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Dr. Sunil Jaitley vs State Of Nct Of Delhi on 1 July, 2021

 IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
               (CENTRAL): TIS HAZARI COURTS, DELHI

Criminal Revision No. 117/2021
CNR No.: DLCT01-008068-2021

Dr. Sunil Jaitley
R/o. The Jaitley Buildings,
596, Mandir Wali Gali,
Katra Neel, Chandni Chowk,
Delhi-110006
                                                                ..... Petitioner
                            VERSUS

State of NCT of Delhi

                                                              ..... Respondent
Date of Institution         :   26.06.2021
Date of Arguments           :   01.07.2021
Date of Judgement           :   01.07.2021

                            JUDGEMENT

1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'the Cr.P.C.') is directed against the order dated 25.02.2021 (In short 'the impugned order') arising from FIR No. 16/2020 under Section 376/506 of 'The Indian Penal Code, 1860' (In short 'IPC') registered at PS Lahori Gate whereby Ld. MM-09, Central District, Tis Hazari Courts, Delhi allowed the application of the Investigating Officer and directed him to obtain time from the concerned hospital and inform the petitioner to appear for blood sample and further directed the petitioner to remain present, as informed by IO on date fixed.

2. Facts leading to the filing of the petition are that the said case was registered against the petitioner on 12.01.2020 on the basis of the allegations made by the prosecutrix, in a written complaint, that the petitioner physically exploited her on false promise of marriage and physical harm to her family members since 15 years.

3. The petitioner was admitted on pre-arrest bail, vide order dated 17.03.2020, subject to the condition that he will join the investigation as and when directed by the Investigating Officer and shall report to AIIMS or any other doctor for the purpose of examination.

4. After investigation, the petitioner was charge- sheeted for committing offences under Section 376/506 IPC on 29.08.2020 and the case was committed to the Court of Session on 01.03.2021.

5. On 24.02.2021, IO had filed an application before the concerned MM that during investigation, he had deposited blood sample of the petitioner alongwith other samples with FSL, Rohini for forensic examination and he has received a letter dated 22.02.2021 from Assistant Director, FSL, Rohini that DNA profile of the petitioner could not be generated due to degradation / inhibition and therefore, fresh blood sample is required. IO stated that he had visited the address of the petitioner but his daughter informed that he was not fine and available. He requested the concerned MM for issuing suitable direction in this regard.

6. After considering the said application and hearing Ld. Counsel for the petitioner in the presence of the petitioner, the concerned MM passed the impugned order, as under:

"25.02.21 Pr. Ld. Addl. PP for the State.

Accused with Cl. Ajay Tushir.

It is submitted by the counsel that accused has no objection to give blood sample. Heard. Application is allowed. IO is directed to take time from concerned hospital and inform accused to appear for blood sample. Accused is directed to remain present as informed by the IO for date fixed."

7. Feeling aggrieved and dissatisfied, the petitioner challenged the impugned order.

8. I have heard Ms. Anjali Jaitley, Daughter of the petitioner and Mr. J.S. Malik, Ld. Addl. PP for the State / the respondent.

9. Ms. Anjali Jaitley, Daughter of the petitioner submitted that the petitioner is a septuagenarian and he is suffering from multiple ailments. She submitted that the petitioner suffered a fall from height on 19.08.2018 and consequent multiple rib fractures, fractures of spine, skull, scapula and forearm. She submitted that the petitioner remained admitted in AIIMS for the treatment in 2018. She submitted that the petitioner is suffering from diabetes mellitus and hypertension. She submitted that the petitioner is suffering from psychosomatic disorders and neurological problems. She submitted that the petitioner is under continuous treatment since 2 years and he is immobile.

10. Ms. Anjali Jaitley, Daughter of the petitioner submitted that the petitioner was accoladed with several awards and titles. She submitted that the petitioner was falsely implicated in this case. She submitted that the petitioner was admitted on pre-arrest bail, vide order dated 17.03.2020, by the Court of Dr. Kamini Lau, ASJ, Central, Tis Hazari Courts, Delhi. She submitted that the petitioner has complied with the conditions of the bail. She submitted that the petitioner joined the investigation and provided his blood samples three times on 03.03.2021, 16.06.2020 and 14.07.2020, as directed by IO, for FSL. She submitted that the petitioner was not served with the application filed by IO for seeking his 4 th blood sample. She submitted that the petitioner was not heard by the concerned MM. She submitted that the petitioner had no knowledge of the impugned order. She submitted that the said order is a 'hand written order' and it was not uploaded on the website. She submitted that the petitioner did not have the opportunity to contest the said application. She submitted that IO procured the impugned order by practicing concealment. She submitted that the petitioner, on oral request of IO, agreed for 4 th blood sample on 10.03.2021 at his residence but IO did not respond. She referred WhatsApp communication with IO dated 09 th and 10th March, 2021. She submitted that she had contacted IO on 21.03.2021 to know the schedule of his visit for blood sample. She submitted that IO asked the petitioner to travel to hospital for blood sample despite his serious health issues.

11. Ms. Anjali Jaitley, Daughter of the petitioner referred medical documents pertaining to the ailments and treatment of the petitioner. She submitted that the petitioner came to know during the course of arguments in another case, vide FIR No. 106/2021 under Section 457/427/323/506/34 IPC registered at PS Lahori Gate, that IO had obtained the impugned order. She submitted that the petitioner has already provided his blood samples three times to IO and he is not willing to provide blood sample for the 4 th time. She submitted that the petitioner has the right to protect his blood from being misused. She submitted that the petitioner is apprehending that his blood sample may be misused. She has drawn attention of the Court to the notice sent by IO to the petitioner on 29.06.2021 to remain present at Asaf Ali Hospital for providing blood sample on 30.06.2021 at 01.00 p.m. despite the fact that the present petition was pending for adjudication. She submitted that IO tried to overreach the process of law. She submitted that the impugned order may be set-aside.

12. Ld. Addl. PP for the State / the respondent submitted that the petition is barred by limitation. He submitted that the impugned order was passed on 25.02.2021 and whereas the petition was filed on 26.06.2021 after the expiry of period of limitation. He submitted that there is no application for condonation of delay in filing of the petition. He submitted that the impugned order was passed in the presence of the petitioner and his counsel.

13. Ld. Addl. PP for the State / the respondent submitted that the petitioner's counsel made statement that the petitioner had no objection to provide blood sample. He submitted that the petitioner was aware of the said order. He submitted that the case was committed to the Court of Session on 25.02.2021 in the presence of the petitioner and his counsel. He submitted that FSL, Rohini, Delhi, vide letter dated 03.02.2021, asked for fresh blood sample of the petitioner as DNA profile of the petitioner could not be generated due to degradation / inhibition. He submitted that blood sample cannot be taken in the residence by any technician as the process of drawing blood sample must be authentic and credible. He submitted that the blood sample would be sealed with the seal of the concerned doctor and it would be seized by IO alongwith seal of the concerned doctor. He submitted that the purity of the process of drawing samples cannot be compromised. Finally, he submitted that IO can make appropriate arrangement including transportation in an ambulance with prior appointment with the concerned doctor so that the petitioner will not be put to any inconvenience. He prayed for dismissal of the petition.

14. As regards issue of limitation is concerned, it can be stated that In Re Cognizance for Extension of Limitation in SMW (C) No. 3/2020, the Hon'ble Supreme Court of India, vide order dated 27.04.2021, excluded the period of limitation from 15.03.2020 till 14.03.2021. Therefore, the petition is within limitation.

15. However, the impugned order is an interlocutory order. Such order is not revisable, as provided under Section 397 (2) of the Cr.P.C., as under:

"397. Calling for records to exercise powers of revision.- (1) XXXXX (2) 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."

16. Further, the impugned order was passed in the presence of the petitioner and his counsel, namely, Mr. Ajay Tushir. The petitioner had given his no objection for giving blood sample at the concerned hospital.

17. Further, the prosecution cannot be made responsible for the necessity of drawing fresh blood sample. IO had sent the blood sample to FSL without any loss of time. The blood sample was drawn on 16.06.2020 and IO had sent it to FSL on 20.06.2020. However, FSL, vide letter dated 22.02.2021, communicated that 'DNA profile of the petitioner (blood gauze) Sunil Jaitley could not be generated due to degradation / inhibition. Therefore, fresh blood sample of the petitioner is required for conclusion of the above-said case'. FSL had requested IO to deposit the blood sample of the petitioner (both on dry gauze kept in paper envelope and in EDTA vial). Therefore, such medical process can only be undertaken in a hospital and not at the residence of the petitioner. Such blood sample may be used an evidence and the purity and authenticity of the process must be ensured.

18. This Court is of the considered opinion that the impugned order is not revisable as barred under Section 397 (2) of the Cr.P.C. as well as it does not suffer from any legal infirmity, illegality or impropriety. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of the order alongwith trial Court record be sent to the trial Court immediately. A copy of the order be sent to the concerned MM. A copy of the order be sent to the petitioner and IO, through electronic mode / WhatsApp. Revision file be consigned to record room.

                                            SANJAY            SHARMA
                                            SHARMA            Date:
                                                              2021.07.01
                                                              17:13:22 +0530

Announced in the open Court         SANJAY SHARMA-II
          st
on this 01 July, 2021       Addl. Sessions Judge-03 (Central)
                                  Tis Hazari Courts, Delhi




Cr. Revision No. 117/2021       Dr. Sunil Jaitley vs. State            Page No. 8/9
 Dr. Sunil Jaitley vs. State
Crl. Revision No. 117/2021
01.07.2021

Present : Ms. Anjali Jaitley, Daughter of the petitioner in person.

Mr. J.S. Malik, Ld. Addl. PP for the State / the respondent. IO SI Manmeet Malik is present.

Vide separate judgement, the criminal revision petition filed by the petitioner is dismissed. Revision file be consigned to record room.

Sanjay Sharma­II ASJ­03, Central District, Tis Hazari Courts, Delhi 01.07.2021 Cr. Revision No. 117/2021 Dr. Sunil Jaitley vs. State Page No. 9/9