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Delhi District Court

Sh. Manmohan Ahuja (He Was The Accused ... vs The State (Govt. Of Nct Of Delhi) on 22 February, 2023

 IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL
SESSIONS JUDGE-04 (NORTH), ROHINI COURTS, DELHI

Criminal Revision No. : 231-2022
In the matter of Sh. Manmohan Ahuja v. State & Anr.
CNR no. DLNT01-010565-2022

Sh. Manmohan Ahuja (He was the accused no. 6 in the
complaint case).
S/o Sh. Rajender Ahuja
R/o G-5, H. No.-40, Sector-16,
Rohini, Delhi-89                      ......Revisionist

     Vs

1. The State (Govt. of NCT of Delhi)
2. Varun Sharma
S/o Satish Sharma
R/o A-2/1, First Floor,
Model Town-1, Delhi-09                   ......Respondents

______________________________________________________ Criminal Revision No. : 246-2022 In the matter of Pradeep & Ors. v. State & Anr. CNR no. DLNT01-010816-2022

1. Pradeep Kumar S/o Pritvi Singh R/o Q-28, Second Floor, Prince Road, Opposite Khanna Eye Center, Model Town, Delhi-110009

2. Pritvi Singh S/o Sh. Narayan R/o Q-28, First Floor, Opposite Khanna Eye Center, Model Town, Delhi-110009 CR No. 231­2022, CR No. 246­2022 Page 1 of 11

3. Rajesh Kumar S/o Pritvi Singh R/o Q-28 , First Floor, Opposite Khanna Eye Center , Model Town, Delhi

4. Sanju Singh W/o Pritvi Singh R/o Q-28, Second Floor, Opposite Khanna Eye Center, Model Town, Delhi-110009

5.Vijender Singh S/o Rajender Singh R/o G-3/81A, Model Town III Delhi-110009 ......Revisionists Vs

1. The State (Govt. of NCT of Delhi)

2. Varun Sharma S/o Satish Sharma R/o A-2/1, First Floor, Model Town-1, Delhi-09 ......Respondents Date of institution : 07.11.2022 Date of Argument : 24.01.2023 Date of Order : 22.02.2023 Present: Ms. Akshita, ld. counsel for the revisionist Manmohan Ahuja.

Sh. Nitish Pande, ld. counsel for the all the revisionists in CR No. 246-2022. .

Sh. Sanjay Jindal, ld. counsel for the State/R.1.

Arguments on revision petitions heard.

Perused the material placed on record including the TCR.

THIS IS A COMMON ORDER ON REVISION PETITION NOs. 231-2022 AND 246-2022

1. The present criminal revision petitions u/s 397 of Cr.P.C has been filed by the revisionists herein for setting aside the impugned order dated 03.11.2022 passed by Sh. Pranav Joshi, Ld. MM-03, North, Rohini Courts, Delhi, in Complaint Case No. : 11662/2016, PS Model Town titled as 'Varun Sharma v. Pradeep And Ors.', whereby vide order dated 03.11.2022, the ld. MM has directed the SHO PS Model Town to register an FIR against the accused persons.

2. The brief facts of the case are that on 20.03.2015 about 8:15 p.m., the complaint asked the accused no.5 to move his car as his car was parked in the obstructive manner and a scuffle took place in which the accused nos. 1 to 5 assaulted the complainant. It is alleged that as accused no. 2 is a retired ACP and accused no. 5 is a sub-inspector, they used their influence to and an FIR bearing no.300/15 was registered against them but no action was taken on their complaint. It was also alleged that accused nos. 1 to 5 were also under the influence of liquor at the time of the incident and were in fact drinking in the car but despite that complainant and his CR No. 231­2022, CR No. 246­2022 Page 3 of 11 family were not heard. The complainant has alleged that even their complaint was not received by the police officials. It is alleged that the complainant was pressurized by accused no.6 (revisionist) to withdraw the complaint against them. It is further alleged that the complainant was shocked when he received summoned in the case FIR No. 300/15 and came to know about the said FIR then only. It is also alleged that despite the incident being captured in the CCTV footage the same was also concealed from the court by the accused persons.

3. It is submitted by ld. counsel for the revisionist/accused that legal provisions applicable on the police officials i.e. Section 140/Delhi Police Act have not been complied with in the present case and in consequence no order should have been passed by the ld. MM against the accused No. 5 and 6, who were serving police officials at the time of commission of alleged offence. It is further argued that the law laid down in the judgment of Hon'ble Supreme Court of India titled as 'Priyanka Srivastava & Anr. V. State of U.P. & Ors., 19.05.2015' Crl. Appeal no. 781/2012 and 'Babu Venkatesh & Ors. vs. State of Karnataka & Anr. dated 18.02.2022' (Crl. Appeal No. 252/2022) has also not been applied by the complainant. It is submitted that as per these judgments before filing application u/s 156(3) Cr.P.C., the complainant should have exhausted 154(1) and 154(3) Cr.P.C. It is further submitted that affidavit with regard to the compliance of 154(1) and 154)(3) Cr.P.C was also required to be filed before filing application u/s CR No. 231­2022, CR No. 246­2022 Page 4 of 11 156(3) Cr.P.C. which has not been done in the present case. It is submitted that as the relevant sections had not been complied the ld. MM was required to dismiss the application u/s 156(3) Cr.P.C. filed by the complainant. The ld. counsel has also relied on the judgment of the Hon'ble High Court of Delhi titled 'M/s. Skipper Beverages Pvt. Ltd. v. State' 2001 IVAD Delhi 625. It is submitted that as per the judgments all the evidence was in the possession of the complainant, hence there was no requirement for ordering registration of FIR as he could maintain his complaint u/s 200 Cr.P.C. It is also argued by ld. counsel for the revisionist that already one FIR bearing No. 300/2015, PS Model Town is registered with regard to the incident that took place on 20.03.2015. It is submitted that two FIRs are no permissible with regard to one incident. Hence, the order of the ld. MM needs to be set aside. Ld. counsel has also relied on another judgments to substantiate his arguments which are as follows:

a)'Subhkaran Luharuka & Anr. v. State & Anr., 09.07.2010', Crl. M.C. No. 6122-23/2005 by the Hon'ble High Court of Delhi.

b)'Brinda Karat & Ors. v. State of NCT of Delhi & Ors., 13.06.2022', Crl. M.A. 13859/2020 by the Hon'ble High Court of Delhi.

c)'Mohd. Salim v. State', Crl. M.C. No. 3601/2009, by Hon'ble High Court of Delhi

4. It is submitted by ld. counsel that the revisionist No. 6 being the police official did every required act for fair investigation as he had done medical examination of both the parties in which one CR No. 231­2022, CR No. 246­2022 Page 5 of 11 person Pradeep (accused No.1) suffered simple injuries as per MLC No. 963/1. However, on the MLC Nos. 93656, 93655 and 93654 of complainant and his father doctor opined that "no external fresh injury at the time of medical examination and result of injury mentioned as 'Nil'. Upon which an FIR No. 300/2015, u/s 323/341/34 IPC was registered on DD entry No. 32A and MLC No. 963/1. He further submitted that the revisionist issued a notice u/s 41 A Cr.P.C. to the complainant and his father and brother who handed over the CCTV footage of the incident to the IO and the same is the part of the chargesheet. Ld. counsel further submitted that alleged grievance of the complainant has been duly addressed and a vigilance inquiry has been conducted and the revisionist has been acquitted of any of the alleged allegations of the complainant and the inquiry report was also placed before the ld. Trial Court. Ld. counsel further submitted that the all the allegations levelled against the revisionist are totally false as all the evidence alongwith CCTV footage of the incident is part of the charge-sheet. He further submitted that the revisionist had conducted the investigation in fair manner and lodged an FIR against the complainant and others. He has further submitted that complainant has falsely implicated the revisionist in the present matter just to fix the score with him. He has further submitted that the complainant has filed a complaint after a long delay of about 15 months which seems to be an afterthought to harass the revisionist. Hence, he has prayed for setting aside the impugned order dated 03.11.2022.

5. On the other hand, ld. counsel for the complainant has argued that the act of the accused Nos. 5 and 6 cannot be attributed as committed in the colour of duty. It is argued that Section 140 of DP Act cannot save accused No. 5 and accused No. 6 as their acts are completely illegal and have no correlation with their official duty. It is further argued that a sufficient compliance have been done with regard to Section 154 Cr.P.C. before filing application u/s 156(3) Cr.P.C.

6. Ld. Addl. PP for the State has also argued that the order of the ld. MM is fully justified in the given circumstances and Section 140 of the DP Act does not apply for the acts committed by the accused Nos. 5 and 6. It is further submitted that the ld. MM has rightly ordered for registration of FIR against all the accused persons.

7. Heard.

8. Today, the court had also run the alleged CCTV video footage bearing No. CH01-2015-03-20-20-13-02.avi of 25 minutes 48 second on the Court computer prior to making of this order. In the alleged video, it was seen that the vehicle in which accused Nos. 1 and 5 are stated to be seated is clearly wrongly parked and the vehicle of the complainant was just behind it. It is also seen in the video that the alleged vehicle in which the accused Nos. 1 and CR No. 231­2022, CR No. 246­2022 Page 7 of 11 5 are stated to be seated remained wrongly parked for a considerable time. The voice is not captured in the CCTV footage but in the footage it can be clearly seen that it were the accused persons who initiated the thrashings being given to the complainant. In the impugned order of the ld. MM dated 03.11.2022, it is mentioned that the alleged vehicle belonging to the accused persons had black tinted glasses. In this regard, it was noted that the video footage pertained to night time at about 8:15 p.m. and the fact that the alleged vehicle had tinted glasses is doubtful as the glasses of other vehicles are also looking in the same shade being night time. The thrashings to the complainant seem to have been continued for quite some time. So, the prima facie the version of the complainant gets support from the alleged CCTV footage.

In the incident, there are stated to be two accused namely accused Nos. 5 and 6 as police officials at that time. Accused No. 6 is the IO who had filed chargesheet in FIR No. 300/15, PS Model Town. The only allegation against accused No. 6 is that he was in connivance with the other accused persons and just to save them he merely mentioned about the CCTV footage but did not go through the alleged CCTV footage wherein the wrongful acts of the accused persons were captured. The filing of chargesheet was clearly within the official duty of the accused No. 6. If he had filed a false chargesheet or misleading chargesheet, the act would clearly be in the colour of duty. Hence, due to the non compliance of Section 140 DP Act, he cannot be made an accused in the present CR No. 231­2022, CR No. 246­2022 Page 8 of 11 case.

Accused No. 2 was retired ACP at that time and the other accused persons were not working in any police department, hence Section 140 of DP Act is not applicable against them.

The accused No. 5 is also stated to be a police official at that time. The allegations against the accused No. 5 are that he was inside the alleged vehicle which was wrongly parked and then he was asked to remove the vehicle he had given beating to the complainant. The act of beatings given by the accused No. 5 in no way can be stated to be done in the colour of the duty. So, the provisions of Section 140 DP Act is of no avail to the accused No.

5.

9. The submission of the ld. counsel for the revisionist/accused that the complainant had not complied provisions of Section 154 Cr.P.C. prior to filing application u/s 156(3) Cr.P.C. has to be considered in the given circumstances. Accused No. 5 and accused No. 6 are stated to be serving Sub-Inspectors of Delhi Police at that time. Accused No. 2 was the Retd. ACP of Delhi Police at that time. It is also reflected in the impugned order dated 03.11.2022 that the alleged CCTV footage was in knowledge and possession of the IO. Still, no action was taken against the accused persons instead FIR No. 300/15, PS Model Town was registered against the complainant. Even if, the respondent /complainant had not filed any prior application u/s 154 Cr.P.C. to application u/s 156(3) Cr.P.C., the same was filed by the respondent/complainant though CR No. 231­2022, CR No. 246­2022 Page 9 of 11 after filing application u/s 156(3) Cr.P.C. but the same were not acted upon by the concerned officials. As the action was required to be against the one serving police official and others the family of retired ACP, there was very less chance of any action being taken by the police officials on the complaint of the respondent/complainant. In such circumstances, the filing of application u/s 156(3) Cr.P.C. by the respondent/complainant is fully justified.

The submission of the ld. counsel for the revisionist that two FIR are not permissible with regard to the one incident is also not acceptable in view of the ratio laid down in the judgment titled 'Surnder Kaushik & Ors. v. State of U.P. & Ors. on 14.02.2013', (2013) 5 SCC 148, wherein it was held that where there are distinct versions between the parties, separate cross FIR is permissible. In the present case also, both the parties are alleging quite contrary versions hence, registration of separate cross FIR would be justified.

The submission of the ld. counsel for the accused persons that as per the judgment of M/s Skipper Beverages Pvt. Ltd. v. State, FIR was not required to be registered as all the evidence was in the possession and the identity of the accused persons was in the knowledge of the complainant, is also not acceptable. Subsequent to the judgment of M/s Skipper Beverages Pvt. Ltd. v. State, the constitutional bench in the case titled 'Lalita Kumari v. State of U.P & Ors., 12.11.2013', 2014 (2 SCC) 1 had clarified law relating to registration of FIR as per which, the FIR is required to be CR No. 231­2022, CR No. 246­2022 Page 10 of 11 registered in all cognizable offences though preliminary enquiry may be conducted in some cases. In the present case, there were clear allegations of cognizable offence which also get support from the alleged CCTV footage, hence the ld. MM was justified in ordering registration of FIR against the accused persons.

10. In view of the aforesaid reasons, the order of the ld. MM is modified to the extent that no FIR can be registered against the accused No. 6 in view of Section 140 of DP Act. With regard to the other accused persons the order of the ld. MM is fully justified and there is no infirmity, illegality and impropriety in the same. In the aforesaid view and modification, the revision petitions are disposed off.

11. Let copy of this order alongwith TCR be sent to ld. Trial Court.

12. Revision files be consigned to Record Room.

Announced in the open Court today i.e. on 22 February, 2023 (Shivaji Anand) Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi CR No. 231­2022, CR No. 246­2022 Page 11 of 11