Delhi District Court
Asha Aggarwal vs State (Nct Of Delhi) on 20 February, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Asha Aggarwal
W/o Sh R.K. Aggarwal
R/o H.No. GH-9/261
Paschim Vihar
New Delhi-110087 ...Petitioner/Revisionist
V E R S U S
State (NCT OF DELHI) ...Respondent
Criminal Revision No. : 24/13(original no. 62/12)
Date of institution/transfer : 09.08.2012/15.01.2013
Date of reserving order : 16.02.2013
Date of pronouncement : 20.02.2013
Computer ID No. : 02406R0193122012
J U D G M E N T
This revision petition has been filed by the petitioner against the order dated 24.03.2012 of the Ld. MM concerned vide which he has served a notice of accusation for the offence punishable U/s 309 IPC upon the petitioner/accused, which pertains to an attempt to commit suicide.
2. The facts of the case, in brief, are that the petitioner herein was chargesheeted for the offences CR No. 24/13 Smt. Asha Aggarwal Vs. State 2 punishable U/s 309/506 IPC by the SHO of PS Kotla Mubarakpur on allegations that on 19.06.2006 at about 6.30 PM, in the office of the Commissioner (Personnel), DDA, Vikas Sadan, New Delhi, she had committed attempt to commit suicide by swallowing some pills and had also extended some threats. As per the complaint made by the concerned Commissioner, the petitioner was employed as a stenographer with DDA and was aggrieved by certain orders and acts passed and discharged by the complainant in the official course of his duties.
3. A perusal of the TCR shows that the Ld MM concerned had taken cognizance of the offence punishable U/s 506 IPC vide his order dated 18.05.2007 and since at that time some chemical report of CFSL Hyderabad regarding the examination of the gastric lavage of the petitioner was still awaited, the matter was adjourned by him and cognizance for the offence U/s 309 IPC was taken by him subsequently on 24.10.2007, after the receipt of the said report.
4. After the compliance of the provisions of Section 207 Cr.P.C., the matter was subsequently fixed for the framing of a notice when vide the impugned order dated 24.03.2012, the Ld MM had observed that this is a summons triable matter and as per the provisions of Section 251 Cr.P.C., there is no scope for hearing arguments at the stage of framing of notice and while further observing CR No. 24/13 Smt. Asha Aggarwal Vs. State 3 that no sanction U/s 197 Cr.P.C. for prosecution of the petitioner was required in this case, he had framed a notice of accusation U/s 309 IPC against the petitioner, to which she had pleaded not guilty and claimed trial and the matter was directed to be fixed for evidence of the prosecution. It is necessary to mention here that the offence U/s 309 IPC is punishable with simple imprisonment for a term extending up-to one year, with or without fine, and the offence U/s 506 IPC, i.e. the first part of Section 506 IPC which is attracted in this case, is punishable with imprisonment of either description for a term extending up-to two years, with or without fine, and hence, there is no dispute with regard to the fact that the above case was required to be tried as a summons triable case.
5. I have thoughtfully considered the submissions being made by the Ld counsel Sh Hrishikesh Baruah for the petitioner as well as Sh M.Z. Khan, Ld Addl PP for the State and have also gone through the entire record of the case.
6. Though this revision petition has been filed well after the expiry of the prescribed period of limitation of 30 days from the impugned order and there is a delay of about 3½ months in filing the same, excluding the period of about 1 month spent in obtaining certified copy of the impugned order, but in view of the submissions made in CR No. 24/13 Smt. Asha Aggarwal Vs. State 4 application of the petitioner seeking the condonation of the above delay and the documents filed on record in support of the illness and death of her father, and also the propositions of law laid down in case of Rajesh Garg Vs Tata Tea Ltd. & Anr. vide order dated 18.02.2011 of our own Hon ' b le High Court in Crl. Revision Petition No. 688/2003, the above delay is being condoned and this revision petition is being held to be maintainable.
7. The grievance of the petitioner is that the Ld MM was not right in observing in its impugned order that there was no scope for hearing arguments at the stage of framing of notice U/s 251 Cr.P.C. and the petitioner was not only entitled to a hearing but also to be discharged in this case as from the CFSL report, no prime facie case for serving a notice of accusation for the offence punishable U/s 309 IPC was made out against her and she already stood discharged for the other offence punishable U/s 506 IPC by the above order of the Ld MM, even though not specifically directed. The Ld counsel for the petitioner has also relied upon the judgments in cases Bhushan Kumar & Anr Vs. State (NCT of Delhi) & Anr (2012) 5 SCC 424 and S.K. Bhalla Vs. State & Ors 180 (2011) DLT 219:Manu/DE 2289/2011 in support of his arguments that the petitioner could have been discharged under the provisions of Section 251 Cr.P.C.
8. Section 251 Cr.P.C. is contained in Chapter XX of CR No. 24/13 Smt. Asha Aggarwal Vs. State 5 the Cr.P.C. dealing with the trial of summons cases by Magistrates and on a perusal of the provisions contained in Sections 251 to 259 of the above Chapter it is found that there is no specific provision enabling a Magistrate dealing with such a case to discharge the accused. In case of Adalat Prasad Vs. RoopLal Jindal & Ors (2004) 7 SCC 338, the issue before a Three Judge Bench of the Hon ' b le Supreme Court was that whether the order passed by a Magistrate U/s 204 Cr.P.C. for summoning the accused for certain offences can be recalled by such Magistrate U/s 203 Cr.P.C. or any other provision and after discussing the relevant provisions and the law on the subject, it was held by their lordships that the earlier view taken by them in the case of K.M. Mathew Vs. State of Kerala (1992) 1 SCC 217 that such a summoning order can be recalled was not a correct view and the Magistrate taking cognizance of the offences and issuing the process of summoning the accused was not competent to recall such an order as the Code of Criminal Procedure does not contemplate a review or recalling of such order by the Magistrate. It was also observed by the Hon' b le Supreme Court in the above case that in the absence of a power of review or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 Cr.P.C. of the Code.
9. Even in the subsequent judgment in case titled Subramanium Sethuraman Vs. State of Maharashtra & Anr (2004) 13 SCC 324, which again is a judgment of a Three CR No. 24/13 Smt. Asha Aggarwal Vs. State 6 Judge Bench of the Hon' b le Supreme Court, the above propositions of law laid down in the Adalat Prasad ' s , Supra case were upheld and it was further held by their lordships in this case that once a notice of accusation has been served upon the accused, then there is no option left with the Magistrate concerned to discharge such an accused in a summons case.
10. Though the case Adalat Prasad, Supra pertains to a warrant trial, but the case Subramanium Sethuraman, Supra was a summons triable case. In both the above cases, it has been specifically held and reiterated that the appropriate remedy available to an aggrieved accused is to challenge such an order of summoning or service of a notice of accusation upon the accused before the Hon' b le High Court in the extraordinary remedy available U/s 482 Cr.P.C. It also appears from the above observations that a revision petition U/s 397 Cr.P.C. should not be entertained in such a case.
11. The judgments in cases of Bhushan Kumar and S. K. Bhalla, Supra being relied upon by the Ld counsel for the petitioner, in support of his argument for discharge in such a case and his right to be heard, are not of any help and cannot be made applicable in view of the specific propositions laid down by a larger bench of the Hon' b le Supreme Court in case of Subramanium Sethuraman, Supra which even otherwise is a judgment delivered by the CR No. 24/13 Smt. Asha Aggarwal Vs. State 7 Hon ' b le Supreme Court prior in time to the judgment in case of Bhushan Kumar, Supra, which was delivered by a Two Judge Bench of the Hon' b le Supreme Court. Hence, on this count this revision petition does not apparently appear to be maintainable as in this case also a notice of accusation has already been served upon the petitioner and the appropriate remedy available to her should be to approach the Hon' b le High Court U/s 482 Cr.P.C.
12. However, as discussed above, an apparent error has been observed while going through the trial court record and it is that once the Ld MM concerned had taken a cognizance against the petitioner for the offence punishable U/s 506 IPC also, he could not have discharged the accused for the said offence when he himself had observed in his impugned order that there was even no scope for any hearing on the point of serving a notice of accusation upon the accused U/s 251 Cr.P.C., it being a summons triable case. The impugned order of the Ld MM does not show as to how an offence punishable U/s 506 IPC was not made out against the petitioner or how a notice of accusation for the said offence was not required to be served upon the petitioner as only a notice for the offence U/s 309 IPC has been framed against the accused and the impugned order amounts to silent discharge of the petitioner for the offence punishable U/s 506 IPC, which otherwise appears to be not permissible in view of the law laid down by the Hon' b le Supreme Court in the case of CR No. 24/13 Smt. Asha Aggarwal Vs. State 8 Subramanium Sethuraman, Supra.
13. Hence, in view of the above discussion, since the above order of the Ld MM suffers from an apparent error and infirmity on the above aspect, the impugned order of the Ld MM dated 24.03.2012 and the notice of accusation given to the petitioner for offence punishable U/s 309 IPC on the same day are being hereby set aside and the matter is being remanded back to the court of Ld MM concerned for having a fresh look upon the chargesheet and to pass an order afresh and to serve a fresh notice of accusation upon the accused, in the light of the legal propositions discussed herein above.
14. This revision petition stands disposed off accordingly. The petitioner is directed to be present before the Ld MM concerned on 28.02.2013 at 10.00 AM. Let the TCR, alongwith, a copy of this judgment be sent back to the Ld. MM concerned. The file of revision be consigned to record room.
Announced in the open court on 20.02.2013 (M.K.NAGPAL) ASJ/Spl. Judge, NDPS South & South East District Saket Court Complex New Delhi CR No. 24/13 Smt. Asha Aggarwal Vs. State 9 Announced in the open court on 12.02.2013 (M.K.NAGPAL) ASJ/Spl. Judge, NDPS South & South East District Saket Court Complex New Delhi CR No. 24/13 Smt. Asha Aggarwal Vs. State