Crl.Rev.P. 427/2007 Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.REV.P. 427/2007 % Date of reserve: 19.05.2009 Date of decision: 03.07.2009 SHIV KUMAR SHARMA …PETITIONER Through: Mr. Vikas Arora, Mr. Ajay Marwah, Mr. Puneet Popli, advs. Versus THE STATE ...RESPONDENT Through: Mr. Navin Sharma, APP for State CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? : MOOL CHAND GARG, J. 1. The present revision petition has been filed under Sections 397/401 along with Section 482 Cr.P.C. for quashing and setting aside the summoning order dated 24.02.2007 passed under Section 319 Cr.P.C. and the order framing charge dated 12.3.2007 passed by Ld. Additional Sessions Judge in the proceedings arising out of FIR No. 26/2006 registered under Section 302/307/147/148/149 /452/ 506 IPC at Police Station Sangam Vihar. 2. The brief facts giving rise to filing of the present revision petition are:- Satish Chand/complainant had taken premises bearing no. F-3/478, Sangam Vihar, New Delhi from accused/ Kamla on rent for one and a half years. On 13.01.2006 at about 12.30 Noon, complainant along with his brother Crl.Rev.P. 427/2007 Page 2 of 18 Bhagwati, sister-in-law Kusum, and his mother was present at home. At that time Kamla came along with Ashok, Raj Kumar, Rambir, Chunna, Dr. Sharma and 5/6 more persons and forcibly entered in the house with arms and weapons. They also started beating the complainant and his family and caused death of Bhagwati and injuries to others. 3. The aforesaid incident resulted in lodging of an FIR at the instance of the complainant, namely, Satish Chand, who made the following statements before the Police:- Today on 13.01.06 at about 12.30 noon I, my brother Bhagwati, my sister-in-law Kusum and my mother were present at home. At that time Kamla aforesaid came along with Ashok, Rajkumar, Rambir, Chunna and Dr. Sharma and 5-6 other persons and forcibly entered into my house who were armed with weapons. These persons started beating us. Rajkumar caught hold of my brother Bhagwati and Ashok stabbed my brother with the knife which he had held in his hand under his chest because of which he started bleeding and fell down. Chunna attacked me with the knife in his hand I tried to protect myself with my hand and it injured my hand and again he attached and it caused injury at my elbow. Rambir started beating me with rod, I shouted then my sister-in-law came to rescue me then Rambir put Katta on her head and said that if she would shout then he would shoot her. On my sister-in-law creating hue and cry they all ran away. 4. However, the Investigating Officer after investigating the case filed a charge sheet, wherein on the basis of a supplementary statement made by Satish Chand and statement made by one Kusum, it has been observed that there was no evidence available on record against Dr.Shiv Kumar Sharma and accordingly, the name of Dr.Shiv Kumar Sharma was kept in column No.2 and not in column No.4. Accordingly, the Metropolitan Magistrate concerned or the Additional Sessions Judge did not thought it appropriate to summon Dr.Shiv Kumar Sharma as an accused till such time the statement was made by Satish Chand before the trial court by appearing as PW-3. In his statement made before the trial court he has reiterated his statement made to the Police and deposed as under:- Crl.Rev.P. 427/2007 Page 3 of 18 On 13.01.2006 at about 12.30 p.m. I was taking bath in the room on the ground floor. My bhabhi Kusum and my brother Bhagwati were also there in that house. My nephew a small child was also there in the house. My mother had gone to school to bring back my elder nephew from the school. Kamla, Dr.Sharma, accused Raj Kumar, accused Ashok, accused Rambir, accused Luv Kush, accused Chuna came to our house. All the accused except Dr.Sharma are present in Court [correctly identified]. All the accused persons were armed with weapon. Accused Ashok was having a knife. Accused Rambir was having a katta, accused Luv Kush was having a katta, accused Chuna was having a knife. They started beating me. Accused Chuna hit me with knife and I sustained injuries on my left hand. He again inflicted injury on my left arm with the knife. Hearing my cries my brother came down to the room. Accused Raj Kumar, 2-3 more persons whose name I do not know caught hold of my brother. Accused Ashok hit my brother with knife on the right side of the abdomen just below the chest. When my bhabhi reached there she was caught hold by accused Rambir and put the katta over her tampel and threatened her that if she raised already he would spot her. The other persons started removing out belonging form the back side of our house. In the meantime, after getting an opportunity my bhabhi ran to the roof of the house. She raised alarm on which all the accused persons ran away from the back door. My bhabhi called at 100 number. After sometime police arrived there. Police removed me and my brother to AIIMS Hospital where my statement Ex.PW-3/A was recorded which bears my signature at point A. I do not remember when the accused person were arrested but accused Luv Kush was arrested in the evening but I do not remember the date. When accused Luv Kush was arrested he got the clothes recovered from the room of the house but I do not remember which clothes he got recovered. Police had seized those clothes after sealing side memo Ex.PW-3/B which bears my signature at Point A. Accused Luv Kush also disclosed that the danda which he was having was thrown in the vacant plot situated at the rear of our house. That danda was recovered from that plot and was seized by the Police.” 5. It is only on the basis of the examination-in-chief of this witness and without confronting him with his supplementary statement or the letter which he gave to the Police after lodging of the FIR, wherein he categorically stated that Dr.Shiv Kumar Sharma was not present at the spot, the Additional Sessions Judge, who was trying this matter on the basis of the application moved under Section 319 Cr.P.C., has observed that the deposition of PW-3 in his examination-in-chief reflected prima facie involvement of the petitioner for summoning him as an accused under Section 319 Cr.P.C. and accordingly passed an order dated 24.2.2007 summoning Dr.Shiv Kumar Sharma as an accused. He thereafter framed charges against the present petitioner vide order dated 12.3.2007 despite the fact that the supplementary Crl.Rev.P. 427/2007 Page 4 of 18 statement made by Satish Chand/complainant, the letter written by him as well as the statement made by Kusum was brought to the notice of the Additional Sessions Judge. The relevant portion of the order dated 2.3.2007 of the Additional Sessions framing charge against the present petitioner is reproduced hereunder:- Ld. Defence counsel submitted there is no legal admissible evidence against the applicant warranting framing of charge against him. No witness has deposed against him. In the complaint made by Satish Chand Ex.PW-3/A, he simply says that accused was also there but no role is assigned to him. He was not armed with any weapon. The other eye witness Kusum specifically states that applicant/accused was not there. Vidyawati is the another five witness who reached the spot immediately thereafter and was told by Kusum about the incident and Kusum did not tell her that accused was also there. Even Satish Chand in his supplementary statement before the police says that accused was not there. Accused has come to their house about ¾ days prior to the incident so that the matter can be compromised with Kusum and due to this he has been falsely implicated. Ld. Counsel submitted that keeping in view all these facts there is no legal evidence against him on record. Even in the disclosure statements of accused persons it has come specifically that accused Dr.Shiv Kumar Sharma was not there. Ld. Counsel submitted that keeping in view all these facts there is no evidence against the accused Dr.Shiv Kumar Sharma. The supplementary statement of witness Satish Chand clearly shows that accused was not there. From the basis of evidence on record two views are possible, the one favouring the accused that he was not there and it is well settled principle of law that on the basis of evidence available, if two views are possible than the one favouring the accused shall be followed. Ld. Counsel submitted that in the present case even if the prosecution case is taken as it is, there is no chance of convicting the accused person and prayed that keeping in view all these facts, he be discharged. After bearing the arguments and going through the record. I found that no doubt there is supplementary statement of Satish Chand that accused was not there but despite that when Satish Chand appeared in the witness box he has specifically stated that accused was there. He came along with other accused persons who were armed, started beating his inmates and caused death. The allegations clearly show that they all came there with preparations for committing the offence that is why they were armed with weapons, they extended threats to Kusum and attempted to kill Satish Chand and kill Bhagwati. It is well settled principle of law that from the evidence collected by the prosecution if strong suspicion is created against the accused that he is Crl.Rev.P. 427/2007 Page 5 of 18 involved in the commission of offence he be charged. In the present case it has come in the testimony of Satish Chand recorded in the court that applicant was there as a member of unlawful assembly and members of the unlawful assembly were armed with weapons, after trespass they attacked the inmates and committed the offence of murder and attempted to kill Satish. Prima facie there is sufficient material on record making out a case punishable under Section 147 read with Section 149 IPC, 148 read with Section 149 IPC, 307 read with Section 149 and 506 read with Section 149 IPC is made out. Accordingly, charged is framed against accused Dr.Shiv Kumar Sharma to which he pleaded not guilty and claimed trial. 6. It is the case of the petitioner that he was no where involved in the crime, moreover there was nothing in the FIR or in the chargesheet from which it can be inferred that he was involved in the crime. There is no ocassion which justify the trial Court to summon him and frame a charge against him by exercising powers envisaged under Section 319 Cr.P.C. 7. The petitioner has made the following submissions to support this revision petition: (I) Kusum, bhabhi of the complainant, has made a statement to the Police on 13.1.2006 under Section 161 Cr.P.C., wherein she has stated that the petitioner was not present with the accused persons at the spot on the date of the incident. The relevant portion of her statement is reproduced hereunder for the sake of reference:- At about 12 noon my Devar Satish who does Paint Polish work came back from contractor and my mother-in-law went to take my elder son Yuvraj from Shivani Public School at F Block, Sangam Vihar and my Devar Satish started taking bath in the lower front room. Bhagwati was sitting on the roof with me. At about 12.30 PM our landlady Kamla, Jeth Rambir and Nandoi Ashok, Rajkumar, who used to reside in the adjacent house and Crl.Rev.P. 427/2007 Page 6 of 18 Chunna and Luvkush and 5-6 other persons came to us at F-3/475, Gali No.4, Sangam Vihar. Rambir was caring an Iron rod, Luvkush was having a danda and other persons were having rod, pipe. I did not know few of them but can recognize them on seeing them. Kamla pointed out towards my devars and stated that these persons have ruined my life, beat them and throw them out of the house and kill them. In the meantime Rambir, Luvkush, Chunna, Rajkumar, Ashok and others entered in our house forcibly. On seeing this my devar Bhagwati went downstairs and then I heard a noise bachao- bachao and I came down from the roof and saw Rambir, Luvkush, Rajkumar, Chunna, Ashok were beating my devars with pipe rod and dandas and Luvkush was hitting with danda and Rajkumar caught hold of Bhagwati and Ashok stabbed Bhagwati in his chest with a knife. Bhagwati started bleeding. I suddenly shouted. Chunna attacked devar Satish with his knife which hit Satish in his hand and elbow and satish held the hand lof Chunna and because of which Chunna also received injury in his hand. Bhagwati fell down on floor, I started shouting. Rambir caught hold of my hair and said he would shoot me. I got scared and kept mum. Rambir was having katta like iron thing. These persons started throwing the belongings of the house. On finding an opportunity I went on the roof and cried bachao-bachao. On hearing this Rambir, Ashok, Rajkumar, Chunna, Luvkush ran away from the rare gate. Few persons who were standing outside the door also ran away, Kaml also ran away. Rambir, Luvkush, Ashok, Rajkumar, Chunna, Kamla and few other persons had entered into our house and have attacked and caused injuries to my devars and have killed Bhagwati. Dr. Shiv Kumar Sharma who is the President of the Block had not come with Kamla at the time on incident. Police Gypsy came on making a phone call and took away my devars to Hospital. (II) It is further submitted by the petitioner that on the very next day the complainant, Satish Chand went to the Police station and handed over a letter dated 14.1.2006 writing of which was in Hindi to SHO where he specifically stated that “Dr. Sharma jo F-3 block association ke pradhan hein kal vardaat mein shamil nahin thee, vey kewal pradhan ke natee faisla karane kuch din pehale aaye thee. Mein inke khilaf koi karyavahi nahin chahta hoon”. Crl.Rev.P. 427/2007 Page 7 of 18 (III) It is also submitted by petitioner that it was thereafter the Police conducted the investigation and found that the petitioner was not at all involved in the commission of offence nor he was present at the spot at the time of the incident and as such, the investigating agency declared that no evidence came on record which may show the involvement of Dr. Sharma and on that basis his name was placed in column 2 and he was not arrested. 8. It has been submitted that in these circumstances when there was ample evidence available on record that the petitioner was not present at the spot at the time of the incident, mere examination in chief of PW-3, the complaint, was not sufficient to satisfy that the petitioner was guilty of commission of crime for which he has been summoned by the trial court and therefore, the order dated 24.2.2007 passed under Section 319 Cr.P.C. summoning him as an accused was bad in law and without any basis. Consequently, the order framing charge against the petitioner dated 12.3.2007 is also perverse and shows complete non-application of mind by the Trial Judge and thus charges are liable to be set aside. 9. The petitioner has relied upon a judgment delivered by the Apex Court in Guriya @ Tabassum Tauquir & Ors. Vs. State of Bihar & Anr. 2007 (4) JCC 3004, wherein the Hon’ble Supreme Court while discussing the law related to Section 319 Cr.P.C. discussed previous judgments pertaining to this issue and observed as under: 6. The parameters for dealing with an application under Crl.Rev.P. 427/2007 Page 8 of 18 Section 319 Cr.P.C. have been laid down by this Court in several cases. 7. In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. AIR 2000 SC 1127 it was observed as follows: The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case , has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person." The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub- section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommended from the beginning of the trial, summon the witnesses once again and examine them and cross- examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly- brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action 14. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by Crl.Rev.P. 427/2007 Page 9 of 18 someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub- section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and Anr. AIR 2006 SC 1892) 15. The factual position noted above goes to show that there was no new material after examination of the accused persons under Section 313 Cr.P.C., which threw any light on the incident. The evidence of PWs 4 and 5 is not the basis of the application under Section 319 Cr.P.C. as they have not spoken anything about the appellants. 16. As noted above, PWs 1,2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.04.2001, 08.01.2002 and 29.04.2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1,2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319 Cr.P.C. was not filed earlier. The revisional court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319 Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above. 10. In this case, it is apparent that whatever PW-3 has stated in his Crl.Rev.P. 427/2007 Page 10 of 18 examination-in-chief is nothing new than what he has stated in the complaint made by him. What has been stated in the complaint was reflected by this witness when he made supplementary statement and also gave in writing to the IO that the petitioner was not present at the spot when the incident took place and in fact, he had only tried to bring conciliation between the parties three/four days prior to the incident. 11. I have also heard learned counsel for the parties and perused the record. 12. For invoking powers under Section 319 Cr.P.C., the foremost requirement is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arrayed as an accused in that case, has committed an offence for which that person could be tried together with the accused already arrayed. At this stage, it would be proper to take note of the provisions contained under Section 319, which reads as under: 319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which Such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court he may be arrested or Summoned, as the circumstances of' the case may require, for the purpose aforesaid. (3) Any person attending the court although not trader arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under subsection (1) then- (a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. (b) Subject to the provisions of clause (a), the case may Crl.Rev.P. 427/2007 Page 11 of