Delhi District Court
Sandeep Kumar vs State on 21 April, 2022
IN THE COURT OF MR. NAVEEN KUMAR KASHYAP,
ADDITIONAL SESSIONS JUDGE-04, CENTRAL DISTRICT TIS HAZARI
COURTS, DELHI.
Criminal Revision Numbers : 09/2022, 10/2022 and 11/2022
Unique ID Nos. : CIS No. DLCT01-000150-2022
CIS No. DLCT01-000151-2022
CIS No. DLCT01-000149-2022
1. Sandeep Kumar
S/o Sh. Mulakh Raj
R/o C-35, Hardev Nagar,
Jharoda Mazra, Burari,
Delhi-110084.
Also at
Shop in property no. 201
M/s Shiv Shankar Medicos
Near Bansiwala Hotel Shani
Bazar Road, Surender Colony,
Part-1, Village Jharoda, Badarpur
Mazara Burari, Delhi-110084.
2. Narender Kumar
S/o Sh. Mulakh Raj
R/o H.No. D-6/8, 3rd Floor,
Rana Pratap Bagh,
Delhi-110007.
3. Smt. Mamta
W/o Narender Kumar
R/o 955, Gulabi Bagh,
Delhi-110007.
Also at:
D-6/8, 3rd Floor
Rana Pratap Bagh, Delhi-110007
....Revisionists
versus
1. State
2. Smt. Somvati
W/o Sh. Rampat
R/o H. No. 201, Main Shani Bazar
Chowk Surender Colony, Part-I
Jharoda, Majra Burari, Delhi.
.....Respondents
Revision received by this Court : 05.01.2022
Arguments concluded : 08.04.2022
Date of Order : 21.04.2022
ORDER
1. As per records the present separate 3 revision petitions have been filed by three separate accused persons, who were summoned in the same complaint case vide a common order/ impugned order dated 16.09.2020. The present three revision petitions are filed against the same original complainant. Same are against common impugned orders dated 16.09.2020 passed by Sh. Pranav Joshi, Ld. MM -09, Central District, Tis Hazari Court, Delhi. By such impugned common order, present 3 revisionists were summoned for offences u/s 420/468/471/34 IPC.
Thus as the accused / Revisionist as well as Respondent/Original Complainant is the same and further the facts are similar and applicable law is same , all these 3 revision petitions are disposed of vide this common order.
2. The notice of the Revision was issued to the respondent no.1/ state as well as to respondent no.2 /original complainant/ Smt. Somvati. Respondent no.2 appeared through her Ld. Counsel. Further written reply is also filed by the respondent/ITO .Further Ld. Counsel for parties also relied upon certain case laws.
3. Oral arguments already in detail heard from both the sides and vide last effective order dated 08.04.2022, such petitions were put up today for order (clarification, if any).
4. In nut shell, it is argued on behalf of the revisionist / accused persons that impugned order in question dated 16.09.2020 is based on surmises and conjectures and not based on facts. By a vague and general order, which is even non-speaking, all the three accused/ revisionist are summoned for three separate offences without giving any reasoning at all. It is further argued that as far as revisionist Narender Kumar and Smt. Mamta is concerned, there is no legaly sustainable prima facie case / ground to summon them for any of the offence. It is further stated that as far as accused/ revisionist Sandeep Kumar concerned the impugned order is lacking in any material particular. It is further argued that impugned order in question even did not distinguish between section 468 and 471 IPC despite the fact that they applies in different context. It is further argued that Ld. Trial Court failed to differentiate and take note that whether Rs. 50,000/- was given as loan or security. It is further argued in this regard that in the complaint "loan" is used, where as impugned order, without any basis mentioned, is passed treating the same as "security". It is further argued that Ld. Trial Court failed to appreciate that as far as Narender Kumar is concerned, he was not a party nor even a witness to the alleged rent agreement dated 15.02.2000. It is further argued that Ld. Trial Court failed to appreciate that in the year 2000, the market value of such property was not more than 3 lakhs, therefore, Rs. 2,50,000/- paid, for such a small shop of 12 sq. yard only, was toward actual sell consideration which was purchased from respondent no.2 by the revisionist Sandeep Kumar.
As such it is prayed that impugned order in question dated 16.09.2020 be set aside vide which such three revisionists were summoned.
5. Ld. Counsel for the original complainant/ respondent no.2 has vehemently argued and opposed the aforesaid submissions made by the Ld. Counsel for the accused persons/ Revisionists and argued that there is sufficient material on record to summon the present accused persons /Revisionists. It is further argued that in the pre summoning evidence, the complainant examined himself apart from other witnesses including handwriting expert. It is further stated that there are documentary evidence on record to show that all three accused persons committed the offence not only u/s 420 IPC but also u/s 468 IPC as well as 471 r/w 34 IPC. As such it is argued that there is no occassion to interfere with the impugned order in question. As such it is prayed that present revision petition be dismissed with cost.
6. This court has heard all the sides and gone through the record.
7. Before proceeding further it has to be seen whether the revision petition is maintainable against the impugned order in question . A revision petition is filed under Section 397(1) of Criminal Procedure Code which empowers the Sessions Court to examine the correctness of order of a court subordinate to it. Section 397(2) lays down that powers of revision conferred by section 397(1) shall not be exercised in relation to any interlocutory order passed in a trial or other proceeding. The issue is whether an order of summoing an accused is revisable under the aforesaid provision.
8. Ld. Counsel for revisionist has argued that such an order is not an interlocutory order and that a revision petition against the said order is maintainable.
9. I have considered the submissions advanced before the court on this point. In the case of Amar Nath & Ors. Vs. State of Haryana 1978 (1) SCR 222, the order under challenge was that of summoning of an accused person. It was held that the said order was " a matter of moment and which did involve a decision regarding the rights" of the accused persons. It was held that such an order is not an interlocutory order and that a revision petition against it was competent.
10. In the case of Dhariwal Tobacco Products Ltd. & Ors. Vs. State of Maharashtra & Anr. 2009 (64) ACC 962 also, the Hon'ble Apex Court encountered the question of whether an order of summoning is an interlocutory order. It was observed as follows:
"Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code".
11. On the basis of the aforesaid judgments, it can be inferred that an order of issuance of summons against an accused person under Section 204 of Criminal Procedure Code is not an interlocutory order within the meaning of Section 397(2) of Criminal Procedure Code and that a revision petition challenging it is maintainable.
12. It is now to be seen whether the impugned order passed by the Court of Ld. Metropolitan Magistrate deserves to be interfered with in revisional jurisdiction.
13. In the judgment "U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi & another", 2009 (1) RCR (Criminal) 733 (supra) it is held that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. The Hon'ble Apex court then held that in cases ,inter alia, where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible, process against the accused can be quashed.
14. At this stage it can also be noted that Hon'ble HC of Delhi in Judgment delivered on 21.09.2020 in Crl.Rev.P.-1308/2019,titled Dr. Rajesh Kumar Yaduvanshi Vs.Serious Fraud Investigation Office(SFIO) & Anr. Observed:
59. Mr Sharma, learned ASG had earnestly contended that the examination by the learned Trial Court at the stage of issuing process was highly restricted and the apposite course for the petitioner would be to seek a discharge from the learned Trial Court under Section 227 of the Cr.PC. He submitted that the learned Trial Court was only required to ascertain whether there was sufficient ground for proceeding against the accused................
60. Undisputedly, the scope of examination at the stage of issuing process is limited and the concerned Court is not required to evaluate the evidence in any detail. However, it is well settled that even at the stage of taking cognizance, the concerned Court does not act mechanically or as a post office. The Court must apply its mind to the facts of the case and the law applicable thereto. It must satisfy itself that the allegations made in the complaint constitutes an offence. (See:Birla Corporation Ltd. v.
Adventz Investments and Holdings Ltd. and Ors.: (2019) 16 SCC 610).
61. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and Ors.: (2015) 12 SCC 420, the Supreme Court has held as under:
"22. ....The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
62. In a recent decision of the Supreme Court in Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609 the Court had explained the law as under:
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
* * *
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
54. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19-3-2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLPs (Crl.) Nos. 3326-27 of 2013 filed by Telecom Watchdog are dismissed."
15. In this background of the law, the Ld. trial court was required to look into all these material aspects and not to pass the impugned summoning order mechanically without satisfying about existence of any evidence on file. Even in judgment M/s Pepsi Foods Ltd. Vs. Special Judicial Magistrate, 1998 (5) BCR 426 , it has been held by Hon'ble Apex Court that the order of Magistrate summoning the accused should reflect application of mind. Magistrate has to carefully scrutinize the evidence to find out truthfulness of allegations before issuing process. The impugned orders rather depict mechanical exercise of jurisdiction by the Ld. Trial Court in summoning the revisionists, regarding the above referred offences.
16. Before proceeding further, it would be relevant to reproduce the operating part of the impugned order in question. Same is as follows:
"...........Submissions heard. Record perused.
In Kanti Bhadra Shah Vs. State of West Bengal (2000 1 SCC 722), it was held by Hon'ble Supreme Court that there is no legal requirements imposed on a Magistrate for passing detailed order while issing summons to the accused. After perusing the complaint, the testimonies of Cws and the documents relied upon by the complainant, this court is of the view that prima facie offences u/s 420/468/471/34 IPC are made out against the accused persons. Accordingly, all the accused be summoned on filing of PF for 17.11.2020. .............."
17. On a bare reading of such operating part of the order in question it can be seen that impugned summoning order is passed in a mechanical manner without any application of mind, as no reasoning is given and it is only mentioned that after perusing the complaint, testimonies of Cws and document relied upon by the complainant, prima facie offence u/s 420/468/471/34 IPC are made out against the accused persons.
18. Although, it is settled law that there is no legal requirement on a Magistrate for passing a detailed order while issuing summons to the accused. But at the same time, as already noted above, contrary to case laws discussed above, no reasons at all, not even one sentence reasoning is given for summoning the accused persons by such impugned summoning order. It may further be noted that reasoning is the soul of law. There is no bar, infact legal requirement, to give some reasoning, which need not be a detailed order, while summoning a accused person. Further when there are more than one accused person, like in the present case, and furthermore, there are more than one offences alleged, then, the Ld. Trial Court ought to have given some reasoning for summoning each of such three accused, for each of such three different offences. It may further be noted that all the three offences u/s 420, 468 and 471 IPC are distict and separate offences, as also argued by Ld. Cousnel for revisionist.
19. Further in any case on bare reading of the evidence of all the witnesses including the complainant and the hand writing expert, it can be seen that the FSL expert examined was a private practioner and not from the Government Agencies. Further, in any case, there is no evidence at all that the accused Mamta or Narender Kumar forged any of such alleged document thus there is no question of attracting section 468 IPC. Further, in any case, there is no evidence at all that the accused Mamta or Narender Kumar who used such alleged documents, thus there is no question of attracting section 471 IPC too. It appears that Ld. Trial Court failed to appreciate that such offences can be attracted even prima facie when such basic ingredients exists.
Further even as per the case of complainant and pre-summoning evidence, neither accused Narender Kumar nor Smt. Mamta ever dealt or used or represented to the original complainant / respondent no.1 or her husband regarding any of such documents / transactions, therefore, even the offence u/s 420 IPC is not attracted as far as these two accused are concerned.
Further Ld. Trial Court failed to appreciate that why Sandeep Kumar or any prudent person would not take back Rs. 2,50,000/-. Further even if it is presumed to be true, why the complainant / respondent no.2 did not take any steps to send / return such amount by any legally teneble mode. Infact, no material is placed on record that any steps were taken or legal notice were given by such complainant to return such money.
It is further pertinent to note that Ld. Trial Court failed to appreciate that in the complaint, para no.6 itself even the best case of the complainant / respondent no.2 is that it is accused / revisionist Sandeep Kumar who had purchased the shop in question, as claimed by such Sandeep Kumar only in the WS filed by such Sandeep Kumar in some other civil dispute between the parties. Therefore, even as per the case of respondent no.2, accused Mamta or accused Narender Kumar never filed any WS claming purchasing of such shop in question.
Further on a bare reading of order passed by Ld. Civil Judge-1, Central District, Sh. Shirish Aggarwal in his order dated 25.03.2014, which is relied and made part of original complaint by respondent no.2 only, in para 3, it is noted that it is only defendent no.1/ Sandeep Kumar who has filed the written statement. It is further noted in para 7 of such order dated 25.03.2014 that when there are contrary claim between the parties, then it is prematured to condemn the defendent no.1 (Sandeep Kumar) for false hood. Thus, in such peculier facts and circumstance, even for accused no.1/ Sandeep Kumar / Revisionist, it would have been better for Ld. Trial Court to conduct an enquiry u/s 202 Cr.PC instead of straight away summoning him.
Further, Ld. Trial Court failed to appreciate that quite by smart averments, in para no.7 of present complaint, when compared with para no.6 of complaint itself, instead of alleging facts against such defendent no.1/ accused no.1/ Sandeep Kumar, without any basis at all, name of accused no. 2 and 3 Smt. Mamta and Narender Kumar are also dragged in para no.7.
Further there is no finding that it is any of such accsued no.1, 2 or 3 who prepared such document, including by way of evidence of FSL expert.
20. Therefore, in view of such case law and discussion made above also, the impugned summoning order is complety set aside against revisionist Narender Kumar and Smt. Mamta. for all the offences.
20.1. Further the impugned order in question it set aside against the accused Sandeep Kumar as far as summoning u/s 468 IPC is concerned.
20.2. Furthermore, even as far as the remaining part of such summoning order for summoning the remaining accused/ revisionist Sandeep Kumar for the remaining offences u/s 420 and 471 IPC is concerned, same is also set aside ,with direction to first hold a limited inquiry ,as per law, u/s 202 Cr.P.C. before passing appropriate order thereafter u/s 203 or 204 Cr.PC ,as the situation may be.
21. With these observations and finding, revision petition of revisionist Narender Kumar and Smt. Mamta is fully allowed and summoning order in question against them is set aside.
21.1. Further as far as accused / revisionist Sandeep Kumar is concerned, present revision petition is allowed with above observation, finding and directions to the Ld. Trial Court.
22. Present Revision petition file be consigned to record room after completion of all other necessary formalities. Trial Court record be returned as per rules alongwith copy of this order.
Pronounced on 21.04.2022 (In view of the order dated 20.04.2022, passed by Hon'ble High Court of Delhi, number 13/G-I/Gaz.A/DHC/2022, with endoresment 2065-2099/G-IA/DHC/2022.
Note-2... The judicial officers under transfer shall notify the cases in which they had reserved judgments/ orders before relinquishing the charge of the court in terms of the posting/ transfer order. The judicial officers shall pronounce judgments / orders in all such matters on the date fixed or maximum within a period of 2-3 weeks thereof, notwithstanding the posting/ transfer).
(Naveen Kumar Kashyap) Revisionist Court /Additional Sessions Judge-04 Central District , Tis Hazari, Delhi