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2006 DIGILAW 1439 (DEL)

STATE OF DELHI v. JAGDISH SINGH

2006-08-25

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) + CRLM. 1281/2001 in CRL REV. P. 670/ 2001 although this application for condonation of delay leaves much to be desired, in view of the seriousness of the facts and circumstances surrounding this case, I feel that it would be in the interest of justice if the delay is condoned. Accordingly, the application is allowed and the delay is condoned. CRL. REV. P. 670/2001 the counsel for the State as well as the counsel for the respondents have been heard and I have examined the impugned order and other documents connected with this revision petition. ( 2 ) THIS revision petition has been preferred by the State against the order passed by the learned Additional Sessions Judge dated 09. 12. 2000 whereby the respondent Nos 1, 2 and 3 have been discharged of the offences for which they were originally charge sheeted. ( 3 ) THE charge sheet against the respondent nos 1, 2 and 3 was filed for offences under sections 147, 148, 149, 302, 395, 436, 427 and 452 IPC. This is a case which pertains to the unfortunate riots which took place in delhi on 1. 11. 1984 after the assassination of prime Minister Indira Gandhi on 31. 10. 1984. It is a well known fact that in these riots members of the Sikh community were targeted. ( 4 ) THE complainant, in this case, is one sarwan Singh Bhatia who was residing along with his family in property No. B-1/6 Paschim vihar. It is alleged that on the fateful day of 1. 11. 1984 at about 2. 00 p. m. a mob of about 400 persons attacked his house. His son Gurbakshish Singh had a revolver in his hand which he was firing in the air to scare the mob away but he ultimately succumbed to the mob and it is alleged that the respondent No. 3 was the leader of the mob who ordered the complainant's son to hand over the revolver and upon doing so the mob ran amuck and brutally beat Gurbakshish singh to death. The house of the complainant was entered upon by the members of the mob and ransacked. The house of the complainant was entered upon by the members of the mob and ransacked. ( 5 ) APPARENTLY, the learned Additional sessions Judge discharged the respondent nos 1, 2 and 3 of the offences because they were not initially named when the FIR was registered and that they were only subsequently named in 1992-1993 when statements of the complainant were recorded under Section 161 Cr. P. C. The learned additional Sessions Judge was impressed by the fact that although the complainant allegedly knew the respondents from the very beginning, he did not name them initially and that only as an afterthought, almost 8 years after the incident, he had named them in his section 161 Statement. According, to the learned Additional Sessions Judge this cast a cloud of suspicion on the veracity of the statement of the complainant made in 1993. He was influenced by the fact that an affidavit had been filed in 1985 by the complainant before a Committee which was looking into these riot matters in which he had indicated that he had come to know as to who the leader of the mob was but had not named him in that affidavit also. It has come on record that the complainant had left India along with his wife and daughter in 1985-86 and had settled in Canada. ( 6 ) IT appears that the learned Additional sessions Judge felt that because the respondents had not been named in the FIR or in the affidavit and it is only after a span of 8 years in 1992-93 when Section 161 statement of the complainant was recorded that he had specifically named the three respondents, this would cast a great degree of doubt on the complainant's later statement. It is because of this that the learned Addition sessions Judge had thought it fit to discharge the respondents. But, while doing so, the learned Additional Sessions Judge has minutely examined the evidence collected by the prosecution and has given his opinion with regard to the veracity of the same. This, unfortunately, is an exercise which ought not to have been done while considering the framing of charges. It is no doubt true that before a charge can be framed, there must be grave suspicion that the offences were committed by the accused in the manner indicated by the prosecution. This, unfortunately, is an exercise which ought not to have been done while considering the framing of charges. It is no doubt true that before a charge can be framed, there must be grave suspicion that the offences were committed by the accused in the manner indicated by the prosecution. But this does not mean that the court framing charges has to sift the evidence meticulously and examine it in detail as if it were considering evidence recorded in court at the stage of a trial and then to adjudge its credibility. Unfortunately, this is what has been done by the court below. The truth or falsity of allegations are to be tested in the course of a trial, where the defence would have the opportunity of putting the prosecution witnesses to a searching cross-examination. It is true that if the prosecution case is such that even at the stage of framing of charges no case is made out then the accused need not be subjected to the trauma of a full-blown trial. But, this is not such a case. ( 7 ) THEREFORE, I am of the view that the order dated 9/12/2000 whereby the respondents have been discharged deserves to be set aside. It is so set aside. The matter is remanded to the learned Sessions Judge for allotment to the appropriate court for a fresh consideration on the question of framing of charges. The same, if any, shall be framed after hearing counsel for all the parties. The revision petition stands disposed of.