[CASE NUMBER] IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Revision No. : 27/16 Under Section : 336/[SECTION] [ACT] Police Station : Preet Vihar FIR No. : 08/2012 CNR No. : DLKA01-000631-2015 In the matter of :- 1. Sh. VEER SINGH @ VEERU S/o. Sh. Vinod Kumar, R/o. H.No.112, Gagan Vihar, Delhi-110092. Also At D-33, Shakarpur, Delhi-92. 2. Sh. SURENDER SODHI @ SHAMMI S/o. Sh. Ram Chandra, R/o. H.No.56, Jagannath Vihar, Panipat, Haryana. REVIS[ENTITY]NISTS VERSUS 1. STATE (GOVT. OF NCT OF DELHI) 2. Sh. RAVI GUPTA S/o. Sh. Meghraj Gupta, R/o. H.No.69, Second Floor, Chitra Vihar, Delhi-110092. RESPONDENTS Date of Institution : 18.05.2015 Date of Receiving : 19.05.2015 Date of reserving judgment : 17.02.2017 Date of pronouncement : 22.02.2017 Decision : Petition is allowed. ORDER
1. This revision petition is directed against the order dated 18.02.2015, passed by ld. MM (East) in a case titled as State v. [ENTITY] etc. Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi bearing FIR No.08/2012, under [SECTION] [ACT], PS Preet Vihar. Vide impugned order ld. MM (East) took cognizance of offence under [SECTION] [ACT] and [SECTION] [ACT] against accused persons (revisionists herein) and summoned them for the said offences. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that on 28.08.2011 an information was recorded in PS Preet Vihar vide DD No.8-A at about 02:10 AM, wherein the informant had alleged that 6-7 persons were breaking his vehicle near his home at H.No.69, 2nd Floor, Chitra Vihar and they were also firing. This DD was assigned to ASI [ENTITY], who reached the place of incident. Crime team was also called at that place. Complainant Sh. [ENTITY] gave him a written complaint thereby alleging that he was residing along with his family on the 2nd Floor of H.No.69, Chitra Vihar. He was having some dispute with Sh. [ENTITY], [ENTITY] etc. since long. These persons had tried to falsely implicate the complainant and his son [ENTITY] on number of occasions. On that day, at about 01:45 AM, he heard noise of abusing and breaking of the vehicle and thereafter, he came out in his balcony of 2nd Floor. He saw that accused [ENTITY] and [ENTITY] (both petitioners herein) were present in the gali along with 3-4 persons. They were having weapons in their hand. They were breaking the glass of Santro Car bearing no. DL-2FER-0002 with bricks. Complainant tried to stop them by raising his voice. However, [ENTITY] and [ENTITY] pointed their weapons towards complainant and with intention to kill the complainant, they fired 3-4 times. They also broke the camera installed at the gate of that house as well as glass of the vehicle of the complainant. Thereafter, assuming that complainant had been hit with bullet, both accused along with their friends went away. This Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi incident was seen by wife of complainant also. Complainant made call at 100 number.
3.This complaint was kept pending inquiry. Thereafter, on 06.09.2011 another information was received vide DD No.42-A, wherein complainant had alleged that he had found empty cover of bullet and bullet marks. Those exhibits were taken into possession by police and sent to FSL. FIR was registered on 09.01.2012 under [SECTION] [ACT] and investigation was entrusted to DIU (East).
4. Further, investigation was conducted in the case and [ENTITY] examined number of local persons as well as security guards/watchman of that area, who did not support the allegations against the accused persons being present at the place of alleged incident. They also did not support the allegations of incident of gun firing stating that they did not hear any such gun fire.
5. One report was received from FSL Delhi, which stated that one hole of irregular shape was found present on the ceiling of the balcony and no geyser was found installed during inspection of the FSL team. It was further reported that the swab containing particles from hole H- 1 (in the geyser) contained gun shot residue particles, which were found present in the control swab. Thereafter, another team from CFSL (CBI), Lodhi Road, inspected the place of incident under leadership of Sh. [ENTITY]. This team on the basis of inputs given by complainant regarding the incident, reconstructed the scene of crime and made further examination. This team also examined the geyser which was already seized by local police and where hole H-1 was found. Using scientific methods and on reconstruction of scene of crime, this team gave report that the bullet entry hole (H-1) and its corresponding impression (H-2) on the body of geyser could not be seemed to be probable, on firing happened from the position of the Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi firer standing on the road (at the place as stated by the complainant). It was further reported by this team that direction of fire was from left side to the geyser and thus, the probable position of the firer appeared to be from the second floor of balcony. On analysis of geyser, a bullet was found in deformed condition inside the geyser. CFSL further gave report that presence of gun shot residue was highly improbable on the target, if the bullet was fired with a firearm from a distance of approx 35 feet and the penetration point on the geyser with respect to the alleged trajectory (diagonal) of the firearm allegedly fired from across the road seemed to be improbable. It was further opined that the bullet recovered from the geyser and another bullet recovered from the balcony were fired from a single 0.32 firearm.
6. [ENTITY] filed a chargesheet against both accused [ENTITY] and [ENTITY] for offence under [SECTION] [ACT].
7. Thereafter, vide order dated 18.02.15, ld. MM passed order observing that the allegations made in the FIR/complaint were very specific, which did not talk about any rash and negligent conduct of the accused persons. The allegations made therein disclosed offence under [SECTION] [ACT] and hence, ld. MM took cognizance of offence under [SECTION] [ACT] and [SECTION] [ACT] and issued summons to both the accused persons accordingly.
GROUNDS : -
8. Being aggrieved of the impugned order dated 18.02.2015, revisionists have preferred this revision petition on the following grounds :-
That the trial court did not appreciate that no prosecution witnesses have supported the version of the complainant and same can be seem from their statements filed with with the charge sheet.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi That the trial court overlooked and ignored the points, which were in favour of the revisionist, while taking cognizance against the revisionists.
That the story of the complainant is based on mere allegations and there was no evidence on record to prove the same against the revisionist.
ARGUMENTS :-
9. Ld. counsel for petitioners argued that FIR was registered under [SECTION] and [SECTION] [ACT] against the accused persons. He further argued that [ENTITY] concluded that no incident of firing took place, therefore, neither [SECTION] [ACT] is made out. He further argued that gun fire shot was not heard by anyone neither CFSL gave report in favour of firing as alleged by complainant. He further argued that ld. MM should have directed for further investigation rather than taking cognizance.
10.Per contra, ld. Addl. PP for the State/respondent argued that complainant and his wife gave statement making allegations against accused persons. He further argued that fired bullet was recovered from the place of incident. CFSL report is of only corroborative value. Therefore, prima facie evidence is made out against the accused persons. He further argued that just because no one heard the gun fire shot, it does not mean that such incident did not take place. They might not have heard the noise due to various factors as it was mid night etc. APPRECIAT[ENTITY]N OF ARGUMENTS, FINDINGS & DECIS[ENTITY]N :-
11.The final report filed by [ENTITY] alongwith other materials i.e. statement given by other witnesses as well as report given by FSL and CFSL, Delhi have to be read conjointly, before taking any particular decision. It is true that as per allegations made by complainant, both the Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi accused persons fired towards him 3-4 times with intention to kill him. I am conscious of the law which says that at the time of summoning of any accused, Ld. MM is not supposed to be convinced that with the materials produced before him, there is a likelihood of conviction of the accused persons. However, at the same time I am also conscious of the observations made by Supreme Court in the case of [PRECEDENT]. Criminal Appeal decided by Supreme Court of India on 04.11.1997. Precautions is to be taken by a Magistrate, while summoning any person as accused, that such order has to be passed on being satisfied about the satisfaction of ingredients of alleged offences and about the truthfulness and genuineness of the complaint. Such reminder was given by Supreme Court in the aforesaid case while observing that :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
12.Afore-said observations were made by Supreme Court thereby Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi casting duty upon MM to be careful while taking a call to summon any person as accused.
13.In [SECTION] [ACT], it is provided that if Magistrate is of the opinion that there are sufficient grounds for proceeding, then he may issue summons to an accused. These terms 'sufficient grounds for proceeding' assume importance and have some purposes. In order to decide whether there are sufficient grounds for proceeding, the allegations made by the complainant in itself may not be the sole ground to take a final call, especially, when such allegations have been investigated by the [ENTITY]. It is never objective of the law behind [SECTION] [ACT] to act blindly on the allegations made by a complainant. If that would have been so, then there would not have been any occasion and necessity to investigate into any allegation made by complainant by police or other investigating agency. The purpose of investigation is to find out the truth and to collect evidence. Law makers have also provided for [SECTION] [ACT] thereby laying down duty of the Magistrate to make further enquiry into the case before summoning any person as an accused, if such person is resident of a place beyond the jurisdiction of that Magistrate. A discretion is also given to the Magistrate to make such enquiry, as per requirement of the case, in other situation. Therefore, if on receipt of a complaint, [ENTITY] makes further investigation and obtains further piece of evidence, either in support of the allegations made in the complaint or showing falsity of the allegations made in the complaint, same are to be duly considered by the Magistrate, before proceeding under [SECTION] [ACT] A balanced approach has to be taken between two legal propositions i.e. not to seek such material thereby confirming conviction of accused and to take all due caution before summoning any person as an accused.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi
14.In the present case, I do find that [ENTITY] had filed chargesheet with an absurd conclusion in relation to offence under [SECTION] [ACT], because there was no material at all, on the basis of which [ENTITY] could have concluded that accused persons had acted in rash or negligent manner, while firing gunshot. It was a confused decision taken by [ENTITY] because as per evidence collected by him, [ENTITY] did not get any supporting evidence in favour of the incident of firing at the alleged place and alleged time.
15.There were some suspicious circumstances related to the case wherein complainant did not point out any bullet lying in his balcony or any bullet mark over ceiling of his balcony, during first visit of the police or any bullet hole in the geyser of his balcony. As per crime team report, complainant did not allow the police team to inspect the balcony. As per allegations made by complainant in his complaint under [SECTION] [ACT], police was acting in connivance of accused persons and therefore, they did not act fairly. However, the report given by CFSL team assumes importance in this aforesaid scenario because this report was based on scientific evaluation of the scene of crime and the allegations made by the complainant. This team had reconstructed the scene of crime on the basis of allegations made by the complainant regarding position of the accused persons while firing towards him, the position of the geyser, the trajectory of the gunfire and probability of presence of gunshot residue in the geyser. A man can lie, however, scientific evidence does not lie. Though at times it may suffer with some error. Hence, a scientific evidence cannot be given a lesser weightage than oral allegations of a person, especially when scientific evidence explains the basis of reaching a particular conclusion. The trajectory of a gunshot is an important facet in ascertaining the position of firer and Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi the target. Similarly, the distance between the firer and the target determines the possibility of the gun shot residue being present over the target. Keeping in view all these aspects, CFSL had given its report thereby concluding that it was not probable that the gunshot hole in the geyser could have been possible on firing from the place i.e. across the road. Rather, it was opined that it was possible when firing was done from the balcony of the second floor itself.
16.In these circumstances, the omission of the complainant to point out any bullet lying in his balcony, immediately after the alleged incident and the report given by the crime team that they were not allowed to inspect the balcony, assume importance and significance. The purpose of law is to achieve the target of truth and same is the purpose before the court. In finding sufficient ground to proceed, the Magistrate has to keep this purpose in mind. However, from the impugned order, I do find that the ld. MM was guided only by allegations made in the FIR/complaint. Probably, CFSL report and the other report did not get his attention. In these circumstances, I do find that the impugned order thereby summoning the accused persons herein as an accused for offence under [SECTION] [ACT] was not based on proper appreciation of the facts and the materials placed before the ld. MM and due to such reasons, a vitiated decision was taken by ld. MM.
17.Hence, the impugned order dated 18.12.2015 is set aside and matter is reminded back to ld. CMM for fresh consideration or to assign this case to any MM, to look into the case on the basis of complete materials placed on the record and to take a decision if there is requirement to direct further investigation to ascertain other facts related to alleged fire and the veracity of allegations made by complainant. One may not rule out that there could be a situation that Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi some material is placed before Ld. MM thereby requiring to invoke [SECTION] [ACT]. The revision petition is allowed accordingly.
File be consigned to record room, as per rules.
Announced in the open court ([ENTITY]) today on 22.02.2017 Special Judge (PC Act) CBI, East (This order contains 10 pages) Karkardooma Courts, Delhi Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi