Delhi District Court
Sanjiv Kumar Vashist vs ) The State Nct Of Delhi on 1 May, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. REVISION No. 398 of 2019
CNR No. : DLST01-007221-2019
SANJIV KUMAR VASHIST
S/O LATE SHRI B.S. VASHIST
R/O H. NO. 362, CHIRAG DELHI,
NEW DELHI. .........REVISIONIST
VERSUS
1) THE STATE NCT OF DELHI
THROUGH PUBLIC PROSECUTOR
2) SURENDER SINGH SEHRAWAT
S/O SHRI BHAGWAN,
R/O 425-A, CHIRAG DELHI,
NEW DELHI. ........ RESPONDENTS
DATE OF INSTITUTION : 31.08.2019
ARGUMENTS HEARD ON : 24.04.2023
DATE OF JUDGMENT : 01.05.2023
JUDGMENT
1. This is a revision petition filed against order dated 28.05.2019 passed by the Ld. Trial Court whereby it took cognizance against the accused persons for an offence punishable under Section-384/34 IPC.
RAKESH KUMAR 2. It seems that one Surender Singh Sehrawat wanted to SINGH claim that he was threatened by some persons including one Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.01 Sanjiv Kumar to the effect if he was to build anything in Chirag 17:27:39 +0530 Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 1 of 8 Delhi, he could do so only with the permission of the said Sanjiv Kumar for which some money was required. The modus operandi complained by the complainant is that Sanjiv Kumar being a practicing advocate used to threaten the residents that they would be entangled in legal web if they do not comply with his demand. Allegedly this person used to file cases against any person who wanted to build or repair their house and used to take money for withdrawal of such cases. The complainant alleged that there were other persons involved whose names were being used by this Sanjiv Kumar as petitioners in those cases.
3. The complainant alleges that he was also a victim of modus operandi of this Sanjiv Kumar. He has given the timing of incident as somewhere in the year 2012. The FIR was registered in the year 2016 and charge-sheet was filed in the year 2019. Cognizance was taken in the year 2019. The entire revision petition revolves around a technical plea that the cognizance was taken by the Ld. Magistrate after due delay which was not permissible.
4. During the proceeding in this revision petition, the original complainant had put appearance and had indicated that State APP would also be arguing on his behalf. Accordingly, Ld. APP for the State and the revisionist have been heard in this case.
5. The allegations of the complainant and charge-sheet filed RAKESH KUMAR by the police indicate that the offence invoked was extortion. SINGH Even the charge-sheet has been specific to the effect that the Digitally signed by RAKESH KUMAR SINGH same was filed for Section-384/34 IPC. In such circumstances, Date: 2023.05.01 17:28:00 +0530 Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 2 of 8 there cannot be any escape from the conclusion that the case pertains to the offence of extortion. Even the Ld. Trial Court took cognizance under Section-384/34 IPC. Following observation of the Ld. Trial Court is re-produced:-
"Accused Sanjeev Kumar Vashisht (on anticipatory bail), Sunil (chargesheeted without arrest), Kundan Singh (charge-sheeted without arrest), Jaggi (suspected accused on anticipatory bail). IO Krishan Kumar in person. I have gone through the challan u/s 173 Cr.P.C and statements and documents annexed alongwith it. Perusal of the same reveals that the allegations leveled against the accused person and the material on record is prima facie sufficient to proceed with the case. Accordingly, I take cognizance of the offence as per Section 190 of Cr.P.C for offences u/s 384/34 IPC".
6. From the aforesaid, it becomes clear that everyone was certain about Section-384 IPC. No other offence was invoked either by the police or by the Ld. Magistrate. Therefore, we have to consider the entire scenario only from the perspective of Section-384 IPC. Now, this offence is punishable with an imprisonment up to 3 years. The issue to be decided is as to whether the Ld. Magistrate took cognizance within the time limit or not.
7. Section-468 Cr.P.C provides a 3 years limitation period for offences punishable up to 3 years imprisonment. In the present RAKESH case, the claim of the complainant about occurrence of event KUMAR SINGH pertains to some stretched period in the year 2012. However, the Digitally signed by RAKESH KUMAR SINGH complainant approached the police in the year 2016. The police Date: 2023.05.01 17:28:12 +0530 Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 3 of 8 registered the FIR on 29.04.2016. Section-469 provides for starting point of limitation period i.e. date of offence. Though there are other modalities given in the said provision but the same are not applicable to the present facts as the occurrence of event and name of accused were all within the knowledge of the complainant from the first day. In this manner, even the first information report was lodged much beyond the period of 3 years.
8. However, even if we were to take the filing of charge-sheet for counting of limitation, we would find that the same is still belated. The FIR was registered on 29.4.2016. The charge-sheet was finally singed by the ACP of the area on 27.05.2019 and the charge-sheet was filed before the concerned Magistrate on 28.05.2019. The Ld. Magistrate took cognizance on 28.05.2019 itself and therefore, we are not required to go into the several judgments on the issue as to whether limitation is to be considered on the day of cognizance or day of institution of proceeding. Since both the events (i.e. filing of charge-sheet and taking of cognizance) occurred on the same day, we will take 28.05.2019 as the consideration point of limitation. The FIR was since lodged on 29.04.2016, the consideration point was clearly beyond the prescribed 3 years period of limitation.
9. Article-21 of the Constitution envisages that life and liberty of any person shall not be disturbed unless there is a RAKESH KUMAR prescribed law. The prescribed law here is Section-468 Cr.P.C SINGH Digitally signed by RAKESH KUMAR which prohibits the Magistrate from taking cognizance of SINGH Date: 2023.05.01 17:28:27 +0530 Section-384 IPC beyond 3 years period. The Ld. Magistrate Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 4 of 8 having taken the cognizance has clearly contravened the fundamental right available under Article-21. This cannot be allowed to continue.
10. Ld. Addl. P.P. however, argued that there was some allegations in the complaint and charge-sheet regarding forgery which would have been punishable with more than 3 years imprisonment taking the case beyond the theory of limitation. I have considered this submission but I am unable to find any justification for the same. The police filed the charge-sheet specifically for an offence under Section-384/34 IPC. The Ld. Magistrate took cognizance specifically for Section-384/34 IPC. Sitting in revisional jurisdiction, I cannot go beyond the Ld. Magistrate and justify the order by assuming that some other offence might have been committed. I do not want to comment on merits of the allegations but to complete the narration, I note that the allegations regarding alleged forgery is in respect of a writ petition filed by one Poonam through the Counsel Sanjiv Kumar and the allegation is that the said Poonam claimed to have never filed any such petition and therefore, Sanjiv Kumar should be treated as having forged her signature on writ petition and vakalatnama. Apparently the said writ petition did not concern the complainant Surender Singh Sehrawat. The Hon'ble High Court apparently never lodged any complaint. Even the said Poonam had not initiated any criminal action against the said RAKESH Sanjiv Kumar. Whether in such circumstances, any offence of KUMAR SINGH forgery could have been made out or not basically remains an Digitally signed by RAKESH KUMAR academic question and there is no necessity to comment on the SINGH Date: 2023.05.01 17:28:38 +0530 same at this stage.
Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 5 of 811. It is therefore, clear that when the charge-sheet was filed (or for that matter, Ld. Trial Court took cognizance of Section- 384/34 IPC), the matter was beyond the 3 years limitation period. The order dated 28.05.2019 is therefore, liable to be set aside. At the same time, the right of State to prosecute an offender should not be easily discontinued. It is for this reason, the Parliament chosen to enact Section-473 Cr.P.C. This provision authorizes the Magistrate to take cognizance even beyond the period of prescribed limitation. But for the said provision to be invoked, the delay has to be justified. Unfortunately, the charge-sheet does not contain any reason for delay. Further, no application was filed before the Ld. Trial Court to explain the delay. As such, the Ld. Magistrate was not having the benefit of proper explanation from the side of prosecution. I am of the opinion that the Ld. Magistrate should be allowed to have his say after considering the matter in its entirety and for this, the prosecution side should come up with an explanatory detail before the Ld. Magistrate.
12. With the aforesaid in mind, following directions are passed:-
• If advised, the prosecution(in consultation with Delhi Police) may file an application for condonation of delay/extension of limitation period under relevant provisions of law including Section-473 Cr.P.C.
RAKESH • If such an application is filed, the Ld. Magistrate shall KUMAR SINGH issue a notice to the proposed accused person(s).Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.01 17:28:53 +0530 Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 6 of 8
• The proposed accused person(s) shall be entitled to be heard on the point of condonation of delay in terms of the judgments of Hon'ble Supreme Court in State of Maharashtra vs Sharadchandra Vinayak Dongre (1995) 1 SCC 42 and of Hon'ble High Court of Delhi in Prashant Goel vs State 2008 (1) KLJ 904 and Manoj Kumar vs State CRL. M.C. 364/2009 dated 5 May, 2009.
• It is clarified that before summoning, the proposed accused person(s) shall not have any right except hearing on the condonation of delay.
• The Ld. Magistrate shall dispose of such application and take a conscious decision as to whether he condones the delay or not.
• If he condones the delay, he shall be entitled to consider the matter on merits for further proceeding. It is clarified that at that stage, proposed accused persons will have no role to play until they are summoned and therefore, for the purpose of summoning, the proposed accused persons shall not be heard.
• It is further clarified that Ld. MM shall not be influenced by any observation made in the present Judgment while RAKESH taking decision for summoning, if the need arises. He shall KUMAR SINGH be at liberty to take cognizance of such offence(s) as may Digitally signed by RAKESH KUMAR SINGH be made out on basis of available material or he shall also Date: 2023.05.01 17:29:03 +0530 Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 7 of 8 be at liberty to direct further investigation, if the circumstances so require.
13. The present revision petition is partly allowed, order dated 28.05.2019 is set aside and matter is remanded to the Ld. Trial Court for fresh consideration on the aforesaid lines.
14. TCR alongwith copy of this judgment be sent to the Trial Court.
15. The revision file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 01stDAY OF MAY, 2023 RAKESH Digitally by RAKESH signed KUMAR KUMAR SINGH Date: 2023.05.01 SINGH 17:29:15 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI Cr Rev No. 398/2019 Sanjiv Kumar Vashist vs State Page 8 of 8