W.P.(CRL)/202/2017 of IRSHAD ALI @ DEEPAK Vs THE STATE (NCT OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(CRL) 202/2017

IRSHAD ALI @ DEEPAK

..... Petitioner

Through:Mr. M. Sufian Siddiqui with Mr.Rakesh Bhuara & Mr. M. Tabishzia,Advs.Rakesh Bhuara & Mr. M. Tabishzia,Advs.

versus

THE STATE (NCT OF DELHI)..... RespondentThrough:Mr. Avi Singh, ASCMr. Dayan Krishnan, Sr. Adv. withMr. Rajesh Mahajan, ASC, Ms.Smriti Sinha & Ms. Shradha Karol,Advs. with Insp. Dilip Kumar, Spl.CellThrough:Mr. Avi Singh, ASCMr. Dayan Krishnan, Sr. Adv. withMr. Rajesh Mahajan, ASC, Ms.Smriti Sinha & Ms. Shradha Karol,Advs. with Insp. Dilip Kumar, Spl.Cell

CORAM:HON'BLE MR. JUSTICE ASHUTOSH KUMARO R R%22.05.2017

The petitioner was acquitted in case instituted vide FIR No.10/2006dated 09.02.2006 (P.S. Special Cell) for offences under Sections 121, 121A,122, 123, 120B IPC read with Sections 4 and 5 of the Explosive SubstancesAct and 25 of the Arms Act. The petitioner was made accused in this caseon the basis of his arrest on the recovery of Chinese pistol of 30 bore alongwith 8 live cartridges and one polythene containing mixture of black andwhile oil based explosive material weighing 2 Kgs from near MubarakChowk.

At the trial, the petitioner and another co-accused, who too was

arrested along with him, were acquitted primarily on the ground that noindependent persons were examined at the trial and that private vehicleswere used by the police party for transporting the petitioner and others andno evidence with regard to the same was put up during the trial.

The petitioner has, therefore, prayed for initiation of departmentalproceedings against the police officers in the light of the judgment of theSupreme Court in State of Gujarat v. Kishanbhai and Ors.: (2014) 5 SCC108 whereby direction has been given to the Home Department of everyState Government to formulate procedure for taking action against allerring investigating/prosecuting officials/officers and that all such erringofficials/officers identified as responsible for failure of prosecution case onaccount of sheer negligence or because of culpable lapses, must sufferdepartmental action and initiation of departmental proceeding against them.

Learned counsel appearing for the State, on the other hand, submitsthat necessary sanction has been obtained for preferring an appeal againstthe aforesaid judgment of acquittal and it would be rather premature for thepetitioner to ask for initiation of departmental action against the policeofficials who had participated in the investigation.

It has also been submitted that according to the scheme of the Code ofCriminal Procedure, Section 437A of the Code obliges any person who isacquitted in case, for ensuring his or her appearance before the highercourt to furnish bond. That apart, it is submitted that an appeal is only acontinuation of trial and the direction given by the Supreme Court in State ofGujarat v. Kishan Bhai (supra), would not straight away be applicable to thefacts of this case. It has also been submitted that pursuant to the judgment inState of Gujarat v. Kishan Bhai (supra) Standing Committee has been

constituted by the Delhi Government and that it would be open for thepetitioner to approach the Standing Committee for the aforesaid/needful.

Taking into account the aforesaid facts, this court is not inclined toallow the prayer made in this writ petition.

The writ petition is dismissed.

ASHUTOSH KUMAR, J

MAY 22, 2017