet to summon him for the said offences. Ld Magistrate observed in the impugned order that a CD of video recording of the incident had been produced by the prosecution and after watching that CD Ld Magistrate found that petitioner Sh.Avtar Singh Bhadana was seen in the video CD giving slap to the complainant besides Criminal revision No.17/10 Page No.3 of 8 Page No.4 manhandling him. This summoning of petitioner as an accused has been challenged in this revision as the order suffering from illegality. Ld counsel Sh. Tanveer Ahmed Mir argued that where a stage of hearing and consideration on the point of charge against charge sheeted accused had reached then a stage of trial commenced in the case and at that stage any person to be summoned as an additional accused could have been by exercise of power U/s 319 Cr P.C and that means evidence brought before the court during trial. Ld counsel argued that summoning of petitioner as an accused on the basis of material which was there available before the court when other accused persons were summoned was not justified at that stage of the trial of the case. Ld counsel submitted relying upon the above referred judgment that when the case reached the stage of hearing on the point of charge, a stage of Section 207 Cr P.C already crossed over, the case would be treated and taken to have commenced the stage of the trial.
Ld APP could not dispute this proposition of law argued by ld counsel Mr.Mir and admitted that proposition of law laid down by the Supreme Court in a case SWIL India Ltd Vs State of Delhi & Anr 2001 (6) SCC 670 is distinguishable on the facts of the present case as in the case of SWIL India Ltd . Ld Magistrate had taken cognizance against accused kept in column No.2 only at the stage of inquiry in the case and Section 319 Cr P.C stage was found not attracted and summoning order was found perfectly legal and justified. Summoning order against additional accused Criminal revision No.17/10 Page No.4 of 8 Page No.5 was passed only on the very next date of the order of taking cognizance of offence and summoning the charge sheeted accused persons.
The facts in the present case are covered by the proposition of law laid down in Anirudh Sen case squarely. In the reported judgment petitioner summoned as an additional accused had been kept in column No.2. The case before ld Magistrate had reached a stage for consideration of charge against accused persons and thus the stage of Section 207 Cr P.C had crossed. It was held that at that stage Section 319 Cr P.C could not be pressed and summoning of petitioner without any new material or evidence collected in the course of trial was bad in law. It has been held, ''An examination of the aforesaid decisions of the Supreme Court makes it clear that at the stage of Section 209 Cr.P.C, in the case of a sessions trial, no person can be summoned. Such a person can only be summoned once the trial commences and some evidence comes before the court in the course of the trial. It is also clear that although in the earlier decision in Lakshm8i Brahman (supra), the Section 207/209 proceedings were regarded as an ''inquiry'', the later decision in Raj Kishore Prasad (supra) has categorically held that it would not fall within the meaning of ''inquiry'' as defined in Section 2 (g) of the Code. Therefore, at the stage, at which the proceedings under Section 207 and 209 of the Code take place, there is no question of invoking the powers under Section 319 of the Code. However, at the same time, the point of taking cognizance and of summoning the accused has also gone by. In the present case the facts disclose that the case had proceeded beyond the stage of Section 207inasmuch as the documents had already been supplied. Since this was a case of a trial by a magistrate, the next stage would be that prescribed under Chaper XIX, i.e., trial of warrant cases by Magistrate. The first section that Criminal revision No.17/10 Page No.5 of 8 Page No.6 appears in the Chapter is Section 238 which requires that when any warrant case instituted on a police report, when the accused appears or is brought before a Magistrate at the commencement of the Trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. In other words, the commencement of the trial is signalled by the production of the accused before a Magistrate after the stage of Section 207 of the Code has gone by. It is, at this stage, that the Magistrate will satisfy himself as to whether the provisions of Section 207 have been complied with or not. After satisfying himself that the provisions of Section 207 have been complied with, the Magistrate will then consider the questions which arise for consideration under Section 239 of the code, which require him to consider the police report and the documents sent with it under Section 173 and to make such examination of the accused, if any, as the Magistrate thinks necessary. After giving the prosecution and the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for doing so. On the other hand, in view of the provisions of Section 240 of the Code, if upon such examination, if any, and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame, in writing, a charge against the accused. If, at this stage, the accused pleads guilty, in view of the provisions of Section 241 of the Code, the Magistrate is required to record the plea and may, in his discretion, convict him thereon. If such a step is undertaken then the trial ends there. However, if a plea of not guilty is taken then the further proceedings under Section 242 (evidence for prosecution) and Section 243 (evidence for defence) etc. shall ensue till the conclusion of the trial. A resume of these provisions clearly indicates that the trial of warrant cases by Magistrates commences the moment the accused appears or is brought before the Magistrate, after the conclusion of Criminal revision No.17/10 Page No.6 of 8 Page No.7 proceedings under Section 207. Therefore, even at the stage where the question of discharge and framing of charge is being considered, it is a stage where trial has commenced.
In these circumstances, examining the factual position of the present case, I find that the impugned order directing the summoning of the present petitioner was passed at the stage where the question of discharge/charge of accused Bhupinder Singh was under consideration, after the stage of Section 207 of the Code had been crossed. Clearly the trial had commenced. Once it is held that the trial has commenced, the summoning of a person not shown as an accused could only be done under Section 319 of the Code and that also only upon evidence collected in the course of the trial. Admittedly, no new material/evidence had been collected in the course of the trial and, therefore, Section 319 could not be pressed in to service. And as regards Section 190 of the Code, the stage had already been crossed the moment the trial commenced. Therefore, the Magistrate did not have power under Section 190 either, to have summoned the present petitioner.'' In view of the law as held int his case that trial of a warrant case by the Magistrate commences the moment accused appears or is brought before the Magistrate after the conclusion of proceedings U/s 207 Cr P.C even if at that stage the question of discharge or framing of the charge is being considered, it is a stage where trial has commenced. In such situation summoning of a person not shown as an accused could only be done U/s 319 Cr P.C and that could be only upon the evidence collected in the course of the trial.
In the present case though petitioner had been named in FIR with specific role of assault of manhandling attributed but then conclusion of the investigating officer was at there was no sufficient evidence or material against petitioner to get him prosecuted and thereby he was kept in column No.2. When cognizance of offence was taken by Ld Magistrate, Criminal revision No.17/10 Page No.7 of 8 Page No.8 there could not have been a prohibition for ld Magistrate to summon the petitioner if prima facie evidence on material suggested involvement of the petitioner in this offence. If that stage crossed and with further stage of Section 207 Cr P.C was also over then summoning of petitioner could have been justified only where some evidence appeared/examined before court during trial justifying the summoning of petitioner as additional accused. The summoning of petitioner when Ld Magistrate considered the existence of case for a charge or discharge against charge sheeted accused was unwarranted and cannot be sustained. Impugned order dated 24/4/2010 to the extent of summoning petitioner as an accused in this case is liable to be set aside and is set aside. It is made clear that invocation of jurisdiction U/s 319 Cr P.C will not be affected in any manner by any observation in this order in 99any later stage of the case.
Petition is allowed. Revision file be consigned to record room.
Announced in the Open (J. R. ARYAN)
court on 30/09/2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Criminal revision No.17/10 Page No.8 of 8
Page No.9
Criminal Appeal No.17/10
Avtar Singh Bhadana etc Vs State
30/09/2010
Present: Counsel for the petitioner
Addl. PP for State.
Vide separate order revision petition is allowed. Trial court
record with the copy of the order be sent back to the trial court and revision file be consigned to record room.
(J. R. ARYAN) ADDITIONAL SESSIONS JUDGE NEW DELHI.
30/09/2010.
Criminal revision No.17/10 Page No.9 of 8