Delhi High Court
Azad Singh Dagar vs The State & Ors. on 4 August, 2015
Author: Sunil Gaur
$~R-203
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 04, 2015
+ CRL.M.C. 1713/2014
AZAD SINGH DAGAR ..... Petitioner
Through: Mr. Pawan Sharma, Advocate
versus
THE STATE & ORS. .... Respondents
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
Mr. Satise Bhankhar & Mr.
Vikramjeet Ranga, Advocates for
Respondents No.2 to 4
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In pursuance to the order passed on application under Section
156(3) Cr.P.C., an FIR No.15/09 for the offence of murder was registered
at PS Jaffarpur Kalan, Delhi in which cancellation report was filed by the
Investigating Agency on 8th July, 2009. Thereafter, the concerned
Magistrate had fixed the matter for recording of pre-summoning
evidence. Vide order of 21st May, 2012, the accused were summoned for
the offence under Section 302/34 IPC and after supplying the copies of
orders etc. to the accused persons, case was committed to the Court of
Sessions. Before Sessions Court, at the stage of hearing on the point of
charge, learned counsel for respondent-accused persons had relied upon
Crl.M.C.No.1713/2014 Page 1
decision of a Coordinate Bench of this Court in Dhano v. State & Anr.
2009 (1) JCC 145 wherein it was held that without recording of pre-
charge evidence, committal of the complaint for the offence of murder to
the Sessions Court is a gross irregularity as Section 244 Cr.P.C. mandates
for recording of pre-charge evidence prior to committal.
At the hearing, learned counsel for petitioner had placed reliance
upon Apex Court decision in Raj Kishore Prasad v. State of Bihar & Anr.
1996 Cri.L.J.2523 and Bhola Rai & Anr. v. State of Bihar & Anr. 1997
(3) Crimes 48 to submit that power to record pre-charge evidence is not
vested with the Magistrate Court and infact the Magistrate at the stage of
Section 209 Cr.P.C. is forbidden to apply his mind to the merits of the
case and to determine whether to commit the case to Sessions Court for
trial. Learned counsel for respondent-accused persons had submitted
that decisions in Raj Kishore (supra) and Bhola Rai (supra) have no
application to the facts of the instant case as those were not the complaint
cases and infact were FIR cases. Thus, it is submitted on behalf of
respondent-accused persons that trial court's reliance upon decision in
Dhano (supra) is well merited and there is no substance in this petition.
Upon hearing and perusal of complaint in question, impugned
order, material on record and the decisions cited, I find that reliance
placed by petitioner's counsel upon Raj Kishore (supra) and Bhola Rai
(supra) is of no avail as those cases do not pertain to criminal complaint
and the decision directly deal on the issue at hand is of Dhano (supra).
Since Magistrate is not required to apply its mind before committing the
case to Sessions, therefore, the concerned Magistrate has to abide by the
provisions of Section 244 of Cr.P.C. In the impugned order, the decision
Crl.M.C.No.1713/2014 Page 2
in Dhano (supra) has been considered in right perspective.
Finding no palpable error in the impugned order, this petition is
dismissed while not commenting upon merits of this case, lest it may
prejudice petitioner at trial.
(SUNIL GAUR)
JUDGE
AUGUST 04, 2015
vn
Crl.M.C.No.1713/2014 Page 3
