Delhi District Court
Gautam Kumar vs State (Govt. Of Nct Of Delhi) on 9 October, 2019
Crl. Revision No.190/2019
IN THE COURT OF GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE 09,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Revision No.190/2019
CNR No.DLWT010049782019
In re:
1. Gautam Kumar,
S/o Sh. Prem Prashad,
R/o H.No.C168, 3rd Floor,
Pandav Nagar, Delhi.
2. Manish Bansal,
S/o late Sh. Dwarka Nath,
R/o H.No. S37, Plot No.17,
Top Floor, Pandav Nagar,
Delhi.
3. Raman Kumar Roshan,
S/o Sh. Gaya Prashad,
R/o H.No.B14, Anand Vihar Colony,
Nehru NagarIII, Ghaziabad, U.P.
.....Petitioners
Versus
State (Govt. of NCT of Delhi) .......Respondent
Gautam & Ors. v. State Page No. 1/14
Crl. Revision No.190/2019
Date of filing of revision petition : 01.07.2019
Date of arguments of revision petition: 07.08.2019
Date of pronouncement of judgment : 09.10.2019
Decision : Dismissed
JUDGMENT:
1. This revision petition under Section 397 Cr.P.C. is directed against the orders dated 16.03.2019 and 19.03.2019 passed by the Ld. M.M.04 (West), Tis Hazari Courts, Delhi in case FIR No.37/2018 registered at P.S. Mianwali Nagar whereby the charge for the commission of offence punishable under Sections 420/471/120B IPC was framed against the petitioners.
2. The brief facts of the case are that the complainant Mohit was contacted by KBS Education (P) Ltd. telephonically in March, 2014 for higher education study through private university. In August, 2014, the complainant visited the address of the aforesaid company at 487/36, 1st Floor, National Market, Peeragarhi, Delhi. Accused Shiv Shankar introduced himself as Incharge of the Institute that plays instrumental role in getting admission in private university through their channel and the exams are conducted at its centre only. As per demand made by Shiv Shankar, complainant paid Rs.50,000/ as fees Gautam & Ors. v. State Page No. 2/14 Crl. Revision No.190/2019 for admission in B.A. The date of exam was stated to be conducted in December, 2014 at his centre but later on it was informed that the exams are not being conducted and the complainant was offered refund of his fees. It is alleged that complainant was offered B Tech course through Manav Bharti University on payment of fees of Rs.2,30,000/. Complainant on the assurance decided to pursue the same and deposited Rs.1,00,000/ with KBS Education office to Shiv Shankar against receipt on 29.01.2015. Further, fees of Rs.15,000/ was deposited in State Bank of Patiala in February, 2015 and on 29.04.2015 Rs.1,05,000/ was given in cash at the centre of Shiv Shankar against receipt. Subsequently, the complainant was informed that admission in Manav Bharti could also not be procured and it was told that without giving exam a mark sheet reflecting pass from Monad University from some back date has been arranged and complainant was told to pay another Rs.50,000/. The mark sheet was taken back when complainant sought time to pay Rs.50,000/. Thereafter, the complainant filed a police complaint and the present FIR was registered. Police arrested accused Shiv Shankar from his institute and seized mark sheet of Monad University issued in the name of complainant, provisional certificate, 12th class original mark sheet from the office of accused Shiv Shankar. At the disclosure of the accused Shiv Shankar, the petitioner Gautam Kumar was arrested from Gautam & Ors. v. State Page No. 3/14 Crl. Revision No.190/2019 Sun Shine Institute at C168, Ground Floor, Pandav Nagar from where laptop, pen drive and several degrees and mark sheets from different universities in the name of several candidates were seized. Petitioner Gautam stated to have supplied forged degree issued by Monad Universities to accused Shiv Shankar and disclosed that petitioner Manish Bansal was his partner in the said business. Thereafter, petitioner Manish Bansal was arrested from S37, Flat No.17, Pandav Nagar from whose bed room several mark sheets and degrees of different private universities issued in different names of students were found and seized. All the accused persons further disclosed about their accomplice namely accused Roshan who was arrested from B14, 3rd Nehru Nagar, Anand Vihar Colony, Ghaziabad. From the house of petitioner Raman Roshan, mark sheets and degrees from Monad Universities in the name of different candidates were found and seized. As per the police investigation, the mark sheets and degrees recovered from the possession of accused persons/petitioners were found to be fake and forged after verification from Monad University, Sun Rise University, Jodhpur National University and Eiilm University, Sikkim. As per the disclosure of petitioner Roshan there was another accomplice namely Manish Garg involved in the same but he could not be arrested and was declared absconder subsequently. After completion of investigation, charge sheet against the accused Gautam & Ors. v. State Page No. 4/14 Crl. Revision No.190/2019 persons/petitioners was filed under Section 420/471/120B IPC.
3. Vide impugned order dated 19.03.2019, the Ld. Trial Court framed charges against the petitioners including the accused Shiv Shankar under Sections 420/471/120B IPC. Aggrieved therefrom, this revision petition is filed by the petitioners.
4. The counsel for the petitioners assailed the impugned order contending that the impugned order is based on conjectures and surmises; Ld. Trial Court failed to appreciate that the disclosure statement of the coaccused can not be read against the other accused and it can not be termed as an evidence as per the Evidence Act; complainant has never met with the petitioners; prosecution has not cited any witness who can depose that the petitioners has cheated anybody; prosecution has failed to connect the petitioners with the accused Shiv Shankar; no document of the complainant has ever been recovered from the possession of any of the petitioners; prosecution has not brought any legal evidence either in the form of statement of the witnesses or any technical evidence to prove the charge of criminal conspiracy; Ld. M. M. failed to appreciate the judgments passed by the Hon'ble Supreme Court while framing charge i.e. (i) State NCT of Delhi v. Navjot Sandhu, 2005 SCC (Crl 1715); (ii) Firozuddin Gautam & Ors. v. State Page No. 5/14 Crl. Revision No.190/2019 Basheerudin & Ors. v. State of Kerela, 2001 (7 SCC) 596; (iii) Rukmini Narvekar v. Vijay Satardekar & Ors. Crl. Appeal no.1576 1577/2008 and (iv) P. Vijayan v. State of Kerela, (2010) 2 SCC 398. The counsel for the petitioners has argued that the impugned charge against the petitioners is bad in the eyes of law and the same is liable to the set aside
5. On the other hand, while supporting the impugned order, Ld. Addl. PP for State has submitted that there is no infirmity or illegality in the impugned order and therefore, no interference is called for.
6. I have heard the counsel for petitioners and Ld. APP for State. Trial court record has also been perused.
7. Before adverting to the facts of the case, it would be appropriate to refer to the guidelines laid down by the Superior Courts to be kept in mind at the stage of framing of charge.
In Union of India v. Prafulla Kumar Samal AIR 1979 SC 366, the Hon'ble Apex Court laid down the following principles:
"(i) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(ii) Where the materials placed before the Court disclose grave suspicion Gautam & Ors. v. State Page No. 6/14 Crl. Revision No.190/2019 against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
(iii) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; and
(iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
In Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2SCC 135, the principles enunciated above has been reiterated and it was held as below:
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused and in exercising jurisdiction under Section 227 of the Code of Criminal Gautam & Ors. v. State Page No. 7/14 Crl. Revision No.190/2019 Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the board probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant."
Further, Hon'ble Supreme Court in Sajjan Kumar Vs. CBI (2010) 9SCC 368 in para no.19 and pare no.21 held as below: "19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 Cr. P. C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each other.
(ii) Where the materials placed before the court disclose grave Gautam & Ors. v. State Page No. 8/14 Crl. Revision No.190/2019 suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to sell whether the trial will end in conviction or acquittal."
8. Discussing the law on consideration of charge, Hon'ble Delhi High Court in the case of Prashant Bhasker v. State (Govt. of NCT of Delhi) in Crl. Revision Petition No.385/2009 decided on 22.09.2009 held:
"17. It needs no elaboration that at the stage of framing of charge, the Gautam & Ors. v. State Page No. 9/14 Crl. Revision No.190/2019 court is required to evaluate the materials and documents which have been placed on record by the prosecution and taken at the face value, whether existence of the ingredients constituting the alleged offence or offences are disclosed. It is for this limited purpose alone that the court is permitted to sift the evidence. In para 7 of the judgment in (1990) 4 SCC 76 Niranjan Singh Karam Singh Punjabi v. Jitender Bhimraj Bijja the Apex Court defined the parameters of the scope and consideration thus:
"7. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on b the prosecution. In the State of Bihar v. Ramesh Singh 1977 Cri LJ 1606 this court observed that at the initial stage of the framing of a charge, if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal 1979 CriLJ 154, this court after considering the scope of Section 227observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a postoffice to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to Gautam & Ors. v. State Page No. 10/14 Crl. Revision No.190/2019 enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would natrurally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code of judge which under the present Code is a senior and experienced judge cannot act merely as a postoffice or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Xxxxxx From the above discussion it seems well settled that at the Sections 227 228 stage the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution stated as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied)
18. The pronouncement of the Apex Court reported at Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) on this very issue can also be usefully adverted to and reads thus: Gautam & Ors. v. State Page No. 11/14 Crl. Revision No.190/2019 "........ It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
19. In a subsequent judgment reported at (1996) 4 SCC 659 State of Maharashtra v. Som Nath Thapa a threeJudge Bench of the Supreme Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus:
".... If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though the conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into' the material brought on record by the prosecution has to be accepted as true at that stage."
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24. It now becomes necessary to consider the material which was laid by the prosecution before the learned trial court. Two contradictory statements recorded by the investigating officer of the complainant as well as his son both of whom claim to be eye witnesses, which were separated by a period of three months, have been placed on record. The first statement recorded on the very next date after the incident, has named only two persons i.e. Shri Mahesh Sharma and his brother Manish Sharma @ Kallu and is categorical that no other person is involved in the incident. A second statement recorded several months after the incident on 10th July, 2006 has sought to rope in the present petitioner. A graphic description of the alleged incident containing improvements in all material particulars is laid out in which even a role has been attributed to the petitioner. Scrutiny of the record which has been placed before this court would also show that there is no other Gautam & Ors. v. State Page No. 12/14 Crl. Revision No.190/2019 material on the record at all placed along with the charge sheet under Section 173 of the Cr. P. C. before the trial court to show the presence of the petitioner or to connect him with the crime.
25. These statements/supplementary statements of the witnesses recorded by the investigating officer make to mention about the earlier statement recorded on 6th April, 2006. Neither of these statements even attempts to explain the circumstances in which the second statement was being made or the reason thereof.
The very gap of three months between the incident and statements by itself renders the same suspect and unsafe for reliance.
26. In similar circumstances, this court in the judgment pronounced at 2007 (2) JCC 1415 Sunil Basal v. State of Delhi held that while undertaking the permissible and necessary exercise of sifting of the materials and particularly keeping in mind the existence of two contradictory statements, a charge cannot be framed based thereon. The court observed that the subsequent statements were not only contradictory but unsafe as well and that the court cannot be expected to accept one version over another. It was held that the court would be justified in concluding that the version supporting the discharge of the petitioner is to be preferred. In the present case as well, the previous statement has completely ruled out any complicity of the accused person".
9. The charge sheet has been filed against the petitioners and vide impugned order dated 16.03.2019 and 19.03.2019, the petitioners have been charged for the offence under Sections 420/471/120B IPC.
10. I have gone through the charge sheet, complaint of the complainant and other materials/documents of the complainant on record on the touchstone of the principles laid down by the Superior Courts, there can be no doubt that there exist the grounds to presume that the petitioners have committed the offences under Section Gautam & Ors. v. State Page No. 13/14 Crl. Revision No.190/2019 420/471/120B of Indian Penal Code. During the investigation the conspiracy and forgery has been unearthed and recovery has also been effected from the accused persons in this case. At this stage, the case of the prosecution can not be thrown out by disbelieving the allegations and the material on record brought by way of charge sheet. It is further observed that as per the charge sheet, the petitioners have forged the documents which have been recovered from their possession during investigation filed alongwith final report.
11. In the light of above discussions, I find no infirmity in the impugned order passed by the Ld. MM and the same does not warrant for any interference. The revision petition is without merits and is, accordingly, dismissed.
12. Trial court record be sent back alongwith the copy of the judgment. File of revision petition be consigned to record room.
Digitally signed by Gorakh Nath Gorakh Nath Pandey
Pandey Date: 2019.10.14
17:14:36 +0530
Announced in the open court (Gorakh Nath Pandey)
on 09.10.2019 Addl. Sessions Judge 09 (West)
Tis Hazari Courts, Delhi.
Gautam & Ors. v. State Page No. 14/14