Delhi District Court
Kashmeri Lal Katyal vs State on 22 August, 2009
1
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
KARKARDOOMA: DELHI
Case I.D.Number 02402R0179132009
02402R0179122009
Crl. Revision Nos. 63/09 & 64/09
Date of institution 01/07/09
Order reserved on 22.8.09
Date of order 22.8.09
IN THE MATTER OF:
Kashmeri Lal Katyal
s/o Sh.Devi Dayal Katyal
r/o 12, Baldev Park,Parwana Road
Delhi-110051. ..........Revisionist
Versus
State ...........Respondent
ORDER
22.8.09 Present: Sh.G.D.Gandhi Ld.counsel for the revisionist.
Sh.Taufiq Ahmed Ld.Additional PP.
These two revisions are directed against the order dated 22.4.09 passed by ld.ACMM vide which two complaints filed by the revisionist have been dismissed. Both the revisions raise similar questions of fact and law. Therefore they have been taken up together. I have heard ld.counsel for the revisionist and Ld.Additional PP , heard the submissions made at bar and perused the impugned order.
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Sh. G.D.Gandhi ld.counsel for the revisionist submits that ACMM has dismissed the complaint on the ground of maintainability being barred by section 195 Cr.P.C. It is submitted that the bar of section 195 applied only where some judicial proceedings have taken place on the complaint of the opposite party. But in the present case only order which was passed was in u/s 156(3) Cr.P.C. It does not amount to taking of cognizance. It is submitted that trial court had not taken cognizance on the date of filing of these complaints. Ld.Defence counsel referred Jamuna Singh and others vs Bhadai Sah 1964(5) SCR 37 to show that court takes cognizance only when court passes order. Ld. counsel for revisionist submits that in M.L.Sethi vs R.P.Kapur it was held that judicial proceedings took place only after the filing of charge sheet. He referred 1990(SCC) 121 Krishna Pillai vs T.A.Rajendran in which it was held that the court takes cognizance only when it issues process against the accused. Ld.counsel for revisionist referred Daulat Ram vs Rajinder Motwani 1993(1) CCCases 97 (HC) to show that meaning of cognizance is only when he issues process until that step is reached no judicial proceeding take place.
In A.R.Antulay vs Ramdas Sriniwas Nayak and another 3 (1984) 2 SCC 500 it was held'' when a private complaint is filed the court has to examine the complainant on oath save in the cases set out in the proviso to section 200Cr.P.C.After examining the complainant on oath and examining the witness present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process.'' Sh.Gandhi ld.counsel for revisionist submits that in Abdul Rehman &Ors. vs Anees Ul Haq & Ors 2008 (101) DRJ 688 it was observed that- summon the accused persons for offence u/s 211 IPC r/w section 500 IPC,case only at the investigation stage, held that bar under section 195(1)(B) Cr.P.C would not be attracted.
Bar of 195(1)(b) applies only when the court has taken the cognizance u/s 190 Cr.P.C. In the case in hand the trial court had only referred the complaint (filed by accused in the present case) to the concerned SHO on application u/s 156(3) Cr.P.C. FIR No.46/09PS Vivek Vihar was recorded on 22.3.09. Revisionist filed the complaint in question on 25.3.09. Bar u/s 195 (1) (b) Cr.P.C.would not be attracted in the circumstances .
In view of the aforesaid legal position it cannot be held 4 that the alleged false/malacious prosecution was conducted during the proceedings of the court. It cannot be held that the complaint is not maintainable. There is an infirmity in the impugned order . At this stage it is not possible to come to the conclusion that not even a prima facie case is made out against the petitioners for the offence u/s 500 IPC. I find merits in the submissions made by ld.counsel for the revisionist and the complainant is competent to file an independent complaint u/s 211/500 IPC. An opportunity has to be given to the complainant to adduce evidence in support of his allegations . In view of the aforesaid reasons, impugned order is set aside. Both the revision petitions are allowed . Case is remanded back with the direction that Ld. Trial court shall hear the revisionist and give him an opportunity to adduce evidence in support of his case as per law. Copy of this order be placed in Crl.Revision No.64/09. Revisionist shall appear before the ld.trial court on 27.8.09. TCR be sent back alongwith copy of this order. Revision files be consigned to RR.
Announced in the (VINAY KUMAR KHANNA)
open court on 22.8.09 Additional Sessions Judge
04-East/Karkardooma : Delhi