Tis Hazari court seeks explanation from Delhi police over misuse of power to attract graver offence

New Delhi [India], October 21 : Delhi's Tis Hazari court recently discharged an accused from the offence of robbery and pulled up Delhi police over misuse of power to attract a graver offence.
The court noted that there is nothing on record to show that the complainant was hurt in order to commit robbery.
The court has also sought an explanation from the Investigating officer (IO), which was forwarded by the SHO under the signature of the Deputy Commissioner of Police. The case pertains to the police station in Sarai Rohilla.
Metropolitan magistrate (MM) Neha Mittal discharged Pankaj Kumar from the offences of 392 (robbery) and 394 (causing hurt during robbery) IPC.
The court said that it is pertinent to note that the present case appears to be a glaring example of misuse of power by police officials, as it seems that a deliberate attempt has been made to attract graver offences of robbery.
"Accordingly, issue a notice to the IO and forward SHO to file an explanation under the signature of the DCP concerned to explain the above-noted lacunas in the investigation, " MM Neha Mittal said in the order passed on October 19, 2023.
The court clarified that to constitute an offence under Section 392/394 IPC, it must prima facie be shown that the accused committed robbery as defined under Section 390 IPC.
He further said that a bare reading of Section 390 of the IPC shows that in all robberies, there is either theft or extortion.
The court pointed out that in the present case, the allegations made against the accused are with respect to the theft of a mobile, and hence, it is to be seen whether such theft is robbery or not.
"It is clear that theft will amount to robbery only if harm is caused to any person for the above-mentioned purpose. Even if hurt is caused to any person simultaneously with the offence of theft, the offence of robbery will not be committed unless such hurt was for any of the above-mentioned purposes," the judge added.
The court observed, "In the present case, a perusal of the complaint shows that the accused hit the complainant with a brick and a glass bowl, and then the mobile placed on the counter of the shop was lifted by one of the accused."
"There is nothing in the complaint to suggest that the harm was caused to the complainant in order to commit the theft of the mobile phone," it added.
Further, perusal of the statement of Aakash under Section 161 Cr. P.C (who is the alleged eye witness) shows that he has stated that the accused person lifted the phone of the complainant while going away.
The court said that the further DD entry of December 4, 2016 does not mention anything regarding the alleged theft of the mobile phone.
The judge noted that It is also pertinent to note that the IO has collected the bill for the said
mobile phone, which is in the name of Deepika.
"However, neither the statement of the complainant nor the statement of Deepika is on record to show that the complainant had purchased the said mobile from Deepika," the judge pointed out.
In view of the said facts and circumstances, the accused is discharged under sections 392/394/34 IPC and the prima facie case for an offence punishable under sections 323/341/34 IPC is made against the accused, the court ordered.
It was argued by advocate Deepak Sharma, counsel for the accused, that the accused has been
falsely implicated in the present matter and that the associates of the accused, namely Golu Head, have not been apprehended by the police, despite the fact that he is the only person who has been specifically named by the complainant.
The advocate further argued that, from the allegations made by the complainant, no offence under section 392/394 IPC is made. It is further argued that the bill of the mobile phone which was allegedly picked by the accused is in the name of one Deepika, hence it is prayed that the accused be discharged.
On the other hand, the Additional Public Prosecutor (APP) for the State argued that there is sufficient evidence on record to frame a charge against the accused.
As per the prosecution, the accused along with his associates visited the shop of the complainant on December 4, 2016 and asked him to show some clothes, upon which the complainant stated that there were no stocks of goods and asked them to come after 4-5 days.
Thereafter, the accused tried to hit the complainant with the brick and then with a glass bowl, and thereafter, the accused lifted the mobile of the complainant that was lying on the counter and kept the same in his pocket, and all of them ran away, the prosecution alleged.
On these allegations, the present FIR under sections 392 (robbery), 394 (causing hurt during the robbery), and 34 (Common Intention) IPC was registered.