Delhi District Court
Pradeep Kumar Bansal vs The State on 9 January, 2013
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Criminal Revision No. 210/12
Computer ID No. 02406R0308872012
Pradeep Kumar Bansal
S/o Late Sh B.B. Bansal,
R/o E348A, Greater Kailash1,
New Delhi 110048
........ Revisionist/accused
Versus
The State
......Respondent
O R D E R
1. Vide present revision petition, revisionist Pradeep Kumar Bansal has challenged the impugned order dated 06.11.2012 passed by Ld. Metropolitan Magistrate dismissing his application u/s. 256 Cr.P.C.
2. Prosecution case in brief is that on 23.05.2010, one Kalpana Bhattacharya who is assistant teacher in MCD primary school, Kailash Colony, went to house of the accused persons viz., Pradeep Bansal and Vijay Bansal on official duty for census work where both the accused assaulted her and obstructed her in performing her official duty. Prosecution after completion Pradeep Kumar Bansal Vs. State, CR No. 210/12 (pg no. 1 of 5) of investigation filed the chargesheet against the accused persons u/s. 186/353/332/509/34 IPC. A complaint u/s 195 Cr.P.C. was also filed by Assistant Education Officer and the said complaint was referred to concerned court by Addl. CMM, South East District vide order dated 12.10.2010.
3. Concerned Ld. Metropolitan Magistrate vide order dated 01.12.2010 after considering chargesheet and complaint u/s 195 Cr.P.C took cognizance of offence u/s 186 IPC, pursuant to which accused persons were summoned. During the proceedings accused moved an application u/s. 256 Cr.P.C. Vide impugned order dated 06.11.2012, Ld. trial court dismissed the said application. It is observed by ld. trial court in the said order that the cognizance was taken vide order dated 01.12.2010 impliedly under all the sections as mentioned in the chargesheet i.e, u/s. 186/353/332/509/34 IPC and found that offence u/s. 332 IPC is warrant triable case, thus section 256 Cr.P.C. is not applicable to the facts of present case, therefore, dismissed the said application.
4. Ld. counsel for the revisionist submits that vide order dated 01.12.2012 the cognizance was taken by the Ld. Metropolitan Magistrate only for commission of offence u/s. 186 IPC and there cannot be any implied cognizance for other offences and offence u/s. 186 Cr.P.C. is non cognizable offence and summon trial case, therefore, liable to be dismissed because of non appearance of the complainant. Ld counsel further submitted that the complaint u/s. 195 Cr.P.C. was illegally and unauthorizedly removed from the possession of court on 2.10.2010 and Pradeep Kumar Bansal Vs. State, CR No. 210/12 (pg no. 2 of 5) remained in illegal and custody of the police officials without any authority and prayed for setting aside impugned order.
5. Ld. Addl.P.P. submits that vide order dated, Ld. MM after filing of chargesheet and complaint u/s 195 Cr.P.C took cognizance only of offence u/s. 186 Cr.P.C., though chargesheet discloses offences u/s. 186/353/322/509/34 IPC. Ld. Addl. P.P. submits that due to oversight inadvertently Ld. MM could not take cognizance in other offences and this is mere irregularity committed by Ld. MM and it is curable and requested the matter be sent back to Ld. MM for taking fresh cognizance. However, Ld. counsel for the accused opposed and stated that this is not a curable irregularity and and the case cannot be remanded back.
6. Ld. counsel for the revisionist today at around 1 pm also filed certain judgments of apex courts and other High Courts. Ld. Counsel relied upon the judgment of "Nazir Ahmad Vs. King Emperor, AIR 1936 Privy Council 253(2)", "State of Uttar Pradesh Vs. Singhara Singh and others, AIR 1964 Supreme Court 358" and Shanti Dhawan Vs. Life Insurance Corporation of India, 1997 IV AD (Delhi) 467", for the proposition that the court has to exercise judicial powers in a manner provided by the procedure and other methods of performance are necessarily forbidden. Ld. Counsel also relied upon the judgments, "1984 Crl.L.J 1897 (1899) / 1984 Ker. L T 859", "1978 All. Crl. C 18 (19)" and "AIR 1956 Ajmer 21(22)/ 1956 Crl. L J 165" for the proposition that police report in non cognizable is in nature of complaint, therefore, presence of complainant is required and accused is Pradeep Kumar Bansal Vs. State, CR No. 210/12 (pg no. 3 of 5) liable to be acquitted in case of non appearance of the complainant.
7. Arguments heard. Record perused.
8. As per the prosecution case, the revisionist alongwith accused Vijay Kumar Bansal were chargesheeted by police for commission of offence u/s 186/353/332/509/34 IPC and a complaint u/s 195 Cr.P.C was also filed by appropriate authority which was sent to concerned MM however, Ld. Metropolitan Magistrate vide order dated 01.12.2012 took cognizance for commission of offence u/s 186 IPC only and pursuant to this summoned the accused persons. The Ld. Addl. PP argument that due to oversight Ld. MM could not summon the accused persons in other relevant sections appears worth considering because in that order Ld. MM has not given any reason why he was not summoning the accused persons in other sections of law as mentioned in the chargesheet. Vide impugned order Ld. MM submits that the court took cognizance impliedly in other sections besides section 186 IPC do not hold good. There is no provision of any implied cognizance in Cr.P.C. In view thereof, impugned order set aside. However, in facts and circumstances, the present matter be remanded back to the trial court to pass fresh order on cognizance and to proceed further in accordance to law.
9. There is no dispute to the propositions laid in judgments as relied by Ld. Counsel for revisionist, however, these judgments do not preclude this court in present facts and circumstances to remand back the matter to the trial court to pass the order on cognizance afresh. It is clarified that Ld. Trial court shall pass the said order uninfluenced by any of the Pradeep Kumar Bansal Vs. State, CR No. 210/12 (pg no. 4 of 5) observations made in the present order. Revision petition disposed off accordingly. Copy of this order alongwith TCR be sent back to trial court forthwith. File be consigned to Record Room after due compliance.
Announced in Open Court
On 09th January 2013 (AJAY KUMAR JAIN)
ASJ03: SE: NEW DELHI
Pradeep Kumar Bansal Vs. State, CR No. 210/12 (pg no. 5 of 5)