Chandra Shekhar Sharma vs State (N.C.T. Of Delhi)

By virtue of the present petition under Section 397 read with Section 401 of the Code of Criminal Procedure1, 1973^{11.Hereinafter “CrPC}, the petitioner inter alia seeks setting aside of the order on charge dated 11.07.2018^{22.Hereinafter “impugned order”} passed by learned Additional Sessions Judge-03, New Delhi District, Patiala House in SC No. 275/2017 entitled ‘State vs. Sanjay Kumar & Ors.’ arising out of FIR No.176/2017 dated 30.04.2017 insofar as it directs framing of charges under Sections 120B read with 302 of the Indian Penal Code, 1860^{33.Hereinafter “IPC”} against the petitioner.

Briefly put, the present FIR was registered upon receipt of secret information that an inter-State gang had allegedly taken a contract to murder the owner of Orient Taj Hotel and Resort. On 29.04.2017, at about 09:15 PM, a police raiding team intercepted a car, a motorcycle and a scooty. Five persons, namely Hari Ram, Chain Pal Gurjar, Sanjeev Kumar, Sanjay Kumar and Ashok Kumar were found in the car; two persons, namely Chaman Prakash (rider) and Bijender (pillion rider) were on the motorcycle; Manish Khari was riding the scooty. Upon being confronted by the police, accused Bijender allegedly fired a gunshot at SI Krishan Kumar with an unlicensed pistol, however, he managed to duck and narrowly escaped injury. Similarly, accused Manish Khari also fired at Inspector Richpal with an unlicensed pistol and the bullet struck his bullet-proof jacket.

Thereafter, the accused were overpowered and apprehended by the police team and one pistol with one live cartridge and three other live cartridges each were recovered from accused Bijender and Manish Khari respectively; one pistol with three live cartridges were recovered from accused Chain Pal Gurjar; one pistol with one live cartridge and one more live cartridge were recovered from accused Sandeep Kumar, and one country made pistol with one live cartridge and one more live cartridge were recovered from accused Hari Ram, Sanjay Kumar, Chaman Prakash and Ashok Kumar.

During investigation, in their disclosure statements, the co-accused persons namely Sanjay Kumar, Manish Khari and Chain Pal Gurjar revealed that co-accused Sanjay Kumar met with one Ravi Poopwas, who further introduced them to one Vijay Nagar, who introduced them to Shambhu Sharma and further introduced them to the present petitioner, who is alleged to have given the contract for murdering the respondent no.2/ victim, the petitioner’s brother. Based thereon, the present petitioner was apprehended on 22.07.2017 from Bulandshahar, Uttar Pradesh and was subsequently granted bail vide order dated 01.08.2017 passed by the learned Trial Court.

After filing of the chargesheet on 14.07.2017, and supplementary chargesheet on 01.12.2017, the charges against the accused persons including the petitioner were framed by the learned Trial Court vide impugned order dated 11.07.2018 and formal charges were framed on 16.07.2018.

Hence, the present petition seeking setting aside of the order dated 11.07.2018 and 16.07.2018 passed by the learned Trial Court.

Before this Court, learned counsel for the petitioner primarily submitted that the learned Trial Court has erred in framing charges against the petitioner under Sections 120B read with 302 of the IPC as nothing incriminating has been recovered at his instance, so much so, he was neither named in the FIR nor was present at the scene of crime.

Also, his involvement, as per learned counsel, in the alleged offence is merely based on the disclosure statements of co-accused Sanjay Kumar, Manish Khari and Chain Pal Gurjar and some Call Detail Records^{44.Hereinafter “CDRs”} of the petitioner with them. The learned counsel also submitted that the charge of conspiracy, in the absence of any material recovery, cannot be based merely on the disclosure statements of the co-accused persons and cannot in itself establish complicity of the petitioner, hence such disclosure is an inadmissible piece of evidence under Section 27 of the Indian Evidence Act, 1872^{55.Hereinafter “Evidence Act”}.

Learned counsel further submitted that, even otherwise, since co-accused Shambhu is an old acquaintance of the petitioner, communication over mobile phone inter se themselves cannot be the sole basis for forming an assumption that the petitioner was a part of the alleged conspiracy. The learned counsel also submitted that though, the disclosure statements resulted in discovery of CDRs, but they only show the number of times the petitioner communicated with the co-accused Shambhu Sharma, and without their being any recorded conversation and/ or transcript, the same accord no collaborative value to the disclosure statements given qua the petitioner by the co-accused persons.

To buttress his arguments, learned counsel placed reliance upon the pronouncements by co-ordinate benches of this Court in Ashok Kumar Singh vs. State of NCT of Delhi^{66.2024 SCC OnLine Del 4203} and Mamta Sapra vs. State Govt. of NCT of Delhi^{77.2024 SCC OnLine Del 4485}.

Lastly, learned counsel submitted that since there is prima facie no material either to show that the petitioner had prior knowledge of commission of the offence and/ or that he shared the intention to commit the offence and/ or that he participated in any manner whatsoever in commission of the alleged conspiracy, charges could not have been framed against the petitioner under Sections 120B read with 302 of the IPC.

Per contra, learned APP submitted that the impugned order is well reasoned as there were/ are enough grounds to proceed against the petitioner under Section 228 CrPC, as there was/ is sufficient evidence against him to suspect commission of the alleged offence. Learned APP further submitted that during investigation, the role of the petitioner as the main conspirator i.e. the person having given the contract for murdering the respondent no.2, surfaced in the disclosure statements of co-accused Sanjay Kumar, Manish Khari and Chain Pal Gurjar, which fact has been corroborated by way of the CDRs, analysis of the petitioner as also the co-accused persons.

The learned APP submitted that the CDRs indicate a web of frequent communication inter se them, wherein the petitioner has communicated with co-accused Shambhu Sharma as many as 301 times between 05.09.2016 to 14.05.2017 from his two mobile numbers and with co-accused Vijay Nagar twice on 29.09.2016; co-accused Shambhu Sharma has communicated with co-accused Vijay Nagar as many as 269 times between 30.09.2016 to 15.04.2017 from his three numbers; co-accused Vijay Nagar has communicated with co-accused Ravi Kumar and co-accused Sanjay as many as 13 and 27 times respectively; co-accused Ravi Kumar had communicated with co-accused Sanjay Kumar as many as 143 times between 03.08.2016 to 16.01.2017 from his two mobile numbers; co-accused Ravi Kumar had communicated with co-accused Manish Khari as many as 26 times between 30.09.2016 to 15.04.2017 from his two mobile numbers; and co-accused Sanjay Kumar had communicated with co-accused Manish Khari as many as 70 times between 10.10.2016 to 15.04.2017 from his two mobile numbers, which clearly indicates the active involvement of the petitioner in the commission of the alleged offence.

Lastly, learned APP submitted that at the stage of framing of charges, the learned Trial Court is only required to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused person(s) is made out as a meticulous appreciation of evidence is impermissible.

In view thereof, as per learned APP since the present revision petition being devoid of any merit, the same is liable to be dismissed.

Learned counsel for the respondent no.2/ victim in support of the above submissions advanced by learned APP submitted that there is sufficient incriminating material against the petitioner to show that he had prior knowledge of the plan of the alleged offence and that the co-accused persons were acting at his behest. In fact, the same is evident from the disclosure statements of co-accused persons duly corroborated by the CDRs of the petitioner and the co-accused persons, who have been actively connected with each other and hatched the conspiracy to commit the murder of the respondent no.2.

Heard learned counsel for the parties, as also the learned APP and perused the materials on record including the judgments cited at Bar.

Interestingly, as per law laid down by the Hon’ble Supreme Court in Union of India vs. Prafulla Kumar Samal^{88.(1979) 3 SCC 4}; Dilawar Balu vs. State of Maharshtra^{99.(2002) 2 SCC 135}; Sajjan Kumar vs. CBI^{1010.(2010) 9 SCC 368}; State of Gujarat vs. Dilipsinh Kishorsinh Rao^{1111.(2023) 17 SCC 688} and Amit Kapoor (supra), at the stage of framing of charges, the test is whether the allegations borne out from the record before the learned Trial Court, taken at their highest, constitute the alleged offence or not. As such, based on a conjoint reading of Sections 227 and 228 of the CrPC, while framing of charges, the learned Trial Court is not required to conduct a mini trial and is only to ascertain the existence of a prima facie case without delving into the probative value of the material(s) available on record, the submissions advanced by the prosecution, as also the accused for determining as to whether sufficient grounds exist for proceeding against the accused. Thus, the statutory framework governing discharge and framing of charges under Sections 227 and 228 of the CrPC respectively is well-settled and needs no further deliberation.

Bearing the aforesaid in mind and since the present petition challenges the legality and propriety of the impugned order on charge dated 11.07.2018, for ease of reference, relevant findings qua the petitioner as recorded therein are reproduced as under:

[Emphasis supplied]

As apparent from above, the learned Trial Court has proceeded to frame the charges under Sections 120B read with 302 of the IPC against the petitioner only on the basis of the disclosure statement(s) of the co-accused persons Sanjay Kumar, Manish Khari and Chain Pal Gurjar as also the connection of the petitioner with the accused by way of CDRs as also on the basis of the considering surrounding circumstances and simply because the petitioner was in touch with one of the co-accused person for a long stretch of time.

Therefore, this Court has to judge the probative value of such disclosure statements, and if they coupled with the CDRs connectivity are themselves sufficient for the framing charges under Sections 120B read with 302 of the IPC against the petitioner?

It has also to be borne in mind that the said CDRs are, admittedly, without any transcripts thereof and there is/ are no FSL Report qua them. Merely because the petitioner was in touch with the other co-accused persons for a long period of time, under such circumstances, is not sufficient for framing of charges under Sections 120B read with 302 of the IPC against the petitioner.

In these facts, Section 27 of the IPC^{1212.27. How much of information received from accused may be proved.––Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.} which talks about what and how much information(s) given by any accused person, even to a “police officer”, be it in the nature of a “confession”, may/ can be taken, is something which forms the backbone of the present proceedings.

It is relevant to note that the Hon’ble Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu^{1313.(2005) 11 SCC 600} while dealing with the said provisions of Section 27 of the IPC observed as under:-

x x x

[Emphasis supplied]

In the present proceedings, and as apparent from the impugned order, framing charge against the petitioner under Sections 120B read with 302 of the IPC, everything is based on the disclosure statements of the co-accused persons qua him, and that too, to the effect that the petitioner was/ is a co-conspirator in the alleged conspiracy and that since he gave the contract for murdering the respondent no.2 herein, he is said to be the main conspirator. Barring this, admittedly, there is no physical recovery of any kind in pursuance thereto from any of the co-accused persons and/ or the petitioner. This, thence, per se is not sufficient for establishing any kind of nexus and/ or relationship inter se them.

Even otherwise, since the said CDRs are, admittedly, without any transcripts, there is no clarity about the details of conversations inter se the co-accused persons and the petitioner. In view thereof, though the petitioner was in touch with the other co-accused persons for a long period of time, the same itself without any concrete proof and/ or FSL Report qua them, can hardly form the basis of framing of charge against the petitioner under Sections 120B read with 302 of the IPC.

In view of the dicta in Prafulla Kumar Samal (supra); Dilawar Balu (supra); Sajjan Kumar (supra); Dilipsinh Kishorsinh Rao (supra) and Amit Kapoor (supra), this Court finds reason for interfering with the findings rendered by the learned Trial Court in the impugned order whereby charges have been framed under Sections 120B read with 302 of the IPC against the petitioner.

This Court also finds that co-ordinate benches of this Court, while dealing with similar circumstances in Ashok Kumar (supra) and Mamta Sapra (supra), have also discharges the accused(s) therein.

In view of the aforesaid analysis, as also the legal position discussed hereinabove, this Court is of the considered opinion that there are no sufficient material(s) on record qua the petitioner for framing of charges against him under Sections 120B read with 302 of the IPC and proceed with trial.

Accordingly, the present petition is allowed and the impugned order on charge dated 11.07.2018 passed by learned Additional Sessions Judge-03, New Delhi District, Patiala House in SC No. 275/2017 entitled ‘State vs. Sanjay Kumar & Ors.’ arising out of FIR No.176/2017 dated 30.04.2017 is set aside. As such, the formal order on charge dated 16.07.2018 is also set aside.

As such, the present petition along with the pending application is disposed of in the above terms.

A copy of the judgment be sent to the learned Trial Court for necessary information and compliance.