Delhi High Court
The State ( Nct Of Delhi) vs Suresh Gautam & Ors. on 15 May, 2019
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.05.2019
+ CRL.REV.P. 625/2016 & Crl.M.A.14670-71/2016 & 14673/2016
THE STATE ( NCT OF DELHI) ..... Petitioner
versus
SURESH GAUTAM & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr.Hirein Sharma, Addl. PP for the
State with ASI Parveen Kumar, P.S.Anand Parbat.
For the Respondent : Ms.Padma Priya, Adv. for R-1 & 2.
Mr.Kundan Kumar, Adv. for R-3.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. State has filed the subject revision petition seeking quashing of
order dated 04.01.2016 passed by the Court of Additional Sessions
Judge rejecting the application filed by the State under Section 244
Cr.P.C. seeking remit of the matter to the Court of MM for recording
pre charge evidence.
2. A complaint was filed by the respondent No.3 alleging that
respondent Nos.1 & 2 had committed an offence under Section
307/323/324/452/506/120-B/34 IPC. After recording of the pre
summoning evidence, respondent Nos.1 & 2 were directed to be
summoned by order dated 12.08.2013.
3. By order dated 12.11.2013 case was committed to the Court of
Sessions. On 08.01.2014 charges was framed against respondent
Nos.1 & 2 under Section 454/34 IPC and Section 307/34 IPC.
4. Subject application was filed by the prosecution contending that
after the respondent Nos.1 & 2 were summoned no pre charge
evidence was recorded and as such it was prayed that the mater be
remitted to the Court of the MM for recording pre charge evidence.
Since the application was dismissed by the impugned order, State has
preferred subject revision petition.
5. Section 244 Cr.P.C reads as under:-
"244. Evidence for prosecution.
(1) When, in any warrant- case instituted otherwise than
on a police report, the accused appears or is brought
before a Magistrate, the Magistrate shall proceed to hear
the prosecution and take all such evidence as may be
produced in support of the prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or
other thing."
6. Under Section 244 Cr.P.C., in any warrant case instituted other
than on a police report, if the accused appears or is brought before the
Magistrate, the Magistrate has to hear the prosecution and take such
evidence as may be produced in support of the prosecution. If upon
taking of evidence referred to in Section 244 Cr.P.C., the Magistrate
considers that no case is made out against the accused, then under
Section 245 Cr.P.C., the Magistrate is empowered to discharge the
accused. If after taking such evidence into account the Magistrate is of
the opinion that there is ground for presuming that the accused has
committed an offence triable by him, which such Magistrate is
competent to try and adequately punished by him, he is to proceed
further to frame a charge.
7. A coordinate Bench of this Court in Dhano vs. State, 2009 (1)
JCC 145 has held that it is the Magistrate who has the power to record
pre charge evidence after summoning the accused in a warrant triable
case and also to permit cross examination of the witnesses to be
committed on behalf of the accused. Dhano vs. State (Supra) was
followed by another coordinate bench in Azad Singh Dagar vs The
State & ors, 2015 SCC online Del 10984.
8. The Supreme Court in Sunil Mehta and Anr vs. State of Gujarat
& Anr, (2013) 9 SCC 209 has held that trial of an accused under
Chapter XIX and evidence relevant to the same has no nexus
proximate or otherwise with the evidence adduced at the initial stage
(i.e. pre summoning stage). There is a qualitative difference between
the approach that the Court adopts and the evidence adduced, at the
stage of taking cognizance and summoning the accused and that
recorded at the trial.
9. The Supreme Court held that there is nothing in the provisions
244, 245 or 246 or any other provision of the Code to suggest that the
evidence which the Magistrate may have recorded at the stage of
taking cognizance and issuing of process tantamount to evidence that
can be used by the Magistrate for the purposes of framing of charges
against the accused person under Section 246 thereof.
10. Supreme Court has further held that the whole approach
underlying recording of evidence under Section 244 after the accused
has appeared is to ensure that not only does the accused have the
opportunity to hear the evidence adduced against him but also to
defend himself by cross examining the witnesses with a view to
showing that the witness is either unreliable or a statement made by
him does not have any evidentiary value. Further it is held that the
right of cross examination granted to an accused under Section 244 to
246 even before framing of charge does not prejudice the complainant
or result in any failure of justice; while denial of such right is bound to
prejudice the accused in his defence and an opportunity to show that
he should not be made to suffer the rigors of a trial.
11. In the present case, by impugned order, the Sessions Court
while rejecting the application filed by the State, has in fact noticed
that no pre charge evidence has been recorded by the Metropolitan
Magistrate before committing the case to sessions. The only reason
given for dismissal of the application is that since charges have
already been framed by the predecessor court, the successor Court
would have no power to review the order.
12. Clearly the reasoning given by the Sessions Court is not
sustainable and the manner in which the charge has been framed by
the MM prior to committal is contrary to the law laid down by the
Court in Sunil Mehta (Supra). No pre-charge evidence has been
recorded in this case and reliance has been placed solely on the pre-
summoning evidence for the purposes of framing of charge.
13. In view of the above, the impugned order dated 04.01.2016,
order of committal dated 12.11.2013 and the order on charge and
consequent charge framed on 08.01.2014 are clearly not sustainable
and are accordingly set aside.
14. The matter is remitted to the Court of MM and shall be
commenced from the stage of recording of pre charge evidence. The
matter shall be placed before the Chief Metropolitan Magistrate,
Central District, Tis Hazari Courts on 28.05.2019 for assignment to
the concerned Court of Metropolitan Magistrate. Parties shall appear
before the Court of CMM on the said date.
15. Petition is allowed in the above terms.
16. Order dasti under signatures of the Court Master.
MAY 15, 2019/ rk SANJEEV SACHDEVA, J
