1 IN THE COURT OF MS. [ENTITY], ADDITIONAL SESSIONS JUDGE01, NORTH, DELHI. FIR No.:4[SECTION]/2004 P.S: Timarpur State Vs. [ENTITY] 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 [ENTITY], ASI [ENTITY] reached at the Pentamed hospital Derawal Nagar where HC [ENTITY] alongwith Ct. [ENTITY] were present. HC [ENTITY] handed over the MLC of injured [ENTITY] to ASI [ENTITY]. 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 [ENTITY] 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 [ENTITY] were talking in the morning when their Head Engineer [ENTITY] after meeting with their owner Sh. [ENTITY] was coming in the gali and in that gali the construction work of one [ENTITY] was going on. For the construction, they have installed "pad" etc in the gali due to which 34 feet gali was occupied and the motorcycles of labours and some persons known to [ENTITY] were standing near the wall of Hoover Apartment due to which there was no thoroughfare left. [ENTITY] told the labours to remove their motorcycle, in the meanwhile [ENTITY] and his contractor [ENTITY] and his munshi came and hit [ENTITY] with rods. On the statement of the complainant and from the MLC, case u/[SECTION] [ACT] 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 [ENTITY] and his contractor [ENTITY] were not present at the spot and therefore, they were put in khana no.2 and after completion of investigation, charge sheet u/[SECTION] [ACT] was filed against accused persons. The accused persons put in khana no.2 were not summoned by the trial court and it was accused [ENTITY] 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] [ACT] This power cannot be invoked prior to the evidence collection stage. Therefore, the trial of accused [ENTITY] was started and charge u/[SECTION] [ACT] was framed by my Ld. Predecessor against accused [ENTITY]. Subsequently when the case was fixed for the evidence, then report on the summons of [ENTITY] was received that injured succumbed to his injuries on 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/[SECTION] [ACT] was filed in the trial court. Since now accused [ENTITY] and his contractor [ENTITY] 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 [ENTITY] 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 [ENTITY] observed that Sessions Court shall be at liberty to take a decision in terms of [SECTION] [ACT], 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 [ENTITY] has sought parity and submitted that accused [ENTITY] is to be treated at par with accused [ENTITY] and, therefore, his summoning order be quashed and no charge u/[SECTION] [ACT] 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 Court and Hon'ble High Court has not discharged the accused [ENTITY] on merits and has nowhere observed that no case is made out against accused [ENTITY]. 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] [ACT], after going through the supplementary chargesheet, documents annexed thereto as also the relevant statements recorded. Therefore accused [ENTITY] 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 [ENTITY] who went in revision. Accused [ENTITY] 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 [ENTITY] and therefore, at the time of charge, accused [ENTITY] cannot claim any parity with that of accused [ENTITY]. So far as the plea of alibi taken by accused [ENTITY] 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 be decided without there being an evidence of both the parties.
6. Moreover, Hon'ble Supreme Court in case titled as [PRECEDENT] while overruling the observations made in [ENTITY] vs. Delhi Administration and Anr. ( MANU/SC/1580/1996) held that: "[ACT] - [ACT] [SECTION], [SECTION], [SECTION] Power for Trial Court to consider material filed by accused at the time of framing of charge Validity of Observations made in case of [ENTITY] 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 [ENTITY]'s case supported by accused However challenged by state on ground that observations in [ENTITY]'s case amounted to upsetting well settled legal propositions and making nugatory amendments in [ACT] 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. [ENTITY]'s case holding that the trial court has powers to consider even materials which accused may produce at the stage of [SECTION] of the Code held to be not correctly 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 [ENTITY] and [ENTITY]. Though during the further enquiry, in the police report IO himself has mentioned that accused [ENTITY] 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/[SECTION] [ACT] is made out against both the accused persons. Now to come up for framing of charge on 31.1.2012.
([ENTITY]) ASJ01(N)/DELHI 29.11.2011 Announced in the open court today i.e. on 29.11.2011.