May 19, 2019:
Delhi High Court has observed that even if charge is framed by sessions court, if it finds that pre-charge evidence was not recorded, it should remit the case to the Magistrate for recording pre-charge evidence.
A bench of justice Sachdeva has passed the order in the case titled as State vs Suresh Gautam on 15.05.2019.
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. 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.
State applied to the sessions court to remit the matter to the magistrate for recording pre-charge evidence. Sessions court however declined opining theat charge was already framed and therefore it could not review the order. State has filed a 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.
The High Court observed "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".
High Court then held "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 presummoning evidence for the purposes of framing of charge".
After hearing the arguments and relying upon earlier judgments, the High Court agreed with the state and directed "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".
Read the Order here:
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