Saturday, 24 June 2017

Whether HC should remit case to lower court because of conduct of Judge & Public Prosecutor?

The manner in which the public prosecutors have been selective
in putting questions to the witnesses or eliciting information from
them has left much to be desired. Since the charge-sheet and the
material submitted therewith indicated the evidence that had to be
brought on record, it could not be a matter of whims, caprice or fancy
of the public prosecutor to choose as to what he would ask or what he
would avoid asking of the witnesses. The duty of the public
prosecutor is one of great responsibility. He holds an office of trust.
He is the spokesperson for the society at large. It was the bounden
duty of the public prosecutor to examine the witnesses so as to bring
on record the evidence in entirety. The manner in which the task of
adducing the evidence on behalf of the prosecution has been handled
reflects total callous and irresponsible conduct.
11. The manner in which the trial was presided over by the
Additional Sessions Judge is also very disturbing. The Additional
Sessions Judge did not bear in mind the proceedings that had been
earlier recorded. The part testimony of PW-15 having been
abandoned midway and he having been examined as a fresh witness
(PW-21) on later date shows poor control, if not apathetic attitude.
12. The proceedings recorded on 05.05.2015, as extracted above,
cannot be justified in any which way. There was no witness present
before the court on the said date. It may be that certain common
evidence was available in the record of the corresponding file relating
to the other FIR no.117/12. But if common evidence was to be led
against same set of accused, the proper course was to club the
proceedings and hold a joint trial. The Additional Sessions Judge 
could not have taken it upon himself to treat the documents proved on
the basis of material that was available in the file of the other case.
The act of taking on board documents exhibited as Ex. PY-1 to PY-7
is a procedure unknown to law.
13. Similarly, putting of exhibit (PX-1) on the endorsement of SI
Ranvir Singh (PW-17) or similar exhibit (PX-2) on copy of FIR
without the corresponding witness(s) being called upon to affirm the
said facts on oath was impermissible.
14. The procedure adopted by the trial court is thus found bad and
vitiating the end result. In this view, the impugned judgment and the
order on sentence must be set aside. But given the gravity of the
offences involved, this cannot mean that the appellants have to be
acquitted. The proper procedure will have to be followed and
completed so that the case is taken to the logical end.
15. For the foregoing reasons, the appeals are allowed. The
impugned judgment and order on sentence are set aside. The trial of
the case, from which these appeals arose, is remitted to the trial court
for further proceedings in accordance with law from the stage of
prosecution evidence.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th June, 2017
CRL.A. 962/2015 and Crl. M.(B) Nos.391/2017 & 955/2016
GOPAL
v
STATE ( GOVT OF NCT DELHI) 

1. The appellants in these three appeals were sent up for trial on
the basis of the report under Section 173 of the Code of Criminal
Procedure, 1973 (Cr. P.C.) submitted on 09.10.2012 in the court of the
Metropolitan Magistrate on conclusion of investigation into first
information report (FIR) no.118/12 of police station Civil Lines. After
the Magistrate had taken cognizance and issued process, and
compliance had been made with the provisions contained in Section
207 Cr. PC, the case was committed to sessions. The sessions court,
presided over by Additional Sessions Judge-03 (Central), put the
appellants on trial on charge for offences punishable under Sections
392/394/397 read with Section 34 of Indian Penal Code, 1860 (IPC)
framed on 26.11.2012. The prosecution led evidence and on
conclusion of the trial, the appellants were held guilty and convicted,
as charged, by judgment dated 29.07.2015. By subsequent order dated
01.08.2015, punishment was meted out to each of them. The said
judgment and order on sentence have been assailed through the
appeals at hand.
2. The background facts need to be taken note of, albeit briefly,
for purposes of directions that are found necessary in these
proceedings.Crl.A 962/2015 & conn. Page 3 of 10
3. The FIR no.118/12 of police station, Civil Lines from which the
present case arises was registered on 07.07.2012 at 8.15 p.m. on the
statement (Ex. PW1/A) of Kulwant Rai (PW-1), the victim of the
offences. The incident which was reported by PW-1 in the said FIR
had statedly occurred at about 8.00 p.m. on the previous day i.e.
06.07.2012 in the area of Bonta Park, Civil Lines, Delhi. It is stated
that PW-1, accompanied by his friends Purushottam (PW-2) and
Sushil (PW-3), had gone to the said place for an evening walk. While
three of them were sitting on a stone slab near a jhuggi, they were
accosted by two persons each aged about 25 years. It is alleged that
the two said persons were armed with knives and at the pointing of the
said weapons, they asked for the valuables to be handed over. While
PW-2 and PW-3 fled away from the scene, the first informant (PW-
1), a person aged 61 years, could not escape. He alleged in the FIR
that he was assaulted by the said two young persons who inflicted
knife injuries on him and relieved him of his valuables which included
cash Rs.6,000/-, a mobile phone make Nokia E-71 (Ex. P1), a wrist
watch make Titan, a kada of gold weighing about 7 tolas and some
personal documents.
4. It is stated that PW-1 after having been robbed in the above
manner rushed out of the park and made a call to the police using the
mobile of a fruit vendor and went to nearby Aruna Asaf Ali Hospital
where he was medically examined and treated. He went to the police
station on the next evening to lodge the FIR.
5. It is the prosecution case that on the same date, i.e. 06.07.2012,
another person named Harish Khare, aged about 65 years, also taking Crl.A 962/2015 & conn. Page 4 of 10
a stroll in the same park was also robbed at about 7.25 p.m. by two
persons in similar manner. The said other victim Harish Khare is
stated to have lodged FIR no.117/2012 at 00.20 hours on 07.07.2012.
6. While FIR 117/12 was handed over for investigation to SI
Parveen Kumar, FIR no.118/12 of the present case was entrusted for
investigation to SI Ranvir Sigh (PW-17). The other FIR i.e. 118/12
was eventually taken over for investigation by Inspector Sanjeev
Kumar PW15/PW-21.
7. The chargesheet and the material on record indicates that the
appellants Kishan @ Bhishan and Gopal were arrested by Inspector
Sanjeev Kumar, Inspector (investigation) of police station Civil Lines,
on 14.07.2012, in the course of investigation into FIR 117/12. Later,
their formal arrests for the purposes of the case at hand arising out of
FIR 118/12 were effected. It is also the case for the prosecution that
the third appellant Gautam Singh @ Sachin was arrested from a jhuggi
in the area of Ram Nagar Road Nagar 28, Waghle Road, Thane
(West), Maharashtra, on 18.07.2012 by Inspector Sanjeev Kumar, who
appears to have been accompanied at that time by SI Manish Kumar
and HC Sanjay Kumar both of police station Civil Lines. The said
arrest of appellant Gautam Singh @ Sachin, initially effected in FIR
117/12, was accompanied by recovery by Inspector Sanjeev Kumar
from him of the stolen mobile phone of PW-1, it having later been
released on superdari and produced in evidence (as Ex. P1). The trial
court record contains photocopy of seizure memo dated 18.07.2012
(referred to as Ex.PY-1), purportedly prepared under the signatures of
Inspector Sanjeev Kumar and attested by SI Manish Kumar and HC Crl.A 962/2015 & conn. Page 5 of 10
Sanjay Kumar. It is stated in the prosecution case that the said
recovered mobile phone was passed over by Inspector Sanjeev Kumar
to the IO of the present case and, thus, the investigation of this case
was also completed on the basis of the evidence gathered during the
investigation of FIR 117/12.
8. A perusal of the record of the trial court, gives rise to serious
concerns as to the role of the additional public prosecutor who was in
charge of the case, as also the control and understanding of the proper
procedure on the part of the presiding trial judge. This may be
illustrated by the following aspects :-
(i). Inspector Sanjeev Kumar, who had caused the arrest of all the
three appellants and also effected the recoveries including of the stolen
mobile phone, the last from the area of Thane (West), Maharashtra,
was examined as PW-15 on 11.03.2014. The examination-in-chief of
the witness could not be completed on that date for the reason the
original documents were not available, they being part of the record of
the case arising out of FIR 117/12 pending at that stage in another
sessions court. The chief-examination was, thus, deferred. It is stated
that both the cases were later brought before the same court and were
decided by the same Additional Sessions Judge on same date
(29.07.2015). Inspector Sanjeev Kumar was again called for
evidence. But, for reasons which are not clear, his earlier testimony as
PW-15 was not continued. Instead, he was examined as a fresh
witness, now as PW-21, on 09.02.2015. A very cryptic examinationin-chief
was recorded wherein he simply spoke about the arrest of first
two appellants in FIR 117/12 and about the disclosures having been Crl.A 962/2015 & conn. Page 6 of 10
made by them which were reduced into writing besides the fact of
recovery of the mobile phone which was the case property of the
present case. He was not called upon to prove the facts leading to any
of the three appellants being located or traced or the circumstances in
which the arrests had been effected, there being no reference to
documents relating to arrest of any of them or about the recovery of
the stolen mobile phone allegedly made from the possession of the
third appellant.
(ii). The copy of the seizure memo dated 18.07.2012 (Ex.PY-1), as
mentioned earlier, purports to have been attested by the witnesses SI
Manish and HC Sanjay Kumar. The charge-sheet mentions two police
witnesses bearing the same name and description i.e. HC Sanjay, one
at serial no.6 and the other at serial no.12. But the personnel number
(435/N) shows that both police witnesses refer to one and same
individual. HC Sanjay Kumar was examined as PW-4 on 03.04.2013
by an additional public prosecutor. All that the said witness was
called upon to depose about was the fact that in his capacity as the
duty officer on 07.07.2012, he had registered FIR no.118/12. There
was no question put to him as to his role leading to the arrest of the
third appellant or about recovery of the stolen property from him at
Thane (West), Maharashtra on 18.07.2012. SI Manish Kumar, the
other witness purportedly of the said recovery was examined on
16.05.2013 by additional public prosecutor representing the State. He
was called upon to depose the facts concerning the arrest of the first
two appellants on 14.07.2012 and recovery of certain knives and
robbed articles. No question was put, nor any information elicited Crl.A 962/2015 & conn. Page 7 of 10
from him, by the public prosecutor respecting the arrest of the third
appellant or recovery made from him on 18.07.2012 in Thane (West),
Maharashtra.
(iii). The prosecution did not produce any witness after PW-21 had
been examined on 09.02.2015. By proceedings recorded on
17.03.2015, the additional sessions Judge had adjourned the matter for
prosecution evidence to 08.04.2015. The short proceeding recorded
on 08.04.2015 do not reflect as to whether any witness had been
summoned or produced. It simply shows that the matter stood
adjourned to 13.04.2015 for recording of statements of the accused
persons, the case to be taken up with the connected matter. The case
came to be adjourned for same purposes on 13.04.2015 and then on
22.04.2015. On 05.05.2015, the Additional Sessions Judge recorded
his proceedings as under :-
“The endorsement of SI Ranveer Singh is exhibited as
Ex.PX-1 and the copy of FIR is exhibited as Ex. PX-2.
Case file of FIR no.117/12 which is pending in this court
and fixed for arguments for today, is taken up alongwith
this case and the photocopies of documents of FIR
no.117/12 which are the part of FIR no.118/12, are
verified with original documents of FIR no.117/12 and
same are exhibited as Ex.PY-1 to Ex. PY-7.
Put up for recording of statement of accused under
Section 313 Cr. PC on 11.05.2015.”
9. It is after the above proceedings that the statements of the
accused persons (appellants) were recorded on 11.05.2015 followed
by the judgment and order on sentence which are impugned in these
appeals.
10. The manner in which the public prosecutors have been selective
in putting questions to the witnesses or eliciting information from
them has left much to be desired. Since the charge-sheet and the
material submitted therewith indicated the evidence that had to be
brought on record, it could not be a matter of whims, caprice or fancy
of the public prosecutor to choose as to what he would ask or what he
would avoid asking of the witnesses. The duty of the public
prosecutor is one of great responsibility. He holds an office of trust.
He is the spokesperson for the society at large. It was the bounden
duty of the public prosecutor to examine the witnesses so as to bring
on record the evidence in entirety. The manner in which the task of
adducing the evidence on behalf of the prosecution has been handled
reflects total callous and irresponsible conduct.
11. The manner in which the trial was presided over by the
Additional Sessions Judge is also very disturbing. The Additional
Sessions Judge did not bear in mind the proceedings that had been
earlier recorded. The part testimony of PW-15 having been
abandoned midway and he having been examined as a fresh witness
(PW-21) on later date shows poor control, if not apathetic attitude.
12. The proceedings recorded on 05.05.2015, as extracted above,
cannot be justified in any which way. There was no witness present
before the court on the said date. It may be that certain common
evidence was available in the record of the corresponding file relating
to the other FIR no.117/12. But if common evidence was to be led
against same set of accused, the proper course was to club the
proceedings and hold a joint trial. The Additional Sessions Judge 
could not have taken it upon himself to treat the documents proved on
the basis of material that was available in the file of the other case.
The act of taking on board documents exhibited as Ex. PY-1 to PY-7
is a procedure unknown to law.
13. Similarly, putting of exhibit (PX-1) on the endorsement of SI
Ranvir Singh (PW-17) or similar exhibit (PX-2) on copy of FIR
without the corresponding witness(s) being called upon to affirm the
said facts on oath was impermissible.
14. The procedure adopted by the trial court is thus found bad and
vitiating the end result. In this view, the impugned judgment and the
order on sentence must be set aside. But given the gravity of the
offences involved, this cannot mean that the appellants have to be
acquitted. The proper procedure will have to be followed and
completed so that the case is taken to the logical end.
15. For the foregoing reasons, the appeals are allowed. The
impugned judgment and order on sentence are set aside. The trial of
the case, from which these appeals arose, is remitted to the trial court
for further proceedings in accordance with law from the stage of
prosecution evidence. The pending applications also stand disposed of.
16. The learned trial Judge shall take up the matter for further
proceedings in light of above directions on 10.07.2017. The
appellants shall be produced accordingly before the trial court.
17. Given the old pendency of the case and the reasons for which
the matter is being remitted, it is necessary to further direct that the
case shall be proceeded with on day-to-day basis till fresh final
adjudication. Needless to add, the witnesses in whose examination 
deficiencies have been noted, some referred to above, will have to be
recalled and examined further, of course, with fresh opportunity given
to the defence for cross-examination. The trial court will be properly
advised to keep available the record of the case relating to the other
FIR no.117/12 of police station Civil Lines so that the witnesses can
refer to the original documents as and when required for their
statements.
18. This court is informed that the Additional Sessions Judge who
passed the impugned judgment and order on sentence has since been
transferred to another jurisdiction. The Additional Sessions Judge
now in charge as the successor court will pass a fresh judgment
uninfluenced by the view taken in the judgment and order on sentence
which have been set aside by this court.
19. Given the deficiency in the manner in which the prosecution
was conducted, lapses of such nature coming to the notice of this court
too frequently for comfort, it is necessary that suitable action is taken
and advice or instructions are issued by the prosecution department to
the concerned quarters. Therefore, a copy of this judgment shall also
be sent to the Principal Secretary (Home) of the Govt. of NCT of
Delhi for appropriate action at their end.
R.K. GAUBA, J.
June 13, 2017

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