Delhi District Court
& Ors. vs State. on 23 July, 2007
1
IN THE COURT OF MS RAVINDER KAUR,ASJ,
NEW DELHI
CR No. 50/05
SI Rajender Kumar
& Ors. Vs State.
ORDER
1 By this order, I shall dispose of the revision petition preferred by the petitioners against the summoning order passed by the trial court on 19/03/2005 in complaint case title as "Manoj Kumar Vs Rajender Kumar & Ors bearing No. 748/1/290503, whereby the petitioners were summoned for the offence punishable U/s. 451/506/34 IPC.
2 Notice of the petition was issued to the State and respondent No.2 Manoj Kumar, the complainant, before the trial court.
3 TCR was summoned.
24 I have heard arguments and have gone the material on record.
5 The facts necessary for disposal of the present revision petition are that a complaint was filed by Manoj Kumar, respondent No 2 in the lower court U/s. 451/323/380/342/506/120B, IPC against the present petitioners and one another police official of SI rank but his name was not known to the complainant. The allegations as per the complaint are that on 20/08/2000 the father of the complainant had gone to USA when the complainant was studying in Germany. As a matter of co incident one Santokh Singh, the relative of the father of the complainant was also going to USA and one Mr Kapoor, as agent, arranged for the visa and passport. When Mr Kapoor handed over the passport to Santokh Singh, he objected as the passport 3 was not in the name of Mr. Santokh Singh, however Mr Kapoor, an agent, assured Santokh Singh that it was their daily work and not to worry and in case there was any problem he would be responsible and would hand over the amount of Rs.3,50,000/ to Santokh Singh. Further that Mr. Santokh Singh was arrested by US police and after release from jail after 9 months was sent back to India. He reached India on 13/1452001 and was arrested by the police of PS IGI Airport and a case FIR No. 218/01 U/s. 417/420/468 read with Sec. 12 Passport Act was registered against him. Thereafter Mr. Sanokh Singh obtained bail and started residing in the house of complainant, as such SHO concerned and SI Rajender Singh and other police officials started harassing Sh Ompal Singh, father of the complainant to involve him in a false case if he would not give Rs. 4 1,50,000/ to them. On 26/06/2001 the father of the complainant made a written complaint to the Commissioner of Police and DCP Vigilance against such erring police officials. To revenge the same on 27/1/02 at about 2.30 pm when complainant and his father and other family members were present at home all the accused persons ie the present petitioners and one SI trespassed in the house of complainant forcibly using filthy language and lifted complainant's father Sh Ompal Singh in Maruti Car 800 of white colour and went away to unknown place. After 15/20 minutes all the accused persons again forcibly entered the house of complainant saying they have misplaced the case file somewhere and started searching their house and the house of neighbour. It is alleged that accused persons forcibly kidnapped the complainant and also took the 5 passport of his father Ompal and his sister Samrita. Thereafter police was informed on 100 number. The complainant was confined at PS Najafgarh till 12/12.30 midnight and thereafter was released after giving him beatings and threats. It is alleged that lateron the father of the complainant was falsely implicated in case FIR No 218/01 PS IGI Airport as the complainant had refused to pay Rs. 1,50,000/ to them. 6 A report U/s 156(3) Cr PC was called for by the Ld. trial court. The detailed report dtd. 22.5.2002 was submitted before the trial court by SHO PS Najafgarh. As per the report detailed enquiry was conducted which revealed that Ompal Singh Dabas, the father of the complainant was in the business of fake passports and he was arrested in case FIR No. 136/01 U/s. 419/420/468/471/511 PS Chanakaya Puri, New 6 Delhi, dtd. 23/4/01. In the aforesaid case Ompal Dabas had taken responsibility of transporting minor children to USA and obtained their passports showing himself as their father residing at H No. F56, Lado Sarai and these passports were also seized. Thereafter again he made an attempt to send two more children to Germany on those passports and he was arrested by PS Chanakaya Puri.
7 Regarding case FIR No. 218/00 registered on 14.5.01 with PS IGI Airport, it is submitted that Santokh Singh s/o Gurudass arrived at IGI Airport by Flight No MH190 from USA on the passport in the name of Sh Satbir Sharma s/o Hari Sharma and the Immigration Officer detected that the cover of the passport had been replaced. On interrogation he disclosed his real name as Santokh 7 Singh and also disclosed that his journey was arranged by an agent known as KK who had taken Rs.3.4 lacs from him for this job. During investigation accused Santokh Singh disclosed that the agent KK accompanied him to New York where he suddenly deserted him. There he detained by US Immigration Authorities and sent to jail. The claim of Santokh Singh remained uncorroborated as the name of KK did not figure in the list of passengers who traveled by the aforesaid Flight on 20/8/2000. During investigation it further revealed that the ticket in the name of Satbir Sharma was issued through M/s IG Enterprises A2/42, Rajouri Garden Gupta Palace, New Delhi. Mr. VN Kapoor, the proprietor of M/s IG Enterprises on enquiry disclosed that one Ompal Dabas R/o Najafgarh had approached his employee Parkashan Nair in 8 August 2000 for purchase of an air ticket in the name of Satbir Sharma. He further informed that Ompal had also travelled in the same Flight on the same day and also collected hotel vouchers for the stay in Kuala Lumpur from the Air Lines office. The manifest of the flight was collected and departure of Ompal Dabas in that Flight was confirmed. Statement of Parkashan Nair was recorded U/s. 161 Cr.PC which confirmed that it was not KK but Ompal Dabas himself who travelled alongwith Santokh Singh, the son of his real sister. It further revealed that the embarkation cards of both Santokh Singh and Ompal Dabas were filled by one person in an identical handwriting. Santokh Singh intentionally misled the investigating authority by not disclosing the name of Ompal, his close relative and instead named the agent as KK who was never in an 9 existence. Sufficient evidence was collected by the police regarding involvement of Ompal Dabas in case FIR No 218/01 and all efforts of the police to arrest him failed. NBW were obtained from the Court on 16/8/2001. Since the warrants could not be executed despite their best efforts, fresh NBW were obtained on 28/9/2001 but to no effect as Ompal Dabas continuously evaded his arrest, consequently an application was moved before the Court seeking direction to proceed U/s 82 Cr. PC. The court vide its order dtd. 30.11.2001 issued proclamation against the accused and it is in this context the police party comprising of the present petitioners proceeded to the house of the complainant after lodging DD No. 9A with PS IGI Airport on 27/01/2002. Help of police of PS Najafgarh was also sought and an arrival entry in 10 the PS Najafgarh was made vide DD No. 32B. From there Ct. Azad Singh had also accompanied the petitioners for execution of the court directions. The police party on reaching the residence of Ompal Dabas arrested him in case FIR No 218/01.
8 Since the police had to recover the passport of Ompal Dabas, he was questioned about the same but while misleading the police party he took them in adjacent room on the pretext that he would get the passport recovered from his almirah and at that time unmindful of something amiss, IO of the case accompanied Ompal Dabas to the adjacent room followed by rest of the police party leaving the case file on the table of Ompal Dabas office, where complainant Manoj Dabas had just entered. In the absent of the police party from there Manoj Dabas got an 11 opportunity to take the case file away and as such case FIR No. 56/02 U/s 380 IPC was also registered against Manoj Dabas. He was arrested in the aforesaid case on 20.5.2002 after collecting specific evidence. It is submitted that the police party from PS IGI Airport had left PS Najafgarh alongwith accused Ompal Dabas at 6 pm after DD No. 21A PS Najafgarh and returned to PS IGI Airport at 7.30pm vide DD No. 16A. It is claimed that the allegations of Manoj Dabas who was detained at PS Najafgarh till 12.30 midnight is false and unfounded. It is further submitted in the report that Ompal Dabas was arrested as per law in case FIR No 218/01 PS IGI Airport in terms of the order of the Court and the police party responsible for the arrest of the accused were acting under the colour of their duty and committed no offence. However, the trial court 12 after receiving the report U/s. 156(3) Cr PC proceeded U/s 200 Cr PC and recorded the statement of complainant Manoj Kumar and his mother Neelam Dabas as CW 1 and Ompal Dabas his father as CW 2. 9 After examination of the complainant and his witnesses vide order dtd. 19/03/2005 the trial court found sufficient material on record and summoned the present petitioners U/s. 451/506 read with Section 34 IPC. It is the aforesaid impugned order which is under challenge.
10 The present revision petition has been filed on the ground that the respondent No 2 and his witnesses have obtained order of summoning by misrepresenting the facts and by suppressing the true facts. Further that trial court has erred in not appreciating that on 27/01/2002, the petitioners were 13 discharging their official duties in a legal and authorised manner and they did not commit any illegality as they had gone to the residence of respondent No 2 during the investigation of case FIR No 218/01 PS IGI Airport and for execution of process U/s 82 Cr PC against accused Ompal, father of respondent No.2. Further they legally entered the house and legally apprehended Ompal and carried out the investigation. They did not trespass into the premises nor gave any threats or committed any illegality and that the trial court has not appreciated that in the first alleged statement of Smt Neelam, the wife of Ompal and mother of respondent No 2 given to police officials of PS Najafgarh there are no allegations of the trespass or giving threats by the petitioners. There are no such allegations in her statement Ex.CW 14 2/A. Further that the trial court did not appreciate that the story alleged by the respondent No.2 was not probable as it is alleged that the petitioners trespassed into the house of the complainant at 2.30 pm, whereas the petitioners arrived at PS Najafgarh at 2.50 pm and made relevant entry in the PS to that effect. It is further submitted that the trial court failed to appreciate the report dtd. 22/05/02 called from PS Najafgarh to the effect that the petitioners acted in the discharge of their official duty. It is also alleged that the petitioners cannot be prosecuted without sanction U/s. 197 Cr PC or without sanction U/s 140 of Delhi Police Act since they acted in discharge of their official duties. Further that trial court has failed to appreciate the ingredients of Section 506 IPC which are not spelled out in the present case as conditional threat is not threat in the eyes of law 15 and there has to be an imminent threat to attract the ingredients of Section 506 IPC. It is submitted that the complainant and his father are habitual offenders and as such they had grudge against the present petitioners who merely acted in the discharge of their official duty against them.
11 The counsel for the petitioners has submitted that the present petitioners had visited the house of complainant in the discharge of their official duties and as such they had committed no offence if they had arrested the father of the complainant in case FIR No. 218/01 since he was wanted in the case and was avoiding arrest and it is with the order of the Court U/s 82 Cr PC the present petitioners had gone there to execute the warrants. It is further submitted that in case they had committed any offence in the discharge 16 of their official duties sanction U/s 197 Cr PC was required to prosecute them but no such sanction was obtained to prosecute the petitioners. The counsel for the petitioners has cited the following authorities in support of his contention:
1 2006 (II)AD (Cr.)SC 25, "Sankaran Moitra Vs Sadhna Das & Anr."
2 (2005)4 SCC 512, "K, Kalimuthu Vs State"
3 (l973) 2 SCC 701, "Pukhraj Vs State of Rajasthan & Anr."
4 AIR 1955 SC 287, "Shreekantiah Ramayya Munipalli Vs The State of Bombay"
12 On the hand, the counsel for the respondent 17 No 2 has submitted that the present revision petition is not maintainable in view of the judgment of "Adalat Prasad Vs. Roop Lal Jindal & Ors.'' as the only course open to the present petitioners was to approach the Hon'ble High Court of Delhi U/s 482 Cr PC. Further that the petitioners cannot be allowed to plead their defence in the revision and the Court has to see the legality of the impugned order only on the basis of the material which was available with the trial court at the time of passing of the impugned order. It is further submitted that the arguments of the counsel for the petitioners that no offence U/s. 506 IPC is spelled out against the accused persons has no force as this plea could be argued by the petitioners at the stage of framing of the charge and as such the revision ought not have been filed against the impugned order. It is further 18 submitted that no sanction U/s 197 Cr PC was required in the present case for the prosecution of the present petitioners since it was not in the discharge of their official duties that they trespassed in the house of the complainant and gave beatings to them and also threatened them with dire consequences. Counsel for the respondent No. 2 in support of his contention has cited authorities reported in 1 2004(3) JCC 1347 SC "Adalat Prasad Vs. Roop Lal Jindal & Ors."
2 2005(2)JCC 1082 DHC. "Harsh Khuranna Vs. Union of India".
3 2000(2) JCC 734 SC "PP Unikrishnan & Anr. Vs Puttiyottil Alikutty & Anr. '' 19 4 1998(1) JCC 244 DHC "State Vs Shiv Lal"
5 2005(IV) AD 299 SC "K. Kalimuthu Vs. State."
6 2006(I) AD 53 DHC " Balbir Singh Vs GNCT & Ors. '' 13 So far the argument of the counsel for the respondent that the revision petition is not maintainable in view of the judgment " Adalat Prasad Vs. Roop Lal Jindal & Ors. 2004(3) JCC 1347 SC" is concerned, the controversy has already been set at by my Ld. Predecessor vide order dtd. 22.8.05 wherein after considering the various authorities the Court was of the opinion that in view of the case law cited by the counsel for the petitioner it cannot be straight away said 20 that the present revision petition does not lie and notice was ordered to be issued to respondent No. 2. Nodoubt, my Ld. Predecessor was already of the view that the present revision petition was maintainable against the order of summoning of the petitioners by the trial court, however, the counsel for the respondent No 2 has submitted that this order was passed in his absence and he was not heard on the point. As such I have heard arguments from both the parties again on the point as to whether the present revision petition is maintainable. The counsel for the respondent No 2 has relied upon authority reported in "2004(3) JCC 1347 SC, Adalat Prasad Vs. Roop Lal Jindal & Ors." to the effect that once the summoning order was passed by the trial court against the present petitioners they had no option except to invoke the jurisdiction of Hon'ble 21 High Court of Delhi U/s 482 Cr PC. I have gone through the authority, referred above, wherein the trial court had taken cognizance of the offence and issued process of the offences U/s. 420/120 B IPC against the accused persons, the accused moved an application for recalling of the order of summoning and the trial court while allowing the application recalled the order. The aforesaid order of the trial court was challenged before the Hon'ble High Court and it was held that the Magistrate did not have the power to review its own order. The plaintiff approached the Hon'ble Apex Court against the order of the Hon'ble High Court and it was held that Criminal Procedure Code does not contemplate a review of an order. It was held that in the absence of any review power or inherent power with the subordinate courts the remedy lies in invoking 22 Section 482 Cr. PC. The aforesaid authority further discussed in the authority reported in "2005 (2) JCC 1082 Harsh Khurana Vs Union of India & Anr.", wherein it was held that when there is a specific remedy available under the Code, ordinarily it not open to this Court ( The Hon'ble High Court) to entertain a petition U/s 482 Cr PC or under Article 226 of the Constitution more particularly in view of the principles laid down by the Apex Court in the case of " State of Haryana Vs Bhajan Lal, AIR 1992 SC 604". In the said case certain categories were formulated wherein the powers U/s. 482 Cr. PC were to be exercised by the Hon'ble High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice, which are as follows: i Whether the allegations made in the FIR 23 or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute, any offence or make out a case against the accused.
ii Whether the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers U /s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. iii Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same 24 do not disclose the commission of any offence and make out a case against the accused.
iv Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated U/s. 1552(2) of the Code. v Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused. 25 vi Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
vii Where a criminal proceeding is manifestly attended with malafide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and 26 with a view to spite him due to private and personal grudge.
It is further held that the jurisdiction U/s 482 Cr PC has to be exercised sparingly and with circumspection.
14 Perusal of these authorities shows that in none of the matters the powers of the Court U/s 397 Cr PC were discussed so as to say that a revision petition against the order of summoning was not maintainable before a Session Court or before the Hon'ble High Court and that the aggrieved party could only approach the Hon'ble High Court U/s 482 Cr PC for quashing of the proceedings. On this point I have gone through the authority reported in "AIR 1977 SC 2185 Amar Nath Vs state of Haryana" wherein 27 "a interpretation, scope, ambit and connotation of the word "interlocutory order" as appearing in Section 397 Cr PC has been discussed. Therein it was held that Section 482 contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Section 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397 (2) and cannot be the subject of revision by the High Court, then to such a case the provision of Section 482 would not apply. It 28 is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers."
"The term "interlocutory order" was also discussed at length in the aforesaid authority. It is held that " the term " interlocutory order" in S. 397 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 29 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 S. 397. 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 30 which no revision would lie under Section 397(2). 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 interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.It further held that the order of the Magistrate summoning the appellants was one which was a matter of moment. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind 31 could not be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.
That being the position, a
revision against the order was
fully competent under S. 397
(1) or under S. 482."
15 In view of the aforesaid authority the
summoning order of the petitioners has substantially affected the rights of the petitioners and therefore cannot be termed as interlocutory order. Thus merely for the reason that in the judgment " Adalat Prasad Vs. Roop Lal Jindal & Ors. 2004(3) JCC 1347 SC" it was held by the Hon'ble Apex Court that against the order of summoning of the petitioners the remedy lies 32 U/s 482 Cr PC by itself does not affect the rights of the petitioners to approach the Court U/s. 397 Cr. PC as in th authority "2004(3) JCC 1347 SC Adalat Prasad Vs. Roop Lal Jindal & Ors" there was no occasion to discuss the provisions of Section 397 Cr PC. The relevant point discussed in the aforesaid authority was whether the Magistrate had powers to review its own order and it is in that context it was held that the Magistrate had no power to review or recall its own order and the remedy available to the accused was by invoking the provisions of Section 482 Cr PC. In the aforesaid authority it has nowhere been mentioned that the aggrieved person could not approach the Session Court or the Hon'ble High Court for resdressal of his grievance U/s. 397 Cr PC. The only requirement which was to be fulfilled before approaching the Sessions 33 Court in revision was that the impugned order was not an interlocutory order. In the present case relying upon the authority "Amar Nath Vs Statement of Haryana AIR 1977 SC 2185" the summoning order is not an interlocutory order, thus revision is very much maintainable against the impugned order. 16 Now coming to the merits of the revision petition. The perusal of the order of the trial court shows that Ld Judge did not at all consider the report of the SHO U/s. 156(3) Cr PC to the effect that CW 3 Ompal father of the complainant Manoj Kumar was an accused in case FIR No. 218/01 registered at PS IGI Airport and there was a court order against Ompal Dabas U/s 82 Cr PC since he was avoiding his arrest in that case and as such the police party comprising of the present three petitioners went to the house of the 34 complainant on 27/01/2002 and arrested CW 3 Ompal Dabas in case FIR No 218/01. In the report U/s 156(3) Cr PC it is mentioned categorically that DD No 9A was registered with PS IGI Airport on 27/1/02 before the present petitioner proceeded to the house of Ompal Dabas for his arrest in case FIR No 218/01 and as such they had gone to the residence of the complainant not to harass the complainant or his family members including his father Ompal Dabas but to perform their official duties to arrest the accused in case FIR No 218/01 who was incidentally the father of the complainant. DD No 32 B further corroborates the fact that the present petitioners had visited PS Najafgarh on that day and had taken the help of police of PS Najafgarh for executing the process U/s 82 Cr.PC against Ompal Dabas at his residence and they were 35 accompanied by Ct Azad Singh of PS Najafgarh of his residence. Further DD No. 21 registered with PS Najafgrh at 6 pm proves their departure from there and their arrival is recorded at PS IGI Airport at 7.30 pm vide DD No 16A.
17 In view of the official record available with the trial court it was the duty of the trial judge to appreciate the testimony of the complainant and his witnesses in the light of the official record to arrive at the just and fair conclusion whether their testimony inspired any credence. It is pertinent to mention that if such type of complaints are entertained by the judges then it would amount to demoralising the investigating agency and no police officer would venture for fair investigation. In the present case the petitioners had not gone to the house of the complainant with a view to 36 harass him or his family members but for execution of the process U/s 82 Cr PC against Ompal Dabas as he was absconding in the case FIR No. 218/01 PS IGI Airport. As such their entrance in the house of the complainant was legal and their taking away Ompal father of the complainant was also legally justified. It is further pertinent to mention that the complainant and his witnesses i e his mother and Ompal Dabas who is an accused in the aforesaid case did not disclose before trial judge that Ompal Dabas was wanted in case FIR No. 218/01 PS IGI Airport and was arrested by the police in execution of process U/s 82 Cr PC issued by the Court against him. As such the complainant did not disclose the true facts before the Trial Judge and tried to misuse the process of Court for their personal benefit by concealing material facts. The testimony of 37 the complainant and his witnesses how so ever consisted it may be, had to be appreciated in the light of the official record i e the report from SHO PS Najafgarh received U/s 156 (3) Cr PC and the relevant Ddsa 16A dtd. 27.01.02, 32 B dtd. 27.1.02 and 9A dtd. 28.1.02. As per DD NO 32B the present petitioners had left the PS Najafgarh at 2.50 pm for Gopal Nagar in their official vehicle i e the residence of the complainant where his father Ompal Dabas was also residing, whereas the complainant Manoj Dabas as CW 1, his mother Neelam Dabas as CW 2 and Om pal as CW 3 have all deposed that the petitioners had reached their house on 271.02 at 2.30 pm which is against the official record. Besides DD NO. 16A dtd 27.1.02 is lodged by SI Rajender Kumar regarding their arrival in PS IGI Airport after arresting accused Ompal Dabas in 38 case FIR No. 218/01 PS IGI Airport. It is categorically mentioned in the aforesaid DD that accused was arrested in the presence of his wife Neelam and his son Manoj Dabas and also that the file of the IO was also misplaced during the arrest process of accused Ompal Dabas and suspected that it was removed by Manoj Dabas for which a separate case was registered against him vide FIR No. 56/02. In the light of the aforesaid material on record, I am of the opinion that primafacie there was no material on record with the trial court that the present petitioners had trespassed into the house of the complainant and had also given threats. The petitioners have not denied that they had not gone to the house of the complainant, however they have justified their act that it was in discharge of their official duties for arresting accused Ompal Dabas, the 39 father of complainant Manoj Dabas as he was an absconder in case FIR No. 218/01 PS IGI Airport. Since the present petitioners had committed no offence, therefore there was no question of their being prosecuted with or without sanction U/s. 197 Cr PC. I find no merits in the impugned order of the trial court dtd. 19/03/2005, the same is hereby set aside. All the petitioners are discharged.
TCR be sent back. Revision file be consigned to the Record Room. ANNOUNCED IN OPEN (RAVINDER KAUR) COURT TODAY ASJ/NEW DELHI DATED: 23/07/2007