Delhi District Court
Parul Vashisth vs State (Nct Of Delhi) on 23 October, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
CR No. 342/2017
CNR No. DLST010077972017
Parul Vashisth ..........Petitioner/Revisionist
W/o Sh. Pankaj Vashisth
d/o Sh. N. K. Garg
r/o H. No. 1467, Sector6,
Faridabad, Haryana
versus
State (NCT of Delhi) ..........respondent no. 1
Sh. Pankaj Vashisth ..........respondent no. 2 s/o Sh. K. B. Vashisth Sh. K. B. Vashisth ..........respondent no. 3 s/o late Sh. Labhu Ram Vashisth Mrs. Nirmala Vashisth ..........respondent no. 4 w/o Sh. K. B. Vashisth Sh. Neeraj Vashisth ..........respondent no. 5 s/o Sh. K. B. Vashisth All at (Respondent no. 2 to respondent no. 5) r/o DDA Flat no. 14, SFS, Sheikh Sarai, Malviya Nagar, New Delhi Parul Vashisth vs State & ors. CR No 342/2017 page no. 1 of 14 FIR Number 93/2013 PS Malviya Nagar u/s 498A/406/34 IPC Date of Institution : 03rd October 2017 Date of arguments : 12th October 2017 Date of Order : 23rd October 2017 O R D E R
1. Present revision petition filed u/s 397 Cr. PC filed by Dr. Parul Vashisth w/o Sh. Pankaj Vashisth (respondent no. 2) against order dated 21.09.2017 passed by Learned Metropolitan Magistrate, South District, Delhi where trial Court refused to take cognizance of the material placed in supplementary chargesheet against the respondent no. 2 to 5 and also dismissed the protest petition filed by the petitioner.
2. In supplementary chargesheet, respondent no. 2 and 3 were kept in column no. 11 and respondent no. 4 and 5 were kept in column no. 12. However, trial Court declined to take cognizance u/s 406 IPC against respondent no. 2 and for the offence u/s 498/406 against the respondent no.
3. The protest petition filed by the complainant against the decision of the Investigating Officer to place respondent no. 4 and 5 in column no. 12 as also dismissed by Learned Metropolitan Magistrate vide a common order dated Parul Vashisth vs State & ors.
CR No 342/2017 page no. 2 of 14 21.09.2017.
3. Brief facts of the case as alleged are that marriage between the petitioner and respondent no. 2 took place at Faridabad as per Hindu rites and customs on 29.09.2000. After the marriage, the petitioner came to house of the respondent no. 2 to 5 at Flat no. 14, SFS, DDA Flat, Sheikh Sarai, PhaseI, New Delhi. It is alleged that after the marriage, there was demands of dowry by the respondent no. 2 to 5 from the petitioner as well as her parents. In 2001, respondent no. 2 went to USA for further studies. The petitioner also joined respondent no. 2 in December 2001. Even in USA, several acts of cruelty and harassment on the ground of dowry were meted out to her. She, however, completed her medical education in USA and worked in USA from 2004 to 2008. During this period, her income was siphoned off by the respondent no. 2. A demand of Rs. 40Lacs has been raised by the respondent no. 2 but her parents could only pay a sum of Rs. 35 lacs because of which she was harassed by respondent no. 2 and 4 and she was even beaten by respondent no2. While in USA, petitioner had to call 911. The police but the request of respondent no. 2, complainant did not lodge any complaint against him. In the year 2006, her father bought a land in Govardhan, UP and on coming to know about the same, respondent no 4 Parul Vashisth vs State & ors.
CR No 342/2017 page no. 3 of 14 asked respondent no. 2 and 3 to force the petitioner and her parents to buy 1800 sq. yard plot in the name of respondent no. 3. Accordingly, father of the petitioner had to buy the plot in the name of respondent no. 3. In 2008, when Neeraj visited USA with his family, he also demanded a piece of land and told the petitioner to take cash from her father and threatened that if that did not happen it would lead to dire consequences. Lateron, the said land was sold back to the petitioner by respondent no. 3 for a total sum of Rs. 25Lacs. In USA, all her income taken away by respondent no. 2 and despite her repeatedly asking, respondent no. 2 did not return the same. She was made to pay house rent, electricity bill etc. In November 2010, petitioner and respondent no. 2 were living together in his house for few days and one day he threw her stuff out by saying that he wants the petitioner to get out. IN January 2011, respondent no. 2 forced the petitioner to sign divorce paper which she was not allowed to read and she did not even hire her own lawyer. A junior lawyer Ms. Priya Gulia working for Sh. Ghansham Vashist and Sh. M. K. Vashisth , who were lawyers of respondent no. 2 was brought to act as the lawyer for the petitioner. At that time, the petitioner was promised that after the first motion, she would be given money and istridhan articles back but lateron they refused on the pretext that since she had already signed the Parul Vashisth vs State & ors.
CR No 342/2017 page no. 4 of 14 papers and have settled all the claims, as such she did not appear for the second motion.
4. It is alleged that on the basis of complaint, FIR was registered. During investigation, respondent no. 2 absconded and was declared a proclaimed offender. Investigating officer did not place on record the material documents nor placed any reliance upon the said document while filing the first chargesheet. On 18.09.2004, petitioner submitted bank statement, photocopy of wedding of her sister, Facebook messages and statement of M. K. Vashisth and respondent no. 3 and bank statement of joint account of respondent no. 2 and 4. However, the Investigating Officer could not find anything in these document regarding the offence as such she kept in the police file and did not place it on judicial record. The documents collected during CAW Cell proceedings were merely placed on record like a bunch of documents that contained a few pages of joint bank account statement of petitioner and respondent no. 2 as well without explaining the purpose or reason.
5. It is further argued that upon inquiry from respondent no. 2 to 4, it was disclosed by them that the money received in the joint account and respondent no. 2 to 4 from respondent no. 2 has been transferred in the Parul Vashisth vs State & ors.
CR No 342/2017 page no. 5 of 14 account of father of the petition and all her istridhan articles are in her possession and even for the purchase of the land at Vrindavan, Rs. 2.50lacs were transferred by respondent no. 5 in the account of father of petitioner. There was no verification of this fact and only on the basis of the disclosure statements of accused persons, Investigating Officer decided to give them clean chit.
6. In the chargesheet, it is mentioned that no evidence sufficient for arrest of respondent no. 3 to 5 has come on record as such they were kept in column no. 12 and chargesheet was filed only against the respondent no. 2 for the offence punishable u/s 498A/406/34 IPC. Investigating Officer did not consider the relevancy of the documents and did not make part of the charge sheet. Without considering the matter in its perspective, trial Court has held that no case against the respondent no. 3 to 5 is made out and they were not summoned. Since, respondent no. 2 was a Proclaimed offender as such file was consigned to record room. All the relevant documents and details were not available on the judicial file and were not made part of the charge sheet.
7. An enquiry was conducted against the Investigating Officer and he was found to be at fault and suitable action was recommended against him and with the intervention of the higher authority, another Investigating Officer Parul Vashisth vs State & ors.
CR No 342/2017 page no. 6 of 14 was deputed whereas documents placed by the petitioner were being considered as well as the inquiry to the bank was conducted, thereafter, supplementary chargesheet was filed. However, trial Court did not take cognizance on basis of supplementary charge sheet.
8. It is further submitted by the petitioner that petitioner filed SLP in Hon'ble Supreme Court vide order dated 05.07.2017 on the request of respondent no. 2 that he is employed in USA and has to go back, directed that all the cases pending between the parties be decided within a period of three months. At several occasions, status report was called by Learned Metropolitan Magistrate regarding further investigation. However, upon receipt of order from Hon'ble Apex Court, trial Court decided not to wait for supplementary chargesheet and despite the request of petitioner to wait for the supplementary chargesheet as during the initial investigation, respondent no. 2 was declared a proclaimed offender. Trial Court in a very hasty manner passed order on charge vide dated 09.08.2017 whereby charges u/s 498A IPC was framed against the respondent no. 2 despite the fact the material on record was insufficient and scope of further investigation was very much in the knowledge of trial Court.
9. Even at that time, the relevant documents were not part of the Parul Vashisth vs State & ors.
CR No 342/2017 page no. 7 of 14 chargesheet and were kept in police file. In the name of doing speedy justice, a serious injustice was being done. The petitioner was called in witness box almost daily from morning till evening thereby leaving no time for her to take any corrective measures or to challenge the order. Upon the application made by the petitioner, the matter was transferred from one Court to another. On the request of the petitioner, in the supplementary chargesheet, it has been verified that money for the purchase of land in the name of respondent no. 3 was in fact paid by the father of the petitioner and that money earned by the petitioner was transferred by respondent no. 2 without her knowledge and consent in the account of respondent no. 4. The pay cheques of the petitioner had been misappropriated by the respondent no. 2. The stridhan articles belonging to the petitioner were taken by the respondent no. 3 and 4 but had not been returned to her despite her demand. Despite making out of a clear case u/s 498A/406 IPC against the respondent no. 2 to 4 and a case u/s 498 A IPC against the respondent no. 5, trial Court vide the impugned order decided not to summon any of the accused nor framed additional charge against respondent no. 2 for the offence u/s 406 IPC and only framed additional charge of u/s 174A IPC against respondent no. 2. Vide impugned order on the basis that since all the material was already available on judicial Parul Vashisth vs State & ors.
CR No 342/2017 page no. 8 of 14 record and had been duly considered at the time of cognizance and charge. Investigating Officer had concealed the documents of the complainant and had not sent respondent no. 3 to 5 to face trial. As such, petitioner has approached the higher authority and on the direction of the higher authority, matter was further investigated and supplementary charge sheet has been filed. All the facts are available on record in the supplementary chargesheet but the trial Court has ignored the same.
10. It is therefore, prayed that vide order dated 21.09.2017 may be setaside and summon the respondent no. 3 to 5 to face the trial and also direct addition of charge of Section 406 IPC against respondent no. 2
11. On assignment on this revision petition, notice was issued all the respondents namely, Pankaj Vashisth (respondent no2), K B. Vashisth (respondent no. 3), Mrs. Nirmala Vashisth (respondent no. 4) and Neeraj Vashisth (respondent no. 5). Apart from that, trial Court record was requisitioned.
12. Learned counsel for respondent no. 2 to 5 argued at length and submitted that trial Court passed a speaking and wellreasoned order and each and every aspect has been considered. On the basis of the material available on record, trial Court has taken the cognizance and summoned the Parul Vashisth vs State & ors.
CR No 342/2017 page no. 9 of 14 respondent no. 2. There is no incriminating evidence found against respondent no. 3 to 5, as such no cognizance against them was taken. Even all the istridhan articles of the petitioner was returned and same is not imparted by respondent's, as such Section 406 IPC is not attracted. Even at the stage of cognizance, complete documents were placed on record. It is the prerogative of the trial Court to appreciate the material placed on record in its own way. Petitioner is challenging the investigation and try to control the investigation, which is contrary to the law. Documents placed on record is also reflected that respondent no. 2 has transferred the amount in the account of father of petitioner through the account of respondent no. 3. Complainant was examined in detail and has made deposition in a chronological order in as many as 25 pages, in the examinationinchief and still examinationin chief is continue, which is an after thought. Petitioner has filed complaint before CAW Cell twice but no specific averment was made as stated now. Now, in the garb of additional complaint with legal advice, complainant want to extort money and filed it with the ulterior motives. Hence, prayed that the present revision petition is nothing but outcome of illegal demand and transfer and same is liable to be dismissed.
Parul Vashisth vs State & ors.
CR No 342/2017 page no. 10 of 14
13. Trial Court while appreciating the material placed on record only with respect to the initial chargesheet filed, consider it, and passed the order dated 21.09.2017 with the observation that "there was no material on record against respondent no. 2 to be charged him u/s 406 IPC. There was no sufficient ground round for summoning Sh. K. B. Vashisth as an accused. Trial Court has placed reliance upon Hardeep Singh vs State of Punjab and others (2014) 3 SCC 92 wherein it was observed that, "117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr PC provided from the evidence it appears that such person can be tried alongwith the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr. PC has to be complied with before he can be summoned afresh."
14. In the complaint Ex. PW1/S, the subject matter of the complaint was "complaint against husband/Pankaj Vashisth, Sh. K. B. Vashisth (fatherin law), Smt. Nirmala Vashisth (motherinlaw) for domestic violence". Therefore, the title of the complaint itself revealed that there are atrocities of the Parul Vashisth vs State & ors.
CR No 342/2017 page no. 11 of 14 complainant against the respondents. As such, a case u/s 498A/406/34 IPC was registered. The complainant filed a detailed complaint enumerated the allegations in the chronological order with its detail. Thereafter, matter was further investigated by another investigating officer, who consider the documents filed by complainant and therefore supplementary chargesheet was filed.
15. The supplementary chargesheet was filed, which has not considered by the trial Court and passed the order in hasty manner, in pursuance of direction of the Hon'ble Apex court, as the matter is to be disposed off within three months time. There is no averment made by the respondents in any manner that they had not kept/withhold the istridhan or dowry article of the complainant. Their contention is based on the initial challan filed and relied upon the same through the additional documents placed on record has not been looked into by the Investigating Officer.
16. The contention of the revisionist supported with the judgment of Ajay Raj Pal vs State ILR (2007) I Delhi 889 and in para 12, it has been mention to point out that the supplementary chargesheet disclosed some material for cognizance and summoning of the petitioner. The facts do not reveal anything warranting exercise of exceptional jurisdiction under section Parul Vashisth vs State & ors.
CR No 342/2017 page no. 12 of 14
482. All courses of action, permissible by law, available before the trial Court are hereby reserved to the petitioner".
17. Petitioner also relied upon the judgments titled as State of Rajasthan vs Aruna Devi and another (1995) 1 Supreme Court cases 1 in para 3, and in Java Singh vs CBI Crl. M. C. 2525/2008 and Crl. M. A. 9326/2008.
18. In Shri chand Gupta vs Santosh Kumari & anr. Decided by Hon'ble High Court on 12.03.2008 wherein it was observed that, "If that evidence, even if rebutted, does not make out a case against the accused then the Magistrate 'shall discharge' the accused. Therefore, the degree of scrutiny of the evidence of the prosecution is much stricter than in the case institute on a police report"
19. Keeping in view submissions and the judgments as discussed above it revealed that trial Court was in hurry to pass an order at the time of taking cognizance without looking into the supplementary chargesheet and the documents filed by the petitioner, though same are very material one and part & partial of the chargesheet. Therefore, the order dated 21.09.2017 passed by trial Court is without considering all material on record and passed Parul Vashisth vs State & ors.
CR No 342/2017 page no. 13 of 14 in hasty manner without looking into the totality of the facts and circumstances as well detailed statement of the complainant together within her documents annexed with supplementary chargesheet.
20. In the circumstances, order dated 21.09.2017 passed by trial Court is hereby setaside. Trial Court is directed to hear the fresh arguments on the issues as discussed above as well as to consider the documents filed by the complainant submitted with supplementary chargesheet and passed the order. With these observations case be remanded back. Accordingly, revision petition stands disposed of.
21. Trial Court Record be sent back to the Court concerned alongwith copy of this order for information and necessary compliance.
22. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Dr. Satinder Kumar Gautam) open Court on Special Judge (NDPS) 23rd October 2017 ) South District: Saket Parul Vashisth vs State & ors. CR No 342/2017 page no. 14 of 14