Delhi District Court
Ajay Kumar Gupta vs State on 7 June, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.22/12
Ajay Kumar Gupta .......Petitioner
Versus
State .......Respondent
J U D G M E N T
This judgment is to dispose of revision petition filed by Ajay Kumar Gupta (who is accused in case FIR No.180/05 U/s 394 and 509 IPC pertaining to PS I.P. Estate), challenging the order dt.11.04.2012 passed by Learned Metropolitan Magistrate.
2. Vide the impugned order, Learned Metropolitan Magistrate has disposed of two applications filed by the State. The first application dt.19.12.2011 was filed with a prayer to file documents as shown in the list of documents annexed thereto and copy of order dt.31.10.2011 passed by Hon'ble High Court.
The second application dt.13.02.2012 was moved with the prayer to place on record original statement dt.23.06.05 i.e. of the complainant. Crl. Rev. No.22/12 1
Maintainability of Revision Petition
3. Learned Addl. P.P. has submitted that revision petition is not maintainable in view of decision in Sethuraman Vs. Rajamanickam JT 2009(4) SC 164.
On the other hand, learned counsel for petitioner has contended that the revision petition is maintainable U/s 397 Cr.P.C. as the impugned order passed by Trial Magistrate has affected the rights of the accused - petitioner. In support of his submission, learned counsel has referred to decision in State Vs. Ravi Kant Sharma, 2006 (130) DLT 370.
4. As noticed above, the impugned order dt.11.04.2012 disposed of two applications filed by State through Addl. P.P. The first application dt. 19.12.2011 was filed with a prayer to file documents as shown in the list of documents annexed thereto and copy of order dt.31.10.2011 passed by Hon'ble High Court.
5. The second application dt.13.02.2012 was moved with the prayer to place on record original statement dt.23.06.05 i.e. of the complainant submitting that the same was already on police file and inadvertently could not be filed in Sethuraman's case (supra) cited by learned Addl. P.P., Hon'ble Apex Court has held that the orders on application U/s 91 Cr.P.C. for production of documents and other order on application U/s 311 Cr.P.C. for recalling of witness were the orders of interlocutory nature, in which case U/s 397(2) Cr.P.C., revision was Crl. Rev. No.22/12 2 clearly not maintainable.
In the case of Sethuraman's case, Hon'ble Apex Court held as under: "Both the orders i.e., one on the application under Section 91 CrPC for production of documents and other on the application under Section 311 CrPC for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397 (2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction."
Sec.91 Cr.P.C. provides that whenever any court or any Officer Incharge, police station considers that production of any documents is necessary or desirable for the purpose of investigation, inquiry, trial or other proceeding under Cr.P.C., said court may issue summons allowing production of such document or thing. Having regard to the averments made in the two applications filed by the State through learned Addl. P.P., this court finds that both the applications were U/s 91 Cr.P.C. Accordingly, there is no merit in the contention of learned counsel for petitioner that no provision of law has been pointed out under which these documents could be produced on record.
Applying the law laid down in Sethuraman's Case (supra), this court finds merit in the contention raised by learned Addl. P.P. for the state that the impugned order dt.11.04.2012 passed by the Trial Court is interlocutory in nature and as such, revision petition is not maintainable U/s 397 (2) Cr.P.C. In Ravi Kant Sharma's case (supra), cited by learned counsel for petitioner, there was a challenge to the opinion of the Trial Court expressed during the recording Crl. Rev. No.22/12 3 of cross examination of the prosecution witness with regard to submissions alleged to have been made by another prosecution witness, and at the same time prosecution was directed to supply copies of gist made after interrogating one of the prosecution witness, to the accused. Regarding this opinion/ direction, Hon'ble High Court observed that the same was not in the nature of an interlocutory order. It was also held not to be a final order, as observed by Hon'ble High Court and bar of Sec.397(2) Cr.P.C. did not come play as the impugned order passed therein set at rest the question of production of a part of a case diary and the order being a intermediate order.
In view of decision in Sethuraman's Case by Hon'ble Apex Court decision in Ravi Kant Sharma's case does not come to the aid of the petitioner. Accordingly, present petition against the impugned order dt.11.04.2012 is not maintainable, having regard to the bar U/s 397(2) Cr.P.C. and deserves to be dismissed.
Although the revision petition has been held to be not maintainable in view of bar U/s 397 (2) Cr.P.C., in the interest of justice, this court proceeds to deal with the arguments raised by learned counsel for the parties on merits.
Arguments advanced on merits
6. Learned counsel for petitioner has then submitted that complaint dt. 23.06.05 allowed to be placed on record is forged document manipulated after filing of the challan. It has been submitted that Investigating Officer did not Crl. Rev. No.22/12 4 prepare any memo regarding seizure of this document and there is even no mention about seizure of this document in police file. It has further been submitted that report U/s 173 Cr.P.C. having been forwarded on 01.05.05, the complaint dt.23.06.05 could not be submitted by the complainant to the Investigating Officer by then.
Learned counsel for petitioner has also submitted that charge in this case pertains to the accusation during the period from year 2003 to 15.04.05 and as such, the complaint dt.23.06.05 and the other documents allowed to be placed on record vide the impugned order are not relevant for adjudication of the matter in dispute.
On the other hand, learned Addl. P.P. has submitted that U/s 91 & 311 Cr.P.C., documents could be allowed to be placed on record. In view of this submission, learned Addl. P.P. has referred to decision in CBI Vs. R.S. Pai & anr., 2002 (5) SCC 82.
Learned Addl. P.P. has rightly submitted that challan was put in court on 22.09.07 and as such there is no merit in the contention of learned counsel for petitioner that complaint dt.23.06.05 could not have been submitted by the complainant to the Investigating Officer during investigation or that same has been manipulated.
Crl. Rev. No.22/12 5
7. Perusal of impugned order would reveal that application dt.13.02.2012 has been allowed to place on record document dt.23.06.05. Actually, this document dt. 23.06.05 is reply by the complainant Smt. Krishna Chawla, to the queries raised during investigation from her. This reply was addressed to the SHO PS I.P. Estate, New Delhi. Inspector Naveen Kaushik, Investigating Officer appeared before Trial Court on 21.03.2012 and submitted that this document was not part of chargesheet, though prepared on 01.05.05 but having been presented in the year 2007 by SI Ajit Ram, the reason being that permission had not been granted by DDA. On 11.04.2012, IO SI Ajit Ram appeared before Trial Court and submitted that inadvertently, this document dt.23.06.05 could not be filed with the chargesheet.
As noticed above Sec.91 Cr.P.C. permits production of document before the court whenever the court finds that its production is necessary for adjudication of the matter.
8. Vide the impugned order dt.11.04.2012, Trial Court has also allowed State
- applicant to place on record three documents i.e. report dt.24.01.07 submitted by inquiry committed by WCD, DDA, information supplied under Right to Information Act on 06.09.09 and letter dt.07.11.03 addressed to Chairperson, WCC, DDA, Vikas Sadan.
Case FIR NO.180/05 came to be registered on the complaint dt.12.04.05 of Smt. Krishna Chawla. Notice dt.24.10.08 served upon the accused pertains to Crl. Rev. No.22/12 6 the period from year 2003 to 15.04.05 and accused has been facing trial for offences U/s 354 and 509 IPC.
A perusal of copy of letter dt.06.02.09 from Director (Personnel / PIO, DDA) would reveal that complainant sought some information under Right to Information Act vide application dt.15.01.09 and this letter is in reply thereto.
The inquiry report dt.24.01.07 supplied by DDA to the complainant vide letter dt.24.01.07 pertains to complaint dt.12.04.05 filed by the complainant - respondent herein.
The third document is complaint dt.07.11.03 made by the complainant - respondent herein to Chairperson, Women Complaint Cell, DDA, Vikas Sadan, Delhi.
On the point of production of documents in the case of Central Bureau of Investigation vs. R. S. Pai & anrs (2002) 5 Supreme Court Cases 82, Hon'ble Apex Court has observed as under: "From the provisions of Section 173 it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the chargesheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge sheet, it is always open to the investigating officer to produce the same with the permission of the Court. Considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in sub Crl. Rev. No.22/12 7 section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gather during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining document cannot be produced subsequently. Further, the scheme of sub section (8) of Section 173 also makes it abundantly clear that even after the chargesheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused."
9. Having regard to nature of documents, and the allegations levelled by the complainant against the accused and decision in R.S. Pai's case (supra), this court finds that their production was necessary for adjudication of the matter in dispute and Trial Magistrate has rightly allowed even the second application filed by the State in this regard.
While referring to para - 2 of the impugned order, learned counsel for petitioner has submitted that learned Trial Magistrate has used word 'undisputedly' whereas actually the accused - petitioner contested the prayer put forth by state by filing reply and as such, the Trial Magistrate should not have used this word while passing the impugned order.
A perusal of file would reveal that the accused - petitioner has contested the application dt.13.02.2012 by filing reply. Nowhere in the reply the accused admitted that the document dt.23.06.05 formed part of the police file. Therefore, Crl. Rev. No.22/12 8 the learned Trial Magistrate should have avoided use of word 'undisputedly' in para - 2 of the impugned order.
10. However, in view of the above discussion, and for the aforesaid reasons, the revision petition is hereby dismissed. Trial Court Record be returned. Parties to appear before the Trial Court on 28.06.2012, date already given.
Announced in Open Court
on 07.06.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No.22/12 9