Amarjit Singh vs State Of Nct Of Delhi on 3 November, 2009
2. In the course of the investigation, the name of present petitioner Amarjit Singh had figured; Amarjit Singh, the present petitioner being the financer of canter No.HR-26 GA 1463 and the owner of Inter State Finance Company has allegedly instigated four persons i.e. his employees to forcibly recover this canter from Radhey Shyam.
3. On 28.5.2005 orders had been passed against all five persons for framing of charge under Section 392 read with Section 120-B of the IPC by the Court of the ACMM. Framing of formal charge was kept in abeyance under the orders of the Additional Sessions Judge. Order of the ACMM was affirmed in revision by the Additional Sessions Judge on 02.2.2006; it was held that a prima facie offence under Sections 392 IPC read with Section 120-B IPC has been made out. On 18.8.2006 formal charges were framed against the accused persons including the present petitioner under Section 120-B IPC as also a charge under Section 392 IPC read with Section 120-B IPC.
7. It is submitted that Section 390 is contained in Chapter XVII of the IPC. Chapter-XVII of the IPC relates to offences against property; each of these offences speak of the presence of the offender; in the absence of which an offence under this Chapter cannot be sustained. The only exception is dacoity which is contained in Section 391 of the IPC. Criminal conspiracy which is defined under Section 120A of the IPC cannot be clubbed with the offence under Section 392 of the IPC. It is not the case of the prosecution that the petitioner was present at the time when the offence was committed i.e. when the canter was forcibly taken away from Radhey Shyam; presence of the petitioner at the time of the commission of the offence is a necessary pre-requisite to establish the offence under Section 392 of the IPC. This not being the position, the impugned order of framing of charge under Section 392 read with Section 120-B IPC and Section 120-B of the IPC is liable to be set aside.
15. This court does not agree with the submission of the learned counsel for the petitioner that an offence under Section 392 of the IPC cannot be clubbed with an offence of conspiracy under Section 120-B of the IPC; Section 120-B of the IPC is also a substantive offence. If these arguments of the petitioner are accepted, the petitioner would be allowed to go scot free; further the provisions of Section 120-B of the IPC could never be made applicable to Section 392 of the IPC; this is not the intention of the legislature which can be gathered from a co-joint reading of Section 392 and 120-B of the IPC. Participation of an accused without being present at the spot is clearly covered by Section 120-B of the IPC. Offence under Section 392 of the IPC is not individual in the sense as it is under Section 397 of the IPC; Section 397 of the IPC fastens liability on the person who uses the deadly weapon and no other.
17. In 140, 2007 DLT 672 Keshav Tyagi v. State a Division Bench of this Court had upheld a conviction under Section 392 read with Section 120-B of the IPC; so also in AIR 2003 SC 3805 Munna v. State , the Supreme Court had upheld the conviction under Section 392/120-B of the IPC; appeal of the appellant against conviction under Sections 392/120-B of the IPC had been dismissed. These judgments also makes it clear that offences under Sections 392 & 120-B IPC can go side by side; in fact in both these cases the convictions were maintained under Section 392/120B of the IPC.