Delhi District Court
Pradeep Kumar Bansal vs State on 22 January, 2013
ID No. 02406R0293172012
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE - 04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Revision No. 65/2012
ID No. 02406R0293172012
Pradeep Kumar Bansal
s/o late Sh. B. B. Bansal
r/o E/348A, Greater kailash PartI,
New Delhi
..........revisionist
Versus
State ..........respondent
Instituted on : 26th November,2012
Argued on :19th January,2013
Decided on : 22nd January, 2013
O R D E R
1. This revision petition is directed against the order dated 16.10.2012, passed by Learned Metropolitan Magistrate (South East District), whereby a Sessions triable case arising out of FIR no. 111/94, PS Greater KailashI u/s 308/506/34 IPC has been committed to the Court of Sessions.
2. I have heard submissions advanced by Sh. Jitender Kumar Jha Learned counsel for the revisionist and Sh. R. S. Negi Learned Addl. PP for the State.
3. Learned counsel for revisionist submitted that alleged incident occurred on 02.04.1994. On 23.05.1995, FIR was registered at the instance of Raj Kumar Bansal, the complainant, who is real brother of accused and chargesheet was filed on 23.05.1995. Case was earlier committed by Learned Committing Magistrate on 10.12.2004. On 05.02.2011, Learned ASJ Pradeep Kumar Bansal State CR No. 65 of 2012 1/21 ID No. 02406R0293172012 remanded back this case to the Court of Learned Magistrate to supply the deficient copies and to comply with Section 207 Cr.P.C. on 16.10.2012, Learned MM again committed the case observing that all the documents filed along with the challan were supplied to the accused persons and that no statement u/s 161 Cr. P. C was recorded. It was observed that there is no question of supplying of statement recorded u/s 161 Cr. P. C, during the course of investigation as no such statement was filed with the challan. Since, no statement u/s 161 Cr. P. C were filed with the challan, therefore, no question of the same being supplied to the accused u/s 207 Cr. P. C arises.
4. Learned Counsel has prayed that the order dated 16/10/2012 passed by the Learned MM may be quashed and set aside and that Police report filed in the court in the case FIR No. 111/1994, P. S. Greater KailashI, New Delhi U/s 308/506/34 IPC is required to be rejected/filed as no statements u/s 161 Cr.P.C. are on record, nor it is possible to file the same as has been concluded by the Learned MM, in the impugned order. In the circumstance, no fair and just trial is possible as has been held in "2007 CRI. L.J. 1772 and 2011 [ 4 ] JCC 2529 and ors." It is prayed that Learned MM should follow the directions of the Learned ASJ and follow the matter with the highest / top most officer of the Investigating Agency and also follow the said inquiry to be initiated against the delinquent IO as per report dated 15.10.2012 filed by concerned DCP.
5. Learned Addl. PP submits that statement of complainant/injured is on record and it is not disputed that statement of witnesses recorded u/s Pradeep Kumar Bansal State CR No. 65 of 2012 2/21 ID No. 02406R0293172012 161 Cr. P. C are not traceable, despite efforts made in this regard by Learned MM. He submits that statements are not recorded and therefore, could not be filed. Learned Addl. PP submits that in order to prove the case, statement of complainant/injured is on record and IO of the case is also available apart from the doctor who prepared MLC .
6. Relevant portion of Impugned order dated 16.10.2012 notes as under : "However, a perusal of the record reveals that even along with the charge sheet no statements u/s 161 Cr.P.C.,recorded of the witnesses in the investigation were filed, nor could they be arranged after repeated the notices to the SHO's or IO's. All other documents from serial no. 1 to 8 as per order dated 05.02.2011 have been supplied to the accused persons. No question of supply of statements u/s 161 Cr.P.C. arises, unless the statements u/s 161 Cr.P.C. were recorded during the course of the investigation and filed with the challan. When no statements u/s 161 Cr.P.C. were filed with the challan, for the reasons best known to the then IO/SHO, no question of the same being supplied u/s 207 Cr.P.C. arises. It is clear that all the copies/documents filed with the challan have been supplied to the accused persons, accordingly, compliance of Section 207 Cr.P.C. has already been made. Nothing further remains to be done.........."
7. Revisionist is one of the accused in the case FIR No. 111/1994, P.S. Greater KailashI, U/s 308/506/34 IPC two applications, dated 10/07/1995 were filed before the Learned M.M. on behalf of the accused Pradeep Kumar Bansal State CR No. 65 of 2012 3/21 ID No. 02406R0293172012 where by vide one of the applications, request for supply of various documents was made and vide another application, deficiency in the chargesheet was brought before the Learned Court, wherein it was pointed out that statements of witnesses u/s 161 Cr.P.C. have not been filed by the police along with the chargesheet. It is submitted that the alleged chargesheet filed by the police cannot be said to be a chargesheet as the documents required to be filed along with Police report u/s 173 Cr.P.C. have not been filed by the Police. It is argued that it is the duty of the Court, before which the police files its chargesheet, to look into the documents and if the documents as required by law have not been filed by the police, then the Learned Court is duty bound to reject the same. It is argued that inspite of the two applications, dated 10/07/1995, police never filed in the Court any statements of the witnesses u/s 161 Cr.P.C.. It is pointed out that now the police is unable to file the statements of witnesses u/s 161 Cr.P.C., hence the case arising out of the FIR No. 111/1994, P. S. Greater KailashI, u/s 308/506/34 I.P.C. is required to be rejected.
8. Learned counsel points out that in the present case, Learned ASJ in his order dated 05/02/2012, observed that "Learned M.M. failed to supply various documents along with copies of the statements of witnesses u/s 161 Cr.P.C., to the accused before committal of the case to the Court of Sessions on 10/12/2004. He submits that not only the copies of statements of witnesses u/s 161 Cr.P.C. as aforesaid, but also the copies of several other documents were never supplied to the accused as required u/s 207 Cr.P.C. Bare Pradeep Kumar Bansal State CR No. 65 of 2012 4/21 ID No. 02406R0293172012 perusal of the charge sheet reveals that at the last page with the description of the documents, there is a mention of documents viz. Challan form (3), Asal Tehrir (1), Nakal FIR (1), site plan (1), Fard Makboojgi (1), Naksha Majroobi (6), Court orders (2), Jamanatnama and Jaati Muchalaka (5), MLCs & Xray report, photocopies (8), Request for MLC (3), and Saza Slip (2) which are total 33 in number. On record are the signatures of Pradeep Bansal and Neeru Bansal for receipt of 15 copies each on 23/05/95. There are no signature of accused Vijay Bansal for receipt of the copies.
9. The case was committed to the Court of sessions in terms of the order dated 10/12/04, the then Learned Metropolitan Magistrate. Learned Counsel submits that bare perusal of it reveals of there being no mention of requirements under Section 207 Cr.P.C. having been complied with. As per record later to 23/05/95 and upto date of committal order i.e. 10/12/2004, no deficient copies were supplied. All above said leads me to the conclusion that the copies of the accused remained deficient as on the date of the committal of the case to the Court of Session. In terms of the law laid in the case of Narain Rao's "case is accordingly sent back to the court of Learned ACMM concerned who may either himself or by sending it to some other Learned Magistrate, get the requirements of Section 207 Cr.P.C. complied with at the earliest and then the case be committed as per the mandate of the legislature in terms of the provisions of the Code of Criminal Procedure."
Pradeep Kumar Bansal State CR No. 65 of 2012 5/21
ID No. 02406R0293172012
10. Sh. Jha, Learned Counsel submitted that the Learned MM, while passing the impugned order dated 16/10/2012, failed to comply with the order dated 05.02.2011 and the directions of Learned ASJ and failed to comply with the provisions of Section 207 Cr.P.C. In the impugned order dated 16.10.2012, the Learned MM failed to appreciate and record the complete submissions of the Counsel for the accused persons. It is submitted that the deficient copies as listed in the order dated 05.02.2011 of the Learned ASJ (on page 1 and 2) from Sr. No. 1 to 8 have not yet been supplied to any of the accused persons and Section 207 Cr.P.C. has not been complied with; that one of the accused Vijay Kumar had not been supplied any copies earlier as was also held by the Learned A.S.J. vide order dated 05.02.2011, nor has been supplied any copies till this date i.e. 16.10.2012; that any of the statements of the witnesses u/s 161 Cr.P.C. have not been supplied to any of the accused persons; that the I.O., S.H.O. and the Addl. Dy.C.P. have submitted their reports before the Courts of the Learned A.S.J. and the Learned MM, that they cannot file any statement of witnesses u/s 161 Cr.P.C. as the police file is not traceable and any records are not available even in V.R.K./SouthEast District & South District, the case record has been destroyed. He submits that the Court of Learned MM may kindly be asked to take steps for getting needful done through the 'top most officer' of the investigating agency as directed by the Learned ASJ vide order dated 05.02.2011; that the Court of Learned MM had to comply with the order dated 05.02.2011 of the Learned ASJ.
Pradeep Kumar Bansal State CR No. 65 of 2012 6/21
ID No. 02406R0293172012
11. It is submitted that Learned M.M. erred in facts in law had not complied with the directions in the order dated 05.02.2011 of the Learned A.S.J. and exceeded jurisdiction by sitting in decision over the directions of the Court of the Learned A.S.J. made vide order dated 05.02.2011. Learned M.M. has erred in observing that : "As per order dated 10.01.2012 all the deficient copies except copies of statements u/s 161 Cr.P.C. were supplied to the accused persons. All other documents from serial no. 1 to 8 as per order dated 05.02.2011 have been supplied to the accused persons."
12. He argued that it is no where recorded that on 10.01.2012, deficient documents were supplied by the Court to all of the three accused persons and there is no signature of any of the accused persons on 10.01.2012 of having received the deficient copies. Learned counsel submitted that when neither the police file of the case was available nor the case diary was available in the VRK, then what was the source from where the IO was able to obtain the deficient documents and make a statement before the Court of Learned MM on 10.01.2012 that he was supplying deficient copies. It is submitted that as regards the statements of witnesses u/s 161 Cr.P.C., Learned MM observed in the impugned order dated 16.10.2012 that , "It was submitted by the IO that the statements u/s 161 Cr.P.C. cannot be supplied as the police file is not traceable since the year 2004. Thereafter this matter is pending for supplying of copies of statements u/s 161 Cr.P.C. Notices were issued to the IO/SHO/DCP concerned."
Pradeep Kumar Bansal State CR No. 65 of 2012 7/21
ID No. 02406R0293172012
13. Learned Counsel submits that Learned MM has omitted to
record in the order dated 16.10.2012 that the IO/SHOs/DCPs have
submitted their reports that they cannot file any statement of witnesses u/s 161 Cr.P.C. as the police file is not traceable, any records were not available even in VRK/SouthEast District & South District, and the case record has been destroyed. Learned counsel submitted that the committal Of a case triable by the Sessions Court under Section 209 Cr.P.C can be made only after compliance of Section 207 Cr.P.C., which has not been complied with by the Learned MM. He submits that Learned MM committed a grave error of law and facts and that situation of the case remains the same as it was, when the case was committed earlier to the Court of Session vide order dated 10/12/2004 and the law does not permit committal of the case for the second time by making amendments in the previous order and without actual compliance of Section 207 Cr.P.C.. He submits that the amendments in the order dated 10/12/2004 amounts to review of the order by the Learned MM. It is submitted that in spite of the fact that the committal order dated 10/12/2004 is still in existence as the same was never set aside by the Court of Revision, the Learned M.M., without following the provisions of Cr.P.C, committed the case to the Court of Session for the second time.
14. Learned counsel argued that this case has already been committed to the Court of Sessions once. There is no provision in the Criminal Procedure Code to commit the case again and again to the Court of Sessions and the stage of complying with the precommittal proceedings by Pradeep Kumar Bansal State CR No. 65 of 2012 8/21 ID No. 02406R0293172012 the Learned Court of M.M. is already over. After the committal has been done, the precommittal proceedings can not be complied with later on. He submits that there is no such provision in the Criminal Procedure Code to invoke Section 207 after the case has been committed once and then to commit again the case (for the second time) to the Court of Sessions which is entirely against the law.
15. He submitted that Learned ASJ called for the IO/SHO for tracing the statements of witnesses u/s 161 Cr.P.C., but the police made it very clear that they are not in possession of submitting those statements. Knowing it fully well, Learned ASJ sent back the file to the court of MM for compliance of s. 207 CrPC, but the Learned MM failed to comply with the provisions of s. 207 CrPC and did not provide any of the deficient copies to the accused. There is no provision in Cr.P.C. for sending it back to the Court of MM. It is submitted that even as on today, the situation is exactly the same as it was before the Learned A.S.J. The deficient copies of any of the documents, whatsoever, have not been supplied to the accused by the Court of Learned M.M. The police have stated before the Courts of the Learned ASJ and the Learned MM also, again and again, that they cannot file any statement of witnesses u/s 161 Cr.P.C. as the police file is not traceable, any records were not available even in V.R.K./SouthEast District & South District , and the case record has been destroyed.
16. Sh. Jha submits that in response to the Court notices / summons issued on 10.01.2012 and 02.02.2012 Learned M.M., a report dated Pradeep Kumar Bansal State CR No. 65 of 2012 9/21 ID No. 02406R0293172012 24.02.2012 was submitted by the concerned Addl. Dy.C.P., South East District, New Delhi, informing the Court of initiation of a departmental disciplinary action / inquiry against the concerned IO. He submits that thereafter, the police never informed the Court about the said disciplinary action / inquiry's proceedings or the outcome and when it was subsequently inquired by the Court of present M.M., the ADDL. Dy.C.P. filed a report dated 15.10.2012 which showed that no such disciplinary action / inquiry had been initiated till 15.10.2012 (for eight months ) and thereafter, the report further stated that the concerned IO had proceeded on two months medical leave. He argued that it is further stated that the disciplinary action against the IO will be initiated by some other DCP who will submit the actiontaken report directly to the Court. It gave no reason or explanation as to why no such disciplinary action/ inquiry was initiated during the period from 24.02.2012 to 16.10.2012. Learned Counsel argued that in view of such a situation, the Learned M.M. should have waited for the outcome of the said disciplinary action/inquiry and the actiontaken report to be submitted to the Court and in case required, to approach the concerned highest police authorities if the disciplinary action was not initiated or delayed or if the outcome of the said disciplinary action warranted some action or intervention by the Learned Court. According to Learned Counsel no such things have been done by the Court of Learned M.M. in grave violation of the directions and specific orders of Court of Learned A.S.J., vide its order dated 05.02.2011. The Learned M.M., it seems was not very keen as it Pradeep Kumar Bansal State CR No. 65 of 2012 10/21 ID No. 02406R0293172012 did not make any inquiry from the police as to why the initiating of the said disciplinary action was delayed by eight months and not initiated during the period from 24.02.2012 to 16.10.2012.
17. Learned Counsel argued that Learned MM committed a violation of the order dated 05.02.2011 and the directions of Learned A.S.J., who clearly directed the Learned ACMM / Learned Magistrate to take steps for getting needful done through supervisory officer of the district and even the top most officer of the investigating agency. Learned M.M. called for a report from the supervisory officer of the district and failed to get help of the top most officer of the investigating agency as was directed by the Learned A.S.J. vide order dated 05.02.2011. It is submitted that the Learned M.M. failed to wait for the actiontaken report of the police as has been directed by it and wrongly Recommitted the case to Court of Sessions without complying with section 207 Cr.P.C.. IO of the case has stated categorically in his statement dated 10.01.2012 before the Court that he is not supplying the copied of statements under Section 161 of Cr.P.C. which he is not in a position to supply because the police file is not traceable since the year 2004. The IO further stated that even in the records of VRK no case diary was available. Police file is not traceable and the statement u/s 161 Cr P.C. cannot be supplied, concerned IO is facing a departmental enquiry. It is submitted that pending disposal the enquiry, the Learned MM was required to wait for the action taken report and outcome of the same enquiry. This Court finds no merit in the contention of Learned Counsel that the committing Pradeep Kumar Bansal State CR No. 65 of 2012 11/21 ID No. 02406R0293172012 Magistrate ought to have waited for action taken report or the outcome of departmental enquiry against the erring police officials. Already 18 years have lapsed and the trial has not yet begin. How long committing Magistrate can wait? Departmental enquiry against police official is a different matter and trial of accused has no connection with outcome of departmental enquiry.
18. It was next argued, that the Revisionist / Petitioner has been put to a grave and great disadvantage as the Court is trying to remove the defects in the policereport, rather than giving benefit to the Revisionist (accused). This is against the rules of Natural Justice and Fair and Just Trial. He argued that under the circumstances no Fair and Just trial is possible under the Rule of Law. Further , inspite of the best efforts of the Learned ASJ , Learned MM , the IO , the SHOs , Addl. DCP etc., the statements of witnesses u/s 161 Cr.P.C. are not on the record and cannot be filed, as the police file is not traceable, any records are not available even in V.R.K./SouthEast District & South District, and the case record has been destroyed. This Court does not agree with the argument of learned Counsel that fair and a just trial is not possible. To my mind, trial of the case should initiate at the earliest, without wasting more time and a fair and just trial is possible.
19. Next, point urged by Learned counsel was that Learned Addl.PP vide his statement dated 22.01.2005 before the Court of Learned Additional Sessions Judge stated that without the police file, he cannot argue the matter on charge. He submits that in view of the facts and circumstances, it is clear that the Charge Sheet as filed by the Police was deficient in the Pradeep Kumar Bansal State CR No. 65 of 2012 12/21 ID No. 02406R0293172012 beginning at the time of filing in the Court and still there are deficiencies which shows that the Charge Sheet is completely premature and mis conceived without complete set of necessary and mandatory documents as per the provisions of Section 173 Cr.P.C and if the documents are not there with the Police even after 16 years of the filing of the Charge Sheet, then it can be easily said that in the absence of the necessary and mandatory documents the provisions of Section 207 Cr.P.C. can not be complied with.
20. Sh. Jha Learned counsel urged that Ld MM, even after mentioning the specific submission of the Learned Counsel in the impugned order that the case is at the stage of supplying copies , did not take any step to supply the copies, but relied wrongly on the statement dated 10.01.2012 of the concerned IO, who in his statement stated that he was supplying copies, but failed to verify as to whether the copies were actually given to the accused or were actually placed on the record of the Court. Even otherwise, it is submitted , that the Learned MM, knowing very well, that the Section 207 Cr.P.C. can not be invoked now, resorted to bypass the situation, making a wrong claim of fact.
21. In the alternative , it is submitted that the Learned MM failed to understand and comply with the mandate of law as envisage in Section 207 Cr.P.C. and Learned MM failed to understand the order / directions dated 05/02/2011 of the Learned ASJ and thus erred in law. Learned MM failed to file/dismiss the police report which was filed before the area MM on 23/05/1995 without complying the requirements of s. 173 CrPC. Learned MM Pradeep Kumar Bansal State CR No. 65 of 2012 13/21 ID No. 02406R0293172012 failed to take any note/action of the point argued on behalf of the applicant by which it was brought before the notice of the Learned MM that the Learned MM is required to act strictly as per the mandate of law and any other method of compliance is necessarily forbidden.
22. Next, Learned Counsel argued that Learned MM failed to understand the requirements of Section 173 Cr.P.C. read with Section 190 Cr.P.C wherein it is the duty of the MM to scrutinize the documents filed by the police before issuing process u/s 204 Cr.P.C.. Learned MM exceeded its powers and it further failed to understand the mandate of law and not followed the provisions of law. Ld.MM override the directions of the Learned ASJ and not only reviewed the orders of its predecessors but also reviewed the order of Learned ASJ. Ld MM failed to appreciate and follow the law.
23. In support of his submissions that the rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." Learned counsel relied upon Nazir Ahmad Vs. King Emperor A.I.R. 1936 Privy Council 253 (2); State of Uttar Pradesh Vs. Singhara Singh and others A.I.R. 1964 Supreme Court 358 ; Shanti Dhawan Vs. Life Insurance Corporation of India 1997 IV AD (DELHI) 467
24. He submits that in Maneka Gandhi v. Union of India , Hon'ble Apex Court opened up a new dimension and laid down that the procedure Pradeep Kumar Bansal State CR No. 65 of 2012 14/21 ID No. 02406R0293172012 cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.
25. He submits that in another case Olga Tellis and others v. Bombay Municipal Corporation and others , it was observed that, "Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.
26. Learned counsel argued that it is not as per whims and fancies or some kind of compromise procedure which is not permitted by CrP. C. and the revisionist has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India. Even if any undertaking is given by the Learned APP that the prosecution will not produce any of the witnesses whose statements u/s 161 CrPC are not traceable, there is no provision under CrPC that such an undertaking can be treated as full compliance of Section 207 CrPC, or can byepass or circumvent or waive full compliance of Section 207 CrPC, which is a pre requisite for committal of the case to Sessions Court u/s 209 CrPC. Learned argued that the case can not be committed to Sessions Court. This Court is not persuaded by the arguments. Such an undertaking is not binding on the court Pradeep Kumar Bansal State CR No. 65 of 2012 15/21 ID No. 02406R0293172012 conducting the trial. The name of the alleged complainant is included in the "List of Witnesses" at S.No. 1 and no statement u/s 161 CrPC of this witness is required as there is signed complaints of the complainant on record.
27. In support of his submissions, Learned counsel placed reliance upon V.K. Sasikala vs State rep. By Superintendent Police Supreme Court Criminal Appeal no. 498 of 2012 1983 SC AIR 439; State of U.P. Versus Laxmi Brahman and anr. 2007 CRI. L.J. 1772; Angadh Rohidas Kadam and ors. . Versus State of Maharashtra and anr. 2011 [ 4 ] JCC 2529; Jahid Shaikh and ors. Versus State of Gujarat & Anr.1993 (2) BLJR 1269; Brahamdeo Paswan And Ors. vs State Of Bihar .
28. Learned counsel submits that statements of witnesses u/s 161 CrPC are not supplied for last 18 years . An Application dated 10.07.1995 was moved before the Court of Ld.MM and an application dated 13.01.2005 was moved before the Court of Learned A.S.J.; IO/ SHO/ DCP filed reports in Courts that the police file is not traceable, record not available in VRK, records destroyed and thus, he submits that trial cannot be held only on the basis of the complaint and the MLC as the accused party is the real complainant, but police suppressed and removed their complaints and arrayed them as accused. MLC of complainant has been filed alongwith the charge sheet has no details of the injury and injury shown is "Simple" has been changed to "Grievous" by cutting and that there is no Xray plate filed with the Charge Sheet. He submits that the name of the alleged complainant is included in the "List of Witnesses" at S.No. 1 but no statement u/s 161 CrPC Pradeep Kumar Bansal State CR No. 65 of 2012 16/21 ID No. 02406R0293172012 of this witness is on record .
29. Learned Counsel further argued that the complaint has no legal value as it has been admitted by the police officers that they registered this FIR u/s 308 IPC on the instructions of their senior officers, although the MLC had not been received by that time which shows that simple injury has been detected and made into grievous. He submits that Learned MM did not ask the police officers to reveal the names of these senior officers and ultimately accused moved an application dated 12.12.2002 for direction to the police officers to reveal these names . Learned Counsel submits that Learned MM did not take any action on his application, which is still pending. He submits that the complaint made by complainant has been contradicted by the complainant himself in his statement on oath made before the Court of Learned ADJ on 18.08.1998.
30. According to the revisionist/accused, they are real complainants and the complainant herein ( Raj Kumar Bansal ) and others are the real accused who tried to kill Vijay Kumar Bansal so that he cannot appear against them as a courtwitness in an ongoing case u/s 498A and 506 IPC between Raj Kumar Bansal and his second wife, so they tried to kill him. He argued that an application dated 26.06.1994 was filed under section 340 CrPC and other Sections and the replies of the police officers, second application dated 04.09.1996 and the replies of the police officers, then third application dated 06.03.1999 and the application u/s 156(3) CrPC dated 12.12.2002, are still pending. He submits that in his statement and cross the Raj Kumar Bansal Pradeep Kumar Bansal State CR No. 65 of 2012 17/21 ID No. 02406R0293172012 ( complainant) before the Ld SEM did not disclose any "grievous injury" about the incident dated 02.04.1994. It is submitted that Neeru Bansal, one of the accused was not involved in the fight as admitted by the I.O. in his report dated 19.08.1994 to the Court but still she was arrayed as an accused. He submits that IO deliberately removed all these papers from the chargesheet/challan, and the IO never produced the police file, Learned Counsel urged that now the entire police department is acting handin glove and police inquiry report is yet to be awaited. These submissions are on merits of the case and at this stage this, Court has not to go into the probative value of material on record or the disputed question of facts, can be which be gone into only during trial.
31. During arguments, at a later stage, Learned Addl. PP submitted that the impugned order is an interlocutory order, therefore, no revision against the order lies. Learned Counsel for the revisionist submits that impugned order is not an interlocutory order, as it affects the rights of the revisionist/accused to seek fair trial and in the absence of providing statement recorded u/s 161 Cr. P. C, accused would be prejudiced. He submits that since due procedure of law i.e. compliance of Section 207 Cr. P. C was not followed, therefore accused is adversely affected and that order of committing the case is final. I find substance in the argument of Learned Addl. PP that the order of the Magistrate to commit a Sessionstriable case to the Court of Sessions is not in the nature of a final order and it is nothing but an incidental or ancillary step in aid of trial and is clearly interlocutory in nature and is thus, not Pradeep Kumar Bansal State CR No. 65 of 2012 18/21 ID No. 02406R0293172012 amenable to challenge in a criminal revision in view of the Bar contained in Section 397 (2) of the Code.
32. I have given my anxious thoughts to the points raised even on merits. No doubt, as per Section 207 Cr. P. C - statement recorded u/s 161 (3) Cr. P. C, all the person, whom the prosecution proposes to examine as its witnesses, have to be supplied to the accused, apart from the police report and the FIR and other statements if any and any other relevant document or extract forwarded to the MM with the police report and as per Section 173 Cr. P. C - the challan concluding investigation has to be forwarded to the Magistrate and alongwith report, as per Section 173 (5) (b) Cr. P. C, statements recorded u/s 161 Cr. P. C of all the persons whom IO proposes to examine as witnesses, are to be filed, but the fact remains that a Court cannot shut its eyes to the fact that 'trial' is a quest for discovery of truth and ultimate objective of the Court is to do justice and Court has to delicately balance the conflicting interests of accused on the one hand and interest of victim as well as society at large, on the other hand. Therefore, the crucial question to be addressed is that if in a given case, like the instant case, where police file or casediary is not available or misplaced by the investigative agencies or prosecuting agencies and the statement of witnesses recorded under section 161 Cr. P. C, which were allegedly recorded, are lost or if no statement of witnesses under section 161 Cr. P. C are recorded, then what is the way out? Particularly, if the alleged offence committed by the accused is grave or heinous. Whether in that eventuality, a case or chargesheet filed by the police Pradeep Kumar Bansal State CR No. 65 of 2012 19/21 ID No. 02406R0293172012 should be rejected or filed, as desired by Learned counsel for revisionist, without committing the case to Court of Sessions for trial or whether Court should proceed further with the trial to take the case to its logical end in order to find the truth and to do justice.
33. In my considered view, the arguments advanced by Learned Counsel for revisionist merit rejection and the case cannot be rejected or filed but the case has to proceed further for trial. After all, why a victim or a complainant or society should suffer for the acts of negligence or lapse on the part of investigative agencies. In the present case, alleged incident occurred in 1994 i.e. more than 18 years ago and case was initially committed in the year 2004. Seven years thereafter, Learned ASJ (Trial Court) remanded it back. Now on 16.10.2012, Learned MM has again committed it. According to Learned committing Magistrate, copies filed alongwith the challan have been supplied and copies which are not filed alongwith challan cannot be supplied by the Committing Magistrate. In the instant case, admittedly there is a complaint on record as well as MLC. There is IO and a FIR as well as a charge sheet. Trial Court has to see whether this is enough to proceed further or not . To illustrate, in complaint cases, in which no police report is filed, there is no statement of witnesses recorded under section 161 Cr.P.C. It cannot be said that a complaint case cannot be committed by Learned MM, if it is a Sessions triable case. Court is not powerless to proceed further if investigative agency has misplaced statement recorded under section 161 Cr.P.C. Courts cannot be hyper technical in procedural matters and procedures are handmaid of Court Pradeep Kumar Bansal State CR No. 65 of 2012 20/21 ID No. 02406R0293172012 in the administration of Justice. To cut short the delay and in its endeavour to find the truth and to do speedy justice, there is nothing wrong if Trial Court itself supplies deficient copies, if any, at any stage of trial, if request to this effect is made by the accused or defence counsel. At the next stage of charge, Trial Court has to sift and weigh the material on record to see whether prima facie case is made out or not for framing of charge, even if, prosecutor makes a statement (as was made by Learned Addl., PP in this case on 22.01.2005), that he cannot argue without the statements recorded under section 161 Cr. P. C, court has to consider the material on record to find out whether a charge is made out or not and Court is not a mouthpiece of the IO or the prosecutor.
34. On considering the totality of facts and circumstances, it cannot be held that there is no compliance of Section 207 of the Code or that case could not have been again committed by Metropolitan Magistrate. In the result, this Court finds no infirmity, illegality or any procedural irregularity in the impugned order. No interference in the impugned order, therefore, is called for. Revision petition is dismissed. Revisionist is directed to appear before the Learned Committing Magistrate on 04.02.2013 for transmission of record to the Court of Sessions. TCR be sent back alongwith copy of this order. Revision file be consigned to Record Room.
announced in the (VINAY KUMAR KHANNA) open court on Additional Sessions Judge04 22nd January, 2013 (SouthEast) Saket/New Delhi Pradeep Kumar Bansal State CR No. 65 of 2012 21/21