2012 Supreme(Del) 61

High Court of Delhi
SURESH KAIT, J.
Sb Yadav
Versus
State
Criminal Appeal No.666 of 2011
Decided on : 09-01-2012

The power of preliminary enquiry mentioned in Section 340 of the Code cannot be delegated to any other person by the Judge before whom the offence is mentioned in view of the Section had been allegedly committed.

Headnote:

CRIMINAL APPEAL - SECTION 341 - COMPLAINT UNDER SECTION 195 OF THE CODE - COURT ANALYSIS AND CONCLUSION - [FACTS OF THE CASE] - [FINDING OF THE COURT] - [ISSUES] - [RATIO DECIDENDI] - [FINAL DECISION] - [MAIN LEGAL POINT]

Fact of the Case:

The instant appeal is being filed under Section 341 of Code of Criminal Procedure, 1973 against the impugned order dated 26.11.2010 passed by learned Additional Sessions Judge (North-west) Rohini Courts, Delhi, whereby, learned Judge has formed an opinion that a complaint under Section 195 of the Code has to be filed against the appellant.

Finding of the Court:

The impugned order dated 26.11.2010 is hereby set aside qua the appellant only. Consequently, the appellant is discharged from the complaint filed under Section 340 of the Code.

Issues: 1. Whether the learned Judge was under an obligation to record those facts underneath the said statement and to record her remarks thereon? 2. Whether the learned Judge was under an obligation to form an opinion to the effect that re-examination of Nitin Kumar, who was already examined on that day itself, was essential just for decision of the case? 3. Whether the learned Judge ordered a further probe by the Crime Branch of Delhi Police, in violation of the provisions of the Code? 4. Whether the learned Judge was under an obligation to accord an opportunity to the learned prosecutor to purify his testimony by an ordeal of cross-examination? 5. Whether the learned Judge became subjective in using the report dated 02.11.2010 while she ignored the report dated 26.11.2010 which contradicts the facts deposed by Nitin Kumar during his re-examination during the post-lunch session? 6. Whether the learned Judge has failed to apply well established principle of appreciation of evidence? 7. Whether the learned Judge has not recorded the findings, as discussed above? 8. Whether the appellant had been conspired at any stage? 9. Whether the learned Judge was under an obligation to conduct an inquiry as contemplated under Section 340 Criminal Procedure Code to record the finding as to what offences were committed and by whom? 10. Whether the appellant neither appeared as a witness nor took any step in dealing with the case to show his involvement in the alleged conspiracy?

Ratio Decidendi: 1. The act of learned Judge by filing a complaint for the aforesaid offences before the court of Additional CMM (North-West), Rohini, Delhi are being assailed in the present appeal on the following grounds: (a) The learned Judge was under an obligation to record those facts underneath the said statement and to record her remarks thereon. Thus, non-observation of provisions of Section 278(2) of the Code, vitiates her subsequent steps in the matter; (b) At the time of examination of Sh. Nitin Kumar in pre-lunch session, the learned Judge had used her powers under Section 165 of the Evidence Act, when she had put various Court questions to the witness to discover or obtain proper proof of relevant facts thereof, then there was no occasion for learned Judge to again use her powers under Section 311 of the Code; (c) For exercise of powers under Section 311 of the code, she was under obligation to form an opinion to the effect that re-examination of Nitin Kumar, who was already examined on that very date, was essential just for decision of the case. No such opinion was formed by her. Therefore, re-examination of Nitin Kumar in post-lunch session of 11.08.2010 was beyond her jurisdiction. Thus, learned Judge committed an illegality, when she failed to adhere to the provision of Section 311 of the code; (d) The learned Judge ordered a further probe by the Crime Branch of Delhi Police, in violation of the provisions of the Code. Chapter XVIII of the Code provides procedure for trial before Court of Sessions. There is no provision, either in Chapter XVIII or elsewhere in the Code, which may empower a Session Judge to order Crime Branch of Police to conduct an enquiry, submit its report and then use that report as an evidence and pronounce a verdict against the prosecution or the defence. (e) Learned Judge re-examined Nitin Kumar in the post-lunch session, without permitting the Prosecutor to put question to him, either in the form of re-examination or in the form of cross-examination which act, made re-examination of Nitin Kumar violative of Section 137, 138 and 154 of the Evidence Act. Therefore, his re-examination, done in post-lunch session, is violative of the provisions of the Evidence Act and makes entire subsequent steps in the trial illegal; (f) Re-examination of Nitin Kumar in the post-lunch session was done by the learned Judge, which as a tendency to change character of the witness, from prosecution witness to a court witness. In that situation, the learned Judge was under an obligation to accord an opportunity to the learned Prosecutor to purify his testimony by an ordeal of cross-examination. (g) The learned Judge became subjective in using the report dated 02.11.2010 while she ignored the report dated 26.11.2010 which contradicts the facts stated by Nitin Kumar during the course of his re-examination during the post-lunch session. Had the learned Judge considered the report dated 26.11.2010 it ought to have been in her knowledge that Nitin Kumar deposed wrong facts on material particulars; during the reexamination conducted in the post-lunch session. (h) HC Ramphal, who recorded the FIR had become bedrock of case, has not been made an accused. (i) The Standing Order No.33 dated 09.12.1988 issued by the Commissioner of Police, Delhi, makes it incumbent on the Duty Officer to register cases promptly whenever any report regarding a cognizable offence is made. The command of law contained in Section 154 of the Code making it incumbent upon officer Incharge of PS to reduce in writing by himself or under his direction every information relating to commission of cognizable offence. (j) The Judge relied the testimony of Nitin Kumar recorded in post-lunch session which highlights that Nitin Kumar was taken to the PS by Kuldeep Soni and produced before a Police Officer who recorded his statement after obtaining an empty purse and a mobile phone from him. (k) Circular makes it clear that it was the duty of Inspector Subhash Chand to supervise the investigation of the case. No material has come over the record that the appellant supervised the investigation of the case at any point of time. (l) Provision of sub section (2) of Section 173 of the Code makes it incumbent on Officer Incharge of PS to forward Charge-sheet of the case to the Magistrate, empowered to take cognizance of the offence. This statutory duty nowhere enjoins a responsibility on him calling upon him to verity the correctness of the investigation or to sign the Charge-sheet as the person responsible to submit it to the court of law. (m) Report of the Crime Branch, used as a corroborative piece of evidence by the learned Judge, does not take character of ocular or documentary evidence, when it was not proved at all during the course of trial, at any stage. There was a vacuum of evidence to corroborate the testimony of Nitin Kumar, recorded in post-lunch session. The learned Judge committed illegality while placing reliance on those facts. (n) The Judge had failed to apply well established cannons of appreciation of evidence viz; she has to separate the grains from the chaff, in that process, she had to visit the entire material and to assess it on touch stone of veracity. She was to form an opinion on credibility of the witness and to decide whether he is "wholly reliable" or "wholly unreliable" or "partly reliable and partly unreliable". The learned Judge had not recorded a finding that Nitin Kumar was partly reliable and partly unreliable witness. Without recording this finding, the learned Judge cannot accept a part of his testimony. When she accepted, she committed an illegality.

Final Decision: Criminal Appeal No.666/2011 is allowed and stands disposed of.