Delhi District Court
Gurbax Singh vs The State on 25 February, 2016
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CR No.06/2016
Gurbax Singh,
S/o Late Sh. Joginder Singh
R/o House No.B4/42, Paschim Vihar,
New Delhi. .....Revisionist.
Versus
The State .....Respondent.
A N D CR No.07/2016 Anshu Mendiratta, S/o Sh. Naresh Kumar, R/o House No.B100, Ashok Vihar, Phase1, Delhi. .....Revisionist.
Versus
The State .....Respondent.
A N D
(CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 1 of pages 10
CR No.08/2016
Smt. Neeru Arora,
W/o Sh. Rajesh Kumar Arora,
R/o House No.256, Ashok Vihar,
Phase - 1, Delhi. .....Revisionist.
Versus
The State .....Respondent.
A N D
CR No.09/2016
Sandeep Kumar,
S/o Sh. Gurbax Singh,
R/o House No.B4/42,
Paschim Vihar, New Delhi. .....Revisionist.
Versus
The State .....Respondent.
A N D
CR No.10/2016
Ashish Mendiratta,
S/o Sh. Naresh Kumar,
(CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 2 of pages 10
R/o House No.B100,
Ashok Vihar, Phase1, Delhi. .....Revisionist.
Versus
The State .....Respondent.
Received on assignment. : 21.01.2016.
Date of arguments. : 25.02.2016.
Date of judgment. : 25.02.2016.
:J U D G M E N T:
1. By this common judgment, I shall dispose of the above mentioned five revision petitions.
2. Aggrieved by the order dated 11.01.2016 passed by Ld. MM04 (West)/Delhi in a case bearing FIR No.198/2013 PS Mianwali Nagar U/s 288/336/427 IPC titled as State Vs. Gurbax Singh & Ors, whereby Ld. Trial Court had ordered to frame charge U/s 288/336 IPC and in the alternative U/s 427 IPC against all the five accused persons (revisionists herein), the revisionists have preferred the separate revision petitions on 20.01.2016 for setting aside the impugned order thereby discharging the revisionists herein from the case.
3. Notices of the petitions were accepted by Ld. Addl. PP on behalf of State/respondent.
4. I have heard Sh. Nitin Sehgal, Ld. Counsel for revisionists and Sh. Ram Pyara, Ld. Addl. PP for the State. I have also heard the submissions of Sh. Sudeep Yadav, Advocate, who made his appearance on behalf of (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 3 of pages 10 complainant. I have also perused the entire material placed on record particularly, the impugned order, record summoned from the Trial Court, contents of the revision petition specially the grounds taken therein.
5. It has been submitted by Ld. Counsel for the revisionists that the impugned order dated 11.01.2016 as passed by Ld. Trial Court is not justified and is contrary to the records of the present case. There are no allegations against the revisionists and no role has been assigned to them in the whole charge sheet, filed by the police. While passing the impugned order, Ld. Trial Court did not consider the basic fact in the present case that no ingredient of Section 288/336/427 IPC is fulfilled, as per the allegations. Further while passing the impugned order, it has not been considered that the revisionists were not even present at the spot and there is no direct and proximate link between the incident and any such act of the revisionists. It is further submitted that the revisionists no.2 to 5 had authorized revisionist no.1 Gurbax Singh, vide an agreement, to carry out the construction and were directly not involved in the work of the construction/excavating the basement. Further Ld. Trial Court had erred in passing the impugned order that to encompass the offence, there must be mensrea i.e. criminal negligence, which is missing in this case. Ld. Trial Court has passed the impugned order against the revisionists only on the basis of the fact that they are the owners of the property as per the MCD records and so they are liable for the offence, can not be taken as legally correct because to constitute the criminal case, there should be prima facie (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 4 of pages 10 evidence against the person that he had the mensrea or that the act of the person should have direct and proximate link with the occurrence, which is totally missing in the present case. In his submissions Ld. Counsel for the revisionists has placed reliance upon the following judgments:
(i). Ambalal D. Bhatt Vs. State of Gujrat reported as 1972 AIR (SC) 1150.
(ii).Kurban Hussain Mohmedaali Rangawalla Vs. State of Maharashtra reported as 1965 AIR (SC) 1616.
(iii).Gulijeet Singh Lochar & Anr. Vs. State reported as 121 (2005) DLT 516.
(iv).Abdul Kalam Vs. State reported as 129 (2006) DLT - 613.
(v).Ataur Rehman Vs. State Delhi High Court
(vi).Ajay Malik Vs. State reported as 1996 JCC
- 312 Delhi High Court
(vii).Dilawar Balu Kurane 2002 AIR (SC) 564.
(viii).Bishan Swaroop Sharma Vs. State reported as 119 (2005) DLT 509.
Per contra according to Ld. Addl. PP for the State and Ld. Counsel for complainant, there is no illegality or patent error in the impugned order. The sanctioned plan by MCD was sanctioned in the name of all the revisionists being the owners of property and the said document bear their names as well as their respective signatures and they were bound to do excavation for the basement by leaving four meters of land from the plot of complainant but they did not do so, consequent to which the incident took place. Moreover, the (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 5 of pages 10 alleged power of attorney was prepared in favour of revisionist no.1 only after the occurrence, just to save the other revisionists. Ld. Trial court has passed the impugned order after considering all the aspects of the case and as such, the instant revision petitions as preferred by the revisionists are liable to be dismissed.
6. Law in respect of the question of framing of charge is well settled. At this preliminary stage of trial, the Court is not required to see and evaluate the evidence proposed to be led by the prosecution meticulously with an idea to find out the guilt or otherwise of the accused. At this stage, the Court is required to see only prima facie evidence and even the charge can be framed on the basis of grave suspicion. At the same time it is also well established that the Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on.
In the celebrated judgment of the Hon'ble Supreme Court reported as AIR 1979 SC 366 titled as Union of India Vs. Prafulla Kumar Samal and Another it was held that, "the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out. In para 10 of the judgment, the Court further observed:
(i). That the Judge while considering the question (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 6 of pages 10 of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(ii). Whether materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with trial.
(iii). The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(iv).That in exercising his jurisdiction under Section 227 of the Code of Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 7 of pages 10 on. This however, does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In 1994 (1) C.C. Cases 578 (HC) titled as Bhim Singh Vs. State, it was held that, "The stage of framing of charges is an important stage in the criminal trial and the Judge concerned has to carefully evaluate and consider the entire available material on record and he must judiciously apply his mind. Framing of charges erroneously would mean futile criminal prosecution for several year. The responsibility of the Judge concerned is particularly far greater in our country because of long delay in criminal trials and final disposal of criminal cases."
In 2001 (1) C.C. Cases (HC) 398 titled as Sh. Sukh Ram Vs. C.B.I. it was held that, "While sifting the material put up for the purposes of framing of charges, the Courts, should desist from approaching the subject with suspicion and with a negative attitude. A Court is required to examine the material without any preconceived notion, positively and objectively. The material placed before it must speak for itself giving rise to grave suspicion. No presumption can be drawn unless there is cause to do so based on the material being examined....... A Court is bound by the material placed before it and not what is in the mind of the prosecution.
7. Having heard the aforesaid rival submissions of both the sides and perusing the entire material by calling the Trial Court record, particularly the impugned order, contents of revision petition and the grounds taken therein and (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 8 of pages 10 considering the aforementioned settled law, I have come to the considered opinion that there is no infirmity or illegality in the observation recorded by Ld. Trial Court in the impugned order dated 11.01.2016. Ld. Trial Court has considered each and every aspect of the case while passing the said order and has taken into account all the aspects of the case and I do not find any reason to interfere in the findings of the same.
Admittedly, revisionists are the owners of the property and as the sanctioned plan bears their names and signatures as applicants, so they can not claim that they were not aware about the terms and conditions of the sanctioned plan, according to which the work of the construction was to be executed. Further so far as the contentions as raised by the revisionists in the instant petitions more particularly to the effect that the revisionists no.2 to 5 had authorized revisionist no.1 Gurbax Singh, vide an agreement, to carry out the construction and were directly not involved in the work of the construction/excavating the basement, the revisionists can very well present the same before Ld. Trial Court at the relevant stage as they are the matter of trial and they can not be given weightage as they are the proposed defence and at this stage, the Court is required to see only prima facie evidence and even the charge can be framed on the basis of grave suspicion. It has been held in Bharat Parikh Vs. CBI and Anr., [2008] INSC 1109 (14 July 2008) by Hon'ble Supreme Court of India that: "at the stage of framing charge roving and fishing inquiry is impermissible and a mini (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 9 of pages 10 trial cannot be conducted at such stage.
The the stage of framing of charge the submissions on behalf of accused has to be confined to the material produced by the investigating agency."
In Sajjan Kumar Vs. CBI, JTY 2010 (10) SC 413, it is held by Hon'ble Supreme Court of India that : "while framing of charge, magistrate cannot make roving enquiry nor the judge or Magistrate can analyse all material, including pros and cons, reliability or acceptability."
8. In view of aforesaid, I do not find any merits in the revision petitions and as such same are hereby dismissed.
9. TCR along with a copy of judgment be sent back to Ld. Trial Court for information and proceeding further in the matter as per law.
10. Revisionists/accused persons are directed to appear before Ld. Trial Court on 14.03.2016.
11. Copy of this judgment be also placed in other connected files.
12. Revision files be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1) on 25th February, 2016) ASJ/Spl. Judge (NDPS) (West) Tis Hazari Courts, Delhi (CR No.06/2016, 07/2016, 08/2016, 09/2016 & 10/2016) Page No. 10 of pages 10