The effect of non-recovery of the weapon cannot be a reason for not framing charges under Section 397 IPC: Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 08th November 2021 IN THE MATTER OF: CRL.REV.P. 108 2021 ..... Petitioner Through: Ms. Meenakshi Chauhan APP for the State with SI Surendar Singh PS South Campus. ..... Respondent HASSAN AHMED HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Through: Ms. Rakhi Dubey with Mr.Himanshu SUBRAMONIUM PRASAD J. Gera Advocates This petition under Section 397 401 Cr.P.C is directed against the order dated 25.02.2020 passed by the learned District and Sessions Judge Patiala House Courts New Delhi in SC No.58 2020 arising out of FIR No.189 2016 registered at Police Station South Campus for offences under Section 392 34 IPC. The learned District and Sessions Judge by the order impugned herein has held that the offence under Section 397 IPC is not made out against the accused respondent herein and the matter has been sent to the learned Chief Metropolitan Magistrate for framing of charge under The factual matrix which has led to the filing of the instant petition is Section 392 IPC. as under : CRL.REV.P. 108 2021 a) A complaint was received from one Navi S o Sanjiv Bhadu R o S 466 Second Floor Greater Kailash I New Delhi stating that on 11.04.2016 at about 9 PM four of his friends namely Siddhant Suyesh Shubham and Pranav came to meet him at his house. It is stated that at about 1:00 AM he along with his friends went to Janakpuri to drop Pranav to his work in a car bearing No. DL 1N 8064. It is stated that that the complainant was driving the car. It is stated that at about 1:40 AM the complainant stopped the car at Ring Road Dhaula Kuan Delhi before South Moti Bagh bus stand to buy a cigarette. It is stated that the complainant Pranav and Suyesh got off the car. It is stated that a grey coloured Swift Dzire car came from the wrong side and parked their car behind the car of the complainant. It is stated that the occupants of the car introduced themselves as officials of Delhi Police and asked complainant and his friends as to what they were doing there and told them to sit inside the car. It is stated that after the complainant and his friends sat in the car one person who was about 5 7 and had wheatish complexion threatened the complainant and his friends by brandishing a pistol and asked them to give all their belongings. It is stated that the complainant and his friends gave their belongings to those persons. On the said complaint FIR No.189 2016 dated 12.04.2016 was registered at Police Station South Campus for offences under Sections 392 34 IPC. CRL.REV.P. 108 2021 b) Accusedwas arrested in FIR No.559 2016 registered at Police Station Malviya Nagar for offences under Sections 411 482 IPC and Sections 25 54 59 Arms Act. It is stated that during interrogation the accused gave a disclosure statement of having committed the offence in FIR No.189 2016 along with other persons who were there with him. The respondent herein refused to join the TIP. c) Charge sheet has been filed stating that there is sufficient material against the respondent herein to proceed ahead against him for offences under Sections 397 34 IPC. d) On 25.02.2020 the learned District and Sessions Judge Patiala House Courts passed the impugned judgment framing charges against the respondent herein only for offences under Section 392 IPC. The learned District and Sessions Judge Patiala House Courts held that since the pistol had only been brandished and it had not been used and therefore the offence under Section 397 IPC is not made out against the accused. Since the offence under Section 392 IPC is triable by the learned Metropolitan Magistrate the file was directed to be sent to the learned Chief Metropolitan Magistrate Patiala House Courts to assign the case to its own Court or other Court in accordance with law. It is this order which has been assailed in the instant petition. The question which arises for consideration in this case is whether when an act of robbery is committed by showing a revolver pistol then does an offence under Section 397 is made out or not CRL.REV.P. 108 2021 5. Ms. Meenakshi Chauhan learned APP for the State submits that showing a revolver pistol to commit robbery is sufficient to attract the provisions of Section 397 IPC. The learned APP for the State relies on the judgment of the Supreme Court in Phool Kumar v. Delhi Admn. 1 SCC 797 to contend that the judgment impugned herein is completely contrary to the laws laid down by the Supreme Court. Per contra Ms. Rakhi Dubey learned counsel appearing for the accused respondent herein contends that there is no recovery of any material which is alleged to have been robbed by the accused respondent herein. She therefore states that the offence under Section 397 IPC is not made out against the respondent. It is further contended by the learned counsel for the respondent that the weapon used in the alleged incident has also not been recovered from the accused. It is further contended by the learned counsel for the respondent that the accused respondent was arrested in some other case and he is being falsely implicated in the present case. Heard Ms. Meenakshi Chauhan learned APP for the State and Ms. Rakhi Dubey learned counsel appearing for the accused respondent and perused the material on record. Section 397 IPC reads as under: 397. Robbery or dacoity with attempt to cause death or grievous hurt.—If at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any per son the imprisonment with which such offender shall be punished shall not be less than seven years." The Supreme Court in Phool Kumarhas observed as under: CRL.REV.P. 108 2021 7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt death or the like then it is of Chandra Nagar Nath v. EmperorSingh v. Emperorand Inder Singh v. Emperorsome overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas JJ. of the Bombay High Court have said the case of Govind Dipaji More v. Statethat if the knife “was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property that would amount to „using‟ the weapon within the meaning of Section 397.” In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word “uses” in the case of Chand Singh2 Punj and Har 108] is not correct." emphasis supplied) 10. A reading of the abovementioned judgment shows that the term use would include brandishing the weapon against another person in order to overpower him or to frighten his victim. The Apex Court upheld the judgment of the Bombay High Court in Govind Dipaji More v. State AIR 1956 Bom 353 by observing that that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property that would amount to ‘using’ the CRL.REV.P. 108 2021 weapon within the meaning of Section 397 IPC. The Supreme Court has over ruled the judgment of the Full Bench of the High Court of Punjab & Haryana in State v. Chand Singh ILR2 Punj and Har 108 on this 11. The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC. 12. Accordingly the revision petition is allowed. Charges under Section 397 IPC ought to be framed against the accused. The learned District and Sessions Judge Patiala House Courts New Delhi is directed to assign the case to its own Court or other Court in accordance with law. 13. With these observations the petition is disposed of along with the pending application(s) if any. NOVEMBER 08 2021 SUBRAMONIUM PRASAD J CRL.REV.P. 108 2021 

Summary: The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non-recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC as held by the High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of State V. Hassan Ahmed (CRL.REV.P. 108/2021) Facts of the case are that a complaint was received from one Navi S/o Sanjiv Bhadu, stating that on 11.04.2016 at about 9 PM, four of his friends, namely, Siddhant, Suyesh, Shubham and Pranav came to meet him at his house. It is stated that at about 1:00 AM he along with his friends went to Janakpuri to drop Pranav to his work in a car. It is stated that at about 1:40 AM the complainant stopped the car, to buy a cigarette. Pranav and Suyesh got off the car and a grey coloured Swift Dzire car came from the wrong side and parked their car behind the car of the complainant. The occupants of the car introduced themselves as officials of Delhi Police and asked the complainant and his friends as to what they were doing there and told them to sit inside the car. After the complainant and his friends sat in the car, one person threatened the complainant and his friends by brandishing a pistol and asked them to give all their belongings. The complainant and his friends gave their belongings to those persons. On the said complaint, was registered at Police Station South Campus for offences under Sections 392/34 IPC. Accused (respondent herein) was arrested in FIR registered at Police Station Malviya Nagar for offences under Sections 411/482 IPC and Sections 25/54/59 Arms Act. It is stated that during interrogation the accused gave a disclosure statement of having committed the offence in FIR No.189/2016 along with other persons who were there with him. The respondent herein refused to join the TIP. Charge-sheet has been filed stating that there is sufficient material against the respondent herein to proceed ahead against him for offences under Sections 397/34 IPC. On 25.02.2020, the learned District and Sessions Judge, Patiala House Courts, passed the impugned judgment framing charges against the respondent herein only for offences under Section 392 IPC. The learned District and Sessions Judge, Patiala House Courts, held that since the pistol had only been brandished, and it had not been used, and therefore, the offence under Section 397 IPC is not made out against the accused. Since, the offence under Section 392 IPC is triable by the learned Metropolitan Magistrate, the file was directed to be sent to the learned Chief Metropolitan Magistrate, Patiala House Courts to assign the case to its own Court or other Court in accordance with law. It is this order which has been assailed in the instant petition. After the perusal of the facts and arguments, the Hon’ble Court held, “The Apex Court upheld the judgment of the Bombay High Court in Govind Dipaji More v. State, AIR 1956 Bom 353, by observing that that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to ‘using’ the weapon within the meaning of Section 397 IPC. Accordingly, the revision petition is allowed. Charges under Section 397 IPC ought to be framed against the accused. The learned District and Sessions Judge, Patiala House Courts, New Delhi, is directed to assign the case to its own Court or other Court in accordance with law. With these observations, the petition is disposed of along with the pending application(s), if any.”