1 IN THE COURT OF SH. SANJEEV AGGARWAL: ADDL. SESSIONS JUDGE(05): OUTER: ROHINI COURTS: DELHI CRIMINAL RIVISION No. 61/11 State Petitioner Versus 1. [ENTITY] S/o Late [ENTITY], 2. [ENTITY] S/o Sh. [ENTITY], 3. [ENTITY] S/o [ENTITY], R/o Village Shahbad Daulatpur, Delhi. (shown in coloumn No.2 in charge sheet). Respondents Date of Institution in Sessions Court : 07.02.2011 Date of Order : 06.08.2011 ORDER:
1. Vide this order, I shall dispose off the present revision petition, filed by the state against the impugned order, dt. 20.12.2010, whereby the respondent [ENTITY] was discharged, as an State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana accused in FIR No.112/2001, PS Bawana.
2. The brief facts, which can be culled out from the order of the Ld. Trial Court are as under: "Ld. Counsel for the accused [ENTITY] has argued at length on charge and stated that as per the charge sheet filed by the I.O accused [ENTITY] has been put in column No.2 of the charge sheet and on page 3 of the charge sheet it is categorically stated that the accused [ENTITY] has been admitted in Santom Hospital D5, Pr. Vihar, Delhi with effect from 27.03.01 to 04.04.01. It is further submitted that the date of alleged offence is 31.03.01 and it is the case of the prosecution itself that accused [ENTITY] was admitted in the Hospital and therefore the chargesheet was filed only against accused [ENTITY] and accused [ENTITY]. State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana It is further submitted by the Ld. Counsel for the accused [ENTITY] that there is no role of the accused [ENTITY] and even in the Tehrir/complaint no specific role of the accused [ENTITY] is alleged by the complainant.
Ld. Counsel for the accused has also relied upon the judgment of [PRECEDENT].
Heard.
In this case accused [ENTITY] whose name is mentioned in column No.2 had admittedly been Hospitalized on the date of offence. It is pertinent to mention that it is not the defence raised by the accused but it is the story of the prosecution itself.
Perusal of the statement of the complainant also State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana reveals that the accused [ENTITY] has neither abducted him nor he has been wrongfully restrained by him nor any injury has been caused on his person by the accused [ENTITY].
Therefore, considering the facts and circumstances of the present case and the statement of complainant on record I am of the considered opinion that no sufficient material is available on record to frame the charge against the accused [ENTITY].
Hence, accused [ENTITY] is accordingly discharged for the offence U/[SECTION] [ACT].
So far as accused [ENTITY] and [ENTITY] are concerned there is sufficient material available on record to frame charges U/[SECTION] [ACT]. Hence the charge is accordingly framed to which both the accused pleaded not guilty and claimed trial.
State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana Put up for PE on 02.05.2011".
3. The state has challenged the aforesaid order on the following main grounds: a. That the said order was not tenable in law.
b. That the Ld. Trial Court had failed to appreciate the fact that complainant [ENTITY] had specifically named accused [ENTITY] in his complaint.
c. That the Ld. Trial Court also failed to appreciate that the public witnesses [ENTITY], [ENTITY] and [ENTITY] stated that on 01.04.2001, accused [ENTITY] asked them personally to identify the complainant [ENTITY], whether he was [ENTITY] or not, which shows the presence of accused [ENTITY] at the spot on 01.04.2001.
d. That the Ld. Trial Court had also failed to appreciate that the State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana medical papers of the accused [ENTITY] pertain to a private hospital and the I.O did examine the concerned doctor of Santom Hospital to verify the presence of the accused [ENTITY] at the said hospital, neither he recorded his statement nor he examined any other witness from the hospital in this regard. e. That the Ld. Trial Court had failed to appreciate that three other public persons had stated regarding the presence of the aforesaid accused on the spot on 01.04.2001.
4. In these circumstances, it is prayed that the present revision petition be allowed and the order of discharge, dt. 20.12.2010, passed by the Ld. MM in FIR No.112/2001, U/[SECTION] [ACT] be set aside.
5. I have heard Ld. Addl. PP for the state Sh. [ENTITY] and Ld. Counsel for the respondent Sh. [ENTITY] and perused the State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana record.
6. Ld. Addl. PP for the state has argued that the complainant has specifically named the respondent/accused [ENTITY], as the person, at whose instance, he was abducted and the complainant has also stated that [ENTITY] had come to the place, where he was confined and he had also asked him regarding his identity, which he had also got clarified from two other witnesses, who have also stated so in their statements U/[SECTION] [ACT]. Regarding the plea of alibi, Ld. Addl. PP has argued that this plea of alibi taken by the respondent/accused [ENTITY] that at that time i.e at the time of the incident he was admitted in the hospital can only be seen at appropriate stage i.e at the stage of leading defence evidence and at this stage, the documents of the defence or relied upon by the defence cannot be looked into as per the settled law. State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana
7. He has further argued that the trial court could not hold a mini trial at this stage i.e at the stage of framing charge(s), to find out which version was correct, whether the version of the complainant was correct or the version of the witnesses, relied upon by the prosecution was correct and the same can only be found out after the trial.
8. Consequently, relying upon by the aforesaid arguments, he has argued that the order of Trial Court, dt. 20.12.2010 is totally contrary to the law ignoring all the relevant material on the record, including the fact that the investigating officer did not record the statement of the concerned doctor, who was treating the respondent at the concerned hospital, nor any witness from the hospital had been examined by the I.O in this regard. Therefore, he has argued that the order of discharge of the Ld. MM, dt. 20.12.2010 is contrary to law State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana and is liable to be set aside.
9. On the other hand, Ld. Counsel for the respondent/accused Sh. [ENTITY] has argued that this plea of alibi, taken by the respondent is not the plea being taken by the respondent, at the stage of arguments on charge, rather the said plea of alibi has been verified by the I.O himself by verifying the medical documents, given by the respondent/accused to the investigating officer, during the investigation(s) and as per page 3 of the charge sheet, it has been specifically mentioned by the SHO, while preparing the charge sheet that said medical documents have been found to be correct that the respondent was admitted into Santom Hospital during the period i.e 27.03.2001 to 04.04.2001, whereas the incident in question is dt. 31.03.2001. Consequently, the respondent could not have been present at the time of the incident, as stated by the complainant and State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana other witnesses relied by the prosecution, which shows that the entire prosecution version was palpably false and tainted.
10. He has further argued that the said documents have not been filed by the accused/respondent at the stage of charge, rather the same have been verified and relied upon by the prosecution itself in the charge sheet. Therefore, the said documents can be looked into at the stage of framing of charge(s). He has also relied upon the judgments [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]., in support of his contentions.
11. Relying upon his judgments, he has argued that charge could have only been framed against the accused/respondent, if there was sufficient material on the record, which gives rise to grave suspicion State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana and not a mere suspicion, and he has further argued that it is also settled law that if there are two views possible, the one favouring the accused/respondent and other against him, at the time of framing of charge(s), then the view favouring the accused should be preferred. He has also argued that the accused cannot be asked to go through the rigors of the trial, if there is nothing against him on the record, just to satisfy the prosecution.
Therefore, he has argued that in view of the aforesaid arguments, there is no infirmity or illegality in the order of discharge, passed by the Ld. Trial Court, discharging the accused/respondent vide impugned order, dt. 20.12.2001, which has been rightly passed.
12. I have gone through the rival contentions.
13. In the judgment relied upon by the Ld. Counsel for the respondent/accused, [CASE NUMBER], (supra), it has been held in State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana para No. 7 to 9 as under: " Learned Counsel appearing for the petitioner has cited the celeberated judgment of the Supreme Court [PRECEDENT] and Court has held that the Judge while considering the question of framing of charges under [SECTION] 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. In para 10 of the Judgment, the Court further observed:
"(1) That the Judge while considering the question of framing the charges under [SECTION] 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;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) 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. (4) That in exercising his jurisdiction under [SECTION] of the Code the 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 documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
8. Shri [ENTITY], has also drawn attention of this Court to Judgment of the Supreme Court Century Spinning and State Vs. [ENTITY] etc. [PRECEDENT]. In this case, the Court has arrived at the conclusion that it cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person"s liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in [SECTION] consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana
9. The Supreme Court in this case has held that the trial Court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order.
14. Further, Ld. Counsel for the respondent/accused has relied upon judgment [CASE NUMBER], (supra) in which in para No.15, it has been observed as under: "Now, it is well established by series of judgments of the Supreme Court commencing from [PRECEDENT] onwards that charges can be framed against an accused if the materials i.e. documentary and oral evidence show his prima facie involvement and existence of a grave suspicion in that regard. The materials sought to be pressed into service by the prosecution in this case for the State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana charge under [SECTION] do not inspire such confidence as to be termed as disclosing grave suspicion of his involvement. Another principle which has been recognised by the Courts is that if two views are possible, the one favouring the accused should be preferred at the charge framing stage. In this case, the entirety of evidence are the two [SECTION], [ACT] Statements of the complainant. There are no objective material or circumstantial evidence supporting the statements in the form of seizure of articles, etc. In this background, it is clear that there are two views possible. Therefore, applying the rule enunciated in [PRECEDENT], the interpretation favouring the petitioner has to be accepted.
State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana
15. The law laid down in the aforesaid judgment is not in dispute. However, each case has to be decided on its own peculiar facts and circumstances. In the present case, the complainant [ENTITY] in his complaint had levelled allegations that certain persons had abducted him at the instance of the present respondent/accused and he was also confined in a room, where the respondent also came and asked him about his identity, whether he was one [ENTITY] and which fact was also got verified by him from one [ENTITY] and two other persons [ENTITY] and [ENTITY], and after it was found out by the respondent that he was not [ENTITY]. He was released from the custody of the abductors.
16. In the present case, besides the statement of the aforesaid complainant [ENTITY], there is a statement of [ENTITY], [ENTITY] and [ENTITY] in this regard, State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana recorded by the I.O, U/[SECTION] [ACT].
17. At the same time, the I.O/SHO has mentioned at page 3 of the charge sheet that the respondent in the present revision petition h ad given him certain medical documents, that during the period 27.03.2001 to 04.04.2001, he was admitted at Santom Hospital, Prashant Vihar and which documents after verification from the said hospital were found to be correct and he had also verified this fact from the concerned doctor, Dr. [ENTITY].
18. Ld. Addl. PP has argued that the documents relied upon by the defence cannot be looked into at the stage of framing of charge. The said contention of Ld. Addl. PP is entirely correct in view of the judgment of Hon'ble Supreme Court [PRECEDENT], [PRECEDENT].
19. However, in the present case, the documents regarding the State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana plea of alibi taken by the respondent/accused have not been filed by the respondent/accused, but the same have been filed by the prosecution itself along with the charge sheet, and the I.O/SHO have gone to the extent by mentioning at page 3 of the charge sheet that he had verified the medical documents, regarding the plea of alibi, taken by petitioner that during the period 27.03.2001 to 04.04.2001, he was admitted in Santom Hospital for back problem, which documents were found to be correct, after verification from the treating doctors.
20. The said medical documents regarding the admission of the aforesaid respondent/accused at Santom Hospital during the period 27.03.2001 to 04.04.2001 have been filed on the record along with the charge sheet, including his detailed treatment notes and the record of Santom Hospital, regarding his admission and discharge as State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana well as the certificate of the treating doctor, that he was admitted in the said hospital during the said period. Therefore, the plea of alibi taken by the respondent/accused is equally probable and has strong probative force, on prima facie view of the matter.
21. In view of the judgment, relied upon by the Ld. Counsel for the respondent/accused [CASE NUMBER], (supra) wherein it has been held that if there are two views possible, the one favouring the accused should be preferred at the stage of framing the charge, and the fact that it has been held in judgment in [PRECEDENT], that the order framing the charge(s) does substantially effect the persons liberty and it cannot be said that the court must automatically frame the charge, merely because the prosecuting authorities by relying on the documents, referred in [SECTION] [ACT] consider it proper to institute that case. In view of the said law, a serious duty State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana has been cast upon the court to properly scrutinize the judicial record before framing of charge(s), so as to avoid rigours of futile criminal prosecution, which lingers for years.
22. In view of the aforesaid discussion, though some suspicion does arise that the respondent/accused may be involved in the commission of the offence(s), for which a charge sheet was filed in the trial court in the FIR No.112/01, in which he was shown in coloumn No.2. However, it is equally settled law that the charge can only be framed against the accused, if there is grave suspicion, regarding his involvement in the commission of a crime for which he has been charged sheeted.
23. In view of the aforesaid detailed discussion, I do not find any infirmity or illegality in the impugned order of the trial court, dt. 20.12.2010, which has been rightly passed, as a resultant, the State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana present revision petition, filed by the state has no merits. Same is dismissed. TCR be sent back along with the copy of this order. Revision file be consigned to record room.
Announced in the open court ([ENTITY]) On 06.08.2011 Addl. Sessions Judge Rohini Courts: Delhi.
State Vs. [ENTITY] etc. [CASE NUMBER] PS Bawana