Delhi District Court
Cr No. 150/13. Sidharth Parashar & ... vs . State. on 27 January, 2014
CR No. 150/13. Sidharth Parashar & Another Vs. State.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Criminal Revision No. 150/2013.
1. Sidharth Parashar,
S/o Sh. R.P. Parashar,
R/o House No. 524,
Airlines Apartments,
Sector 23, Dwarka,
New Delhi.
2. Sh. Dharmender,
S/o Sh. Dhani Ram,
VPO Dhanja, PS Rehrad,
District: Jhansi (MP),
Presently at: Plot No. 53,
Sector 12B, Dwarka,
New Delhi. ... Revisionists.
Vs.
The State,
Govt. of NCT of Delhi,
Delhi. ... Respondent.
Date of Institution. : 2.8.2013. Arguments Advanced On. : 27.1.2014. Date of Order. : 27.1.2014. 27.1.2014. Present: Revisionist no. 1accused with ld. counsel Sh. S.C. Page No. 1 of 14. Contd... ... ...
CR No. 150/13. Sidharth Parashar & Another Vs. State.
Bhuttan, for both the revisionists (both accused before the ld. Trial Court).
Sh. Pramod Kumar, ld. Addl. PP for State respondent.
Sh. J.S. Sangwan, ld. counsel for complainant. Fresh vakalatnama filed on behalf of the complainant.
Arguments on revision petition heard. Perused the entire record, including TCR, carefully.
:: ORDER ::
1. The challenge in the present revision petition u/s 397 CrPC, filed by the revisionists, is to the impugned order dated 26.6.2013 of Sh. Harjyot Singh Bhalla, ld. MM, Dwarka Courts, Delhi, in case titled as "State Vs. Sidharth & Another", FIR No. 48/11, u/s 323/324/34 IPC of PS Dwarka North, vide which the ld. Trial Court passed the summoning order against both the revisionists for the offences u/s 323/324/34 IPC for their appearance and for facing trial.
2. Ld. counsel for revisionists has drawn my attention to the order dated 15.12.2011 of the ld. Trial Court, wherein it was mentioned as under: "... ... ...
The final report filed u/s 173 CrPC Page No. 2 of 14. Contd... ... ...
CR No. 150/13. Sidharth Parashar & Another Vs. State.
shows the accused in coloumn no. 12.
Issue notice to the complainant in order that it may be determined whether any objections are to be file.
... ... ..."
3. He has submitted that from the said order, it is clear that the ld. Trial Court had gone through the charge sheet and had seen the name of the revisionists in column no. 12 and issued notice to the complainant for determining whether any protest petition is to be filed, thereby taking cognizance u/s 190 CrPC. However, in my considered opinion the cognizance as defined u/s 190 CrPC, was not taken by the ld. Trial Court by the said order, but the ld. Trial Court had merely referred to the factum of filing of final report u/s 173 CrPC and mentioning of the names of the revisionists in column no. 12 and had merely ordered issuance of notice to the complainant to determine whether any objections are to be filed or not. Further, in the said order dated 15.12.2011, the ld. Trial Court has not mentioned that any cognizance was taken or for what offences, the cognizance was taken. Also, in the said order dated 15.12.2011, it is not mentioned that the ld. Trial Court had gone through the entire charge sheet and even if, the ld. Trial Court would have gone through the entire charge sheet, still the ld. Trial Court had to go through the entire material available before it, including the charge sheet and documents and then apply its Page No. 3 of 14. Contd... ... ...
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judicial mind and to determine as what offences were made out and, thereby arriving at a conclusion as to for what offence the cognizance has to be taken and then to formally mention that it had taken cognizance for the said offences, which is not the case herein.
4. The next argument of ld. counsel for revisionists is that, although, the final report filed by the investigating agency mentions the same u/s 173 CrPC, but the said nomenclature is not important as the said report was u/s 169 CrPC, since it was mentioned in the last of the said report that there was lack of evidence against the revisionists Sidharth and Dharmender (accused persons before the ld. Trial Court). However, a bare reading of the said final report u/s 173 CrPC filed by the investigating agency before the ld. Trial Court, it is clear that the same was filed u/s 173 CrPC and it was not a cancellation report. Also, from the perusal of the entire charge sheet, it is clear that the investigating agency had not sent the revisionists for trial on the ground that it does have sufficient material and had mentioned their names in column no. 12, thereby meaning that the Court may summon them if it consider fit to do so. Thus, I find no force in the said arguments of the ld. counsel for revisionists that the aforesaid report was a cancellation report u/s 169 CrPC.
Page No. 4 of 14. Contd... ... ...
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5. Ld. counsel for revisionists has further drawn my attention to the order dated 16.5.2013 of the ld. Trial Court, wherein it is mentioned that protest petition was filed by the complainant and also to the order dated 26.6.2013, whereby cognizance for the offences disclosed in the charge sheet, was taken by the ld. Trial Court. He has submitted that it was not legally permissible for the ld. Trial Court to take the cognizance twice, once vide order dated 15.12.2011, whereby it had observed that the accused persons (revisionists herein) are shown in column no. 12 and had issued notice to the complainant for determining as to whether the protest petition is to be filed or not, as the ld. Trial Court had applied its mind on that date and, thereafter, the taking of cognizance by formal order dated 26.6.2013 by the ld. Trial Court, was not correct. He has further submitted that the second order dated 26.6.2013 on the point of cognizance, was beyond the power of the ld. Trial Court. However, as already discussed above, the said contention of ld. counsel for revisionists, has no force, as it has already been opined that vide order dated 15.12.2011, the ld. Trial Court did not take cognizance for the offences, rather the cognizance for the offences u/s 323/324/34 IPC, was taken vide order dated 26.6.2013 by the ld. Trial Court. Page No. 5 of 14. Contd... ... ...
CR No. 150/13. Sidharth Parashar & Another Vs. State.
6. Ld. counsel for revisionists has also drawn my attention to the last page of final report u/s 173 CrPC, wherein it is mentioned that the CCTV footage, outside the office of the revisionists, was taken into possession and as per the same, complainant Narender (injured), his employee Punit (injured) and other people were beating both the revisionists. Ld. counsel for revisionists has relied upon the case of Hon'ble Supreme Court titled as "Vasanti Dubey Vs. State of Madhya Pradesh", 2012 Cri. LJ 1309, wherein in para no. 14, it was held as under: "14. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options
(i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203. He is also entitled to take cognizance under Section 190 CrPC, at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge sheet by the police." On the basis of aforesaid decision, he has argued that once the said report was filed by the police indicating that no case against the revisionists is made out, the ld. Trial Court ought to have taken cognizance at once on the very first day of filing of final report and instead of that the ld. Page No. 6 of 14. Contd... ... ...
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Trial Court issued the notice to the complainant, waited for 15 dates and after going through the protest petition, the ld. Trial Court got biased and passed the impugned summoning order against the revisionists, which is not sustainable in the eyes of law.
7. No doubt as per the ratio of the aforesaid case law of Hon'ble Supreme Court, the ld. Trial Court should have taken cognizance u/s 190 CrPC at once, but by no stretch of imagination, it can be presumed that since the ld. Trial Court took 15 dates or that the said summoning order was passed after filing of the protest petition by the revisionists, it can be inferred that the ld. Trial Court got biased or because of delay, the ld. Trial Court was not correct in taking cognizance. From the word "at once"
mentioned in the aforesaid decision, it was incumbent for the ld. Trial Court to take cognizance at once only, if it disagreed with adverse police report. Since the ld. Trial Court applied its mind only on the date of passing of impugned order and disagreed with police report, therefore, it cannot be said that the said cognizance was not taken "at once" after disagreeing with adverse police report. On a bare perusal of impugned order, it is clear that the ld. Trial Court did not rely upon the protest petition. Further, it was open to the ld. Trial Court to rely upon the material before it, including the final report of Page No. 7 of 14. Contd... ... ...
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the police, which appears it had accordingly done and then to take cognizance and summon the revisionists, which is the case herein. Hence, I do not find any force in the arguments of the ld. counsel for revisionists that since cognizance was not taken on the very first date and was taken after filing of protest petition, same was bad in law or that it was obligatory by the ld. Trial Court to ensure leading of pre summoning evidence by complainant, before passing the summoning order on merits.
8. Ld. counsel for revisionists has also relied upon the judgment of Hon'ble Jharkhand High Court in case titled as "Ghishu SK Vs. State of Jharkhand", 2005 (3) BLJR 1733, to argue that since cancellation report u/s 169 CrPC was filed by investigating agency, therefore, the ld. Trial Court had no jurisdiction to take cognizance and summon the revisionists. However, the aforesaid first judgment i.e. "Vasanti Dubey Vs. State of Madhya Pradesh", 2012 Cri. LJ 1309, of Hon'ble Supreme Court, relied upon by the ld. counsel for revisionists, makes it clear that it was open to the ld. Trial Court to take cognizance for the offences on the aforesaid police report, which in any case was not a cancellation report u/s 169 CrPC, as already held.
9. Ld. counsel for revisionists has also relied upon the Page No. 8 of 14. Contd... ... ...
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judgment of Hon'ble Supreme Court in case titled as "Kishorti Singh & Others Vs. State of Bihar & Another", 2001 Cri LJ 123, to argue that once the revisionists were not sent up for trial by investigating agency, they could have been summoned only u/s 319 CrPC after coming of some prosecution evidence on record against them. However, the said judgment cited by the ld. counsel for revisionists is quite distinguishable on facts, as the said judgment is in respect of sessions triable offences. Further, the first judgment i.e. "Vasanti Dubey Vs. State of Madhya Pradesh", 2012 Cri. LJ 1309, of Hon'ble Supreme Court, cited by the ld. counsel for revisionists was subsequent to the aforesaid judgment of the Hon'ble Supreme Court and in the said judgment as well as in other similar cases, it is well settled that a ld. Trial Court has the power to take cognizance and to summon the accused on the basis of material available on record and after applying its mind and even where cancellation report has been filed by the investigating agency.
10. Per contra, ld. counsel for complainant has relied upon the judgment of Hon'ble Delhi High Court in case titled as "Sudarshan Singh Dhariwal Vs. R.L. Kukreja", 2014 AD (Cri) (DHC) 225, to argue that even at the stage of charge, no meticulous examination of material on record, Page No. 9 of 14. Contd... ... ...
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has to be done to determine as to whether offence is made out or not. Ld. counsel for complainant has further argued that after registration of present case FIR, the investigating agency had subsequently registered cross FIR against the complainant as regards same incident, in which the charge sheet for various offences, including u/s 452 IPC was filed and from the same, it is clear that the alleged incident took place inside the premises and not outside, as claimed in the charge sheet, as per alleged CCTV footage. I find force in the said contention of ld. counsel for complainant.
11. Further, in case "State of Orissa Vs. D.N. Padhi", 2005 SCC (Cri) 415, the Hon'ble Supreme Court, in para no. 18, has held as under: "18. ... ... ... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is wellsettled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by Page No. 10 of 14. Contd... ... ...
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the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state (stage ?) of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
12. Also, in the case of "Onkar Nath Mishra & Others Vs. State (NCT of Delhi) & Another", 2008 (1) JCC 65, the Hon'ble Supreme Court has observed, as under: "It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the Page No. 11 of 14. Contd... ... ...
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alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
13. The relevant portion of impugned order dated 26.6.2013 is reproduced, as under: "... ... ...
I have perused the charge sheet. Police has placed accused Sidharth and accused Dharmender in Col. no. 12 for want of evidence. As per the (1) Asal Tehrir; and (2) the statement under Section 161 of CrPC of witness Punit, both the accused kept in Col. No. 12 had assaulted and injured Narender, MLC of Narender is also on record showing soft tissue injury and a cut wound. It has also been alleged that the cut injury was inflicted using a sharp weapon. I take cognizance of the offence disclosed in the charge sheet. There is sufficient material for summoning both the accused for facing trial in the present case.
Needless to mention that there is already a cross case pending in which the complainant herein i.e. Narender has been named as accused and the said case is also arising out of the same incident and in the said case Page No. 12 of 14. Contd... ... ...
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cognizance has already been taken and matter is at the stage of framing of charge. It is best that before proceeding in the said matter, the present case is also taken to the stage of framing of charge so that both the cases shall be tried together as cross cases arising out of the same incident. Let accused persons be summoned for 10.7.2013.
... ... ..."
14. The ld. Trial Court after taking cognizance of offences had to prima facie decide as to whether sufficient grounds exist for proceeding against the accused persons, at that stage and against which of the accused person. Considering the facts and circumstances, specially in view of the statement of complainant Narender and his employee Punit u/s 161 CrPC, given to police and MLC of injured Narender, I am of the considered opinion that there were sufficient grounds before the ld. Trial Court to summon both the revisionistsaccused persons, for the offences u/s 323/324/34 IPC, as the said Court is not even supposed to meticulously examine the material available even at the stage of charge and, hence, at the prior stage of cognizance of offences and summoning of revisionists, it was not supposed to conduct a roving enquiry. Thus, in view of the abovesaid case laws and from the material available on record of the ld. Trial Court, I am of the considered opinion that the impugned order dated 26.6.2013 of the ld. Trial Court, does not Page No. 13 of 14. Contd... ... ...
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suffer from any infirmity or illegality or perversity. Accordingly, the impugned order dated 26.6.2013 of the ld. Trial Court, is upheld and the revision petition is dismissed.
15. A copy of this order alongwith TCR be sent to the ld. Trial Court, for 31.1.2014 at 2.00 pm, for information and further proceedings, as per law.
16. Parties are directed to appear before the ld. Trial Court, on the given date and time.
17. Revision petition file be consigned to record room. Announced in the open Court on 27.1.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 14 of 14. Contd... ... ...