Bhogekar Shankul and Ors. v. The State of Govt of NCT of Delhi

1. Present revision petition has been filed assailing the order dated 17.10.2022 passed by the Ld. Spl. Judge (NDPS)-2, Central District, THC Courts, Delhi, whereby the Ld. Judge has ordered for framing of charge under section 395, IPC qua the petitioners in SC No. 38/2022.

2. Learned APP has submitted that initially eight persons were arrested in this case and the chargesheet was filed against eight persons. However, out of the eight, four were discharged by the learned trial court vide order dated 17.10.2022. Learned APP has fairly submitted that since there were only four persons remaining, the matter is required to be remanded back to the Trial Court for reconsideration on the question of framing of charge under section 395 IPC. Learned APP has further informed that subsequently supplementary chargesheet was filed against two persons, out of whom, one was released by the learned trial court and for the remaining one, the question of charge/discharge is yet to be considered and decided by the learned trial court.

3. Learned counsel for the petitioner has insisted that a finding may be given by this court that Section 395, IPC is not made out against the present petitioners.

4. Perusal of the impugned order indicates that the learned Special Judge (NDPS)-02, Central District, Tis Hazari Courts, Delhi, while passing the order on charge, discharged Tanvi Vishal Kumar @ Vanni, Ajay @ Ajuba, Satish Parmar and Chanderkant Tamanche, however, ordered for the framing of the charge under Section 120B r/w Section 395 IPC against accused persons namely Bhogekar Shankul, Gagdekar Guru Kumar @ Guru, Sanjay Bajrange, Satish Machrekar.

5. The definition of dacoity has been provided under section 391, IPC and reads as under: “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.”

6. The punishment of dacoity as been prescribed under Section 395, IPC and reads as under: “Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

7. A bare perusal of Section 391 makes it clear that there must be five or more persons for constituting the offence under dacoity.

8. Learned APP has submitted that supplementary charge sheet has also been filed against two more persons. However, one of them has been released by the learned Trial Court.

9. In the circumstances, the impugned order is set aside and the matter is remanded back to the learned Trial Court.

10. The learned Trial Court shall consider the case afresh without being influenced by its earlier order. The parties are directed to appear before the learned Trial court on the date fixed.

11. However, it is clarified that this Court has not gone into the merits of the case and no expression made herein shall tantamount to be an expression on the merits of the case.

12. With these observations, the petition stands disposed of.

DINESH KUMAR SHARMA, J JULY 20, 2023 rb/ss