Delhi District Court
Satya Pal vs Navneet on 17 November, 2016
1
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
Criminal Revision Petition No. : 11/16
Registration No.: 58328/2016
Satya Pal
S/o Late Sh. Jai Chand,
R/o 4/20, Roop Nagar,
Delhi110 007. .......Revisionist
Vs.
Navneet
S/o Late Sant Ram
R/o 98, Sangam Apartment,
Paschim Vihar, New Delhi.
Also at :
Necko Drycleaners,
881, East Park Road,
Karol Bagh,New Delhi110 005.
........Respondent
Date of filing : 13.07.2016
Date of arguments : 22.10.2016
Date of Order : 17.11.2016
O R D E R
1. This order shall disposed off the present revision petition, preferred against the order, dated 10.06.2016, passed by the court of Ms. Vandana Jain, Ld.ACMM02, Central District, Tis Hazari Courts, Delhi, in complaint case No. 478/K/08, titled as, 'Satya Pal v Sant Ram & Ors.', whereby, the accused / respondent was discharged for the offences u/s 307/452/323/506/34 IPC.
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2. It has been stated in the present revision petition that on 15.11.95 at 8.00 a.m., the respondent along with coaccused Sant Ram, Smt. Rashmi and Smt. Kamal, tress passed into his room and gave beating to him with iron rods and hockey sticks. It is further stated that accused Smt. Kamal gave danda blow on his head and coaccused Sant Ram and Smt Rashmi gave iron rod blows on his body, while Smt. Kamal also bite his shoulder. It is further stated that the respondent / accused Navneet also pressed his neck, as he wanted to finish his life. It is further stated that the revisionist raised the alarm to save himself from the accused persons and some neighbours called the police, who rescued the revisionist. Thereafter, the revisionist was taken to Hindu Rao Hospital, by the police officials, where he was medically examined and his MLC No. 10619/95 was prepared at 9.10 a.m.
3. It is further stated that the revisionist lodged a complaint at P.S. Roop nagar. But, instead of registering a case against the accused persons, the revisionist was booked in a false & frivolous case bearing FIR No. 321/95, u/s 324 IPC. It is further stated that the revisionist was examined first and the MLC of accused late Sant Ram was prepared lateron, on 15.11.95 at 1.50 p.m. It is further stated that the police officials had not taken any action against the accused persons and therefore, he was constrained to lodge a complaint with the Ld. C.M.M. on 20.11.1995 and on the basis of the testimony of the revisionist and the documents on record, all the aforesaid Crl. Rev. No.11/2016 Page 2 of 10 Special Judge, CBI01, Central, Delhi 3 accused persons were summoned for the offences u/s. 307/452/323/506/34 IPC, vide order dated 11.12.2007.
4. It is further stated that the order dated 11.12.2007 was challenged before the Ld. Sessions Court and vide order dated 29.07.2009, the matter was remanded back to the Ld. M.M., for recording the precharge evidence. It is further stated that vide impugned order dated 10.06.2016,the respondent had been discharged by the Ld. Trial court and hence, the present revision petition.
5. It is pertinent to mention that the accused Santram had already expired and coaccused Smt. Kamal and Smt. Rashmi had already been discharged by the Hon'ble High Court of Delhi, vide order dated 20.04.2009, passed in Crl. MC No. 2891/08.
6. Sh. Satish Kumar, Advocate, for the revisionist and Sh.
Anil Kumar Gupta, Advocate, for the respondent, have addressed their arguments on the present revisionist petition, on 22.10.2016.
7. Sh. Satish Kumar, Advocate, for the revisionist has argued that the Ld. Magistrate was having no power to discharge the accused / respondent and she should have committed the case to the court of sessions. Sh. Anil Kumar Gupta, Ld. Counsel for the respondent has also conceded this Crl. Rev. No.11/2016 Page 3 of 10 Special Judge, CBI01, Central, Delhi 4 fact and has stated that the Ld. M.M. was having no power to discharge the respondent / accused for the offence under Section 307 IPC also, as the same was exclusively triable by the court of sessions. The Ld. Counsels for the parties have relied upon the judgment of the Hon'ble High Court of Delhi, in case titled as, "Leelawati vs. State & Anr.' passed on 22.01.2013, in Crl. Revision Petition No. 175/2012, in support of their contentions.
8. I have given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the trial court record and the impugned order. I have also gone through the judgment cited by the Ld. Counsels for the parties, in support of their contentions.
9. Perusal of the record shows that the revisionist filed his complaint before the court of the Ld. CMM, Delhi, against the accused persons, for the offences under Section 452/307/323/506/34 IPC, regarding the incident dated 15.11.1995, on 20.11.1995 and the Ld. Magistrate, fixed the complaint for recording of the complainant's evidence on 08.02.1996, after taking cognizance of the alleged offences. During his evidence the complainant examined himself as PW 1 and also examined the record clerk from Hindu Rao Hospital, Delhi, as PW2, to prove his MLC dated 15.11.1995.
10. Vide orders dated 24.02.2004, the Ld. M.M., called a Crl. Rev. No.11/2016 Page 4 of 10 Special Judge, CBI01, Central, Delhi 5 report from SHO PS Roop Nagar, u/s 202 Cr.P.C. and vide orders dated 11.12.2007, the respondent as well as the remaining three accused, namely, Sant Ram (since deceased), Smt. Kamal and Smt. Rashmi were summoned, to face the trial for the offences u/s 307/452/323/506/34 IPC.
11. The order dated 11.12.2007, was challenged by accused Smt. Kamal Tandon and Smt. Rashmi, before the Court of Sessions, vide Criminal Rev. Petition No. 24/2008 and the said petition was dismissed by the court of Sh. Dinesh Kumar Sharma, Ld. Addl. Sessions Judge, vide orders dated 08.07.2008. The said order dated 08.07.2008 was challenged before the Hon'ble High Court in a petition under Section 482 Cr,P.C. bearing No. Crl. MC No. 2891/2008 & Crl. MA No. 10527/2008. The said petition was allowed by the Hon'ble High Court vide order dated 20.04.2009 with following observations :
"On a perusal of the complaint as a whole, it is held that not even a prima facie is made out against the petitioners for the offences aforementioned. This Court therefore allows this petition and directs that the petitioners shall stand discharged in Criminal Complaint No. 33/1 titled "Satya Pal v. Sant Ram & Others" pending in the Court of the learned Metropolitan Magistrate (MM), Delhi under Sections 307/452/323/506/34 IPC and all proceedings consequent thereto. The case will proceed against the remaining accused."
12. Perusal of the record further shows that vide order dated 06.07.2009, accused / respondent Navneet and coaccused Sant Ram (since deceased) were directed to appear before Crl. Rev. No.11/2016 Page 5 of 10 Special Judge, CBI01, Central, Delhi 6 the Ld. Sessions Court and the matter was committed to the court of sessions, as the offence punishable under Section 307 IPC is exclusively triable by the court of sessions. Thereafter, vide order dated 29.07.2009, the Ld. Court of Ms. Madhu Jain, ASJ03, North, Delhi, remanded back the case to the court of Ld. CMM, for recording of the precharge evidence, with following observations :
"In view of this authoritative pronouncement and the provisions of the Cr.P.C., it is clear that only after recording the precharge evidence if the Ld. MM comes to the conclusion that the prima facie case for the offence, which is exclusively triable by the court of Sessions is made out, and then only the case shall be committed to the court of Sessions.
In view of the above said discussions, the order dated 06.07.09 passed by the Ld. MM committing the case to the court of Sessions is set aside. The Ld. MM shall record the precharge evidence. After recording the precharge evidence, if the Ld. MM comes to the conclusion that the offence which is made out against the accused is exclusively triable by the court of Sessions, then only he shall commit the case to the court of the Sessions. The case is remanded back the court of Ld. CMM who shall either try the case herself or assign the same to the court of competent jurisdiction. Parties are directed to appear before the court of Ld. CMM on 10.08.09. Ahlmad to send the file complete in all respects to the court of Ld. CMM on or before 10.08.09."
13. In compliance of the order dated 29.07.2009, passed by the court of Ms. Madhu Jain, Ld. ASJ, the Ld. Trial Court recorded the complainant evidence, wherein, the complainant again examined himself as PW1. Thereafter, on 10.06.2016, the impugned order, discharging the respondent was passed by the Ld. Trial Court.
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14. During the arguments on the present revision petition, the main contention of the Ld. Counsels for the parties has remained that the Ld. Trial court has dismissed the complaint in contravention of the settled legal position and the Ld. Trial Court should have committed the complaint to the court of sessions, as per the provisions of Section 209 Cr.P.C.
15. The provisions of Section 209 Cr.P.C. are reproduced below for ready reference, as under :
"209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
16. The above provision clearly mandates that in a case instituted on a complaint, i.e., otherwise on a police report, the magistrate was required, mandatorily, to commit the case to the court of Sessions, when the complaint disclosed commission of offences, exclusively triable by the court of Sessions.
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17. It has been held by the Hon'ble High Court of Delhi, in case titled as, "Smt. Kavita vs. State & Ors", reported as, 2000 Cri.L.J. 315, as under :
"In the instant case, a charge sheet was filed by the police under Sections 498A/406/376/420/495/120B/511 IPC. Admittedly, one of the offences in the charge sheet is Section 376 IPC, which is exclusively triable by Sessions Court. On perusal of the impugned order dated 11995 passed by the learned Metropolitan Magistrate, it appears that the learned Magistrate launched on a process of satisfying himself that a prima facie case has been made out on merits. He has assigned reasons about his reluctance to take cognizance of the offences punishable under Section 495/420/376/120B/511 IPC. Thus, in effect, the learned Magistrate has discharged the respondents of the aforesaid offences. In my opinion the whole approach of the learned Magistrate in discharging the respondents of the offences punishable under Sections 495/420/376/120B/511 IPC is erroneous inasmuch as under Section 209 of the Code he had no jurisdiction to go into merits even for a prima facie satisfaction. Under Section 209 Cr.P.C., the Magistrate has simply to commit the case to the Court of Session and the Sessions Judge can discharge the accused under Section 227 of the Code, if satisfied that from the material placed before him, no offence appears to have been made out. Reference in this connection be made to the decision of the Supreme Court in Sanjay Gandhi v. Union of India, (1979 CLR (SC) 14 (sic) : (1978 Cri LJ 642 :
AIR 1978 SC 514). Needless to say that Section 228 of the Code enjoins the Sessions Judge to transfer the case to the committal Court if he is of the opinion that there is ground for presumption that the accused has committed an offence which is not exclusively triable by the Court of Session. In this view of the matter, I am constrained to observe that the impugned order dated 119.1995 passed by the learned Metropolitan Magistrate discharging the respondents No. 2 to 5 of the offences punishable under Section 495/420/376/120B/511 IPC is an affront to law which could not be overlooked as it has resulted in miscarriage of justice. Therefore, it has become necessary to exercise powers under Section 482 Cr.P.C."
(emphasis supplied by me) Crl. Rev. No.11/2016 Page 8 of 10 Special Judge, CBI01, Central, Delhi 9
18. It was again held by the Hon'ble High Court of Delhi, in case titled as, "Leelawati vs. State & Anr" (Supra), as under :
"In view of the above settled legal position, as per requirement of Section 209 Cr.P.C., the learned Magistrate was required to commit the case to the Court of Sessions as Section 306 IPC is an offence which is exclusively triable by the Court of Sessions. Only the Session Judge had the power under Section 227 Cr.P.C. to discharge the accused if so satisfied from the material placed on record that prima facie, no offence under Section 306 IPC is made out against the accused and to transfer the case to the committal Court, in exercise of power under Section 228 Cr.P.C., on forming an opinion that the accused has committed an offence, which is triable by the Court of Magistrate."
(emphasis supplied by me)
19. In the present case, it appears that the Ld. Trial Court has discharged the respondent / accused, by passing the impugned "Order on Charge" dated 10.06.2016, only because the court of Ms. Madhu Jain, Ld. ASJ, North, Delhi, had directed the trial court to record the precharge evidence and thereafter, to commit the case to the court of sessions, only if, the trial court comes to the conclusion that the offence which was made out against the accused, was exclusively triable by the court of sessions. This exercise by the Ld. Trial Court / the Ld. MM, is not permissible under the provisions of Section 209 Cr.P.C., in view of the settled legal position, as discussed above.
20. Therefore, the impugned order dated 10.06.2016 is hereby set aside with the directions that the Ld. Trial Court / M.M., shall Crl. Rev. No.11/2016 Page 9 of 10 Special Judge, CBI01, Central, Delhi 10 proceed with the complaint in accordance with law, to commit the case to the court of sessions, without causing any further delay in the matter.
21. Accordingly, the present revision petition stands allowed.
The parties are directed to appear before the Ld. Trial Court on 24.11.2016.
A copy of this order along with the Trial Court record be sent back to the concerned court, for information and necessary compliance.
The record of the present revision petition be consigned to record room, after due compliance.
Announced in the Open Court on 17th Day of November, 2016 BRIJESH KR. GARG SPECIAL JUDGE CBI01 CENTRAL DISTRICT/DELHI Crl. Rev. No.11/2016 Page 10 of 10 Special Judge, CBI01, Central, Delhi