Delhi District Court
Anil Garg vs State on 6 December, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI, DELHI
Crl. Revision no. 107/2022 ( DLNT01-003502-2022)
Anil Garg
S/o Sh. Atma Ram Garg
R/o S-8, Suraj Nagar
Azad Pur, Delhi-110033 ....Petitioner
Versus
1. State
(NCT of Delhi)
2. Akhil Gupta
S/o Jai Prkash
R/o C-3/10, Model Town
Delhi-110009
3. Amit
S/o Jai Prkash
R/o C-3/10, Model Town
Delhi-110009
4. Rohit
S/o Jai Prkash
R/o C-3/10, Model Town
Delhi-110009
5. Jai Prakash
R/o C-3/10, Model Town
Delhi-110009
6. Meera
W/o Jai Prakash
R/o C-3/10, Model Town
Delhi-110009
Page 1/12
7. Meetali
W/o Amit
R/o C-3/10, Model Town
Delhi-110009 ..... Respondents.
Date of Institution : 29.04.2022
Date of Reserving the Order : 10.11.2022
Order Pronounced on : 06.12.2022
O R D E R:
1. This is the revision petition preferred by the petitioner herein (the applicant / prosecution witness/victim before the Ld. Trial Court) against the impugned order dated 18.04.2022 passed by the court of Ld. Metropolitan Magistrate, Mahila Court, Rohini Courts case FIR No. 171/2014 of PS Adarsh Nagar under Section 354/354(b)/325/506/34 IPC (complaint case No. 5679/2018) titled as State V. Akhil Gupta, thereby dismissing the application of the petitioner herein seeking cancellation of bail granted to accused persons/respondents.
2. The facts in brief are that petitioner/victim is a practicing lawyer and he is one of the prosecution witness alongwith his wife in case FIR No. 171/2014 which is pending before the Ld. Trial Court for framing of charge. The petitioner herein had filed an application under Section 437(5), 195(1)(b)(1) of Cr.P.C seeking cancellation of bail granted to all the four accused persons and also registration of FIR under Section 195-A, 120B,506 IPC as they had blatantly breached the bail conditions by extending life threats to the Page 2/12 petitioner herein.
2.1 On the aforesaid application, report was sought from the prosecution as well as reply reply from the respondents herein/accused persons and having considered the same passed the impugned order dismissing the application of petitioner seeking cancellation of bail.
3 Feeling aggrieved, the petitioner herein has challenged impugned order on the following grounds :
(i) The impugned order being against the record and evidences filed by the petitioner alongwith the application. The CCTV footage clearly shows the accused attacking the petitioner herein at his house.
(ii) The legal issue that an application under Section 437(5) read with Section 195 (1)(b) (1) Cr.P.C being maintainable being not considered . It cannot be dismissed merely on the ground that earlier application under Section 156 (3) Cr.P.C as has been held by the Ld. M.M. Therefore relying upon said order is illegal and against the well settled principles of law.
(iii) The Ld. M.M has ignored the fact that the previous application under Section 156(3) of Cr.P.C was dismissed as there is express bar under Section 195(1)(b) (1) of Cr.P.C which prohibits the court from taking cognizance with respect to the offence punishable under Section 193 to 196 IPC, but the said legal issue has been overlooked.Page 3/12
4. The Ld. Counsel for the petitioner, in support of the said grounds, further argued that the petitioner the petitioner herein also falls within the definition of term 'Victim' as defined in Section 2 (w) of Cr.P.C. Therefore, he can file present revision which is maintainable under the law. Reliance has been placed upon judgment in case Jagjeet Singh V. Ashish Mishra @ Monu & Anr. Criminal Appeal No. 632/2022 dated 18.04.2022. 4.1 Further, it is argued that all the evidences annexed with the application seeking cancellation of the bail granted to accused persons have been ignored which has resulted into miscarriage of justice. Lastly, the provisions of Section 195 (1) (b) (i) Cr.PC have been mis-interpreted which too has caused in justice to him.
5. In support of his arguments, Ld. Counsel for the petitioner has relied upon the following judgments :
(I) R.Rathinam V. State by DSP District Crime Branch, Special Leave Petition (Crl.) 365/1999 (II) Rahul Yadav V. State & Anr W.P (Crl.) 1120/2017 decided on 01.03.2018 of Hon'ble High Court of Delhi. (III) Sreeja Mannagath V. State of Kerala, Criminal M Appeal No. 3/2022 in bail application No.3513/2022 of Hon'ble High Court of Kerala.
(IV) Jagjeet Singh V. Ashish Mishra @ Monu & Anr. Criminal Appeal No. 632/2022 dated 18.04.2022.
6. Per contra, Ld. Counsel for the respondents no.2 to 5 argued that the revision petition is not maintainable as the same has been Page 4/12 filed by the petitioner who is merely a prosecution witness in the case pending before the Ld. Trial Court. In this regard, reliance has been placed upon judgment of Hon'ble High Court of Delhi in case titled Vipul Gupta & S.P. Gupta V. State & Anr Crl MC 1163/2021 & Crl. M.A 5948/2021 dated 06.08.2021. 6.1 Apart from that there is no legal infirmity in the impugned order and the same has been passed after appreciating all the facts as well as legal proposition of law.
7. Ld. Addl. PP for the State has too vehemently opposed the present revision petition stating that there is no legal infirmity in the impugned order.
8. I have heard the Ld. Counsels for the parties and have also considered the material placed on record.
9. The petitioner herein has challenged the impugned order primarily on the ground that the cumulative order dismissing his application for cancellation of bail as well as his request for initiating the complaint as envisaged under Section 195 (1) (b) (i) of Cr.P.C is not legally sustainable. On the aspect of cancellation of the bail, it is pleaded that the said order has been passed merely by placing reliance upon the version given by SHO concerned who since the beginning of the case is acting in a partisan manner.
10. Before discussing the merits in the present revision petition, the respondent no. 2 to 5 have raised the issue of maintainability of Page 5/12 the revision petition having been filed by the petitioner who is merely a prosecution witness in the State Case pending before the Ld. Trial Court. In this regard, reliance has been placed upon the judgment of Hon'ble High Court of Delhi in case titled Vipul Gupta (supra) case.
10.1 On the contrary, on the very same aspect of maintainability, the petitioner herein has placed reliance upon the judgment of Hon'ble Supreme Court in case titled Jagjeet Singh (supra) case by claiming him to be victim .
11. It is not in dispute that the FIR in question was got registered on the basis of the statement/complaint lodged by Ms. Sunita Garg who is the wife of the petitioner herein. She alleged that on 09.03.2014 while she was present at her house, respondent no.2 to 5 entered her house and molested her. In the meantime, her husband ( the petitioner herein) came and tried to rescue her, but he too was thrashed. The statement of the petitioner herein has been recorded under Section 161 Cr.P.C wherein he has reiterated the said allegations. The chargesheet filed too has the MLC of petitioner herein having suffered "injuries" as narrated therein. The chargesheet has been filed under Section 354/354B/323/506/34 IPC. Therefore, the petitioner herein also comes within the definition of term 'Victim' as defined in Section 2 (w) of Cr.P.C. The reliance placed upon the judgment of Hon'ble Delhi High Court in Vipul Gupta (supra) case on behalf of the respondent herein ,is not applicable in the present case as in the said case, the Hon'ble High Court had discussed the scope of provisions under Section 401 (2) Page 6/12 by interpreting that any revision instituted in a State case, the complainant cannot seek the right of hearing as a respondent. In the present case in hand, it is the victim who has instituted the present revision petition. In this regard the latest judgment of Hon'ble Supreme Court in Jagjeet Singh (supra) case relied upon by the petitioner is applicable. The relevant para number 20 of the same is reproduced hereunder:
"20. It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State's expense. The victim's right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a 'victim' under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial."
12. So, the contention advanced on behalf of the respondent no.2 to 7 regarding the maintainability of the present revision petition at the instance of the petitioner herein is rejected.
13. Now, coming to the merits of the present revision petition Page 7/12 concerning the impugned order dated 18.04.2022 whereby the application of the petitioner herein seeking cancellation of the bail of accused/Respondent no.2 was dismissed. The petitioner alleged about two incidents which prompted him filing the application in hand.
14. Before discussing the said incidents, the sequence of events right since the registration of the FIR and commencement of the case requires to be considered. The FIR in question was got registered on 10.03.2014 concerning the incident which had taken place on 09.03.2014. The accused herein were served with the notices under Section 41.A Cr.P.C and they were bound down during the investigation on 13.12.2014. After completion of the investigation, the chargesheet in the present case was filed on 17.03.2016. The Ld. M.M after taking cognizance issued the summons to accused for appearance for 06.09.2016. On the very same day i.e 06/09/2016 the accused persons were admitted to bail which has been sought to be cancelled.
14.1 The first incident seeking cancellation of bail pertains to 13.03.2016. It is alleged on behalf of the petitioner that accused/respondent-2 Akhil Gupta alongwith his mother and sister in law visited their house and threatened him as well as his wife of dire consequences if they do not enter into any compromise . The said incident was also reported to the Local Police alongwith CCTV footage. As for the said incident, the reply furnished on behalf of the SHO concerned as well the observations of Ld. MM Shri Kapil Page 8/12 Kumar in a separate complaint case bearing no. 5679/2018 alognwith the application under Section 156 (3) instituted by the petitioner herein are the most crucial. The Investigating Authority after analyzing the contents of the complaint as well as CCTV footage came to the conclusion that the conversation of the persons present in the footage reveals nothing unusual and persons were conversing with each in a normal manner without any aggression etc. The Ld. MM in its order dated 01.06.2017 while disposing of the application under Section 156 (3) of Cr.P.C on the basis of said allegations observed as under:
"Admittedly, the respondent was the tenant of the complainant and after the registration of FIR No. 171/2014 respondents vacated the house of complainant. The allegations that on 31.12.2016 someone shown the knife to the complainant and threatened him to withdraw the case doest not instill the faith of this court as the complaint was made to the police after 5 days. The complainant is not a person who has any kind of fear from the police. He has moved various RTIs against the police. If the knife was shown to the complainant then why he kept silent for 5 days. No call at 100 number was made. The CCTV Footage of 13.03.2016 is seen. There is nothing in the footage which could substantiate the allegations of the complainant that he was threatened to withdraw the FIR no. 171/14. Further more than a year has been passed to that incident."
14.2 So, the footage was seen and nothing unusual was found regarding threats of withdrawal of the FIR.
14.3 In these circumstances, Ld. M.M while passing the impugned order has rightly relied upon the said report as well as the observations made earlier.
Page 9/1215. The second incident alleged in the application concerns the incident dated 31.12.2016 when some unknown persons threatened the complainant while he was in a public park by showing him a knife asking him to withdraw the case in question. As far as the said incident is concerned, it is reported by the SHO concerned that no alarm was raised nor any call at 100 number was made. For the first time, the said incident was reported after 5 days. The said incident too has also been discussed and discarded by the Ld. MM in its order dated 01.06.2017 while dismissing the application of the petitioner herein under Section 156 (3) Cr.P.C. Thus, there is no infirmity with respect to the appreciation of facts qua the alleged incidents dated 13.03.2016 and 31.12.2016. Both the said incidents have been found to be unreliable.
15.1 Even otherwise, it has already been observed that respondent no.2 to 5 are the accused who are facing trial. They were never arrested during the investigation and were released in terms of provisions under Section 41A Cr.P.C. Admittedly, no such incident of threat to withdraw the complaint was reported for two years and it appears that the moment the chargesheet was filed, the said alleged threats were reported. There was no reason or occasion for advancing of threats as the main case has still not reached at the stage of prosecution evidence where the version of the petitioner or his wife was to be recorded. There appears to be no reason or motive for advancing of threats as has been alleged.
16. Now, coming to the second aspect of revision petition herein regarding the dismissal of his application through cumulative order Page 10/12 despite it having sought registration of complaint in terms of provisions under Section 195 (1) (b) (i) of Cr.P.C. It is the case of the petitioner that they reported about the threats being extended to the witnesses and commission of offence under Section 195(A) of IPC ,but the Ld. M.M without considering the scope of provisions under Section 195 (1) (b) (i) Cr.P.C dismissed his application seeking lodging of complaint .
17. Before discussing the said issue, the conduct of the petitioner herein and sequence of events which took place prior to the lodging of said complaint before the Ld. MM needs to be looked into. 17.1 The petitioner herein suppressed material facts while moving the application before the Ld. MM seeking registration of the case/filing of compliant under Section 195 (1) (b) (i) Cr.P.C . It has already come on record that the petitioner had availed his separate remedy by instituting the complaint bearing No. 119/1/17 titled Anil Garg V. Akhil Gupta & Ors., P.S Adarsh Nagar before the concerned Area Magistrate alongwith the application under Section 156 (3) Cr.P.C. The said application under Section 156 (3) Cr.P.C was dismissed vide order dated 01.06.2017 and the matter was listed for pre-summoning evidence on 10.10.2017. Thereafter, the petitioner herein preferred the revision petition against the said order bearing No.108/2018 Police Station Adarsh Nagar before the court of Ld. ASJ-02 North. The said revision petition against the said impugned order dismissing the application under Section 156 (3) Cr.P.C was too dismissed on 21.02.2019.
So after dismissal of the said application and thereafter Page 11/12 criminal revision petition, the petitioner herein without disclosing the said facts, approached the court of Ld. MM in the present case seeking lodging of the complaint under Section 195 Cr.P.C for the very same incident. Thus, it is apparent that the petitioner is guilty of suppressing material facts before the court. 17.2 Even otherwise, the contention advanced on behalf of the petitioner regarding the complaint being liable to be instituted under Section 195 Cr.P.C with respect to the treats advanced is clear misinterpretation of law. Section 195 (A) of Cr.P.C provides a clear exception with respect to the offences under Section 195 (A) IPC which is the case as alleged . So, no such separate complaint is liable to be instituted for offence under Section 195 (A) IPC under Section 195 (1))(b)(i) Cr.P.C as has been sought.
18. The judgments except in Jagjeet Singh (supra) case relied upon by Ld. Counsel for the petitioner are not applicable to the present case being distinguishable on facts.
19. In view of the above-discussed reasons and observations, I am of the considered opinion that there is no legal infirmity in the impugned order which calls for any interference and hence, the same is upheld. The Revision Petition is accordingly dismissed. There is no order as to cost.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room
Announced in the Open Court (GAGANDEEP SINGH)
on 06.12.2022 Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts, Delhi.
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