Delhi District Court
State vs . Hc Ajab Singh & Ors. on 10 October, 2013
IN THE COURT OF SH. SACHIN SANGWAN: METROPOLITAN
MAGISTRATE-05/CENTRAL: DELHI
STATE VS. HC AJAB SINGH & Ors.
FIR NO. 101/04
P. S. KAMLA MARKET
Date of institution of case : 07.12.2006
Date on which case reserved for judgment : 27.09.2013
Date of judgment : 10.10.2013
JUDGMENT :
a) Date of offence : 20.11.2003 b) Offence complained of : U/s 223/224 IPC c) Name of complainant : State d) Name of accused no.1, : HC Ajab Singh No. 17AP, official address : Police Line, District Meerut, U. P. Police Name of accused no.2, : Retired Ct. Jai Ram his parentage, : s/o Sh. Ram Dayal local & permanent residence : R/o: Gaon Lachiamau, Tehsil Vidhuna, Post Office Madhua Pur, PS Dibla Pur, District Oraiya, U.P. Name of accused no.3, : Ct. Ram Singh his parentage, : s/o Sh. Budhan Singh local & permanent residence : R/o:Reserve Police Line Ghaziabad, UP (died during trial) FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 1/11 Name of accused no.4, : Sanjay Sharma @ Sanju @ his parentage, : Lambu local & permanent residence s/o Ghanshyam Sharma : R/o:817, Saini Pura, Nai Subzi Mandi, near Somnath Mandir, Jind, Haryana (charge sheeted as PO). e) Plea of accused : Pleaded not guilty. f) Final order : Accused Ajab Singh and Jai Ram convicted. Proceedings against accused Ram Singh already abated. Accused Sanjay Sharma is PO. BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. The FIR of present case was lodged on a complaint made by HC Ajab Singh. The contents of said complaint in brief are as follows:-
On 20.11.2003 at about 1800 hours, complainant HC Ajab Singh, Ct. Jai Ram and Ct. Ram Singh had taken custody of under trial Sanjay Sharma @ Sanju @ Lambu s/o Sh. Ghanshyam Sharma from District Jail Dasna, Ghaziabad as he was to be produced before the court of A.C.J.M. Jind on 21.11.2003 in regard to case u/s 457/380 IPC. After taking his custody they went to Dasna Railway Station and after boarding the train at about 19.00 hours they reached at Old Delhi Railway Station at about 20.45 hours. On inquiry at old Delhi railway station they came to know that no train was available at that time for going to Jind. They came to know that from New Delhi Railway Station at about 22.10 hours Toofan train goes to Jind. Hence, in order to reach at New Delhi Railway Station they boarded Citi bus no. 729 along with detainee Sanjay Sharma from there. They got down from the bus at Minto Road bus stop, Kamla Market at about 21.30 hours and by FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 2/11 walking on foot along with detainee Sanjay Sharma crossed the Tagore road and went towards New Delhi Railway Station. When they reached near hotel of Kallan Puj Mahesh Patel which was near C.P.W.D. Quarter, the detainee Sanjay Sharma turned around and put mirchi like powder in their eyes. As a result thereof, they got tears in their eyes and detainee Sanjay Sharma after cutting the rope of handcuffs ran towards hotel of Kallan, C.P.W.D. Quarters. As per the complaint, due to crowd in the bus, the said detainee had cut off the rope probably in the bus itself and was just keeping the rope in his hand. Detainee Sanjay Sharma went to the roof of CPWD quarters and while chasing him, they also reached at roof of CPWD quarters but the detainee Sanjay Sharma jumped down on the other side of the roof where it was very dark. They also jumped down on the other side of the roof. In the dark, they saw that it was courtyard of the said building. That house was in damaged condition having 2/3 damaged rooms, latrine and a store room which was a vacant one. They tried to search the said detainee Sanjay Sharma in the whole house but in vain. There was one big hole in the wall of courtyard of the said house through which a person could go easily outside the house. They also tried to search the detainee from that big hole but could not found the said detainee. They also asked the neighbours but could not get any information.
On the basis of said complaint, the FIR was registered not only U/s 224 IPC regarding escape of detainee Sanjay Sharma from lawful custody but also U/s 223 IPC regarding negligence of the aforesaid police officials. The detainee Sanjay Sharma could not be arrested during investigation and accordingly, charge sheet was filed against only the aforesaid three police officials.
2. On 25.06.2011 charge U/s 223 IPC was framed against all three accused to which all of them pleaded not guilty and claimed trial. During the trial, FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 3/11 accused Ram Singh expired and proceedings qua accused Ram Singh have been abated.
3. In support of its case, prosecution examined 11 witnesses.
A. ASI Babu Ram was examined as PW1. This witness has deposed regarding non execution of NBWs against accused Sanjay Sharma @ Sanju @ Lambu.
B. HC Anand Singh was examined as PW2. This witness also deposed regarding non execution of NBWs against accused Sanjay Sharma @ Sanju @ Lambu.
C. Ct. Baljeet Singh was examined as PW3. This witness has deposed regarding execution of process u/s 82/83 Cr.P.C. against the accused Sanjay Sharma @ Sanju @ Lambu.
D. Inspector Inder Pal was examined as PW4. This witness has deposed that on 16.03.2004 one FIR No. Nil/2003 u/s 223/224 IPC, PS Masuri District Ghaziabad U.P. was received through post at PS Kamla Market where he was posted as SI and on that day he got registered the case by making an endorsement Ex.PW4/A. He deposed that investigation was handed over to him and he collected the documents i.e. before P.S. Masuri Ex.PW4/B and original case diary first (in 10 pages) collectively Ex.PW4/C and an application addressed to SHO PS Masuri, Delhi, Ghaziabad, U.P. Ex.PW4/D. He deposed that he recorded statements of witnesses and arrested the accused persons Jai Ram and Ajab Singh vide arrest memos and personal search memos Ex.PW4/E to FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 4/11 Ex.PW4/J and thereafter he was transferred and handed over the case file to MHC(R). This witness correctly identified both the accused present in the court.
E. ASI Ravinder Kumar was examined as PW5. This witness has deposed that he executed process u/s 82/83 Cr.P.C. against the accused Sanjay @ Sanju and accused Sanjay @ Sanju was declared proclaimed offender by the Hon'ble Court concerned.
F. SI Sansar Singh was examined as PW6. This witness has deposed that on 22.11.2003 he was posted as SI at PS Masoori District Ghaziabad, U.P. and on that day he received copy of zero FIR for investigation. He deposed that during the course of investigation he made inquiry and found that the incident comes under the jurisdiction of PS Kamla Market, Delhi so he sent the documents prepared by him in the investigation along with zero FIR to IO of the present case of PS Kamla Market. He deposed that said documents were sent through SSP, Ghaziabad, U.P. to SHO PS Kamla Market. Zero FIR is Ex.PW6/A and his report, case diary are Ex.PW2/B and Ex.PW4/C. He deposed that his statement was recorded by the IO.
G. Sunil Kumar Chopra was examined as PW7. This witness has deposed that he has brought the original record file of case FIR No. 129/96 U/s 457/380/411 IPC, PS Alewa, District Jind, Haryana and as per the same, accused Sanjay was declared proclaimed offender on 31.10.2002 vide copy of order Ex.PW7/A and on 06.03.2003 judgment was passed by the concerned Judicial Magistrate in which status of accused Sanjay Sharma was as PO. He deposed that later on accused Sanjay Sharma was required to be produced before the Court on 21.11.2003 vide endorsement on production warrant Ex.PW7/B and FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 5/11 relevant copy of order sheets Ex.PW7/C and judgment dated 06.03.2003 is Ex.PW7/D. H. Jail Warder Ranvir Singh was examined as PW8. This witness has deposed that he was posted as Bandi Rakshak at District Jail, Dasna, Ghaziabad since 04.09.1997 to 26.08.2008 and on 12.11.2003, accused Sanjay Sharma @ Sanju S/o Sh. Ghanshyam Sharma was lodged in the jail vide Under Trial No. 6908. Attested photocopy of the same is Mark A. He deposed that on 20.11.2003 at 17.40, the accused Sanjay Sharma @ Sanju was sent to Jind, Haryana for production in custody of Ct. 537 AP Ram Singh. Attested copy of relevant record of the gate book register is Mark B. He deposed that he was not posted as dealing clerk at that time and entries in the Mark A and Mark B were not made by him and the person who had made entries in the Mark A and Mark B may be summoned by the Court to prove the same. He deposed that he do not know the person who was posted at the relevant time who had made the said entries.
I. SI Rajender Singh was examined as PW9. This witness has deposed that on 09.06.2006 investigation of present case was marked to him and he perused the case file. He deposed that investigation was almost complete and he prepared the challan and filed it before the Court.
J. Warder Ram Autar was examined as PW10. This witness has deposed that on 20.11.2003, he was posted as Warder at Dasna Jail, Ghaziabad, U.P. and his duty timings were from 14.15 hours to 08.11 hours at Gate No.1 of the said jail. He deposed that under trial Sanjay @ Sanju @ Lambu, came out from the lock up with concerned police official and he came to Gate No.1. He deposed that on that day, at about 17.40 hours the custody of Sanjay @ Sanju FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 6/11 was handed over to Ct. Ram Singh and 'gaard' (associate police staff) and the relevant entry in this regard was made by him in lock up register and the custody of detainee Sanjay Sharma was handed over to No. 537 A.P. Ct. Ram Singh at 17.40 hours on that day. He deposed that he has brought the relevant record dated 20.11.2003 of accused Sanjay @ Sanju @ Lambu made in lock up register of year 2003 in District Jail Ghaziabad and the relevant entries of same are point A to A1 and from point B to B1. He deposed that same were in his handwriting and the signatures of Ct. Ram Singh are at point X on the same. Copy of the record earlier Mark A was exhibited by PW10 as Ex.PW10/A. He deposed that he has also brought register no. 12 in respect of detainee Sanjay Sharma @ Sanju. Copy of the relevant entry earlier Mark B was exhibited by PW10 as Ex.PW10/B. K. Retired ACP Ajeet Singh was examined as PW11. This witness has deposed that a zero FIR registered at PS Masoori District, Ghaziabad was received at PS Kamla Market through post and on the basis of which the present FIR was got registered and investigation of present case was entrusted to SI Inderpal Singh. He deposed that during the course of investigation SI inderpal Singh arrested three U.P. police personnels from whose custody an accused namely Sanjay had escaped in the area of police station in the month of November, 2003. He deposed that accused persons were produced before him. He deposed that thereafter he was transferred to PS Greater Kailash. This witness correctly identified both the accused present in the court.
4. Thereafter, prosecution closed its evidence and the incriminating circumstances were explained to both the accused. In their examination under Section 313 Cr. P.C. both accused HC Ajab Singh and Ct. Jai Ram stated that accused Sanjay Sharma @ Sanju @ Lambu did not escape due to their FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 7/11 negligence. They stated that they had just got off the bus with detainee Sanjay Sharma and they had barely walked ten steps when detainee/accused Sanjay Sharma put mirchi powder on them. They stated that bus was overcrowded and probably detainee/accused Sanjay Sharma had cut off the rope taking advantage of the same. However, none of the accused desired to lead defence evidence.
DECISION OF THE CASE AND REASON THEREOF
5. After considering the facts and circumstances of the case, the Court has come to the conclusion that prosecution has successfully proved its case against both the accused beyond reasonable doubts. The reasons for aforesaid conclusion are as follows:
A. The offence alleged against the accused persons is that of section 223 IPC. The said section reads " Whoever being a public servant legally bound as such public servant to keep in confinement any person charged 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 which may extend to two years or with fine or with both".
The accused persons are the police officials who were escorting the detainee/under trial Sanjay Sharma from Dasna Jail, Gaziabad, UP for producing the said detainee before ACJM, Jind, Haryana. In the present case, there is no independent witness to depose regarding the manner in which the said detainee escaped from the custody of said accused persons. However, the complaint Ex. PW4/D made by accused HC Ajab Singh regarding the circumstances under which the said detainee escaped itself shows that the accused police officers were negligent in discharging their duties.
FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 8/11 B. Both of the accused have admitted the facts stated in the complaint Ex. PW4/D. As per the same, when they got off the bus with the detainee Sanjay Sharma, they barely walked 10 steps, the said detainee Sanjay Sharma moved around and threw mirchi powder in their eyes and escaped as the said police officials were incapacitated momentarily due to the effect of mirchi powder in their eyes. They have further mentioned that they were holding the detainee with a rope but the rope remained in the hands of accused/police constable Ram Singh (now deceased). They have mentioned that probably due to overcrowding in the bus, the said detainee had cut off the rope in the bus itself and he was merely acting, as if he is tied by the rope, by holding the rope in his hand. Negligence is failure of a person to act with the standard of care expected of a reasonable or prudent person. The Jail record of the said detainee shows that he was involved in as many as 10 cases including case U/s 307 IPC, offences of dacoity, Arms Act and theft. Even otherwise, it was the basic duty of the escorting police officers to keep a watch over the activities of the detainee and provide him no window of opportunity to effect an escape from lawful custody. The mere fact that the mirchi powder came into possession of the detainee while being in the custody of the above said police officers speak volumes about carelessness of the police officers. More so, even the rope which was tied to handcuffs of the detainee was cut off by the detainee without any clue to the said police officials. The aforesaid facts categorically show that none of the three police officials were vigilant enough and all of them failed to keep proper watch over the detainee Sanjay Sharma. Thus, in these circumstances, a clear cut case of negligence is made out against the accused Ajab Singh and Jai Ram.
C. The defence raised by the counsel for the accused by way of written submissions is that it was the accused Ct. Ram Singh (now deceased) to whom FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 9/11 the custody of the said detainee was handed over and the accused Ajab Singh and Jai Ram were merely escorts with the said prisoner and therefore, they are not liable in the present case. Court is not swayed by the said argument as what shall be the purpose of the escort guards if their duty is not to keep a watch over the detainee prisoner. On the same line, another defence raised by the counsel for the accused is that it was the duty of Ct. Ram Singh while taking the custody of detainee Sanjay to conduct his personal search and to ensure that the said prisoner was not carrying any objectionable stuff. Court is unable to agree with the said argument. It is to be noted that Jail Warder was examined as PW-10. He has exhibited the documents regarding the departure of said detainee vide Ex. PW10/A and Ex. PW10/B. The said entries are in his own handwriting and it has been specifically mentioned in said entries that the custody of the detainee Sanjay Sharma was given after conducting personal search of said detainee. The said witness was not cross examined regarding the alleged defence at all. Accordingly, the said argument is merely an after thought.
D. The counsel for accused has laid much stress on the fact that the present case was initiated against the accused persons without obtaining any sanction u/s 197 Cr.PC and therefore, the whole trial is vitiated. Court has considered the said argument in detail. The accused Ajab Singh was Head Constable at the time of incident and accused Jai Ram and Ram Singh (now deceased) were constables at the time of incident. The protection of section 197 Cr.PC is available to officers who are not removable from their office save by or with the sanction of the Government. In AIR 1964 Supreme Court 269, the Hon'ble Supreme Court of India observed that a sub Inspector can be dismissed by a Inspector General of Police and therefore, no sanction is required by the State Government as the said officer is not removable from his office save by or with the sanction of the FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 10/11 Government. Similarly, in 2003, Cr. L.J., 2949, Hon'ble Punjab and Haryana High Court has observed that Sub Inspector and Asstt. Sub Inspector can be removed by Superintendent of Police and they are not entitled to protection to Sec. 197 Cr. PC. It is to be noted that accused in the present case could be removed or dismissed from service by Senior Police Officers as mentioned in the Sec. 7 of the Police Act, 1861. Therefore, the lack of sanction in the present case does not help the cause of the accused persons as no sanction was required U/s 197 Cr. P. C. In view of the aforesaid discussion, the offence U/s 223 IPC is proved against the accused Ajab Singh and Jai Ram beyond reasonable doubts. Accordingly, they are convicted for the same.
(Announced in the open Court on Sachin Sangwan
10th October, 2013) Metropolitan Magistrate-05/Central:
Tis Hazari: Delhi
Room No. 349.
FIR No. 101/04 State v. HC Ajab Singh & Ors. Pages No. 11/11