Full Judgment Text
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
DECIDED ON : 29 MARCH, 2017
+ CRL.M.C. 1637/2016 & CRL.M.A.No.6993/2016
RAJEEV SHARMA ..... Petitioner
Through : Mr.Ravinder Tyagi, Advocate with
Ms.Kanishka Tyagi, Advocate.
versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through : Mr.Arun Kumar Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
1. Present petition under Section 482 Cr.P.C. has been preferred
by the petitioner to challenge the legality and correctness of an order dated
09.09.2015 of learned Trial Court by which cognizance for commission of
offence punishable under Section 380 IPC and Section 25 Arms Act was
taken against the petitioner. Status report in on record.
2. I have heard the learned counsel for the parties and have
examined the file. On 18.10.2009, DD No.7A came into existence at 2.27
a.m. (night) at PS Mianwali Nagar on getting information that one Rajeev
Sharma has been admitted at Bhatia Global Hospital after sustaining bullet
injuries. The investigation was assigned to ASI Ranveer Singh who along
with Const.Lokender reached the spot. After recording victim Rajeev
Sharma’s statement, the Investigating Officer lodged First Information
Report for commission of offence under Section 337 IPC. During
Crl.M.C.1637/2016 Page 1 of 5
investigation, it was found that Sachin Sharma had stolen DVBL gun from
Manpreet’s residence and Rajeev Sharma had sustained injuries by the said
gun. Section 380 IPC and Section 25 Arms Act were added in the FIR.
Statements of the witnesses conversant with the facts were recorded. Upon
completion of investigation, a charge-sheet was filed against Sachin Sharma
for commission of the aforesaid offences under Sections 380/338 IPC and 25
Arms Act.
3. Learned Metropolitan Magistrate by an order dated 09.01.2013
took cognizance under Section 190 (1)(b) Cr.P.C. and summoned Sachin
Sharma to face trial. When arguments on charge on 12.03.2015 were in
progress, the trial Court on APP’s request sought a report from the
concerned SHO whether any criminal proceedings were initiated against
Rajeev Sharma (the present petitioner / injured). SHO in his report informed
that no criminal proceedings have been initiated against the complainant
Rajeev Sharma. The Trial Court on perusal of the statement under Section
161 Cr.P.C. of the owner of the gun i.e. Manpreet Singh observed that the
gun was taken away by Rajeev Sharma and offence under Section 380 IPC
as well as 25 Arms Act was made out against him. Since the police had not
taken any action against Rajeev Sharma, a report was called from DCP
(West) if any action was intended to be taken against Rajeev Sharma.
Subsequently, it was informed by DCP that supplementary charge-sheet was
going to be filed against Rajeev Sharma. On 04.08.2015, supplementary
charge-sheet was filed and by an order dated 09.09.2015 the Metropolitan
Magistrate took cognizance and summoned Rajeev Sharma to face trial.
Being aggrieved and dissatisfied, the instant petition has been filed.
Crl.M.C.1637/2016 Page 2 of 5
4. On perusal of the statements of the prosecution witnesses, I find
no sufficient material against the petitioner to be summoned for commission
of offences punishable under Section 380 IPC and Section 25 Arms Act.
Petitioner himself is a victim / injured in the occurrence. Owner of the gun
did not lodge any complaint about its theft against any individual. The
licence holder of the gun was Anant Bihari Singh. In 161 Cr.P.C. statement
recorded on 18.12.2009, he did not suspect the petitioner’s involvement in
the taking away of the gun. His supplementary statement was recorded
under Section 161 Cr.P.C. on 30.06.2011 in which he disclosed that after
locking his licensed gun in the almirah in safe custody at the residence of his
employer Manpreet Singh, he had gone to his house. Subsequently, he came
to know that Sachin Sharma, Manpreet’s friend had stolen the said gun and
Rajeev Sharma had sustained gun shot wound. The petitioner was not named
by him.
5. Manpreet Singh in 161 Cr.P.C. statement recorded on
18.10.2009 revealed that on the day of incident, Rajeev Sharma and Sachin
Sharma had visited him. He further informed that with an intention to burst
crackers, Rajeev Sharma took away the gun of his gun-man A.B.Singh and
kept it in Sachin’s car. At around 12.15 (night) when he got an information
on phone that Rajeev Sharma had sustained bullet injuries; he went to the
hospital. On enquiry from Rajeev Sharma, he came to know that the gun
was taken away with an intention to burst crackers. However, he sustained
bullet injuries accidentally when the gun was being handled by Sachin.
6. Statement of Manpreet Singh does not reveal if the petitioner
had deliberately and intentionally taken the gun out of his possession with
any specific purpose. Apparently, it was taken by him to his knowledge.
Crl.M.C.1637/2016 Page 3 of 5
Manpreet did not lodge any complaint any time for its theft. Similarly,
A.B.Singh also never filed any complaint against any individual for the theft
of his gun. There was thus no cogent and substantial material before the
Trial Court to ascertain that the gun in question was stolen by the petitioner
to summon him for commission of offence punishable under Section 380
IPC and Section 25 Arms Act.
7. True, the investigation carried out by the Investigating Officer
is not up-to-the mark. Initially, Rajeev Sharma did not disclose if he had
sustained bullet injury due to accidental firing by the gun at the time of his
handling in the car. Sachin Sharma got him admitted at Bhatia Global
Hospital. Subsequently, in the statement forming basis of registration of
FIR, Rajeev Sharma introduced a new story stating that the injuries by bullet
were sustained by him ‘accidentally’. Apparently, the complainant did not
present true facts. The Investigating Officer did not investigate as to how
and under what circumstances, the gun in question came to Sachin Sharma’s
possession, how and in what circumstances it was used; how and in what
manner Rajeev Sharma sustained bullet injuries. He did not verify if the
licensed gun was locked in an almirah and how and in what situation, it was
taken out of the locked almirah, and if so, by whom and for what purpose.
Seemingly, Manpreet has also not given true facts. He is not expected to let
the licensed gun to be taken away by his friend so casually. Only when it
transpired that the gun in question has been used resulting in causing injuries
grievous in nature to Rajiv Sharma, the police machinery came into motion.
Needless to say that attempt has been made by the Investigating Officer and
even the complainant and PWs - Manpreet and A.B.Singh to exonerate the
perpetrator of the crime. Senior police officers are expected to look into the
Crl.M.C.1637/2016 Page 4 of 5
matter and to find out as to how Rajeev Sharma had sustained injuries and
also, who was real perpetrator of the specific crime.
8. Upon completion of investigation, a charge-sheet under
Sections 380/338 IPC was filed only against Sachin Sharma. At no stage,
Investigating Officer moved any application before the learned Trial Court
for further investigation.
9. Since there was no cogent and substantial material before the
Trial Court, the impugned order summoning the petitioner for commission
of offences under Section 380 IPC and Section 25 Arms Act cannot be
sustained and is set aside.
10. The petition stands disposed of. Pending application also
stands disposed of.
11. Trial Court record be sent back forthwith with the copy of the
order.
(S.P.GARG)
JUDGE
MARCH 29, 2017 /
tr
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