Delhi District Court
W/H.C Sudesh vs Sh. Nahar Singh on 5 June, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
CR No. 23/09
P.S. Sultan Puri
ID No. 02404R0235742009
1. W/H.C Sudesh
P.S. Sultan Puri, Delhi
2. Const. Virender Rathi
P.S. Mangol Puri
3. Inspector Mohd. Iqbal
P.T.S. Jharoda, Delhi.
4. W/Const. Sandhya
P.S. Connaght Place, New Delhi.
......... Revisionists
Versus
Sh. Nahar Singh
S/o Late Sh. Naathoo Ram
R/o E-2/85, Sultan Puri, Delhi.
......... Respondent
Date of Institution in Sessions Court:02.09.2009
Date of Order :05.06.2010
ORDER:
1. Vide this order, I shall dispose off the present criminal revision petition, alongwith an application for condonation of delay. The aforesaid revisionists have approached the Ld. Trial Court against CR No. 23/09 P.S. Sultan Puri 2 the impugned order dt. 20.9.08 whereby all the revisionists were summoned U/S 452/109/323/341/307/363/365/120B/506(Part1)/ 193/195/217/218/219/221 IPC.
2. The brief facts which are relevant for the decision of the aforesaid revision petition and the application for condonation of delay are:
a). That the complainant has alleged in his complaint filed before the trial court that he had been subjected to various atrocities , mental torture for the last 2/3 years by the SHO Sultan Puri and his trusted police officials and they committed various atrocities on the complainant and his family members, starting from 3.6.03, when those police officials had tried to kill his son, who was under
medical treatment. Thereafter, on various dates he and his family was either attacked by the police or subjected to cruelty and harassment i.e. on 27.8.04, 27.1.06, 12.12.07, 11.1005, 31.10.05, 14.12.07, 9.1.08 and 15.12.07.
b). That he had also lodged various complaints against the CR No. 23/09 P.S. Sultan Puri 3 aforesaid illegal activities of the aforesaid police officials to the higher authorities, but no action was taken against them.
c) After the examination of the complainant's witnesses, vide order dt. 20.9.08 the present revisionists including some other police officials were summoned under the aforesaid sections of the IPC. Out of those accused persons, the following revisionists have assailed the order of the Ld. Trial Court on the following main grounds:
(a) That the Ld. Trial Court had failed to consider this fact that there was no disobedience of law and all the revisionists were doing their official duties, which they were bound to do.
(b) That the Ld. M.M. had taken the cognizance arbitrarily without application of judicial mind and also without appreciation of facts and all the revisionists being public servants in discharge of their duties were entrusted with the responsibility of maintaining law and order, which does not go well with the bad elements of the society and in order to derive benefit a false vendetta has been propogated CR No. 23/09 P.S. Sultan Puri 4 against the revisionists.
(c) That the Ld. M.M. had failed to appreciate that the complainant was bad character of P.S. Sultan Puri and externment proceedings against him were pending before the DCP concerned and various cases had been registered against him and his family members at P.S. Sultan Puri.
(d) That the Ld. M.M. had failed to appreciate that the complainant is habitual and chronic complainant and that he wants the local police station staff to be afraid of him so that he can carry on with his illegal acts and business.
(e) That the Ld. M.M. had failed to appreciate that the contention of the Ld. Counsel for the complainant with regard to the complaint being filed without the help of a counsel is of no bearing, as a simple look at the complaint makes it clear that the complaint has been drafted by an Advocate.
(f) That the Ld. M.M. had also failed to appreciate that the provisions of Section 140 of the Delhi Police Act and Section 197 of CR No. 23/09 P.S. Sultan Puri 5 the Criminal Procedure Code were applicable to the present case and the cognizance had been taken without prior sanction of the Administrator. Therefore, said cognizance was bad in law in view of the settled law, which the revisionists have mentioned in the revision petition itself.
(g) That the order of the Ld. M.M. amounts to abuse of the process of law and if the same is not set aside, grave injustice shall be caused upon the revisionists. Hence, it is prayed that the impugned order dt. 20.9.08 is liable to be set aside.
3. Alongwith the aforesaid revision petition, there is an application for seeking condonation of delay in filing the revision petition. The grounds stated in the said application for condonation of delay is that the delay in filing the revision petition took place, as counsel's file pertaining to the present case got misplaced few days back and after obtaining another copy of the file, the whole petition was drafted again and for this reason, the delay had taken place in filing the present revision petition.
CR No. 23/09 P.S. Sultan Puri 6
4. I have heard the Ld. Counsel for the respondent Sh. T.N.Puri and Ld. Counsel for the revisionists Sh. Pradeep Rana, and perused the record.
5. The Ld. Counsel for the respondent has relied upon the following judgments:
1. 2006 Crl. L.J. 1961 (Patna High Court) Shruti Enterprises Lt.d. V. State of Bihar & Ors.
2. 1996 Cr. L.J 1435 Bikkasani Satyanarayana V. State of Andhra Pradesh
3. 1992 Cr.L.J 1217 Riyasat Ali v. State of U.P.
4. 2002 Cri.L.J 131 Thakur Singh and another v. State of U.P and another.
5.1998 Cri.L.J 216 Ranjitkumar Chakravarti v. Coop. Bank of Baroda Ltd. and others.
6. 2001 Cri.L.J 3505 P.K. Pradhan v. The state of Sikkim
7. (2008) 1 Supreme Court Cases (Cri )502 State of Maharashtra v. Devahari Devasingh Pawar and Others.
8. 1994 Cri.L.J 67 Allahabad, Kailash Chaudhari and others v. State of U.P and another.
9. 1995 Cr.L.J 562 Bombay Uttam v. The State of Maharashtra and others.
6. Ld. Counsel for the revisionists has also relied upon the following judgments:
1. (2006) 1 SCC 557 Rakesh Kumar v. State of Bihar & Ors.
2. (1986) 1 SCC 410 Balbir Singh v. D.N. Kadian M.M.Delhi & Anr.
CR No. 23/09 P.S. Sultan Puri 7
3. (2009) 2 SCC 370 Dhariwal Tobacco Products Ltd. & Ors. v. State of Maharashtra & Anr.
4. (1998) 5 SCC 749 Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.
5. 1998(3) CCC HC 442 SI Manoj Pant v. State of Delhi
6. 2001(1) CCC HC 99 Kiran Bedi v. NCT of Delhi
7. Regarding the application of condonation of delay, the revisionists were summoned vide order dt. 20.9.08 for 11.12.08, and thereafter again they were re-summoned for 5.6.09 vide order dt. 11.12.08.
The present revision petition has been filed before this court on 1.9.09. From the perusal of the trial court record, it is revealed that the revisionist no.1 H.C Sudesh was served on 19.5.09 for the summons dt. 5.6.09. Similarly, revisionist no.2 was served vide summons dt. 5.6.09. Though, no date has been mentioned on the summons regarding the day he was served. Similarly, the revisionist no. 3 was served on dt. 29.5.09 for the summons dt. 5.6.09 and revisionist no.4 was served on dt. 3.5.09 for summons dt. 5.6.09. The limitation for filing the revision petition CR No. 23/09 P.S. Sultan Puri 8 before the court of Sessions is 90 days from the arising of the cause of action. If the cause of action in the present case is taken from the date of service then there is some delay in filing the present revision petition in respect to the revisionist no.1,3&4 and on the other hand, if the period of limitation is counted from the date of appearance which in this case was 5.6.09, with regard to the revisionists in question, then the present revision petition is within the limitation of 90 days from the said date i.e. 5.6.09, as the revision petition has been filed within the period of 90 days from the said date, as the same has been filed on 1.2.09.
8. Be that as it may, if the date of service of the summons is taken as the date on which the cause of action has arisen in the present case, even then the said delay is of minor nature and it is settled law that the application seeking condonation of delay have to be liberal construed and it is the endeavour of law that as far as possible all the cases should be decided on merits, rather than on technicalities. In any case, in the application regarding condonation CR No. 23/09 P.S. Sultan Puri 9 of delay, the ground for delay is due to the fault of the counsel and for the fault of the counsel, the revisionist(s) can not be faulted. In these circumstances, the application for condonation of delay in filing the present revision petition stands allowed.
9. The arguments of Ld. Counsel for the revisionists are three fold.
He has firstly argued that the impugned order dt. 20.9.08 is liable to be set-aside, as all the police officials were discharging their official duties at the time of the alleged incidents and there was a reasonable nexus between the acts complained of, and discharge of official duties of those police officials, and as per the settled law no permission of the administrator had been obtained for launching the present proceedings, therefore, the said cognizance taken by the Ld. Trial Court was bad in law, as the same was hit by Section 140 of the D.P.Act and Section 197 of the Cr.P.C. In view of the judgments relied upon by him.
10. He has further argued that as per the recent judgment of the CR No. 23/09 P.S. Sultan Puri 10 Hon'ble Supreme Court namely (2009) 2 SCC 370 Dhariwal Tobacco Products Ltd. & Ors. v. State of Maharashtra & Anr.(Supra), the order of summoning is not an interlocutory order, therefore, the present revision petition was maintainable.
11. He has further argued that various vague pleas/averments have been mentioned by the complainant in his complaint and he was not even sure about the incidents mentioned in the said complaint and the said averments were self contradictory, as complainant has mentioned different incidents in his complaint, whereas in his evidence, he has stated totally different version, which shows that the evidence lead by the complainant on the record was an after thought, and he had also argued that this plea of the Ld. Defence counsel that the complaint has been drafted by the complainant himself was not legally sustainable, as the complaint has been drafted through an Advocate which is apparent from the mere reading of the complaint as a whole.
12. He has also argued that in view of the later judgment of the CR No. 23/09 P.S. Sultan Puri 11 Hon'ble Supreme Court in (1998) 5 SCC 749 Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.(Supra), the Ld. Trial Court should have carefully scrutinized the evidence brought on the record and the Ld. M.M. had to reflect in his order that he had applied his mind to the allegations made in the complaint and the order of summoning the accused in a criminal cases, was a serious matter which can not be taken lightly. He has also argued that the present complaint is, as a result of vendetta launched by the accused to harass the police officials, who were doing their duties diligently and the process in this case had been issued by the Ld. M.M. in a mechanical manner, which is reflected from the impugned order dt. 20.9.08. Therefore, he has prayed that the revision petition is liable to be set aside.
13. On the other hand Ld. Counsel for the respondent/complainant has argued that the said order of summoning dt. 20.9.08 was an interlocutory order, therefore, the present revision petition was not maintainable. In view of the judgment relied upon by him 1994 CR No. 23/09 P.S. Sultan Puri 12 Cri.L.J 67 Allahabad, Kailash Chaudhari and others v. State of U.P and another(Supra). He has also argued that at this stage the revisional court has very limited jurisdiction and this court can not discuss about the merits and de-merits of the case, in view of the judgment 2006 Crl. L.J. 1961 (Patna High Court) Shruti Enterprises Lt.d. V. State of Bihar & Ors.(Supra), and he has further argued that the defence plea of the accused persons in the present revision petition cannot be looked into and he has also relied upon various judgments on the sanction part, and he has argued that the acts of the accused persons does not fall in the discharge of their official duties, as police officials, as there was no reasonable nexus between the acts of atrocities complained of against the accused persons and discharge of their official duties.
14. I have gone through the rival contentions and have perused the record.
15. Regarding the first argument of Ld. Counsel for the respondent, that the present revision petition was maintainable, in view of the CR No. 23/09 P.S. Sultan Puri 13 judgment (2009) 2 SCC 370 Dhariwal Tobacco Products Ltd. & Ors. v. State of Maharashtra & Anr.(supra), relied upon by the Ld. Counsel for the revisionists, wherein it has been held that the order of summoning by issuance of summon is not an interlocutory order within the meaning of Section 397 of the Code. In view of the said judgment of Hon'ble Supreme Court which lays down the latest law, on the said point, the argument to the contrary of the Ld. Counsel for the complainant/respondent is not tenable.
16. The Ld. Counsel for revisionists has relied upon various judgments namely (2006) 1 SCC 557 Rakesh Kumar v. State of Bihar & Ors., 1986) 1 SCC 410 Balbir Singh v. D.N. Kadian M.M.Delhi & Anr., on the point that, where there is reasonable nexus between the acts complained of and discharge of official duties of those public servants, then the bar/protection U/s 197 would be available to those public servants. He has relied upon para 10,11,12 & 13 of judgment Rakesh Kumar(Supra) in which it was held as under:
CR No. 23/09 P.S. Sultan Puri 14
10. Such being the nature of the provision the question is how should the expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understood? What does it mean? "Official" according to the dictionary, means pertaining to an offence, and "official act"
or "official duty" means an act or duty done by an officer in his official capacity. In B.Saha v. M.S. Kochar it was held:
17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official CR No. 23/09 P.S. Sultan Puri 15 duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision".
11. Use of the expression "official duty"
implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
12. It has been widened further by extending protection to even those acts or omissions which CR No. 23/09 P.S. Sultan Puri 16 are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wife construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed CR No. 23/09 P.S. Sultan Puri 17 so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in the discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bharti thus:
"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner, with the discharge of official duty....
There must be a reasonable connection between the act and the discharge of official duty; CR No. 23/09 P.S. Sultan Puri 18 the act must bear such relation to the duty that the accused could lay a reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
13. If on facts, therefore, it is primafacie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.
17. On the other hand Ld. Counsel for the respondent/complainant has also relied upon the judgments:
(2008) 1 Supreme Court Cases (Cri )502 State of Maharashtra v. Devahari Devasingh Pawar and Others(Supra) and 2001 Cri.L.J 3505 P.K. Pradhan v. The state of Sikkim(Supra) on the same point, but relying upon the said judgments, he has argued that the question, whether the alleged acts were done in discharge of the official duty, cannot be always decided as a preliminary issue and in case(s), where such question cannot be decided without CR No. 23/09 P.S. Sultan Puri 19 giving opportunity to defence to establish that act was done in discharge of his official duty. The question can be left open for decision on conclusion of trial. Therefore, he has argued that this question, if the arguments of the Ld. Counsel for the revisionists are taken as correct, can always be left after the parties have lead evidence before the trial court, at the time of conclusion of trial.
18. In view of the aforesaid settled law, laid down in the judgments relied upon by the Ld. Counsel for the revisionists and the Ld. Counsel for the respondent. At this stage, this court has only to see primafacie, that if there is a reasonable connection between the acts complained of against the aforesaid police officials, and discharge of their official duties. If primafacie it is found that the act or omissions for which they have been charged or summoned have reasonable connection with discharge on their official duty, then it must be held that Section 197 Cr.P.C and Section 140 of the D.P.Act are applicable, and therefore, the aforesaid revisionists would be having protection of those Section(s). CR No. 23/09 P.S. Sultan Puri 20
19. At the same time, if the revisionist(s) fail to primafacie satisfy so, then it cannot be said that there was any reasonable connection between the acts complained of, and discharge of their official duty. In the complaint filed before the Ld. Trial Court, and in the evidence of CW1 to CW4, the complainant/respondent has narrated various incidents of atrocities and attacks on his family by the police officials or at their behest and more specifically he has mentioned about the incident(s) dt. 3.6.03, 11.10.05, 27.8.04, 27.1.06, 12.12.07, 14.12.07 and 15.12.07 and finally that of 12.12.07, in various para's of his complaint, he has alleged that the aforesaid accused persons/police officials or at their instance, his family members were subjected to cruelty and atrocities.
20. Taking a primafacie view of the matter, the said acts, which have been mentioned in the complaint, and pre summoning evidence cannot be said to be having a reasonable connection between discharge of official duties of those police officials, as their official duty was to protect the ordinary citizen of the land from the CR No. 23/09 P.S. Sultan Puri 21 wrong doings or illegal acts of other persons and not to commit wrongful acts themselves, while exceeding their powers. Consequently, in the present case, it can not be said that there was any reasonable connection between the acts complained of, against the above arrayed police officials and the discharge of their official duties.
21. However, the ld. Counsel for the revisionists has also relied upon the judgment of the Hon'ble Supreme Court (1998) 5 SCC 749 Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. in para-28 of which, it has been held as under:
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to CR No. 23/09 P.S. Sultan Puri 22 examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is primafacie committed by all or any of the accused.
22. He has also relied upon the judgment AIR 1992(SC) 1815, Punjab National Bank and others v. Surendra Prasad Sinha, in which at para-5 it has been held as under:
It is also salutary to note that judicial process should not be an instrument of oppression of needless harassment. The complaint was laid CR No. 23/09 P.S. Sultan Puri 23 impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the justice person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of Majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.
Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta. CR No. 23/09 P.S. Sultan Puri 24
23. In view of the above judgments, relevant facts and circumstances must be considered, before issuing summons/process by the trial court and the process cannot be issued in a mechanical manner on the basis of complaint filed as vendetta to harass persons, nor the summons can be issued to the accused persons in a criminal case in a routine manner and the order of summoning by the Magistrate must reflect that he had applied his mind to the facts of the case and the law applicable thereto.
24. No doubt, the defence evidence can not be evaluated or appreciated at the stage of summoning of the accused persons, but at the same time in view of the aforesaid judgments of Hon'ble Supreme Court, the accused persons can not be summoned in a routine manner in a mechanical way for settling personal vendetta.
In the complaint filed before the Ld. Trial Court, there are consistent allegations made against the revisionist No.1 & 4 regarding the incident dt. 12.12.07 and 15.12.07, which fact has also been clearly CR No. 23/09 P.S. Sultan Puri 25 stated in the evidence of the witnesses lead by the complainant including himself. In this regard, complainant has examined himself as CW1, his son Tota Ram as CW2, his wife Smt. Vidya Devi as CW3 and his another son Yashpal as CW4, and he has also relied upon certain photographs showing the presence of Revisionist no.1&4 on the trial court record. Consequently, the order of summoning those revisionists i.e. Revisionist no.1 &4 can not be faulted as there were sufficient grounds for proceeding against the revisionist(s) no.1&4 namely W.H.C. Sudesh and W/Const. Sandhya by the trial court vide order dt. 20.9.08.
25. Regarding the revisionists no.2&3, in the complaint filed before the Ld. Trial court, the complainant has mentioned about two incidents against them, one dated 11.10.05 and another dated 27.1.06.
Regarding the incident dt.11.10.05, it is stated in para-2 of the complaint :
That SHO Sukhwinder Singh and his Rishi CR No. 23/09 P.S. Sultan Puri 26 beat constable made it police prestige that an "Poor, an weak person in finance had dared to protest against their (police) wishes. In their illegal object, they got fabricated two bogus FIR's against me, my family members in their defence after when they all got fractured the ribs my wife, my son, my self entering to my house and shop on 11.10.05 night intervening. Regarding all the brutal attacks by the SHO Sukhwinder Singh and above their trusted corrupt beat police officer (Rishi), I had sent numerous complaints, PCR complaints to higher authorities and ultimately on 27.8.04. I had to file the "criminal complaint case"
in the court of Sh. Manoj Nagpal, M.M.
26. However, the perusal of the evidence of CW1 Nahar Singh shows, that regarding the incident dt. 11.10.05, he has made allegations against the revisionists no.2&3 that he and his family members at the behest of revisionist no.3 were beaten up on 11.10.05 . From the perusal of the aforesaid averments mentioned in para-2 of the complaint, it is apparent that in para-2 he has made CR No. 23/09 P.S. Sultan Puri 27 allegations against one SHO Sukhvinder Singh, that he was instrumental in fabricating bogus FIR's against him and his family members, and he also got beaten up his wife, his son and himself by entering his shop on the night of 11.10.05 and regarding the said attacks by the said SHO Sukhvinder Singh he had already lodged complaint to higher authorities and he had also filed a criminal complaint against him in the court.
27. The very fact that the complainant/respondent has taken a totally contradictory stand in the pleadings and evidence, shows that the said allegations are an after thought. No reason has been given by the complainant, as to why the said averments regarding his alleged beating at the instance of respondent no.3 were not mentioned at the time of drafting of complaint or in the original complaint itself and the mentioning of the said fact in his evidence as CW1 and that of the evidence of other witnesses later on, shows that the said fact had been thought of later on.
28. The argument of ld. Counsel for the respondent that the CR No. 23/09 P.S. Sultan Puri 28 respondent/complainant was an illiterate person is not borne out by the record of this case, as the complaint filed before the Ld. Trial Court had been drafted in English and there are various voluminous documents appended therewith which are in Hindi, therefore, it can not be said by any stretch of imagination that the respondent was an illiterate person.
29. Regarding the incident dt. 27.1.06 the respondent has mentioned in para 3 at page-5 of the complaint that:
" On 27.1.06, at about 11.35-40AM from Jalebi chowk I was abducted by the police official, whose Incharge was SHO Mohd. Iqbal and Virendra Kumar Rathi Beat Constable, Constable Ravinder, Rajesh, ASI Ram Kumar in plain clothes in white Maruti Van No. DL2LV 6617 for encounter me in jungle of Mangol Puri. When I asked, and told them that I had already complained from complained to Crime and other Higher Official that you people will get him killed in encounter. Hearing all they left me to some police post Budh Vihar and shown CR No. 23/09 P.S. Sultan Puri 29 falsely my arrest in bogus case FIR No. 1579/05 U/s 353/186/308/332 IPC and produced in court."
30. Regarding the allegations about the incident dt. 27.1.06, no doubt the complainant has mentioned the said fact in his evidence as CW1, but at the same time, he has himself mentioned in his complaint in the said para 3, that he has already been facing trial in FIR No. 1579/05 U/s 186/353/308/332 IPC registered against him with regard to the said incident dated 11.10.05, the copy of which has been filed on the trial court record. Regarding the beating of one Prakash Kamal and his staff working in Ministry of Defence and Delhi civil defence services at Jalebi Chowk Sultan Puri, by the respondent and his family members Further other than statements of family members of the complainant, statement of no other independent witness has been recorded during pre-summoning evidence. Therefore, these allegations made by the complainant in the said complaint regarding the alleged incident dt. 27.1.06 and in his evidence as CW1 can at the most be, considered as his CR No. 23/09 P.S. Sultan Puri 30 defence in the said case, as in view of the judgments of Hon'ble Supreme Court in (1998) 5 SCC 749 Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. (Supra) and AIR 1992(SC) 1815, Punjab National Bank and others v. Surendra Prasad Sinha,(Supra), the accused persons cannot be summoned in a routine manner nor the process for summoning the accused persons can be issued in a mechanical manner on the basis of complaint filed as Vendetta to harass them and the Ld. M.M. had to carefully scrutinize the evidence to find out the truthfulness of the allegations or otherwise and then had to examine, if any offence was primafacie committed by the accused persons. Since, the allegations made regarding the incident dt. 27.1.06 can at the most be considered as defence of accused, in the said case in which he is already facing trial, consequently, the order of summoning against the revisionist(s) no.2&3 on the basis of said incident dt. 27.1.06 regarding which the accused was already facing a trial in a competent court of law, can not be made a basis or tool to harass CR No. 23/09 P.S. Sultan Puri 31 diligent police officials at the hands of meddlesome complainant.
31. The Ld. M.M. did not at all seems to have considered the aforesaid facts/aspects at the time of passing the impugned order dt. 20.9.08 for summoning Revisionist(s) No.2&3, which seems to have been passed in a mechanical manner, without application of mind in a most perfunct manner. Contrary to the law laid down in afore judgments of Hon'ble Supreme Court in Pepsi Foods Ltd.(Supra) and Punjab National Bank(Supra).
32. Consequently, there were no sufficient grounds to proceed against the revisionist(s) no.2&3 vide order dt. 20.9.08 U/s 452/109/323/341/307/363/365/120B/506 Part I/193/195/217/218/ 219/221 IPC. Consequently, order of summoning against revisionist(s) No.2&3 is hereby set-aside.
33. Net result of above discussion is that the present revision stands partly allowed, as order of summoning dt. 20.9.08, summoning revisionist(s) no. 2&3 is hereby set aside, whereas order of summoning revisionist(s) no. 1&4 is up held. Revision CR No. 23/09 P.S. Sultan Puri 32 petition stands disposed off accordingly.
TCR be sent back with the copy of this order. File be consigned to record room.
Nothing expressed herein above shall tantamount, to expression on the merits of the case, during the trial.
Announced in the open court (Sanjeev Aggarwal)
on dt. 5.6.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
CR No. 23/09 P.S. Sultan Puri