48# $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 535/2011 MOHD HARUN & ANR Petitioners Through; Mr. Rakesh Kumar Dudeja, Advocate. versus STATE Respondent Through: Mr. Mukesh Gupta, AFP with SI Rambir Singh, PS Ambedkar Nagar. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER % 30.11.2011 Crl. M.A. NO. 18605/2011 (Exemption) Allowed, subject to all just exceptions. Crl. Rev. P. 535/2011 & Crl. M.A. NO. 18604/2011 (Stay) 1. By this revision petition the Petitioners Mohd. Harun and Hari Shanker challengethe orders dated 21^' October, 2011 and 4"^ November, 2011 directing framing of charge and the charge passed by the learned Additional Sessions Judge in FIR No. 308/2005 under Section 186/308/353/332/34 IPG registered at PS Ambedkar Nagar. 2. Learned counsel for the Petitioners contends that a perusal of the statement of the complainant and the witnesses do not show that either of the GRL.REV.P.535/2011 page 1 of 4 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified petitioners instigated the mob resulting in beating the police officers or interference in their functioning. The only act alleged to the Petitioner No. 1 is that he slipped away. For being implicated for an offence with the aid of Section 34 IPC a positive overt act is essential which is absent in the case of both the Petitioners. 3. I have heard learned counsel for the Petitioners. 4. Briefly the case of the prosecution is that Jagat Singh, SI posted in Haryana Police as In-charge, Police Post NO. 4, PS NIT, Faridabad,^ Haryanastated that on 19^' May, 2005 he along with ASI Jai Kishan, HC Badan Singh and HC Aas Mohd came for an investigation of case 214/2005 under Sections 457/380 IPC registered at PS NIT, Faridabad to Shiv Park Jhuggi Camp, Khanpur. They had come to conduct interrogation of suspect Mohd. Harun as he was a suspect on the basis of an inter se call with regard to the stolen reliancemobile phone by Mohd. Haum on 16"^ May, 2005 at 8.30 hours. At 3.15 p.m. when they apprehended Mohd. Harun for interrogation, the public gathered and when they started to take him to the adjacent police post Madangir, one aged person whose name later came to be revealed as Hari Shanker, that is, the Petitioner No. 2 herein stopped them and stated that they could not take him from there. When the complainant CRL.REV.P. 535/2011 page 2 of 4 rv wanted to call the Delhi Police from the control room on phone, the Petitioner No. 2 started instigating the people standing over there and stated 'ye char police wale kya kar lenge, maro inhe'. On the instigation of Petitoner No. 2 the people standing over there gave danda blow on the head, of the complainant resulting, in injuries to them. By attacking the police personnel they succeeded in taking away Mohd. Harun from their custody. The petitioner No. 2 was apprehended at the spot itself. 5. On completion of the investigation a charge sheet was filed and the case was committed to the Sessions Court. The learned Additional Sessions Judge vide the impugned order framed charges against the Petitioners for offence under Sections 186/353/34 IPC and 332/308/34 IPC. A perusal of the statement of the complainant and the others including injured witnesses clearly reveal that the Petitoner No. 2 instigated the mob who attacked on the police officers resulting in injuries to them and the escape of Mohd. Harun from his custody. Thus as regards Petitioner No. 2, I find no merit in the present petition. 6. As regards Petitioner No. 1 Mohd. Harun it may be noted that though the Complainant and the police officers had gone to interrogate him, the only offence that can be alleged on the Petitioner No. 1 is that he escaped from CRI..REV.P. 535/2011 page 3 of 4 their custody. There is no overt act attributed to the Petitioner No. 1 to the extent that he neither instigated the crowd for beating the pohce personnel nor participated therein. Thus the Petitioner No. 1 is liable to be discharged for offence under Section 186/353/308/332/34 IPG. In view of the aforesaid discussion, the present revision petition is dismissed to the extent that the impugned order need no modification qua Petitioner No. 2, however qua the Petitioner No. 1 the impugned order is set aside. 7. Petition and application are disposed of accordingly. MUKTA GUPTA, J. NOVEMBER 30, 2011 'vn' CRL.REV.P. 535/2011 page 4 of 4