Delhi High Court
Nitin Kumar vs State & Ors. on 9 February, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 09, 2015
+ (i) CRL.M.C. 1469/2014 & Crl.M.A.5012/2014
NITIN KUMAR ..... Petitioner
Through: Mr. K.P.Mavi & Mr. B.P.Mishra,
Advocates
versus
STATE & ORS .....Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
+ (ii) CRL.M.C. 2985/2014 & Crl.M.A. 10351/2014
NITIN KUMAR ..... Petitioner
Through: Mr. K.P.Mavi & Mr. B.P.Mishra,
Advocates
versus
STATE GOVT. OF NCT OF DELHI & ORS. .....Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Crl.M.A.1948/2015 in Crl.M.C. 1469/2014
Crl.M.A.1949/2015 in Crl.M.C. 2985/2014
The above captioned petitions were dismissed in default. The
Crl.M.C.Nos.1469 and 2985 of 2014 Page 1
applications seek restoration of above captioned petitions.
For the reasons stated in the applications, they are allowed and the
petitions are restored to its original position.
CRL.M.C. 1469/2014 & Crl.M.A.5012/2014
CRL.M.C. 2985/2014 & Crl.M.A. 10351/2014
In the above-captioned first petition [Crl.M.C.No.1469/2014], the
challenge is to order passed by trial court on 20th May, 2013 whereby the
trial court has committed the case to the court of Sessions as the charge-
sheet was filed in FIR in question for the offence under Section 307 IPC.
Petitioner's prayer for further investigation also stands rejected by trial
court's aforesaid order. Revisional Court vide impugned order of 13th
January, 2014 has affirmed the above-said trial court's order. Whereas in
the above-captioned second petition [Crl.M.C.No.2985/2014], challenge
is to the order of 13th January, 2014 vide which petitioner has been put on
trial for the offence under Section 307 IPC in FIR No.77/2010, which was
initially registered for the offence under Section 324 IPC at Police Station
Welcome, Delhi. With the consent of both the sides, the above-captioned
two petitions were heard together and are being disposed of by this
common judgment.
At the hearing, learned counsel for petitioner placed reliance upon
decisions in Court on its own Motion v. State 2012 (3) JCC 1743,
R.Sarala v. T.S.Velu & Ors. 2000 ($4) SCC 459, M.C.Mehta (Taj
Corridor Scam) v. Union of India 2007 (1) SCC 110 and
V.S.Achuthanandan v. R.Balakrishna Pillai & Ors. 1994 (4) SCC 299 to
submit that Public Prosecutor has no jurisdiction to direct addition of
Crl.M.C.Nos.1469 and 2985 of 2014 Page 2
Section 307 IPC in the charge-sheet. which was initially filed for the
offence under Section 324/326 IPC. It was vehemently submitted by
learned counsel for petitioner that it is the Investigating Officer, who has
to decide as to what offence is made out and Public Prosecutor cannot
direct Investigating Officer to file the charge-sheet for the aggravated
offence. It was submitted that trial court's order of 20 th May, 2013
committing the case to the Court of Sessions on the basis of charge-sheet
filed under the directions of the Public Prosecutor is erroneous and so the
impugned order as well as revisional court's order ought to be quashed
and the case be remanded back to the Investigating Officer to file a fresh
charge-sheet after making up his mind as to what offence has been
committed by petitioner.
Learned Additional Public Prosecutor for respondent-State
supports the impugned order and submits that after framing of charge,
evidence of complainant, eye witness and doctor has been recorded and
the matter is coming up before Sessions Court today for further evidence.
Lastly, it is submitted that there is no substance in these petitions.
Upon hearing and on perusal of the impugned order, material on
record and the decisions cited, I find that recommendation of the Public
Prosecuting agency to add aggravated evidence is not binding on the
Investigating Officer. However, merely because Investigating Officer
after consulting Public Prosecutor has added Section 307 IPC, it would
not render such an opinion open to judicial review. The question raised
in above-captioned first petition really does not fall for consideration as
on perusal of the order on charge, this court finds that offence under
Section 307 IPC is prima facie made out in the facts of the instant case.
Crl.M.C.Nos.1469 and 2985 of 2014 Page 3
In the considered opinion of this Court, there is no illegality or infirmity
in the impugned order of 13th January, 2013 where petitioner has been put
on trial under Section 307 IPC.
Consequentially, both these petitions are dismissed while
refraining to comment upon merits of this case and by making it clear that
if trial court on the basis of evidence on record finds petitioner guilty for
the lesser offence, then this judgment will not stand in the way of trial
court to do so.
With aforesaid observations, these petitions and application are
disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 09, 2015
vn
Crl.M.C.Nos.1469 and 2985 of 2014 Page 4
