Delhi District Court
State (Govt. Of Nct Of Delhi) vs Praveen Beniwal @ Leela on 11 March, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL: ADDL.
SESSIONS JUDGE(05): OUTER: ROHINI COURTS: DELHI
CRIMINAL RIVISION No. 68/11
PS-K.N. K.Marg
STATE (GOVT. OF NCT OF DELHI)
THROUGH ITS ADDL. PP .........(Petitioner)
Versus
PRAVEEN BENIWAL @ LEELA
S/O SURENDER SINGH
R/o 226-A, Pitampura,
Delhi. .......(Respondent)
Date of Institution in Sessions Court: 08.03.2011.
Date of Order : 11.03.2011.
ORDER:
Vide this order, I shall dispose off the present revision petition, which has been filed by the prosecution against the impugned order, dt. 28.02.2010, passed by Ld. MM, whereby Ld. MM dismissed the application of the prosecution, seeking three days police custody of accused Praveeen Beniwal @ Leela, in case FIR No.409/10, U/s 302/34 IPC r/w Section 25 Arms Act, PS K.N. K. Marg.
State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 2 In brief the prosecution story is that one Manmeet Gulia made a statement to the police on 26.12.2010, that he was an software engineer and on 26.12.2010, he had went to visit the house of his uncle, namely, Baljeet Rana at Village Shahbad Daulatpur, and at around 9:45 p.m, he along with his cousin brother Himanshu Rana and his friend Saurav, Naveen and Himanshu Batra along with one Pankaj went to DDA Market, Sector-17, Rohini in the Wagon-R Car of said Pankaj, bearing registration No. DL8C-K-7057, and they parked their car on the road in front of DDA Market, and his cousin brother Himanshu, Saurav and Naveen went to the shop of Gulshan Mangu for fetching chicken.
The said Himanshu Batra remained in the car. After sometime, another Wagon-R Car came and was parked behind their car, from which two boys alighted. The Himanshu Batra, who was sitting on the backside of the car opened the door of the car, which struck against one of them. At this, one of those abused him. When, he objected to the same, both the boys started beating him and State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 3 pulled him out of the car. When, he stopped them, they also started beating him.
Thereafter Himanshu Batra came out of the car and one of those boys, who was having height 5 feet 6 inches took out one pistol from his jacket and the other one, who was 5 feet 9 inches exhorted him to fire at Himanshu Batra in order to teach him a lesson and both of them ran after him, and the shorter one fired two bullets at Himanshu Batra, but the same missed the target, but he again fired two another bullets, which hit him and he fell on the ground.
The aforesaid Himanshu Batra was later on removed to the hospital, where he was declared as brought dead. Consequently, an FIR U/s 302/34 IPC was registered at PS K.N. K. Marg.
One of the accused, who had fired upon deceased was later on arrested, whose name was revealed as Surya Prakash @ Babar, who also got recovered the katta pursuant to his disclosure statement, after his arrest on 28.12.2010. He also made a disclosure statement on the same day, that the other person, who was involved State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 4 with him in the offence in question was Praveen Beniwal @ Leela, R/o of Pitampura Village.
Thereafter, it appears that the accused had surrendered before the court by moving an application in this regard.
Thereafter, an application for seeking of three days police custody remand was moved by the I.O on 26.02.2011, which was adjourned by Ld. MM for 28.02.2011, and on 28.02.2011, the application of the prosecution for seeking police remand was dismissed by the Ld. MM by passing the following order.
"An application seeking three days police custody filed on behalf of the prosecution is pending adjudication. On the other hand, an application filed on behalf of the accused, wherein he has sought directions that he may be subjected to TIP proceedings is also pending. Both the applications were fixed for consideration by the Ld. Link MM for today.
Arguments heard. Record perused. The case of the prosecution is that on 26.12.2010, the accused Praveen Beniwal along with his accomplice Surya Prakash committed murder of Himanshu Batra. The complainant Manmeet Gulia, who is related to the deceased was accompanying him at the relevant time.
State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 5 The co-accused Surya Prakash has already been arrested and the recovery of weapon has been affected. Ld. Defence counsel has opposed the remand application.
I am of the considered opinion that no grounds are made out for remanding the accused to police custody. Since, the weapon of offence has already been recovered and the other co-accused Surya Prakash has already been arrested. I.O has sought police custody, submitting that the custodial interrogation is required to unearth a deep-rooted conspiracy and for getting the place of offence identified by the accused. No purpose shall be served by remanding the accused to police custody, as no further custodial interrogation is warranted. Thus, remanding the accused to police custody would not serve any purpose.
Accordingly, application seeking police custody is rejected".
The prosecution has assailed the said order of the Ld. MM, declining the PC remand by way of present revision on the following main grounds.
a. That the co-accused i.e the accused Praveen @ Leela is required to be throughly interrogated in this case, to verify the contents of the disclosure statement, made by another co-accused State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 6 Surya Prakash.
b. That he may also provide clue, regarding the source of the weapon, used by accused Surya Prakash.
c. That he requires to be interrogated to find out the planning and motive part as well as criminal conspiracy. d. That the persons, who harboured accused Praveen @ Leela after the commission of crime, are also to be identified. e. That the place of commission of murder is also to be pointed out by the accused.
In these circumstances, it is prayed that the present said revision petition be allowed and the impugned order, dt. 28.02.2011 be set aside.
The said revision petition is also accompanied by an application for exemption in filing the certified copy of the impugned order.
I have heard Ld. Counsel for the accused/respondent, Sh. Sunil Mittal and Sh. Ravinder Chadha and Ld. Addl. PP for the State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 7 state Sh. A.K. Srivastava.
The Ld. Counsel for the petitioner has argued that the present revision petition is not maintainable, as it has been filed against an interlocutory order, dt. 28.02.2011, as the said order can only be considered, as interim order or procedural order, which does not determine the rights and liabilities of the parties finally. He has further argued that the grounds taken by the prosecution in the present revision petition were not taken by the prosecution before the court of Ld. MM, in the application for seeking police custody remand and that the weapon of offence has already been recovered at the instance of accused Surya Prakash and the place of offence is already known to the prosecution, and further there is no question of any conspiracy, as even as per the case of the prosecution, the incident took place suddenly in a sudden fight. Consequently, there could not have been any conspiracy. Therefore, he has argued that the Ld. MM has rightly passed the impugned order, dt. 28.02.2011, declining the police custody remand, and the present revision State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 8 petitioner deserves to be dismissed.
On the other hand, Ld. Addl. PP for the state has argued that the impugned order, dt. 28.02.2011 is not an interlocutory order, as the same has decided the important right of the prosecution to seek police custody remand of the accused, and it is an final order, which has attained finality, as the said right has curtailed the right of the prosecution for fair investigation, which was necessary by seeking the custodial interrogation of the accused.
He has argued that prosecution can take any ground in the present revision petition and it is not bound only to the ground, taken by the I.O in his application for police custody remand. He has further argued sufficient grounds exits for allowing the present revision petition.
I have gone through the rival contentions.
The Ld. Counsel for the respondent has relied upon the following judgments AIR 2004 SUPREME COURT 2282, AIR 2004 SUPREME COURT 2294, AIR 1980 SUPREME COURT 785, AIR State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 9 1992 SUPREME COURT 1768.
It has been held in judgment AIR 1977 SC 2185 that:-
"The term "interlocutory order" in sec. 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of the parties. Any order which substantially affects the right the accused, or decides certain rights of the parties, cannot be said to be an interlocutory order, because that would be against the very object which formed the basis for insertion of this particular provision in sec.397".
Ld. Addl. PP for the state has relied upon the judgment 2011 Crl. L.J. 515 of Bombay High Court, on the point that rejecting police custody of the accused is not a interlocutory order. On the other hand, Ld. Counsel for the accused has relied upon judgment AIR2004 Supreme Court 2282 (supra), in para 13 of which it was held as under:-
"Section 167, Cr.P.C empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209, Cr. PC confers power State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 10 upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309, Cr. P.C confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorized even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 Cr. P.C. a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day".
In the respectful view, the judgment relied upon by the Ld. Defence counsel of the Supreme Court would be applicable in the State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11 11 present case, and the same would prevail over the judgment of Bombay High Court, being the judgment of superior court. Consequently, the present revision petition is not maintainable, as the same has been filed against the said interlocutory order of rejecting the request of the prosecution for police custody remand.
However, be that as it may, however, the Ld. MM should have considered the application of the prosecution for police custody remand in a sensitive manner, more so, as the offence in question was most heinous in nature, in which a young life was lost on a very trivial issue, as the rights of the family of the victim for justice is equally important, as that of accused persons for fair trial. Both have to be finely balanced in the interest of justice, and in the interest of society, otherwise we have no right to criticize the executive and police over the increasing lawlessness in the society.
The net result is that the present revision petition stands dismissed. Copy of this order be sent to the Ld. Trial Court. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 11.03.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State of NCT of Delhi Vs. Praveen Beniwal @ Leela CR No.68/11 1-11