Delhi District Court
State vs . Devender Singh Etc. on 29 November, 2011
1
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.:421/2004
P.S: Timarpur
State Vs. Devender Singh Etc.
29.11.2011
This is an order on the point of charge.
1.Brief facts giving rise to present case are that on 25.9.2004 on receipt of DD no.23 PP Burari, ASI Babu Ram reached at the Pentamed hospital Derawal Nagar where HC Virender Singh alongwith Ct. Balwinder Singh were present. HC Virender Singh handed over the MLC of injured Umesh Bali to ASI Babu Ram. In the MLC the doctor has opined that patient admitted with alleged history of hit by rod on head at around 6.45 p.m. and the nature of injuries as dangerous. Patient was declared unfit for statement and on further inquiry, complainant Satpal Nagar came forward who told himself as eye witness of the case and gave his statement that he works as caretaker in Hoover Apartment, Main Road Burari, Delhi. He stated that on 25.9.2004 he alongwith one Subhash were talking in the morning when their Head Engineer Umesh Bali after meeting with their owner Sh. P. K. Gupta was coming in the gali and in that gali the construction work of one Pradeep Aggarwal was going on. For the construction, they have installed "pad" etc in the gali due to 2 which 34 feet gali was occupied and the motorcycles of labours and some persons known to Pradeep Aggarwal were standing near the wall of Hoover Apartment due to which there was no thoroughfare left. Umesh Bali told the labours to remove their motorcycle, in the meanwhile Pradeep Aggarwal and his contractor Tiwari and his munshi came and hit Umesh Bali with rods. On the statement of the complainant and from the MLC, case u/s 307/34 IPC was made out against the accused persons and case was registered against the accused persons. IO made further enquiry in the present case and came to the conclusion that accused Pradeep Aggarwal and his contractor Lal Bihari Tiwari were not present at the spot and therefore, they were put in khana no.2 and after completion of investigation, charge sheet u/s 307 IPC was filed against accused persons. The accused persons put in khana no.2 were not summoned by the trial court and it was accused Devender Singh who was summoned and subsequently the case was committed to the court of Sessions by the trial court. Vide order dated 20.2.2008, it was observed by my Ld. Predecessor that Sessions Court can proceed against the accused persons who has not been sent for trial only under section 319 Cr. P.C. This power cannot be invoked prior to the evidence collection stage. Therefore, the trial of accused Devender Singh was started and charge u/s 307 IPC was framed by my Ld. Predecessor against accused Devender Singh. Subsequently when the case was fixed for the evidence, then report on the summons of Umesh Bali was received that injured succumbed to his injuries on 3 01.1.2008. Postmortem on the deceased was conducted on 4.1.2008 and it was found that inflicted injuries on the body of deceased particularly the head injury were " sufficient in ordinary course of nature to cause the death " .
2. A supplementary chargesheet against all the three accused persons u/s 302/34 IPC was filed in the trial court. Since now accused Pradeep Aggarwal and his contractor Lal Bihari Tiwari were not shown in khana no.2 and, therefore, they were summoned by the trial court and after their summoning, the supplementary chargesheet against the accused persons was committed to the court of Sessions. In the meanwhile, accused Pradeep Aggarwal went in revision against the order of summoning of the trial court and vide order dated 11.8.2010, Hon'ble High Court while allowing the revision of accused Pradeep Aggarwal observed that Sessions Court shall be at liberty to take a decision in terms of section 319 Cr.P.C, after going through the supplementary chargesheet, documents annexed thereto as also the relevant statements recorded.
3. Now during the course of arguments on the point of charge, Ld. counsel for the accused Lal Bihari Tiwari has sought parity and submitted that accused Lal Bihari Tiwari is to be treated at par with accused Pradeep Aggarwal and, therefore, his summoning order be quashed and no charge u/s 302 IPC is made out against him.
4. On the other hand, Ld. APP for the State argued that it is only summoning order of the trial court that has been quashed by Hon'ble High 4 Court and Hon'ble High Court has not discharged the accused Pradeep Aggarwal on merits and has nowhere observed that no case is made out against accused Pradeep Aggarwal. He further argued that even Hon'ble High Court held that Sessions Court shall be at liberty to take a decision in terms of section 319 Cr.P.C, after going through the supplementary chargesheet, documents annexed thereto as also the relevant statements recorded. Therefore accused Lal Bihari Tiwari who is seeking parity cannot be discharged and prima facie case is made out against him.
5. In the present case supplementary chargesheet against the accused persons was filed in the year 2009. Against that order of summoning it is only accused Pradeep Aggarwal who went in revision. Accused Lal Bihari Tiwari has not challenged the order of summoning till date neither before the Hon'ble High Court nor in the Sessions Court. Thereafter the trial court has also committed the case to the court of Sessions and Sessions Court has also taken the cognizance of the offence. Moreover, every accused has been assigned a particular role and his role has to be judged in the facts and circumstances of each case. Even the Hon'ble High Court has not discharged the accused Pradeep Aggarwal and therefore, at the time of charge, accused Lal Bihari Tiwari cannot claim any parity with that of accused Pradeep Aggarwal. So far as the plea of alibi taken by accused Lal Bihari Tiwari is concerned, then it is a question of fact and not of law as to whether he was present at the spot on the date of incident or not. This question requires evidence which cannot 5 be decided without there being an evidence of both the parties.
6. Moreover, Hon'ble Supreme Court in case titled as State vs. Debendra Nath Padhi AIR 2005 SC 359 while overruling the observations made in Satish Mehra vs. Delhi Administration and Anr. ( MANU/SC/1580/1996) held that: "CriminalCriminal Procedure Code ( Cr.PC), 1973 Section 91, 173, 207, 207 (1), 207 (4), 207 (5), 207 (6), 207 (7), 207 (11), 207 (14), 207 A, 209, 227, 228, 228 (1), 239, 240 - Constitution of India Article 14, 21, 226 Power for Trial Court to consider material filed by accused at the time of framing of charge Validity of Observations made in case of Satish Mehra v. Delhi Administration and Anr. that if accused succeeded in producing any reliable material at stage of taking cognizance or framing of charge which might fatally affect even very sustainability of case, it is unjust to suggest that no such material should be looked into by court at that stage Although views expressed in Satish Mehra's case supported by accused However challenged by state on ground that observations in Satish Mehra's case amounted to upsetting well settled legal propositions and making nugatory amendments in Code of Criminal Procedure and would result in conducting a mini trial at stage of framing charge Matter referred to decision by a larger bench. Since at the stage of framing of charge roving and fishing inquiry is impermissible, held that if the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge which would defeat the object of the Code Permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage is against the criminal jurisprudence The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of section 227 of the Code held to be not correctly 6 decided Direction given to Trial Court to proceed from the stage of framing of charge and to expeditiously conclude the trial."
7. In the present case, the statement of the complainant on the basis of which present case was registered, cannot be overlooked as the complainant has specifically taken the name of accused Lal Bihari Tiwari and Devender Singh. Though during the further enquiry, in the police report IO himself has mentioned that accused Lal Bihari Tiwari was present in his village but as discussed above the plea taken by the accused cannot be considered at this stage without giving an opportunity to the prosecution to rebutt the plea of the accused and also accused is required to prove the same. The defence taken by the accused cannot be considered at this stage. Thus, prima facie case u/s 302/34 IPC is made out against both the accused persons. Now to come up for framing of charge on 31.1.2012.
(MADHU JAIN) ASJ01(N)/DELHI 29.11.2011 Announced in the open court today i.e. on 29.11.2011.