Delhi District Court
Bhagwani Devi vs . Preeti Chaudhary on 15 January, 2019
CR No. 460/17
Bhagwani Devi Vs. Preeti Chaudhary
IN THE COURT OF : DR. VIJAY KUMAR DAHIYA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the Matter of :-
CR No. 460/17
Smt. Bhagwani Devi,
D/o Late Sh. Gharsi Ram
W/o Sh. Ram Chander Takshak,
R/o Village & PO-Jat Behror,
Distt. Alwar
Rajasthan - 301714
......Revisionist
Versus
Preeti Choudhary,
D/o Sh. Ram Singh
R/o RZF-42/4, Street No.42,
First Floor, Sadh Nagar, Part-II,
Palam Village,
New Delhi - 110 045.
.......Respondent
Date of filing of appeal : 23.09.2017
Date on which case reserved for order : 07.01.2019
Date of order : 15.01.2019
JUDGMENT :-
1. The present petition has been filed against the impugned order dated 21.08.2017 passed by Ld. Trial court whereby accused Jai Page no. 1/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary Prakash Takshak has been summoned as co-accused u/s 420/406/34 IPC while allowing application u/s 319 Cr.PC filed by the complainant. (For the sake of convenience accused Bhagwani Devi and complainant are hereinafter referred to as petitioner and respondent respectively).
2. Brief facts for disposal of the present petition are like this. The petitioner is maternal aunt of the respondent and they joined hands for carrying on the business under the name and style of M/s Blue Turban Export House as the son of petitioner namely Ramniwas Takshank is settled abroad and is engaged in the Import/export business of garments and handicrafts. The business activities of the partnership firm were being looked after by brother of the respondent namely, Sh.Raj Singh Takshak. The dispute arose among the partners and, therafter, bank account of the firm with M/s Axis Bank was frozen by the respondent vide letter dt. 20.01.2019. Thereafter, petitioner issued notice dated 28.10.2009 to the respondent for dissolution of the firm and respondent replied the said notice dated 10.12.2009 that said Page no. 2/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary partnership firm shall be dissolved. After the dispute arose on account of bank account, the respondent filed a complainant case u/s 200 Cr.PC against the petitioner and her sons alongwith an application u/s 156 (3) Cr.PC.
3. The application under section 156 (3) Cr.PC was dismissed and respondent was allowed to lead PSCE and out of two accused persons namely the petitioner (Bhagwani Devi) and other co accused, who had been arrayed as accused, only petitioner was summoned as accused in terms of order dated 17.09.2012. Thereafter respondent moved an application u/s 319 Cr.PC for summoning of Jai Prakash Takshak as an accused and same was allowed through the impugned order. Although Jai Prakash Takshak, who has been summoned as accused through impugned order, has not challenged the impugned order, yet the petitioner who is the co-accused, has challenged the summoning of co-accused through impugned order by way of present petition.
Page no. 3/14 CR No. 460/17
Bhagwani Devi Vs. Preeti Chaudhary
4. During the course of arguments, Ld. Counsel for the petitioner has raised following contentions :-
(i) That accused Jai Prakash Takshak was not summoned as accused in terms of summoning order passed by Ld. Trial Court in as much as no, prima facie, case had been made out against the said accused, but in meantime, CW's i.e. banker of accused Jai Prakash Takshak were summoned from State Bank of Mysore, Jaipur, Rajasthan. Thereafter the respondent moved an application under section 319 Cr.PC for summoning accused Jai Prakash Takshak and Ram Niwas Takshak as co accused and said application was allowed without appreciating the principles of law. In this regard, reliance is placed upon Guriya Versus State of Bihar, AIR 2008 SC 95 ; Kishum Versus State of Bihar, 1993 SCC (Cri) 470 ; Hardeep Singh Versus State of Punjab, 2014 (3) SCC 92 ; Raj Kishore Prasad Versus State of Bihar, 1996 Supreme Court Cases (Cri) 772 ; Lok Ram Versus Nihal Singh and Another (2006) 10 SCC 192 ; Rajendra Singh Vs. State of U.P and Another, (2007) 7 SCC 378 ; Brijender Singh Vs. State of Rajasthan JT 2017 (4) SC 530.Page no. 4/14 CR No. 460/17
Bhagwani Devi Vs. Preeti Chaudhary
(ii) Ld. Trial court has passed the impugned order without application of mind to the facts and circumstances of the present case and illegally summoned accused Jai Prakash Takshak as accused for facing trial alongwith petitioner.
(iii) Ld. Trial court has not appreciated the fact that satisfaction of the court for summoning a person as an accused under section 319 Cr.PC would be the same as that is required for framing of charge against the accused person. But in the present case there is no such material on record despite that the Ld. Trial court summoned Jai Prakash Takshak as an accused.
(iv) The partnership firm is a firm namely M/s Blue Turban Export House and is not registered, therefore, any third person including Jai Prakash Takshak was free to use trade mark of Blue Turban Export House.
(v) It is further submitted that no notice was ever served on the accused Jai Prakash Takshak before summoning him as accused as per the mandate of law laid down by High Court of Karnataka in the matter titled as Smt. Asha & Ors. Vs State of Karnaka passed in Crl. Page no. 5/14 CR No. 460/17
Bhagwani Devi Vs. Preeti Chaudhary Revision Petition No. 231/2016. It is prayed that this petition may be allowed and impugned order may be set aside.
5. Per contra Ld. counsel for respondent submitted that the petitioner has no locus-standi to file the present petition in as much as no right of the petitioner has been effected or jeopardized by way of impugned order. It is further submitted that there is material on record in the complaint itself filed by the respondent in the trial court, but after summoning of the bank official, the specific role was assigned to the co-accused Jai Prakash Takshak has surfaced, therefore, trial court summoned Jai Prakash Takshak as accused in the pending criminal complaint. This petition is devoid of merit and deserves to be dismissed.
6. It is further submitted by counsel for respondent that the impugned order is in consonance with the settle principles of law so far as summoning of a person as an additional accused u/s 319 Cr.P.C is concerned. It is submitted that Section 319 Cr.P.C is an enabling Page no. 6/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused and can be exercised at any time after the charge-sheet is filed. In this regard release is placed upon Bijendra Singh (supra). It is further submitted that in view of the above mandate of the said section the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial.
7. It is further submitted that under Section 319 (4)(b) Code of Criminal Procedure accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Code of Criminal Procedure would be in same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in course of such trial Page no. 7/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary the materials are disclosed against the proposed accused. The fresh summoning of an accused will result in delay of the trial, therefore, the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
8. I have gone through the material on record and considered the rival contentions raised by counsel for the parties during the course of arguments including the case laws relied upon by counsel for parties.
9. It may be noted that all the judgments relied upon by the counsel for the parties were taken into consideration by the Hon'ble Supreme Court in case of Hardeep Singh (supra) and sum and substance of the ratio of the said judgment is to be effect that accused can be summoned u/s 319 Cr.PC at the stage of either the inquiry or the trial and relevant paras are reproduced as under:-
"53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the Court, the power under Section 319 Cr.P.C cannot be exercised. In Page no. 8/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary fact, this proposition does not seem to have been disturbed by the Constitution Benca in Dharam Pal (CB). The dispute therein was resolved visualizing a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 Cr.P.C is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 Cr.P.C confers power of original jurisdiction upon the Session Court to add an accused once the case has been committed to it.
54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the Court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the Court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher Page no. 9/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.
55. Accordingly, we hold that the Court can exercise the power under Section 319 Cr.P.C only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.
10. So far as the summoning of a person as an accused under section 319 in the complaint case is concerned in para 56 of Hardeep (supra), it has been observed as under :-
"There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 Cr.PC i.e. provisions of Sections 200, 201, 202, etc. Cr.PC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 Cr.PC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded Page no. 10/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary during the trial (sic or) for the purpose of Section 319 Cr.PC, if so, required. What is essential for the purpose of section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.PC acts as an empowering provision enabling the court / Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.PC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.PC at the stage of trial in a complaint case when the evidence of complainant as well as his witnesses are being recorded".
11. Keeping above said principle in mind, I would like to advert to the facts of the present case. It may be noted that the first contention of counsel for the petitioner is that right of hearing had not been given to accused Jai Prakash Takshak as per the mandate of law laid down in Asha's case (supra) but this contention pales into insignificance in view of the law laid down by Superior courts and High court of M.P. in Ajay Khemeriya Vs. State of M.P., Crl. Misc. No. 693/2016 in para 15 has observed as under :-
"Thus it is clear that against the order invoking jurisdiction under section 319 Cr.PC, since the aggrieved person has a remedy under the law, the Page no. 11/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary contention of the counsel for the applicants that the applicant were entitled for pre-hearing at the stage of invoking jurisdiction u/s 319 Cr.PC cannot be accepted in the light of the judgment passed by Hon'ble Supreme Court in the case of Anju Chaudhary (supra). Accordingly this contention is rejected."
12. In the present case Jai Prakash Takshak was arrayed as accused in the criminal complaint alongwith the petitioner but Ld. Trial court had summoned the petitioner as accused only. But thereafter respondent appeared as CW-1 and CW-2 was examined as bank officials. Thereafter the application was moved u/s 319 Cr.PC was moved which was disposed of vide the impugned order. The respondent in her complaint had alleged that accused Jai Prakash Takshak is one of the son of the petitioner and both her sons namely Jai Prakash Takshak and Ram Niwas Takshak opened the bank account in the name of The Blue Turban Export House and by manipulating the documents and by mis-representing depicted themselves as the firm of the respondent. These allegations levelled by respondent were duly corroborated by the testimony of CW-2 and CW-3 by way of documentary evidence. The Ld. Trial court being satisfied that accused Jai Prakash Takshak had manipulated the record and was Page no. 12/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary involved in the commission of offence in connivance with his mother i.e. petitioner and therefore summoned him as co-accused.
13. It may be relevant here to mention that power under 319 Cr.PC must be exercised in a judicious manner being a discretionary power and should be exercised so as to achieve criminal justice. The discretionary power so conferred should be exercised against any person whenever it comes across evidence connecting that another person also with the offence. It must be remembered that there is no compelling duty on the court to proceed against other persons. In the present case, the Ld. Trial court, prima facie, exercised his power in a judicious manner and summoned co-accused Jai Prakash Takshak in view of law laid down by superior courts as detailed above and I found no ostensible reason to take a different view which has already been taken by trial court.
14. So far as the contention regarding locus-standi of the petitioner to challenge the impugned order is concerned, suffice is to Page no. 13/14 CR No. 460/17 Bhagwani Devi Vs. Preeti Chaudhary say that no right of the petitioner is effected by the impugned order otherwise her son namely Jai Prakash Takshak has been summoned as an co-accused, therefore, viewed from any angle, the petitioner did not have any locus-standi to challenge the impugned order. On this ground alone this petition deserves to be dismissed, but as I have develled upon the merits of the case, therefore, this petition not only dismissed on the ground of maintainability but also on merits. This petition is dismissed and disposed off accordingly.
Needless to say that nothing stated herein above shall tantamount to any expression of the opinion on the merits of the case.
Copy of this order be sent to the Ld. Trial Court along with copy of this order. Revision petition be consigned to Record Room.
Digitally signed
VIJAY by VIJAY KUMAR KUMAR DAHIYA Date: Announced in the open court today, DAHIYA 2019.01.22 10:38:10 +0530 On 15.01.2019. (Dr. V.K. DAHIYA) SPECIAL JUDGE : CBI (PC ACT) DWARKA COURTS / DELHI Page no. 14/14