Delhi District Court
Criminal Revision/6213/2013 on 4 May, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
CR No. 62/13
M/s Zee News Ltd.
v.
State and Another
04.05.2013
Appearance
Present: Mr. Vijay Aggarwal, Ld. Counsel for the petitioner/revisionist.
Mr. Salim Khan, Ld. Addl. PP for the State.
Mr. Mohit Mathur, Ld. Counsel for the respondent no.2.
ORDER
1. The short question raised in this criminal revision u/s 397 Cr. P.C assailing order dated 23.02.2013 passed by Shri Ashok Kumar, Ld. MM, New Delhi is: whether the ld MM could have or should have stayed the proceedings u/s 210 Cr. P.C in the private complaint u/s 500, 501, 506 IPC r.w section 34/120B IPC in pending proceedings/inquiry as per section 200 r. w section 202 of Cr. P.C of the complainant/respondent on being informed by the petitioner/revisionist about on going M/s Zee News Ltd. v. State and Another Page 1 to 7 2 investigation in FIR no. 240/2012 u/s 383, 420 IPC r.w. section 511/120B of IPC being investigated by the EOW Crime Branch, Delhi Police involving the parties?
2. By the impugned order, the ld. MM interalia held that such application was not maintainable and premature as the complainant is yet to complete presummoning evidence in the defamation case; and that he has no right to be heard at such stage; and that the case before him and the one under investigation by the police appear to be on divergent trajectories.
3. Shorn off unnecessary details about the challenges made in the revision petition assailing the impugned order, suffice to state that Mr. Vijay Aggarwal ld counsel for the petitioner revisionist has vehemently urged that the since the ld.MM is proceeding with an "inquiry" as distinguished from "trial", the prospective accused (so to say) has every right to participate in the proceedings and bring to the notice of the Court that a parallel investigation is going on by the Police and the ld MM should have taken the course provided under section 210 of Cr. P.C thereby stay the proceedings till the filing of the police report. Much has been argued about prejudice that would be caused to the petitioner/revisionist in its defence in case they are summoned by the ld Court. Plethora of case law is cited to buttress the contentions.
4. Per contra Mr. Mohit Mathur, Ld. Counsel for the respondent has urged that the impugned order is an "interlocutory one" and thus the criminal revision is not maintainable; and in the alternative it is urged that the accused has no right to be heard unless and until cognizance is M/s Zee News Ltd. v. State and Another Page 2 to 7 3 taken by the ld Court and summons are issued against him; and that proceedings pending before the ld MM are not in the nature of an "inquiry" ; and that provisions of section 210 Cr.P.C are inapplicable in the present case since the offence complained is different from the one under investigation by the Police. Again, several case laws are cited on the issues involved.
5. In the case of Chandra Deo v. Prokash Chandra, 1963 (2) Cri. L. J. 397, the Ld. court while holding an inquiry at presummoning stage as per s. 202 Cr. P.C examined two persons who were associates of the accused as court witnesses on the suggestion of the accused who was permitted to appear through counsel at the enquiry, the enquiry held by the Magistrate was held to be vitiated. It was observed that:
"The entire scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. AIR 1960 SC 1113, Ref. to.
(Para 7) No doubt, one of the objects behind the provisions of S. 202,Cr. P. C. is to enable the Magistrate to scrutinise carefully the M/s Zee News Ltd. v. State and Another Page 3 to 7 4 allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under S. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. (Para 7)
6. The said proposition of law was reiterated in Nagawwa v. Veeranna, 1976 Cr. L.J 1533(SC). May I state that notwithstanding that the said decision was rendered on 22.01.1963, the ratio still holds sway although section 210 Cr. P.C was introduced in the amended Code in 1973. In the case of Chitra Narain v. M/s. NDTV, 2004 CRI. L. J. 2618, the ratio of several judgments on the issue was summarized as under:
(i) Section 202, Cr. P.C. does not require any adjudication to be made about the guilt or otherwise of the person against whom complaint is made.
(ii) Section 202, Cr. P.C. does not bar the presence of any person including a person against whom complaint has been made either in person or through counsel or his agent.
(iii) No person has a right to participate in the proceedings nor has the Magistrate power to allow him to do so as unless a person M/s Zee News Ltd. v. State and Another Page 4 to 7 5 becomes accused after process is issued against him, his presence is like any member of public.
(iv) No person unless summoned as accused has a right to either produce any evidence, oral or documentary nor has a right to crossexamine the witness of the complainant.
(v) Even the Magistrate has no jurisdiction to put any question to the witnesses of the complainant at the instance of such a person or a person named as accused.
(vi) Participation of a person named as accused in the proceedings is like a member of the public and not as an accused though legally such a person cannot be called upon to participate in the proceedings.
7. In the back ground of the said proposition of law, the object behind section 210 Cr.P.C is intended to secure that private complainant(s) do not interfere with the course of justice by a obtaining a favourable order by misrepresentation/suppression or collusion with some parties from the court and thereby thwart pending investigation or trial in respect of the same offence. It further intends to check the misuse of power by the police in adopting pick and choose policy when it arraigning the offenders from the point of view of the complainant and the object is to jointly try the police case and the private complaint case so as to prevent multiplicity of proceedings and conflicting judgments. At the outset, prima facie that is not the position in the two cases pending as the pending investigation by the E.O.W Crime Branch is in regard to alleged acts of extortion while the complaint case is allegedly about acts or series of acts of defamation at the hands of the petitioner/revisionist.
8. Any how, without much ado, section 210 Cr.P.C can only be invoked in the event of the ld MM taking cognizance of the offence and M/s Zee News Ltd. v. State and Another Page 5 to 7 6 issuing process against the accused. Reference can be made to decision in Pal v. State of U.P., (2010) 10 SCC 123 at page 129, wherein it was observed :
28. Although it will appear from the above that under Section 210 Cr.P.C, the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
9. For the ongoing reasons, I am not entering into the academic discussion as to whether the impugned order is an "interlocutory order"
and therefore, the case of Amar Nath v. State of Haryana, 1997 Crl. L.J. 1891 besides Madhu Limaye v. State of Maharashtra, 1978 Crl. L.J. 165 have no bearing on the matter in issue. Although the case law cited by Mr. Aggarwal, Advocate supports his submissions that the proceedings pending u/s 200 read with section 202 Cr.P.C. are in the nature of "Inquiry" viz. M. L. Gulati v. J. L. Birmani, 1986 Crl. L. J. 770; B. M. Lamba v. State of UP, 1971 Crl. L. J. 1357 and Nawal Sahni v. State of Bihar, 1989 Crl. L. J. 733, I respectfully find that the ratio laid down in such cases cannot be read dehor the factual background of the cases and in any case the cited cases do not reflect about the legal position in regard to section 210 Cr.P.C.
10. Lastly, the plea that the offences which are being investigated by the EOW, Crime Branch Delhi Police and the inquiry into the complaint M/s Zee News Ltd. v. State and Another Page 6 to 7 7 before the Ld. MM shall bring about the application of section 220 Cr.P.C. does not cut much ice. At the cost of repetition, the nature of offence in the police case and the complaint case prima facie are not congruent and therefore, the decision in Surendra Singh Rautela v. State of Bihar, 2002 Crl. L.J. 555, A. E. Premanand v. Escort Finance Ltd., (2004) 13 SCC 527, have no bearing on the matter in issue.
11. In the said view of the discussion, the present revision petition is dismissed. Trial Court Record be sent back alongwith copy of this order. File be consigned to record room.
Announced in the open court (Dharmesh Sharma)
today i.e 04.05.2013 ASJ01/PHC/New Delhi
04.05.2013
M/s Zee News Ltd. v. State and Another Page 7 to 7