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1996 DIGILAW 581 (DEL)

SUSHIL SHARMA v. STATE OF DELHI

1996-07-16

S.K.MAHAJAN

body1996
S. K. MAHAJAN ( 1 ) THE petitioner is being tried by the Sessions Court for his having committed an offence under Section 302,201,202/34 Indian Penal Code. Charge sheet was filed in the Court against five accused, namely, the petitioner, Keshav Kumar, Jai Prakash, Rishi Raj and Ram Prakash. In the night of 2nd and 3rd July, 1995 an attempt was made to destroy the body of a female in the Bagia restaurant of Ashok Yatri Niwas, New Delhi A case was registered which is now popularly known as "naina Sahni murder case". The FIR was registered on the statement of one Abdul Nazur Kunju. Constable of Delhi Police at 02. 40 p. m. on 3rd July, 1995. It was alleged in the statement that he was on duty from 11. 00 p. m. to 05. 00 a. m. when at about 11. 25 p. m. he noticed a fire in the Bar-be-Que restaurant of the Ashok Yatri Niwas; he informed Police Station Connaught Place through the wireless of the police picket behind the Western Court and when he came. back at me spot about twenty minutes back, he found the flames and me smoke coming out. It was further stated by him that he saw a young man who disclosed his name as Keshav Kumar S/o. Chiranji Lal putting wooden pieces in the Tandoor so as to intensify the fire. According to him, at that time, by the side of the Kanat, which was fixed near the entry of the restaurant, a young man whose name was disclosed by the security guard Mahesh as Sushil Sharma was also standing. It was also reported by him that "one strongly built man of a middle height wearing blue printed shirt and pant and another well built young man of middle height were also present in the restaurant by the side of the Tandoor. " ( 2 ) IN the charge sheet, two persons who are alleged to be the accomplices of Sushil Sharma, as reported in the FIR/registered on the statement of Abdul Nazur Kunju, were not named. The names neither appear in column No. 2 nor as accused. " ( 2 ) IN the charge sheet, two persons who are alleged to be the accomplices of Sushil Sharma, as reported in the FIR/registered on the statement of Abdul Nazur Kunju, were not named. The names neither appear in column No. 2 nor as accused. Being aggrieved by non-inclusion of their names, the petitioner filed an application before the Sessions Court alleging that police had failed to cany out the investigation vis-a-vis the said two persons-as neither their names have been disclosed in column No. 2 of the charge sheet nor they have been added in the category of accused and the police have acted contrary to rules by closing the case against the said two persons. The petitioner, therefore, prayed to direct an independent agency/delhi Police to investigate the roles performed by the said two persons mentioned in the FIR and also about the statements which had been made by the Additional Commissioner of Police in the Press Conference. The statement of the Additional Commissioner of Police upon which reliance is being placed by the petitioner was to the effect that two other persons along with Sushil Sharma allegedly involved in the attempt to incinerate the body in the Bagia Restaurant Tandoor were claimed to have been identified but he refused to divulge their names and added that they were likely to be arrested soon. ( 3 ) THE Additional Sessions Judge dismissed the application of the petitioner by holding that the Court could not restart the investigation. The investigation had been completed culminating in the charge sheet against the accused persons and the lacuna, if any, left by the prosecution could not be allowed to be filled at this stage. It has also been observed by the Court that the application appeared to have been filed with the object of obtaining another adjournment with a view to prolong the trial. The application was held to be frivolous and the Court did not deem it necessary to issue even the notice of the same to the prosecution. The application was, accordingly, dismissed. Being dis-satisfied with this order of the Additional Sessions Judge, the petitioner has filed the present revision petition. ( 4 ) MR. R. K. ANAND, Sr. The application was held to be frivolous and the Court did not deem it necessary to issue even the notice of the same to the prosecution. The application was, accordingly, dismissed. Being dis-satisfied with this order of the Additional Sessions Judge, the petitioner has filed the present revision petition. ( 4 ) MR. R. K. ANAND, Sr. Advocate appearing on behalf of the petitioner has contended that once it is brought to the notice of the court that the investigation has not been properly carried out by the police, the Court has the power to direct further investigation. The contention is that on 3rd July-1995 the FIR was registered and the petitioner was arrested on 11th July, 1995. The petitioner made his confessional statement on 13th July, 1995 and it was on 18th July, 1995 that the Additional Commissioner of Police made a Press statement claiming to have identified the two accomplices of the petitioner who were mentioned in the FIR. It is, therefore, contended that in spite of the fact that the police had claimed to have identified the said two persons, their names have not been disclosed in the Challan filed in Court on 18th July, 1995. His contention is that under Section 169 of the Code of Criminal Procedure, if upon an investigation it appeared that there was not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate, such person could be released on his executing a bond by the police. Under Rule 24. 7 of the Punjab Police Rules, no FIR can be cancelled without the orders of the Magistrate of first class and when such information is recorded and after investigation, the same is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or a matter for a civil suit, the report and other papers on record in the case with the final report is required to be sent to the Magistrate for orders of cancellation. The submission, therefore, is that as two accomplices of Sushil Sharma were named in the FIR and it was stated by the person on whose statement the FIR was reorded that he could identify the said two persons, police had no jurisdiction to delete the names of the said persons from the charge sheet without the permission of the Magistrate. The submission, therefore, is that as two accomplices of Sushil Sharma were named in the FIR and it was stated by the person on whose statement the FIR was reorded that he could identify the said two persons, police had no jurisdiction to delete the names of the said persons from the charge sheet without the permission of the Magistrate. Conclusion, according to Mr. Anand, therefore, is that the police has not carried out proper investigation in the matter and a direction should, therefore, be issued to the police to investigate the matter further. According to Mr. Anand, the Challan is silent about the role of these two persons nor it discloses as to whether any investigation was carried out to identify-the said two persons mentioned in the FIR. Mr. Anand has relied upon the judgment reported as Sarla Ben Bir Singh and Another Vs. State ofgu}arat, 1989 Criminal Law Journal 1211 in support of his contention that the Court has the power to direct the investigating agency to investigate the matter further in case it is brought to the notice of the Court that the investigation has not been properly carried out. ( 5 ) MR. S. K. Aggarwal, Standing Counsel of National Capital Territory of Delhi, has not disputed the proposition advanced by Mr. Anand that the Court has the power to direct further investigation of the matter. He, however, contends that in the facts of this case there is no case made out for investigating the matter further. According to him, no specific role had been assigned to the said persons in the FIR and when the matter was investigated, no one had named the said two persons being allegedly involved in the crime. An affidavit has been filed on behalf of the State wherein it has been stated that on investigation it was revealed that two persons who were standing by the side of the Tandoor in the restaurant were the two taxi drivers of the adjoining taxi stand, namely, Devinder Singh and Amril Pal Singh and they had come to the spot after seeing the fire and hearing the noise. However, they went back when the police arrived at the spot. The interrogation of Keshav Kumar did not reveal the presence of the two persons mentioned in the FIR. Even the petitioner in his interrogation did not reveal anything about the presence of two persons. However, they went back when the police arrived at the spot. The interrogation of Keshav Kumar did not reveal the presence of the two persons mentioned in the FIR. Even the petitioner in his interrogation did not reveal anything about the presence of two persons. All that the witnesses have stated during interrogation was that they had seen Sushil Sharma going alone in his car. Mr. Aggarwal has drawn my attention to the police file which discloses that two persons standing by the side of the Tandoor were Amril Pal Singh and Devinder Singh, who were the taxi drivers at the taxi stand of Ashok Yatri Niwas. Mr. Abdul Nazur Kunju, on whose statement the FIR was recorded, has also identified Devinder Singh and Amrit Pal Singh being the two persons who were standing by the side of Tandoor. I have, therefore, no reason to hold that police did not carry out the investigation to find out the identity of the persons who were standing by the side of the Tandoor, as mentioned in the FIR. At this stage, I am not inclined to place any reliance upon the press reports in which the Additional Commissioner of Police had allegedly claimed to have identified two persons who are alleged to be the accomplices of the petitioner and who are allegedly named in the FIR It is no doubt true that in the Challan, the police has not mentioned about the investigation which has been carried out regarding the said two persons, however, as held by the Supreme Court in R. K. Dalmia Vs. Delhi Administration, AIR 1962 SC 1821 , the charge sheet is hardly a complete thesis of the prosecution s case. All that Section 173 of the Code requires is that the officer in-charge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting forth the names of the parties, nature of information and the names of the persons who appeared to be acquainted with the circumstances of the case. I feel that the police is not. I feel that the police is not. required to give each and every detail of the investigation, which had been carried out by it, in the charge sheet filed in the Court and non- mention of (he investigation which the police had carried out to find out the identity of the said two persons will not in any manner render the investigation incomplete or improper. ( 6 ) FOR all the foregoing reasons, I feel that no case has been made out by the petitioner for directing the police to carry out any further investigation in the matter. I do not find any illegality or irregularity in the order passed by the Additional Sessions Judge. The revision petition is without any merits and the same is, accordingly, dismissed.