Delhi District Court
Ashok Kapoor vs State Nct Of Delhi on 23 April, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 180 of 2019
Ashok Kapoor
S/o Late Sh. Sardari Lal Kapoor
R/o Flat No. 570, PocketE,
Mayur Vihar, Phase2,
Patparganj, New Delhi 91 ..........Revisionist
Vs.
1. State NCT of Delhi
Through its Addl. Public Prosecutor
Department of Prosecution
District Courts Saket
Delhi - 110017
2. Bed Nath Mishra
S/o Sh. Tara Nand Mishra
R/o H. No. D366, West Vinod Nagar,
New Delhi 110092 ..........Respondents
Instituted on : 18.03.2019
Argued on : 09.04.2019
Decided on : 23.04.2019
AND
CR No. 181 of 2019
Ashok Kapoor
S/o Late Sh. Sardari Lal Kapoor
R/o Flat No. 570, PocketE,
Mayur Vihar, Phase2,
Patparganj, New Delhi 91 ..........Revisionist
Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 1/7
Vs.
1. State NCT of Delhi
Through its Addl. Public Prosecutor
Department of Prosecution
District Courts Saket
Delhi - 110017
2. Bed Nath Mishra
S/o Sh. Tara Nand Mishra
R/o H. No. D366, West Vinod Nagar,
New Delhi 110092 ..........Respondents
Instituted on : 18.03.2019
Argued on : 09.04.2019
Decided on : 23.04.2019
ORDER
1 The order shall dispose of two revision petitions filed by the petitioner against the issuance of show cause notices u/s 344 & 250 Cr.PC and taking cognizance u/s 191 r/w 193 & 211 IPC against him while passing the judgment dated 02.02.2019.
2 The facts are common in both the revision petitions which are like this. The petitioner has filed the revision with the allegations that Ld. MM has failed to take into account the principles for initiating the proceedings u/s 344 Cr.PC. The statement u/s 161 Cr.PC as well as written Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 2/7 complaint is not made on oath and any contradiction with these statements does not come within the ambit of perjury. Statement u/s 161 Cr.PC is not an evidence and Section 162 Cr.PC prohibits the use of said unsigned statement for any purpose during the inquiry or trial except for the purpose of contradicting the witness. Contradictions in the statement do not attract perjury. There has to be ample material to show that witness has knowingly given the false statement. Ld. MM has wrongly appreciated the fact that petitioner was not hurt on his right hand simply because MLC did not say so. MLC clearly shows that petitioner has been injured with a sharp object and there was no reason to disbelieve his version. His version was disbelieved without visualizing the different probabilities. Ld. MM has failed to believe that respondent no. 2 could not have waited in the car on the instructions of passersby. Ld. MM has initiated proceedings u/s 344 Cr.PC because it is observed that petitioner has some connection in the corridors of power and respondent no. 2 is a poor driver and entire criminal justice system has been put to ransom. A grave error has been caused by also taking cognizance u/s 191, 193 & 211 IPC. Ld. MM has swayed by the financial status of the respondent no. 2 while issuing the notice u/s 250 Cr.PC without considering Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 3/7 the entire facts.
3 The notice of the revision petitions has been given to the respondents.
4 Ld. Counsel for the petitioner submitted that statement u/s 161 Cr.PC and written complaint of the petitioner are not recorded on oath. He further submitted that any contradiction during the course of recording the testimony of the petitioner from these statements cannot form the basis for issuance of notice of committing perjury. He further submitted that testimony of the petitioner was not properly appreciated and contradictions have been terms as false evidence. He further submitted that Court at the same time cannot issue notices u/s 344 Cr.PC & 250 Cr.PC and take cognizance u/s 191, 193 & 211 IPC.
5 Ld. Addl. PP for the State submitted that Ld. Trial Court has rightly passed the order.
6 Ld. Counsel for the respondent no. 2 submitted that Ld. MM has properly appreciated the evidence on record. He further submitted that the Court has to issue notice either u/s 344 Cr.PC or to initiate proceedings u/s 340 Cr.PC.
Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 4/7 7 Heard and perused the record.
8 A bare perusal of the record shows that FIR No. 97/2016 PS, Sunlight Colony was registered on the complaint of petitioner. The charge sheet was filed against the respondent no. 2. The prosecution has led the evidence and examined respondent no. 2 as one of the witnesses. Ld. Trial Court after hearing the Ld. APP for the State, Ld. Defence Counsel and evidence on record has acquitted the respondent no. 2. Ld. Trial Court has taken the cognizance u/s 191 r/w Section 193 & 211 IPC. The notice u/s 344 Cr.PC and 250 Cr.PC have also been issued.
9 Section 193 IPC comes under Chapter 11 of IPC. Section 195 Cr.PC says that no court shall be take cognizance u/s 193 & 211 IPC except on a complaint in writing by the Court qua which offence was committed. Section 193 IPC is to be tried as a warrant case as charge has to be framed. 10 The inquiry u/s 340 Cr.PC is required before filing a complaint u/s 195 Cr.PC. The inquiry u/s 340 Cr.PC is required to proceed u/s 193 IPC. 11 The summary procedure is adopted while proceeding u/s 344 Cr.PC. This section also prescribes punishment.
Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 5/7 12 The proceedings u/s 340 Cr.PC and 344 Cr.PC cannot go hand in hand. Support is drawn from Criminal Misc. Petition No. 5750/2017 tittled as Kavita Sharma Vs. State of Rajasthan decided on 10.05.2018 by Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia of Hon'ble High Court of Judicature for Rajasthan, Bench at Jaipur. The court cannot invoke Section 344 Cr.PC as well as take cognizance u/s 191, 193 & 211 IPC at the same time. The court has to see whether notice u/s 250 Cr.PC needs to be issued once section 340 Cr.PC or 344 Cr.PC is invoked.
13 I find an infirmity in the direction for issuing the show cause notices u/s 344 Cr.PC & 250 Cr.PC and taking cognizance u/s 191 IPC r/w Section 193 & 211 IPC while passing the judgment dated 02.02.2019. 14 The cognizance of taking offences u/s 191, 193, 211 IPC and issuance of show cause notices u/s 344 Cr.PC & 250 Cr.PC are set aside. The matter is remanded back to Ld. Trial Court to proceed afresh against the petitioner in accordance with law.
15 Both the revision petitions are accordingly disposed of. 16 TCR alongwith copy of this order be sent back to the Ld. Trial Court.
Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 6/7 17 Copy of this order be placed in Revision Petition No. 181 of 2019.
18 Revision file be consigned to record room.
Announced in the
open court on
23rd April 2019 (SURESH KUMAR GUPTA)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Ashok Kapoor Vs. State & Ors. - CR Nos. 180 of 2019 & 181 of 2019 7/7