Delhi District Court
Since It Is Established On Record That ... vs Unknown on 2 November, 2020
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
SC No. 491/19
The High Court of Delhi (Through RG) v. Insp. Ashok Kumar &
Ors.
02.11.2020
ORDER ON CHARGE
The brief facts of the present case as detailed in the
complaint are, that on 26.10.2002, on the allegations of complainant
Sh. Manjeet Singh Chugh, FIR No. 387/2002 u/s 380/411 IPC was
registered against one Anirudh Chakraborty. On the same day,
Anirudh Chakraborty was arrested on the allegations that he had
committed a theft at Shop No. D-55, South Extension. Thereafter,
Anirudh Chakraborty was sent for medical examination as he had
some injuries on his person. The medical examination revealed that
the injuries were simple in nature and were caused by a blunt
weapon. On 29.10.2002, statement of Anirudh Chakraborty was
recorded who stated that the he had been falsely implicated in this
case and had been beaten up by one Mahender Singh and one
Manjeet Singh. Thereafter, on the directions of the court, an FIR No.
392/2002 u/s 308/34 IPC was lodged against Sh. Manjeet Singh
Chugh and Mahender Singh. After completion of investigation,
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charge sheet of the case was filed. Manjeet Singh and Mahender
Singh were convicted u/s 323 IPC. A fine of Rs.500/- each was
imposed. Meanwhile, Sh. Manjeet Singh Chugh filed complaints with
higher authorities that with the connivance of SHO, SI Rajbir Singh
and Sunil Jain, he and his father had been falsely implicated in case
FIR No. 392/2002. Pursuant to these complaints, a vigilance inquiry
was conducted which revealed that on 26.10.2002, SI Sunil Jail
went to shop no. 55, South Extension where complainant Sh.
Manjeet Singh Chugh handed him the custody of Anirudh
Chakraborty and the stolen property. It is further submitted that SI
Sunil Jain stated that on the directions of Ld. MM, he recorded the
statement of Anirudh Chakraborty and registered FIR no. 392/02
and investigation was assigned to SI Sandeep Sharma. Vigilance
inquiry further revealed that there was no evidence on record except
the statement of Anirudh Chakraborty and the MLC. It was further
submitted that the investigation of this case had been done in a very
casual manner. After perusal of vigilance inquiry, Insp. Ashok
Kumar, SI Sunil Jain and SI Sandeep Sharma were ordered to be
transferred to non sensitive units and show cause notices were
issued to them. It is further submitted that against the conviction
u/s 323 IPC, Sh. Manjeet Singh Chugh filed an appeal before the
Hon'ble High Court of Delhi and the conviction order was set aside
vide order dated 28.02.2008. Hon'ble High Court of Delhi was
pleased to observe that:
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Since it is established on record that this case is the
outcome of the rivalry between the police officers and the
appellants, therefore, the appellants are entitled to
acquittal on this ground alone.
2. It is further stated that after his acquittal, the
complainant approached Hon'ble Lt. Governor by way of
representation and narrated their agony of having lost 07 precious
years of their lives after being implicated in a false case. Hon'ble Lt.
Governor looked into the matter and vide order dated 11.01.2010,
the Hon'ble Lt. Governor sanctioned the prosecution of the said
police officers. It is further stated that despite sanction being
granted by Hon'ble Lt. Governor, no action was taken against the
police officers and having failed from all the corners, Sh. Manjeet
Singh Chugh was constrained to approach the Hon'ble High Court of
Delhi by way of a writ petition for appropriate directions for taking
action against Insp. Ashok Kumar, SI Sandeep Sharma and SI Sunil
Jain for falsely implicating Sh. Manjeet Singh Chugh and Mahender
Singh in a case u/s 308 IPC. Hon'ble High Court of Delhi vide order
dated 21.06.2008 was pleased to direct that a complaint be filed u/s
195 IPC for initiating criminal proceedings in accordance with law
against the concerned police officials for falsely implicating Manjeet
Singh and his father Mahender Singh. It is further stated that the
present complaint has been filed in compliance of the directions
given by Hon'ble High Court of Delhi vide order dated 21.06.2008. It
is further submitted that the complainant craves leave to rely upon
the documents filed alongwith the present complaint in support of
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the present complaint and the contents of the documents may be
deemed to have been incorporated.
3. After the complaint was filed, on 31.03.2011, Ld. CMM
New Delhi ordered the summoning of the accused. Thereafter, vide
order dated 31.03.2011, Ld. CMM New Delhi observed that no
deficiency of documents had been pointed and as section 195 IPC,
one of the sections under which this complaint was filed, was
specifically triable by the court of Sessions committed the case to the
court of Sessions.
4. Thereafter, vide order dated 04.07.2013, Ld. ASJ-02, New
Delhi ordered the framing of charges against the accused u/s 193
and 195 IPC. On 27.07.2013, charges u/s 193 and 195 IPC r/w 34
IPC were framed against all the accused.
5. The accused preferred a revision petition against the
aforesaid order dated 04.07.2013 before Hon'ble High Court of Delhi
and Hon'ble High Court of Delhi set aside the said order and the
charges framed against the accused while observing as under:
Further record shows that the fate of the case under
Section 380 IPC was a conviction against Anirudh
Chakraborty as he had pleaded guilty; he had been
sentenced to the period already undergone by him. Qua
the FIR No.392/2002 registered under Section 308 IPC
against Manjeet Singh Chugh he was convicted under
Section 323 IPC; it had been scaled down from Section 308
IPC. Manjeet Singh Chugh was however not happy with
this verdict and he had filed an appeal; and in the hierachy
the matter had reached the High Court. Manjeet Singh
Chugh had also filed a writ petition WP(Crl) No.952/2010
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on which the Court had passed the following order on
21.06.2020:
"The petitioner was acquitted by the Court on the basis of
an inquiry conducted by Vigilance Department of Police
believing that this inquiry was a truthful one and the inquiry
had found the police officials guilty of initiating false case
against the petitioner.
Registrar General of this Court is directed to send a
complaint under Section 195 Cr.P.C. for initiating criminal
proceedings against the concerned police officials for falsely
implicating the applicant. With above directions, the
petition stands disposed of.
The submission of the learned counsel for the petitioners
is prima facie correct. It is largely this order i.e. the order
dated 21.06.2020 which had weighed in the mind of the
trial judge while passing the order directing framing of
charge against the present petitioners under Sections 193
and 195 of the IPC. Additional submission of the learned
counsel for the petitioners is that they were not present at
the time when order dated 21.06.2020 was passed is also
an undisputed fact. It is also settled proposition of
criminal law as also of natural justice that if any adverse
order is passed against the accused he must be given a fair
opportunity of hearing. Record shows that SI Sunil Jain has
filed a detailed application seeking discharge and all the
grounds and arguments now addressed before this Court
appear to be a part of this application in addition to the
oral arguments now urged by him. It is pointed out by
learned counsel for the petitioners that none of these
grounds have been taken care of by the Sessions Judge
while passing the impugned order of framing of charge
which are comprised in the discharge application/written
submissions filed by the petitioners.
Impugned order is accordingly set aside. Parties are
relegated back to the Sessions Judge who shall pass a
fresh order on charge after hearing the respective parties
and noting their submissions and counter submissions.
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6. Thereafter, vide order dated 06.09.2014, my learned
Predecessor sent the matter back to the court of Ld. CMM New Delhi
to conduct an inquiry with regard to the role of Anirudh
Chakraborty. The said order was challenged by witness Sh. Manjeet
Singh Chugh in a criminal revision petition and it was set aside by
Hon'ble High Court of Delhi on 30.10.2019 with the directions to
hear both the parties on the point of framing of charge. Hence, the
matter came back to the stage of arguments on charge.
7. Arguments on charge through VC had been advanced by
ld. Addl. PP and Sh. Giriraj, Judicial Assistant, Litigation Branch for
the complainant. Sh. Anupam Sharma and Sh. Yogesh Saxena,
counsels advanced arguments on behalf of the accused. An
opportunity was also given to witness Sh. Manjeet Singh Chugh,
whose writ petition had resulted in initiation of the present
complaint, to argue the matter.
8. After hearing the arguments, the matter was reserved for
orders and the parties were given an opportunity to file written
submissions. Ld. Addl. PP and Sh. Manjeet Singh Chugh have filed
the written submissions.
9. During the course of arguments, it was specifically
inquired from Ld. Addl. PP and the representative of the complainant
that what was the evidence available to satisfy the ingredients of
sections 193 and 195 IPC. During the course of arguments, ld. Addl.
PP submitted that he had no evidence which could show that any
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evidence was falsified or fabricated by any of the accused but still
sought time to file written submissions.
10. Sh. Manjeet Singh Chugh has contended that the
accused had fabricated a false FIR against him and his father
because in two FIRs, they had recorded two different sets of facts. In
FIR lodged by him u/s 380/411 IPC which was FIR No. 387/02, the
police had recorded that the accused had fallen down and hit his
head on a chair and that is why he got injured. However, in FIR u/s
308/34 IPC, in which he was made an accused, police had recorded
that accused (Anirudh Chakraborty) had received injuries because
he was beaten by Manjeet Singh Chugh and his father. This clearly
shows falsification of record. He had further contended that despite
result of MLC being of a simple injury, the accused invoked stringent
section 308 IPC which against shows that they had falsified the
evidence and falsely implicated him for charges which were not made
out. He has further contended that the vigilance inquiry against the
accused had clearly reflected that the accused had falsely implicated
him and therefore, a case for framing charges u/s 193 and 195 IPC
is made out.
11. In the written submission filed by Ld. Addl. PP, the
history of this complaint, FIR No. 387/02 lodged on the complaint of
Manjeet Singh Chugh and FIR No. 392/02 lodged against Manjeet
Singh Chugh were elaborated and how this complaint was filed, is
also stated. Thereafter, points for consideration have been submitted
by ld. Addl. PP wherein it is stated, that vide order dated 28.02.2008,
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Hon'ble High Court had held that the appellants were entitled to
acquittal on the sole ground that it was established that the case
was an outcome of the rivalry between the police officials and the
appellants. It is further submitted that it was fully established by an
inquiry conducted by senior police officers and further approval of
such report by the Commissioner of Police about the false
implication of the appellants. It is further submitted that not only
the CP approved the report of the vigilance but also recommended to
withdraw the prosecution of the case and no appeal against the said
order of Hon'ble Delhi High Court was filed by the accused persons
till date. It is further submitted that the Hon'ble Delhi High Court
again held in its order dated 21.06.2010 that the petitioner was
acquitted by the court on the basis of inquiry conducted by the
vigilance department of police believing this inquiry was a truthful
on and the inquiry had found the police officials guilty of initiating
false case against the petitioner. It is further submitted that in case
FIR No. 387/02 u/s 380/411 IPC, it was stated that accused
Anirudh Chakraborty at about 4.00 p.m had entered into the shop of
the complainant Sh. Manjeet Singh Chugh. When he was noticed,
accused Anirudh Chakraborty tried to run, in that process, he fell
down and was struck with a chair lying near by and sustained
injuries on his person and there was no scene of giving beatings to
him by Manjeet Singh Chugh. The statement of Anirudh
Chakraborty was recorded by the IO and he did not utter about any
beating given by Manjeet Singh Chugh. Anirudh Chakraborty was a
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drug addict, as mentioned in his MLC, he may have fallen and
struck against the chair which was lying there in the process of
fleeing away from there. On the said prosecution story, accused
Anirudh Chakraborty was convicted and sentenced for the period
which he had already undergone. It is further submitted that neither
the weapon of offence i.e. iron rod was recovered by the police
officials nor any witness was examined by the accused to corroborate
the version of Anirudh Chakraborty despite the fact that the spot
was residential cum commercial and thickly populated area. It is
further submitted that Manjeet Singh Chugh had filed many
complaints against police officials of PS Kotla Mubarakpur prior to
the registration of case FIR No. 387/02 u/s 380/411 IPC and FIR
No. 392/02 u/s 308/34 IPC , which shows the collusion and
connivance of the police officials of PS Kotla Mubarakpur for filing
charge sheet against him and his father. It is further submitted that
the police officials of PS Kotla Mubarakpur prepared the charge
sheet in case FIR No. 392/02 in haste without investigating the
matter properly. Hence, it is prayed that the charges may be framed
against the accused.
12. In the written submissions filed on behalf of Sh. Manjeet
Singh Chugh, again the history of this case is given. Thereafter, it is
submitted that accused had committed offences punishable u/s 193
and 195 IPC by illegally framing the applicant under section 308 IPC
with a well-planned conspiracy amongst them. There was a clear
report of the committee whereafter sanction was accorded for
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prosecution by the Hon'ble Lt. Governor against the accused person
in view of the creation of false evidence against the applicant which
led to the registration of case under section 308 IPC. It is further
submitted that at this stage the facts are sufficient for framing of
charge as only the complaint filed by Registrar General pursuant to
the direction passed by the Hon'ble High Court of Delhi vide order
dated 21.06.2010 and the evidence is yet to be adduced by the
complainant (sic). It is further submitted that to delve into the
culpability of the accused persons at the present juncture, on the
basis of the factual position would emerge only after evidence is
adduced by the applicant/ parties before the trial court. It is further
submitted that even otherwise the applicant was convicted on the
basis of false case filed by the accused persons as mentioned by
Hon'ble High Court of Delhi in its order and even otherwise, the
police enquiry report and further status report suggests that the
accused persons played a scheme upon the applicant by generating
false evidences which led to the basis of criminal proceedings against
the applicant. Hence, section 211 IPC is also attracted which deals
with the offences of instituting or causing to be instituted any
criminal proceeding or falsely charging any person of having
committed an offence even when there is no just or lawful ground for
such proceeding to the knowledge of the person instituting or
causing the institution of criminal proceedings. It is further
submitted that the applicant and his family had suffered a lot
because of this false case. The applicant had been prosecuted on the
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basis of a palpably false case on the basis of bogus evidence coupled
with the further allegations in the complaint filed by the applicant
before the higher authorities pursuant to which the Hon'ble High
court had exercised the jurisdiction under section 195 Cr.P.C. He
had relied upon the judgment of Hon'ble Supreme Court in Soma
Chakravarty v. State (Th. CBI), 2007 AIR SCW 3683, wherein it
has been held as under:
It may be mentioned that the settled legal
position, as mentioned in the above decisions, is that if
on the basis of the material on record the Court could
form an opinion that the accused might have committed
offence it can frame the charge, though for conviction
the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence. At the time of framing of the charges, the
probative value of the material on record cannot be gone
into and the material brought on record by the
prosecution has to be accepted as true at that stage.
Before framing a charge, the court must apply its
judicial mind on the material placed on record and
must be satisfied that the commitment of offence by
accused was possible. Whether, in fact, the accused
committed the offences, can only be decided in the trial.
13. He further relied upon the judgment of Hon'ble Supreme
Court in Amit Kapoor v. Ramesh Chander & Anr, (2012) 9 SCC
460. He has further contended that in the complaint filed before Ld.
CMM, the Magistrate should have followed the proviso to sub section
(2) section 202 and called upon the complainant to produce all his
witnesses and examined them on oath. That would be in consonance
with provision of section 208 which inter alia provides for supply of
copy of statements and documents to accused and would also
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facilitate the Sessions Court in framing charge or discharging the
accused. In a Sessions triable case, under section 226, the
prosecution has to open its case by describing the charge brought
against the accused and stating by what evidence it proposes to
prove the guilt of the accused. On such submission, the Sessions
court is required to consider the record of the case and the
documents submitted therewith and after hearing the submissions
of the accused and the prosecution in this behalf, to decide whether
there is sufficient ground or not for proceeding against the accused.
Upon such consideration, if the court finds that there is no sufficient
ground for proceeding against the accused, he shall be discharged
as provided under section 227. In case, where there is sufficient
ground, court is required to frame charge as provided under section
228. Hence, for the purpose of framing of charge also, the recording
of evidence is necessary. However, in a case where complaint is filed
by a public servant after holding inquiry and recording the
statements, question of recording of such evidence may not arise. He
has further relied upon the judgment of Hon'ble Supreme Court in
Rosy v. State of Kerala (2000) 2 SCC 230 wherein it has been held
as under:-
If a case instituted on complaint is committed to the
Court of Session without complying with the
requirements in clause (I) of Section 208 of the Code
how is it possible for the public prosecutor to know in
advance what evidence he can adduce to prove the guilt
of the accused? If no inquiry under Section 202 in to be
conducted, a magistrate who decides to proceed only on
the averments contained in the complaint filed by a
public servant (who is not a witness to the core
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allegation) and such a case is committed to the Court of
Session, its inevitable consequence would be that the
Sessions Judge has to axe down the case at the stage
of Section 226 itself as the public prosecutor would
then be helpless to state "by what evidence he proposes
to prove the guilt of the accused". If the offence is of a
serious nature or is of public importance the
consequence then would be miscarriage of justice.
14. It is further submitted that under section 244 Cr.P.C, it
is the Magistrate who has the power to record pre-charge evidence
after summoning of the accused persons in a warrant trial case and
while doing so, he should also allow cross examination of the
witnesses to be conducted on behalf of the accused. It is only on the
analysis of the evidence recorded before charge that the Magistrate
can take cognizance of an offence if it is so made out from the
evidence. He then relied upon the judgment of Hon'ble High Court of
Delhi in State v. Suresh Gautam Crl. Revision No. 625/2016
decided on 15.05.2010. It is further submitted that the documents
annexed herein clearly suggests that the accused persons had
unlawfully framed the applicant in case under section 308 IPC which
had no origin. In view of this factual position, he has prayed that the
charges may be framed against the accused.
15. Alongwith the written submissions, Sh. Manjeet Singh
has annexed the order of Delhi High Court dated 18.06.2010,
another order of Hon'ble High Court of Delhi in writ petition (Crl.)
no. 952/2010 dated 21.06.2010, another order of Hon'ble Delhi High
Court in Crl. Appeal No. 471/2004 dated 28.02.2008, the letter of
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DCP dated 20.01.2005 and the judgment of Hon'ble Supreme Court
in Rosy v. State of Kerala (supra).
16. On the other hand, it was contended by Sh. Anupam
Sharma on behalf of accused Sandeep Sharma and Ashok Kumar
and Sh. Yogesh Saxena on behalf of accused Sunil Jain that there is
nothing on record which could point to any evidence being
fabricated, falsified or any false evidence being given by any of the
accused with regard to the case FIR No. 392/02. In fact, both
Manjeet Singh Chugh and his father had been convicted by the court
of Sessions u/s 323 IPC which clearly reflects that there was no
falsification of evidence. Had there been any falsification of evidence
then the said evidence either should have been reflected in the order
of Hon'ble Delhi High Court whereby accused were acquitted or in
the complaint filed by the ld. Registrar General. However, neither the
order of Hon'ble High Court of Delhi specified what evidence had
been falsified by the accused nor the complaint provided any such
details. Manjeet Singh Chugh and his father were acquitted by
Hon'ble Delhi High Court on the premise that the case was the
outcome of the rivalry between the police officers and the appellants,
therefore, the appellants are entitled to acquittal on this ground
alone. This was opined only on the basis of vigilance inquiry which
was later overturned by the Commissionf of Police. However, it was
not observed or found that the accused had either falsified or
fabricated any evidence or given any false evidence in the court. It is
for no fault of the accused but they have been made to suffer on
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account of dogged persistence of Manjeet Singh Chugh merely
because they had followed the orders of the court in registering the
FIR. They have further contended that for prosecution under section
195 IPC, the process required to be followed is provided under
section 340 Cr.P.C which requires that the court before making a
complaint u/s 195 Cr.P.C has to record a finding that any offence as
mentioned in clause (b) of sub- section (1) of section 195 had been
committed in respect of any document produced or given in any
evidence and this can be done after the preliminary inquiry.
However, Hon'ble High Court of Delhi neither conducted any
preliminary inquiry nor gave any finding with regard to document
being fabricated or any false evidence being given by any of the
accused. In the present complaint also, there is not a single evidence
or document for which it can be said that the accused had either
given an evidence that was false or had fabricated any evidence.
They have further contended that even the basis on which Hon'ble
High Court of Delhi had acquitted Manjeet Singh Chugh and his
father in FIR No. 392/02 and ordered the filing of this complaint no
longer exists. The entire basis of acquittal of Manjeet Singh Chugh
and his father was the vigilance report against the accused and on
the same basis, this present complaint was ordered to be filed.
However, the said vigilance report was set aside. They have further
contended that at page 387, there is a status report filed by DCP
(South Distt) wherein it was stated that matter of FIR No. 392/02 be
decided on merits. Thereafter, there is another status report filed by
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DCP (South Distt) in appeal no. 471/04, which is at page 389 of the
court file wherein it was reported that the written reply of the
accused to the show cause notices were received and accused had
pleaded that they were not at fault as the case was registered on the
directions of Ld. MM. It was further submitted to the High Court that
considering the overall facts and circumstances, nothing malafide
was attributable on the part of the officers and the show cause
notices for censure issued to them were vacated. Therefore, they
have contended that the accused are entitled to discharge.
17. I have considered the rival contentions and perused the
record very carefully.
18. First I shall take up the legal contentions raised on
behalf of Manjeet Singh.
19. One contention is, that the Magistrate could not have
committed the matter to the court of Sessions without recording
the statement of complainant and his witnesses under the proviso
of sub clause (2) of section 202 of Cr.P.C.
20. The contention raised appears to be that it was
mandatory for the Ld. Magistrate to conduct an inquiry u/s 202
and record the statement under proviso of section 202 (2) Cr.P.C.
In this regard he has also relied upon the judgment of Hon'ble
Supreme Court in Rosy (supra).
21. However, I find that the reliance placed by Sh. Manjeet
Singh Chugh upon the judgment of Hon'ble Apex Court in Rosy
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(supra) to be misplaced. Contrary to what has been asserted by
this witness, the Hon'ble Supreme Court through Hon'ble Mr
Justice M.V Shah has spoken as under:-
We agree with the conclusion of the Madras High
Court to the effect that Section 202 is an enabling
provision and it is a direction of the Magistrate
depending upon the facts of each case, whether to
issue process straightway or to hold the enquiry.
However, in case where enquiry is held, failure to
comply with the statutory direction to examine all the
witnesses Would not vitiate further proceeding in all
cases for the reasons that (a) in a complaint filed by a
Public servant acting or purporting to act in dis-
charge of his official duties, the question of holding
inquiry may not arise, (b) whether to hold inquiry or
not is discretionary jurisdiction of the Magistrate, (c)
even if he decided to hold inquiry it is his further
discretion to examine the witnesses on oath. If he
decides to examine witnesses on oath in a case triable
exclusively by the court of Session, he shall call upon
the complainant to produce all his witnesses and
examine them on oath, (d) it would also depend upon
facts of each case depending upon the prejudice
caused to the accused by non-compliance of the
proviso (Sec. 465), and (e) that the objection with
regard to non-compliance of proviso should be taken
at the earlier stage when the charge is framed by the
Sessions Court. At initial stage, if objection is raised
and it is found by the Sessions Court that by non-
holding of inquiry, prejudice is caused to the accused,
he may direct the Magistrate to follow the procedure
prescribed under the proviso. It is no doubt true that
by the use of the words "shall", it appears that
language used in the proviso is of mandatory nature.
At the same time, it is a procedural law and it is to be
read in context of Section 200 which enables the
Magistrate to issue process without holding any
inquiry and that inquiry under Section 202 is itself
discretionary one- giving option to examine or not to
examine witnesses. Hence, proviso to the said sub-
section is required to be read accordingly though
couched in mandatory term by using the word 'shall'.
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Normally, the procedure prescribed therein should be
followed, but non-observance of the said procedure
may not vitiate further proceedings in all cases. In a
case where a complaint is filed, not by the public
servant, and where the offence is exclusively triable
by the court of Session the Magistrate should follow
the proviso to sub-section (2) of Section 202 and call
upon the complainant to produce all his witnesses
and examine them on oath. This would be in
consonance with the provision of Section 208 which
inter alia provides for supply of copy of statements
and documents to accused. This would also facilitate
the Sessions Court in framing the charge or
discharging the accused. In the Sessions triable case,
under Section 226 the prosecution has to open its
case by describing the charge brought against the
accused and stating by what evidence it proposes to
prove the guilt of the accused. On such submission,
the Sessions Court is required to consider the record
of the case and the documents submitted therewith
and after hearing the submissions of the accused and
prosecution in this behalf, to decide whether there is
sufficient ground or not for proceeding against the
accused. Upon such consideration, if the court finds
that there is no sufficient ground for proceeding
against the accused, he shall be discharged as
provided under s. 227. In case, where there is
sufficient ground, court is required to frame the
charge as provided under s. 228. Hence, for the
purpose of framing the charge also the recording of
such evidence is necessary. It also facilitates the
accused to know allegation made against him as well
as evidence in support thereof. However, in a case
where complaint is filed by a public servant after
holding inquiry and recording the statements,
question of recording of such evidence may not arise.
Hence, compliance of proviso by the Magistrate in all
Sessions triable cases is not a must and would not
vitiate the further trial unless prejudice caused to the
accused is established.
22. It was further held :
Hence, what emerges from the above discussion is :
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I. (a) Under Section 200 Magistrate has jurisdiction to
take cognizance of an offence oa the complaint after
examining upon oath the complainant and the
witnesses present;
(b) When the complaint is made in writing by a public
servant acting or purporting to act in discharge of his
official duties, the Magistrate need not examine the
complainant and the witnesses.
(c) In such case Court may issue process or dismiss the
complaint.
II. (a) The Magistrate instead of following the procedure
stated above may, if he thinks fit, postpone the issue of
process and hold inquiry for the purpose of deciding
whether or not there is sufficient ground for proceeding
against the person ac-cused. Such inquiry can be held
by him or by the police officer or by other person
authorised by him.
(b) However, where it appears to the Magistrate that the
offence complained of is triable exclusively by the court
of Sessions, the direction of investigation by the police
officer is not permissible and he is required to hold
inquiry by himself. During that inquiry he may decide
to examine the witnesses on oath. At that stage, proviso
further gives mandatory direc-tions that he shall call
upon the complainant to produce all his witnesses and
examine them on oath. The reason obviously is that in
a private complaint, which is required to be com-mitted
to the Sessions Court for trial, it would safeguard the
interest of the accused and he would not be taken by
surprise at the time of trial and it would reveal the
version of the witnesses whose list is required to be
filed by complainant under Section 204 (2) before
issuance of the process,
(c) The irregularity or non-compliance thereof would not
vitiate the further proceeding in all cases. A person
complain-ing of such irregularity should raise objection
at the earliest stage and he should point out how
prejudice is caused or is likely to be caused by not
following the proviso. if he fails to raise such objection
at the earliest stage. he is precluded from raising such
objection later.
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23. Further with regard to proceedings being vitiated by
non compliance of proviso of section 202 Cr.P.C, Hon'ble Justice
K.T Thomas though held that in session triable cases the
Magistrate is bound to record evidence under proviso 2 of section
202 Cr.P.C but it is further held as under:-
I reiterate that if the magistrate omits to comply
with the above requirement that would not, by itself,
vitiate the proceedings. If no objec-tion is taken at the
earlier stage regarding such omission the court can
consider how far such omission would have led to
miscarriage of justice, when such objection is taken at
a later stage. A decision on such belated objection can
be taken by bearing in mind the principles
adumbrated in Section 465 of the Code.
24. A bare reading of the judgment cited by Sh. Manjeet
Singh Chugh reflects that a law laid down in this judgment is not
what has been asserted by Mr. Chugh. In fact, in cases where a
complaint is filed by a public servant and is in respect to offence
exclusively triable by a court of session, it has been categorically
held by hon'ble Justice Shah that there would no requirement of
recording any evidence under proviso 2 of 202 Cr.P.C and on this
point, i.e. with respect to a complaint filed by a public servant,
Hon'ble Justice K.T. Thomas had not differed. Even otherwise, this
judgment itself holds that the failure to comply with the proviso of
section 202(2) Cr.P.C will not vitiate the proceedings especially
when the party raising such ground fails to do so at the initial
stage.
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25. In the present case, Sh. Manjeet Singh Chugh had been
regularly attending this case and had even preferred a revision
petition before Hon'ble High Court against an order of my learned
Predecessor and therefore, from the very beginning he was well
aware of the proceedings in this case. However, the objection
which has been raised in the written submissions with regard to
non-compliance of proviso of section 202 (2) was never raised.
Therefore, I find no force in the contention under discussion
because firstly, as the present complaint was filed by a public
servant, there was no occasion for the Magistrate to resort to
proviso of section 202 Cr.P.C and secondly, this objection has been
raised for the first time almost 09 years after the matter had been
committed to the court of Sessions.
26. The next contention raised by Sh. Manjeet Singh
Chugh is, that the proceedings are again vitiated because before
committing the matter, it was mandatory for the Magistrate to
record evidence under section 244 Cr.P.C. In this regard, he has
relied upon a judgment of Hon'ble Delhi High Court in Suresh
Gautam (supra) wherein it has been held as under:
6. Under Section 244 Cr.P.C., in any warrant case
instituted other than on a police report, if the accused
appears or is brought before the Magistrate, the
Magistrate has to hear the prosecution and take
such evidence as may be produced in support of the
prosecution. If upon taking of evidence referred to
in Section 244 Cr.P.C., the Magistrate considers that
no case is made out against the accused, then
under Section 245 Cr.P.C., the Magistrate is
empowered to discharge the accused. If after taking
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such evidence into account the Magistrate is of the
opinion that there is ground for presuming that the
accused has committed an offence triable by him,
which such Magistrate is competent to try and
adequately punished by him, he is to proceed further
to frame a charge.
.....
....
10. Supreme Court has further held that the whole approach underlying recording of evidence underSection 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him but also to defend himself by cross examining the witnesses with a view to showing that the witness is either unreliable or a statement made by him does not have any evidentiary value. Further it is held that the right of cross examination granted to an accused under Section 244 to 246 even before framing of charge does not prejudice the complainant or result in any failure of justice; while denial of such right is bound to prejudice the accused in his defence and an opportunity to show that he should not be made to suffer the rigors of a trial.
11. In the present case, by impugned order, the Sessions Court while rejecting the application filed by the State, has in fact noticed that no pre charge evidence has been recorded by the Metropolitan Magistrate before committing the case to sessions. The only reason given for dismissal of the application is that since charges have already been framed by the predecessor court, the successor Court would have no power to review the order.
12. Clearly the reasoning given by the Sessions Court is not sustainable and the manner in which the charge has been framed by the MM prior to committal is contrary to the law laid down by the Court in Sunil Mehta (Supra). No pre-charge evidence has been recorded in this case and reliance has been placed solely on the pre- summoning evidence for the purposes of framing of charge.
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27. I have carefully considered this contention raised by Mr. Chugh. However, I find that section 244 Cr.P.C is the opening section of part B of Chapter XIX of the Cr.P.C. Part B of Chapter XIX is titled as "Cases Instituted Otherwise Than On a Police Report" and the opening portion of section 244 Cr.P.C further makes it clear when it states that it applies to a warrant case instituted otherwise than a police report. Meaning thereby, that part B of Chapter 19 with regard to trial of warrant cases by the Magistrate applies to complaint cases and not to cases filed on the basis of a police report.
28. This brings me to the present complaint. The present complaint has been filed u/s 195 Cr.P.C. r/w 340 Cr.P.C. The complaint has been filed for offences u/s 193 and 195 IPC a cognizance of which as per section 195 (b)(I) can only be taken on a complaint filed in writing by the court concerned, or such officer as has been authorized by the said court in writing to do so. The procedure for filing a complaint u/s 195 Cr.P.C is provided u/s 340 Cr.P.C which reads as under:-
340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-
section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
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(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195. (3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section 195.
29. Therefore, it means that when a complaint is filed u/s 195 Cr.P.C for an offence which has been committed in relation to the proceedings of a court, the procedure as provided above has to be followed. It is further noteworthy that as per section 343 Cr.P.C, the Magistrate taking the cognizance on a complaint made u/s 340 Cr.P.C i.e. a complaint such as the present complaint, has to deal SC No. 491/19 (Parveen Singh) Page No. 24 of 32 ASJ-03/NDD/PHC: 02.11.2020. with the case as it was instituted on a police report. Section 343 Cr.P.C reads as under:-
343. Procedure of Magistrate taking cognizance.
(1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.
(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.
30. A reading of section 195, 340 and 343 Cr.P.C leads us to the conclusion that a complaint u/s 195 Cr.P.C r/w section 340 Cr.P.C is an exception to chapter XV of Cr.P.C and it has to be considered on the same footing as a case instituted on police report. That being the case, it will not be the procedure specified under part B of Chapter XIX that will be applicable but such a complaint shall be governed by the procedure provided under part A of Chapter XIX which does not provide for any recording of pre charge evidence as provided under part B of Chapter XIX or section 244 of Cr.P.C. Hence, the contention of Sh. Chugh, though not worded specifically so, that the matter be remanded back to the Magistrate for recording of evidence u/s 244 Cr.P.C cannot be accepted.
31. Another contention of Sh. Manjeet Singh Chugh is that the order of Hon'ble High Court and police inquiry suggest that SC No. 491/19 (Parveen Singh) Page No. 25 of 32 ASJ-03/NDD/PHC: 02.11.2020. accused schemed and generated false evidence which led to criminal proceedings against Mr. Chugh and his father, hence, section 211 IPC is attracted. Meaning thereby, it appears to be asserted that a charge u/s 211 IPC may be framed for falsely implicating him. However, the scheme of Cr.P.C makes it very clear that in the present case no charge u/s 211 IPC can be framed because even the cognizance of such an offence without a complaint u/s 195 Cr.P.C is prohibited and as the present complain has only been filed u/s 193 and 195 IPC, no such charge can be framed.
32. Coming on to the merits of the case.
33. The present complaint has been filed u/s 193 and 195 IPC.
34. Section 193 IPC reads as under:
193. Punishment for false evidence.--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1.--A trial before a Court-martial;
1[***] is a judicial proceeding. Explanation 2.--An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for SC No. 491/19 (Parveen Singh) Page No. 26 of 32 ASJ-03/NDD/PHC: 02.11.2020.
trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence. Explanation
3.--An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.
35. Section 195 IPC reads as under:
195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment.--Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which 1[by the law for the time being in force in 2[India]] is not capital, but punishable with 3[imprisonment for life], or impris-
onment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. Illustration A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of a dacoity. The punishment of dacoity is 3[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, with or without fine. A, therefore, is liable to 3[imprisonment for life] or imprisonment, with or without fine.
36. The primary requirement for an offence u/s 193 IPC and 195 IPC being committed is, that the person against whom charge is proposed to be framed under these sections should have either given a false evidence before the court or fabricated false evidence.
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37. Ld. Addl. PP had candidly admitted that they have nothing on record to show what evidence which was given by any of the accused in the court during the trial of FIR No. 392/02 was false.
38. I have also gone through the judgment of Ld. ASJ, Patiala House Court in FIR No. 392/02.
39. In the said judgment also, there is no finding that any of the accused, who had appeared as witnesses before the court, had given any false evidence on oath. SI Sunil Jain and SI Sandeep Sharma had appeared as witnesses in this case whereas Insp. Ashok Kumar had not appeared as a witness in this case. Therefore, there is no finding in that judgment that any of the accused had given any false evidence. Even the judgment of Hon'ble Delhi High Court dated 28.02.2008 also does not record that any of the accused had given any false evidence. Also there is nothing on record to show that any evidence was fabricated or falsified by any of the accused in FIR no. 392/02. Therefore, the basic ingredients for framing a charge u/s 193 IPC and 195 IPC are missing.
40. The written submissions filed on behalf of the State by Ld.Addl. PP clearly reveal that though they are quite lengthy but not a single fact which had been falsely deposed by any of the accused or a single evidence which had been fabricated or falsified by any of the accused, has been mentioned in the entire written submissions.
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41. Sh. Manjeet Singh Chugh, who has been pursuing this matter, had also filed his written submissions and perusal of the written submissions would reveal that he had also not even mentioned what false evidence was given by any of the accused or, what evidence was falsified or fabricated by any of the accused.
42. However, during the oral arguments, Sh. Manjeet Singh Chugh had contended that there was falsification of record by the accused when they recorded two different sets of facts in two FIRs.
43. It is correct that in FIR no. 387/02 u/s 380/411 IPC, lodged on the complaint of Sh. Manjeet Singh Chugh, it was recorded that accused in that case had suffered injuries because in the process of escaping, he had fallen down and hit his head on a chair and in FIR No. 392/02 u/s 308/34 IPC; in which Sh. Manjeet Singh Chugh and his father were accused, it was recorded that the Anirudh Chakraborty had been beaten by Manjeet Singh Chugh and his father and that is how, he suffered the injuries.
44. However, it is to be noticed that recording of these two different versions in two FIRs cannot be said to be falsification of the evidence. The first FIR i.e. FIR No. 387/02 was recorded on the basis of whatever was stated on behalf of complainant Sh. Manjeet Singh Chugh. The second FIR i.e. FIR No. 392/02 was recorded on the basis of the statement as had been given by Anirudh Chakraborty, who was accused in FIR lodged by Sh. Manjeet Singh Chugh. It is also noteworthy that even as per the complaint, this SC No. 491/19 (Parveen Singh) Page No. 29 of 32 ASJ-03/NDD/PHC: 02.11.2020. FIR was registered on the directions of Ld. MM and therefore, for registering this FIR, the accused cannot be faulted with.
45. It is nowhere the case that Anirudh Chakraborty had not given any statement on the basis of which, FIR No. 392/02 was recorded or, that his statement was falsified by the accused persons. On the contrary, Anirudh Chakraborty had appeared as a witness in the trial of that case and deposed on the lines of his statement, which became the basis of FIR in that case, and the trial resulted in conviction.
46. It is also noteworthy that statement of Anirudh Chakraborty, which became the basis of recording of FIR No. 392/02, was recorded pursuant to the directions of Ld. MM where he had sought explanation from the SHO as well as the IO of FIR No. 387/02 as to why, no action was taken against the persons, who as per the allegations of Anirudh Chakraborty i.e. accused in FIR no. 387/02, had caused injuries to him. This statement was recorded in the court after the permission of the court. Thus, there is no evidence or allegation of any false evidence deposed or fabrication or falsification of evidence against any of the accused.
47. Another contention of Sh. Manjeet Singh Chugh is that despite the result of MLC that injuries were simple, accused had invoked 308 IPC and falsely implicated him for a higher offence.
48. Even if this argument is taken on its face value, it does not fulfill the criteria or the ingredient for offences u/s 193 IPC SC No. 491/19 (Parveen Singh) Page No. 30 of 32 ASJ-03/NDD/PHC: 02.11.2020. and 195 IPC because invoking section 308 IPC does not amoun to giving false evidence or fabrication of evidence.
49. A further contention is, that vigilance inquiry against accused had reflected that accused had falsely implicated Manjeet Singh and this becomes a case for framing charges u/s 193 IPC and 195 IPC.
50. Here again, even if the vigilance inquiry is taken on face value, there has to be a falsification of evidence or false evidence being given by any of the accused, which has to be prima facie shown. For bad investigation, accused can be liable for department action and not charged with offences u/s 193 and 195 IPC.
51. Secondly, on page no. 389 of the file is a status report, which was filed by Sh. Anil Shukla, Deputy Commissioner of Police in Appeal (Crl.) No. 471/2004 i.e. the appeal of Sh. Manjeet Singh Chugh and his father against conviction in FIR No. 392/02. The status report is as under:-
Status Report In compliance of this Hon'ble High Court order dated 14.11.2007, it is submitted that show cause notices for censure were issued to Inspr. Ashok Kumar No. D-I/992-the then SHO/ Kotla Mubarakpur, SI Sunil Jain, No. D-3546 and SI Sandeep Sharma No. D-487 for their carelessness and negligence in registration of case FIR No. 392/2002 U/s 308/34 IPC K.M Pur, New Delhi. The above officers were also transferred to the non sensitive units.
In their written replies to the show cause notices, the officers pleaded that they were not at a fault as the above case was registered on the direction of Sh. S.K Sharma, the then Ld. M.M, Patiala House Court, New SC No. 491/19 (Parveen Singh) Page No. 31 of 32 ASJ-03/NDD/PHC: 02.11.2020.
Delhi. Considering all the facts and circumstances, nothing malafide attributed on the part of the officers. Therefore, show cause notices for censure issued to them were vacated.
52. Therefore, even the vigilance inquiry was finally overturned and the show cause notices were withdrawn against these accused persons. Hence, I find that there is nothing before me which would raise grave suspicion of commission of offences u/s 193 IPC and u/s 195 IPC. All the accused are accordingly discharged. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to record room.
Announced in open court (Parveen Singh) today on 02.11.2020 ASJ03, New Delhi Distt., (This order contains 32 pages Patiala House Court, Delhi. and each page bears my signatures.) SC No. 491/19 (Parveen Singh) Page No. 32 of 32 ASJ-03/NDD/PHC: 02.11.2020.