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Delhi District Court

Yogesh Sharma vs The State on 11 February, 2013

IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS 
         JUDGE (SOUTH): SAKET NEW DELHI


Criminal Revision  No. 369/2012
ID No.: 02406R0295302012  


Yogesh Sharma
s/o late Sh. Dev Sharma,
R/o House No. 35/1142, DDA Flats,
Dr. Ambedkar Nagar,
New Delhi.                                                   ...        Petitioner


            Versus
    1. The State.
    2. Mrs. Sneh Sharma,
       D/o Sh. Satpal Pathak,
       R/o H. No. 306, Chattarpur,
       New Delhi.                                             ...       Respondent


Instituted on: 29.11.2012
Judgment reserved on: 11.02.2013. 
Judgment pronounced on : 11.02.2013.

J U D G M E N T 

1. This criminal revision petition is directed against the order dated 06.08.2012 passed by Sh. Sandeep Garg, Metropolitan Magistrate­07 (South) on the file of criminal case no.56/1 of 2007, whereby charge for offence under Section 324 IPC was Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 1 of 7 ordered to be framed against the petitioner.

2. On notice, respondent no.2 has appeared with counsel to resist the petition.

3. I have heard Sh. Pardeep Sharma, advocate for the petitioner, and Sh. Jitender Kumar Jha, advocate (appointed by District Legal Services Authority) for respondent no.2. I have gone through the trial court record.

4. The proceedings in which the impugned order was passed relate to complaint case presented on 18.10.2007 by respondent no.2, inter­alia, against petitioner alleging offences punishable under Sections 324/506/34/120­B IPC having been committed. The complaint case was presented with application for investigation under Section 156(3) Cr.P.C. The said application, however, was declined vide order dated 09.01.2008 on which date the Magistrate opted to take cognizance and called upon the respondent no.2 (complainant) to lead pre­summoning evidence.

5. The complainant in the aforesaid inquiry under Sections 200/202 Cr.P.C. examined herself as CW­1 on 27.09.2008. She also examined her daughter Tejal Sharma as CW­2 on 28.02.2009.

Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 2 of 7

6. After the pre­summoning evidence had been concluded, the matter was considered by the Magistrate for purposes of Section 204 Cr.P.C. The order was passed on 16.02.2010 finding sufficient grounds to proceed against the petitioner (accused) for offence under Section 324 IPC. He, thus, stood summoned as accused by virtue of the said order.

7. The petitioner as accused appeared before the Magistrate on 12.07.2011 and was admitted to bail. After compliance with the provisions contained in Section 208 Cr.P.C. on 26.07.2011, the case was adjourned by Sh. Rakesh Pandit, Additional Chief Metropolitan Magistrate (South) to 10.08.2011 for pre­charge evidence to be recorded.

8. As pointed out by the counsel for the petitioner (accused), the case against him arises out of a private complaint case and the offence under Section 324 IPC gives rise to a warrants case, which is required to be tried as per provisions contained in Chapter XIX Cr.P.C. The procedure for cases instituted otherwise than on police report is slightly different from those instituted on a police report. Particularly, Section 244 Cr.P.C. prescribes that, unlike in the police case (where charge is to be considered at the out set), in warrant trial case on a private Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 3 of 7 complaint, the complainant is to be called upon to lead evidence and it is only thereafter that the question of consideration of the case for charge (or discharge) occurs under Sections 245 and 246 Cr.P.C.

9. Thus, the Additional Chief Metropolitan Magistrate vide his order dated 26.07.2011, rightly chose the correct procedure, while listing the case for pre­charge evidence. The matter stood hanging fire at that stage over several dates. Eventually, on 03.01.2012, both complainant and her witness Tejal Sharma were present. It is at that stage when deviation from the prescribed procedure occurred.

10.The short order recorded on that day indicates the complainant was present with her counsel Sh. Vijender Sharma, advocate, while the petitioner was present with Sh. Pardeep Sharma, advocate who is also counsel for him in the revision petition. The witness Tejal Sharma, who had been earlier examined in pre­summoning inquiry was called into the witness box and examined, thereafter cross­examined and discharged. But, after the said proceedings, when the complainant was called in as witness, she was only tendered for cross­examination. The counsel Sh. Pardeep Sharma cross­examined the complainant Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 4 of 7 appearing on that date as CW­1. The cross­examination remained inconclusive. She was again called on 21.04.2012 and further cross­examined and then discharged.

11.The impugned order whereby charge has been found made out has been passed on the basis of statements of the said two witnesses thus recorded on 03.01.2012 and 21.04.2012.

12.As per requirements of law, at the stage of Section 244 Cr.P.C., the witnesses were to be examined afresh (which is why CW­2 Tejal Sharma was examined afresh). But, in the case of respondent no.2, the said exercise was junked and she was only tendered for cross­examination. It appears that there was some understanding reached at that stage, though not so expressly recorded in the proceedings, that the statement of respondent no.2 in the pre­summoning inquiry could be adopted for purposes of completing the formality of recording her examination­in­chief at the stage of Section 244 Cr.P.C.

13.Having thus participated in the proceedings before the trial court, Sh. Pardeep Sharma, advocate has now come up in the revisional jurisdiction for the accused agitating that the procedure adopted by the Magistrate was not correct. Technically, he is on a sound footing. But then, question Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 5 of 7 remains as to why he did not correctly advise the Magistrate at the proper stage. Undoubtedly, it was also the responsibility of the counsel for respondent no.2 to assist the Magistrate in following the proper procedure. The fault has occurred not only on the part of the Magistrate but also on the part of counsel on both sides including Mr. Pardeep Sharma, advocate.

14.A lot of energy and precious judicial time has been wasted in completing an exercise which is not in sync with the letter and spirit of the law governing the procedure required to be followed. The counsel on both sides have failed to discharge their responsibility not only towards their respective clients but also towards the court and must feel accountable for the delay and the consequential addition of the costs to the parties.

15.Be that as it may, since the departure from the prescribed procedure would vitiate the impugned order, it is bound to be set aside. Ordered accordingly.

16. The learned Magistrate is directed to fix a suitable date on which respondent no.2 shall appear so as to be examined afresh for purposes of Section 244 Cr.P.C. Thereafter, she shall be tendered for cross­examination. After completing the said exercise, the Magistrate shall hear the parties afresh and take a Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 6 of 7 fresh decision on the question of charge.

17. The trial court record along with copy of this judgment be sent back.

18.File of revision petition be consigned to Record Room. Announced in open Court today on this 11th day of February, 2013 (R.K. GAUBA) District & Sessions Judge (South): Saket/New Delhi Crl. Rev. No. 369/12 Yogesh Sharma Vs. State & anr. Page 7 of 7