Kishori Lal vs Ajmer Singh

M.L. Singhal, J.

Kishori Lal (petitioner herein) through this Criminal Revision No. 391 of 1996 has challenged the order of discharge dated 15.2.1996 passed by Additional Chief Judicial Magistrate, Rewari discharging ASI Ajmer Singh of GRP, Rewari and others in complaint case titled Kishori Lal v. ASI Ajmer Singh of GPR in complaint under Sections 323/225/355/417 read with section 149 Indian Penal Code. The case laid by Kishori Lal against ASI Ajmer Singh and others before the Additional Chief Judicial Magistrate, Rewari was as follows :

"I am resident of village Janaula and teacher in the High School of village Bhora Kalan. On 23.9.1992, I had gone to Rewari to see the Martyrdom day celebrations (Shahidi Divas Samaroh) and also in connection with some personal work. After seeking the function and attending to my personal work, I came to Railway Station, Rewari at about 9 p.m. with a view to board a train for village Janaula. As there was still sufficient time for the departure of the train, I purchased Novel for Rs. 15/ from the book stall of Manoj situated at railway platform. I gave him 100 rupee currency note and sought return of Rs. 85/. Thereupon, he replied that he had returned me Rs. 85/. At that time, Ram Kishan son of Har Narain of village Janaula and Sukhbir Singh son of Ram Niwas PWs were also present there when Manoj accused had refused to return me Rs. 85/ despite my repeated demands. I went to the office of the Railway Police along with Ram Kishan and Sukhbir Singh and narrated there the entire sequence of events. ASI Ajmer Singh, HC Karan Singh, Constable Balraj, Constable Madan Lal, SHO Darshan Lal were present there. They seated me there and called Manoj accused also there. On being questioned time and again, I repeated that Manoj accused had not returned me Rs. 85/. Thereupon ASI Ajmer Singh effected my personal search. My personal search yielded currency notes of the denomination of Rs. 100/ and 50/. ASI Ajmer Singh and others accused No. 1 to 5 told me that Manoj accused was well known to them. When I asked ASI Ajmer Singh and others accused 1 to 5 to do justice to me, they replied that I required "thrashing". ASI Ajmer Singh and others accused 1 to 5 rained danda blows, leg blows, fist blows on my back, feet, chest and eye. I became nervous and continued saying that there was "God" above them watching their deeds. SHO Darshan Lal accused No. 5 remarked that they should concoct some explanation for my injuries. ASI Ajmer Singh accused No. 1 poured liquor lying in a tumbler in my mouth forcibly. HC Karan Singh took me to Civil Hospital, Rewari for medical examination where I was medically examined. Constable Shubh Ram accused No. 6 brought me forcibly on motor cycle on 24.9.1992 at 5 a.m. saying that they would arrange the return of Rs. 85/. I was put in police lock up quite unlawfully and unjustifiably. Accused fabricated false case against me with a view to get out of the injuries inflicted on me by them. On 25.9.1992, I got myself Xrayed from Dr. Tirlok Chander at Kelli Mandi. On 1.10.1002, I got my injuries Xrayed at Civil Hospital, Rewari as prior to 1.10.1992, the Radiologist was not in Civil Hospital, Rewari. Xray examination revealed fracture of rib. I reported the matter to Deputy Commissioner, Rewari on 25.9.1992. On 1.11.1992, I sent the complaint constituting the aforesaid facts to Deputy Commissioner, Gurgaon. I was assured by them that the matter will be got inquired into and justice done to be but to no effect."

After holding preliminary inquiry into the allegations made in the complaint, Additional Chief Judicial Magistrate, Rewari vide order dated 18.1.1993, found that there were sufficient grounds to proceed against ASI Ajmer Singh and others accused under Section 323/325/417 read with Section 149 Indian Penal Code. He found sufficient grounds to proceed against Manoj accused under Section 406 Indian Penal Code. Accused were summoned. After examination the evidence led by Kishori Lal in the presence of the accused, the Magistrate vide the impugned order found that there was no evidence against the accused warranting the framing of charge against them. We found that the framing of charge would be groundless and an exercise in futility as no conviction would be possible on the evidence led by the complainant before him and he accordingly discharged them all.

Not satisfied with the order passed by Additional Chief Judicial Magistrate, Rewari discharging the accusedrespondents, petitioner Kishori Lal has come up in revision to this Court.

I have heard Shri H.S. Gill, Sr. Advocate assisted by Shri G.S. Gill, Advocate for the petitioner and Shri D.V. Gupta, Advocate for respondents 1, 2, 3 and 5 and Shri R.S. Sihota, Advocate for respondents 4, 6 and 7, and have gone through the record.

Learned counsel for the petitioner has submitted that there was no occasion for the learned Magistrate to have discharged ASI Ajmer Singh and others accused on the mere ground that there was delay in the institution of the complaint when delay had been satisfactorily explained by him during the course of his evidence. During the course of his evidence, he had stated that he sent complaint to Deputy Commissioner, Rewari with regard to this occurrence. He sent complaint about this occurrence to Deputy Commissioner, Gurgaon on 1.11.1992. He was called by DSP, Rewari in connection with this occurrence. He was called by Deputy Commissioner, Gurgaon in connection with this occurrence at Delhi.

It has been submitted by the learned counsel for the petitioner that when Kishori Lal had been called by Deputy Commissioner, Gurgaon in connection with this occurrence and when he had been called by DSP, Rewari in connection with this occurrence, the delay in the institution of the complaint stood explained. In my opinion, the Magistrate should not have aimed at the mechanical disposal of the complaint. He should have sought the particulars of the complaint made by Kishori Lal to the Deputy Commissioner, Gurgaon and the particulars of the complaint made by him to the Deputy Commissioner, Rewari and summoned them from the quarters concerned. If the Magistrate had adopted this course, he would have been able to do substantial justice in the case. Doing mechanical justice in the complaint does not promote the interest of justice. It does not advance the interest of society. Kishori Lal was pitted against the "might" of the police. This complaint should not have been treated as an ordinary complaint where the complainant is pitted against ordinary person and tried as an ordinary complaint. It was a complaint where Kishori Lal was pitted against the might of the police and therefore, the Magistrate ought to have taken extra precaution to see that there was no injustice done in the case. Dr. Y.P. Singh PW5 found as many as 14 injuries on the person of Kishori Lal when he medically examined him on 24.9.1992. Dr. N.K. Sharma found fracture of 7th rib of Kishori Lal, after he had gone through the Xray films and the Xray report. It was a case not in isolation but there was a parallel case against Kishori Lal, set up against him by SHO, GRP, Rewari on the facts that on 24.9.1992, one Devanand came to SHO GRP, Rewari and made statement that he was railway employee and when he was on duty Kishori Lal was found on the railway platform staggering under the influence of liquor and Kishori Lal pelted stones and brickbats and he was caught with the help of one Rattan Lal. Case FIR No. 340 of 24.9.1992 under Sections 145, 146 Railways Act was registered against Kishori Lal by GRP, Rewari. It is true that this complaint was instituted by Kishori Lal 2 months after 23.9.1992.

It has been submitted by the learned counsel for the respondents that Kishori Lal brought this complaint falsely after 2 months of 23.9.1992 in the wake of the putting in of challan against him on 30.9.1992 under Section 145/146 of the Railways Act by GRP, Rewari. There were thus two versions before the court one by Kishori Lal and the other by Devanand. There was, however, no explanation by Devanand so far as the injuries of Kishori Lal are concerned. Dr. Y.P. Singh PW5 found as many as 14 injuries on the person of Kishori Lal. Doctor stated that possibility of all those injuries by multiple fall cannot be ruled out while one being under the influence of liquor. Dr. Y.P. Singh stated that his pupils were normal. Gait and speech were normal. Kishori Lal was conscious. BP was 120/80. Pulse rate was 80 per minute. If that was so, how alcohol can be said to have affected Kishori Lal so much that he suffered multiple falls. Kishori Lal was got medically examined through the intervention of the police. He was taken by HC Karan Singh of GRP to Dr. Y.P. Singh for medical examination. Duration of the injuries was found to be within 6 hours. Kishori Lal was not intoxicated. In my opinion, Kishori Lal should have been given some more opportunity to bring on record the version of the complaint made by him to Deputy Commissioner, Rewari and Deputy Commissioner, Gurgaon. If the version of the complaint before them had not been in accord with the version of the complaint before the Magistrate, it could have been said that delay was utilized in twisting the fact in introducing false witnesses and in implicating some or the other accused falsely.

Keeping in view that of late the police have lost its credibility, this complaint should not have been treated casually. This complaint should have been carried to its logical end. Principle enshrined in Section 245 Cr.P.C. which reads as follows should not have been invoked in this case as the Magistrate has not taken all the evidence necessary to substantiate the allegations of the complaints :

"245. When accused shall be discharged

(1) If, upon taking all the evidence referred to in section 244, 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, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

So, this revision is accepted and the impugned order is set aside and the Magistrate is directed to hold further inquiry into the allegations of the complaint and then decide whether or not he should frame charge. He shall frame charge only if he feels that conviction would be possible on the evidence already led plus the evidence led before him by Kishori Lal in the wake of this order. If the Magistrate feels that conviction would still not be possible, he will discharge the accused saying that the framing of the charge would be groundless and an exercise in futility.

Revision allowed.