Delhi District Court
Raj Kumar vs . State on 22 August, 2019
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CR No. 213/19
Raj Kumar vs. State
2.30 PM (22.08.2019)
Perused the TCR. The petitioner is aggrieved by the impugned
order dated 01.08.2019 passed in CC No. 6052/18 on the files of the Ld.
MM, Shahdara.
ORDER
1. The petitioner herein is the complainant before the court below who had filed a private complaint u/s 406, 506 R/w Sec. 34 of IPC against the two accused namely Kapil and Rahul. The accused are not yet summoned by the trial court and the matter is kept for pre-summoning evidence. Since the accused are not summoned by the Ld. MM, the notices on this revision to the respondents are dispensed.
2. Heard the ld. Counsel for the petitioner. He submits that the impugned order which dismissed the application filed by the complainant u/s 93 and 94 of Cr.PC is contrary to the law as held in Sakiri Basu vs. State of Uttar Pradesh which ruling is not furnished and further urged that the impugned order is passed without application of mind. The status report showed that the vehicles involved in the offence forms the subject matter of the offence which ought to have been produced by the named accused. It is also urged that the impugned order suffers from the non-application of law and therefore, the petitioner prays that the same be set aside.
3. After going through the grounds urged in the revision and the impugned order, the only point that arises for consideration in this revision is, "Whether the impugned order is proper and in accordance with law?"
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Raj Kumar vs. State
4. The trial court record shows that there was an application filed on behalf of the complainant u/.s 93 and 94 of Cr.PC seeking directions to the police to seize the two vehicles and the cheque books of some Grameen Bank and the Bank of India which details are not furnished in the application except the registration number of two vehicles.
5. Section 93 of the Cr.PC provides for issuance of search warrant which may be issued by the court when the court believes that the person whom the summons are issued to produce a document, parcel or a thing, reasonably will not act upon; under such circumstances a warrant may be issued to produce the documents. Such warrant is to be executed. Likewise, section 94 provides powers to the Magistrate during an inquiry, if thinks necessary, may also issue search of a place where certain stolen property or the incriminating articles are retained by any person.
6. After going through Sec. 94 of Cr.PC the same is not applicable to the present case.
7. The impugned order quotes, "The present complaint pertains to the offence of criminal breach of trust and criminal intimidation and the offence of criminal breach of trust has been committed quo the aforesaid vehicles. As per the report of IO, these vehicles were given by the complainant to the accused for their use. Thus, the said vehicles are the case property and their ownership and possession is a matter of trial."
8. Thus holding, the Ld. MM noted that the stage of the case is still for inquiry (PSE) and the application is not maintainable at this stage.
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-3-The above order makes it clear that the Ld. MM had found that the above vehicles are the subject matter of the offence complained and the same becomes the case property. If that be so, it would have been very reasonable to have issued summons to the accused to produce those vehicles on the next date. Such a course is not adopted.
9. Sec. 93 of Cr.PC is a sequel to Sec. 91 which deals with issuance of summons to produce a document or the other thing. Such summons may be issued by an incharge of a PS or any court directing any person to produce such document or thing believed to in possession of such person. Unless the summons are issued u/s 91 of Cr.PC the question of warrant does not arise. The petitioner never invoked Sec. 91 of Cr.PC but straightaway filed application u/s 93 of Cr.PC. Therefore, the order of the Magistrate cannot be held as illegal.
10. Now only the question of propriety arises. The Ld. Counsel submits that the registration papers of these two vehicles are in the name of the complainant. When the Ld. MM had opined that the vehicles involved comprises the case property or the material objects involved in the commission of offence, it would be in the fitness of circumstances that such evidence be produced before the ld. MM for the purposes of the further proceedings under law. Therefore, the Ld. MM ought to have issued summons to the accused U/s 91 of Cr.PC to produce the vehicles and in case if they do not comply the orders, to issue proper warrants to be executed through the jurisdictional police who can take the assistance from the local police at U.P. In these circumstance the impugned order passed needs modification. Hence the following :
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Raj Kumar vs. State ORDER Revision allowed. The impugned order dated 01.08.2019 is hereby set aside. The Ld. MM is directed to issue summons to the accused Kapil and Rahul to produce the case property before the court in CC No. 6052/18 and proceed in accordance with law. TCR a/w a copy of this order be sent to the trial court for compliance. Digitally signed by A S File be consigned to record room. AS JAYACHANDRA JAYACHANDRA Date:
2019.08.22 16:24:21 -0400 (A.S. Jayachandra) District & Sessions Judge Shahdara District, Delhi/22.08.2019