Shoaib Iqbal vs State (Nct Of Delhi)
2015 Latest Caselaw 1222 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                               DECIDED ON : FEBRUARY 10, 2015


+      CRL.REV.P. 670/2014 & CRL. M.A.17115/2014

       SHOAIB IQBAL                           ..... Petitioner

                         Through :      Mr. Dayan Krishnan, Senior
                                        Advocate with Mr.Akhand P. Singh
                                        and Ms.Swati Goswami,
                                        Advocates.

                               VERSUS


       STATE (NCT OF DELHI)                   ..... Respondent

                         Through :      Ms. Kusum Dhalla, APP for State.
                                        SI Sushil Kumar, PS Jama Masjid.

CORAM:
HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The instant revision petition has been preferred by the

petitioner to challenge the legality and correctness of an order dated

27.09.2014 of learned Additional Sessions Judge by which charges under

Sections 145/147/148/149/353/427/379/436 read with Section 109 IPC

was ordered to be framed against him.

2. State has filed status report. I have heard the learned APP

and learned senior counsel for the petitioner and have examined the file.

3. Admitted position is that on 22.07.2012, FIR No.58/2012

was lodged at Police Station Jama Masjid by Head Constable Raj Kumar.

Initially, eight individuals/assailants were arrested and charge-sheet was

submitted against them. Learned Metropolitan Magistrate took cognizance

and committed the case to Sessions. Later on, supplementary charge-

sheet was filed against ten more assailants on 20.05.2014. The court by an

order dated 07.06.2014 after perusal of the record took cognizance against

the petitioner as well as he appeared to have acted as an abetter and

conspirator for the commission of the aforesaid offences. Subsequently,

the case was committed to the court of Sessions and by the impugned

order, charge was framed against the petitioner.

4. Indisputably, the petitioner was not named in the FIR and

during investigation, his involvement in the crime did not surface.

Neither in the main charge-sheet nor in the supplementary charge-sheet

filed against the assailants any role in the crime was attributed to him. In

fact, the petitioner was not at all charge-sheeted for his role whatsoever in

the said FIR. The police did not seek any action, whatsoever, against the

petitioner. Only when supplementary charge-sheet was filed against the

accused persons arrested subsequently, the learned Metropolitan

Magistrate took cognizance against the petitioner because he was involved

in FIR No.65/12 registered under Section 447 IPC and Section 3 of the

Prevention of Damage to Public Property Act and Section 30 of the

Ancient Monuments and Archaeological Sites and Remains Act at Police

Station Jama Masjid. It was noted that the assailants in the instant FIR

were raising slogan in the name of Shoaib Iqbal and this fact was also

recorded in the complaint under Section 195 Cr.P.C. filed by Assistant

Commissioner of Police, Sub Division Daryaganj, Delhi. Apparently,

there was no material, whatsoever, in the charge-sheet before the learned

Metropolitan Magistrate to infer petitioner's involvement in the said

incident. The petitioner was not even present at the spot. There are no

allegations that he was in regular touch with the assailants or that the

crime was committed with his active connivance or instigation. Status

report does not reveal if in the disclosure statements, the accused persons

charge-sheeted had assigned any overt act to the petitioner or his role

appeared in the incident in any form. The petitioner was not called for

interrogation during investigation. Merely because the mob was raising

slogans in his name, it was not sufficient for the learned Metropolitan

Magistrate to proceed against the petitioner with the presumption that he

conspired or abetted the culprits in the crime. There was no material,

whatsoever, before the trial court to frame charge under the aforesaid

sections against the petitioner. None of the witnesses has spoken to any

overt act on his part or his involvement in the alleged

conspiracy/abetment. In support of the charge under Section 109 IPC,

there was no factual foundation and no evidence at all. Neither in the

disclosure statements of the accused persons nor in the statement of any

witness, there is specific reference to the role of the present petitioner

along with the main assailants. Settled legal preposition is that where the

materials placed before the court disclose grave suspension against the

accused which has not been properly explained, the court will be fully

justified in framing a charge and proceeding with the trial. It is also true

that if two views are equally possible and the Judge is satisfied that the

evidence produced before him while giving rise to some suspicion but not

grave suspicion against the accused, he will be fully within his rights to

discharge the accused.

5. In the instant case, the prosecution had not asked to take

cognizance for commission of any offence in the instant FIR against the

petitioner. They had not relied on any material to prima facie show strong

or grave suspicion about the involvement of the petitioner in the incident.

Merely because the petitioner was involved in earlier FIR for which he is

facing trial or that the mob was raising slogan, in his name was not

enough to charge him for the offences with the aid of Section 109 IPC

with other original conspirators/abettors without proper and acceptable

link between them.

6. In the light of the above discussion, the order dated

27.09.2014 qua the petitioner cannot be sustained and is set aside. The

petitioner is discharged in this case.

7. The revision petition is allowed. Crl.M.A.17115/2014 also

stands disposed of. Trial court (if any) record be sent back along with a

copy of this order.

(S.P.GARG) JUDGE FEBRUARY 10, 2015 sa