DILAWAR SINGH v. STATE OF DELHI

Citation: [2007] 9 S.C.R. 695

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

DILAWAR SINGH v. STATE OF DELHI.pdf

Judgment text

' DILAWAR SINGH v. STATE OF DELHI SEPTEMBER 5, 2007 [DR. ARIJITPASAYAT ANDD. K. JAIN,JJ. ) Penal Code, 1860: s. 397-0ffence under-Injury not inflicted by accused-Hence, offence under s. 397 not established Cri11. 1inal trial: Delay in lodging FIR-Effect--Held: Fata! to prosecution case if not satisfactorily explained Code of Criminal Procedure, 1973 : s. 2 JO-Object of-Discussed Prosecution case was that on 8. 8. 1984 at 9. 30 P. M. the appellant, Rand 3 persons who were Sikhs entered into the temple where complainant-PW-I 0 pujari of the temple was doing meditation. They tied PW-1 with a rope and ran away containing the donation box with cash ofabout Rs. 5000/-. Appellant was carrying a knife, R was having a lathi and one of the other 3 was having a revolver. PW-1 cried for held whereafter two local person came to the temple and saw 5 persons running. Both of them identified appellant and R. On 9. 8.

1984, PW-1 made a written complaint to the Prime Minister, police official but to no avail. Thereafter, the complaint was filed on 31. 8. 1984. Trial Court convicted appellant under ss. 452, 392, 397 IPC. The appeal before the High Court was dismissed on the ground that PW-l's evidence was clear and cogent. In appeal to this Court, appellant contended that the alleged incident· took place on 8. 8. 1984 and the complaint was lodged on 31. 8. 1984; that except a bare statement that representations were made to various persons, no material in that regard was adduced. Further, the modalities to be adopted when the police does not register the FIR are indicated in s. 154 (3) Cr. P. C. Admittedly, that has not been done. In any event, the ingredients ofs. 397 IPC have not been established. Allowing the appeal, the Court HELD: 1. 1. The evidence of PWl is the only material on which the conviction has been recorded.

In court, his statement was that accused appellant and 'R' were holding knives and other Sikh accused were holding lathi. But in the complaint it was stated that 'R' was carrying a Iathi and one of the accused Sikh was holding a revolver. It was accepted that no injury. was inflicted on the complainant by any ofthe accused. (Para 6) (699-G, H; 700-A) 2. 1. In criminal trial, the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version ofthe case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation.

If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. (Para 8). 1700-C) Thulia Kali v. The State of Tamil Nadu, AIR (1973) SC 501 and 'Ram Jagand Ors. v. The State ofU. P. , AIR (1974) SC 606, relied on. 2. 2. The complainant has attempted to explain the delay by stating that the matter was reported to the police but the police did not take any action. Such statement can hardly be taken to have explained the delay. It is the simplest ofthings to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case. The principle has been statutorily recognised in s. 210 Cr. P. C.

which enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and ifcognizance has been taken on the police report, he is to try the complaint case along with the G. R. Case as if both the cases are instituted upon police report. Tlie aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions ofs. 210 Cr. P. C, are mandatory in nature. It may be true that non-compliance of the provisions ofs. 210, Cr. P. C. , is not ipso facto fatal to the prosecution because of the provision ofs. 465 Cr. P. C. , unless error, omission or irregularity has also caused the failure of justice and in I DILAWARSINGHv.

STA1E 697 > determining the fact whether there is a failure ofjustice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because ofthe non-production ofthe records from the police. [Para 9) (700-A, H; 701-A, B, CJ Khedu Mohton and Ors. v. State ofBihar, AIR (1971) SC 66; Suresh Chand Jain v. State ofMP. and Anr. , [2001) 2 SCC 628; Gopal Das Sindhi and Ors. v. State of Assam and Anr. , AIR (1961) SC 986; Narayandas Bhagwandas Madhavdas v. The State ofWest Bengal, AIR (1959) SC 1118 and Mohd. Yousufv. Afaq Jahan (Smt. ) and Anr. , {2006) 1 SCC 627, relied on. 2. 1. The essential ingredients of s. 397 IPC are as follows: (1) Accused committed robbery.

(2) While committing robbery or dacoity (i) accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. (3) "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment It only envisages the individual liability and not any constructive liability. S. 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any ofthe acts mentioned in the provision. Other accused are not vicariously liable under that Section for acts ofco-accused. There is distinction between 'uses' as used in ss. 397 IPC and 398 IPC. S. 397 IPC connotes something more than merely being armed with deadly weapon. [Paras 22 and 23) [709-F, G, H; 710-A, Bl Phool Kumar v. Delhi Administration, AIR (1975) SC 905, relied on. 2. 2. In the instant case admittedly no injury has been inflicted.

The use of weapon by offender for creating terror in mind ofvictim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. Therefore, the offence under s. 397 IPC has clearly not been established. In addition, the ingredients necessary for offence punishable under ss. 392 and 452 have not been established in view of the highly inconsistent version of the complainant PW-1. [Para 24 and 25) [710-C, DJ Ashfaq v. State (Govt. ofNCTofDelhi), AIR (2004) SC 1253, relied on. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 491 of ~ -+ \ From the final Judgment and Order dated 04. 10. 2001 ofthe High Court of Delhi at New Delhi in Criminal Appeal No. 186 of 1996. Rajeev Sharma and Naresh Kumar for the Appellant. - • l - Nagendra Rai, M. Yunus Malik, Ashok Bhan and D. S. Mabra for the Respondent. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. I.

Challenge in this appeal is to the judgment of the learned Single Judge, Delhi High Court, dismissing the appeal filed by the appellant and affinning his conviction for offences punishable under Sections 452, 392 and-397 ofthe Indian Penal Code, 1860 (in short the 'IPC') and sentencing him to undergo one year, two years and seven years rigorous imprisonment respectively with fine in each case with_ default stipulation. The sentences were directed to run concurrently. 2. Prosecution version in a nutshell is as follows: + Complaint was filed by Balwant Singh (hereinafter referred to as the Complainant-PW! ) alleging as follows: On 8. 8. 1984 he was sitting at Kali Mata Ka Mandir, Udaseen-Ashram at Village Taharpur, Shahdara, Delhi. He acts as a priest in the temple. Donations Wt::re collected from Various persons to build the temple and he Was maintaining the temple. He was residing at the temple and performing regular puja. On 8. 8. 1984 at about 9. 30 p. m.

, after perfonning evening puja and aarti and after having dinner he was doirig meditation when five persons including two accused persons namely the present appellant and one Ram Saran and three persons who were Sikhs and whose names he did not know but could identify them, entered into the temple, tied hi111 with a rope and ran away with. the donation box with cash of about Rs. 5,000/-. Appellant was carrying a knife, Ram Saran was having a lathi and one of the three others who was a Sikh was having a revolver. After some time two local persons namely Kanwar Singh and Dr. Salekh Chand came to the temple and they also saw five persons running towards Gagan Cinema. Both ofthem identified the appellant and Ram Saran; they untied the rope and cried for help. After hearing their cry several local residents gathered at the temple and the complairiant narrated the whole inddent to them. Complainant along with Kanwar Sing~ and Dr.

Salekh Chand and others went to lodge report at the police station, Seema DILAWARSINGHv. STATE[PASAYAT,J. ] Puri. But the duty officer did not listen to him and the local residents and directed them to go away. On 9. 8. 1984 complainant made a written complaint to the Prime Minister, police officials but to no avail. Therefore, the complaint was filed on 31. 8. 1984. After going through the evidence, the learned Magistrate came to the conclusion that there was material to proceed against the appellant, Ram Saran and the three others. He committed the case in the Court of Sessions as offence relatable to Section 395 IPC is exclusively triable by that Court. Accused Dilawar Singh pleaded innocence. Ram Saran died during the proceedings and the charges against him were dropped. Except PW-I, no other witness was examined. -It was stated by the prosecution that Dr. Salesh Chand, Kanwar Singh and others could not be traced despite the liberty granted to the prosecution.

The trial court found that the delay in making a grievance has been explained· and complainant's version was acceptable. 3. The appeal before the High Court was dismissed by the impugned judgment on the ground that PWI 's evidence was clear and cogent. 4. In support of the appeal learned counsel for the appellant submitted that the alleged incident took place on 8. 8. 1984 and the complaint was lodged on 31. 8. 1984. Ex. cept a bare statement to the effect that representations were made to various persons but no material in that regard was adduced. Further, the modalities to be adopted when the police does not register the FIR are indicated in Section 154 (3) ofthe Code ofCriminal Procedure, 1973 (in short the 'Cr. P. C. '). Admittedly, that has not been done. It has also not been explained as to how and why the Prime Minister of the country was moved.

Even no material has been adduced to show that any such complaint was made either to the Prime Minister or the Police Official claimed. In any event, no advocate was engaged for the accused who did riot have the means to engage a lawyer and therefore the mandate of Section 304 Cr. P. C. has been clearly violated. In any event, the ingredients of Section 397 IPC have not been established. 5. Learned counsel for the respondent on the other hand submitted that mere delay in lodging the complaint does not in any way affect the credibility of PWI 's version. 6. The evidence of PWl is the only material on which the conviction has been recorded. In court his statement was that accused appellant and Ram Saran were. holding knives and other Sikh accused were holding lathi. But in the complaint it was st~ted that Ram Saran was carrying a lathi and one ofthe accused Sikh was holding a revolver. It was accepted that no injury was inflicted on the complainant by any of the accused. 7.

The effect ofnot adducing material to show that in fact the grievance was made before the police and the FIR was not recorded has been considered by this court in several cases. Section 304 Cr. P. C. mandates that when the accused is not represented, the Court has to appoint a counsel so that the accused does not go undefended. 8. In criminal trial one ofthe cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the. unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why ifthere is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation.

If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu, AIR (1973) SC 501, it was held that the delay in lodging the first information report quite often results in embellishment as a result ofafterthought. On account ofdelay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured versi argued that when Mitra applied for a search warrant on September, 16, 1952, the Additional District Magistrate had recorded an order thereon, "Pennitted. Issue search warrant. " It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission because the petition of Inspector Mitra clearly states that "As this is non-cognizable offence, I pray that you will kindly pennit me to investigate the case under section 155 Cr. P. C.

" That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant pennission to the police officer to investigate a non-cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a ·warrant cannot also be regl-trded as orders which· indicate that the Additional District Magistrate thereby took cognizance ofthe offence. It was clearly stated in the petition that for the purposes ofinvestigation his presence was necessary. The step taken by Inspector Mitra was merely a step in the investigation of the case. He had not himself the power to make an arrest having regard to the provisions of s. 155(3) ofthe Code ofCriminal Procedure. In order to facilitate his investigation' it was necessary for him to arrest the appellant and that he could not do without a warrant ofarrest from the Additional District Magistrate.

As already stated, the. order of the Additional District Magistrate of September 19, 1952, makes it quite clear that he was still regarding the matter as one under investigation. It could not be said with any good reason that the Additional District Magistrate had either on September 16, or at any subsequent date upto February 2, 1953, applied his mind to the case with a view to issuing a process against the appellant. The appellant had appeared before the Magistrate on February 2, 1953, and the question of issuing summons to him did not arise. The Additional District Magistrate, however, must be regarded as having taken cognizance on this date because he sent the case to Mr. Sinha' for trial. There was no legal bar to the Additional District Magistrate taking cognizance of the offence on February 2, 1953, as on thitt date Inspector Mitra's complaint was one which he was authorized to make by the Reserve Bank under s. 23(3)(b) of the Foreign Exchange Regulation Act.

It is thus clear to us that on a proper reading of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until February 2, 1953. The argument that he took cognizance of the offence on September 16, 1952, is without foundation. The orders passed by the Additional District Magistrate on September 16, 1952, September 19, 1952, November 19, 1952, and January 2, 1953, were orders pa5sed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of s. 169 of the Cr. P. C. released him on his executing a bond with or without sureties to appear ifand when so requ.. ed before the Add,itional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial.

The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as requited bys. 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would 'take cognizance of the offence. If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by s. 23 the Magistrate concerned would be prohibited from taking cognizance.

In the present case, as the requisite authority had been granted by the Reserve Bank on January 27, I953, to file a complaint, the complaint filed on February 2, was one which complied with the provisions of s. 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance ofthe offence which, indeed, he did on that date. The following observation by Das Gupta, J. , in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, A. LR. (1950) Cal. 437] was approved by this Court in the case ofR. R. Chari v. The State ofUttar Pradesh, [1951] S. C. R. 312]:- "What is taking cognizance has not been defined in the Criminal Procedure Code. and I have no desire to attempt to define it.

It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in > the subsequent provisions of this Chapter - proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g. , ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. " It is, however, argued that in Chari's case this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference.

It is the principle which was enunciated by Das Gupta, J. , which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under s. 200 and subsequent sections ofChapter XVI ofthe Code ofCriminal Procedure or under s. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance. " 21. These aspects were highlighted in Mohd. Yousuf v. Afaq Jahan (Smt. ) andAnr. , [2006] I SCC 627. 22. The essential ingredients of Section 397 IPC are as follows: I. Accused committed robbery. 2.

While committing robbery or dacoity (i) accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. 3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But + other accused are not vicariously liable under that Section for acts of co-accused. 23. As noted by this court in Phool Kumar v. Delhi Administration, AIR (1975) SC 905, the tenn "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon.

Use of deadly weapon by one offender at the time ofcommitting fObbery cannot attract Section 397 IPC for the imposition ofminimum punishment on another offender who had not used any deadly weapon. There is distinction between 'uses' as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely -,being armed with deadly weapon. 24. In the instaQt case admittedly no injury has been inflicted. The . use of weapon by offender for creating terror in mind of victim is sufficient. ' It need not be further shown to have been actually used for cutting, stabbi. ng or shooting, as thP. case may be. (See: Ashfaq v. State (Govt. ofNCT ofDelhi), AIR (2004) SC 1253). 25. Therefore, the offence under Section 397 IPC has clearly not been established. In addition, the ingredients necessary for offence punishable under Sections 392 and 452 have not been established in view of the highly inconsistent version of the complainant PW 1. 26.

The conviction needs to be set aside and the appeal deserves to be allowed, which we direct. It would be appropriate to note that courts while dealing with accused persons during trial, when they are not represented by counsel, to keep in view the mandate of Section 304 Cr. PC. 27. Appeal is allowed. D. G. Appeal allowed.