Amarjit Singh vs State Of Nct Of Delhi
2009 Latest Caselaw 4427 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on:28th October, 2009
                     Judgment Delivered on:3rd November, 2009

                          CRL.M.C.No.1330/2007

        AMARJIT SINGH                      ..... Petitioner
                              Through Mr.S. Gandhi, Sr.Adv. with
                              Mr.Yogesh Anand and Mr.Prateek Kumar,
                              Advs.

                         versus

        STATE NCT OF DELHI                ..... Respondent
                       Through Mr.Manoj Ohri, APP.
                       Mr.S.K. Singh, Adv. for complainant.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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

INDERMEET KAUR, J.

1. FIR No.13/2001 has been registered under Sections 394/34

of the Indian Penal Code (hereinafter referred to as the IPC) on

17.3.2001 at 8.15 PM on the statement of the complainant Radhey

Shyam. As per the version of the complainant on 17.3.2001 at

around 6.00 PM he was driving canter No.HR-26GA 1463, owned

by Prem Singh Sharma and while on the Okhla Road, one maruti

esteem car No.D:-2CG-6729 stopped in front of his canter; three-

four well built persons between 25 to 35 years of age made him

and his helper forcibly get down from the canter, the keys and the

canter were forcibly taken away. Investigation was set into motion

on this complaint.

2. In the course of the investigation, the name of present

petitioner Amarjit Singh had figured; Amarjit Singh, the present

petitioner being the financer of canter No.HR-26 GA 1463 and the

owner of Inter State Finance Company has allegedly instigated

four persons i.e. his employees to forcibly recover this canter from

Radhey Shyam.

3. On 28.5.2005 orders had been passed against all five

persons for framing of charge under Section 392 read with Section

120-B of the IPC by the Court of the ACMM. Framing of formal

charge was kept in abeyance under the orders of the Additional

Sessions Judge. Order of the ACMM was affirmed in revision by

the Additional Sessions Judge on 02.2.2006; it was held that a

prima facie offence under Sections 392 IPC read with Section

120-B IPC has been made out. On 18.8.2006 formal charges were

framed against the accused persons including the present

petitioner under Section 120-B IPC as also a charge under Section

392 IPC read with Section 120-B IPC.

4. Letter dated 26.4.2001 written by Amarjit Singh informing

the SHO, Police Station Mahipalpur that he had authorized his

recovery agent Pawan Kumar, co-accused, to repossess the

vehicle was considered by the court to uphold the view taken by

the ACMM that a prima facie case had been made out.

5. These orders i.e. the order of the ACMM framing charges

and reaffirmed by the order of Additional Sessions Judge are under

challenge.

6. It is submitted that the perusal of the FIR does not disclose

the ingredients of an offence under Section 392 of the IPC. Role of

the petitioner Amarjit Singh has not been entailed therein; there is

not a whisper about him. Attention has been drawn to the

definition of „robbery‟ as contained in Section 390 of the IPC;

robbery is either theft or extortion; both theft and extortion speak

of the offender (emphasis); the explanation contained in Section

390 has also been highlighted. It is submitted that in the absence

of the presence of the person on the spot where the offence is

committed, ingredients of Section 390 are not made out; charge

framed under Section 392 which is the penal provision for robbery

is thus not sustainable.

7. It is submitted that Section 390 is contained in Chapter XVII

of the IPC. Chapter-XVII of the IPC relates to offences against

property; each of these offences speak of the presence of the

offender; in the absence of which an offence under this Chapter

cannot be sustained. The only exception is dacoity which is

contained in Section 391 of the IPC. Criminal conspiracy which is

defined under Section 120A of the IPC cannot be clubbed with the

offence under Section 392 of the IPC. It is not the case of the

prosecution that the petitioner was present at the time when the

offence was committed i.e. when the canter was forcibly taken

away from Radhey Shyam; presence of the petitioner at the time

of the commission of the offence is a necessary pre-requisite to

establish the offence under Section 392 of the IPC. This not being

the position, the impugned order of framing of charge under

Section 392 read with Section 120-B IPC and Section 120-B of the

IPC is liable to be set aside.

8. Counsel for the petitioner has placed reliance upon

judgments of the Bombay High Court reported in 1997 (2) Crime

47 S.D.Dutrange v. State of Maharashtra , 1995 Crl.L.J. 4042 W.A.

Chauriappa v. State of Maharashtra ; it is submitted that the

offence under Section 397 of the IPC pertains to the actual

offender; it is an individual offence; applying the same analogy to

the offence under Section 392 of the IPC which is contained in the

same Chapter i.e. Chapter XVII relating to an offence against

property, in the absence of the presence of the petitioner at the

spot offence under Section 392 of the IPC is not made out.

9. Even otherwise the dispute, if any, between the parties

arose out of a civil liability based on a hire-purchase agreement

where admittedly certain amounts were due from the employer of

Radhey Shyam i.e. Prem Narayan Sharma; this could not have

become the subject matter of a criminal trial.

10. Arguments have been countered by the counsel for the

State.

11. Attention has been drawn to Chapter XVI of the IPC i.e. the

offences affecting the human body; Section 341 is the penal

provision for wrongful restraint. It is submitted that physical

presence of the obstructer is not necessary; AIR 1954 Madras 247

Madala Peraiah & Ors. V. Voruganti Chendriah relied upon. It is

submitted that it is, thus, clear that there is no chapter-wise

distinction in the IPC and the presence of a person at the time of

the commission of the offence may or may not be material

depending upon the facts of each case. The provisions of Section

120-B of the IPC would otherwise become redundant. Reliance has

been placed upon AIR 2004 SC 1253 Ashfaq v. State to support the

submission under Section 397 of the IPC. The emphasis is on the

word "uses" and it is the user of the deadly weapon by the

offender which makes this offence an individual offence. The

same analogy cannot be applied to the provisions of Section 392

of the IPC. It is further submitted that the guidelines set up by the

Supreme Court in 2002(3) JCC 2118 Amitabh Verma v.

Commissioner of Police have to be followed by financial companies

in the strict sense before they exercise their powers to repossess

the vehicle. A writ petition seeking quashing of this FIR has also

been dismissed vide order of the Division Bench of this Court

dated 05.4.2002.

12. Arguments have been heard and appreciated.

13. The FIR in this case was initially registered under Sections

392/34 of the IPC against four persons; thereafter in the course of

investigation the role of the present petitioner i.e. Amarjit Singh

was unravelled. It is settled law that an FIR is not an encyclopedia

expected to contain all the details of the prosecution case. Role of

the present petitioner having figured out in the course of the

investigation, it is obvious that for this reason his name did not

find mention in the FIR. Additional Sessions Judge in his order

dated 02.2.2006 had made specific reference to a letter dated

26.4.2001 written by the petitioner to the SHO, P.S. Mahipalpur, in

which it was written that it was under his authorization that his

recovery agent i.e. co-accused Pawan Kumar has repossessed this

vehicle.

14. Charge sheet was filed under Sections 392/34 of the IPC; on

the prima facie material before the Court, charge had thereafter

been framed under Section 392/120-B of the IPC. Section 120-A,

which defines a criminal conspiracy includes doing of an illegal act

or doing a legal act by illegal means. Evidence on record has

prima facie established that it was at the behest of Amarjit Singh

that this canter was forcibly repossessed. It was a robbery

committed on a highway. Ingredients of Section 392 of the IPC are

clearly attracted. Offence was also committed at the asking and

at the instigation of Amarjit Singh; the criminal conspiracy had

been hatched on his initiation; Section 120-B of the IPC is rightly

attracted.

15. This court does not agree with the submission of the learned

counsel for the petitioner that an offence under Section 392 of the

IPC cannot be clubbed with an offence of conspiracy under Section

120-B of the IPC; Section 120-B of the IPC is also a substantive

offence. If these arguments of the petitioner are accepted, the

petitioner would be allowed to go scot free; further the provisions

of Section 120-B of the IPC could never be made applicable to

Section 392 of the IPC; this is not the intention of the legislature

which can be gathered from a co-joint reading of Section 392 and

120-B of the IPC. Participation of an accused without being

present at the spot is clearly covered by Section 120-B of the IPC.

Offence under Section 392 of the IPC is not individual in the sense

as it is under Section 397 of the IPC; Section 397 of the IPC fastens

liability on the person who uses the deadly weapon and no other.

17. In 140, 2007 DLT 672 Keshav Tyagi v. State a Division Bench

of this Court had upheld a conviction under Section 392 read with

Section 120-B of the IPC; so also in AIR 2003 SC 3805 Munna v.

State , the Supreme Court had upheld the conviction under Section

392/120-B of the IPC; appeal of the appellant against conviction

under Sections 392/120-B of the IPC had been dismissed. These

judgments also makes it clear that offences under Sections 392 &

120-B IPC can go side by side; in fact in both these cases the

convictions were maintained under Section 392/120B of the IPC.

18. Arguments of the petitioner are without merit.

19. Before parting with this case, it is observed that the FIR of

this case relates to the year 2001. This FIR had become the

subject matter of a quashing petition which had been dismissed on

5.4.2002. The revision petition challenging the order of framing of

charge dated 28.5.2005 of the ACMM was dismissed by the order

of the Additional Sessions Judge on 02.2.2006. Formal charges

had been framed by the ACMM on 18.8.2006. Present petition has

been filed on 4.4.2007; on 4.5.2007 proceedings before the Trial

Court had been stayed. This is the fate of the FIR which has been

registered way back in the year 2001.

20. Petition is dismissed with direction to the Trial Court to take

up the matter expeditiously.

(INDERMEET KAUR) JUDGE

3rd November, 2009 nandan