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Crl.Rev.P. No. 97/2013 Page 1 HIGH COURT OF DELHI
Crl.Rev.P. No. 97/2013 SIKANDER MIRZA AND ORS. ..... Petitioners
Through: Mr.B.P.Dhalla and Mr.Amit Dhaul, Advocates
Crl.Rev.P. No. 97/2013 SIKANDER MIRZA AND ORS. ..... Petitioners
Through: Mr.B.P.Dhalla and Mr.Amit Dhaul, Advocates
VERSUS
STATE & ORS. ..... Respondents
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 06.03.2013
Crl.M.A. No.2133/2013 (Exemption)
Allowed, subject to all just exceptions.
Crl.Rev.P. No. 97/2013 & Crl.
M.A. No. 2132/2013 (Stay)
In this revision petition, the order impugned is of 17th December, 2012 whereby petitioners have been called upon to face the trial for the offences under Sections 307/328 and 498A of IPC in
FIR No. 143/2010 registered at Police Station Lahori Gate, Delhi. In addition, impugned order also directs petitioners No.1 and 4 to face the trial for the offence punishable under Sections 406 of IPC.
Learned counsel for petitioners assails the impugned order while urging that unexplained delay of 4 days in lodging of the FIR in question and of FSL report negating the allegation of attempt to poison the complainant/first informant of the FIR in question, entitles petitioners to seek discharge in this case. It is also vehemently argued on behalf of petitioners that since dowry articles were returned, so
2013:DHC:1245 Crl.Rev.P. No. 97/2013 Page 2 offence under Sections 406 of IPC is not made out against first and fourth petitioner. Learned counsel for petitioners had pointed out during the course of hearing that petitioner No.2, 3 and 5 are the married sisters-in-law of the complainant/first informant of the FIR in question and they have been falsely roped in in this case.
Learned counsel for petitioners had drawn attention of this
Court to MLC of complainant/first informant (Annexure-B) to point out that she was conscious and oriented but still she had chosen not to give her statement to the police and later on after inordinate delay of four days, a tutored statement has been made by her to the police on the basis of which the criminal proceedings have been launched against petitioners.
During the course of hearing, it was also pointed out by learned counsel for petitioners that the mischievous allegations of petitioners having attempting to poison the complainant/first informant is also ruled out from the fact that she was taken on a motor cycle by petitioner-husband and had she been unconscious, then she could not have been taken to hospital on motor cycle. Lastly, it is submitted on behalf of petitioners that the impugned order is cryptic one and it does not deal with the submissions of petitioners and that only the prosecution version is noted therein to order framing of charge against petitioners for the alleged offences and since no case is made out against petitioners, therefore they deserve to be discharged.
Learned Additional Public Prosecutor for respondent – State draws attention of this Court to the FIR of this case to point out that the delay stands explained in this FIR as it is noted therein that since the complainant/first informant was not fit to make a statement, so her statement was not recorded by police on 9th and 10th October, 2010 and she was declared fit for statement on 11th October, 2010 and Crl.Rev.P. No. 97/2013 Page 3 because prosecutrix was reluctant to make a statement on that date, her statement was recorded on next date i.e., on 12th October, 2010 and merely because there is delay in lodging of FIR, the prosecution case cannot be thrown out at the threshold. It is pointed out by
Learned Additional Public Prosecutor for respondent-State that veracity of the prosecution is not to be pre-judged at this stage and upon bare perusal of the FIR in question, a prima facie case is made out against the petitioners on the basis of charge sheet filed and so, this revision petition deserves to be dismissed.
The consideration which ought to weigh at the stage of framing of charge have been reiterated by Apex Court in „Hem Chand Vs.
State of Jharkhand‟ 2008 (4) AD (SC) 94, in the following words:-
“The crystallised judicial view is that at the stage of framing of charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.”
Upon considering the submission advanced, impugned order, the charge sheet of this case and the material on record, I find that complainant/first informant of the FIR in question ought to be given an opportunity to explain the delay when she deposes and since FSL report has corroborative value only therefore, solely on this basis the prosecution case cannot be thrown out at this initial stage. The authenticity of the version of the complainant/first informant given in the FIR is not to be meticulously examined at the stage of framing of charge and upon taking the prosecution case as it is, it cannot be prima facie said that the ingredients of the purported offence are lacking.
Crl.Rev.P. No. 97/2013 Page 4 This Court is of the prima facie opinion that impugned order calling upon petitioners to face the trial for the offences with which they have been charged, does not suffer from any illegality or infirmity. As a consequence thereof, this petition is dismissed while refraining to express any opinion on merits of this case.
With aforesaid observations, this petition and pending application are disposed of.
(SUNIL GAUR)
Judge MARCH 06, 2013 pkb
Crl.M.A. No.2133/2013 (Exemption)
Allowed, subject to all just exceptions.
Crl.Rev.P. No. 97/2013 & Crl.
M.A. No. 2132/2013 (Stay)
In this revision petition, the order impugned is of 17th December, 2012 whereby petitioners have been called upon to face the trial for the offences under Sections 307/328 and 498A of IPC in
FIR No. 143/2010 registered at Police Station Lahori Gate, Delhi. In addition, impugned order also directs petitioners No.1 and 4 to face the trial for the offence punishable under Sections 406 of IPC.
Learned counsel for petitioners assails the impugned order while urging that unexplained delay of 4 days in lodging of the FIR in question and of FSL report negating the allegation of attempt to poison the complainant/first informant of the FIR in question, entitles petitioners to seek discharge in this case. It is also vehemently argued on behalf of petitioners that since dowry articles were returned, so
2013:DHC:1245 Crl.Rev.P. No. 97/2013 Page 2 offence under Sections 406 of IPC is not made out against first and fourth petitioner. Learned counsel for petitioners had pointed out during the course of hearing that petitioner No.2, 3 and 5 are the married sisters-in-law of the complainant/first informant of the FIR in question and they have been falsely roped in in this case.
Learned counsel for petitioners had drawn attention of this
Court to MLC of complainant/first informant (Annexure-B) to point out that she was conscious and oriented but still she had chosen not to give her statement to the police and later on after inordinate delay of four days, a tutored statement has been made by her to the police on the basis of which the criminal proceedings have been launched against petitioners.
During the course of hearing, it was also pointed out by learned counsel for petitioners that the mischievous allegations of petitioners having attempting to poison the complainant/first informant is also ruled out from the fact that she was taken on a motor cycle by petitioner-husband and had she been unconscious, then she could not have been taken to hospital on motor cycle. Lastly, it is submitted on behalf of petitioners that the impugned order is cryptic one and it does not deal with the submissions of petitioners and that only the prosecution version is noted therein to order framing of charge against petitioners for the alleged offences and since no case is made out against petitioners, therefore they deserve to be discharged.
Learned Additional Public Prosecutor for respondent – State draws attention of this Court to the FIR of this case to point out that the delay stands explained in this FIR as it is noted therein that since the complainant/first informant was not fit to make a statement, so her statement was not recorded by police on 9th and 10th October, 2010 and she was declared fit for statement on 11th October, 2010 and Crl.Rev.P. No. 97/2013 Page 3 because prosecutrix was reluctant to make a statement on that date, her statement was recorded on next date i.e., on 12th October, 2010 and merely because there is delay in lodging of FIR, the prosecution case cannot be thrown out at the threshold. It is pointed out by
Learned Additional Public Prosecutor for respondent-State that veracity of the prosecution is not to be pre-judged at this stage and upon bare perusal of the FIR in question, a prima facie case is made out against the petitioners on the basis of charge sheet filed and so, this revision petition deserves to be dismissed.
The consideration which ought to weigh at the stage of framing of charge have been reiterated by Apex Court in „Hem Chand Vs.
State of Jharkhand‟ 2008 (4) AD (SC) 94, in the following words:-
“The crystallised judicial view is that at the stage of framing of charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.”
Upon considering the submission advanced, impugned order, the charge sheet of this case and the material on record, I find that complainant/first informant of the FIR in question ought to be given an opportunity to explain the delay when she deposes and since FSL report has corroborative value only therefore, solely on this basis the prosecution case cannot be thrown out at this initial stage. The authenticity of the version of the complainant/first informant given in the FIR is not to be meticulously examined at the stage of framing of charge and upon taking the prosecution case as it is, it cannot be prima facie said that the ingredients of the purported offence are lacking.
Crl.Rev.P. No. 97/2013 Page 4 This Court is of the prima facie opinion that impugned order calling upon petitioners to face the trial for the offences with which they have been charged, does not suffer from any illegality or infirmity. As a consequence thereof, this petition is dismissed while refraining to express any opinion on merits of this case.
With aforesaid observations, this petition and pending application are disposed of.
(SUNIL GAUR)
Judge MARCH 06, 2013 pkb
JUDGMENT