Delhi District Court
Shyam Lal vs Government Of Nct Of Delhi on 21 March, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Revision No. 165/13
Unique case ID No. 02404R0343892013
Shyam Lal, ASI (Exec.) No. 2292D
(Now SI no. D4049, PIS No. 28770596)
S/o Sh. Nanji,
R/o B5/71, Sector11,
Rohini, Delhi.
......................Revisionist
Versus
1. Government of NCT of Delhi.
2. Kamruddin
S/o Sh. Imamudin,
R/o H.No. 636, Sant Nagar,
Burari, New Delhi.
3 Sidharth Jain
S/o Sh. S.C. Jain
R/o D12/121, Sector8,
Rohini, Delhi.
..................Respondents
Date of institution of the case: 29/11/2013
Arguments heard on: 14/03/2014
Date of reservation of order: 14/03/2014
Date of Decision: 21/03/2014
ORDER
This is a criminal revision filed u/s. 397/399 of Cr.P.C. against impugned order dated 03/05/2012, 19/05/2012 and 11/07/2012 passed by the learned Trial Court in case FIR No. 707/98, PS Rohini, title as State Vs. Kamruddin. Vide impugned order dated 03/05/2012, the learned Trial Court observed that respondent no. 2 Kamruddin was falsely implicated in the case and the present CR No. 165/13 1/12 revisionist had let off the main culprit i.e. respondent no. 3 Sidharth Jain. Accordingly, the learned Trial Court summoned Sidharth Jain as an accused for 19/05/2012 and ordered for issuing notice to present revisionist ASI Shyam Lal through Commissioner of Police.
Vide impugned order dated 19/05/2012, the learned Trial Court directed the present revisionist to pay a compensation of Rs. 20,000/ to respondent no. 2 Kamruddin for his false implication in the case from his own pocket.
Vide impugned order dated 11/07/2012, the learned Trial Court discharged the present revisionist after he paid the compensation of Rs. 20,000 to respondent no. 2 Kamruddin and pleaded that due to inadvertence, the aforesaid mistake was committed by him.
The impugned orders have been challenged on various grounds. It is contended that neither Section 250 of Cr.P.C. nor Section 358 of Cr.P.C. empowers the Court of MM to impose compensation of Rs. 20,000/ in any circumstance. Hence, ordering payment of compensation of Rs. 20,000/ to accused Kamruddin by the present revisionist was in gross violation of the provisions of these Sections. It is further contended that learned Trial Court has failed to consider the fact that accused Kamruddin during the period of trial of more than 12 years never disclosed even once that he was not driving the scooter, which caused the accident and his silence shows that his conduct was not bonafide throughout. It is further contended that learned Trial Court did not give any opportunity to the present revisionist to defend himself, which action was in gross violation and breach of the principles of natural justice. It is further contended that court of MM has no inherent powers and has to act as per the provisions of the Cr.P.C and cannot devise a procedure not provided under the Code. It is further contended that learned Trial Court has failed to appreciate the fact that the present revisionist on his own could not file the chargesheet in the court unless it has been approved by his senior officers but only CR No. 165/13 2/12 he has been discriminated. It is further contended that impugned orders be set aside.
I have heard learned Counsel for the revisionist, learned APP/counsel for respondent no.2 and have also gone through the TCR.
According to the TCR, case was registered u/s. 279/338 of IPC. As the accused could not be apprehended at the spot, so, on the basis of number of the offending vehicle i.e . two wheeler scooter, it came to the knowledge of the IO in reply to notice u/s. 133 of M.V. Act that at the time of incident, one Kamruddin was driving the scooter. Consequently, Kamruddin was apprehended and arrested in this case. However, TIP could not be got conducted and chargesheet was filed on the basis of the reply given by owner of the two wheeler scooter of notice u/s. 133 of M.V. Act.
Charge was framed against accused Kamruddin on 12/08/99 u/s. 279/338 of IPC to which he pleaded not guilty and claimed trial. Neither at the time of arrest nor at the time of framing charge, accused Kamruddin raised any plea that he was not driving the two wheeler scooter at the time of incident. Even no such plea has been raised to the extent that he was not known to Sidharth Jain, owner of the scooter, in any manner.
In the year 2001, an application was filed u/s. 319 Cr.P.C., wherein it was disclosed that at the time of incident, Sidharth Jain was driving the two wheeler scooter, so, he be summoned, but the said application was dismissed vide order dated 29/10/2001 as trial had not started till that time.
Thereafter, PW1 complainant/injured Ashok Bhola appeared before the Court and he deposed that accused Kamruddin was sitting as pillion rider on the offending scooter and Sidharth Jain was driving the scooter. They had chased them and reached at the house of Sidharth Jain. Police came in the hospital and his statement was recorded. The incident had taken place due to the negligence and fault of accused Sidharth Jain.
CR No. 165/13 3/12
The statement of complainant/injured Ashok Bhola was recorded on 01/10/98, wherein he had told to the IO that he could identify the scooter driver, if shown to him. Accident had taken place at about 8.15 p.m. The complainant/injured was removed to hospital on 01/10/98 at about 10 p.m. with the alleged history of RTA. His statement was recorded by the IO in the hospital. According to the chargesheet, on receipt of DD No. 43B, the revisionist/IO reached at the spot, but he could not found the scooter and injured at the spot. None was present there. So, he made inquiries from the various hospitals. In the meantime, he also received DD No. 2B through Constable Ram Bahadur, so, he along with Constable Ram Bahadur reached at Saroj hospital, where he found the injured admitted there and he recorded his statement.
According to the deposition of PW1 Ashok Bhola before the Court, he has stated that his son Nitin Bhola was with them and chased Sidharth Jain and reached at the house of Sidharth Jain. On the very next day, his wife and his son reached at the house of Sidharth Jain. According to his statement given to the IO pm 01/10/98 Ex. PW1/A, the injured/complainant was going back to his house with his wife after performing Pooja, then accident had taken place. Complainant did not disclose to the IO at that time that his son Nitin Bhola was also with them. It is also not known how the injured/complainant reached at Saroj Hospital as nothing is mentioned in the MLC as to by whom, he was removed in the hospital.
Complainant/injured Ashok Bhola never informed the IO about the fact that Sidharth Jain was driving the two wheeler scooter. An application was also filed on 26/09/2001 for further investigation. It is also not explained by the injured/complainant as to in what manner, Nitin Bhola had chased the two wheeler scooter with which incident had taken place.
An application for further investigation dated 26/09/2001 along with photocopy of handwritten note was also filed before the Court, according to which, CR No. 165/13 4/12 Sidharth Jain was driving the scooter, but this writing was never produced before the IO at any time, so, the same could not be verified in any manner.
The complainant/injured also filed his claim before the MACT, copy of which has been placed on record, is dated 25/09/2001, according to which, beside Sidharth Jain, this complainant/injured also made accused Kamruddin as party and it is mentioned that Sidharth Jain was driving the scooter. So, if Kamruddin was not driving the scooter at the time of incident nor it is alleged that he was sitting as pillion rider in the statement given to the IO, then why he has been made party, is not disclosed by the complainant/injured to the court.
According to the statement of complainant/injured given to the IO, one scooter chalak (driver) came from the wrong side and hit him. His wife got him admitted in Saroj hospital and he could identify the driver, if shown to him. So, in view of the above facts, the complainant has not been able to disclose before the Court as to how he came to know that Sidharth Jain was driving the two wheeler scooter at the time of accident. He had also not disclosed that one person was sitting as pillion rider, whereas before the Court, while deposing as PW1, he has stated that Sidharth Jain was driving the scooter and Kamruddin was sitting as pillion rider. The complainant/injured has also not been able to explain as to how Nitin Bhola came there and chased Sidharth Jain and on the next day, they reached at the house of Sidharth Jain. These facts were never disclosed to the IO at any time and only for the first time, when complainant/injured was summoned as a witness, then he disclosed these facts by moving application for further investigation.
There is nothing on record to show that accused Kamruddin was having any licence, which was seized in this case. So, it seems that while filing claim petition before MACT, complainant/injured might have come to know that accused Kamruddin was not having any driving licence, so, his claim could not be awarded and to obtain the claim, he might have changed the story of driving of the two CR No. 165/13 5/12 wheeler scooter by Sidharth Jain and not by Kamruddin. When PW1 Ashok Bhola was cross examined by ld. APP as he did not support the case of the prosecution, he was not cross examined by learned counsel for the accused Kamruddin about presence of accused Kamruddin as pillion rider on two wheeler scooter because according to the witness, Sidharth Jain had caused accident. So, the witness could not be cross examined as to how, he came to know about the involvement of Sidharth Jain as an accused.
Again, an application was filed u/s. 319 of Cr.P.C. on 25/03/2006 by the State, wherein it was alleged that from the deposition of PW1 Ashok Bhola, it was revealed that main accused was Sidharth Jain. It is further alleged that selfwritten statement immediately after the accident was given by Sidharth Jain to the complainant, copy of which has already been filed on the court record, so, he be summoned as an accused in this case. It is not explained by the State as to why application u/s. 319 of Cr.P.C. was moved in the year 2006, whereas PW1 Ashok Bhola was already examined in the year 2001. Secondly, the said writing was also produced by the complainant/injured before the Court in the year 2001 itself and on this application of the State, impugned order dated 03/05/2012 has been passed.
At the first outset, learned counsel for respondent no. 2 has opposed the application for condonation of delay in filing the revision petition. The impugned order was passed on 03/05/12, whereas the revision petition has been filed on 28/11/2013, so, it is contended that same is barred by limitation.
In the application for condonation of delay, it is alleged that revisionist had taken all necessary and required steps to file the case and has not caused any intentional delay. It has resulted for the reasons beyond the control of the petitioner i.e. death of his sister on 12/08/12, death of his father on 08/09/12 and surgical operation of his wife Smt. Rasi Devi on 15/03/2013, due to which, revisionist suffered mental tension and trauma.
CR No. 165/13 6/12
I have considered the submissions of learned counsel for the revisionist in respect of condonation of delay and the grounds mentioned therein. Although there is a delay of more than one year, but the same has been explained to the satisfaction of this Court, so, the condonation of delay in filing the revision petition is allowed.
According to the impugned order dated 03/05/12, the learned Trial Court observed that accused Kamruddin had been made to suffer the ordeal of trial for the offence u/s. 279/338 of IPC, which he had never committed. It is further observed that IO acted maliciously. It is further observed that an innocent man was made as an accused, while the main culprit was let out by the IO and accused Kamruddin had suffered for more than 13 years for the something, which he had never committed. So, on the ground of false implication of accused Kamruddin, notice was issued to the IO and vide order dated 19/05/12, the learned Trial Court directed the IO to pay a compensation of Rs. 20,000/ to accused Kamruddin for his false implication in the case.
Learned counsel for the revisionist has contended that for false implication, compensation can be awarded by the Court u/s. 250 of Cr.P.C. It is further contended that according to Section 358 of Cr.P.C., compensation can be granted by the Court to a person groundlessly arrested, which runs as under:
"(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground of causing such arrest, the Magistrate may award such compensation, not exceeding (one thousand rupees), to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.
(2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding (one CR No. 165/13 7/12 thousand rupees), as such Magistrate thinks fit.
(3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.
It is further contended that according to Section 358 of Cr.P.C., only compensation up to Rs. 1,000/ can be granted.
It is further contended that it has been held in Criminal appeal No. 1583 of 2011 titled as Rajender Singh Pathania & Ors Vs. State of N.C.T. Of Delhi & Ors of the Hon'ble Supreme Court of India that:
"The issue of award of compensation in case of violation of fundamental rights of a person has been considered by this Court time and again and it has consistently been held that though the High Courts and this Court in exercise of their jurisdictions under Articles 226 and 32 can award compensation for such violations but such a power should not be lightly exercised. These Articles cannot be used as a substitute for the enforcement of rights and obligations which could be enforced efficaciously through the ordinary process of courts. Before awarding any compensation, there must be a proper enquiry on the question of facts alleged in the complaint. The court may examine the report and determine the issue after giving opportunity of filing objections to rebut the same and hearing to the other side. Awarding of compensation is permissible in case the court reaches the same conclusion on a reappreciation of the evidence adduced at the enquiry. Award of monetary compensation in such an eventuality is permissible "when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers."
It is further contended that after issuing notice to the IO, the learned CR No. 165/13 8/12 Trial Court did not conduct any enquiry and straightway imposed compensation on the IO of Rs. 20,000/ payable to accused Kamruddin vide order dated 19/05/2012. This is against the settled proposition of law. It is further contended that IO had proceeded on the basis of reply of notice given by Sidharth Jain, wherein hie disclosed the name of the driver at the time of accident as Kamruddin and further statement of Sidharth Jain was recorded u/s. 161 of Cr.P.C. to the effect for producing the two wheeler scooter and accused Kamruddin before the IO. Accused Kamruddin was arrested and scooter was released on superdari. So, even at that stage, accused Kamruddin did not raise any plea that he was not driving the two wheeler scooter at the time of incident.
It is further contended that IO proceeded against accused Kamruddin on the basis of reply given to him of notice u/s. 133 of M.V. Act and accused Kamruddin was produced by Sidharth Jain, owner of the two wheeler scooter, on the basis of which, he had arrested accused Kamruddin in this case and during investigation, accused Kamruddin did not raise any plea at any time that he was not driving the scooter at the time of accident and had not caused accident in the manner as per the complaint. It is further contended that in view of the same, compensation could not be imposed on the IO and if at all, it could have been imposed or awarded in favour of accused subject to the fact to prove that two wheeler scooter was being driven by Sidharth Jain, then the same could be imposed against Sidharth Jain only, who had given a false information to the IO to proceed against accused Kamruddin for the offence alleged.
It seems that learned Trial Court misdirected itself as compensation was already imposed on 19/05/2012, whereas the explanation of the IO was accepted on 11/07/2012 at the time of payment of compensation to accused Kamruddin by the IO. This procedure adopted by the learned Trial Court is in violation of the judgment, as relied upon, passed in Criminal appeal No. 1583 of 2011 titled as CR No. 165/13 9/12 Rajender Singh Pathania & Ors Vs. State of N.C.T. Of Delhi & Ors. If at all, there was any explanation, then it should have come after the show cause notice and should have been considered before imposing the compensation.
The procedure adopted by the learned Trial Court was wholly unwarranted and the learned Trial Court misdirected itself. Section 250 of Cr.P.C. is applicable only in cases, where accused has been discharged and Section 358 of Cr.P.C. is applicable where a person has been groundlessly arrested. Accused Kamruddin was arrested by the IO as per procedure laid down. During investigation, he gave notice u/s. 133 of M.V. Act, owner of the vehicle, who disclosed that at the time of accident, vehicle was in possession of accused Kamruddin and in furtherance of the same, he also produced two wheeler scooter and accused Kamruddin before the IO. Consequently, accused Kamruddin was arrested. At that time or even at the time of framing of charge or thereafter, accused Kamruddin never raised any plea that he was not driving the two wheeler scooter.
The twist given in the case by complainant/injured Ashok Bhola could not be believed at the stage of recording of his evidence because the same did not go under cross examination on behalf of accused Kamruddin. Even at that time also, it was not suggested on behalf of accused Kamruddin that he has nothing to do with the two wheeler scooter or with Sidharth Jain or with the accident in any manner.
The application u/s. 319 Cr.P.C. was also filed by the State at a highly belated stage and handwritten noting allegedly of accused Sidharth Jain was believed, which was not proved in any manner nor original of the same was produced before the Court. It seems that to obtain the MACT claim, injured/complainant Ashok Bhola twisted the facts for his gain as all these circumstances started happening i.e. moving application u/s. 319 Cr.P.C., moving application for further investigation etc., when he filed the MACT claim and also received summons to appear before the Court as a witness, but prior to that, he did CR No. 165/13 10/12 not bother to inform the IO about the identity of accused Sidharth Jain as the person, who had caused accident, although according to his deposition, he came to know on the same day and on the next day that accused Sidharth Jain had caused the accident. So, the above circumstances should not have been believed by the learned Trial Court in favour of accused Kamruddin, but the State has not challenged the order of discharge of accused Kamruddin in any manner. However, the order to the extent of imposing compensation has been challenged by the IO/revisionist.
In view of the above circumstances, if accused Kamruddin has been falsely arrested in this case, then it was at the instance of accused Sidharth Jain, who had given reply to the notice issued u/s. 133 of M.V. Act. So, if any compensation has to be awarded, then it should have been awarded against accused Sidharth Jain and not against the IO. IO had acted as per the information received by him during investigation, which was never challenged at that time either by complainant/injured Ashok Bhola or by accused Kamruddin in any manner. So, at that time, IO was not having any reason to believe that accused Kamruddin was actually not driving the two wheeler scooter and had not caused any accident. So, for the silence of accused Kamruddin and nondisclosure of material information at the relevant time on the part of complainant/injured Ashok Bhola, IO cannot be punished.
Even otherwise, in view of the settled preposition of law, the learned Trial Court has not conducted any enquiry after issuing show cause notice to the IO for before imposing compensation vide order dated 19/05/2012 and imposed compensation of Rs. 20,000/ on the IO on 19/05/2012. The impugned order dated 19/05/2012 is silent about any enquiry conducted by the Court as to whether any compensation could be awarded in favour of accused Kamruddin, payable by the IO. So, the acceptance of explanation given by the IO at the time of paying compensation on 11/07/2012 is of no consequence and in fact, the learned Trial Court was required to consider the reply given to the IO of notice u/s. 133 of M.V. CR No. 165/13 11/12 Act and also statement recorded of Sidharth Jain u/s. 161 Cr.P.C. coupled with the silence of accused Kamruddin and nondisclosure of material information in time by complainant/injured Ashok Bhola. No such enquiry has been conducted, so, impugned order is improper and illegal.
It was also beyond the jurisdiction of learned Trial Court as even according to Section 358 of Cr.P.C., the learned Trial Court could have imposed compensation of Rs. 1,000/ only, that too, could be imposed against accused Sidharth Jain only, who had given false information to the IO in reply to notice u/s. 133 of M.V. Act subject to proving the same. Accordingly, the impugned orders dated 03/05/2012, 19/05/2012 and 11/07/2012 are set aside to the extent of imposing compensation on the part of the IO, which has been paid to accused Kamruddin as the same was beyond the jurisdiction of learned MM u/s. 358 of Cr.P.C. and further as per settled preposition of law, no enquiry was conducted by the learned Trial Court before imposing the compensation.
Accused Kamruddin is directed to refund the compensation amount to the IO/present revisionist within one month from today.
The revision petition stands disposed off accordingly.
TCR be sent back with copy of the order.
Parties are directed to appear before the learned Trial Court on 24/03/2014.
Revision file be consigned to record room.
Announced in Open Court on
dated 21st of March, 2014 (Virender Kumar Goel)
Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CR No. 165/13 12/12