Delhi High Court
Mohd. Rizwan vs State (Nct Govt. Of Delhi) & Ors. on 17 August, 2009
Author: V.K.Shali
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No. 1372/2009
Date of Decision : 17.8.2009
MOHD. RIZWAN ......Petitioner
Through: Mr. Ajit Kumar, Advocate
Versus
STATE (NCT GOVT. OF DELHI) & ORS. ...... Respondents
Through: Mr. Pawan Bahl, APP for
the State.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
1. The petitioner has filed the present petition under Section
482 of Cr.P.C. for setting aside the order dated 18.4.2009
passed by the learned Sessions Judge in Crl.Rev. P.
No.10/2009 and has further prayed for discharge of the
accused in FIR No.456/2005 dated 04.5.2005.
2. I have heard the learned counsel for the petitioner as well
as the learned APP for the State and perused the record.
3. The learned Magistrate vide order dated 31.3.2009 in
respect of FIR No.456/2005 registered at P.S. Welcome
directed framing of charge under section 356/379 IPC
against the petitioner herein on the ground that there was
a prima facie evidence that the petitioner had committed an
offence in question. While passing a detailed and a
Crl.M.C. No.1372/2009 Page 1 of 4
speaking order, the learned Magistrate had taken a note of
the fact that the petitioner had refused to participate in the
Test Identification Parade (TIP) despite knowing that his
refusal may warrant an adverse inference against him.
This was a case where there was an allegation of chain
snatching committed by two persons who were riding a
Pulsar Motor Cycle somewhere near Seelampur.
4. After direction of framing of the charge, it was framed
under the aforesaid two offences on the said date in the
case which is presently stated to be fixed for prosecution.
5. The petitioner feeling aggrieved by the order dated
31.3.2009 directing framing of charge and preferred a
revision in case titled Mohd. Rizwan Vs. The State
bearing Crl.Rev. No.10/2009 which came to be listed before
Dr.R.K.Yadav, learned ASJ. The learned ASJ passed a
detailed order rejecting the prayer of the petitioner for
discharge on the ground that the charges/allegations as
stated in the charge sheet and the documents annexed
thereto were not groundless and would not warrant the
discharge of the accused. The learned ASJ also took note
of the fact that the petitioner had refused to participate in
the TIP despite having been specifically warned. This being
a case of snatching of gold chain lodged by the complainant
Smt.Sulakha Thakur, who was waiting at the bus stop near
Welcome Colony where the two boys in the same age group
with the same build up had committed an offence of
Crl.M.C. No.1372/2009 Page 2 of 4
snatching. After investigation, the petitioner had refused to
participate in the TIP which was taken as a measure of
adverse inference against her so as to warrant the
discharge of the said accused.
6. The petitioner was still not satisfied and has chosen to file
the present petition under Section 482 of Cr.P.C. for being
discharged and setting aside the order of the learned
Sessions Judge.
7. I have considered the submissions of the learned counsel
for the petitioner, who has contended that the IO in this
particular case was apprehended in a case of bribery and
therefore, the entire investigation in the present case are
tainted. He has also drawn my attention to an order
passed by this Court wherein the petitioner has been given
liberty to seek an appropriate remedy of initiating action
against some police officials. On the basis of this, it has
been urged that the petitioner is sought to be falsely
implicated when he has nothing to do with the commission
of crime.
8. First of all, the present petition under Section 482 of
Cr.P.C. filed by the petitioner is in the nature of second
revision which is not permissible. This is specifically laid
down under Section 397 (3). On this short ground itself,
the present revision is liable to be dismissed.
9. However, without going into this technical objection of the
petition, I have considered both the impugned order dated
Crl.M.C. No.1372/2009 Page 3 of 4
18.4.2009 as well as the order passed by the learned
Magistrate on 31.3.2009 directing framing of charge, there
is absolutely no impropriety, illegality or incorrectness in
either of the two orders inasmuch as the charge has to be
framed against a person where there is a grave suspicion
against a person having committed an offence.
10. In the instant case, the factum that the petitioner is of the
same appearance, age and the complainant further refused
to participate in the TIP despite having been warranted by
the learned Magistrate raises a grave suspicion of his
involvement in the commission of offence. Merely because
the petitioner has been given the liberty by this Court to
prosecute his complaint against the police official would not
entitle or make the allegations in a given case to appear to
be groundless. This at best would only be a defence which
has to be established during the course of trial. Similar is
the defence of the accused that he has been falsely
implicated which can be proved by him only during the
course of trial and cannot be a ground of pre-empting the
trial itself by praying for discharge from the case itself.
11. For the reasons mentioned above, I feel that the petition
filed by the petitioner is misconceived apart from being hit
by Section 397 (3) and therefore, the same is dismissed.
V.K. SHALI, J.
AUGUST 17, 2009
RN
