[CASE NUMBER] IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Revision No. : 133/2018 Under Section : 380/420/448/120-B [ACT] FIR No. : 322/2011 PS : Kalyan Puri CNR No. : DLET01-004498-2018 In the matter of :- 1. SH. SATYA PRAKASH S/o. Sh. Ram Ganesh, R/o. H.No.14/12-13, Trilok Puri, Delhi-91. 2. SMT. USHA DEVI W/o. Sh. [ENTITY], R/o. H.No.14/12-13, Trilok Puri, Delhi-91. PETITIONERS VERSUS STATE (GOVT. OF NCT OF DELHI) RESPONDENT Date of Institution : 12.07.2018 Date of reserving order : 07.08.2018 Date of pronouncement : 10.08.2018 Decision : Petition is dismissed. ORDER
1. This revision petition is directed against order dated 08.03.2018, passed by trial court in a case titled as [ENTITY] v. [ENTITY] etc., bearing FIR No. 322/2011, under [SECTION] [ACT]. Vide impugned order dated 08.03.2018, ld. trial court ordered to frame charges for offences punishable under [SECTION] [ACT] against [ENTITY] and [ENTITY] (petitioners herein) and Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] discharged them for offences punishable under [SECTION] [ACT].
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that on 24.09.2011 at 21:25 hrs, an FIR No.322/2011 was registered at PS Kalyanpuri, under [SECTION] [ACT] on the complaint of Sh. [ENTITY] against petitioners herein. In his complaint, complainant Sh. [ENTITY] alleged that he had purchased a property bearing H.No.12, Block No.14, Trilokpuri, Delhi from Smt. [ENTITY] (petitioner no.2 herein) on 06.05.2010. Complete payment was made and documents were got registered. The chain of property documents were also handed over to the complainant. On the same day, complainant kept his belongings in the said H.No.14/12. Petitioners herein were residing in the adjoining property bearing no.14/13 and there was a connecting door between these two properties. Complainant was handed over possession of property no.14/12 and the said door was closed by complainant by constructing a brick wall. Although, complainant had kept his articles like Whirlpool fridge, LG TV, Gas Stove, Indian Gas Company gas cylinder, some utensils, one bed, mattress and bed sheet, but he did not reside there permanently and used to visit the said property on and off. He could not visit H.No.14/12 for 10 days due to illness of his mother. On 07.09.2011, when he tried to open the gate after opening his lock, it did not open as the same was locked from inside. He also saw through railing that connecting door with property No.14/13 was again present there. Petitioner no.2/Smt. [ENTITY] did not give any reply to him on his query for such development and so, he reported the matter to police. On the basis of his complaint, police registered Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] present FIR.
3. After completion of investigation, chargesheet was filed on 23.04.2015 for offences punishable under [SECTION] [ACT], against accused [ENTITY] and [ENTITY] (petitioners herein). Thereafter, on 08.03.2018 trial court passed order on the point of charge to frame charges against petitioners for offences punishable under [SECTION] [ACT], to which they pleaded not guilty and claimed trial. Vide impugned order trial court discharged both accused persons for offences punishable under [SECTION] [ACT].
GROUNDS : -
4. Being aggrieved of impugned order, petitioners have preferred this revision petition on the following relevant grounds :-
That impugned order is contrary to law and facts of the case as well as perverse to the material brought on record. That chargesheet was filed for impugned Sections viz. 448/380 [ACT], when prosecution itself concluded that complainant failed to adduce convincing evidence regarding his possession over the subject property.
That trial court gave preference to the oral evidence, than the documentary evidence in utter disregard of the mandate of law which vitiates the impugned order.
That factum of possession is essence of the offences in question viz. 448/380 [ACT], while the possession remained with accused. Even sole document being alleged GPA makes no whisper regarding handing over of possession to the complainant. That there is no sufficient material on record to justify framing of charge against the petitioners.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] :-
5. Ld. counsel for petitioners made arguments on the lines of grounds taken in the petition. In a ddition to the same, he further argued that in the rukka itself SI [ENTITY] had noted that complainant did not have any evidence of actual physical possession over property in question. He further submitted that another property no.14/13 was also sold allegedly by petitioner no.1 to the complainant and in this GPA dated 01.06.2011, address of petitioner no.1 was mentioned to be 14/12. Thus, this document establishes that property no.14/12 was still in the possession of petitioners, rather than complainant.
6. Per contra, ld. Addl. PP for the [ENTITY] submitted that there are statement of various witnesses, who have stated that complainant was put in the possession of property no.14/12 and that complainant had also kept certain articles in this property. Therefore, there is no infirmity in the impugned order.
APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
7. It has been settled law that at the stage of consideration on charge, the court has to look into the materials produced by prosecution, so as to satisfy itself, if the materials constitute ingredients of the alleged offences and prima facie case appears against the accused for commission of the alleged offences. In [PRECEDENT], Supreme Court observed that "The Code contemplates discharge of the accused by the Court of Session under [SECTION] in a case triable by it; cases instituted upon a police report are covered by [SECTION] and cases instituted otherwise than on police report are dealt with in [SECTION]. The three sections contain somewhat different provisions in regard to Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] discharge of the accused. Under [SECTION], the trial judge is required to discharge the accused if he "considers that there is not sufficient ground for proceeding against the accused." Obligation to discharge the accused under [SECTION] arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under [SECTION] when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction." It is a fact that [SECTION] and [SECTION] provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under [SECTION], on the other hand, is reached only after the evidence referred to in [SECTION] has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under [SECTION] is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
8. Similar decision was taken by Supreme Court in the case of [ENTITY] of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, by making following observations :-
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] "Thus, there is difference in the language employed in the provisions of [SECTION], [SECTION] and [SECTION] [ACT], but not withstanding these differences and whichever provision may be applicable, the court is required at this stage to see that there is prima facie case for proceeding against the accused."
10. Supreme Court in the same case further observed that "the court cannot act as a mouth piece of the prosecution or act as a post office and may shift evidence in order to find out whether or not the allegations made are groundless so as to pass order of discharge." Court further held that "it is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclosing existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction". The court further observed that "to put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage".
9. In the present case, if contentions made by the petitioners herein are accepted, then it shall amount to indirectly declare that the contentions made by complainant in the complaint and the statement given by several other witnesses are altogether false. However, as it would be well apparent from the legal principles emerging out of above mentioned case laws, such course of action is not permissible at the stage of consideration on charge. Therefore, the reasons given by ld. CMM to frame charges against the petitioners assume Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] importance, in the sense that at present on the basis of complaint and statement given by several witnesses, a prima facie case for offence under [SECTION] [ACT] is made out. It is basically a contention in defence to say that physical possession of property no.14/12 was not with the complainant. The contentions of ld.
defence counsel are basically guided by interpretation made by him, on the basis of GPA allegedly executed by petitioner no.1 in favour of complainant, thereby showing his address to be 14/12. This fact in itself cannot be conclusive to say that petitioners were in physical possession of property no.14/12 or to say that physical possession of this property was not given to the complainant. Appreciation of such rival contentions can be done only at the final stage after holding the trial. Therefore, I do not find any merit in this revision petition. Accordingly, same is dismissed.
10.Petitioners shall appear before the trial court on date already fixed by the trial court i.e. 15.10.2018.
11.TCR along with copy of order be sent back to the trial court. Revision file be consigned to record room, as per rules.
PULASTYA Location: Court PRAMACHALA No.3, Karkardooma Courts, Delhi Date: 2018.08.10 17:03:59 +0530 Announced in the open court ([ENTITY]) today on 10.08.2018 Special Judge (PC Act) CBI, East (This order contains 7 pages) Karkardooma Courts, Delhi Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi