Ashwini Kumar Chopra vs State Nct Of Delhi
2012 Latest Caselaw 5461 Del

22
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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.REV.P. 497/2012 & CRL.M.A. 16134/2012

        ASHWINI KUMAR CHOPRA            ..... Petitioner
                    Through: Mr. Vineet Malhotra, Advocate with
                             Mr. Vikas Arora and Mr. Aman,
                             Advocates.
                      versus

        STATE NCT OF DELHI               ..... Respondent
                      Through: Mr. Manoj Ohri, APP for State with
                               SI Pramod Kumar, DIU/East.

%                                 Date of Decision: 12th September, 2012

CORAM:
HON'BLE MR. JUSTICE MANMOHAN


                               JUDGMENT

MANMOHAN, J : (Oral)

1. Present revision petition has been filed challenging the order dated

16th July, 2012 passed by the Additional Sessions Judge-02, Karkardooma

Courts, Delhi in C.R. No. 156/2011 whereby the order of the Metropolitan

Magistrate, Delhi discharging the petitioner in FIR No. 446/2000 was set

aside and petitioner was directed to face trial.

2. The relevant portion of the order passed by the Additional Sessions

Judge is reproduced hereinbelow:-

"13. On perusal of file, I find that in his statement recorded u/s 164 Cr.P.C., PW Anil Lamba, inter alia, stated that original affidavit purportedly signed by Smt. Natasha Kwatra was shown to him by Sh. Vijay Arora. Sh. Vijay Arora had a conversation with Ashwani Chopra on telephone. In subsequent paras of his statement, he also disclosed that Sh.Ashwani Chopra had accepted that the affidavit shown by Sh. Vijay Arora was got prepared by him. According to the statement of Mr. Anil Lamba not only the forged documents i.e. affidavit was got prepared by Sh. Ashwani Chopra but also it was used which adversely affected the reputation of complainant and his wife. This prima-facie shows the hatching of conspiracy by Vijay Arora and Ashwani Chopra. Thus, this evidence creates strong suspicion not only against Ashwani Chopra but also against Sh. Vijay Arora. Ld. M.M. did not appreciate this evidence. I do not concur with the findings of Ld. M.M. on this aspect. In my view there is sufficient material on record to raise strong suspicion not only against Mangat Ram Sohatra but also against Ashwani Chopra and Vijay Kumar Arora for commission of offence punishable u/s 469/500 IPC.

14. In view of the above reasons and discussion, it is held that impugned order is not beyond any inaccuracy, impropriety, incorrectness or illegality. Therefore, impugned order is set aside and Ld. MM is directed to frame the charge for said offences also against Ashwani Chopra and Vijay Kumar Arora and proceed the case further in accordance with law."

3. Mr. Vineet Malhotra, learned counsel for petitioner submits that

Additional Sessions Judge failed to appreciate that the statement of Mr.

Anil Lamba, who was the sole material witness against the petitioner, was

an extra judicial confession made by a person who admitted that he had

himself participated in the alleged crime and since he was not paid his dues

he was making the aforesaid statement against the petitioner.

4. According to learned counsel for petitioner, even the statement under

Section 164 Cr.P.C. could only be read against Mr. Anil Lamba, but the

same cannot be read against the petitioner being a disclosure statement made

by the co-accused.

5. Mr. Vineet Malhotra, learned counsel for petitioner also drew

attention of this Court to the finding given by the Metropolitan Magistrate

while discharging the petitioner-accused. The relevant portion of the

Metropolitan Magistrate's order relied upon by learned counsel for

petitioner is reproduced hereinbelow:-

"....Prosecution strongly relies upon extra judicial confession of Ashwani Chopra in order to proceed against the said accused for trial of offence u/s 469/500 IPC, however, in the opinion of the court the extra judiciary confession is not sufficient to proceed against the accused Ashwani Chopra especially in the light of the fact that the said witness Anil Lamba disclosed about the said confessional statement after he was admittedly not in good relation with accused Ashwani Chopra. Thus, statement under section 164 Cr.P.C. containing extra judiciary confession of accused Ashwani Chopra is not made by this witness when his specimen signature were obtained in the year 2001, rather, it has been made in the year 2003 i.e., after registration of the present case and after employment of this witness was terminated by Ashwani Chopra from Newspaper, Punjab Kesari.

Thus, the said witness initially suspicious in the mind of the Investigating Agency and who seem to be an accused before the FSL report dated 17.01.02 was received, has been made a witness to an extra judiciary confession allegedly made by accused Ashwani Chopra.

In view of the time when the extra judicial confessional statement was made, the person to whom the said extra judicial confession had been made and in view of no specific reason as to why the Extra Judicial Confessional Statement was made, the court finds that extra judicial confession in itself is not sufficient so as to proceed against the accused Ashwani Chopra for the offence u/s 469/500 IPC.

As far as offence u/s 469 IPC is concerned, even witness Anil Lamba has clearly stated initially that he was personally not aware as to who forged this document/affidavit. The Investigating Agency failed to bring on record any evidence to show that the affidavit dated 26.04.00 purportedly signed by Natasha Kwatra was forged by any of the three accused persons.

As far as section 500 IPC is concerned, there is nothing on record except unreliable extra judiciary confession from the mouth of a person to whom the confession purportedly was made their registration of present FIR and after his relationship got strained with Ashwani Chopra and after he accepted the challenge of accused Ashwani Chopra to expose him. Hence, there is not sufficient material on record to show prima facie that section 500 IPC is made out against the accused Ashwani Chopra."

6. Having heard the learned counsel for petitioner and having perused

the papers, this Court is of the opinion that petitioner would have to face

trial in the present case as the admitted position is that a forged affidavit

with a forged notarization had been circulated against the complainant and

his wife.

7. It is the complainant's case that it was the petitioner who had initially

approached him to make the false allegation which finds mention in the

alleged forged affidavit. In the opinion of this Court, Additional Sessions

Judge has rightly observed that the statement of Mr. Anil Lamba recorded

under Section 164 Cr.P.C. raises a strong suspicion against the accused.

Also, the credibility and evidentiary value of extra judicial confession is to

be seen at the stage of trial. Further, in view of observations made in Soma

Charkravarty Vs. State through CBI, 2007 (5) SCC 403, the present is a

case of grave suspicion. Hence the trial must proceed.

8. It is pertinent to mention that in the present case, the police had been

asked by the Metropolitan Magistrate to conduct investigation and in the

charge sheet filed by the police, it is stated as under:-

"....It is further ascertained that some packets posters bearing defamatory material was seized by Punjab Police at Jalandhar. The concerned police officer as well as public persons have been examined. From the investigation made so far, it appears that all the drama seems to be fall out of family property dispute of Hind Samachar Group (The Punjab Keshari Newspaper). Ashwini Chopra, the Chief Editor Punjab Keshri, Delhi branch is engaged in civil suits for the division of family property with cousins Avinash Chopra and Anil Chopra. He seems to have erected whole drama with intent to malign the image of his rivals - Avinash Chopra, the Chief Editor Punjab keshri, Jalandhar Branch by misusing the name of the complainant's family from the evidence on record and statements of the witnesses, prima facie the case U/s. 469/500 IPC is made out against the accused persons mentioned in Col. No.4. Hence the chargesheet has been prepared against them. As the offences are bailable and there is no chance of absconding by them or avoiding service of court process their arrest is not effected. It is, therefore, requested that the accused persons (Col. No.4) may be tried for the offences U/s. 469/500 IPC. Witnesses (mentioned in Col. No.6) may be summoned and examined please."

(emphasis supplied)

9. This Court is of the view that the Metropolitan Magistrate's finding

that Mr. Anil Lamba's statement under Section 164 Cr.P.C. was an extra

judicial confession made by a disgruntled person is a finding which could

only have been made after a full trial and not at the stage of framing of

charge/notice. Since in the opinion of this Court, the Metropolitan

Magistrate has already pre-judged the issue, the Additional Chief

Metropolitan Magistrate, Delhi, is directed to mark the present case to

another Metropolitan Magistrate. Learned counsel for the petitioner is

directed to intimate in writing the next date of hearing to other co-accused.

10. With the aforesaid observations and direction, present petition and

pending application are dismissed.

MANMOHAN, J SEPTEMBER 12, 2012 js