Delhi District Court
State (Govt. Of Nct Of Delhi) vs Vikram Soni on 24 February, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
CRIMINAL APPEAL NO. 49/17
IN THE MATTER OF:
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi ....................APPELLANT
VERSUS
Vikram Soni,
S/o Sh. Anil Soni,
R/o 18, Shakuntla Farms,
Sultanpur, M. G. Road, ND ....................RESPONDENT
JUDGMENT
1. Vide this judgment I shall decide the present appeal filed under section 378 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") by State (Government of NCT of Delhi) against the judgment dated 27.09.2016 passed by learned Metropolitan Magistrate (in short "MM")01, SouthEast District, Saket Courts, New Delhi in case FIR No.852/02 under section 279/337/186/332/353 of Indian Penal Code (in short "IPC") Police Station Lajpat Nagar titled as State Vs. Vikram Soni.
2. As per case of prosecution, on 15.12.2002 at about 07:15 PM at T Point CA No. 49/17 State v. Vikram Soni 1 Jal Vihar Road Lajpat Nagar, the respondent Vikram Soni was found driving vehicle no.DL3C J 7487 in rash and negligent manner and he struck the vehicle against the complainant, HC Ved Veer Singh, due to which complainant sustained simple injuries and the accused also obstructed the complainant HC Ved Veer Singh and Ct. Anil i.e police officials in discharging their duties by causing them simple injuries by assaulting, manhandling and using criminal force against them.
3. Matter was investigated as per law. After the investigation charge sheet was filed before the Court u/s 279/337/186/332/353 IPC. Later on the accused was charged for the same but after trial he was acquitted for the alleged offences. Prosecution examined total five witnesses including the complainant PW1 HC Ved Veer Singh. Feeling aggrieved from the said impugned order, prosecution has preferred to file the present appeal.
4. The grounds of the appeal are that:
(a) The Ld. MM failed to appreciate the testimony of PW1, ASI Ved Veer Singh, who is the material witness in the present case. He fully supported the prosecution case and deposed that on the day of the incident, the accused was driving the offending vehicle in a rash and negligent manner and when he tried to stop him, the accused created hindrance in discharge of his official duty and gave injury to him.
(b) The Ld. MM failed to appreciate that the testimony of PW1 was corroborated by the testimony of PW3 Ct. Anil Kumar who had also witnessed the incident.
(c) The Ld. Trial Court failed to appreciate the fact that all the prosecution witnesses supported the prosecution case and neither any material contradiction nor improvement was found in their testimony, nor any contradiction CA No. 49/17 State v. Vikram Soni 2 or improvement was duly established by the defence.
(d) Ld. MM wrongly closed the prosecution evidence and did not use the coercive methods to secure the presence of material witness Mr. A.K. Ojha, DCP / SE who gave the complaint u/s 195 Cr.P.C.
(e) The Ld. MM has wrongly rejected the application u/s 311 Cr.P.C moved by the prosecution for recalling of the material witness A.K. Ojha, DCP / SE who gave the complaint u/s 195 Cr.P.C despite the settled law that it is the duty of the trial Court also to examine the material witness for the just decision of the case as laid down in case of "Govind Ram Vs. State of U.P, 1999 AII LJ 708.
(f) The appellant/State has contended that the impugned judgment passed by Ld. MM01 / SED is incorrect, bad in law and is liable to be set aside as the Ld. MM has failed to appreciate the testimony of prosecution witnesses. The appellant/State has prayed for setting aside the impugned order/judgment dated 27.09.2016.
5. Notice of the appeal was issued against the respondent who filed written submissions on 15.01.2018. In the written submissions, respondent has referred to all the proceedings before learned trial court including the evidence of the witnesses recorded before the learned trial court and has contended that there is no infirmity in the impugned order/judgment and that no interference is called for. Respondent has prayed for dismissal of the present appeal.
6. Detailed arguments have been advanced by learned Addl. PP for State as well as by learned counsel for respondent.
7. Learned trial court has discussed in detail the testimony of the various witnesses recorded by the State. However, perusal of the impugned judgment reveals that learned trial court has recorded that witness of prosecution CA No. 49/17 State v. Vikram Soni 3 qua sanction to prosecute the accused under section 186/332 IPC as required under section 195 Cr.P.C. is not examined despite opportunities and therefore proceeded to record that "Law on this point is already settled by Hon'ble Supreme Court of India in case titled as "State of U.P. Vs. Suresh Chandra Srivastava and Ors, AIR 1984 SC 1108" in which it was held that where an accused commits some offences which are separate and distinct from those contained in Section 195, then Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code".
8. After discussing the law laid down in the cited judgment, learned trial court recorded that in the case (wherein the impugned order/judgment has been passed), accused/respondent herein was charged for offences punishable under section 279/337/186/332/353 IPC and it was alleged that accused/respondent herein had committed the offence while PW 1 and PW 3 were performing their public duties. Learned trial court also observed that in its view, the allegation of rash and negligent driving by the accused and alleged injuries received by the injured and other allegations against the accused are the part of the same transaction and are covered under the ambit of section 195 Cr.P.C and proceeded to hold that in view of these discussions, prosecution case is not proved beyond reasonable doubt regarding allegations of offences under section 279/337/186/332/353 IPC and thus acquitted the accused/respondent herein of the offences punishable under section 279/337/186/332/353 IPC.
9. Thus, the impgned judgment has been passed by relying on the law laid down in case titled as "State of U.P. Vs. Suresh Chandra Srivastava and Ors, AIR 1984 SC 1108" and, it is noticed that the conclusion of learned trial court CA No. 49/17 State v. Vikram Soni 4 of prosecution failing to establish its case is attributable to the fact that witness of prosecution qua sanction to prosecute the accused under section 186/332 IPC as required under section 195 Cr.P.C. was not examined.
10. On perusal of trial court record, it is noticed that name of witness of prosecution qua sanction as stated herein namely Shri A.K. Ojha appears at serial no. 10 in the list of witnesses. He was summoned to appear for 13.05.2015. However he sent his request which was allowed for that day. On the next date i.e. 25.07.2015, direction was given to summon him for 10.09.2015. However he did not appear despite being served and he was directed to be summoned again for next date of hearing i.e. 29.10.2015 on which day he again sent his request for being busy in India - Africa Forum SummitIII and his request was allowed. Last and final opportunity was given to the prosecution to examine him and the matter was adjourned to 08.12.2015. On the said date, Shri A.K. Ojha again sent his request which was allowed for that date and the matter was adjourned to 12.02.2016 when again Shri A.K. Ojha sent exemption request which was disallowed and by recording that number of opportunities given to prosecution to examine the prosecution witness, the PE was closed and on next date of hearing, statement of accused/respondent herein was recorded under section 313 Cr.P.C. Part arguments were heard on the next date of hearing i.e. 10.03.2016 and on the next date i.e. 01.04.2016, the State/Appellant herein filed an application under section 311 Cr.P.C to recall witness Shri A.K. Ojha. However the said application was dismissed for the reason that the matter was at the stage of final arguments and part arguments had already been heard and on the same date, the matter was reserved for orders after hearing remaining final arguments.
11. Perusal of trial court record reveals that ample opportunities were given to the prosecution/State to record the evidence of Shri A.K. Ojha. However he did not appear and thus PE was closed. However Shri A.K. Ojha was a material CA No. 49/17 State v. Vikram Soni 5 witness and I find force in the submissions of State/appellant that it is the duty of the trial Court also to examine the material witness for the just decision of the case as laid down in case of "Govind Ram Vs. State of U.P. and others, decided by Allahabad High Court on 22 July, 1998, 1999 AII LJ 708. In the said matter, it was observed as:
"It is the duty of the Court to see that all the material witnesses are produced before it at the trial, whatever be their evidence, and also to see that material documentary evidence is also placed before the Court. The Code of Criminal Procedure contains a very important provision with regard to the powers and duties of the trial judge/court about the production of all the material evidence before the Court. Section 311 of the Code of Criminal Procedure runs as follows :
311. Power to summon material witness, or examine person present.Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.
While in the first part of the Section the word used is "may", in the second part of the Section the word used is "shall". So in consequence, in the first part of the section there is discretion of the Court available at any stage of the trial to summon any one as a witness but the second part of the section is mandatory and puts the Court under obligation to summon any one as a witness if his evidence appears to be essential for a just decision of the case. Thus it is the obligatory duty of the CA No. 49/17 State v. Vikram Soni 6 trial Judge/Court to summon and examine any such person as a witness for doing justice. There is a duty cast on the Court to summon all the material witnesses and examine all such witnesses on its own if the prosecution fails to do so. The Court cannot evade its statutory responsibility in this regard. If the prosecution declines or fails to summon and examine such material witnesses, the Court could and must act on its own and cause them to be produced. Consequently, it cannot be said that the learned Sessions Judge who tried this case was conscious of its duty sitting as the trial Judge to summon and examine such material evidence in this case.
12. In view of the above discussion it is held that there is miscarriage of justice due to the acts and omissions of the prosecutor (A.P.P.) and the acts and omissions of the trial Judge. The order of acquittal passed by the trial Judge has, therefore, got vitiated."
12. In case FIR No.852/02 under section 279/337/186/332/353 of Indian Penal Code also, it was the duty of learned trial court to get the evidence of Mr.A.K. Ojha, DCP / SE who gave the sanction u/s 195 Cr.P.C recorded. Though he was summoned repeatedly, he sought exemption on all the dates and the learned trial court did not decline his request for exemption. Learned trial court should have declined the request for exemption after exempting him by using judicial discretion on one or two occasions. However, when he did not appear despite being summoned repeatedly, it was the duty of learned trial court to adopt coercive means to ensure his presence and learned trial court is empowered for the same as per provisions of Cr. P.C. In view of law laid down in Govind Ram vs. State of UP and others (Supra), the order of acquittal passed by the learned trial Judge has, therefore, got vitiated.
CA No. 49/17 State v. Vikram Soni 713. The appeal is consequently disposed of in these terms that the judgment of acquittal dated 27.09.2016 by the learned trial court is set aside and the matter is remanded to the learned trial court for retrial according to law in the light of the observations made in this judgment. The learned trial court shall try the case and decide the same expediently. Meanwhile, appellant is admitted to bail on his furnishing a personal bond in the sum of Rs. 20,000/ with one surety of the like amount. Bail bond and personal bond furnished and accepted. The appellant is directed to appear before Ld. District and Sessions Judge on 24.02.2018 at 02:00 PM for assignment of the case FIR No. 852/2002, PS Lajpat Nagar, u/s 279/337/186/332/353 IPC for retrial.
14. Let a copy of this judgment be sent to learned trial court along with the TCR.
Announced in the open court on (Dr. Neera Bharihoke)
24.02.2018 Additional Sessions Judge06,
South East,Saket Courts,
New Delhi/24.02.2018
Digitally signed
by NEERA
NEERA BHARIHOKE
BHARIHOKE Date: 2018.02.24
16:41:40 +0530
CA No. 49/17 State v. Vikram Soni 8