Delhi District Court
State vs Krishan Murari on 3 June, 2015
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
KARKARDOOMA COURTS, DELHI.
STATE Vs.KRISHAN MURARI
FIR No.320/08
PS: NEW ASHOK NAGAR
JUDGMENT
A Unique ID No. of the case 02402R00011702013
Date of commission of 23-24.09.2008
B
offence.
Name of the Complainant Sh. Ramesh Chand Goyal, S/o Late
C Sh. Manmohan Chand Goyal, R/o
C-1/29, New Kondli, Delhi.
Name of the accused & his Krishan Murari, S/o Sh. Rama parentage and address Shankar Singh, R/o H.No. 1462, Gali D No.20, Block 1st Pusta Sonia Vihar, Delhi.
E Offence complained of : 411 IPC F Date of Institution 14.01.2013 F Plea of the accused Pleaded not guilty G Order Reserved on 03.06.2015. H Final Order Acquitted. I Date of such order 03.06.2015 BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS
The story of the prosecution is that on 16.02.2010, one mobile phone (make L.G.) bearing IMEI No. 355624025029149, mobile no. 9871904873 was recovered from the house of accused Krishan Murari i.e. H.No. 1462, Gali No. 20, Block 1st Pusta, Sonia Vihar,Delhi, which was stolen during the intervening night of 23-24.09.2008, from the shop of complainant Sh. Ramesh Chand Goyal, S/o Late Sh. Manmohan Goyal, between 10PM to 6AM, i.e. C-1/129, Main Road, New Kondli, New Ashok Nagar, Delhi. Thus, accused Krishan Murari is alleged to have committed an offence punishable u/s 411 IPC.
FIR On the complaint of complainant Ramesh Chand Goyal, dated 27.09.2008, an FIR bearing number 320/2008 under section 411 IPC was lodged at FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.1/6 Police Station Preet Vihar on 27.09.2008.
CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 14.01.2013.
Accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a charge for the offence punishable under section 411 IPC was framed against the accused and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 10.11.2014.
JUDICIAL RESOLUTION The accused is alleged to have committed an offence punishable u/s 411 IPC.
In order to prove the allegations of offence punishable under section 411 IPC, the prosecution need to prove the following essential ingredients:-
1. That the accused has dishonestly received or retained any stolen property i.e. LG mobile phone.
2. That such property has been received or retained by the accused knowing or having reason to believe the same to be stolen property. In order to prove the above said allegations, the prosecution has cited 9 witnesses of which only 1 witness i.e. the complainant has been examined.
DEPOSITION OF WITNESSES:
The deposition of the prime witness / PW - 1 Complainant Ramesh Chand Goyal is as under:
"On 23.9.2008 at 10 PM had closed my shop and had gone up in my house, in property number C-1/29 New Kondli, Delhi. When i saw my shop in the morning at 6 AM I saw that the gate of my shop was open and when i entered the car i saw that the articles in the shop were missing i.e. 20 old mobile phone and 5 new Chin Made mobile phones were found missing. Six landline Phone were also missing and 4 head phones were also missing and recharge coupons of various companies Rs.60,000/-. Besides this Rs.20,000/- in cash was also missing. One Laptop old was also not present and its cover was left. I called 100 number from phone number 9213922410. Police came at the spot in 30-45 minutes. At this stage I remember that a gas cylinder was also missing. Police asked me to come to the the Police Station at New Ashok Nagar and there i made complaint Ex. PW-1/A to the police which bears my signature at point A. Police registered FIR. I went to the Police Station to know about the status of my case and i was informed that investigation was pending and then i received the summons from the court. I did not receive back any of the stolen articles. I have no bill etc of the mobile phones and other articles stolen at that time. Case property produced by MHC(M) which is not in any pullanda of LG company bearing IMEI number 355624025029149. The case property is shown to the witness and he states that he cannot say that whether the said case property is that of his or not as long time has elapsed.
Court Question: Whether you had given the details of the stolen articles i.e FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.2/6 IMEI numbers of the mobile phones and details of other articles? Ans: I did not tell the same to police as the phones got stolen and i had no source to know the IMEI number.\ (Witness has been examined in absence of Ld APP as Ld APP is not present till 1 PM) XXX By Sh. S.K.Sharma Ld Counsel for the accused with the accused. My shop is in the name of Happy Mobile and Cyber Cafe. I have got registered my shop with the concerned authority vide reg no 1895 of Cyber cafe. I am not assessed to income tax. The FIR is of 27.9.2008 as the police kept on delaying the matter. I was having the FIR and i was reading the same in the morning. I do not remember that whether the phones which were stolen included the phone of LG. The new phones which were stolen were not of LG. It is wrong to suggest that i am deposing falsely."
The complainant has thus failed to identify the case property as the property which was stolen from his shop. He has also stated that he never supplied the details of the IMEI numbers of the phones which were stolen from his shop and as such the story of the prosecution that the accused was apprehended by tracing the IMEI number falls to the ground. If the complainant has never disclosed the IMEI numbers to the IO, then there was nothing for the IO to trace and apprehend the accused. Moreover, the complainant has also physically failed to identify the recovered phone.
In view of the testimony of the complainant the case of the prosecution stands demolished, as the recovery of the mobile phone from the accused could not be connected to the theft committed. The mobile phone was neither identified by the complainant, nor its IMEI number was ever disclosed by the complainant to the police and as such the recovered mobile could not be proved to be stolen property as defined under s.410 IPC.
The case is at the stage of PE, however, in view of the testimony of the complainant, there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In the opinion of the court, this is a fit case to close PE and acquit the accused today itself so as to protect his right of speedy justice as incorporated in Article 21 of Indian Constitution.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.3/6 proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted."
(emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 :
1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-
FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.4/6 limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.5/6 in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, as the complainant Ramesh Chand Goyal did not support the prosecution story, hence, in the light of the above cited judgment, the court needs to protect the right of the accused to have speedy justice.
Accordingly, PE stands closed, S.A. is dispensed with and accused Krishan Murari is acquitted.
As per section 437-A of the Cr.P.C as inserted vide the Amendments Act which came into force on 31.12.2009, the accused shall furnish fresh personal bond and surety bond in sum of Rs. 10,000/- within one week from today, which shall remain inforce for a period of six months from today.
File be consigned to Record Room after necessary compliance.
ANNOUNCED ON 03.06.2015.
(SAURABH PRATAP SINGH LALER) ACMM (EAST)/KKD/03.06.2015 Certified that this judgment contains 6 pages and each page bears my signatures.
(SAURABH PRATAP SINGH LALER) ACMM (EAST)/KKD/03.06.2015 FIR No. 320/08 PS:NEW ASHOK NAGAR STATE Vs. KISHAN MURARI PAGE No.6/6