Delhi High Court
Pritam Singh Since Deceased Through His … vs State Of Gnct Of Delhi & Ors. on 8 April, 2025
Author: Swarana Kanta Sharma
Bench: Swarana Kanta Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.04.2025
+ CRL.M.C. 2485/2022
PRITAM SINGH SINCE DECEASED THROUGH HIS LR
REPRESENTED BY S BAKSHISH SINGH .....Petitioner
Through: Mr. R.K. Saini, Advocate.
versus
STATE OF GNCT OF DELHI & ORS. .....Respondents
Through: Mr. Raj Kumar, APP for the
State.
CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
DR. SWARANA KANTA SHARMA, J
1. This petition under Section 482 of the Code of Criminal
Procedure, 1973 [hereafter ‘Cr.P.C‘] has been filed on behalf of the
petitioner, seeking setting aside of the order dated 29.11.2021
[hereafter ‘impugned order’] passed by the learned Additional
Sessions Judge-02, Karkardooma Courts (East), Delhi [hereafter
‘Revisionist Court’] in CR No. 304/2019.
2. By way of the impugned order, the learned Revisionist Court
was pleased to dismiss the said revision petition and affirm the order
dated 25.09.2019 passed by the learned Metropolitan Magistrate,
Karkardooma Courts (East), Delhi [hereafter ‘Trial Court’] in CIS
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No. 47887/16, titled “Pritam Singh vs. Rajender Singh & Ors.”,
Police Station Geeta Colony, Delhi.
3. Succinctly, the facts of the case, leading to the filing of present
petition are as follows:
I. The present case originates from a complaint filed on
16.08.1994 by Sh. Pritam Singh (since deceased) and Sh.
Jasbir Singh, before the learned Trial Court, against eleven
accused persons, including the respondents herein. The
complainants and the accused persons shared familial ties, as
set out in the complaint.
II. Sh. Jasbir Singh, complainant no. 2, claimed ownership of one
property no. 13/207, Geeta Colony, Delhi, [hereafter also
referred to as ‘the Premises’] based on a Will dated 14.04.1980
executed by his grandmother Smt. Har Kaur, who had passed
away on 25.04.1980. Sh. Jasbir Singh alleged that he had been
residing in the Premises when her grandmother was alive,
occupying one room, kitchen, toilet, and bathroom, while his
father, Sh. Pritam Singh, operated a furniture workshop under
the name M/s Paradise Furniture House from another portion
of the Premises.
III. The complainants contended that accused no. 1, Rajender
Singh, who was serving in the Air Force, had been transferred
out of Delhi and had to vacate his official accommodation.
Seeking temporary shelter, Sh. Rajender Singh had requested
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permission to reside in the Premises, to which Sh. Jasbir Singh,
with his father’s consent, had agreed in May 1992. He was
allowed to occupy a two-room set on a temporary basis, while
the remaining portion continued to be used by the
complainants for their residence and business.
IV. Over time, accused nos. 1 to 4 had allegedly refused to vacate
the Premises and, with the support of accused nos. 5 to 11,
pressured Sh. Pritam Singh to close his workshop, purportedly
to take over the Premises. On 18.04.1994, at around 9:00 PM,
accused no. 3, Guljit Singh, had allegedly threatened Sh.
Pritam Singh to shut down his workshop. Fearing imminent
harm, Sh. Pritam Singh had gone to P.S. Geeta Colony with
one Sh. Hari Nihal Singh to lodge a report, but the Duty
Officer had allegedly refused to register his complaint. Upon
approaching the SHO, Sh. Ram Niwas, Sh. Pritam Singh was
directed to meet Ct. Rajender Singh, who instead booked Sh.
Pritam Singh alone under Sections 107/151 of Cr.P.C.,
whereas accused no. 3 was let off. Sh. Pritam Singh was
detained overnight.
V. Upon being released on bail on 19.04.1992, Sh. Pritam Singh
lodged another complaint (DD No. 11A, dated 19.04.1992),
which was assigned for inquiry to S.I. Roop Chand, who had
visited the Premises and prepared his report. However, the
harassment had allegedly continued. On 20.04.1992, while
returning home, Sh. Pritam Singh had been accosted by
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Signing Date:15.04.2025
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accused no. 1 (Rajender Singh), accused no. 3 (Guljit Singh),
and two unknown persons. Sh. Rajender Singh allegedly
brandished a revolver and threatened him to shut down his
workshop. A complaint regarding the same was filed at 7:00
PM (DD No. 14A, dated 20.04.1992) at P.S. Geeta Colony.
VI. On the same day, accused persons had allegedly broken into
the complainants’ portion of the Premises, and thrown out raw
materials, furniture, and tools, and stole valuable items. ASI
Shanti Lal had witnessed the incident but had not intervened.
When Sh. Pritam Singh had called a PCR van, ASI Har Pal
Singh had reached the spot but he had also failed to take any
action. Later, Sh. Gurvinder Singh, the other son of Sh. Pritam
Singh, had made PCR calls to higher officers (ACP/DCP). The
SHO had arrived at the spot but, allegedly, had coerced the
complainants into a compromise and had also wrongfully
detained them till 2:30 AM on 21.04.1992. The next morning,
when the complainants had sought a copy of the FIR, they
were informed that no FIR had been registered.
VII. It is alleged that despite repeated complaints to the DCP
(Vigilance) and other authorities, the complainants’ grievances
were not addressed. Meanwhile, the police, allegedly under the
influence of the accused persons, had registered FIRs No. 97
and 98 of 1992 under Sections 448/452/353/186/332 of IPC
against the complainants and their family members, who were
forcibly taken to the police station on 24.04.1992.
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Signing Date:15.04.2025
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Additionally, the complainants had filed a civil suit for
recovery of possession, which was pending. As alleged, the
accused persons continued to threaten the complainants.
4. In these circumstances, the complainants had filed a criminal
complaint before the learned Trial Court on 16.08.1994. On
17.08.1994, the learned Trial Court had directed the SHO, P.S. Geeta
Colony to investigate the case under Section 156(3) of Cr.P.C.
Thereafter, due to the complainants’ lack of faith in the local police,
an order dated 22.08.1994 was passed thereby directing DCP
Vigilance to conduct an independent inquiry, the report of which was
filed on 04.03.1995. The complainants, dissatisfied with the inquiry
report, had challenged its findings, and the learned Trial Court
granted them an opportunity to lead pre-summoning evidence, which
began thereafter.
5. The complainants had examined multiple witnesses, including
Sh. Pritam Singh (CW-30), whose statement was recorded on
07.07.1997. Upon conclusion of pre-summoning evidence, the case
was fixed for arguments on summoning. The learned Trial Court, by
order dated 02.07.2001, summoned all eleven accused persons for
commission of offence under Sections 147/148/448 read with Section
149 of IPC. By order dated 11.01.2007, the case was set for pre-
charge evidence, during which the complainant had examined
multiple witnesses. On 13.09.2019, pre-charge evidence was closed,
and arguments on charge were heard.
6. Subsequently, by order dated 25.09.2019, the learned Trial
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Signing Date:15.04.2025
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Court was pleased to discharge all accused persons on the ground that
not even one eyewitness to the alleged incident was examined by the
complainants in the pre-charge evidence and even if the testimony of
all the witnesses examined during pre-charge evidence is accepted on
its face value, no offences punishable under Sections 147/148/448
read with Section 149 of IPC would be made out. The relevant
portion of the said order is set out below:
“…Arguments on charge have been heard by this court.
Ld counsel for the complainants has argued that in view of
the testimony of the complainants Preetam Singh recorded on
07.07.1997, Jasbir Singh recorded on 05.07.1997 and of
Gurvinder Singh s/o Preetam Singh recorded on 05.07.1997 it
is clear that the accused persons have committed the offences
punishable u/s 147/148/448 read with section 149 IPC and
accordingly they are required to be charged for the said
offences and prosecuted as per law. lt is further stated that by
examining the witnesses from the police department to prove
the various complaints made to the police on behalf of the
complainants against the accused persons, by examining the
witnesses from postal department and by examining the
kerosene oil supplier, the complainants have satisfactorily
established their case that they were in possession of the
property mentioned above while they were dispossessed by the
accused persons. It is stated that by examining Sh. Hari Nihal
Singh, the complainants have also established their case by
producing an independent witness.
On the other hand Ld Defence counsel for the accused
persons have prayed for discharge of the accused persons
stating that in the entire pre charge evidence the complainants
have not examined even a single witness nor have produced
any documentary material from which prima facie case can be
found to have been made so as to justify the framing of charge
against the accused persons or any of them.
The Hon’ble High Court of Delhi in the case titled Satbir
Dalal & Ors Vs. State (GNCTD) Crl. Rev. P. 678/2015 and
Crl. M.A. 15667/15 decided on 14.12.2019 has observed that it
is a settled position of law that for framing a charge not only
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suspicion but grave suspicion is required.
Section 245 of the Cr.PC provides for the discharge of an
accused in the cases instituted otherwise than on police report it
reads as follows:
245. When accused shah be discharged – If, upon taking
all the evidence referred to in section 244, the Magistrate
considers, for reasons to be recorded, that no case against the
accused has been mode out which, if unrebutted, would
warrant his conviction, the Magistrate shall discharge him.
Nothing in this section be deemed to prevent a Magistrate from
discharging the accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he considers the
charge to be groundless.
A bare reading of the said provision implies that if
considering all the post summoning evidence of the
complainant, it is found that no case against the accused has
been made out which, if unrebutted, would warrant his
conviction, the accused should be discharged. In view of the
language of the said provision it is clear that for the purpose of
charge in a complaint case instituted otherwise than on police
report, the evidence led before the summoning of the accused
cannot be considered.
In the present case, not even a single eyewitness of the
alleged incident has been examined in the evidence u/s 244
Cr.PC on behalf of the complainants. Even if the testimony of
all the witnesses mentioned above is accepted on its face value,
no case for the offences punishable u/s 1471148/448 r/w
Section 149 IPC is made out. All the witnesses as mentioned
above, except the witness Hari Nihal Singh are concerned with
maintenance of official record in one department or the other
and were neither present at the spot at the lime of the incident
nor have deposed anything regarding commission of the
alleged offences. The testimony of Hari Nihal Singh relating to
the alleged offence is at the best hearsay. The same in no
manner is sufficient to hold that the testimony brings forth a
prima facie case much less a grave suspicion against the
accused persons. The complainants have failed to establish a
prima facie case sufficient to charge the accused persons.
In view of the above this court discharges the accused
persons in the present case. The accused persons including
accused Om Prakash are directed to furnish bail bond in the
sum of Rs.10,000/- each with one surety of like amount as per
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By:ZEENAT PRAVEEN
Signing Date:15.04.2025
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section 437A Cr.PC. Bail bond furnished perused and
accepted…”
7. Aggrieved by the same, the complainants had preferred a
revision petition before the learned Sessions Court. However, the
same was also dismissed by way of the impugned order dated
29.11.2021. The relevant portion of the impugned order is set out
below:
“17. I have heard the Ld. Counsels for the parties and have
perused the record of the Ld. Trial Court. I have also gone
through the written submissions filed on behalf of the petitioner
carefully. The Ld. Trial Court vide the impugned order dated
25.09.2019 has observed that not a single eye-witness of the
alleged incident was examined by the complainants at pre-
charge evidence under section 244 of the Cr.P.C. and that the
statements of the witnesses examined at pre-charge stage do
not make out any case for framing of charge for the offences
under sections 147/148/448 read with section 149 of the IPC.
18. Sh. R.S. Juneja, Ld. Counsel for the petitioners had argued
that the evidence referred to under section 244 of the Cr.PC
will cover in its ambit not only evidence recorded post-
summoning of the accused persons but also evidence recorded
at the pre-summoning stage. For this purpose he relied on the
provisions of section 80 of the Indian Evidence Act.
19. The question regarding the issue as to whether evidence
recorded at the pre-summoning stage can be read as evidence
for the purposes of section 244 of the Cr.PC. for considering
framing of charge was considered by the Hon’ble Supreme
Court in the case of Sunil Mehta v. State of Gujarat reported in
(2013) 9 SCC 209 in which the Hon’ble Supreme Court was
pleased to hold as under: –
“12. Sections 244 to 246 leave no manner of doubt that
once the accused appears or is brought before the
Magistrate the prosecution has to be heard and all such
evidence as is brought in support of its case recorded. The
power to discharge is also under Section 245 exercisable
only upon taking all of the evidence that is referred to in
Section 244, so also the power to frame charges in terms ofCRL.M.C. 2485/2022 Page 8 of 21
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Signing Date:15.04.2025
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Section 246 has to be exercised on the basis of the evidence
recorded under Section 244. The expression “when such
evidence has been taken” appearing in Section 246 is
significant and refers to the evidence that the prosecution is
required to produce. in terms of Section 244(1) of the Code.
There is nothing either in the provisions of Sections 244,
245 and 246 or any other provision of the Code for that
matter to even remotely suggest that evidence which the
Magistrate may have recorded at the stage of taking of
cognizance and issuing of process against the accused
under Chapter XV tantamounts to evidence that can be used
by the Magistrate for purposes of framing of charges
against the accused persons under Section 246 thereof
without the same being produced under Section 244 of the
Code. The scheme of the two Chapters is totally different.
While Chapter XV deals with the filing of complaints,
examination of the complainant and the witnesses and
taking of cognizance on the basis thereof with or without
investigation and inquiry, Chapter XIX Part B deals with
trial of warrant cases instituted otherwise than on a police
report. The trial of an accused under Chapter XIX and the
evidence relevant to the same has no nexus proximate or
otherwise with the evidence adduced at the initial stage
where the Magistrate records depositions and examines the
evidence for purposes of deciding whether a case for
proceeding further has been made out, All that may be said
is that evidence that was adduced before a Magistrate at the
stage of taking cognizance and summoning of the accused
may often be the same as is adduced before the court once
the accused appears pursuant to the summons. There is,
however, a qualitative difference between the approach that
the court adopts and the evidence adduced at the stage of
taking cognizance and summoning the accused and that
recorded at the trial. The difference lies in the fact that
while the former is a process that is conducted in the
absence of the accused, the latter is undertaken in his
presence with an opportunity to him to cross-examine the
witnesses produced by the prosecution.
17. Suffice it to say that evidence referred to in Sections
244, 245 and 246 must, an a plain reading of the said
provisions and the provisions of the Evidence Act, be
admissible only if the same is produced and, in the case of
documents, proved in accordance with the procedureCRL.M.C. 2485/2022 Page 9 of 21
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established under the Evidence Act which includes the
rights of the parties against whom this evidence is produced
to cross-examine the witnesses concerned.
18. Secondly, because evidence under Chapter XIX(B) has
to be recorded in the presence of the accused and if a right
of cross-examination was not available to him, he would be
no more than an idle spectator in the entire process. The
whole object underlying recording of evidence under
Section 244 after the accused has appeared is to ensure that
not only does the accused have the opportunity to hear the
evidence adduced against him, but also to defend himself
by cross-examining the witnesses with a view to showing
that the witness is either unreliable or that a statement made
by him does not have any evidentiary value or that it does
not incriminate him. Section 245 of the Code, as noticed
earlier, empowers the Magistrate to discharge the accused
if, upon taking of all the evidence referred to in Section
244, he considers that no case against the accused has been
made out which may warrant his conviction. Whether or
not a case is made out against him, can be decided only
when the accused is allowed to cross-examine the witnesses
for otherwise he may not be in a position to demonstrate
that no case is made out against him and thereby claim a
discharge under Section 245 of the Code. It is elementary
that the ultimate quest in any judicial determination is to
arrive at the truth, which is not possible unless the
deposition of witnesses goes through the fire of cross-
examination. In a criminal case, using a statement of a
witness at the trial, without affording to the accused an
opportunity to cross-examine, is tantamount to condemning
him unheard. Life and liberty of an individual recognised as
the most valuable rights cannot be jeopardised leave alone
taken away without conceding to the accused the right to
question those deposing against him from the witness box.
19. Thirdly, because the right of cross-examination granted
to an accused under Sections 244 to 246 even before
framing of the charges does not, in the least, cause any
prejudice to the complainant or result in any failure of
justice, while denial of such right is likely and indeed
bound to prejudice the accused in his defence. The fact tha
after the court has found a case justifying framing of
charges against the accused, th accused has a right to cross-
examine the prosecution witnesses under Section 246(4CRL.M.C. 2485/2022 Page 10 of 21
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does not necessarily mean that such a right cannot be
conceded to the accused before th charges are framed or
that Parliament intended to take away any such right at the
pro charge stage.”
(emphasis supplied)
20. Thus, in view of the law laid down by the Hon’ble Supreme
Court in the case of Sunil Mehta (supra), evidence recorded at
the pre-summing stage against the accused cannot be used for
purposes of framing of charges against the accused persons
under Section 246 of the CrPC without the same being
produced under Section 244 of the Code and that what can be
considered by the court for the purposes of discharge or
framing of charge is the evidence recorded at the pre- charge
stage under section 244 of the Cr.P.C.
***
26. This court has referred to the statements of the witnesses
examined at the pre-charge stage under section 244 of the
Cr.PC. None of them are eye- witnesses to the alleged incident
of 18.04.1992 when the accused persons are alleged to have
trespassed into the property of the complainants / petitioners.
Hence, the finding recorded by the Ld. Trial Court vide the
impugned order dated 25.09.2019 to the effect that the
witnesses examined under section 244 of the Cr.P.C. are not
eye-witnesses to the incident is borne out from the record of the
Ld. Trial Court.
27. It had been submitted by Sh. R.S. Juneja, Ld. Counsel for
the petitioners that the statements of the parties including the
accused persons recorded in the SEM Court in proceedings
under section 107/151 of the Cr.P.C. substantiated the
allegations of the petitioners and that the same could be looked
into by this court. Section 33 of the Evidence Act enables a
court to consider evidence given by a witness in a judicial
proceeding or before any person authorized by law to take it in
a subsequent judicial proceeding or in a later stage of the same
judicial proceeding subject to fulfillment of the conditions
contained therein. It had been submitted by Sh. K.K. Gambhir,
Ld. Counsel for the respondents that evidence recorded in the
SEM Court cannot be considered under section 33 of the
Evidence Act as the court of SEM does not conduct any
judicial proceeding within the meaning of section 33 of the
Evidence Act. He had relied upon the judgment of the Hon’ble
High Court in the case of Aldanish Rein Vs State of NCT of
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Delhi (supra).
28. In the case of Aldanish Rein Vs State of NCT of Delhi
(supra) the Hon’ble Division Bench of the Hon’ble High Court
was pleased to hold that the nature of proceedings under
section 107 of the Cr.P.C. held by the court of SEM was an
enquiry and not a trial. It was further held that the court of
SEM are not Judicial Magistrates and are invariably police
officers who also functions as ACPs. Thus, in view of the said
observations of the Hon’ble High Court, it cannot be said that
the statements recorded by the court of SEM fall within the
meaning of “evidence given by a witness in a judicial
proceeding” under section 33 of the Evidence Act. Therefore,
no reliance can be placed by the petitioners on the proceedings
and record of the court of the SEM.
29. I may also note that the record of the Ld. Trial Court
reveals that pre- summoning evidence was closed by the
complainants on 07.07.1997. By order dated 02.07.2001,
accused persons / respondents were summoned by the Ld. Trial
Court. Pre-charge evidence was finally closed by the
petitioners / complainants on 13.09.2019. In between, the
complainant no. 1 Pritam Singh is stated to have died in
September, 2010 while complainant no. 2 Jasbir Singh is stated
to have died in November, 2016. Gurvinder Singh, the other
son of Pritam Singh, initially. examined as CW-29 at pre-
summoning stage, was not examined as a witness at the pre-
charge stage. This is therefore not a case where the
complainant did not have opportunity to examine eye-witnesses
of the alleged incident at the pre-charge stage. During the
course of arguments, Ld. Counsel for the respondents had taken
this court through the record of the Ld. Trial Court which
indicates filing of multiple petitions by the petitioners /
complainants praying for transfer of their complaint case from
the court of one Ld. Presiding Officer to another. Be that as it
may, for the reasons best known to the complainants they failed
to examine themselves as witnesses at the pre-charge stage
under section 244 of the Cr.P.C. which remained open from the
year 2001 till the year 2019 with the complainant with the
complainant no. 1 being alive till September, 2010 and the
complainant no. 2 being alive till November, 2016.
30. Hence, for the reasons recorded above, there was no
evidence on the record of the Ld. Trial Court under section 244
of the Cr.P.C. to frame charge against the respondents accused
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persons for the offences under sections 147/148/448 of the IPC
read with section 149 of the IPC. The impugned order dated
25.09.2019 does not suffer from any infirmity warranting
interference in revisional jurisdiction. This revision petition has
no merit and is therefore dismissed.”
8. The petitioner i.e. legal representative of the original
complainant Sh. Pritam Singh, has preferred the present petition to
assail the legality of the impugned order.
9. The learned counsel for the petitioner contended that after
recording the pre-summoning evidence, the learned Trial Court had
summoned all the accused persons for offence under Sections 147/
148/448 read with Section 149 of IPC. It was submitted that at the
pre-summoning stage, Ct. Yoginder Singh (CW-4) had been
examined on 30.03.1996, and his deposition clearly established that
the proceedings in the Kallandara were of P.S. Geeta Colony and had
been dropped by the Sub-Divisional Magistrate (SEM) on
23.09.1992, and further that the Kallandara register did not contain
any entry regarding the proceedings under Sections 107/151 Cr.P.C.,
and that the original. The learned counsel further argued that at the
pre-charge stage, ASI Jagat Singh (CW-20) was examined on
17.05.2013, wherein he had erroneously deposed that the original
record had been destroyed; however, the same had already been
placed on record during the pre-summoning stage, as evident from
the order dated 30.03.1996, wherein Ct. Yoginder Singh (CW-4) had
brought the record before the court. It was thus submitted that the
learned Trial Court was duty-bound to consider this record at the pre-
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charge stage while deciding whether a prima facie case was made out
against the accused. Additionally, it was argued that at the pre-charge
stage, Rajan HC (CW-1) had been summoned and had produced a
copy of FIR No. 97/1992 of P.S. Geeta Colony, which had already
been exhibited as CW-1/A. The learned counsel contended that this
FIR alone was sufficient to establish a prima facie case against the
accused, as the FIR was registered on the basis of the statement of
Rajan HC himself.
10. The learned counsel for the petitioner also submitted that
Section 33 of the Indian Evidence Act, 1872, had no applicability to
the present case, and the petitioner was not seeking to rely on the said
provision in support of his challenge against the impugned order. The
learned counsel also conceded that for the purposes of deciding the
issue of charge, the evidence to be considered by the learned Trial
Court must be strictly confined to the evidence recorded under
Section 244 of Cr.P.C.
11. It was further contended that while the judgment relied upon
by the learned Sessions Court contained observations regarding the
inquisitorial nature of proceedings under Section 107 of Cr.P.C., the
same was not applicable to the present case, since the said judgment
primarily dealt with the scope and effect of Sections 107, 111, 116,
and 151 of the Cr.P.C., as well as constitutional protections under
Articles 20(3), 21, 22(1), and 39A. Similarly, the judgment in Sashi
Jena & Ors. v. Khadal Swain & Anr.: AIR 2004 SC 1492 was also
argued to be inapplicable, as it pertained to Section 33 of the Indian
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Evidence Act, which the petitioner was not invoking in support of his
case. Therefore, it was argued that the present petition be allowed.
12. This Court has heard arguments addressed by the learned
counsel for the petitioner and has perused the material placed on
record.
13. The grievance of the petitioner, in a nutshell, pertains to the
discharge of accused persons by the learned Trial Court, on the
ground that at pre-charge stage, no eyewitness was examined by the
complainants in support of their case and thus, there was no evidence
– sufficient enough – to frame charges against the accused persons.
14. This Court notes that the learned Sessions Court, in the
impugned order, has dealt with an argument of the complainants
raised therein, that the evidence recorded at the pre-summoning stage
ought to be considered for the purpose of framing of charges under
Section 246 of Cr.P.C. The complainants contended that the
testimonies recorded prior to the summoning of the accused persons
sufficiently established a prima facie case and should be read as
evidence at the pre-charge stage also. However, relying on the
decision of the Hon’ble Supreme Court in Sunil Mehta v. State of
Gujarat: (2013) 9 SCC 209, the learned Sessions Court was pleased
to reject this contention. It was observed that as per the settled legal
position, the evidence recorded at the pre-summoning stage cannot be
used for framing of charges under Section 246 of Cr.P.C., unless the
same has been produced and recorded afresh under Section 244 of
Cr.P.C. i.e. during the pre-charge stage.
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15. It is material to note that before this Court, the learned counsel
for petitioner has conceded that the evidence to be considered by the
Court for the purpose of framing of charge, i.e. during the pre-charge
stage, is the only evidence which is recorded afresh under Section
244 of Cr.P.C.
16. A perusal of the impugned orders further reveals that the
learned Sessions Court, after scrutinizing the statements of witnesses
examined at the pre-charge stage, found that none of them were eye-
witnesses to the alleged incident dated 18.04.1992, wherein the
accused persons were alleged to have unlawfully trespassed into the
complainants’ property. Accordingly, the learned Sessions Court
upheld the finding of the learned Trial Court in its order dated
25.09.2019, wherein it was held that the complainants had failed to
produce direct evidence to substantiate the allegations.
17. This Court also takes note of the fact that when the present
case was listed for hearing on 25.05.2022 before this Court, the
learned counsel for the petitioner had argued that Section 33 of
Indian Evidence Act was applicable in this case, however, the learned
Trial Court had not appreciated the same. The argument of the
learned counsel for the petitioner, as recorded in order dated
25.05.2022, is reproduced hereunder:
“2. Mr. A.K. Tripathi, learned counsel for the petitioner,
submits that the courts below had overlooked the effect of
Section 33 of the Indian Evidence Act as discussed by the
Supreme Court in Sashi Jena & others Vs. Khadal Swain &
another, AIR (2004) SC 1492, where the facts were the same,
as in the present case. It is submitted that the situation hadCRL.M.C. 2485/2022 Page 16 of 21
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arisen on account of the demise of the eye witnesses, but who
had been examined and cross-examined before the learned
Sub-Executive Magistrate and which statements had been
brought before the learned Trial Court during precharge
evidence, but have been overlooked.”
18. Thus, as evident from the aforesaid, it was the argument of the
learned counsel for the petitioner that the effect of Section 33 of
Indian Evidence Act was overlooked by the Courts below. In this
regard, this Court is of the opinion that the learned Sessions Court
has specifically dealt with this argument and has observed that
Section 33 enables a court to consider evidence tendered by a witness
in a judicial proceeding or before any person authorized by law to
take it in a subsequent judicial proceeding or in a later stage of the
same judicial proceeding – subject to fulfillment of the conditions
contained therein. One such condition is the right of adverse party to
cross-examine the witness. The learned Sessions Court took note of
the decision of the Division Bench of this Court in Aldanish Rein v.
State of NCT of Delhi: 2018 SCC OnLine Del 12207, wherein it was
held that the nature of proceedings under Section 107 of Cr.P.C. held
by the court of SEM was an enquiry and not a trial; and that the
courts of SEM are not equivalent to the Courts of Judicial
Magistrates and are invariably police officers who also function as
ACPs. In this Court’s opinion, it was correctly held by the learned
Sessions Court that the statements recorded by the court of SEM do
fall within the meaning of “evidence given by a witness in a judicial
proceeding” under Section 33 of the Indian Evidence Act, and
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therefore, no reliance can be placed by the petitioner on the
proceedings and record of the court of the SEM.
19. Moreover, as noted in order dated 25.05.2022, the learned
counsel for petitioner had relied on decision of the Hon’ble Supreme
Court in Sashi Jena & Ors. v. Khadal Swain & Anr: AIR (2004) SC
1492 and it was contended that the said decision was passed in a
similar set of facts. However, a reading of the said decision makes it
evident that the facts therein were entirely different from those of
present case. The following three essentials of Section 33 were set
out by the Hon’ble Supreme Court: (i) that the earlier proceeding was
between the same parties; (ii) that the adverse party in the first
proceeding had the right and opportunity to cross examine; and (iii)
that the questions in issue in both the proceedings were substantially
the same, and in the absence of any of the three prerequisites afore-
stated, Section 33 of the Act would not be attracted. It was held by
the Hon’ble Supreme Court in the given facts, that statement of a
witness recorded during inquiry under Section 202 of Cr.P.C. is not
admissible in evidence under Section 33 of Indian Evidence Act since
during such an inquiry, an accused has no right – much less
opportunity – to cross examine a prosecution witness. Concededly, in
the proceedings before the SEM in the present case, there was no
opportunity of cross-examination of the witness. Thus, clearly, these
arguments can be of no help to the petitioner, and are accordingly
rejected.
20. However, on the last date of hearing, the learned counsel for
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the petitioner, in contrast to the aforesaid, had argued that he was not
relying on provisions of Section 33, but on Section 80 of Indian
Evidence Act. He argued that as per Section 80, the learned Trial
Court could have taken into consideration the records of proceedings
before SEM, which were produced before the Court at pre-charge
stage, to frame charges against the accused persons.
21. Section 80 of the Indian Evidence Act deals with ‘presumption
as to documents produced as record of evidence’. In this regard also,
it is relevant to note that at the stage of pre-charge evidence,
photocopies of the records pertaining to DD entries recorded at the
time of incident and kalandra proceedings were produced and it has
been conceded by the learned counsel for the petitioner himself that
the original records had been destroyed by the time the pre-charge
evidence was recorded. Thus, no original documents were available
before the learned Trial Court for presuming the genuineness of the
said documents. Therefore, this argument of the petitioner is also
rejected.
22. The learned Sessions Court, in the impugned order, has also
observed that the complainants had ample opportunity to examine
relevant witnesses, including themselves, at the pre-charge stage
under Section 244 of Cr.P.C., yet they had failed to do so. The record
of the learned Trial Court in this case indicates that the complainants
had closed their pre-summoning evidence on 07.07.1997, and the
accused persons were summoned vide order dated 02.07.2001.
Despite, unfortunately the pre-charge evidence stage remaining
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pending before the learned Trial Court, for nearly two decades, until
its closure on 13.09.2019, neither of the complainants – Pritam Singh
and Jasbir Singh – had appeared as witnesses before their respective
demise in 2010 and 2016.
23. It is also apposite to note that Sh. Gurvinder Singh, son of Sh.
Pritam Singh, who had been examined as CW-29 at the pre-
summoning stage, was also not examined as a witness at the pre-
charge stage. The learned Sessions Court also observed that this was
not a simpliciter case where the complainants were denied an
opportunity to examine the eye-witnesses at the stage of recording
pre-charge evidence. Additionally, the record revealed that the
complainants had filed multiple transfer petitions seeking change of
the Presiding Officers, yet, for reasons best known to them, they did
not avail the opportunity to examine key witnesses, including
themselves, during the prolonged pre-charge evidence stage. As a
result, neither the complainants themselves, nor any other eye-
witness of the alleged incident was examined as a witness during the
pre-charge stage.
24. This factual position, and the observations/findings of the
learned Sessions Court in this regard, have not been disputed or
assailed by the learned counsel for the petitioner.
25. Therefore, in view of the foregoing discussion, this Court finds
no ground to interfere with the impugned order passed by the learned
Sessions Court, vide which the order of learned Trial Court,
discharging the accused persons, was upheld.
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26. Accordingly, the present petition is dismissed.
27. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
APRIL 8, 2025/A
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