Radesh Singh & Ors. vs State & Anr.
2011 Latest Caselaw 1018 Del

         *         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                          Date of Reserve: 31st January, 2011

                           Date of Order: February 21, 2011

                             + Crl. MC No. 1711/2010
%                                                                  21.02.2011

        Radesh Singh & Ors.                           ...Petitioners

        Versus

        State & Anr.                                  ...Respondents

Counsels:

Mr. Vijay Aggarwal with Mr. Prabhjit and Ms. Anupama for petitioners.
Mr. Sunil Sharma, APP for State/respondent.
Mr. N.N. Sarvaria, Advocate for respondent no.2


        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?
2.      To be referred to the reporter or not?
3.      Whether judgment should be reported in Digest?


                                   JUDGMENT

1. After investigation in FIR No.248 of 2008, the police filed a charge-sheet

keeping the petitioners herein in Column No.2 as the persons not charge-sheeted

and not arrested. However, vide order dated 10th September 2009, the learned

MM took cognizance of the offences and issued summons to all the accused

persons for their appearance on 7th January 2010. The said order is assailed by

the petitioners on the ground that the learned MM had not given reasons for

summoning them despite the fact that the police had not found evidence against

them and not charge-sheeted them. It is submitted that if the learned MM wanted

to summon the accused persons, not charge-sheeted by the police, the learned

Crl.MC 1711/2010 Page 1 Of 4 MM was supposed to give reasons. Reliance is place on Neelam Suri v State

2008 (1) JCC 593 and J.L. Goel v. Rajesh Kumar Jain 2010 (7) AD Delhi 666.

2. The abovementioned FIR was registered under Sections 326, 452, 506,

380 of IPC on 31st December 2008 on the statement of Kartar Singh. A quarrel

had taken place at property bearing number B-222, Sainik Farm on the night

intervening 27th and 28th December 2008 as there was a dispute over the

ownership of the property. Kartar Singh seems to be a person who was working

as servant of Smt. Vineet singh and her mother Inder Kaur. After this quarrel

Kartar Singh was taken to the hospital. Since police was informed about the

quarrel, the police also reached hospital. Kartar Singh did not make a statement

to the police immediately and it looks that this was deliberate. It was not that

Kartar Singh was not in a position to make statement but he refused to make

statement and later on a written complaint was given by him to the investigating

officer on the basis of which FIR was registered. The Investigating officer of the

case while submitting charge-sheet reproduced the written complaint received by

him from Kartar Singh after two days of the incident and observed that he visited

the spot and searched for the eye witnesses but did not find any eye witness of

the incident of quarrel. He interrogated Radesh Singh, Mrs. Reena Verma, Mr.

Pooran Chand, Shri Vikram Singh and Rasvinder Singh and learnt that the

property bearing number 17, Rajdoot Marg, Chanakaya Puri was subject matter

of dispute amongst the legal heirs of Shri Mahinder Singh, who died intestate and

there were allegations of fabrication of the Will and dispute about the property

was pending before the High Court during which a settlement was arrived at in

the High Court between the contending parties. However, since the mutation of

the property had not been made despite passing of long time, Radesh Singh filed

Crl.MC 1711/2010 Page 2 Of 4 a claim before the High Court being CS(OS) No.1938 of 2008 and this claim was

pending in the High Court.

3. The property was under the tenancy of US Embassy and it was vacated on

4th September 2008 and it seems that thereafter a tussle over the possession of

the property ensued. It has come on record that U.S. Embassy offered to

purchase the property and possession of a part of it remained with US Embassy

on purchasing a share in the property from one of the owners. On the day of

incident, it is alleged, Mrs. Vineet Singh had come to remove a geyser from her

part of the property since she had sold it away to US Embassy. The Investigating

Officer found that despite allegations of beating by several persons, the MLC of

Kartar Singh showed no external injuries. Kartar Singh complained of internal

injuries and for that doctors asked for x-ray report, but no signs of internal injuries

were found. The Investigating Officer concluded that the allegations made by

Kartar Singh of beating him and forcibly snatching the keys were not

corroborated since no eye witness was found, no other evidence had come

against the petitioners. He, therefore, kept the petitioners herein in Column No.2

and filed challan only in respect of one person.

4. There were no external injuries on the person of Kartar Singh and there

was no evidence of internal injuries. Kartar Singh did not make statement

immediately after the incident and the complaint was filed in writing by Kartar

Singh after deliberations. Under these circumstances, it was incumbent upon the

learned MM to spell out for which offence she was taking cognizance qua the

petitioners and how that offence was made out and what was the role played by

different offenders. No doubt, a Magistrate takes cognizance of the offence and

not of the offenders, but when he sends summons to an offender, he sends

Crl.MC 1711/2010 Page 3 Of 4 summons asking the offender to face trial. The Magistrate must be clear in her

mind as to what were the offences made out against the offender and that there

was prima facie evidence against him, more specifically when the police during

investigation has not been able to find out evidence of involvement of the

offender. Since the Magistrate disagreed with the report of the police and

considered that there was evidence to summon the petitioners and asked them to

face trial, she must have spelt out the reasons for summoning the petitioners

placed in Column No.2. If the police had collected sufficient evidence and

forwarded challan in respect of the offenders, the Magistrate may take

cognizance of the offence and summon all such offenders for facing trial as

named by police on the basis of evidence collected by the police but where the

police has not found evidence and the Magistrate considered that there was

sufficient evidence, then the Magistrate must pass a speaking order for

summoning such offenders against whom, in the opinion of the police there was

no evidence.

5. In view of my foregoing discussion, I hereby set aside the order 10 th

September 2009 passed by learned MM summoning the petitioners herein and

the matter is remanded back to learned MM who shall apply her mind and spell

out as to what were the offences committed by the petitioners in light of evidence

collected by the police qua the petitioners and why it was necessary to summon

them to face trial.

The petition stands disposed of in terms of above order.

February 21, 2011                            SHIV NARAYAN DHINGRA, J
rd



Crl.MC 1711/2010                                                         Page 4 Of 4