Delhi District Court
Sh. Naveen Kumar Jain vs Sh. Amit Chauhan on 25 May, 2017
IN THE COURT OF SH. CHANDRA SHEKHAR, ASJ02 (CENTRAL),
TIS HAZARI COURTS, DELHI
Criminal Revision No. 58691/2016
CNR No. DLCT010183652016
In the matter of:
Sh. Naveen Kumar Jain
S/o Sh. Prem Chand Jain
R/o 2679,Ground Floor,
Roshan Pura, Nai Sarak, Delhi110006.
....... Revisionist
VERSUS:
Sh. Amit Chauhan
S/o Sh. Kulwant Chauhan
R/o 296, Katra Sujan Rai,
Delhi Gate, New Delhi110002.
.......... Respondent
Date of Institution : 26.12.2016
Date of reserving judgment : 25.05.2017
Date of pronouncement : 25.05.2017
Page 1 to 5
JUDGMENT:
The present revision is directed against the order dated 24.11.2016 passed by Ms. Rashmi Gupta, Ld. MM, Tis Hazari Courts, Delhi vide which, Ld. MM had dismissed the application u/s 155 (4) Cr.P.C. and application seeking preserving of call records of the mobile phone of wife of the revisionist and the respondent for the last one year, filed by the revisionist.
2. In brief, the facts are that the revisionist had filed a complaint case Cri. Rev. No. 58691 Naveen Kr. Jain v. Amit Chauhan Page No. 1 of 5 against the respondent alleging the intimate relationship between his wife Ms. Renu Jain and the respondent Amit Chauhan and commission of offence u/s 497 IPC against the respondent. The aforesaid applications were moved during hearing of the aforesaid complaint case by the revisionist before the concerned Ld. MM.
3. The revision has been preferred on the grounds that Ld. MM did not assign any reason for dismissing the aforesaid applications. Ld. MM did not realize that the telephonic records are crucial and service providers usually do not preserve the records beyond the particular period and if direction to preserve the said record is not given at the earliest, same will deprive of the revisionist to prove the allegations made by him against the respondent; producing of call record and proving of conversation between the wife of revisionist and the respondent, is not within the exclusive control of the revisionist. The aforesaid impugned order is passed on assumptions and presumptions only and hence, is liable to be modified. The impugned order has been passed summarily without foreseeing its effect on the revisionist and his children.
4. I have heard the submissions of Ld. Counsel for the revisionist and Ld. Counsel for the respondent on the aforesaid revision.
5. Ld. Counsel for the revisionist, during course of arguments, submitted on 12.04.2007 that he was not pressing the revision against the order on application u/s 155 (4) Cr.P.C. therefore, revision qua order on the aforesaid application was dismissed as withdrawn and disposed of accordingly.
Ld. Counsel for the revisionist has argued that preserving of data/call records/conversation between wife of the revisionist and respondent Cri. Rev. No. 58691 Naveen Kr. Jain v. Amit Chauhan Page No. 2 of 5 over the last one year, is most important to prove allegations against the respondent therefore, direction may be given to the concerned service provider at the earliest, at this stage only, otherwise, the data shall not be protected by the service provider and revisionist will not be able to prove the allegations made by him against the respondent.
6. Ld. Counsel for the respondent has submitted that allowing the revision and request of revisionist to preserve and produce the call records and conversation between the wife of revisionist and the respondent, shall be violative of the right to privacy of the wife of revisionist as well as of the respondent. Hence, the revision may not be allowed. To support his submissions, Ld. Counsel for the respondent has relied upon the case law titled as " Rayala M. Bhuvaneswari v. Nagaphanender Rayala" decided on 20 December, 2007 by the Hon'ble Andhra High Court.
7. I have considered the submissions of both the Ld. respective Counsels for the parties and perused the record.
A perusal of record reflected that the revisionist has not made allegations of commission of offence u/s 497 IPC against the respondent in the complaint filed by him before the Ld. MM though a request has been made by him in the complaint to take cognizance of the offence therefore, an opportunity was given to Ld. Counsel for the revisionist to address arguments and show under which particular paras of the complaint, the revisionist has made allegations of commission of offence u/s 497 IPC against the respondent.
8. Today Ld. Counsel for the revisionist has submitted that in para no. XV, XVII, XXI & XXIII the revisionist has made allegations against the Cri. Rev. No. 58691 Naveen Kr. Jain v. Amit Chauhan Page No. 3 of 5 respondent reflecting that respondent has committed the offence u/s 497 IPC against the revisionist involving wife of the revisionist.
9. I have perused the aforesaid paras of complaint. It is observed that to prove offence u/s 497 IPC, there must be such circumstances and such allegations that would lead guarded discretion of a reasonable man and just mind to the conclusion that there exists or there existed such sexual relationship between the respondent and the wife of the revisionist, which is punishable u/s 497 IPC.
A perusal of complaint annexed with the revision does not show that revisionist has made such allegation of sexual intercourse between his wife and the respondent anywhere in the complaint. When there is no such allegation made by the revisionist, no such inference prima facie, can be drawn by the court against the respondent. Therefore, it seems that cognizance of the offence u/s 497 IPC taken by the Ld. MM is not proper in the present case.
It is observed that u/s 397 Cr.P.C. a Revisional Court may call or examine any proceeding of any inferior criminal court within his or its local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court.
In the present case, it is an admitted fact that complaint u/s 200 Cr.P.C. has been filed by the revisionist for commission of offence u/s 497 Cr.P.C. Ld. concerned Magistrate has taken cognizance of the same. The revisionist has not got recorded his statement on oath so far. Therefore, summoning of the trial court record is not required as the copy of said complaint and copy of relevant record have already been annexed by the revisionist along with the present revision.
Cri. Rev. No. 58691 Naveen Kr. Jain v. Amit Chauhan Page No. 4 of 5 It is significant that for taking cognizance of any offence, there must be clearcut allegations for commission of that offence covering all its ingredients in the complaint. At least from the circumstances stated in the complaint, the commission of alleged offence must be clearly reflected. There must not be any ambiguity in making allegations. It seems that in the present case, there are no such allegations for commission of offence u/s 497 IPC as it has not been mentioned by the revisionist that respondent committed sexual intercourse with his wife. From the circumstances disclosed in the complaint, no such inference prima facie, can be drawn. Mere mentioning of section 497 IPC in the title of the complaint, is not sufficient. Therefore, it seems that the complaint itself is not maintainable and as the complaint itself is not maintainable, therefore the application seeking preserving of call record of mobile phone of wife of revisionist and respondent over the last one year, is also not maintainable.
Hence, the present revision is dismissed and the complaint filed by the revisionist u/s 497 IPC is also dismissed. Copy of the order be sent to the concerned Ld. MM for compliance. The revision is decided and disposed of accordingly.
ANNOUNCED IN THE OPEN (CHANDRA SHEKHAR)
th
COURT ON 25 May, 2017 ASJ02 (Central)/THC/Delhi
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