Dr. Zile Ram & Anr. vs The State
2009 Latest Caselaw 108 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+                Crl. Rev. (P). 564-65/2005

                            Date of decision: January 16, 2009

#     DR. ZILE RAM & ANR.           ..... Petitioners
!               Through : Ms. Monika Bhanot, Adv. with
                          Ms. Savita Prabhakar, Adv.

                              Versus
$     THE STATE                        ..... Respondent
^                  Through : Mr. Lovkesh Sawhney,
                             APP for the State
                             Mr. A.K. Mishra, Advocate
                             for complainant.

                            AND
                   Crl. Rev. (P). 567/2005

#     SMT. KUSUM & ANR.           ..... Petitioners
!             Through : Ms. Monika Bhanot, Adv. with
                        Ms. Savita Prabhakar, Adv.

                              Versus

$     THE STATE                        ..... Respondent
^                  Through : Mr. Lovkesh Sawhney,
                             APP for the State
                             Mr. A.K. Mishra, Advocate
                             for complainant.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?           Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                  Yes


Crl.Rev.P.Nos.564-65/05 & 567/05                      Page 1 of 19
                         JUDGMENT

ARUNA SURESH, J.

1. Both the revision petitions have arisen out of the

common order dated 15.02.2005 whereby the

learned Metropolitan Magistrate was pleased to

order framing of charges against the petitioners for

offences under Sections 451/506 Indian Penal Code

(hereinafter referred to as IPC) and in case FIR No.

273/97 P.S. Kotla, Mubarikpur, New Delhi and he

accordingly framed charges against the petitioners.

2. Dr. Zile Ram is the cousin brother of co-accused

Kusum whereas Ram Sharan Bhati is the father of

co-accused Kusum. Sudhir Kumar is the husband

of co-accused Kusum whereas Chet Singh and Raj

Kumar, complainants happen to be the father-in-

law and brother-in-law of co-accused Kusum.

3. Checkered history of this case is that Kusum was

married to Sudhir Kumar in December, 1985.

Because of some differences, Kusum lodged an FIR

being FIR No. 244/87 under Sections 498-A/506

IPC against complainant Chet Singh and his wife.

Chet Singh was arrested in the said case.

However, parties compromised the matter and in

view of the settlement, Chet Singh was acquitted.

Kusum filed another FIR in 1996 under Section 406

IPC against complainant Raj Kumar, Chet Singh

and his wife which was quashed by this Court in

Criminal Petition No. 698/1996. A civil suit being

suit no. 567/1990 was filed by Chet Singh against

the accused persons which resulted into an ex-

parte judgment and decree dated 12.05.1992,

whereby petitioners were restrained from

dispossessing Chet Singh from Property No. 1876,

Village Kotla Mubarikpur, New Delhi without due

process of law and also from interfering with their

peaceful possession in the suit property. This

order has attained finality.

4. Sudhir Kumar filed another suit being suit No.

2159/1996 seeking partition of the ancestral

property and rendition of accounts. In the said

case, Kusum moved an application for being

impleaded as necessary party. The said case is

pending adjudication.

5. Allegations of the prosecution against the

petitioners are that on coming to know from the

statement made by counsel for the complainant Raj

Kumar that complainant Chet Singh had suffered a

heart attack, accused Kusum and her husband

Sudhir along with their 10 year old son went to the

house No. 1876, Kotla Mubarikpur on 14.05.1992

at about 7.30 p.m. to enquire about Chet Singh‟s

health.

6. All the petitioners allegedly entered into the said

house of complainant and started abusing Chet

Singh who had recently been discharged from the

Hospital. Petitioners allegedly threatened Chet

Singh and Raj Kumar of their lives and also that

they would be dispossessed from the said house on

the plea that they had obtained a favourable order

from this Court on that day i.e. on 14.05.1997.

Police was immediately called and petitioners Ram

Sharan Bhati and Dr. Zile Ram managed to run

away from outside the house before the arrival of

the police, whereas Sudhir Kumar and Kusum

allegedly trespassed in the house of the

complainants, threatened them and assaulted Shri

Chet Singh. DD No. 73-B dated 14.05.1997 was

recorded but, FIR was registered only on

21.05.1997 after seeking prosecution opinion.

7. After conducting investigation, the Investigating

Officer filed a final report under Section 173

Criminal Procedure Code seeking cancellation of

the FIR as investigation did not reveal commission

of any cognizable offence by any of the petitioners.

However, this report was not accepted by the

learned Metropolitan Magistrate and he took

cognizance of the offences under Sections

451/506/34 IPC and summoned all the four accused

persons. The said order was challenged by the

petitioners in revision being Criminal Revision No.

62/1999. The revision was dismissed vide order

dated 12.12.2000. Against this order, petitioners

Dr. Zile Ram and Ram Sharan Bhati filed Criminal

Writ Petition being Writ Petition No. 1084/2000.

This writ petition was withdrawn by the petitioners

on 15.07.2004 reserving their right to take all the

relevant pleas regarding framing of charges before

the trial court.

8. The learned Metropolitan Magistrate vide

impugned order was pleased to hold that prima

facie there was evidence to indicate that

petitioners had committed offence under Sections

451/506/34 IPC and proceeded with framing of the

charges under the said sections against all the

petitioners.

9. Learned counsel for Dr. Zile Ram has submitted

that at the time of the alleged incident on

14.05.1997, he was not present at the place of

incident as, being a Government servant, he was

assigned a duty for making horticulture

decorations in the technical area Palam Airport

from 10.05.1997 to 15.05.1997 in connection with

the visit of the Prime Minister of India to Maldives

and was on duty at the time of the alleged incident

which fact was duly verified by the investigating

officer and that petitioner Dr. Zile Ram has been

falsely implicated in this case because of previous

property dispute inter se the parties.

10. It is submitted by the learned counsel for the

petitioner; Ram Sharan Bhati that Ram Saran Bhati

was not present at the time when the incident took

place and he had gone to a far off place for

attending a marriage function, which was duly

verified by the investigating officer.

11. Learned counsel for the petitioners further

emphasized that the FIR indicates that there was

no person other than the complainant Raj Kumar

present on the spot when the alleged incident took

place and there was no material on record to show

when the alleged incident had taken place and that

the trial court erred in relying upon the contents of

the FIR only, without considering the material

available on record, while rejecting the

cancellation report and taking cognizance of

offences against the petitioners. According to

learned counsel for the petitioners, prima facie

there is no sufficient material on record to make

out any case against the petitioners and therefore,

the order of the trial court dated 15.02.2005 and

consequent framing of charges is in violation of

provisions of Section 239-240 of Criminal

Procedure Code and therefore are liable to be set

aside.

12. It is submitted by counsel for the petitioners Kusum

and Sh. Sudhir that visit of the petitioners to Chet

Singh was bona fide, with a view to enquire him

about his health and not with any motivation to

trespass into the house, threat the complainants or

assault them and there was no such circumstance

under which the petitioner could have committed

any such offence as alleged especially when

petitioners Kusum and Sudhir had taken their 10

year old son along with them.

13. All these submissions made by learned counsel for

the petitioners have been refuted by learned

Additional Public Prosecutor for the State who was

duly assisted by Shri A.K. Mishra, Advocate for the

complainant.

14. Parties have been litigating with each other for a

long time. This litigation started in the year 1987

just after two years of the marriage of Kusum with

Sudhir. In the FIR, there are clear allegations

against all the petitioners except Dr. Zile Ram that,

on 14.05.1997, after coming to know in the court

that Chet Singh was unwell, they barged into the

house of the complainant and threatened him of his

life and property and pounced upon Chet Singh,

who was about 73 years old at that time. It is

alleged that petitioners Dr. Zile Ram and Ram

Sharan Bhati ran away while Kusum and Sudhir

were apprehended by the Police. Admittedly, Dr.

Zile Ram and Ram Sharan Bhati were not

apprehended on the spot nor they were arrested

during the investigation of the case.

15. Dr. Zile Ram has disputed his presence on the spot

at the relevant time and date of the alleged

incident. Dr. Zile Ram is employed with L-Division,

CPWD during the relevant period when the alleged

incident took place. On 6.5.1997, a letter was sent

by Protocol Officer, Government of India, Ministry

of External Affairs to Shri R.S. Puri, Executive

Engineer, L-Division, CPWD calling upon him to

make necessary arrangements for the departure

and arrival of the Prime Minister from Maldives

from 11.05.1997 to 14.05.1997. Consequently, a

letter was issued by CPWD, Horticulture (South

Division) to the Deputy Commissioner of Police

(Securities) asking them to provide necessary

clearance/security post to the persons named in the

said letter for purposes of making Horticulture

decorations at Palam Airport from 10.05.1997 to

15.05.1997. Dr. Zile Ram was Deputy Director of

Horticulture and he was deputed to supervise the

horticulture works at Palam Airport during the said

period. A letter was also collected by the

Investigating Officer dated 28.03.2000 from CPWD

Directorate of Horticulture which certified that Dr.

Zile Ram, Deputy Director, Horticulture was on

duty on 14.05.1997 from 4 p.m. to 8 p.m. at A.F.S.

Palam Airport in connection with horticulture

works on the occasion of arrival of the then Prime

Minister Mr. I.K. Gujral from Maldives. Thus,

prima facie there is evidence to indicate that Dr.

Zile Ram was looking after the horticulture

arrangements at Palam Airport on 14.05.1997

when the alleged incident took place. The incident

allegedly took place at about 7.00 p.m. whereas on

14.05.1997, Dr. Zile Ram was on duty upto 8.00

p.m., as the arrival of the Prime Minister was

expected at 6.00 p.m. as per the letter dated

6.5.1997. The learned Metropolitan Magistrate in

the impugned order did not consider the evidence

collected by the Investigating Officer during the

investigation of the case regarding the plea of alibi

taken by Dr. Zile Ram. Under these circumstances,

the order of the learned Metropolitan Magistrate

for framing of charges against Dr. Zile Ram cannot

be sustained.

16. Learned Metropolitan Magistrate has placed

reliance on „Kanti Bhadra Shah v. State of West

Bengal, 2000(1) AD(SC) 1', to observe that a

detailed order need not be passed at the time of

framing of charges.

17. Be that as it may, an order of discharge being a

final order can be challenged by the prosecution

and if challenged, the reasons for discharge should

be made available for scrutiny by the superior

court and in case a charge is framed and the trial

proceeds, then also an opportunity to challenge any

irregularity in the charge or its validity is available

to the accused after the charges are framed, or

even at the conclusion of the trial.

18. The Magistrate has to consider the material placed

before him whether it discloses grave suspicion

against the accused which has not been properly

explained, the court is justified in framing a

charge and proceed with the trial. However,

where the judge is justified that the evidence

produced before him does give rise to some

suspicion but not grave suspicion against the

accused, he is within his rights to discharge the

accused. At the same time, if two views are equally

possible, the Magistrate has the power to

discharge the accused. The Court is not to act as a

mouthpiece of the prosecution and frame charge

against an accused mechanically without any

application of mind. Court is within its rights to

sift and weigh the evidence and material available

on record to come to a prima facie view if any case

for framing of charge has been made out against

the accused. At the same time, the Court is not to

make a roving inquiry as if it was deciding the case

on merits. At the time of framing of charge, the

Court is not to meticulously judge the truth,

veracity and effect of the evidence which the

prosecution proposes to adduce. The standard of

test, proof and judgment which is to be applied

finally before finding the accused guilty or

otherwise is not to be exactly applied at the stage

of Section 227 or 228 Cr.P.C. While perusing the

records and the statements on which the

prosecution relies, the Court has to form a

presumptive opinion as to the facts existing and

ingredients constituting the offence and justifying

the framing of charge.

19. In Union of India v. Prafulla Kumar Samal and

Another - 1979 SCC (Cri) 609, the Supreme

Court has laid down four principles to be taken into

account. The Court observed:

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the

broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

20. It is trite that a court cannot act merely as a post

office or mouth piece of the prosecution but has to

consider the broad probabilities of the case, the

allegations against the accused, evidence, oral and

documentary, produced before the Court and any

basic infirmities appearing in the material placed

before it. However, at the same time, it does not

mean that a judge has to make a roving inquiry into

the pros and cons of the matter and weigh the

evidence has if he was conducting a trial. While

considering the question of framing charges, the

Court has no doubt power to sift and weigh

evidence for the limited purpose of finding out

whether or not a prima facie case against accused

has been made out, but at the same time, Court is

not to sift and weigh the evidence as if it were

deciding the case on merits. Thus, it is clear that

the Court has to form a presumptive opinion as to

the existence of factual ingredients constituting the

offence and justifying the framing of the charge.

21. In the present case, presence of Dr. Zile Ram at the

spot, at the relevant time, itself is in dispute and

the evidence collected against him during the

investigation of the case may raise some suspicion

against him but not a grave suspicion for framing

of charges under Sections 451/506/34 IPC.

22. Admittedly, he was not apprehended on the spot,

though his name appears in DD No. 73-B dated

14.05.1997 i.e. on the same day after the alleged

occurrence. As per this DD, Chet Singh had

informed the Investigating Officer that petitioners

Kusum and Sudhir along with Ram Saran Bhati and

Dr. Zile Ram had come to his house with a view to

forcibly occupy the same and both Dr. Zile Ram

and Ram Sharan Bhati ran away from outside the

house. It were only Sudhir and Kusum who had

trespassed in the house and threatened Chet

Singh. FIR was registered after about 6 days of the

occurrence. Under these circumstances, presence

of Dr. Zile Ram at the spot on 14.5.1997 prima

facie is doubtful. Therefore, the Trial Court went

wrong in framing charges for offence under

Sections 451/506/34 IPC against Dr. Zile Ram.

23. As regards accused Ram Sharan Bhati, since his

name appears in the FIR and there is evidence to

indicate that he had trespassed into the house of

the complainant, threatened Chet Singh of his life

and also criminally assault him, the court adopted a

right approach in framing charges against him.

Ram Sharan Bhati has also claimed alibi on the

plea that he had gone to far off place to attend a

marriage and was not in Delhi on the date and time

of the alleged incident. This is a defence raised by

Ram Sharan Bhati which he has to prove during the

trial of the case. The dispute inter se the parties

pertains to property in which petitioner Sudhir

Kumar claims his right and has filed a suit for

partition and rendition of accounts. This dispute

over property, probably, is the cause of alleged

trespass by Sudhir Kumar and Kusum into the

disputed property of Chet Singh, criminal

intimidation to, and assault on him.

24. The investigating agency had sought cancellation

of FIR on the grounds that the complaint was not

corroborated by any independent witness and that

complainant wanted to grab whole property in

connivance with his father and therefore purposely

got the case registered against his own brother, his

wife and others. The investigating officer was also

weighed by the fact that Sudhir and Kusum were

accompanied with their 10 year old son to the

house of the complainant and in normal

circumstances, it was impossible for any trespasser

to dispossess a fully occupied house by the other

family members. The investigating officer flawed

in taking into consideration the previous FIR got

registered by Kusum under Sections 498A/506/34

IPC at Police Station Kotla Mubarikpur. He,

therefore, was of the opinion that since

complainant and his father were humiliated at the

hands of Kusum and Sudhir, they got this FIR

registered against the petitioners.

25. Under these circumstances, the trial court rightly

took cognizance of offence under Sections

451/506/34 IPC against Kusum, Sudhir Kumar and

Ram Sharan Bhati, summoned them and

accordingly framed charges against them.

26. Hence, the impugned order on charge dated

15.02.2005 and consequent framing of charge of

the even date as against Dr. Zile Ram is hereby

quashed. The Trial Court shall proceed with the

trial of the case as against the remaining three

persons, Ram Sharan Bhati, Kusum and Sudhir

Kumar. Accordingly Criminal Revision Petition

No.564-565/2005 is partly allowed and Criminal

Revision Petition No.567/2005 is hereby dismissed.

Attested copy of this order be sent to the trial court

as well as the State. Trial Court record be sent

back to the trial court.

(ARUNA SURESH) JUDGE January 16, 2009 rd