SUBHASH CHAND KAKKAR Vs. STATE

JUDGEMENT

(1.) The petitioner has been summoned under Section 319 of the Code of Criminal Procedure, 1973 (in short the 'Code') vide an order dated 26.3.2001 in case FIR No.141/84 police station Rajouri Garden and he is assailing that order in the present petition.

(2.) The petitioner was named in the column No.2 of the charge sheet as a person not arrested and not sent up for trial. The incident of shoot-out is dated 27.3.1984 in which two persons expired. One was the brother of the petitioner called Suresh Kakkar, who was killed by the bullet fired by the complainant, Rattan Lal Verma. The other was Vijay Kumar who died on account of a shot fired by Suresh Kakkar. The petitioner has been named in the challan as S.C.Kakkar and Suresh Kakkar has been referred as the brother of S.C.Kakkar. The site of the accident was the showroom of M/s. Delhi Scooters at property No.31A. On that date the court bailiff had arrived with orders to evict the petitioner who was the owner of the showroom of M/s.Delhi Scooters. The petitioner, his brother Suresh Kakkar and the manager of the showroom Panna Lal Chopra, the accused in this case were present. The complainant, Rattan Lal Verma who is the husband of the owner was also present with Vijay Kumar, the deceased and certain other persons. As the efforts of the bailiff were resisted and the bailiff withdrew from the spot a quarrel started which led to this shoot-out. The person who actually fired at Vijay Kumar, viz., Suresh Kakkar having himself died in the incident was not an accused in the challan. Panna Lal Chopra, the manager has been challaned as the accused by invoking Section 34 of the Indian Penal Code. The petitioner was admittedly present at the spot and was himself the owner of Delhi Scooters. The accused, Panna Lal Chopra, as per the challan, allegedly exhorted Suresh Kakkar to open fire, although the allegations do not otherwise show any active involvement in the incident. The reason why the petitioner was named in column No.2 is the statement of Rajiv Verma recorded on 19.6.1984 in which it was stated that the petitioner had exhorted his brother Suresh Kakkar to open fire. It is clear from an inspection of the trial court record which is available before this court that the challan was ready to be presented on 7.6.1984 and the statement of Rajiv Verma was recorded thereafter on 19.6.1984 The challan was actually presented on 4.7.1984. The learned Metropolitan Magistrate before whom the challan was presented issued summons only to the accused named in the challan. An application under Section 319 Cr.P.C. was filed on 14.9.1984. The learned M.M. found that he did not have the jurisdiction to decide that application as the case had to be committed to Sessions and directed that the application be also sent to the court of Sessions for disposal. The court of Sessions did not take any action on that application and perhaps the prosecution never mentioned it till 28.11.2000 when a fresh application under Section 319 Code was filed by the prosecution. The application was opposed by Panna Lal Chopra, the accused under trial on the ground that the trial had already consumed a lot of time and in case the petitioner was summoned to stand trial for the offence, the trial will have to commence de novo causing prejudice to him. Before the Sessions Court the evidence against the petitioner was available in the form of statements of the complainant PW-3, statement of witness Rajiv Verma PW-13 and the statement of Sunil Verma PW-18. As already stated above, the complainant in the FIR had not named the petitioner as having taken any part in the conflict. The complainant squarely blamed his brother Suresh Kakkar for the offence of murder. The complaint makes no allegation that the petitioner exhorted anyone to take any extreme steps. The complaint was that it was Suresh Kakkar who himself threatened that in case anyone dares to evict the petitioner or Delhi Scooters he would be killed. Therefore, when the complainant comes in the witness box and says that Suresh Kakkar opened fire on the exhortation of the petitioner the same has to be taken with a pinch of salt. Rajiv Verma made his statement under Section 161 of the Code, as has been stated above, when the challan had already been prepared and was about to be submitted. By then three months had passed. Therefore, one has to be very cautious in acting upon the statement of Rajiv Verma although he came in the witness box and supported his statement under Section 161 of the Code. There is another witness PW-18, Sunil Verma. Obviously this witness never stated during investigation anything against the petitioner or otherwise the prosecution would not have waited till 19.6.1984 for naming the petitioner in column No.2.

(3.) On the testimony of the complainant, PW-3, Rajiv Verma, PW-13 and that of PW- 18 the court of Sessions has found it appropriate to summon the petitioner under Section 319 of the Code to stand trial for the offence of murder by virtue of Section 34 of the Indian Penal Code. It may be stated at the cost of repetition that the order was passed after almost 17 years of the incident. It has also to be kept in mind that although some amount of delay in the trial could be attributed to the accused, Panna Lal Chopra, but no part of the delay could be attributed to the petitioner who had not been summoned by any court till then. This leads this court to examine the purpose of Section 319 Cr.P.C. and the propriety of summoning this petitioner on the basis of the evidence narrated in paragraph No.2.