Delhi District Court
Ct Virender Singh vs State on 8 August, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET01-003708-2023
Cr. Rev. No. 67/2023
1. Ct. Virender Singh (Now ASI)
Presently Posted at:-
PTC Jharoda Kalan
S/o Late Subey Singh
R/o Village &PO Chhara
District Jhazzar, Haryana
2. Ct. Karambir Singh (Now ASI)
Presently Posted at:-
PS Prem Nagar, Rohini District
S/o Late Ramphal
R/o C-71, Badli Extn., Delhi
...... Petitioners
Versus
1. The State (NCT of Delhi)
2. Jasbir Singh (Since deceased)
Through his son being LR
Manpreet Singh
S/o Late Pritam Singh
R/o 13/217, Geeta Colony, Delhi-110031
...... Respondents
Date of Institution : 07.03.2023
Date of reserving Order : 08.08.2024
Date of pronouncement : 08.08.2024
Digitally signed
AKASH by AKASH JAIN
Date:
JAIN 2024.08.12
10:09:19
+0530
Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 1 of 14
ORDER
1. By way of the present revision petition, the revisionists have assailed the impugned order dated 30.04.2022 passed by the Court of Ld. MM-02, East District, Karkardooma Courts in complaint case No. 49063/2016, titled as Jasbir Singh Vs B.S. Kushwaha, whereby revisionists were summoned for the offences under Sections 448/323/506/342/34 IPC.
2. Briefly stated, a complaint case was earlier filed by complainant Jasbir Singh (hereinafter referred to as respondent no.
2) alleging therein that there was an ongoing dispute between him, his father on one hand and his uncle Rajender Singh Fauji on the other hand in respect of their ancestral property bearing No. 13/217, Geeta Colony, Delhi. It was alleged that some civil cases were also going on between the parties. It was alleged that the uncle of the complainant namely Rajender Singh managed to lodge an FIR against him and his father at PS Geeta Colony bearing FIR No. 96/95 U/s. 420/468/471/34 IPC. The complainant was granted anticipatory bail by Ld. ASJ vide order dated 25.01.1996. The father of the complainant namely Pritam Singh too was directed to be released on bail by Ld. ASJ vide order dated 23.12.1995. It was alleged that despite passing of the said order, on the intervening night of 28th and 29th February 1996, SI B.S. Kushwaha of PS Geeta Colony along with 7 other police officials raided the house of respondent no. 2/ complainant at about about midnight, made forcible entry and manhandled the ladies present AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:09:29 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 2 of 14 in the house. They also gave beatings to respondent no. 2 and his brother and ransacked the house and took away valuables, cash and certain documents. They also dragged and took away respondent no.2, Bakshish Singh and Gurvinder Singh to the police station. Later on Bakshish Singh and Gurvinder Singh were permitted to be released on surety but the respondent no. 2 was detained despite the directions of Ld. ASJ for releasing him on bail in the event of arrest. He was consequently produced before the court of Ld. MM on the next day where the bail orders were shown and Ld. MM then directed the complainant to be released on bail after making certain observations as contained in his order dated 29.02.1996.
3. The respondent no. 2 made complaints to the higher police officials but to no avail and thereafter, he filed a complaint case. Initially, an inquiry was got conducted through DCP (Vigilance) but the DCP submitted the report that allegations remained unsubstantiated. Since, respondent no. 2 was not satisfied, he proceeded with the complaint case and examined five witnesses namely Smt. Paramjeet Kaur, Sh. Amarjeet Singh, Sh. Bakshish Singh, HC Rajpal (record clerk from the police station) and himself. On considering the entire evidence and material on record, the Ld. ACMM passed the impugned order dated 10.7.2006 summoning SI B.S. Kushwaha as an accused for the offences punishable U/s.448/323/ 506/342/34 IPC. The other accused persons/ police officials including revisionists who were allegedly members of raiding party were not summoned as the respondent no. 2 or his witnesses did not disclose their names AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:09:40 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 3 of 14 during pre-summoning.
4. Aggrieved by the said summoning order, the revision petition bearing no. 41 of 2008 was preferred by respondent no. 2/ complainant on the ground that remaining police officials who were members of the raiding party were not summoned by the court. Another revision petition no. 42 of 2008 was preferred by the accused B.S. Kushwaha challenging the order on summoning against him. However, both the said revision petitions were dismissed by the court of Ld. ASJ-03/ East/KKD Courts, Delhi vide separate orders dated 12.01.2009. With respect to revision petition bearing no. 42 of 2008, it was observed by Ld. Revisionist Court that the protection of sanction under Section 197 Cr.P.C. or Section 140 D.P. Act could not be afforded to the revisionist as his acts had no nexus with his official duty. Ld. Revisionist Court further dismissed the revision petition no. 41 of 2008 preferred by the respondent no. 2/ complainant, while observing that names of the police officials who were part of the raiding party had not been mentioned by the complainant either in complaint or in pre- summoning evidence. However, liberty was granted to the complainant to move appropriate application before Ld. Trial court if the names of such officials were disclosed during the trial.
5. The notice under Section 251 Cr.P.C. qua sections 448/323/506(1)/342/34 IPC was framed against the accused B.S. Kushwaha by Ld. Trial court to which he pleaded not guilty and claimed trial. Thereafter, post-notice evidence was recorded in the court. During examination of CW-3 Bakshish Singh, the names of AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:09:56 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 4 of 14 both the revisionists namely Ct. Virender and Ct. Karambir were disclosed by the witness besides some other police officials who were accompanying accused SI B.S. Kushwaha in the raiding team. Thereafter, an application under Section 319 Cr.P.C. was moved on behalf of the respondent no. 2 / complainant.
6. After considering the material on record and testimony of CW-3 Bakshish, Ld. Trial court summoned both the revisionists along with two other police officials i.e. Ct. Pramod and HC Zahoor Ahmad for the offences under Section 448/323/506/342/34 IPC vide order dated 30.04.2022. The relevant excerpts of the order of Ld. MM are reproduced as under
for ready reference:-
"...Adverting to the grounds/submissions by Counsels of respective parties, the admitted position that appears from the record is that there were other officials who were forming part of the raiding party along with accused SI B.S. Kushwaha in the present case. This fact is substantiated by contents of the complaint as well as pre- summoning evidence, however, their names were not disclosed at that point of time. The witness CW3 Sh. Bakshish Singh in his examination during trial has pointed out "The raiding party constituting Zahur Ahmad (inadvertently mentioned as 'Zehar'), Pramod Kumar, Karambir and Virender. All these persons had also misbehaved with us after trespassing into our house". This factum reflects the involvement of other accused persons in the present offence and this Court is of the opinion that they can be tried simultaneously along with other accused persons.
In view of the above, let the accused persons namely Ct. Karamveer Singh, No. 1228/East, Ct. Virender, No. 928/East, Constable Pramod Kumar, No. 1797/DHG and Head Constable Zahur Ahmad (inadvertently mentioned as Zehar'), No. 305/East be summoned for the offences punishable under Section 448/323/506/342/34 IPC on filing of PF to be returnable for the next date of hearing..."
AKASH Digitally signed by
AKASH JAIN
JAIN Date: 2024.08.12
10:10:05 +0530
Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 5 of 14
7. Being aggrieved of the abovesaid order, both the revisionists have assailed the same on inter-alia following grounds:-
(i) That the impugned order dated 30.04.2022 is based on conjectures and passed by Ld. Trial Court without application of judicial mind;
(ii) That Ld. Trial Court failed to appreciate that the original DD entries have not come on record and only photocopies of the same were available which are not admissible in the eyes of law;
(iii) That Ld. Trial Court failed to appreciate that except CW-3 no other witness from the side of respondent no. 2/ complainant took names of revisionists during post evidence or pre-
summoning evidence for the last so many years;
(iv) That Ld. Trial Court failed to appreciate that Section 140 of Delhi Police Act and Section 197 Cr.P.C. clearly provides that no police official could be prosecuted without prior sanction from competent authority;
(v) That Ld. Trial Court failed to appreciate that at the very initial stage of present case a report was called from DCP/ Vigilance upon which a detailed final report dated 18.03.1996 was filed by ACP Vigilance, Delhi vide which allegations levelled by the respondent no. 2/ complainant remained unsubstantiated.
8. No formal reply was filed on behalf of respondent no. 2 to the present revision petition. It was argued by Ld. Counsel for respondent no 2 that this revision petition is abuse of process of law and the impugned order dated 30.04.2022 is just, reasonable and does not suffer from any legal infirmity. It was additionally AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.08.12 10:10:20 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 6 of 14 argued by Ld. Counsel for respondent no. 2 that the present revision petition is even otherwise not maintainable in terms of law laid down by Hon'ble Supreme Courtof India in the case of Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338. It was further argued that contention of Ld. Counsel for revisionists that both the petitioners, being Delhi police officials, were protected against any prosecution without sanction under Section 197 Cr.P.C. and Section 140 of Delhi Police Act, is without any merit. In Revision Petition no. 42 of 2008, similar grounds were raised by accused SI B. S. Kushwaha seeking setting aside of impugned order of summoning against him for want of sanction under the aforesaid provisions. However, the said prayer was dismissed by Ld. Revisionist Court vide order dated 12.01.2009 by holding that the acts of the accused persons could not be perceived to have been done in discharge of their officials duties and thus, no benefit of protection under Section 197 Cr.P.C. or Section 140 of Delhi Police Act was afforded to them.
9. I have heard the arguments on behalf of both the parties and gone through the record carefully.
10. At the outset before returning any findings on merits of the present revision petition, a preliminary objection regarding maintainability of this petition, raised by Ld. Counsel for respondent no. 2 needs to be addressed.
11. Ld. Counsel for respondent no. 2 argued that in view of decision of Hon'ble Apex Court in the case of Adalat Prasad AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:10:29 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 7 of 14 (supra), if an accused is aggrieved of a summoning order under Section 204 Cr.P.C., in the absence of any review power or inherent power with subordinate criminal courts, the only remedy lies in invoking inherent powers of Hon'ble High Court under Section 482 Cr.P.C..
12. It is apposite here to refer to the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137, where the Hon'ble Apex Court discussed the definition of 'interlocutory order' in context of revisional jurisdiction under Section 397 Cr.P.C. as under:-
".... 6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub- section (2) of Section 397 of the 1973 Code may be extracted thus:-
"The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.08.12 10:10:38 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 8 of 14 that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court...."
13. Hon'ble Supreme Court of India further dealt the issue of maintainability of revision petition against a summoning order in the case of Om Kumar Dhankar v. State of Haryana & Anr , (2012) 11 SCC 252 as under:-
"....8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one) whether Criminal Revision Petition against the order of summoning is maintainable, and (two) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required.
9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another. In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in the cases of Madhu Limaye Vs. State of Maharashtra, V. C. Shukla v. State, Amar Nath Vs. State of Haryana and K. M. Mathew v. State of Kerala and it was held as under :-
"6... This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi- final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same."
10. In view of the above legal position, we hold, as it must AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:10:48 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 9 of 14 be, that revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly...."
14. Further, in the case of Urmila Devi v. Yudhvir Singh, Criminal Appeal No. 1822 of 2013 dated 23.10.2013, while dealing with similar issue Hon'ble Apex Court was pleased to observe as following:-
".... 21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande, (1999) 3 SCC 134, as well as the decision in K. K. Patel, (2000) 6 SCC 195, it will be order to state and declare the legal position as under:
21.1 The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C. would be an order of intermediatory or quasi-final in nature and not interlocutory in nature.
21.2 Since the said position viz. such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party.
21.3 Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 Cr.P.C., can always be subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C...."
15. Thus, in the light of aforesaid legal propositions, it is held that the present revision petition under Section 397 Cr.P.C. against the summoning order is clearly maintainable.
16. Coming to the merits of the revision petition, it is primarily argued by ld. Counsel for the revisionists that original AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.08.12 10:11:00 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 10 of 14 DD entries pursuant to which the names of both the revisionists were taken by CW-3 Bakshish Singh have not been brought on record and only their photocopies were produced with the report that the said DD entries were destroyed. It is further argued that the names of present revisionists have been taken by CW-3 Bakshish Singh after more than 23 years of incident and none of the other witnesses examined during pre-summoning or post notice evidence took the names of the revisionists. This argument though lacks merit as the complainant/ respondent no. 2 had maintained since beginning in his complaint and pre-summoning evidence that main accused SI B.S. Kushwaha was accompanied with seven other police officials on the intervening night of 28 th and 29th of February, 1996 while committing alleged offences. It is further pertinent to note that the complainant categorically stated in his complaint that he was not aware of the names of other police officials and despite best efforts made by him, could not procure their details from the police department. It was only during the proceedings of the trial that photocopies of departure entry i.e. DD entry no. 100 B dated 28.02.1996 and arrival entry i.e. DD no. 3A dated 29.02.1996 of PS Geeta Colony were placed on record by the accused and CW-3 came to know the names of police officials who were part of the raiding team along with SI Bakshish Singh and took their names before the court during recording of his testimony. In these circumstances, Ld. Trial court was clearly justified in summoning both the revisionists in terms of section 319 Cr.P.C. The question of admissibility of the said photocopy documents in the absence of original record would be decided by Ld. Trial Court at the time of final adjudication while appreciating AKASH Digitally signed by AKASH JAIN Cr. Rev. No. 67/2023 JAIN Ct. Virender Singh & Anr. v. State & Anr.
Date: 2024.08.12 10:11:08 +0530 Page No. 11 of 14 evidence.
17. As regards argument of ld. Counsel for the revisionists that a vigilance enquiry was ordered by concerned DCP qua allegations of complainant/ respondent no. 2 and as per the detailed final report dated 18.03.1996, the allegations levelled by the complainant remained unsubstantiated, the same is not tenable as any internal enquiry conducted by the department qua its own officials would not in any manner absolve them from criminal liability in the courts of law.
18. Finally, it is contended by both the revisionists that being Delhi Police officials they could not have been summoned without proper sanction from competent authority under Section 140 DP Act and Section 197 Cr.P.C. In support of their argument, Ld. counsel for the revisionists relied upon the judgments of Anjani Kumar Vs State of Bihar and Anr . (2008) 5 SCC 248 and Anil Kumar & Ors. Vs M.K. Aiyappa & Anr. 2013 10 SCC 705.
19. Ld. counsel for the revisionist also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Prakash Singh Badal & Anr. Vs. State of Punjab 2007 (1) JCC 236 (SC) and Rakesh Kumar Mishra Vs. State of Bihar & Ors. 2006 (1) JCC 549 (SC). In both these cases, Hon'ble Apex Court discussed the scope of Section 197 Cr.P.C. and held that the protection U/s.197 Cr.P.C. is available to a public servant only when the alleged act done by him is reasonably connected with discharge of his official duty. There should not be merely a cloak for doing the objectionable act. There should be a reasonable connection between the act even if it Digitally signed by AKASH JAIN AKASH JAIN Date:
+0530 2024.08.12 10:11:15 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 12 of 14 is committed in excess of his duty and the performance of his official duty.
20. In Prakash Singh Badal's case (Supra) it was further held that the provision of Section 197 Cr.P.C. does not cover or extend its protection to every act or omission done by public servant in service but restricts its scope of operation to only those acts or omissions which are done by him in discharge of his official duty.
21. In the present case, the complainant/ respondent no. 2 had already been granted anticipatory bail by Ld. Sessions Court vide order dated 25.01.1996, yet the revisionists along with IO /SI B.S. Kushwaha allegedly forcibly entered the house of respondent no. 2, manhandled the ladies present there, gave beatings to respondent no. 2 and his brother, ransacked their house and took away valuables, cash and certain documents. These acts clearly had no reasonable connection with the official duty of revisionists and could not be used as a cloak for grant of benefit of sanction under Section 197 Cr.P.C. and Section 140 DP Act. Thus, both the revisionists cannot be extended benefit of sanction under Section 197 Cr.P.C. and Section 140 DP Act. It is further pertinent to note that the revision petition bearing no. 42 of 2008 of main accused SI B.S. Kushwaha against his summoning order on similar grounds qua sanction was dismissed by Ld. Sessions Court vide order dated 12.01.2009 which reportedly was not challenged before Hon'ble Delhi High Court and thus, the same attained Digitally signed finality. AKASH by AKASH JAIN Date:
JAIN 2024.08.12 10:11:21 +0530 Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 13 of 14
22. Keeping in view the totality of circumstances, facts and observations as above, the present revision petition filed by both the revisionists stand dismissed for being without any merit.
23. Copy of this order along with Trial Court record be sent back to the Ld. Trial Court for information and records.
24. File be consigned to Record room after due compliance. AKASH by AKASH JAIN Digitally signed Date:
JAIN 2024.08.12 10:11:27 +0530 ANNOUNCED & (AKASH JAIN) DICTATED IN OPEN ASJ-04, EAST DISTRICT COURT ON 08.08.2024 KARKARDOOMA COURTS DELHI This order contains 14 pages and each paper is signed by me.Digitally signed
AKASH by AKASH JAIN Date:
JAIN 2024.08.12 10:11:34 +0530 (AKASH JAIN) ASJ-04, EAST DISTRICT KARKARDOOMA COURTS DELHI Cr. Rev. No. 67/2023 Ct. Virender Singh & Anr. v. State & Anr. Page No. 14 of 14