Anita Dahiya vs State
1998 Latest Caselaw 622 Del

ORDER

J.B.Goel, J.

1. This petition under Section 482 of the Code of Criminal Procedure, (for short the 'Code') challenges the legality, validity and correctness of order dated 26.11.1992 passed by the learned Addl. Sessions Judge (ASJ) ordering summoning the petitioner under Section 319 of the Code in a case under sections 395/397/34 IPC.

2. A dacoity was committed at house No. CP-13, Pitampura, Delhi at about 12.30 p.m. on 18.1.1992 when cash and jewellery were looted after putting in fear of death of two ladies who were present at the said house, namely Smt. Shakuntla Mann and her daughter-in-law, Anita Dahiya (for short 'Anita'), by use of deadly weapons namely, revolver, country made pistol and knives. A FIR was lodged by Smt. Shakuntla Mann on 18.1.1992 when a case under Section 392/34 IPC was registered at Police Station Shalimar Bagh. On investigation, involvement of some more accused was found, however only four of the accused persons, namely Khalil Ahmed, Sushil Jain, Uddal Singh and Dulal could be arrested on 16.4.1992. These accused had made disclosure statements and they are also alleged to have got recovered some of the looted property which was identified in TIP by the aforesaid two ladies.

3. In the T.I.P. held by the learned M.M., the accused Khalil Ahmed was identified by PWs Subhash, Ishwar and Anita.

4. After completing the investigation, a report under Section 173 of the Code was submitted by the police against the aforesaid four accused persons and they were committed to the court of Sessions in due course.

5. Before the charges were framed, an application dated 23.9.1992 was filed by accused Khalil Ahmed and Sushil Jain without specifying the provision of law under which it was filed for summoning Smt. Anita Mann @ Anu @ Dimpy Chaudhary as a co-conspirator in the crime. This application has been treated by the learned ASJ under Section 319 of the Code and was allowed on 26.11.1992 ordering her to be summoned for being tried as an accused alongwith other accused. The legality and correctness of this order is challenged in this petition.

6. Shri D.C. Mathur, learned senior counsel for the petitioner has contended that the learned ASJ had no power under Section 319 of the Code or under any other provision of law to have ordered the summoning of the petitioner at this stage. Firstly, because Section 319 could be invoked only after some evidence had been recorded during trial whereas trial has not commenced as yet; secondly, that after commitment of the case, the Sessions Court has no power to summon a person not accused in the report under Section 173 of the Code; thirdly, the Sessions court has no power under Section 193 of the Code also to summon a person for which reliance has been placed on Raj Kishore Prasad Vs. State of Bihar & Anr. wherein correctness of the decisions in Kishun Singh & Ors. Vs. State of Bihar and Nishar Ahmed & Anr. Vs. State of U.P. has been doubted. In any case, learned Sr. counsel further contends that the material available on record sent alongwith report u/s 173 of the Code do not justify for proceeding against the petitioner; the material relied is neither sufficient nor admissible in evidence to be taken into consideration to invoke power under Section 193 of the Code; that the learned ASJ has wrongly assumed certain facts and drawn inferences wrongly from the material on record which is neither so warranted nor is legally permissible and the complicity of the petitioner could not be established from the material.

7. Learned counsel for the State has not supported the impugned order and has not disputed that the material on record is not sufficient to establish the involvement of the petitioner.

8. However, Shri R.N. Mittal learned counsel for the other accused persons has supported the order and has contended that the Sessions Judge on commitment acquires power under Section 193 of the Code as a court of original jurisdiction to summon any other person who has not been imp leaded by the police in their report u/s 173 of the Code. For this he has placed reliance on Kishun Singh & Ors. Vs. State of Bihar and Nishar Ahmed & Anr. Vs. State of U.P. , which according to him lay down the correct law and is binding on this Court unless the same is over-ruled by a larger Bench of the Hon'ble Supreme court and the doubt expressed by a Bench of coordinate jurisdiction is not a binding precedent. He also contends that the material available on record is sufficient to show complicity of the petitioner and the order is legal and valid.

9. Section 319 is not attracted in this case as the trial has not commenced and even charge has not been framed. This position was not seriously disputed by Shri R.N. Mittal. In fact this position is well established in view of the judgments in Kishun Singh & Ors. Vs. State of Bihar (supra) and Nishar Ahmed & Anr. Vs. State of U.P. (supra) and this has also been so laid down in the case of Raj Kishore Prasad (supra). It is also well settled that once it is found that the power exists, the exercise of power under a wrong provision will not render the order illegal or invalid.

10. In Kishun Singh's (supra), it was held that the court of sessions has the power under Section 193 of the Code to summon a person(s) if his or their involvement in the commission of crime prima facie surfaces from the record of the case and the documents submitted alongwith the report under Section 173 of the Code, that is, the police record, statements of witnesses recorded u/s 161 of the Code, the seizure memoranda etc. etc. This would be the material available to the court to form an opinion that there is ground for presuming that the accused has committed the offence on the basis of which Court could proceed to frame a charge as provided under Section 228 of the Code. Kishun Singh's case was followed in Nisar Ahmad's case.

11. The correctness of these two decisions has been doubted in Raj Kishore Prasad V. State of Bihar and Anr. (supra). However, it has been noticed there that that question did not arise for decision in that case.

12. The law as enunciated in Kishun Singh's case and Nishar Ahmed's case (supra) as at present thus is the law binding on this Court unless this is over-ruled authoritatively by a larger Bench.

13. Now, the question is: Is there material on record to summon the petitioner as an accused to stand trial along with others arraigned as accused against whom the case has been committed?

14. Learned counsel for the respondent has relied on the last paragraph of the report u/s 173 of the Code, disclosure statment of accused Khalil Ahmed recorded during investigation, circumstance that 5 minutes time was taken in identification of accused Khalil Ahmed by Ms. Anita and 4 documents collected during investigation from Punjab National Bank, namely, (1) the bank account opening application in the name of Dimpy Chaudhary on which account No. 32720 was allotted showing the address of the account holder as "house No. 2214, Gali Hingbeg, Tilak Bazar, Delhi, (2) specimen signatures of Dimpy Chaudhary of this account holder (3) a cheque NO. 110024009 dated 20.4.1992 issued by Dimpy Chaudhary in favour of Anita Dahiya in the sum of Rs. 25,500/- (4) statement of bank account of Account No. 32720 for the period 11.12.1991 to 24.4.1992. The question is whether this material is proper and sufficient for the learned ASJ to have formed the opinion under Section 193 of the code.

15. The report made by the police u/s 173 of the Code is not per se legal evidence of the facts stated therein. The report is the conclusion drawn by the investigating officer to proceed against an accused person on the basis of material collected during investigation. This report in itself thus is not material for forming the opinion to proceed against a person. A disclosure statement made by an accused person in itself also is not admissible even against the maker thereof and is also not admissible against a coaccused. This will also not be the relevant material for forming the requisite opinion u/s 193 of the Code.

16. The bank opening application in the name of Dimpy Chaudhary, specimen signature of Dimpy Chaudhary and the cheque drawn by Dimpy Chaudhary in favour of Anita and the bank statement of account themselves do not show that Dimpy Chaudhary is Anita. There is no material on record to establish her identity. This bank account was opened before the present occurrence. On the basis of the statement of bank account learned counsel for the accused has contended that the occurrence had taken place on 18.1.1992 and a sum of Rs. 16,000/- has been deposited in this account on 24.1.1992. The inference sought to be drawn is (1) this statement of account pertains to the account of Ms. Anita Dahiya (2) this amount represents the share of the looted property, which was given to her and deposited by her in that account. There is no material to warrant drawing such inferences. This fact is even not borne out from the disclosure statement made by accused Khalil Ahmed where he has stated that the amount of Rs.12,000/- looted in that occurrence was spent by him and it is not stated by him that the other looted property was sold and sale proceeds were distributed among the persons who may have participated in the occurrence. The cheque of Rs.25,500/- drawn from this account in favour of Anita Dahiya by Dimpy also does not prove the complicity of Anita Dahiya in the crime. The circumstances that Anita took 5 minutes in identifying accused Khalil Ahmad in T.I.P. in itself is not the material to establish her complicity in the crime.

17. A court of Sessions without itself recording evidence can summon an additional accused to stand trial alongwith others already committed to it only on the basis of the documents submitted alongwith the final report of the investigation officer u/s 173 of the Code in view of Section 227 and 228 of the Code as for the purposes of these two sections that would be the only relevant material.

18. The learned ASJ was not justified in coming to the conclusion on this material that Anita was the account holder as Dimpy Chaudhary and she had been operating that account. The learned ASJ, was also not justified in further coming to the conclusion that it was prima facie evidence to implicate the petitioner.

19. The impugned order in the circumstances, in my view is not proper, justified and legally valid. The same is liable to be set aside.

20. This petition is accordingly allowed and the impugned order dated 26.11.1992 is set aside and notice summoning the petitioner is discharged.

This petition stands disposed of.