Non-recovery of weapon cannot be ground to drop robbery charges under 397 IPC: Delhi High Court

Non-recovery of the weapon used for robbery cannot be a reason to not frame charges under Section 397 of Indian Penal Code (IPC) which criminalises 'robbery, or dacoity, with attempt to cause death or grievous hurt', the Delhi High Court recently observed. [State v Hassan Ahmad].Single-judge Justice Suramonium Prasad said that the effect of non recovery of the weapon could be seen only at trial and that cannot be a reason for not framing charges under Section 397."The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC," the order said..The matter pertained to a case of robbery in which the complainant and his friends were robbed by men who claimed to be from Delhi Police. It was alleged that one of the men had threatened the complainants by brandishing a pistol and asked them to give all their belongings.The complainant and his friends complied out of fear.Later, the complainant filed an FIR against the accused persons for offence under Section 392 of IPC.Subsequently, charge-sheet was filed stating that there was sufficient material to proceed against the respondent-accused for offence under Sections 397 which prescribes a graver punishment of minimum seven years imprisonment as compared to Section 392. .On February 20, 2020 District and Sessions Judge, Patiala House Courts passed the judgment framing charges under Section 392 IPC against the respondents, holding that since the pistol had only been brandished, and it had not been used, the offence under Section 397 IPC was not made out against the accused. .The same was challenged before the High Court by the State..Advocate Rakhi Dubey appearing for accused, submitted that neither was the weapon used in the alleged incident recovered from the accused nor was there any recovery of material alleged to have been robbed by the accused.Further, she contended that the accused was arrested in some other case and he is being falsely implicated in the present case. Therefore, an offence under Section 397 IPC was not made out against them..On the other hand, Additional Public Prosecutor Advocate Meenakshi Chauhan, appearing for State, submitted brandishing a revolver/pistol to commit robbery is sufficient to attract the provisions of Section 397 IPC..The Court after hearing both counsels at length placed reliance on Phool Kumar v. Delhi Admn wherein the Supreme Court held that:"Some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code.".The High Court also noted that the word 'use' would include brandishing the weapon against another person in order to overpower him or to frighten his victim..In light of the above observations, the Court allowed the revision petition while directing framing of charges against the accused under Section 397 IPC."Charges under Section 397 IPC ought to be framed against the accused. The learned District and Sessions Judge, Patiala House Courts, New Delhi, is directed to assign the case to its own Court or other Court in accordance with law," the Court ordered..[Read Order]