Delhi District Court
Arshad Ahmed Siddiqui vs State on 2 December, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 42 of 2019
CNR No.DLSE01-000326-2019
IN THE MATTER OF:-
1. Arshad Ahmed Siddiqui,
2. Shakeel Siddiqui,
Both S/o Mr Ilyas Azami,
Both resident of :-
14, Susheel Building, 1st Floor,
Arther Bunder Road, Colaba,
Mumbai-400005
.......Revisionists
Versus
1. State
Through Asstt. Public Prosecutor,
South-East District, Saket Courts, New Delhi
2. Ruhi Kareem,
W/o Mr. Musawwar Kareem,
R/o Flat No.3, N-1, Abul Fazal Enc.-1,
Jamia Nagar, New Delhi-110025
........Respondents
Instituted on : 15.01.2019
Reserved on : 27.11.2021
Pronounced on : 02.12.2021
Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 1 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.12.02
15:13:55 +0530
JUDGMENT
1. By way of the instant revision, revisionists take exception to the order dated 15.10.2018, passed by Ms. Ankita Lal, Ld Metropolitan Magistrate-08, South East District, Saket Court, New Delhi, in case bearing FIR No.77/2011, Police Station Jamia Nagar under section 406/420/468/471/ 506 IPC, titled as State Vs Javed Azmi etc, whereby the concerned Magistrate summoned the revisionists/accused for facing trial in the aforesaid FIR.
2. For the sake of convenience, impugned order is being reproduced as under :-
" Heard. As per the record, the cognizance of the offence was taken vide order dated 06.12.2012 and the said order does not specify that if the accused mentioned in column no.12 of the chargesheet were also to be summoned. There were total 5 co-accused kept in column no.12 of chargesheet. In view of specific allegations against accused Arshad Siddiqui and Shakeel Azmi, there is sufficient material to proceed against the said accused persons as well.
Let summons be issued to accused Arshad Siddiqui and Shakeel Azmi through IO/SHO concerned for 11.12.2018."
3. Aggrieved with aforesaid order, revisionists have assailed the impugned order on various grounds which can be summarized as under :-
a) That Ld Trial Court erred in law and facts by taking cognizance of offences against the revisionist and passed the impugned order in a mechanical manner;
b) That Ld Trial Court took cognizance of offence on 06.12.2012, however summoned the revisionists on 15.10.2018 i.e. after a lapse of almost 6 years and that too after dismissal of protest petition;
c) That Ld Trial Court failed to consider the contents of chargesheet Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:03 +0530 filed by the Investigating Agency wherein no evidence against the revisionist was found;
d) That Ld Trial court failed to appreciate the fact that the summoning of revisionists, who have clean antecedents, to face trial on the false allegations of complainant is totally miscarriage of justice;
e) That Ld Trial Court failed to consider the fact that the allegations made by complainant are only against co-accused Javed Azmi and not against revisionists;
f) That Ld Trial Court erred in concluding that there is sufficient material on record to proceed against the revisionists.
4. Ld counsel for revisionists argued on the line of grounds as taken in the instant revision petition. It was forcefully argued that the impugned order is not sustainable in the eyes of law as Trial Court erred in law by summoning the revisionists. It was further argued that revisionists herein was not originally chargesheeted rather they were kept in column No.12 and they were not summoned at the first instance by concerned Trial Court finding no sufficient ground to proceed against them. It was argued that there is no specific allegations against the revisionists. It was further argued that the accused No.1 i.e. Javed Azmi is the main kingpin who was appointed as Caretaker of property in question by the father of revisionists. It was further argued that revisionists herein have nothing to do with the alleged offence. It was argued that respondent no.2 concocted a false story and levelled baseless allegations against the revisionists so as to usurp the properties of father of revisionists. Ld counsel has relied upon judgment of Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:11 +0530 Apex Court in case On Kumar Dhankar Vs State of Haryana, (2012) 11 SCC 252 in support of his contention. On the strength of these arguments, revisionists seeks set aside of impugned order.
5. Per contra, Ld. counsel for respondent No.2 had argued that there is no infirmity and illegality in the impugned order and Ld Trial Court has rightly summoned the revisionists considering the specific allegations made against them by respondent/complainant. It was further argued that the instant revision petition is liable to be dismissed at the threshold as revisionists have failed to point out any patent illegality or infirmity in the impugned order. It was further argued that in view of decision of Hon'ble Apex Court in Adalat Prasad Vs Rooplal Jindal & Ors, the only remedy against summoning order under section 204 Cr.P.C for the accused is to invoke the inherent power of Hon'ble High Court under section 482 Cr.PC. On the strength of these arguments, it is prayed that instant revision petition may be dismissed.
6. I have heard rival contentions and perused the record including the written synopsis filed on behalf of parties.
7. Before deciding the instant revision petition, it would be relevant to reproduce relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :
--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 4 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:22 +0530 Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(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.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
8. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first. What is an 'interlocutory order' has been discussed by the Apex Court in the decision reported as (1977) 4 SCC 137 Amar Nath v. State of Haryana:
"6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub- section (2) of Section 397 of the 1973 Code may be extracted thus:
"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. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:30 +0530 interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
9. Apex Court in case Om Kumar Dhankar Vs State of Haryana & Anr, (2012) 11 SCC 252 dealing with the issue of maintainability of a revision petition against the order of summoning of accused held as under:-
"8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one) whether Criminal Revision Petition against the order of summoning is maintainable, and (two) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required.
9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another1. In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in the cases of Madhu Limaye Vs. State of Maharashtra, V.C. Shukla Vs. State, Amar Nath Vs. State of Haryana and K.M. Mathew Vs. State of Kerala and it was held as under :-
"6... This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same...."
10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."
10. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 6 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.12.02
15:14:39 +0530
11. Trial Court record reveals that an FIR in the instant case was registered pursuant to directions dated 22.02.2011 passed by Ld MM, South East District in case bearing CC No.17/11 titled as Ruhi Karim Vs Mohd Iliyas Azmi, on an application under section 156 (3) Cr.PC moved on behalf of respondent no.2.
12. After conclusion of investigation, chargesheet in the instant case was filed by Investigating Agency against accused Javed Azmi for offences under section 406/420/468/471/506 IPC and revisionists herein and certain other suspects were kept in Column No.12 of the chargesheet.
13. Post filing, the said chargesheet was taken up by concerned Magistrate on 06.12.2012. For the sake of convenience, the order dated 06.12.2012 passed by Ld Magistrate is being reproduced as under:-
"Ld. APP for the state (substitute) Accused is produced from JC.
Heard. Perused. I take cognizance of the offence. Copy of the documents supplied to the accused. Put up for scrutiny of documents and arguments on charge on 03.01.2013."
14. Therefore, it is evident from the said order that the then Ld. Magistrate, while taking cognizance, had proceeded on the next stage i.e. supply of documents to the accused. Though not recorded specifically, the order of summoning qua accused Javed Azmi is implicit in the said order. Further, it is also evident from the said order that despite being kept in Column No.12, the then Ld. Magistrate did not pass any order of summoning the revisionists herein or any other suspect as an accused in the instant matter. The said Magistrate got transferred and thereafter, Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:48 +0530 matter was taken up by her Successor i.e. the Magistrate who passed the impugned order with the observations as reflected in the said order and proceeded to summon the revisionists herein.
15. Seen in the light of aforesaid background, the observation of the Magistrate as reflected in the impugned order are contrary to record. In my view, the impugned order dated 15.10.2018, whereby the concerned Magistrate decided to summon the revisionists herein despite they having not been summoned by her Ld. Predecessor (vide order dated 06.12.2012), amounts to review/recall of the order dated 06.12.2012, which is impermissible in view of settled law as laid down by Hon'ble Apex Court in Adalat Prasad Vs. Rooplal Jindal, Supreme Court, Appeal (Crl) 91 of 2002, date of judgment 25.08.2004.
16. Be that as it may, it is evident from record that the only allegations against the revisionists are that they had threatened the respondent, however there is nothing to suggest that respondent/complainant got alarmed with the threats allegedly given by revisionists. Therefore, no offence under section 506 IPC is made out in the present case. Reliance is placed upon judgment of Hon'ble Delhi High Court in Amitabh Adhar & Anr Vs. NCT of Delhi & Anr, 2000 CRI. L.J.4772, wherein it was observed as under:-
"...............the averments made in the FIR and in the case diary statement of the complainant against the petitioner also do not satisfy the essential ingredients of the offences punishable under section 506/509 IPC. The threats alleged to have been given to the complainant Ms Bharti by the petitioners do not fall within the definition of criminal intimidation in as much as the complainant has nowhere stated that the threats given by the petitioners caused an Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:14:58 +0530 alarm to her. It is well settled that mere threats is no offence................"
17. Further, in judgment titled Surinder Suri Vs State of Haryana, 1996(2) RCR, the Hon'ble Punjab and Haryana High Court observed:
"......... the gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one which can be put into execution by the person threatening. A threat, in order to be indictable must be made with intent to cause alarm to the complainant. As for instance, mere vague allegations by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation........"
18. Similar are the observations of Hon'ble Madras High Court in "Noble Mohan Dass Vs. State Madras High Court 1988". It is a settled law that summoning of a person as an accused in a criminal case is a serious matter and he cannot be summoned in routine manner. Reliance is placed upon judgment of the Apex Court in M/s. Pespi Foods vs. Special Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128 wherein the Apex Court held that summoning of an accused in a Criminal case is a serious matter. The relevant observations at para 26 of the judgment is reproduced hereunder:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:15:33 +0530 preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
19. Similar are the observations of Apex Court in a recent judgment titled as Ravindranatha Bajpe Vs Mangalore Special Economic Zone Ltd., LL 2021 SC 505, Case no. CrA 1047-1048/2021, decided on 27.09.2021.
20. With these observations, it is held that the impugned order is bad in law and suffers from jurisdictional error. Same stands set aside accordingly. The present revision petition stands allowed in terms of aforesaid observations.
21. TCR be sent to Ld. Trial court alongwith copy of judgment for information.
22. Revision file be consigned to Record Room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.02 15:15:48 +0530 Announced in the open (ANUJ AGRAWAL) Court on 2nd December 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 42 of 2019 Arshad Ahmed Siddiqui & Anr Vs State & Anr Page No. 10 of 10