Delhi District Court
Bhawana Garg vs State (Nct Of Delhi) on 4 January, 2017
Crl. Rev. No.138/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 138/2016
Under Section : 66-A of IT Act & 509 IPC
Police Station : Crime Branch
FIR No. : 130/2012
Unique I.D. No. : 425102016
In the matter of :-
BHAWANA GARG
D/o Sh. Sukhbir Chand Garg
R/o A-4, Ashok Nagar,
Mandoli Road, Shahdara,
Delhi-110093. .............Revisionist
VERSUS
1. STATE (NCT of DELHI)
2. SHUBHAM KANSAL
S/o Sh. Rakesh Kansal
R/o Flat No. A-12/F-1,
Dilshad Garden, Delhi-110095. ............Respondents
Date of Institution : 28.03.2016
Date of Receiving : 29.03.2016
Date of reserving judgment : 17.12.2016
Date of pronouncement : 04.01.2017
Decision : Petition is allowed.
ORDER
1. This is a revision petition directed against the order dated 26.02.2016, passed by ld. trial court in the case titled as State v. Shubham, bearing FIR No.130/12, PS Crime Branch, filed under Section 66-A of IT Act and 509 IPC. Vide impugned order trial court dropped the proceedings against accused Shubham Kansal qua offence under Section 66-A of IT Act and 509 IPC. BRIEF FACTS OF THIS CASE : -
Page 1 of 7 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016
2. Briefly stated, the relevant facts of the case are that revisionist herein is the complainant and on the basis of complaint made by her, present FIR was registered in PS Crime Branch. After completion of investigation final report in the form of chargesheet for offence under Section 66-A IT Act and 509 IPC was filed against accused/respondent herein. Vide order dated 21.02.2015, ld. CMM took cognizance of the offences and admitted the accused on bail. Matter was fixed for argument on charge. Thereafter, vide impugned order dated 26.02.2016 the proceedings against the accused was dropped on the grounds that offence under Section 66-A IT Act has been declared unconstitutional by Supreme Court in the case of Shreya Singhal v. Union of India III (2015) SLT 1 and that chargesheet was filed beyond one year of registration of FIR, though, Section 509 IPC was punishable up to one year and FIR was registered in the year 2012.
GROUNDS : -
3. Being aggrieved of the impugned order, revisionist has preferred this revision petition on the following grounds :-
● That the trial court dropped criminal proceeding is without jurisdiction and no power to drop any criminal proceeding by the trial court has been conferred under the Cr.P.C.
● That the trial court has not assigned any reason as to why the proceeding u/s 509 of IPC was dropped, even if Section 66-A of I.T. Act having been declared as unconstitutional by the Supreme Court. ● That the trial court took cognizance of the offence u/s 509 of IPC and 66-A of I.T. Act on filing the challan u/s 173 of Cr.P.C,. vide proceeding dated 21.02.2015.
● That the impugned order passed by the trial court at the back of Page 2 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016 complainant despite a protest petition filed much before filing of the challan in the court of Ms. Rekha, CMM, (North-West), Rohini, Delhi and even subsequent thereto, after filing of the challan by the police in the court of CMM (Shahdara), Karkardooma, Delhi, has seriously prejudiced vested rights of the complainant and caused miscarriage of justice to her. ● That complainant's right cannot be jeopardized or compromised by the investigating officer through his shoddy and defective investigation. ● That bare perusal of the complaint read with the documents on record would leave no doubt that the accused committed offence u/s 66A, 67 & 67A of Information Technology Act and further offence committed u/s 467, 468, 471, 419, 420, 292, 294 & 509 of IPC.
● That the investigating officer intentionally and deliberately booked the accused in a bailable offence to facilitate his bail and subsequently despite repeated representation of the complainant, failed to take notice of the complainant's representation for proper investigation and filed an incomplete and defective challan u/s 173 of Cr.P.C. ● That despite notice issued to the investigating officer by the court of Ms. Rekha, ld. CMM, Rohini, Delhi on the the protest petition of the complainant much before filing of the challan, the challan was subsequently filed in the court of Ms. Savitri, ld. CMM, Shahdara, Karkardooma Court, Delhi. It did not even find any whisper as regard the protest petition already filed or efforts on the part of the IO in dealing with those defects as pointed out by the complainant.
● That the trial court failed to appreciate that the provision of limitation envisaged u/s 468 of Cr.P.C. is subject to the overriding provision of Section 473 Cr.P.C. It is settled law that no application is required at the Page 3 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016 time of filing of the challan even if the challan is filed beyond the stipulated period. No explanation has been called from the investigating officer as regard delay if any. As such no notice was issued to the investigating officer before passing the impugned order and as such the impugned order is in violation of principle of natural justice having been passed without any notice to the state through IO of the aspect of delay or seeking explanation thereof.
● That as Section 468 Cr.P.C. is subject to Section 473 Cr.P.C. and thus, override Section 468, the court is competent to take cognizance in the interest of justice even in case of delay. It is settled law that overriding effect of Section 473 Cr.P.C is to be kept in view while considering any provision prescribing the period of limitation for prosecution and the trial court appears to have overlooked this principle.
● That even in the absence of any proper explanation of delay, the court is competent to take cognizance if it is satisfied that it is necessary so to do in the interest of justice.
● The trial court did not appreciate the application to recall its order dated 17.02.2016, in view of law explained in the application dated 14.03.2016. ARGUMENTS
4. Ld. counsel for petitioner made his submissions on the line of grounds taken in the petition. The crux of his submissions were that the petitioner was entitled for notice at the time of impugned order being passed. But she was not given any such notice nor was heard. He further submitted that the trial court did not appreciate the law regarding limitation to take cognizance in correct manner and he relied upon Japani Sahu v. Chandra Shekhar AIR 2007 SC 2762 to submit that the relevant date to compute the period of Page 4 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016 limitation was the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by Magistrate. He further submitted that in the present case petitioner had preferred her complaint immediately after the alleged incident and therefore, the grounds taken by ld. CMM to drop the proceedings under Section 509 IPC was illegal. He further relied upon Chitranjan Mirdha v. Dulal Ghosh 2009 CR.L.J. SC 3430 to submit that notice should have been given to the petitioner at the time of considering the final report filed by IO as well as at the time of passing any order to drop the proceedings.
5. On the other hand, ld. counsel appearing for respondent supported the impugned order submitting that proceedings could not continue because Section 66-A IT Act has been declared unconstitutional and Section 509 IPC was non-cognizable offence, for which limitation had lapsed to take cognizance.
FINDINGS :-
6. I have given due consideration to the rival contentions and to the materials placed on the trial court record.
7. During argument ld. counsel for petitioner had also pointed out that petitioner had filed an application under Section 173 (8) Cr.P.C on 27.04.2015 before ld. CMM, however, same was not decided by ld. CMM. On perusal of trial court record as well as order sheets, I do find that such an application was filed on the record on 27.04.2015, which was fixed for 28.04.2015. From the order sheets, it is also borne out that this application did not find any attention of ld. CMM right from 28.04.2015 up to 26.02.2016. Even petitioner herein did not appear before the trial court on any of these dates. Still before proceeding further so as to take a decision regarding charges being made out against the Page 5 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016 accused, it was expected from the trial court that a decision should have been taken in respect of the application filed by complainant/ petitioner herein. Had ld. CMM taken a decision that there was requirement of some further investigation, the situation to drop the proceedings could not have arisen. If the decision would have been taken in negative, then the complainant could have taken further remedies as well.
8. Furthermore, the impugned order does not discuss the facts of this case so as to be sure that apart from the offences mentioned in the chargesheet, ld. CMM did not find disclosure of any other offence, on the basis of material placed on the record.
9. This order qua Section 509 IPC is based on the observations that "Since the challan has not been filed within one year of the FIR, cognizance have been taken in the matter. Be that as it may, in view of above, proceedings against accused Shubham Kansal qua offence under Section 66-A IT Act and 509 IPC, dropped."
10. Ld. CMM did not give any particular reason for dropping the proceedings. Was it on the ground of bar of limitation or was it some different reason. The above mentioned ground does not explain the reasons in unequivocal terms and in my considered opinion, the reasons must be given in specific terms before taking a particular decision. In any case, if the proceedings were dropped on the ground of bar of limitation, then such decision was apparently not in consonance with law of limitation as explained by Supreme Court in the case of Japani Sahu (supra).
11. There was no dispute from the side of petitioner that Section 66-A IT Act has been declared unconstitutional. However, there had been submissions on the part of petitioner that some more offences under IT Act as well as IPC were Page 6 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.138/2016 being made out against the accused.
12. In the present proceedings, I refrain myself from making any observation in respect of merits of the case as it is within domain of the trial court to give a particular decision on the same. I do find that impugned order regarding dropping of proceedings qua offence under Section 509 IPC was not based on correct appreciation of law nor was it based on any unequivocal reasoning arising out of the record.
DECISION :-
13. In these circumstances, the petition is allowed and impugned order dated 26.02.2016 is set aside. The matter is remanded back to the ld. CMM to hear complainant/petitioner herein on her application under Section 173 (8) Cr.P.C and decide the same. The further proceedings would be dependent upon the decision taken on this application and it is expected that ld. CMM shall discuss the facts of this case and the relevant law provisions before taking any decision on the point of charge.
14. There is another aspect related with impugned order which needs to be raised herein. If any accused is acquitted or discharged, the trial court must obtain a bond under Section 437-A Cr.P.C from the accused, before setting him free. It is expected that ld. CMM shall take care of the same.
15. Both the parties shall appear before ld. CMM (Shahdara) Karkardooma Court, Delhi on 13.01.2017. TCR along with copy of order be sent back to the trial court.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 04.01.2017 Additional Sessions Judge (Shahdara), (This order contains 7 pages) Karkardooma Courts, Delhi Page 7 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi