Qamar Abbas vs State NCT of Delhi

Hima Kohli, J.—The present petition is filed by the Petitioner under Sections 397 & 401 read with Section 482 Code of Criminal Procedure praying inter alia for setting aside the order on charge dated 19.11.2010, passed by the learned ASJ in a case arising out of FIR No. 155/2010, framing charge against him u/s 397 IPC.

The main grievance of the Petitioner is that the said order of charge against him has been passed in the teeth of the statements made by Mr. Kailash Chand Jain and Mr. Ratan Lal Sharma, both employees of the complainant, Mr. Deepak Garg, which specifically state that it was the co-accused, Mr. Krishan @ Lalva, who had forcefully taken the PAN card, diary and cash amount from the pocket of Mr. Ratan Lal and the other co-accused who had taken the wrist watch of the complainant, whereas the third co-accused had taken the cash amount of Rs. 12 lakhs from the almirah and put it in a bag. He states that initially in the TIP held on 5.7.2010, the Petitioner was not identified, and in spite of this fact, he was taken in police custody and thereafter on 8.7.2010, recoveries of PAN card and diary were shown to have been made from him, fraudulently. It is also the contention of the counsel for the Petitioner that as no role has been attributed to the Petitioner in robbing of the complainant and his employees, the charge against him has been wrongly framed.

The incident in the present case is stated to have occurred at 3.00 PM on 9.6.2010, when, as per the complainant, Mr. Deepak Garg, he was at his office at Adarsh Nagar, Delhi, and two persons entered his office, asking for one Mr. Govindji and thereafter took out pistols. After some time, two more persons entered the office, who too had pistols. They overpowered the complainant and others present, and robbed them of Rs. 16.00 lacs, their mobile phones and a purse containing a driving licence, club card, PAN Card, etc. It is alleged that all the accused persons disconnected the telephones at the office of the complainant and also took away his mobile phones and those of others present and after confining them in a room, ran away.

Based on the aforesaid complaint, investigation was conducted by the police. The investigation revealed that on 9.6.2010, while four persons entered the office of the complainant, two more persons waited outside the office, one of whom was the Petitioner herein, and hence six persons were identified, who in furtherance of their common intention committed the offence of dacoity, punishable u/s 395 IPC.

Learned APP for the State submits that the contention of the counsel for the Petitioner that the Petitioner has been unnecessarily involved in the present case and there are no specific allegations against him, is demolished by the fact that in his supplementary statement, the complainant had specifically stated that, apart from the four persons who had entered into his office, he had seen two persons outside the office, and that all the six persons were present at the scene of crime at the time of commission of the crime. It is further pointed out that within two weeks from the date of the incident, a sum of Rs. 75,000/- was recovered from the Petitioner himself and he is stated to have purchased a Santro Car worth Rs. 1.05 lacs during the said period. This apart, the stolen diary and PAN card were also recovered from the Petitioner.

This Court has heard the counsels for the parties and examined the documents placed on the record. It is settled law that that the scope of interference of the High Court in an order framing charge is limited and a roving enquiry into the materials produced is not required to be undertaken at this stage. If the Court, on a prima facie view, is satisfied with the view taken by the court below, it may not interfere with the framing of charge. In the case of Om Parkash Sharma Vs. Central Bureau of Investigation, Delhi, , the Supreme Court held as under:

... This Court has already cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India (UOI) Vs. Prafulla Kumar Samal and Another, . Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court superior to that court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the court and not of any rights concretised in favour of the accused.

(emphasis added)

In the case of State of M.P. Vs. S.B. Johari and Others, the degree of scrutiny to be exercised at the stage of framing of charge was elaborated on, by observing as below:

...It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce, to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, after considering the provisions of Sections 227 and 228 Code of Criminal Procedure, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977)4 SCC 399 Union of India (UOI) Vs. Prafulla Kumar Samal and Another, and Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, and held thus: (SCC p. 85, para 7)

From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(emphasis supplied)

In the present case, a perusal of the impugned order dated 19.11.2010, shows that the sessions court has framed charges against the Petitioner u/s 395 IPC, by rejecting the contention of the Petitioner of not being identified in the TIP, and observing that it was the complainant, Mr. Deepak Garg who had identified the Petitioner outside his office and stated so in his supplementary statement, but he had been unable to participate in the TIP proceedings on the day when it was conducted. A prima facie view was taken that the statement of the complainant identifying the Petitioner coupled with the recoveries made from him were sufficient to frame charge against the Petitioner and his co-accused u/s 395 IPC. This Court finds no infirmity in the prima facie view taken by the court below at the time of framing of charge.

Having regard to the aforesaid facts and circumstances, this Court is not inclined to interfere in the impugned order. The petition is therefore dismissed as being devoid of merits, along with the pending applications.

Needless to state that the observations made herein above are purely for the purpose of disposing of the present petition and the same shall not in any manner influence the trial court in proceeding with the case.