Brandishing a weapon during a robbery qualifies as 'using' it under Section 397 IPC, justifying charges even without weapon recovery; the fear instilled in victims is paramount.

JUDGMENT

Subramonium Prasad, J. This petition under Section 397 /401 Cr.P.C is directed against the order dated 25.02.2020, passed by the learned District and Sessions Judge, Patiala House Courts, New Delhi, in SC No.58/2020 arising out of FIR No.189/2016, registered at Police Station South Campus for offences under Section 392 /34 IPC. The learned District and Sessions Judge by the order impugned herein has held that the offence under Section 397 IPC is not made out against the accused/respondent herein and the matter has been sent to the learned Chief Metropolitan Magistrate for framing of charge under Section 392 IPC.

2. The factual matrix which has led to the filing of the instant petition is as under :

a) A complaint was received from one Navi S/o Sanjiv Bhadu R/o S/466, Second Floor, Greater Kailash -I, New Delhi, stating that on 11.04.2016 at about 9 PM, four of his friends, namely, Siddhant, Suyesh, Shubham and Pranav came to meet him at his house. It is stated that at about 1:00 AM he along with his friends went to Janakpuri to drop Pranav to his work in a car bearing No. DL 1N 8064. It is stated that that the complainant was driving the car. It is stated that at about 1:40 AM the complainant stopped the car at Ring Road, Dhaula Kuan, Delhi before South Moti Bagh bus stand, to buy a cigarette. It is stated that the complainant, Pranav and Suyesh got off the car. It is stated that a grey coloured Swift Dzire car came from the wrong side and parked their car behind the car of the complainant. It is stated that the occupants of the car introduced themselves as officials of Delhi Police and asked the complainant and his friends as to what they were doing there and told them to sit inside the car. It is stated that after the complainant and his friends sat in the car, one person who was about 5'7'' and had wheatish complexion, threatened the complainant and his friends by brandishing a pistol and asked them to give all their belongings. It is stated that the complainant and his friends gave their belongings to those persons. On the said complaint, FIR No.189/2016 dated 12.04.2016, was registered at Police Station South Campus for offences under Sections 392 /34 IPC.

b) Accused (respondent herein) was arrested in FIR No.559/2016 registered at Police Station Malviya Nagar for offences under Sections 411/482 IPC and Sections 25/54/59 Arms Act. It is stated that during interrogation the accused gave a disclosure statement of having committed the offence in FIR No.189/2016 along with other persons who were there with him. The respondent herein refused to join the TIP.

c) Charge-sheet has been filed stating that there is sufficient material against the respondent herein to proceed ahead against him for offences under Sections 397 /34 IPC.

d) On 25.02.2020, the learned District and Sessions Judge, Patiala House Courts, passed the impugned judgment framing charges against the respondent herein only for offences under Section 392 IPC. The learned District and Sessions Judge, Patiala House Courts, held that since the pistol had only been brandished, and it had not been used, and therefore, the offence under Section 397 IPC is not made out against the accused. Since, the offence under Section 392 IPC is triable by the learned Metropolitan Magistrate, the file was directed to be sent to the learned Chief Metropolitan Magistrate, Patiala House Courts to assign the case to its own Court or other Court in accordance with law.

e) It is this order which has been assailed in the instant petition.

4. The question which arises for consideration in this case is whether when an act of robbery is committed by showing a revolver/pistol then does an offence under Se