Delhi District Court
Gurvinder Dodhi vs The State (Govt. Of Nct Of Delhi) on 18 January, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 364/2019
CNR No.: DLCT01-007999-2019
Gurvinder Dodhi
S/o Sh. Harvansh Singh
R/o D-9, Fateh Nagar, Hari Nagar
New Delhi
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Mohinder Singh Arora
D.K. Associates (Property Dealer Shop)
M-12-13, Uday Vihar, Part-III
on the Main Pradhan Market
Nilothi (also called as Chander Vihar)
Delhi-110041
3. Daljeet Kaur
W/o Sh. Mohinder Singh Arora
D.K. Associates (Property Dealer Shop)
M-12-13, Uday Vihar, Part-III
on the Main Pradhan Market
Nilothi (also called as Chander Vihar)
Delhi-110041
4. Sarv Deep Singh
S/o Sh. Jagdish Singh
R/o WZ-22, Ground Floor, Gali No. 2
Virender Nagar, near Jail Road
New Delhi-110058
5. Manmeet Shah Singh
S/o Sh. Manmohan Singh
R/o 3/154, Subhash Nagar
New Delhi-110027
..... Respondents
Date of Institution : 07.06.2019
Date of Arguments : 09.12.2022
Date of Judgment : 18.01.2023
JUDGMENT
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 1 of 26
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 27.04.2019 (In short 'the impugned order') in case No. 298132/2016 arising from FIR No. 102/2014 under Section 395 of 'The Indian Penal Code, 1860' (In short 'IPC') PS Sarai Rohilla whereby Ld. MM- 04, Central, Tis Hazari Courts, Delhi (In short 'the trial Court') accepted cancellation report and dismissed the protest petition. BRIEF FACTS:
2. The case of the prosecution, as unfolded in the statement of the petitioner, is that on 05.02.2014, the petitioner came to Tis Hazari Courts, Delhi to meet someone on his scooter bearing registration No. DL 10SB 5934. However, he could not meet the said person. The petitioner was returning to Fateh Nagar, Hari Nagar, Delhi on the said scooter. In the meanwhile, he received a call from his nephew, namely, Upender Singh on his mobile phone No. 9560184854 who asked him to meet him in Karol Bagh.
3. It is further case of the petitioner that on 05.02.2014 at about 09.00 p.m., when he was going to Karol Bagh via Sarai Rohilla Flyover, one WagonR Car No. DL 9C xxxx silver colour tried to hit him from side and the said car was stationed in front of his scooter. Five person alighted from the said car and three of them taken out guns and asked him whether his name is Gurvinder Singh. The petitioner replied that he is Gurvinder. Then one of them stated that you are fond of filing cases. The petitioner asked him as to which case he had filed, the said person said that you have filed cases in Dubai and you should withdraw the said cases.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 2 of 26
4. It is further case of the petitioner that the said person asked him to withdraw cases filed against the respondent No. 2 and 3 in Delhi and also asked him to deliver an amount of Rs. 2,00,00,000/- to the house of the respondent No. 4 and Maninder. Thereafter, one of the said persons went on the side of the road where one car was stationed. The petitioner saw that the respondent No. 5 was sitting on the driving seat and the respondent No. 3 was sitting on his side, and the respondent No. 2 was sitting on the rear seat. The respondent No. 3 is sister of the petitioner and the respondent No. 2 is his brother-in-law. The said person brought some documents from them and asked him to sign the said papers. The petitioner signed the said papers as they threatened to kill him, if he did not sign the said papers. The said person taken out an amount of Rs. 25,000/- from the pocket of the petitioner and also taken his wristwatch and gold bracelet alongwith his mobile containing Samsung SIM No. 9560184854. The said persons asked the petitioner to go straight to his house and threatened him not to inform the police. The said persons followed him slowly till the petitioner reached his house. The petitioner discussed the matter with his family in his house and thereafter, he made a call at 100.
5. On receipt of PCR call, DD No. 29A was lodged at PS Sarai Rohilla on 05.02.2014 at 10.08 p.m. and the said call was assigned to SI Yogender Kumar for appropriate action.
6. On receipt of DD No. 29A, SI Yogender Kumar alongwith Ct. Surender reached at Sarai Rohilla Flyover where he did not find anyone and mobile number of the petitioner was 'not reachable'.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 3 of 26
7. In the meanwhile, SI Yogender Kumar received information regarding lodging of DD No. 34A at 11.10 p.m. on 05.02.2014. SI Yogender Kumar alongwith Ct. Surender reached D-9, Fateh Nagar, Hari Nagar, Delhi where he met the petitioner and recorded his statement. He alongwith Ct. Surender and the complainant reached at Sarai Rohilla Flyover. He made endorsement for registration of case under Section 395 IPC.
8. On 06.02.2014 at 02.10 a.m., the case FIR No. 102/2014 under Section 395 IPC was registered at PS Sarai Rohilla and further investigation of the case was assigned to SI Yogender Kumar.
9. During investigation, SI Yogender Kumar prepared site plan of the place of incident at the instance of the petitioner. He recorded statements of the witnesses, particularly, the petitioner, Prabhjeet Singh @ Monu and Smt. Ravinder Kaur. He analysed Call Detail Records (CDR) of the robbed mobile number. On analysis, the location of robbed mobile phone was found at 07.37 p.m. on 05.02.2014 near 'Tagore Garden Metro Station' and from 08.20 p.m. to 08.27 p.m. at 'Tis Hazari Metro Station' and at 08.46 p.m. in 'Azad Market' and at 09.27 p.m. and 09.28 p.m. in 'Gurgaon'.
10. SI Yogender Kumar interrogated the respondent No. 2 and 3 who stated that on 05.02.2014 at 11.00 a.m., they alongwith their driver, namely, Prabhjeet Singh @ Monu went to their office 'D.K. Properties' at Plot No. M-12, main Road, Chander Vihar, near Sant Kabir School, Nilothi Extension, Delhi where they remained for the entire day and at about 07.45 p.m., they left their office in their vehicle and reached their home at 08.15 p.m. and remained in their house.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 4 of 26
11. On analysis, location of mobile No. 9810369459 pertaining to the respondent No. 2 was found at 08.28 p.m. in Hari Nagar and location of mobile No. 8800654416 pertaining to the respondent No. 3 was found at 09.06 p.m. in Hari Nagar. Location of mobile number 9716006999 pertaining to the respondent No. 5 was found at 07.58 p.m. in Vikas Puri and 09.27 p.m. in Prahlad Pur, Delhi. On the basis of location of mobile numbers, the respondent No. 2, 3 and 5 were not present at Sarai Rohilla Flyover.
12. During investigation, the respondent No. 2 handed over certain documents pertaining to antecedents of the petitioner which IO SI Yogender Kumar seized and sent to UAE Consulate for verification.
13. On 26.10.2013, a complaint was lodged against the petitioner in PS Hari Nagar vide Diary No. 3506.
14. Insp. Devender Singh Rathi conducted further investigation.
15. During investigation, the petitioner handed over details of 10 cases and complaint made to DCP (West) to Insp. Devender Singh Rathi.
16. On the basis of investigation, Insp. Devender Singh Rathi, Investigating Officer concluded that the respondent No. 3 is sister and the respondent No. 2 is brother-in-law of the petitioner. The petitioner has business disputes with Simardeep and Mandeep, sons of the respondent No. 2 and 3 and they have filed cases against each other. The petitioner is making false complaints against them that they did not return his amount. The complainant is deported from Iraq and UAE on criminal charges and there is a lookout notice issued by Interpol against him.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 5 of 26
17. Insp. Devender Singh Rathi further concluded that location of robbed mobile number 9560184854 was at 07.37 p.m. at 'Tagore Garden Metro Station' and from 08.20 p.m. to 08.27 p.m. at 'Tis Hazari Metro Station' and at 08.46 p.m. at 'Azad Market' and at 09.27 p.m. and 09.28 p.m. at 'Gurgaon'. He further stated that two calls were made from mobile No. 9560184854 to mobile No. 9716006999 pertaining to the respondent No. 5 and 9999956522 pertaining to the respondent No. 4 for 6 seconds and 11 seconds respectively to mobile No. 9560184854. Thereafter, the respondent No. 4 and 5 made calls to mobile No. 9560184854 as they had received missed calls from the said mobile number. However, no one responded to the calls made by the respondent No. 5 and 4. It appeared that missed calls were made to mobile number of the respondent No. 4 and 5 from mobile No. 9560184854 to create evidence.
18. The time of incident is 09.00 p.m. It is not possible to reach Gurgaon from Sarai Rohilla via Hari Nagar within 27 minutes as the said areas have heavy vehicular traffic.
19. Insp. Devender Singh Rathi concluded that the petitioner stated that the robbers followed him to his house Hari Nagar. He stated that commission of such an incident in a public view by known persons in their presence generate suspicion. The petitioner and the respondent No. 2 to 5 have disputes pertaining to transactions worth crore and in that view, robbery of an amount of Rs. 25,000/-, a bracelet and a mobile phone on road in dense areas and following of the petitioner till his house generate suspicion. There were several PCRs, Police Pickets and Police Stations on the way. The petitioner could inform the police. There were contradictions in the statement of the petitioner.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 6 of 26 FIRST CANCELLATION REPORT:
20. Insp. Devender Singh Rathi concluded that on the basis of investigation, facts and statements, he did not find that any offence was committed. He submitted cancellation report on 19.05.2014.
FIRST PROTEST PETITION:
21. On 15.04.2015, the petitioner filed protest petition.
ORDER DATED 15.04.2015:
22. The trial Court, vide order dated 15.04.2015, directed PS Sarai Rohilla to conduct further investigation, as under:
"It is submitted by the complainant that he has made the complaint to police station Sarai Rohilla on which the FIR got registered but the police is not investigating the allegations by the complainant in fair manner and instead of same, the police has started counter attacking the character and antecedents of the complainant or non-existing facts and even without going through actual facts which amounts to defaming the complainant in the eyes of court. It is further submitted that had the police investigated the case in just and fair manner then it was not impossible for the police to unearth the real truth and the commission of offence by the accused persons and also the manner of victimization of complainant at the hands of the accused persons. It is further submitted that the police has given altogether false report regarding issuance of red corner notice against the complainant and his deportation from Iraq and moreover these things are not the point of consideration and investigation in the present complaint/FIR.
It is further submitted by the complainant that the police was assigned with the job of conducting the fair investigation but the investigating agencies itself left the lot of lacuna and latches in the investigation in order to shield the real accused persons. The police has not interrogated Sarvdeep Singh who is the real mastermind of this robbery and abduction.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 7 of 26 The police has also not verified the out going calls records made from snatched mobile phone of the complainant. It is further submitted that the police has also deliberately concealed the facts regarding non-confrontation / interrogation of Sarvdeep Singh, snatching of mobile, out going calls from snatched phone, his own tower locations and his presence at the spot from where he was masterminding the entire abduction and also by not matching the mobile phone tower location of complainant and accused - Sarvdeep Singh at same time.
It is further submitted that even after getting the incriminating evidence against the accused Sarvdeep Singh which are itself available on record, the police has not interrogated or enquired anything from accused Sarvdeep Singh. It is further submitted by the complainant that the investigating agency also failed to get the explanation from accused - Manmeet Singh regarding its contradictory reports of call detail where he was stated to be present at different locations within very short span of time i.e. at Vikaspuri and Prahlad Pur. The complainant has given special reference that accused Manmeet Singh has himself stated in his statement that he was present at Subhash Nagar at his home at the time of commission of offence which do not find in consonance to mobile phone tower location of Manmeet Singh.
In view of above submissions by the complainant, the SHO concerned is directed to further investigate the matter on the points stated by the complainant in his protest petition and also given during arguments in the court. SHO concerned is directed to expedite the investigation and file the report on the next date of hearing.
Complainant is also directed to provide all the necessary assistance and help to IO for expediting the investigation."
SECOND CANCELLATION REPORT:
23. On 07.12.2015, IO Insp. Devender Singh Rathi filed second cancellation report. According to him, location of mobile No. 9560184854 at 09.27 p.m. and 09.28 p.m. was at 'Subhash Nagar Metro Station'.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 8 of 26
24. During further investigation, IO Insp. Devender Singh Rathi examined nephew of the petitioner, namely, Upender Singh and concluded that location of mobile No. 9810369459 pertaining to the respondent No. 2 at 08.17 p.m., 08.21 p.m. and 08.28 p.m. was in 'Hari Nagar', location of mobile No. 8800654416 pertaining to the respondent No. 3 at 08.17 p.m. and 09.06 p.m. was in 'Hari Nagar' and location of mobile No. 9716006999 pertaining to the respondent No. 5 at 07.58 p.m. and 09.27 p.m. was in 'Vikas Puri' and 'Subhash Nagar' respectively.
25. During further investigation, IO Insp. Devender Singh Rathi recorded statements of Inderpal Singh, Rakesh Sehgal, Prashant Jain and Gurmeet Singh. He interrogated Sarv Deep Singh and Prabhjeet Singh @ Monu.
26. IO Insp. Devender Singh Rathi concluded that location of user of mobile No. 9560184854 was near 'Metro Stations'. The location of the said mobile phone was not at 'Sarai Rohilla'. The time of incident was 09.00 p.m. and robbed mobile phone was in the location of 'Subhash Nagar Metro Station' at 09.27 p.m. and it is not possible that the said mobile phone could reach to Subhash Nagar via Hari Nagar from Sarai Rohilla within this time as the said areas have high vehicular traffic at that time. He concluded that allegations made by the petitioner did not appear sustainable.
SECOND PROTEST PETITION:
27. On 22.01.2016, the petitioner filed second protest petition.
ORDER DATED 06.12.2016:
28. The trial Court, vide order dated 06.12.2016, directed further investigation of the case.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 9 of 26
29. The order dated 06.12.2016 is as under:
"As per the reply of Inspector Devender Rathi, the involvement of the WagonR silver colour bearing No. DL9C could not be conducted earlier due to incomplete number previously and same can be investigated now after pointing out by the court. It is further submitted that suspects are also required to be interrogated again on the points raised by the court. Even in the reply of SHO it is mentioned that besides these aspects of investigation, polygraph of the suspects as well as complainant is required in the case.
At this stage, complainant has submitted that court shall not order further investigation as it will further delay the present case. He has submitted that already two years have elapsed and police has made all the efforts to save the accused persons and rather has put the complainant in the dock. He has submitted that he has no faith in the police investigation and court may take cognizance against the accused persons on the basis of investigation report itself as there are number of factors which points towards the guilt of the accused persons. He has submitted that if court orders further investigation the matter shall be further delayed for next two years.
I have considered the submissions of both parties. There are certain points left in the investigation and court thinks it fit further investigation shall be done. However, considering the apprehension of the complainant that matter shall be delayed, further investigation shall be done in a time bound manner and preferably within next three months. Accordingly, let supplementary report be filed in regard to the further investigation qua the vehicle, qua the interrogation of the accused/polygraph test of the accused persons and also of the complainant, if so required."
THIRD CANCELLATION REPORT:
30. On 16.01.2019, Insp. Narender Singh filed third cancellation report. He stated that SI Sachin Yadav made enquiry regarding silver colour WagonR car bearing No. DL9C xxxx.
However, none of the registered owners of the said WagonR cars had no connection with the respondents.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 10 of 26
31. During investigation, the respondent No. 4 and 5 consented to polygraph test. The polygraph test 'did not reveal any deceptive response'. The petitioner and the respondent No. 2 and 3 refused to undergo polygraph test.
32. Insp. Narender Singh concluded that on analysis of tower locations of mobile numbers of the petitioner and the respondent No. 2 to 5, it did not reveal that they were present at Sarai Rohilla Flyover. The statements of the public witnesses and CCTV camera installed at the office of the respondent No. 2 and 3 revealed that they do not have any involvement in this case. THIRD PROTEST PETITION:
33. On 22.02.2019, the petitioner filed third protest petition.
IMPUGNED ORDER DATED 27.04.2019:
34. The trial Court, vide the impugned order dated 27.04.2019, accepted the cancellation report and dismissed the protest petition, as under:
"After analysing all the material collected by the IO discussed in the foregoing paras, there is no sufficient material to proceed against the accused. The investigation and further investigations have been carried out for about 5 years by several IOs but they have unanimously found no case against the suspects. Rather, the last IO SI Narender has concluded that not given the consent by the complainant to polygraph test has gone against the complainant as adverse inference can be drawn. This court is of the opinion that no useful purpose shall be served by ordering any further investigation. Police has already examined the case from all the angles, subjected the suspects to intense interrogation, used scientific technique to dig-deep into the minds of the suspects, taken the help of CDRs to know the locations of the suspects, examined the CCTV clips besides examining the witnesses orally. However, they have failed to find any evidence and material to connect the suspects with the crime or find the version of the complainant plausible.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 11 of 26 This court has applied independent mind to the material collected by the IO but has reached the similar conclusions i.e. there is no sufficient material to proceed further with the case. No ground to take cognizance is made out.
To conclude there is nothing on record to compel this court either to order further investigation or not to agree with the conclusions of the IO. Accordingly, the present final report is accepted and protest petition stands dismissed."
GROUNDS OF REVISION:
35. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition on the grounds, as under:
(a) The trial Court did not consider that Investigating Officer heavily relied upon call details of the respondent No. 2 to 5 without verifying actual facts;
(b) The trial Court did not appreciate that Investigating Officer did not conduct custodial interrogation of the respondent No. 2 to 5;
(c) The trial Court did not consider that the respondent No. 3 made contradictory statements regarding her presence in her house. In first statement, the respondent No. 3 stated that she alongwith the respondent No. 2 and the driver, namely, Prabhjeet Singh @ Monu proceeded from her office on 05.02.2014 at 07.45 p.m. and reached her house at 08.20 p.m. and at 09.00 p.m., she received a call from her son, namely, Mandeep from UAE and thereafter, they had dinner and slept. On the contrary, the respondent No. 3, in her statement dated 11.02.2014, stated that she alongwith her husband reached her house at 09.00 p.m. and thereafter, they remained in their house. Surprisingly, the respondent No. 3, in her first statement, stated that the respondent No. 5 was also present in their office till 07.45 p.m. and they reached their house at 09.00 p.m. In her second statement recorded on 11.02.2014, she made no mention of the respondent No. 5;
(d) The trial Court did not consider that the respondent No. 2, in his first statement, stated that he alongwith the respondent No. 3 and driver, namely, Prabhjeet Singh @ Monu proceeded from their office Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 12 of 26 on 05.02.2014 at 07.45 p.m. and they reached their house at 08.30 p.m. and thereafter, he received a call from his son from UAE and thereafter, they had dinner and he remained in his house. On the contrary, in his statement dated 11.02.2014, he stated that he alongwith the respondent No. 3 reached their house at 09.00 p.m. on 05.02.2014;
(e) The trial Court did not consider that in his first statement, the respondent No. 5 stated that on 05.02.2014, he went to office of the respondent No. 2 and he left the said office with the respondent No. 2 and 3 at 07.45 p.m. in his car and reached his house in Subhash Nagar at 08.45 p.m. and thereafter, he remained in his house. However, according to Call Detail Records, location of mobile number of the respondent No. 5 was at 'Vikas Puri' on 05.02.2014 at 07.55 p.m. and at 09.27 p.m. at 'Prahlad Pur';
(f) The trial Court did not consider that Investigating Officers did not conduct a fair investigation and they conducted investigation just to shield the persons named in FIR;
(g) The trial Court did not consider that location of mobile No. 9560184854 of the petitioner was on 05.02.2014 at about 09.27 p.m. and 09.28 p.m. at 'Gurgaon' and two calls were made from the said mobile number to mobile No. 9716006999 of the respondent No. 5 and mobile No. 9999956522 of the respondent No. 4 for a duration of 6 and 11 seconds respectively;
(h) The trial Court did not consider that the robbers snatched mobile phone of the petitioner and made call from mobile phone of the petitioner to confirm that they had executed the work;
(i) The trial Court did not consider that location of mobile number of the petitioner was in 'Sarai Rohilla' at the time of incident;
(j) The trial Court did not consider that Call Detail Record of mobile number of the respondent No. 4 confirmed his presence in 'Gurgaon' at the time of receipt of call from robbed mobile phone of the petitioner and he had an active interest in the robbery as the robbers threatened the petitioner to pay an amount of Rs. 2,00,00,000/- to the respondent No. 4 within three days;
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 13 of 26
(k) The trial Court did not consider that Prabhjeet Singh @ Monu stated that he had left the respondent No. 2 and 3 in their house on 05.02.2014 at 08.30 p.m. whereas the respondent No. 3 stated that they reached their house on 05.02.2014 at 09.00 p.m. On the contrary, in his second statement, Prabhjeet Singh @ Monu stated that he reached at the house of the respondent No. 2 and 3 at 09.00 p.m.;
(l) The trial Court did not consider that Gurmeet Singh stated that on 05.02.2014 at about 09.00 to 09.15 p.m., he met the respondent No. 2 and 3 near their house while they were taking a walk which is contrary to the statements made by the respondent No. 2 and 3 as well as Prabhjeet Singh @ Monu;
(m) The trial Court did not consider that the respondent No. 2 and 3, in their statements dated 11.02.2014 and driver, namely, Prabhjeet Singh @ Monu have not stated that the respondent No. 5 was also present in the office of the respondent No. 2;
(n) The trial Court did not consider that Inderpal Singh, in his statement recorded on 22.10.2015, stated that on 05.02.2014, he visited the respondent No. 5 in his house at 09.00 p.m. to 09.15 p.m. where they had conversation for 30 to 40 minutes and thereafter, he went to his house. However, Investigating Officer did not verify his location from his Call Detail Record. Moreover, the respondent No. 5 has not stated that on 05.02.2014 at about 09.00 to 09.15 p.m., Inderpal Singh had visited him in his house. On the contrary, location of mobile phone of the respondent No. 5 on 05.02.2014 at 09.27 p.m. was at 'Prahlad Pur';
(o) The trial Court did not consider that Rakesh Sehgal, in his statement dated 22.10.2015, stated that on 05.02.2014 at about 07.45 p.m., he alongwith the respondent No. 2 and 3 and their driver, namely, Prabhjeet Singh @ Monu left their office in their car who left him in his house at 'Vikas Puri'. On the contrary, the respondent No. 2 and 3 and their driver, namely, Prabhjeet Singh @ Monu have not stated that Rakesh Sehgal accompanied them on 05.02.2014 and they dropped him in his house at 'Vikas Puri'. Investigating Officer did not verify his location from his Call Detail Record;
(p) The trial Court did not consider that Smt. Ravinder Kaur filed a petition under Section 125 Cr.P.C. against the petitioner. Her statement has no relevance to this case. She had no reason to make allegations against character of the petitioner;
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 14 of 26
(q) The issue whether locations of mobile numbers of the respondent No. 2 to 5 was correct or they were carrying their mobile numbers with them at the time of incident are matters of trial. Investigating Officer relied only upon Call Detail Records and false witnesses;
(r) The witnesses, namely, Rakesh Sehgal, Inderpal Singh and Gurmeet Singh were examined subsequently for second cancellation report to give false evidence in the favour of the respondent No. 2 to 5;
(s) The trial Court did not consider that the respondent No. 2 to 5 are accused of committing an offence under Section 395 IPC which is cognizable, non-compoundable, non-bailable and punishable with imprisonment for life or imprisonment for a term which may extend to 10 years and fine and triable by Court of Sessions;
(t) The trial Court did not consider that Investigating Officer has not given any explanation as to why he had not arrested the respondent No. 2 to 5 accused of committing an offence under Section 395 IPC; (u) The trial Court erred in reaching to conclusion that there is no sufficient material to proceed against the respondent No. 2 to 5;
(v) The trial Court did not consider that polygraph test conducted after 5 years would be of no use; (w) The trial Court did not consider that the respondent No. 2 and 3 did not consent for polygraph test;
(x) The trial Court did not consider that orders passed in this case particularly, order dated 26.09.2016, 06.12.2016 and 01.04.2017 that the investigation was not conducted properly;
(y) The trial Court did not consider that Investigating Officer withheld location of mobile No. 9560184854 from 08.40 to 09.20 p.m. on 05.02.2014.
(z) The trial Court did not consider that the investigation was neither fair nor impartial; (za) The trial Court passed the impugned order without appreciating material on record; and (zb) The trial Court passed the impugned order on the basis of conjectures and surmises without applying its judicial mind.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 15 of 26 APPEARANCE:
36. I have heard the petitioner and Mr. Satish Tamta, Ld. Senior Advocate with Mr. Vikramaditya Bhaskar, Advocate for the respondent No. 2 to 5 and examined trial Court record. CONTENTIONS OF THE PETITIONER:
37. The petitioner contended that the trial Court did not appreciate material facts of the case. He contended that the entire investigation revolved around the fact whether the petitioner was present at Sarai Rohilla Flyover i.e. the place of incident or not. He contended that the trial Court did not mention in the impugned order that the petitioner was not present at the place of incident. He contended that in status report dated 19.02.2014, it was categorically stated that the petitioner was present at the place of incident and location of robbed mobile phone was at the place of incident. He contended that the petitioner made a PCR call without any delay and he was thoroughly examined and thereafter, the case FIR was registered.
He contended that Investigating Officer did preliminary enquiry from the respondent No. 2, 3 and 5 before registration of FIR. He contended that Investigating Officer registered FIR as he was prima facie satisfied that an offence was committed. He contended that first cancellation report stated that the petitioner was present at the place of incident. However, third cancellation report stated that neither the petitioner nor the respondent No. 2, 3 and 5 were present at the place of incident. He contended that Investigating Officer neither investigated nor mentioned as to where the petitioner was at 09.00 p.m. on 05.02.2014. He contended that he narrated the entire incident and named the respondent No. 2, 3 and 5 in his statement, contained in FIR.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 16 of 26
38. The petitioner contended that Investigating Officer neither arrested the respondent No. 2 to 5 nor conducted their custodial interrogation. He contended that the public witnesses were planted. He contended that there is no explanation as to non-examination of the said public witnesses at the first instance. He contended that Investigating Officers fabricated evidence by examining the said public witnesses as the trial Court directed them to conduct further investigation. He contended that statements of the said public witnesses, namely, Inderpal Singh, Rakesh Sehgal and Gurmeet Singh are contrary to the statements of the respondent No. 2 and 3 and their driver, namely, Prabhjeet Singh @ Monu. He referred statements of the respondent No. 2, 3 and 5 as well as statements of Inderpal Singh, Rakesh Sehgal and Gurmeet Singh to highlight contradictions in their statements. He contended that the trial Court did not consider the points raised in his protest petition. He contended that Investigating Officer has not seized DVR pertaining to CCTV footage installed in the office of the respondent No. 2 and 3. He contended that the trial Court did not ask Investigating Officer to preserve DVR of the said CCTV footage. He contended that the entire investigation was biased, unfair and tainted. He contended that the petitioner refused polygraph test as the incident had taken place on 05.02.2014 and the polygraph test was sought to be conducted in 2018 and such polygraph test has no relevance. He contended that he apprehended distrust in police and therefore, he refused to polygraph test. He contended that the orders dated 15.04.2015, 03.02.2016, 26.08.2016, 26.09.2016 and 04.11.2016 passed by the trial Court highlight that investigation was not fair.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 17 of 26
39. The petitioner contended that the said orders contain observation of the trial Court regarding poor quality of investigation conducted in this case. He contended that Investigating Officers conducted the investigation to establish that no such incident of dacoity had taken place at 09.00 p.m. at Sarai Rohilla Flyover and in that pursuit, they filed three cancellation reports. He contended that all the cancellation reports are contradictory to each other. He contended that in first cancellation report, Investigating Officer did not reveal location of the complainant or his mobile phone at 09.00 p.m. on 05.02.2014. He contended that in second cancellation report, Investigating Officer shown locations of the complainant and the mobile phone but he did not investigate location of the complainant and his mobile phone at 09.00 p.m. on 05.02.2014. He contended that third cancellation report, Investigating Officer stated that neither the complainant nor his mobile phone was present at Sarai Rohilla Flyover at 09.00 p.m. on 05.02.2014. He contended that Investigating Officer, in his status report dated 19.02.2014 (placed at page No. 101, file No. 2), stated that 'call details of the robbed mobile phone were examined and location of mobile was Sarai Rohilla at 09.00 p.m.'. He contended that the respondent No. 5, in his statement, stated that he was present in his house in Subhash Nagar at 08.45 p.m. on 05.02.2014 whereas Investigating Officer stated that location of his mobile phone was from 07.58 p.m. to 09.27 p.m. at 'Prahlad Pur' and 'Vikas Puri'. He contended that 1st cancellation report stated that the respondent No. 2 and 3 were in their house in Hari Nagar at 08.15 p.m. on 05.02.2014 whereas in their statements (page No. 547, file No.
3), they stated that they reached their house at 09.00 p.m. Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 18 of 26
40. The petitioner contended that the respondent No. 2 and 3 left their office at 07.45 p.m. on 05.02.2014 and they had around 1 hour and 15 minutes to reach place of incident. He contended that it hardly takes 30 minutes to reach place of incident from office of the respondent No. 2 and 3. He contended that Rakesh Sehgal stated that on 05.02.2014 at 07.45 p.m., the respondent No. 2 and 3 dropped him in Vikas Puri while on their way from their office to Hari Nagar whereas the respondent No. 2 and 3, and Prabhjeet Singh @ Monu have not stated anything in this regard. He contended that Gurmeet Singh stated that he had seen the respondent No. 2 and 3 walking near Gurudwara at 09.15 p.m. on 05.02.2014 whereas the respondent No. 2 and 3 stated that they reached their house in Hari Nagar at 08.15 p.m. on 05.02.2014 and thereafter, they remained in their house. He contended that statement of Inderpal Singh regarding presence of the respondent No. 5 in his house in Subhash Nagar at 09.00 p.m. is contradictory to location of mobile phone of the respondent No. 5. He contended that Investigating Officer has not added Section 387, 506, 120B and 34 IPC. He prayed for setting aside of the impugned order. He prayed for summoning of the respondent No. 2 to 5 to face trial.
CONTENTIONS OF LD. SENIOR COUNSEL FOR THE RESPONDENT NO. 2 TO 5:
41. Mr. Satish Tamta, Ld. Senior Advocate for the respondent No. 2 to 5 contended that the petitioner is related to the respondent No. 2 and 3. He contended that the respondent No. 3 is sister of the petitioner and the respondent No. 2 is his brother-in-law. He contended that the respondent No. 4 is son-in-
law of the respondent No. 2 and 3.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 19 of 26
42. Mr. Satish Tamta, Ld. Senior Advocate for the respondent No. 2 to 5 contended that the petitioner has business disputes with his nephews, namely, Simardeep Singh and Mandeep in UAE. He contended that the petitioner is alleging that they usurped his properties and business. He contended that investigating agencies thoroughly investigated the case and filed three cancellation reports. He contended that investigation of the case was conducted to the satisfaction of the petitioner. However, the petitioner is still dissatisfied. He contended that Investigating Officer recommended prosecution of the petitioner under Section 182 IPC. He contended that the petitioner did not consent for polygraph test whereas the respondent No. 4 and 5 were subjected to polygraph test. He contended that there is no incriminating evidence against the respondent No. 2 to 5. He relied on judgment in Kishan Lal vs. Dharmendra Bafna and Another, (2009) 7 SCC 685. He contended that there is no material warranting summoning of the respondent No. 2 to 5. He contended that there is no merit in the criminal revision petition. ANALYSIS OF THE IMPUGNED ORDER:
43. The trial Court passed the impugned order on the grounds, as under:
(a) There is no sufficient material to proceed against the respondent No. 2 to 5;
(b) Investigating Officers investigated the case since 5 years and they have not found any evidence and material against the respondent No. 2 to 5;
(c) There is no need of further investigation of the case; and
(d) Investigating Officers examined the case from all angles, subjected the respondent No. 2 to 5 to intense interrogation, conducted polygraph test of the respondent No. 4 and 5, analysed Call Detail Records and examined CCTV camera besides public witnesses.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 20 of 26 ANALYSIS AND DISCUSSION:
44. The petitioner is brother of the respondent No. 3 and brother-in-law of the respondent No. 2. The respondent No. 4 is son-in-law of the respondent No. 2 and 3. Therefore, the petitioner and the respondent No. 2 to 4 are close relatives.
45. The petitioner has already filed 10 cases against Simardeep Singh and Mandeep Singh in UAE, details whereof were provided by him vide seizure memo dated 06.03.2014 (placed at page No. 117, file No. 2).
46. Therefore, it is evident that the petitioner has legal disputes with Simardeep Singh and Mandeep Singh, sons of the respondent No. 2 and 3.
47. The case of the petitioner is that on 05.02.2014 at 09.00 p.m., a WagonR car bearing registration No. DL9C xxxx silver colour wrongfully restrained him on Sarai Rohilla Flyover while he was going to Karol Bagh on his scooter No. DL 10SB 5934 and five persons alighted from the said car and one of them taken out a gun and confirmed his identity and threatened him to withdraw cases instituted by him in Dubai and Delhi and also obtained his signatures on certain papers and threatened him to deliver an amount of Rs. 2,00,00,000/- to the respondent No. 4 and Maninder. According to the petitioner, the respondent No. 2 to 4 were sitting in a car stationed on the side of the road and handed over certain papers to one of the persons who intercepted him. It is further case of the petitioner that the said persons robbed an amount of Rs. 25,000/- from his pocket, a wristwatch, a gold bracelet and mobile phone containing SIM No. 9560184854. As instructed, he went straight to his house and the said persons followed him till he reached his house.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 21 of 26
48. The place of incident is Sarai Rohilla Flyover.
The house of the petitioner is situated in Fateh Nagar, Hari Nagar, Delhi. There is considerable distance between the place of incident and house of the petitioner. At the stated time of incident, there is heavy vehicular traffic on the road leading to Hari Nagar from Sarai Rohilla. There are several traffic intersections. The petitioner was moving on scooter. The robbers were slowly following him in car. It is beyond comprehension that the petitioner had no opportunity to make complaint to any PCR or any police station or to dodge the robbers.
49. According to the petitioner, the robbers robbed his mobile phone containing SIM No. 9560184854. However, DD No. 29A lodged at 10.08 p.m. in PS Sarai Rohilla pertaining to incident of dacoity at Sarai Rohilla Flyover states that the said PCR call was made from mobile No. 9560184854. It shows that mobile No. 9560184854 was not robbed by the robbers. The petitioner used mobile No. 9560184854 for making PCR call at 10.08 p.m. on 05.02.2014 whereas according to him, the said mobile phone containing the said mobile number was robbed by the robbers at 09.00 p.m. on 05.02.2014.
50. In his PCR call vide DD No. 29A, the petitioner made mention of one bike and scooter besides WagonR car bearing registration No. DL9C xxxx. However, he did not make mention of any scooter or motorcycle in his statement made to SI Yogender Kumar, as contained in FIR.
51. According to Call Detail Record, location of mobile No. 9560184854 was at Tis Hazari Metro Station at 08.20 p.m., 08.26 p.m. and 08.27 p.m. and at Azad Market at 08.46 p.m. and at Subhash Nagar Metro at 09.27 p.m. and 09.28 p.m. Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 22 of 26
52. The person carrying robbed mobile phone cannot reach from Sarai Rohilla at 09.00 p.m. to Subhash Nagar Metro Station at 09.27 p.m. through any vehicle in view of the distance and heavy vehicular traffic. It means the person who was carrying the said mobile phone containing SIM No. 9560184854 was riding Delhi Metro. Moreover, location of robbed mobile phone was within reach of towers located near Metro Stations since Tis Hazari Metro Station to Subhash Nagar Metro Station. Therefore, the allegations of the petitioner that the robbers robbed his mobile phone do not inspire confidence.
53. The respondent No. 2 and 3 left their office situated at A-43, Chander Vihar, Nilothi Extension, Delhi, which is located at a distance of about 7.4 kilometer from Hari Nagar, in West Delhi, at 07.45 p.m. on 05.02.2014. From their Call Detail Records, it has come on record that location of the respondent No. 2 was in Hari Nagar at 08.17 p.m., 08.21 p.m. and 08.28 p.m. and location of the respondent No. 3 was in Hari Nagar at 08.17 p.m. and 09.06 p.m. It is nearly impossible that the respondent No. 2 and 3 could reach to Hari Nagar from Sarai Rohilla at 09.06 p.m. after committing offence of dacoity. On analysis of Call Detail Record of the respondent No. 5, his location was in Subhash Nagar at 09.27 p.m. on 05.02.2014. Therefore, it is not possible that he could reach to Subhash Nagar at 09.27 p.m. from Sarai Rohilla at 09.00 p.m. on 05.02.2014.
54. On analysis of Call Detail Record, it emerged that on 05.02.2014 at 09.27 p.m. and 09.28 p.m., two calls were made from mobile No. 9560184854 to mobile No. 9716006999 pertaining to the respondent No. 5 and mobile No. 9999956522 pertaining to the respondent No. 4 for 6 seconds and 11 seconds.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 23 of 26
55. The said missed calls cannot be considered as incriminating evidence as the robbers had no reason to confirm execution of offence as the respondent No. 2, 3 and 5 were allegedly present at the place of incident at the time of offence.
56. Besides minor discrepancies pertaining to the presence or time of meeting, there is no material infirmity in the statements of the public witnesses, namely, Inderpal Singh, Rakesh Sehgal and Gurmeet Singh. They have consistently stated that the respondent No. 2 and 3 were present in Hari Nagar and Subhash Nagar between 09.00 p.m. to 09.15 p.m.
57. There is no material pertaining to commission of offence of dacoity or complicity of the respondent No. 2 to 5.
58. There is no material that Investigating Officers did not conduct the investigation fairly or properly.
59. In Kishan Lal vs. Dharmendra Bafna and Another (supra), Hon'ble Supreme Court of India held, as under:
"16..... Apart from the aforementioned grounds, the learned Magistrate or the superior Courts can direct further investigation, if the investigation is found to be tainted and / or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary."
60. There is no material that Investigating Officers were biased towards the petitioner.
61. As regards contention for summoning of the respondent No. 2 to 5, it can be stated that the respondent No. 2 to 5 cannot be summoned on mere asking. There must be a prima facie material disclosing commission of offence of dacoity and complicity of the respondent No. 2 to 5 therein. In absence thereof, the respondent No. 2 to 5 cannot be summoned.
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 24 of 26
62. In Deepak Gaba and Others vs. State of Uttar Pradesh and Another, 2023 SCC OnLine SC 3, Hon'ble Supreme Court of India held, as under:
"22.....Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times."
CONCLUSION:
63. Therefore, this Court does not find any manifest error of law, fact or procedure in the impugned order. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of judgment alongwith trial Court record be sent to trial Court. The criminal revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2023.01.18 17:00:50 +0530 Announced in the open Court SANJAY SHARMA-II on this 18th January, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 25 of 26 Gurvinder Dodhi vs. State & Ors.
CNR No.: DLCT01-007999-2019
Crl. Revision No. 364/2019
18.01.2023
Present : The petitioner in person.
Mr. Vikramaditya Bhaskar, Advocate for the respondent No. 2 to 5 (through Video Conferencing).
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2023.01.18
17:01:03 +0530
Sanjay Sharma-II
ASJ-03, Central District
Tis Hazari Courts, Delhi
NK 18.01.2023
Crl. Rev. No. 364/2019 Gurvinder Dodhi vs. State & Ors. Page No. 26 of 26