Delhi District Court
Ram Kumar vs The State on 20 November, 2017
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
C. A. No. 172/17
In the matter of:
Ram Kumar
S/o Sh. Ram Jeet Singh,
R/o B92, PhaseII,
Colony Aya Nagar,
New Delhi 110047
....Appellant.
Versus
The State
(Govt. of NCT of Delhi)
.....Respondent.
Date of Institution : 05.08.2017
Date of Arguments : 20.11.2017
Date of Decision : 20.11.2017
JUDGMENT
1. Vide this judgment, I shall appeal filed by the appellant against judgment dated 17.07.2017, vide which appellant was convicted for offence punishable u/s. 223 IPC in case FIR No. 40/2005, PS Tilak CA No. 172/17 1 of 20 07.01.2017 Marg and against order on sentence dated 17.07..2017, vide which appellant has been sentenced to undergo 6 months simple imprisonment.
2. Aggrieved by the judgment dated 17.07.2017 and order on sentence dated 17.07.2017, the appellant has filed the present appeal on the grounds that the judgment is contrary to the facts and law. Ld. Trial Court erred in passing the judgment. Ld. Trial Court at the time of taking cognizance did not apply its mind. Ld. MM has taken cognizance of the offence as the appellant was chargesheeted only u/s. 223 IPC and same is noncognizable. Ld. MM has not applied his judicious mind at the time of framing of charge and entire investigation has been conducted by the police without taking prior approval of Ld. MM which is utter violation of Section 155(2) of Cr.P.C. At the time of filing chargesheet the prosecution was fully aware that appellant was being chargesheeted u/s. 223 IPC which is noncognizable offece and appellant was not chargesheeted for the offence u/s. 224 IPC. Entire investigation was done without prior permission from the Ld. MM. It is also mentioned that investigation of noncognizable offence CA No. 172/17 2 of 20 07.01.2017 is not permissible without permission from the Magistrate. In the present case no permission was taken by the police from the Magistrate to investigate the offence u/s. 323 IPC. Ld. Trial Court did not appreciate the evidence of PW2, who had not even whisper about any kind of negligence on the part of the appellant rather he stated that accused Arvind Kumar managed to escape and he along with another Ct. Gajraj chased the accused but all efforts went in vain. Ld. Trial Court did not appreciate the testimony of PW5, who was InCharge Lockup and he clearly deposed that the UTP was departed from the lockup to the proficient Finger Print Office for completion of record and finger prints. He was informed by the appellant that the accused Arvind escaped from his custody by giving jerk to his hand. Ld. Trial Court also did not appreciate that as per the standing order No. 52/2008 regarding the guidelines to be followed by taking a UTP from judicial lockup to the court as well as to complete the other formalities, the UTP of heinous crime has to be escorted with at least two constables and out of which one has to be armed with weapon. The prosecution has failed to prove its case that despite the standing orders, the UTP was sent with the appellant without providing any CA No. 172/17 3 of 20 07.01.2017 other Constable as the UTP was convicted under Section 398 IPC read with Section 27/54/59 of Arms Act. Ld. Trial Court did not discuss the testimony of PW6 in the judgment, who has deposed that accused Arvind Kumar escaped from the custody of appellant after giving him a push blow and even he along with HC Shriom tried to chase the accused Arvind Kumar. In cross examination, he also deposed that he cannot tell whether the UTP ran away due to the negligence of accused Ram Kumar. This witness has not deposed any negligence act on the part of the appellant. PW10 was not able to disclose even the exact date and month of the committal of the offence. No statement of any independent witness was recorded from the place of occurrence. PW10 was declared hostile and he failed to identify the accused. PW10 has deposed that he also recorded the statement of eye witnesses i.e. official of finger print department, who had clearly stated that the accused Arvind Kumar had forcefully gone from the clutches of the appellant and no where in their statement they had said any negligence on the part of the appellant. Ld. Trial Court has failed to appreciate the standing orders and guidelines of the authorities regarding the procedure of taking UTP prisoner of heinous crime from CA No. 172/17 4 of 20 07.01.2017 lockup to Court or vice a versa that an UTP of a heinous crime has to be accompanied atleast by two police officials out of which one has to be armed with weapon. It is prayed that judgment and order on sentence be set aside.
3. I have heard Ld. Counsel for the appellant and Ld. Addl. PP for the State at length and perused the record of this court as well as trial court record very carefully.
Ld. Counsel for the appellant has argued on the lines of the appeal. On the other hand, Ld. Addl. PP for the State contends that there is no illegality or infirmity in the impugned judgment and order on sentence.
4. Perusal of the Trial Court Record reveals that the present was registered on the application given by Inspector Ishwar Singh to the SHO, PS Tilak Nagar mentioning that HC Ram Kumar No. 2032/DAP taken out one UTP Arvind Kumar Singh @ Bhanwar Singh S/o Dinesh Singh r/o Village Sahad Sarai, PS Garkha, District Chhapra, Bihar for taking him to Proficient Finger Print Office for CA No. 172/17 5 of 20 07.01.2017 finger print etc. at 2.35 PM vide DO No. 19C, ND Lockup. The UTP was convicted in case FIR No. 182/02, u/s. 398 IPC & 27 Arms Act, PS Naraina by the court of Ld. ASJ. In the application, it is mentioned that at about 3.15 PM, HC Ram Kumar came to lockup and informed that the above said UTP had escaped from his custody by jerking his hand from the office of Finger Print. He further averred that he along with the official of Finger Print, HC Hariom and Ct. Gajran chased the UTP but the UTP managed to escape. On the basis of application case FIR No. 40/2005, PS Tilak Nagar was registered and investigation was carried out. During investigation statement of witnesses recorded, site plan was prepared and chargesheet was filed.
5. Perusal of the Trial Court Record reveals that notice u/s. 251 Cr.P.C was served upon accused on 10.05.2007 to which accused pleaded not guilty and claimed trial. Perusal of the file further reveals that to prove the case, prosecution in total has examined ten witnesses i.e. PW1 ASI Rajbir, PW2 Shri Om, PW3 Ct. Manoj Kumar, PW4 Ct. Raj Singh, PW5 Dr. Anil Aggarwal, PW6 Insp. Dharam Dev, PW 7 HC Virender Singh, PW8 Smt. V. Karuna, PW9 Retd. SI Ranvir CA No. 172/17 6 of 20 07.01.2017 Singh and PW10 Retd. SI Yamanappa.
6. PW1 ASI Rajbir has deposed that on 03.02.2005 he was posted at PS Tilak Marg and his duty hours were from 8:00 AM to 4:00 AM. This witness has deposed that on that day at about 3:45 Pm he received information regarding escaping of accused Arvind Kumar @ Bhanwar Singh from the custody of the plice from the court of Ms. Aruna Suresh, ASJ. He further deposed that he recorded DD No. 17A in this regard and same was assigned to ASI Yamanappa. This witness proved the DD No. 17A as Ex. PW1/A.
7. PW2 Shri Om has deposed that on 03.02.2005 he was posted in the Finger Prints Branch prosecution branch, Patiala House New Delhi. He further deposed that on that day one accused was brought by HC Ram Kumar for finger print but accused managed to escape from the lawful custody of HC Ram Kumar. This witness further deposed that he along with Ct. Gajraj chased the accused but in vain.
CA No. 172/177 of 20 07.01.2017
8. PW3 Ct. Manoj Kumar has deposed that on 03.02.2005 he was posted at PS Tilak Marg. He further deposed that on that day he had joined the investigation of this case along with ASI Yamnappa. This witness further deposed that DD No. 17A was assigned to ASI Yamanappa therefore, he along with ASI Yamanappa came to judicial lock up Patiala House Court where I/C Lockup Inspector Ishwar Singh met and Inspector Ishwar Singh gave a complaint in writing to the IO. He further deposed that IO prepared a rukka and got the case registered through him. He further deposed that IO recorded statement of Ct. Gajraj of Finger Print Office. He further deposed that accused HC Ram Kumar was arrested vide memo Ex. PW3/A and his personal search was conducted vide memo Ex. PW3/B.
9. PW4 Ct. Raj Singh has deposed that on 03.02.2005 he was posted at DAP 3rd BN and was performing his duty as DD writer at judicial lock up Patiala House Court. He further deposed that on that day accused Arvind was handed over to HC Ram Kumar for getting his finger print. This witness further deposed that in this regard DD No. 19A was recorded and same is Mark X1.
CA No. 172/178 of 20 07.01.2017
10. PW5 Dr. Anil Aggarwal has deposed that on 28.03.2007 he was posted as Deputy Secretary (Home) in the Govt. of NCT of Delhi. He further deposed that on the same day, after perusing the case file, he had conveyed the prosecution sanction u/s. 197 Cr.P.C against the accused Ram Kumar, the then HC in Delhi Police on behalf of Lt. Governor of GNCT of Delhi. This witness proved the Sanction order as Ex. PW5/A.
11. PW6 Inspector Dharam Dev has deposed that on 14.10.2005 he was posted as Sub Inspector at PS Tilak Marg. He further deposed that on that day, further investigation of the present matter was handed over to him. This witness further deposed that on 18.02.2006 he had got declared accused Arvind Kumar as PO. He further deposed that on 01.04.2006 draft challan against HC Ram Kumar and Arvind Kumar was prepared. He further deposed that during scrutiny of the challan, he had also applied for prosecution sanction u/s. 197 Cr.P.C. He further deposed that thereafter, he was transferred from PS Tilak Marg.
CA No. 172/179 of 20 07.01.2017 12 PW7 HC Virender Singh has deposed that he had been called to brought the record pertaining to DD No. 25B dated 03.02.2005. This witness further deposed that the record (Roznamcha) relating to the said DD was not traceable despite of several efforts and in this regard he has proved the report as Ex. PW7/A.
13. PW8 Smt. V. Karuna has deposed that he had brought the summoned judicial file of FIR No. 182/02, PS Naraina u/s. 397 IPC and 27 Arm Act having Goshwara No. 228S/2005. Case CC No. 50/04 dated 17.05.2004. This witness further deposed that the said case file was required in the present case and now the same attached with the judicial file No. 40/05, u/s. 223/224 IPC, PS Tilak Marg. He further deposed that in case file of FIR No. 182/02, the order dated 27.02.2005 and 31.01.2005 which shows presence of accused Ram Kumar at Finger Prints office of Patiala House Courts and the said order is proved as Ex. PW8/A.
14. PW9 Retd. SI Ranvir Singh has deposed that on CA No. 172/17 10 of 20 07.01.2017 27.07.2005, he was posted at PS Tilak Marg as ASI. He further deposed that he was entrusted the process u/s. 82 of Cr.P.C for execution against accused Arvind Kumar Singh @ Bhanwar Singh S/o Sh. Dinesh Singh. This witness further deposed that thereafter, he went to the house of accused at Village Shahad Sarai, PS Garkha, Distt. Chhapra, Bihar, where he met the mother of the accused. He further deposed that she said to him that accused Arvind had not visited here and he resides in Delhi, but she did not knew his present whereabouts. He further deposed that he pasted copy of process u/s. 82 Cr.P.C at the residence of accused, after he found that accused was not available at the given address. This witness proved process u/s. 82 Cr.P.C as Ex. CW1/D. He further deposed that thereupon, on 30.08.2005, he visited the address of accused Arvind at village Shahad Sarai, PS Garkha, Distt. Chhapra, Bihar for the purpose of execution of process u/s. 83 Cr.P.C. But no movable or immovable property was found in his name, therefore, which could not have been attached. He further deposed that thereafter, he executed the process u/s. 83 Cr.P.C against accused Arvind and process u/s. 83 Cr.P.C is proved as Ex. CW1/B. CA No. 172/17 11 of 20 07.01.2017
15. PW10 Retd. ASI Yamanappa has deposed that he do not remember the exact date and month but it was year 2005, he was posted at PS Tilak Marg as ASI. He further deposed that on that day, he received information that one accused namely Arvind (who was convicted in FIR No. 182/02, PS Naraina, u/s. 398 of IPC and 27 Arms Act by Hon'ble Court of Smt. Aruna Suresh, Ld. ASJ) escaped from the custody of alleged HC Ram Kumar while he was departed from finger prints office at Patiala House Court vide DD No. 17A. This witness further deposed that thereafter, he along with Ct. Manoj Kumar arrived at lockup Patiala House Courts where on inspector Ishwar Singh had given one complaint to him which is already proved as Ex. PW5/A. He further deposed that he prepared rukka Ex. PW 10/A. He further deposed that he handed over rukka to Ct. Manoj Kumar for registration of FIR. He further deposed that he went to the PS Tilak Marg and got registered FIR Ex. PW10/B. This witness further deposed that thereafter, he returned to lockup and handed over copy of FIR and original rukka to him. He further deposed that therefore, he arrested the accused Ram Kumar vide arrest memo already Ex. PW3/A and his personal search was conducted vide memo CA No. 172/17 12 of 20 07.01.2017 already Ex. PW3/B. This witness deposed that he prepared site plan which is proved as Ex. PW10/C. He further deposed that he recorded the statement of witnesses but he did not remember the name of the witnesses at that time. He further deposed that he collected documents/ dossier of accused Arvind Kumar from finger print bureau. He further deposed that after completion of investigation he filed the challan.
16. After closure of P.E, statement of accused u/s. 313 Cr.P.C record and accused has not led any defence evidence.
17. It is vehemently contended by Ld. counsel for the appellant that Section 223 IPC is a cognizable offence and as per Section 155(2) Cr.P.C the permission of Magistrate is required for investigation into noncognizable offence. It is contended that there is no material on record to show that permission was ever taken by the IO before investigation in the present case. It is also contended that none of the witness has proved on record that any permission was taken from the concerned Magistrate. It is also vehemently contended CA No. 172/17 13 of 20 07.01.2017 that Ld. MM was erred while taking cognizance of offence and also erred in framing notice against the accused. It is also contended that none of the witness has deposed that appellant was negligent in discharging his official duty. Even accused had tried to apprehend the accused and he has given statement to Inspector Ishwar Singh that accused has fled after giving jerk to his hand. It is also contended that as the Magistrate has taken cognizance with proper authority and this regularity vitiates the entire proceedings as per Section 461(K) of Cr.P.C On the other hand, Ld. Addl. PP for the State contends that chargesheet u/s. 224 IPC was filed and Section 224 IPC is cognizable and Ld. MM has rightly taken cognizance in respect of the offence.
18. Now, I am dealing with contentions raised by Ld. counsel for the appellants one by one.
19. The first contention raised by Ld. counsel for the appellant is that appellant is chargesheeted u/s. 223 IPC and this offence is non CA No. 172/17 14 of 20 07.01.2017 cognizable and IO should not have investigated the case without permission of Magistrate as per Section 155(2) Cr.P.C.
In the present case the chargesheet was filed u/s. 223/224 IPC and Section 224 IPC is a cognizable offence. I am of the view that no permission is required from Magistrate before investigating the cognizable offence. The law is clear that if there was two sections one is cognizable and other is noncognizable then there was no necessity to take prior permission from the Ld. Magistrate to investigate the case.
Ld. counsel for the appellant has placed reliance on judgment titled as "Surinder Kumar Vs. State" 1997 (40) DRJ wherein, it is held that "coming to the second question as to whether the petitioners could be tried for an offence punishable under Section 323/34 IPC, I find that the offence under Section 323 is a non cognizable offece and investigation by the police into the case involving noncognizable offence is not permissible without permission of the Magistrate. Admittedly, no permission has been taken by the police to investigate into the offence punishable under Section 323 IPC. It is contended by Mr. Behl that as the FIR CA No. 172/17 15 of 20 07.01.2017 related to an offence not only under Section 323 IPC but also under Section 308, there was no bar in the police investigating the case. In my opinion, the argument has no basis. When the case is actually registered against an accused in respect of both cognizable and noncognizable offences and ultimately it is found that the cognizable offence is not made out, it may mean giving long hand to the police in first registering cases for cognizable offences which ultimately may not fall within the definition of such a case. I am, therefore, of the view that the police having not taken permission of the Magistrate under Section 155(2) of the Code of Criminal Procedure, the proceedings against the petitioners under Section 323 cannot be continued ". It is also held in this judgment that "for the foregoing reasons while I discharge the petitioners of the offence under Section 308 IPC, I quash the proceedings pending against them in relation to FIR No. 335/92, PS Krishna Nagar, in so far as it relate to the offence punishable under Section 323 IPC". I have perused the judgment with utmost regard".
I am of the view that Section 224 IPC is a cognizable CA No. 172/17 16 of 20 07.01.2017 offence and there was no necessity to take prior permission from the Ld. Magistrate for investigating the present case. Thus, this contention carries no force.
20. Now, it is to be seen that whether the appellant was negligent in performing the official duty or not.
To prove the case prosecution has examined total ten witnesses. PW1 ASI Rajbir has proved DD No. 17A as Ex. PW1/A. This DD shows that UTP Arvind Kumar escaped by releasing his hand from the appellant. PW2 HC Shri Om also deposed that UTP managed to escape from the lawful custody of HC Ram Kumar and he along with Ct. Gajraj chased the accused but in vain. PW3 Ct. Manoj Kumar is a formal witness. PW4 Ct. Raj Singh has proved that accused Arvind Kumar was handed over to HC Ram Kumar for getting his finger prints. PW6 Ct. Gajraj Singh is eye witness to the incident and he clearly deposed that UTP pushed the accused Ram Kumar and got released his hand from the hand calf of Ram Kumar. He also deposed that accused Ram Kumar made noise that "Bhag gaya" "Bhag gaya" and he along with HC Shree Om and Ram Kumar tried to chase CA No. 172/17 17 of 20 07.01.2017 the UTP and due to crowd before the court of ACMM they could not apprehend the UTP despite their best efforts. In cross examination, PW6 has clearly stated that he cannot tell whether the UTP ran away due to the negligence of accused Ram Kumar. Thus, as per testimony of eye witness PW6 UTP Arvind Kumar gave push to the accused and released his hand from the hand of Ram Kumar and ran away. As per the deposition of PW6 there was crowd before the court of Ld. ACMM and due to crowd he could not apprehend the UTP. From the testimonies of PW2 HC Shri Om and PW6 Ct. Gajraj, it has emerged that UTP gave push to Ram Kumar and released his hand from the hand of Ram Kumar and fled away. As per PW6 accused Ram Kumar made noise "Bhag gaya" "Bhag gaya". Thus, there was no intention of the appellant to help the UTP to ran away in any manner.
Section 223 IPC reads as under:
223. Escape from confinement or custody negligently suffered by public servant Whoever, being a public servant legally bound as such public servant to keep in confinement any person charge with or convicted of any offence [or lawfully committed to custody], negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term CA No. 172/17 18 of 20 07.01.2017 which may extend to two years, or with fine, or with both.
As per Section 223, it is to be proved by the prosecution that appellant was negligent and due to negligence of the appellant UTP Arvind Kumar escaped from the custody. It is not proved by the prosecution that appellant was negligent in performing his official duty and due to his negligence UTP escaped from his custody. PW10 is not able to identify the accused in the court. The prosecution is not able to prove its case beyond reasonable doubt. Ld. MM has erred in relying on the testimonies of PWs. If we peruse the complaint given by Inspector Ishwar Singh, PS Tilak Marg, it shows that accused Ram Kumar at his own informed Inspector Ishwar Singh that UTP Arvind Kumar has escaped from the custody by giving jerk to his hand.
21. In view of the above discussions, I am of the view that prosecution is not able to prove its case beyond reasonable doubt and Ld. MM has erred in convicting the appellant. The criminal appeal filed by the appellant is allowed, judgment dated 17.07.2017 and order on sentence dated 17.07.2017 are set aside. Accused Ram Kumar is acquitted in case FIR No. 40/05, PS Tilak Marg, u/s. 223 IPC. Bail CA No. 172/17 19 of 20 07.01.2017 bond stands cancelled and surety stands discharged.
Trial Court Record be sent back along with copy of judgment. Appeal file be consigned to record room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 20.11.2017. Spl. Judge, CBI02,
New Delhi District, PHC.
CA No. 172/17
20 of 20
07.01.2017