Delhi District Court
Cr No.14/11 (Vijay Kumar vs . State) on 1 March, 2011
CR No.14/11 (Vijay Kumar Vs. State)
IN THE COURT OF SH. DINESH KUMAR SHARMA,
ADDL. SESSIONS JUDGE - 02 (SOUTH)
SAKET COURTS, DELHI.
CR No.14/11
Unique Case No. 02403R0
Vijay Kumar
S/o Sh. Kanhaiya Lal
R/o G1/7, Malviya Nagar
New Delhi - 11 0017.
...... Petitioner
VERSUS
The State ...... Respondent
Revision petition u/S.397 Cr.PC against the orders of
Ld. MM dated 09.12.2010 and 24.01.2011
Date of receipt of revision: 19.02.2011
Arguments Heard : 25.02.2011
Date of decision: 01.03.2011
ORDER
1.0 Vide this order, I propose to dispose of the revision petition filed by the petitioner against the impugned order dated 09.12.2010 and 24.01.2011 passed by Ld. MM. Vide order dated 09.12.2010, notice was issued to the petitioner to close the shop and keep it close till the time he Page 1 of 10 CR No.14/11 (Vijay Kumar Vs. State) obtains licence from the appropriate authority for running the eating house. Vide order dated 24.01.2011, notice was issued to the father of accused i.e Kanhaiya Lal.
1.1 Upon filing of the revision petition, trial court record (TCR) was called and received.
2.0 Perusal of the TCR has indicated that a kalandra u/S.28/112 DP Act was preferred in the court on 31.08.2010. Ld. MM admitted the accused to bail and served a notice u/S.28/112 Delhi Police Act (hereinafter referred toas "DP Act") upon the accused. Accused pleaded not guilty and claimed trial. While the case was at the stage of PE, the case was taken up by Ld. MM on 09.12.2010 and passed the following order :
"09.12.2010 Present : Ld. APP for State Accused is absent.
IO ASI Nanka Ram in person PW Ct. Vipin Kumar in person IO States that there was no name of the shop which accused was running as eating house for selling pakodas etc. The IO states that accused Vijay Kumar is the owner of the eating house and the shop / eating house is still functioning. Notice be issued to accused to close the shop and keep it closed till the time he obtains licence from the appropriate authority for running the eating Page 2 of 10 CR No.14/11 (Vijay Kumar Vs. State) house. IO is directed to ensure that the accused closes down the shop and does not open it till the time he obtains the licence, and if accused refuses to comply with the order, the IO is directed to close down the shop. Fix for report on 21.12.2010. Summons be issued to accused through IO to appear on next date."
Thereafter, on 21.12.2010, IO reported that shop No.11 has been closed. The photographs were filed on the record. The petitioners stated that shop No.11, marg, Sarojini Nagar was owned by his father Kanhaiya Lal. Thus, Ld. Trial court issued the notice to the IO so as to direct the father of the accused Kanhaiya Lal to appear in person with documents of the ownership of shop No.11 on 24.01.2011. 2.1 Aggrieved of the orders passed by Ld. Trial Court, the petitioner has invoked the revisional jurisdiction of this court. It has been submitted that Ld. Trial Court has adopted the procedure which is totally contrary to the procedure laid down by Cr.P.C.
3.0 Sh. Anil Gujral, Ld. counsel for the petitioner has submitted that the order passed by the Ld. Trial Court are liable to be set aside. 3.1 Ld. Addl. PP for State has also very fairly submitted that Ld. Trial Court has not proceeded in accordance with the scheme of Cr.P.C. Page 3 of 10
CR No.14/11 (Vijay Kumar Vs. State) 4.0 I have heard Ld. Addl. PP for State as well as Sh. Anil Gujral, Ld. counsel for petitioner and have also perused the record carefully. 5.0 Section 28 of the DP Act confers power to make regulations for regulating traffic and for preservation of order in public premises. Sub clause z(a) of the Act provides that Commissioner of Police may, by notification in the Official Gazette, make regulations to provide for registration of eating house, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating house, and annual renewal of such registration within a specific period.
5.1 Section 112 of DP Act provides penalty for not obtaining licence in respect of place of public entertainment or certificate of registration in respect to eating house or for not renewing such licence or certificate within prescribed period, which reads as under :
"
(1) Whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate of registration thereunder in respect of any eating house, or to renew the licence or the certificate, as the case may be, within the prescribed period shall, on conviction, be punished with fine which may extend to fifty rupees. (2) Any court trying any such offence shall in addition Page 4 of 10 CR No.14/11 (Vijay Kumar Vs. State) direct that the person keeping the place of public entertainment, or the eating house, in respect to which the offence has been committed shall close such place, or eating house until he obtains a licence or fresh licence, or a certificate of registration or fresh certificate of registration, as the case may be, in respect thereof and thereupon such person shall forthwith comply with such direction."
5.2 Section 129 of DP Act provides about the summary disposal of certain cases. However, if we peruse Section 110 DP Act and 129 DP Act, it is clear that Section 112 DP Act has been excluded from the same. The purpose behind this seems to be that the legislature in its wisdom has considered the offence in respect of eating house treated to be serious. The broader object of this act is to maintain proper hygiene. 5.3 The Code of Criminal Procedure lays down the procedure for conducting the criminal trial. The basic consideration of the legislature is that the accused person should get a fair trial in accordance with the accepted principles of natural justice. Section 2(w) defines "summons case"
means a case relating to an offence, and should not be the warrant case. The warrant case has been defined u/S 2(x), "warrant case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. In addition to it, Section 260 of Cr.PC confers power upon Chief Judicial Magistrate, Metropolitan Page 5 of 10 CR No.14/11 (Vijay Kumar Vs. State) Magistrate and any Magistrate of the first class specially empowered on this behalf by the Hon'ble High Court to try in a summary way all or any of the offences enumerated in the provision. Section 260(i) Cr.PC provides that offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years can be tried summarily. As per Section 112 Delhi Police Act, 1978, the punishment prescribed is Rs.50/ or in the event of order not being complied with for closure of the place, imprisonment for one month. Thus, the offence necessarily falls within the definition of summary trial and as per Sec. 260 Cr.PC, it can be tried as a summary way by a certain category of officers i.e. CJM, Metropolitan Magistrate, Magistrate of First Class or even a second class Magistrate, if empowered by the Hon'ble High Court as provided u/S 260 (i) Cr.PC. 5.4 Section 262 Cr.PC provides procedure for summary trials. It states that under this chapter, the procedure prescribed in this Code for the trial of summons case shall be followed.
Chapter XX of the Cr.PC provides procedure for trial of summons case by Magistrate. Section 251 Cr.PC, the opening section of Chapter 20 provides that in a summons case when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him. He shall be asked (1) whether he pleads guilty (2) if he has any defence to make. Section 251 Cr.PC specifically Page 6 of 10 CR No.14/11 (Vijay Kumar Vs. State) provides that it shall not be necessary to frame formal charge. It is pertinent to mention here that in Chapter XIX which concerns trial of warrant cases by Magistrates, there is a specific provision u/S 240 Cr.PC for framing of charge. It is to be kept in mind that Sec. 240 (2) Cr.PC provides that charge shall be read and explained to the accused and he shall be asked whether he pleads guilty of the charge or claims to be tried. Thus, the framers of the law, specifically laid down two procedures, in the case of summons trial, and warrant trial at this stage. Section 252 Cr.PC provides that on the accusation being explained, if the accused pleads guilty, the Magistrate may convict him thereon.
5.5 Section 254 Cr.PC provides procedure in case, the accused is not convicted u/S 252 or Sec. 253 Cr.PC. It provides that the Magistrate shall proceed and hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence.
It is pertinent to mention here that there is also another important provision in the Cr.PC which is contained in Sec. 207 Cr.PC. It provides for supply to the accused of copy of police report and other documents. It does not make any difference between summon case, warrant case or summary trial case. It mandates the Magistrate to supply the copy without any delay to the accused.
Page 7 of 10
CR No.14/11 (Vijay Kumar Vs. State) 6.0 Let us examine that in this background of the scheme of Cr.PC, whether the Ld. Trial Court has conducted the proceedings as per law. Before proceeding further, it is pertinent to mention here that Section 397 Cr.PC confers the jurisdiction upon the Sessions Court to call for and examine the record of any proceeding for the purpose of satisfying itself as to the correctness, legality or propriety of any finding. The perusal of this provision read alongwith Section 399 Cr.PC indicates that the Sessions Court can suo motu also call for the report so as to satisfy itself as to the correctness, legality or propriety of any finding. Perusal of the TCR has indicated that in the present case the kalandra was presented before the Ld. MM on 31/8/2010. On 31.08.10, Ld. Trial court passed the following order :
"DD No.23A PS : Sarojini Nagar 31.08.2010 Present : Ld. APP for the State Accused in person SI Yogesh Raj is present on behalf of IO.
Fresh Kalandra filed. It be checked and registered. Accused is admitted to court bail upon furnishing of personal bond / surety bond in the sum of Rs.3000/ with one surety in the like amount.
No surety is present today. Personal bond is accepted till next date of hearing. Notice under section 28/112 DP Act is framed against the accused, to which the accused pleaded not guilty and claimed trial.Page 8 of 10
CR No.14/11 (Vijay Kumar Vs. State) Witnesses be summoned for PE on 01.09.2010.
Sd/ (S.P.S. Laler) MM03(South) 31.08.2010"
6.1 Bare perusal of this order makes it clear that section 207 Cr.PC was not complied and copies were not supplied to the accused. This was the first violation of the sacred provisions of Cr.PC. Ld. Trial court also seems to have not followed the provisions of section 251 Cr.P.C. as after framing of the notice, which also seems to be more in the form of charge, did not put specific question to the accused as required under Section 251 Cr.P.C. The illegality did not stop here. While the case was at the stage of prosecution evidence on 09.12.2010, Ld. Trial court suddenly passed the order for the closure of the shop, that too in the absence of accused. IO filed the compliance report in respect of the closure of the shop. However, the accused stated that the shop No.11, Ring Road Market, Sarojini Nagar, which was closed by the virtue of order of the Ld. Trial Court, was owned by his father Kanhaiya Lal. Ld. Trial Court then summoned Sh. Kanhaiya Lal. I consider that Ld. Trial Court apparently did not follow the scheme of law as provided in the scheme of Cr.PC. While the case was at the stage of evidence, it suddenly passed an order for the closure of the shop without giving an opportunity to the accused of being heard. The order dated 09.12.2010 indicates that even on that day, accused was absent. No trial can Page 9 of 10 CR No.14/11 (Vijay Kumar Vs. State) be conducted without following the principles of natural justice "audi alterm Partem" is a basic life line of Criminal Justice Delivery System. No person can be convicted without following these golden principles of natural justice.
6.2 I consider that the entire proceedings conducted by the Ld. Trial Court starting from 31.08.2010 till 18.02.2011 is bad in law and cannot be sustained. Thus, exercising the power under section 399 Cr.P.C., all the orders dated 31.08.2010 till 18.02.2011 are liable to be set aside. Ld. Trial court is directed to proceed afresh. The copies be supplied as required u/S. 207 Cr.P.C. and then it may proceed as per Chapter XX of the Cr.P.C. Needless to say, the closure order passed by the Ld. Trial court is also set aside.
With these observations, revision petition is allowed. Parties are directed to appear before the Ld. Trial Court on 11.03.2011. 6.3 A copy of this order along with TCR be sent to the Ld. Trial Court.
Revision file be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma) on 01.03.2011 Addl. Sessions Judge02(South) Saket Courts / New Delhi Page 10 of 10 CR No.14/11 (Vijay Kumar Vs. State) CR No.14/11 01.03.2011 Present : Petitioner in person along with Sh. Anil Gujral, Advocate Ld. Addl. PP for State Vide separately announced order, revision petition is allowed. Parties are directed to appear before the Ld. Trial Court on 11.03.2011.
A copy of this order alongwith TCR be sent to the Ld. Trial Court.
Revision file be consigned to Record Room.
(Dinesh Kumar Sharma) Addl. Sessions Judge02(South) Saket Courts / New Delhi 01.03.2011 Page 11 of 10