Delhi District Court
State vs . Junifer Jamesh @ Shalin on 22 August, 2015
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE(East),
KARKARDOOMA COURTS, DELHI.
FIR No. : 790/2006
PS : Preet Vihar
Offence complained of : 384/506/328/120-B IPC
Date of commission of offence : 10.11.2006
Unique Case ID No. : 02402R0169582009
STATE Vs. Junifer Jamesh @ Shalin
(Declared PO vide order dated 01.04.2013)
(2) Shalini @ Shalu
D/o Sh. Samuel Seth Chand
Ekta Puram, 960 Civil Line Saket,
Near Police Line, Merrut (UP)
Local Add: Staff Quarters, ESI Hospital,
Merrut Road, Modi Nagar, Ghz. (UP) .............. Accused
Sh. Nand Kishore,
S/o Sh. Jaimal Rai
R/o 4, Bhagat Singh Road,
Rashid Market, Delhi ............. Complainant
Date of Institution : 11.09.2009
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 22.08.2015
Date of pronouncement : 22.08.2015
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 10.11.2006 to 01.12.2006 at
unknown time house at Gagan Vihar, Delhi falling within the jurisdiction of Police
Station Preet Vihar, accused Shalini @ Shalu and Junifer Jamesh @ Shalin
(declared PO vide order dated 01.04.2013) committed theft of Rs.18,000/- from the
possession of complainant and the accused Shalini @ Shalu along with accused
Junifer Jamesh @ Shalin put complainant in fear of injury in order to commit
extortion by making calls at his mobile number by giving threats to implicate
complainant in false rape case, if complainant did not pay cash amount. Thus,
FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 1 / 7
accused Junifer Jamesh @ Shalin and Shalini @ Shalu are alleged to have
committed offence punishable under section 379/385/506-I IPC.
FIR
On the basis of the said allegations and on the complaint of the
complainant Nand Kishore, an FIR bearing number 790/2006 under section
379/385/506-I IPC was lodged at Police Station Preet Vihar on 02.12.2006.
CHARGE After investigation, charge-sheet under section 173 Cr. P.C was filed on 11.09.2009.
The accused Shalini @ Shalu was present on bail to face trial and she 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 379/385/506-I IPC was framed against accused Shalini @ Shalu and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 21.08.2014.
JUDICIAL RESOLUTION The allegations against the accused Shalini @ Shalu are under section 379/385/506-I/34 of the IPC.
In order to prove the allegations of offence punishable under section 379/34 IPC, the prosecution need to prove the following essential ingredients :-
(1)That the accused had dishonestly taken the property/purse. (2)That the property was movable.
(3)That the property was taken out of the possession of another person/complainant.
(4)That it was taken without the consent of that person/ complainant.
(5)That there must be some moving of the property in order to accomplish the taking of it.
(6)That the said act was committed in furtherance of common intention of the accused persons.
The ingredients to prove the offence punishable under section 385/34 IPC are as follows :-
(1)Intentionally putting a person in fear of injury to himself or another or attempting to put any person in fear of any injury; (2)dishonestly inducing the person so put in fear to deliver to any person any property or valuable security.
(3)That the said acts were committed in furtherance of common intention of the accused persons FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 2 / 7 The ingredients to prove the offence punishable under section 506/34 IPC are as follows :-
(1)That threatening a person with any injury to his person, reputation or property.
(2)That threatening a person, or reputation of any one in whom that person is interested.
(3)That the threat must be with intent to cause alarm to that person,or (4)That the threat must be with intent to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat, or (5)That the threat must be with intent to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
(6)That the said acts were committed in furtherance of common intention of the accused persons.
In order to prove the above said allegations, the prosecution has cited 10 witnesses, of which the complainant is Nand Kishore, who has been cited as PW-1 in the list of witnesses.
PW-1 complainant Nand Kishore was summoned through IO, which was received back unserved with the report at complainant has expired and the same was supported by the death certificate of the complainant dated 22.02.2012 as per which complainant had expired on 03.02.2012 at Max Balaji Hospital and vide order dated 24.04.2015 IO of the case was summoned for clarification regarding death of complainant and same was also received with the report that IO has expired on 31.12.2013. After that SI Jaipal Singh was summoned and he also submitted that there is no other witness who could prove the allegation of theft, extrotion and criminal intimidation, after death of complainant. Thus, in view of the same, the court came to the conclusion that the complainant has expired and there is no other witness who could prove the allegation against the accused.
In absence of the testimony of complainant Nand Kishore, the prosecution can never prove the allegations of the complainant in the present case.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses and none of the remaining witnesses is an eye witness to the offence alleged or a circumstantial witness to the said offence.
In the present case, complainant Nand Kishore was the victim, who had expired and no other witness is competent enough to prove the guilt of the accused Shalini @ Shalu In absence of the testimony of complainant/victim Nand Kishore and FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 3 / 7 testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 379/385/506-I /34 IPC.
The case is at the stage of PE, however, in absence of the testimony of complainant/victim Nand Kishore, 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, the present case is a fit case where the court should exercise its power to close PE as after the death of complainant there is no witness who could prove the allegations and continuing with trial will not only be wastage of state money, rather, it will also be wastage of judicial time and harassment to the accused.
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 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 FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 4 / 7 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-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 FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 5 / 7 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 3057 (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.FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 6 / 7
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 in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power to close PE and dispense with statement of accused u/s 313 Cr. P.C. as nothing incriminating come on record against the accused to make the ends of justice meet.
Final Order In view of aforesaid discussion and the fact that complainant has expired and there is no other direct or circumstantial to prove the allegation, PE stands closed, SA is dispensed with and in absence of any incriminating evidence against accused Shalini @ Shalu, she is acquitted qua offence u/s 379/385/506- I/34 IPC.
As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 22.08.2015 (SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/22.08.2015 Certified that this judgment contains 7 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/22.08.2015 FIR No. 790/2006 State Vs. Junifer Jamesh & Shalini @ Shalu Page No. 7 / 7