Delhi High Court
Rajinder Singh Ahuja vs State Of Nct Of Delhi on 29 May, 2023
Author: Talwant Singh
Bench: Talwant Singh
Neutral Citation Number : 2023:DHC:3977
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on : 29.05.2023
+ CRL.REV.P. 210/2021 & Crl.M.A. 10122/2021
RAJINDER SINGH AHUJA & ORS. ..... Petitioners
Through: Mr. Hrishikesh Baruah, Mr. Joy
Banerjee & Mr. Kumar Kshitij, Advs.
versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Tanmaya Mehta & Mr. Lalit
Valecha, Advs. for Complainant.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
Talwant Singh, J.:
1. Petitioners have preferred the present revision petition against an
impugned order dated 25.06.2021 passed by learned Additional Sessions
Judge-04 (hereinafter referred to as 'ASJ'), District South-East, Saket
Courts, New Delhi in Criminal Revision Petition No. 892/2019. Vide the
afore-said order, the learned ASJ had partly allowed the criminal revision
petition against the order impugned therein dated 11.11.2019, passed by Shri
Gagandeep Jindal, learned Metropolitan Magistrate (hereinafter referred to
as MM), Saket Courts in CC No. 5661/2018, by which the complaint filed
by the present respondent No.2 was dismissed under Section 203 of the
Code of Criminal Procedure (Cr.P.C.).
1.1 Learned ASJ had directed the parties to appear before the learned
MM, who was ordered to permit further examination of any other witness(s),
if sought for by the complainant, and thereafter pass a reasoned order in
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view of the observation made in the order dated 25.06.2021 passed by the
learned ASJ.
1.2 Feeling aggrieved, the present petitioners have filed this criminal
revision petition.
1.3 The case, in nutshell, of the petitioners is that the daughter of the
petitioner No.1, namely Ms. Pavni Ahuja, got married to the son of
respondent No.2, namely Mr. Amrinder Singh Sodhi, on 24.04.2011. Certain
disputes arose between petitioners no.1's daughter and respondent no.2's
son and Ms. Pavni Ahuja left her matrimonial home and started living at her
parental home, where she died on 25.02.2015. It is a case of an unnatural
death.
1.4 Petitioner No.1 reported the matter to the police and FIR No. 94/2015,
Police Station: Greater Kailash under Section 498A, 304-B, 354A, 34 of
Indian Penal Code (IPC) was registered and during investigation respondent
No.1, his wife and son were arrested and they remained in judicial custody
for a long time. On 18.08.2015, they were granted regular bail by the
District Court. The charges were framed against accused persons on
03.12.2015 under Sections 304B,498A & 34 of Indian Penal Code, 1860
(hereinafter referred to as IPC).
1.5 Respondent No.2 filed a revision petition challenging the order
framing charge and the said petition was numbered as Criminal Revision
Petition No. 248/2016. The other co-accused persons filed similar petitions.
Later on the revision petition No.248/2016 was dismissed as withdrawn. In
the criminal case from 2016 to 2020, about 18 witnesses were examined and
cross-examined.
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1.6 It is further stated that in the meantime on 27.06.2018, respondent
No.2 filed a criminal complaint along with an application under Section 156
(3) of Code of Criminal Procedure before the learned M.M. claiming therein
that he was earlier not aware about the circumstances leading to the death of
Ms. Pavni Ahuja and certain lapses in investigation were pin-pointed. The
present revision petitioners were arrayed as respondents/proposed accused.
The said complaint was filed under Section 302, 201, 465, 467, 469, 471,
120 B and 34 IPC. This complaint was dismissed on 15.10.2018 along with
an application under Section 156(3) Cr.P.C.
1.7 Being aggrieved, the present respondent No.2 filed Criminal Revision
Petition No. 77/2018 before the Sessions Court and vide order dated
18.04.2019, the Sessions Court held that the complaint cannot be dismissed
without undergoing the procedure of recording the complainant's evidence
and therefore, the matter was remanded back to the Court of learned M.M.
for recording of the same. Respondent No.2 examined himself as CW-1;
Mr. Sunil Kumar-Ahlmad of the Court of Shri Sandeep Yadav, ASJ was
examined as CW-2, who produced the record of certain documents filed in
case FIR No. 94/2015; Dr. L.C. Gupta, Specialist Forensic Medicine and
Toxicology-Aruna Asaf Ali Hospital Mortuary was examined as CW-3 in
CC No. 5661/2018.
1.8 Learned Magistrate again rejected the complaint by a detailed order
dated 11.11.2019. Respondent No.2, being aggrieved by passing of the
order dated 11.11.2019, preferred Criminal Revision Petition No. 892/2019
before the Sessions Court. Vide impugned order, the learned Sessions
Judge, was pleased to remand the matter again to learned Trial Court.
1.9 The said order dated 11.11.2019 is being challenged by the petitioners
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on the grounds that the order passed by learned ASJ is illegal, incorrect,
perverse and erroneous both in facts and in law; the order was passed by the
learned ASJ in mechanical manner without minutely examining the
circumstances; no specific reasons have been given by the learned ASJ
while partly allowing the revision petition; the order of remand by learned
ASJ is completely without jurisdiction. It is further submitted that the
learned ASJ has acted beyond the revisional jurisdiction; there is no material
to support the conclusion arrived at by the learned Session Court and the
same is without any foundation; moreover the conclusion arrived at by the
learned Session Court is not even alleged by respondent No.2 in the revision
petition; the argument of the present petitioners were not considered; the
complaint of respondent No.2 is nothing but a gross abuse of the process of
law; the main purpose of the complaint filed by respondent No.2 is to
entangle the prosecution witnesses as accused and thereby impede the
machinery of justice and he has tried to establish his defence by getting the
evidence of the witnesses recorded in the complaint filed by him and the
entire case set up by the complainant is essentially his own defence, whereas
his defence statement is to be recorded under Section 313 Cr.P.C. in the case
lodged by the police at the appropriate stage and the law laid down by
various Courts has not been rightly appreciated by the learned ASJ.
1.10 It is further averred by petitioners that the learned ASJ has failed to
appreciate that the case set up by respondent No.2 is not a cross-case to the
case set up in FIR No. 94/2015; moreover respondent No.2 is not aware of
the circumstances of the death of Ms. Pavni Ahuja and he became aware of
the circumstances of her death after receiving the charge-sheet; none of the
witnesses examined by respondent No.2 were aware about circumstances
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leading to death of deceased Pavni Ahuja and except for their oral
testimonies, rest of the material submitted before the learned Metropolitan
Magistrate was the evidence in case FIR No. 94/2015 and the evidence in
one case cannot be taken as evidence in another case; moreover, only part of
evidence cannot be appreciated in another case; the impugned order is
perverse and the complaint as framed is not maintainable, the complaint
nowhere states that who committed the offence; and complaint cannot
include a police report and the said judgment has been passed by the learned
ASJ on the basis of surmises and conjectures.
1.11 In view of the above, it has been prayed that the impugned order dated
25.06.2021 in Criminal Revision Petition 892/2019 be set aside.
2. Notice was issued in this petition on 08.07.2021 and in the meantime,
learned Magistrate was directed not to pass any final order till the disposal
of the present petition.
2.1 Status Report has been filed by the State in which proofs of death,
registration of FIR, framing of charge, filing of complaint by respondent
no.2 regarding the same incident, dismissal of the complaint and remand
back of the matter again by the learned ASJ for recording of evidence was
reiterated.
3. Petitioner as well as the respondent No. 2 have filed written
submissions apart from the filing copies of the citations relied upon by the
respective counsel.
4. I have heard the learned counsel for the petitioners, learned APP for
the State and learned counsel for respondent No. 2 and my considered view
is as under:-
4.1 The impugned order before this Court was passed in Criminal
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Revision No. 892/2019 on 25.06.2021. Revisionist before learned Sessions
Judge, who is respondent No. 2 herein, had filed a criminal complaint before
the learned Metropolitan Magistrate (MM) being C.C.No. 5661/2018
regarding death of his daughter-in-law and the said complaint was dismissed
on 11.11.2019 by the learned MM. The complainant (respondent No. 2
herein) had challenged the said order before the learned Sessions Court.
After hearing both the parties, the learned Sessions Judge had set aside the
order impugned before him and had remanded back the matter to the Court
of learned MM for considering the complainant afresh and allowing
respondent No. 2 herein, to further examine the witnesses. Learned
Metropolitan Magistrate was directed to pass a reasoned order in the light of
observations made in the said order dated 25.06.2021. The reasoning given
by the learned Sessions Judge to reach to this conclusion is reproduced
hereunder:-
" In my considered view the Ld M.M. had completely misdirected
himself or rather I may say so completely went off the tangent
while appreciating the evidence led in this case:
i) First and foremost fact which apparently weighed in his mind
was that they - the revisionist and his family were facing trial in an
offence U/s 304-B IPC which matter was subjudice before the Ld.
ASJ.
Obviously, this, in my humble opinion, led him to start with the
proposition that the entire pre summoning evidence is falling from
the mouth of the accused persons and hence tainted. This is the
recurrent theme in the impugned order/ there is a creeping
overhang of the said facet.
ii) In this regard I may note that the right to lead pre summoning
evidence in support/ to substantiate the averments made in he
complaint flowed from the orders passed by the Ld. ASJ inasmuch
as the Ld ASJ had specifically enabled the complainant to step into
the witness box and to lead evidence accordingly.
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iii) In this regard I may add that the basic/ cardinal principle of
criminal jurisprudence is that the accused is deemed to be innocent
unless and until proven to be guilty. Notwithstanding the fact that
the revisionist is facing trial in a case U/s 304-B IPC outrightly
disbelieving his pre summoning evidence on the pretext that he is
facing trial would not be proper and would be a travesty of justice.
It also needs to be re-emphasized that even the accused has a right
to lead defence evidence, which for all purposes would be deemed
to be of same character as that of a prosecution witness and no taint
whatsoever is attached to the evidence of the accused in any
criminal trial. Reference in this regard can be made to the leading
judgment of Doodhnath Pandey v/s State of U.P. (1981) 2 SCC
166. Salient observations are as here under:
"Defence witnesses are entitled to equal treatment with
those of the prosecution. And, courts ought to
overcome their traditional, instinctive disbelief in
defence witnesses. Quite often, they tell lies but so do
the prosecution witnesses"
In Munshi Prasad vs. State of Bihar (2002) 1 SCC 351
Hon'ble Apex Court held as under:
3.... Before drawing the curtain on this score however,
we wish to clarity that the evidence tendered by the
defence witnesses cannot always be termed to be a
tainted one by reason of the factum of the witnesses
being examined by the defence. The defence witnesses
are entitled to equal and treatment as that of
prosecution. The issue of credibility and
trustworthiness ought also to be attributed to the
defence witnesses on a par as that of prosecution - a
lapse on the part of defence witnesses cannot be
differentiated and be treated differently than to the
prosecutors' witnesses."
Thus, the version of the complainant/revisionist is to be given the
due weightage and duly considered/ appreciated akin any other
witness.
iv) Further there is no bar/prohibition qua what the accused can
canvas at the earlier stage - he need not wait till the trial is
concluded and his turn comes to explain the incriminating evidence
against him i.e. the stage of recording of statement of accused U/s
313 Cr.PC or to lead defence evidence. There is no statutory
prohibition or a taboo as to his filing a complaint case and to give a
counter narrative to prove his innocent or otherwise explain his
stand in contradistinction to the prosecution version. In simpler
words he cannot be gagged and asked to face the trial completely
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and wait for his turn. At the cost of repetition, he has been
specifically granted the opportunity to lead evidence in support of
his complaint as per the orders of the Ld. ASJ. This I am only re-
emphasizing for the reason the pre summoning evidence is not to
be brushed away merely because the complainant/ revisionist is
facing trial in a case U/s 304 B IPC.
9.1 The death of the deceased Pavni- the legally wedded wife of
Amrender Sodhi @ Sumit took place in the parental house and not
in the matrimonial house. Obviously in these circumstances to
contend or to expect that there would be any direct evidence to
substantiate the allegations/averment made in the complaint would
be not only implausible but would be evaluating the case on an
unrealistic yardstick.
The contention of the Ld. Counsel for the opposite
party/respondents that the evidence of the State case i.e. the cross
examination cannot be used herein - as sought to be done by the
complainant. However, at the same time in my opinion the
prosecution version or the documentary evidence collected therein
(State case) also could not have been treated as gospel truth for
rejecting the evidence led in the complaint case. Each case has to
be decided on the basis of the evidence led therein/ circumstances
parabolized.
Delving on this aspect the Ld. M.M ought to have confined himself
in appreciating the evidence in the context of the Penal provisions
under which summoning has been sought for i.e. to gauge the need
and sufficiency of issuance of process/proceeding further.
9.2 The contention of the Ld. Counsel for the respondents that
midway during the trial the complaint case has been filed by the
Revisionist and the same is untenable - the said contention does not
hold any water for two reasons. There is no limitation qua the
offences under which summoning is sought for. Secondly it is only
upon the elaboration of the evidence or upon the evidence having
been led such facts as alleged may have emerged. In any case on
this issue the complaint cannot be discarded/dismissed.
Sh. Rishikesh Barua contended that in view of the judgment of
Hon'ble Mr. Justice V. K. Jain in case titled as Mohd. Salim V/s
State reported in 175(2010) DLT 473 particularly on account of
the observations made in para no. 29 the present complaint does not
lie.
In fact, if I read the entire judgment, it does not lay down the
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principle as canvased by Ld. Counsel for the respondent. First of
all, the Ld. M.M. had refused to register the FIR on the basis of the
complaint of the revisionist. The said order was confirmed by the
Court of Sessions. Thus, it is not a case wherein a second FIR was
lodged Secondly even in the said judgment para no. 28 the
reasoning has been stated as here under:
"This prohibition, according to the Supreme Court, does not
apply the counter complaint by the accused in the first
complaint or on his behalf alleging the different version of
the said incident. Allowing the appeal the Supreme court,
inter alia held aa under :
23. Be that as it may, if the law laid down by this Court in
T.T. Antony case is to be accepted as holding that a second
complaint in regard to the same incident filed as a counter-
complaint is prohibited under the Code then, in our opinion,
such conclusion would lead to serious consequences. This
will be clear from the hypothetical example given
hereinbelow i.e. if in regard to a crime committed by the
real accused he takes the first opportunity to lodge a false
complaint and the same is registered by the jurisdictional
police then the aggrieved victim of such crime will be
precluded from lodging a complaint giving his version of
the incident in question, consequently he will be deprived of
his legitimated right to bring the real accused to book. This
cannot be the purport of the Code.
24. We have already noticed that in T. T. Antony case this
Court did not consider the legal right of an aggrieved person
to file counterclaim, on the contrary from the observations
found in the said judgment it clearly indicates that filing a
counter- complaint is permissible."
9.3 Dehors the aforesaid coming to specific observations which
have been made by the Ld. M. M. in the impugned order which to
my mind are patently erroneous. The Ld. M. M. has opined that
this court cannot comment upon the injuries as reflected in the post
mortem report because the matter in subjudice before the Ld.
Sessions Court. No doubt the Ld. M. M. ought to have been
circumspect inasmuch as another case is pending however in the
succeeding paragraph number 17 Ld. M.M. has concluded as to the
correctness of the FSL result filed by the Investigating Agency in
the other case. It needs no gain saying that both these observations
cannot gel together. The Ld. M.M. could not have brushed aside
the evidence led in the present case particularly the evidence of
forensic expert by making such an observation.
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The gist is that the Ld. M.M. has chosen to appreciate the case of
the complainant upon the evidence collected by the Investigating
Agency in the said FIR. This to my mind is an error which has
vitiated the order.
9.4 Ld. M.M. has also rejected the version of the complainant on
the premise that non examination of the security guard, non seizure
of CCTV footage are the deficiency in investigation. Now I fail to
understand the import of such a comment for the reason that the
Ld. M.M. is not the Ld. ASJ conducting the trial who could have so
stated or opined. It is not the case of anyone that the said aspects
were "deficiencies in investigation." The complainant had asserted
that non examination of security guard, non seizure of CCTV
footage and not immediately making the PCR call are suspicious
circumstances or in any manner the respondent intended to conceal
something.
Such observations that said aspects amount to deficiency of
investigation otherwise also not only prejudices the complainant
herein but also in a manner coming from an authority prejudice
other as well.
9.5 Furthermore, it is the admitted case of the prosecution itself that
the place was washed by Mintoo Mathur and there is a DD No. 28-
A recorded. To outrightly exclude the same from the zone of
consideration is also untenable and contrary to the record. So much
so the observation "Neither the place of fall of Pavni was cleaned
by any of the respondent in the presence of CW1 nor such
instruction was given by the fat her of deceased Pavni to Mintoo
Mathur in the presence of CW1" is uncalled for. The complainant's
testimony is itself based on the DD No.28-A which to my mind
cannot be denied by anyone.
9.6 Coming to a specific fact which needs no amplification that a
mobile phone is a bundle of information in today's world. t speaks a
lot about the person who uses it. His thoughts, his actions, his
relations, his interface with all are immersed in it. The said mobile
phone of deceased Pavni was locked and therefore the information
could not be sieved/retrieved. Nonetheless certain facts remain on
record that a call was made from the mobile number of Pavni to
another phone number after her death. Obviously, a dead person
cannot be expected to call and this call was made by somebody
who was aware about the pin code/pin lock or any other lock in the
phone The Court had summoned the officer of the record from
Airtel who had revealed that the mobile phone was issued to
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Pramod Kakkar s/o Dilip Singh Kakkar. The notice was issued to
said Pramod Kakkar however he remain unserved
9.7 In my opinion the Ld, Magistrate ought to have completed this
exercise inasmuch as this is indeed a suspicious circumstance as to
how a call was made to an unknown person or to a person whose
identity could not be ascertained. In any case if the mobile phone
has been used after the demise of the deceased Pavni Ahuja this
aspect ought to have been completely enquired to bring it to a
logical end.
9. 8 Ld. Counsel for Revisionist had argued that the Revisionist and
his family have been charged for the offence U/s 304-B IPC.
However, the ingredients thereof are not made out.
I am of the firm view that this Court is only to exercise its
revisional jurisdiction in respect of the order under challenge to
determine its legality, propriety and the correctness of the same
being in accordance with law. Hence, no other observation on any
aspect is required for. The right manner is to treat both the cases
separately and to decide either of them on the evidence led in each
of them.
10. Considering the totality of facts and circumstances in my
opinion the impugned order does not stand judicial scrutiny and is
liable to be set aside in exercise of revisional jurisdiction Ordered
accordingly.
11.The parties are directed to appear before the Ld. Court on
07.07.2021. The Ld. M.M. to permit the further examination of any
other witness(es), if sought for by the complainant and thereafter
pass a reasoned order in the light of the aforesaid observations
within a period of three months thereafter latest by 07.10.2021."
5 The contention of the learned counsel for the petitioner before this
Court is that since the learned ASJ was exercising the revisional jurisdiction,
so the jurisdiction of the said Court was very limited. The revisional power
of an Addl. Sessions Judge/Sessions Judge is described in Section 399/400
Cr.P.C.:-
399. Sessions Judge' s powers of revision.
(1) In the case of any proceeding the record of which has been
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called for by himself, the Sessions judge may exercise all or any of
the powers which may be exercised by the High Court under sub-
section (1) of section 401.
(2) Where any proceeding by way of revision is commenced before
a Sessions Judge under sub- section (1), the provisions of sub-
sections (2), (3), (4) and (5) of section 401 shall, so far as may be,
apply to such proceeding and references in the said sub- sections to
the High Court shall be construed as references to the Sessions
Judge.
(3) Where any application for revision is made by or on behalf of a
person before the Sessions Judge, the decision of the Sessions
Judge thereon in relation to such person shall be final and no
further proceeding by Way of revision at the instance of such
person shall be entertained by the High Court or any other Court."
"Section 400 in The Code Of Criminal Procedure, 1973
400. Power of Additional Sessons Judge. An Additional Sessions
Judge shall have and may exercise all the powers of a Sessions
Judge under this Chapter in respect of any case which may be
transferred to him by or under any general or special order of the
Sessions Judge."
5.1 Learned ASJ exercises the power of High Court in respect to revision
in terms of Section 397 of of Cr.P.C., which is reproduced as under:-
"397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order,- recorded
or passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling for such record, direct that
the execution of any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail or on his
own bond pending the examination of the record. Explanation.-
All Magistrates whether Executive or Judicial, and whether
exercising original or appellate jurisdiction, shall be deemed to
be inferior to the Sessions Judge for the purposes of this sub-
section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall
not be exercised in relation to any interlocutory order passed in
any appeal, inquiry, trial or other proceeding.
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(3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them."
5.2 The learned ASJ has to satisfy himself regarding the
correctness/legality or propriety of any finding or order passed by the Court
of learned MM and regularity of any proceedings pending before such
Court. Learned counsel for the petitioners has relied upon the judgment of
Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan vs. Dattatray
Gulabrao Phalke and Ors. reported as (2015) 3 SCC 123 in this regard. It
is argued by the petitioners that the learned MM had concluded in para
12,13 and 14 of the order dated 11.11.2019 that there was no evidence on
how the deceased was murdered and the present accused was not even
present near deceased/Pavni Ahuja, at the time she jumped from the terrace.
So, the foundation of the order dated 11.11.2019 is based on material facts
and evidence. It has been denied that the learned MM was weighed by the
fact that the complainant was facing a criminal prosecution, wherein the
witnesses were produced by the complainant as per his own desire and the
directions to permit the complainant to examine further witnesses is beyond
the revision petition filed by the complainant. Moreover, the learned ASJ
has not appreciated judgment of this Court in Mohd. Salim v/s State
175(2010) DLT 473, wherein it was held that the accused cannot file a
complaint after investigation of FIR was complete and defence of the
accused cannot be examined at any stage before recording his statement
under Section 313 Cr.P.C. As per the petitioners, the complaint is a gross
abuse of the process of law as there is delay of 3 years and 8 months in
lodging the complaint and no plausible explanation has been offered for the
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said delay. It is submitted that the examination of defence at this stage is
contrary to the scheme of Cr.P.C. The accused has a right to lead his
defence after his statement under Section 313 Cr.P.C. is recorded.
Moreover, the case set up by the revision petitioner is not a cross-case and it
is not even a complaint as per Section 2D of the Cr.P.C.. The complainant
had relied only upon the narration of evidence placed in case FIR No.
94/2015 registered against him. The facts leading to the accident have not
been described in the complaint as the complainant himself says that he is
unaware of the circumstances leading to the death of the deceased. A
complaint cannot include a police report. The version of the revision
petitioner before the learned ASJ does not have any independent existence
and it is not a cross-case as settled by Hon'ble Supreme Court in Anju
Chaudhary Vs. State of Uttar Pradesh reported as (2013) 6 SCC 384.
5.3 It is also submitted by petitioners that the material placed on record is
not even an admissible material as all the three witnesses examined by the
complainant were not aware of the circumstances leading to the death of the
deceased and all the exhibits are from the record of Sessions case in FIR No.
94/2015. Witnesses had only produced the inquest report, MLC and FSL
report. Moreover, consideration of material placed on record is barred by
law and testimonies of the witnesses show that the petitioners are not guilty
of any offence.
5.4 Petitioners have also submitted that the present Revision Petition is
maintainable as it was not the present petitioners, who had filed the revision
petition before the learned ASJ. Reliance has been placed on Wajid Mirza
Vs. Mohd. Ali Ahmed and Ors reported as (1982) Crl. LJ 890 and
Inayatullah Rizwi Vs. Rahimatullah and Ors. reported as (1981) Crl. LJ
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139: 1981 MahLJ 249).
6. In the brief synopsis filed on behalf of respondent No. 2, it is
submitted that there is no illegality or infirmity in the order dated
25.06.2021 passed by the learned ASJ, who has duly exercised the revisional
jurisdiction. It has been submitted that the charge-sheet in case FIR No.
94/2015 was sent for scrutiny to the prosecution branch and it was observed
that there was no legal evidence to attract the alleged sections; there is no
evidence to conclude that the victim had committed suicide and to rule out
that she was not murdered and there is relevancy of personal diary placed on
record etc. To overcome these lacunas, one Mr. Sanjay Kumar Gupta was
introduced later on as a witness, who had not witnessed the unfortunate
incident and whose statement was recorded under Section 164 Cr.P.C. on
18.05.2013, i.e., almost three months after the date of incident on
25.02.2013.
6.1 It is further submitted on behalf of respondent No. 2 that Dr. Deepak
Prakash, who conducted the post-mortem, had also stated in his testimony
that some of the injuries on the body of the deceased may have been caused
when a person tries to defend oneself in case of being physically attacked by
another person and the gazed abrasion caused on the body of the victim is
caused when one is dragged over a hard rough surface and injury No. 1,
which is sufficient to cause death, can be caused on account of direct
violence suffered by the victim at the behest of an attacking assailant with a
blow given with a heavy blunt object. Even Dr. L.C. Gupta, who was
examined as CW-1 in the complaint case, had opined that injury No. 1 on
the head was caused by sufficiently heavy weapon and some other injuries
are possible when a person was defending oneself while someone is
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attacking him or her while other injuries are possible only when somebody
dragged a person on hard surface. So, the post-mortem findings and the
injuries sustained by the deceased are consistent with mode of death being
homicidal.
6.2 It is further submitted on behalf of respondent No. 2 that learned ASJ
rightly observed that even if the complainant was facing a trial, his
testimony cannot be outrightly disbelieved. Moreover, while allowing the
revision petition, learned ASJ had just remanded the matter back to the
learned M.M., allowing the complainant to examine further witnesses for
just and proper adjudication of the case and to meet the ends of justice. The
present revision petitioners were heard by the learned revisional Court and
the second revision petition has a very limited scope and no prejudice has
been caused to the present petitioners by the order passed by the learned ASJ
remanding back the matter for further examination of the witnesses by the
complainant. The respondent No. 2 wishes to unearth the truth.
6.3 Moreover, the judgment relied upon by the learned MM for
dismissing the application under Section 156(3) Cr.P.C. vide order dated
15.10.2018 titled as Amrutbhai Shambubhai Patel Vs. Sumanbhai
Kantibhai Patel passed in Crl. Appeal No. 1171/2016. The said judgment
has been overruled by the three Judges Bench of Hon'ble Supreme Court in
the matter of Vinubhai Haribhai Malaviya and Ors. Vs. State of Gujarat &
Anr. reported as 2019 SCC OnLine SC 1346 decided on 16.10.2019. The
respondent No. 2 has relied upon the judgment in the matter of Vanitabai &
Ors. v. State of Maharashtra & Anr. reported as III (2017) DMC 642 (DB)
(Bom.). Learned counsel for respondent No. 2 has also relied upon the
judgment titled State of M.P. v. Mishrilal (Dead) and Ors. (2003) 9 SCC
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426. The relevant paragraph Nos. 7& 8 of this judgment are reproduced
hereunder:-
7. Undisputedly, accused Mishrilal lodged the report to the
police vide Ext. D-8 over the same incident which happened on 5-
3-1987, in which he had clearly stated that the injuries were
sustained by him and his son Madhusudan at the hands of the
prosecution party. It is also not disputed that on the strength of the
complaint lodged by Mishrilal, investigation was also carried out
and challan was filed, namely, Crime Case No. 52 of 1987 under
Sections 147, 148, 149 and 324 IPC against the prosecution party
which is pending for disposal before the learned Judicial
Magistrate, First Class. In the said challan, the prosecution party is
stated to be the aggressor. This court in Nathi Lal v. State of U.P.
pointed out the procedure to be followed by the trial court in the
event of cross-cases. It was observed thus: (SCC pp. 145-46, para
2)
"2. We think that the fair procedure to adopt in a matter like the
present where there are cross-cases, is to direct that the same
learned Judge must try both the cross-cases one after the other.
After the recording of evidence in one case is completed, he must
hear the arguments but he must reserve the judgment. Thereafter he
must proceed to hear the cross-cases and after recording all the
evidence he must hear the arguments but reserve the judgment in
that case. The same learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding each of the cases,
he can rely only on the evidence recorded in that particular case.
The evidence recorded in the cross-case cannot be looked into. Nor
can the judge be influenced by whatever is argued in the cross-case.
Each case must be decided on the basis of the evidence which has
been placed on record in the particular case without being
influenced in any manner by the evidence or arguments urged in
the cross-case. But both the judgments must be pronounced by the
same learned Judge one after the other."
8. In the instant case, it is undisputed, that the investigating
officer submitted the challan on the basis of the complaint lodged
by the accused Mishrilal in challan on the basis of the complaint
lodged by the accused Mishrilal in respect of the same incident. It
would have been just, fair and proper to decide both the cases
together by the same court in view of the guidelines devised by this
Court in Nathi Lal case. The cross-cases should involved. The
rational behind this is to avoid the conflicting judgments over
separately there is likelihood of conflicting judgments. In the
instant case, the investigating officer submitted the challan against
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both the parties. Both the complaints cannot be said to be right.
Either one of them must be false. In such a situation, legal
obligation is cast upon the investigating officer to make an
endeavour to find out the truth and to cull out the truth from
falsehood. Unfortunately, the investigation officer has failed to
discharge the obligation, resulting in grave miscarriage of justice."
6.4 Reliance is also placed on behalf of respondent No. 2 on Krishnan &
Anr. Vs. Krishnaveni and Anr 1997(4) SCC 241; Doodhnath Pandey v/s
State of U.P. (1981) 2 SCC 166; Munshi Prasad vs. State of Bihar (2002)
1 SCC 351.
7. While arguing, the first emphasis was laid down by the learned
counsel for the petitioners on the ground of delay and latches. As per him,
the criminal complaint was filed by respondent No. 2 after more than three
years from the date when the unfortunate incident had taken place. The case
of the respondent No. 2/complaint is that he came to know about the facts of
the case only when the charge-sheet was filed in the year 2015. Even then
the complaint was filed in the year 2018, whereas the date of incident was
25.02.2015 and charge-sheet was filed in the same year. I am of the
considered view that since there is no limitation provided for filing a
complaint in death cases, hence the fact that the present respondent No.
2/complainant took more than two years to approach the Court in itself is not
fatal to the complaint filed by him and the complaint cannot be dismissed on
this ground only.
8. It is further submitted on behalf of the petitioners that the complainant
himself is an accused and he can only lead evidence in his support after
getting his statement recorded under Section 313 Cr.P.C.. Reliance is placed
on the judgement titled as Mohd Salim v. State reported as 2010 SCC
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OnLine Del 1053, especially on para Nos. 29, 35 & 39, which are
reproduced hereunder:-
"29. The decision in the case of T.T. Antony (supra) came up for
consideration before a three-Judge Bench of the Supreme Court in
the case of Upkar Singh (supra). In that case, a complaint with the
police was lodged by the first respondent before the Supreme Court
against the appellant before the Court and some other persons.
Crime No. 48 of 1995 was registered on the basis of that complaint.
The appellant before the Supreme Court claimed that he too had
lodged a complaint with respect to the very same offence against
the respondents, but his complaint was not entertained by the
police. He tried to approach the Superintendent of Police and
District Magistrate, but could not succeed in getting the FIR
registered. Thereupon, he filed a petition under Section 156(3) of
the Code of Criminal Procedure, whereupon the Magistrate
directed registration of a case against the persons named as accused
in the complaint filed by the appellant. Crime No. 48 of 1995 was
accordingly registered by the police. The order of the Magistrate
directing registration of the complaint was challenged by the first
respondent, by filing a Revision Petition before the Additional
Sessions Judge. The order passed by the Magistrate directing
registration of criminal case was set aside by the Additional
Sessions Judge. The order passed by the Additional Sessions Judge
was challenged by the appellant before the High Court. The
challenge however did not succeed. The order of the High Court
was then challenged by the appellant before the Supreme Court.
During pendency of the matter before the Supreme Court, decision
came to be delivered in the case of T.T. Antony (supra). While
granting leave to appeal, the Division Bench of the Supreme Court
doubted the correctness of the judgment in the case of T.T. Antony
(supra) and referred the matter to a Larger Bench. After examining
the decision rendered in the case of T.T. Antony (supra), the
Supreme Court was of the view that the decision rendered by it in
that case, did not preclude an aggrieved person from filing a
counter case. The Court was of the view that in T.T. Antony, it had
only held that any further complaint by the same complainant or
others against the same accused, subsequent to a registration of a
case, is prohibited under the Code because an investigation in this
regard would have already started and further complaint against the
same accused will amount to an improvement on the facts
mentioned in the original complaint and hence, will be prohibited
under Section 162 of the Code. This prohibition, according to the
Supreme Court, does not apply to counter complaint by the accused
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in the first complaint or on his behalf alleging a different version of
the said incident. Allowing the appeal, the Supreme Court, inter
alia held as under:
"23. Be that as it may, if the law laid down by this Court in T.T.
Antony's case is to be accepted as holding a second complaint in
regard to the same incident filed as a counter complaint is
prohibited under the Code then, in our opinion, such conclusion
would lead to serious consequences. This will be clear from the
hypothetical example given hereinbelow i.e. if in regard to a crime
committed by the real accused he takes the first opportunity to
lodge a false complaint and the same is registered by the
jurisdictional police then the aggrieved victim of such crime will be
precluded from lodging a complaint giving his version of the
incident in question consequently he will be deprived of his
legitimated right to bring the real accused to books, This cannot be
the purport of the Code. 24. We have already noticed that in the
T.T. Antony's case this Court did not consider the legal right of an
aggrieved person to file counter claim, on the contrary from the
observations found in the said judgment it clearly indicates that
filing a counter complaint is permissible.
25. In the instant case, it is seen in regard to the incident which
took place on 20th May, 1995, the appellant and the 1st respondent
herein have lodged separate complaints giving different versions
but while the complaint of respondent was registered by the
concerned police, the complaint of the appellant was not so
registered, hence on his prayer the learned Magistrate was justified
in directing the police concerned to register a case and investigate
the same and report back."
35. It was submitted by the learned Counsel for the petitioner
that in fact the complaint is actuated by ulterior motives since the
strategy behind seeking directions for investigation by the police is
to stall the trial of the murder case pending against him on the
ground that his complaint giving counter version of the incident
being under investigation pursuant to a judicial order, the trial
should be stayed or held up till the investigation into the counter
version given by him is complete and culminates in filing of a
charge-sheet or final report, as the case may be. The argument of
the complainant justifying such a relief would be that he will face a
fait basis of investigation being conducted by it, comes to the
conclusion that he was innocent and the other party was the real
culprit. Considering the circumstances that (i) there is no allegation
of the complainant Mohd. Rafique or anyone acting on his behalf
having made any complaint to the Station House Officer, giving
counter version of the incident which took place on 22nd
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December, 2005; (ii) there is no allegation of the complainant or
anyone acting on his behalf having written to the Deputy
Commissioner of Police under Section 154(3) of the Code of
Criminal Procedure; (iii) there is no allegation of the complainant
having given his version of the incident to the Magistrate before
whom he was produced from time to time for the purpose of taking
his remand; (iv) the complainant has not annexed copy of any
complaint made to the Station House Officer or to a superior police
officer either by him or anyone acting on his behalf; (v) the
complainant did not approach the Magistrate at any time before
filing of charge-sheet and against him and taking of cognizance by
the Court, it appears to me that the complaint filed by Mohd.
Rafique is indeed tainted with ulterior motives, the purpose being is
to stall the progress of the trial pending against him which is stated
to be substantially complete. If the Court directs registration of FIR
and consequent investigation at this stage, it will only be lending a
helping hand to a person who does not seem to be a bona fide
person aggrieved on account of refusal of the police to register FIR
on the complaint made by him and whose sole motive appears to be
to frustrate or at least delay the trial pending against him. Such an
investigation, if directed at this stage, is bound prejudice the
prosecution and result in circumventing the legal process.
39. I am, therefore, satisfied that the impugned order, if allowed
to stand, will result in gross abuse of the process of the Court, at the
behest of a person accused of committing a serious offence. If such
an order is not quashed, it will give a convenient tool to the persons
facing trial for committing heinous crimes, pursuant to
investigation carried out by the State machinery, to thwart the legal
process, by filing a complaint at a time which suits their strategy,
giving a counter version claiming themselves to be innocent and
implicating persons, who are likely to depose against them, so as to
put pressure on those witnesses not to depose against them. In fact
sheer pressure of being accused of having committed a serious
offence, by itself may dissuade the witnesses from coming forward
to give evidence against the accused and if that happens, the
accused will become successful in his sinister design of frustrating
the legal process initiated against him. Such attempts, therefore,
need to be nipped in the bud and such abuse of legal process needs
to be curbed by an effective and decisive intervention by this Court,
which owes a duty to uphold the legal process and prevent its abuse
or misuse by anyone, whosoever he may be."
8.1 This decision is not applicable to the facts of the case in hand. There
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is no revival of the application under Section 156(3) Cr.P.C., which was
dismissed by Ld. M.M. There is no stay of trial of the criminal case filed by
State against the respondent No. 2. Already, many witnesses have been
examined. There was no occasion for the respondent No. 2 to go to police
immediately after the incident as he was neither present at the time of the
unfortunate incident nor he was aware of the surrounding circumstances of
death of his daughter-in-law till he got copy of the charge-sheet. So, the
ratio of judgment in Mohd. Salim Vs. State (Supra) is not applicable to the
present case.
9. Petitioners have also placed reliance on the judgment titled as
Kashinath Kutwal and others v. The State of Maharashtra and Anr.
reported as 2017 SCC Online Bom 462, especially on para Nos. 1, 8 and
23, which are reproduced hereunder:-
"1. The following question arises in this application under Section
482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."):
"Whether in the facts of the case after completion of investigation
of a crime and after filing a charge sheet, under an order of the
learned Judicial Magistrate First Class under Sub-Section (3) of
Section 156 of Cr.P.C passed on the basis of a complaint filed by
an accused, one more First Information Report can be registered in
relation to the same incident."
8. Thus, the factual scenario which emerges is that on the basis of
the FIR lodged on 29 November, 2015 by the husband of the
deceased, investigation has been carried out and charge sheet has
been submitted. The case was committed to the Court of Sessions
on 18 March, 2016. The second respondent who was shown as an
accused, applied for discharge and his application was rejected on 1
October, 2016 by a detailed order. It was held by the Sessions
Court that prima facie, there is sufficient material against the
second respondent to proceed. The said order has attained finality.
After the said Order was passed, on 26 October 2016, without
disclosing the said Order, the aforesaid Complaint was filed on the
basis of the same incident. On the basis of the impugned order
dated 25 November, 2016 passed under Sub-Section (3) of section
156 of Cr.P.C, the impugned FIR has been registered on 19
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November, 2016 alleging commission of an offence punishable
under Section 302 read with Section 34 of the Penal Code, 1860
against the husband of the deceased, the present applicants and five
others. According to us, the action of filing the complaint under
Sub-Section (3) of Section 156 of Cr.P.C. by the second respondent
after filing an application for discharge and after the said
application was rejected on merits, is nothing but an abuse of
process of law. Whether the registration of second FIR can be made
is another issue. Even without going into the said issue, the
applicants must succeed.
23. Subject to what is observed above, the application must succeed
and we pass the following order:-
ORDER
(i) The order dated 15 November, 2016 passed by the learned Judicial Magistrate, First Class, 3 Court, Baramati is set aside and RCC No. 645 of 2014 stands dismissed;
(ii) Consequentially, the First Information Report bearing C.R. No. 375 of 2016 registered with Wadgaon Nimbalkar Police Station on 19 November, 2016 is quashed and set aside;
(iii) We make it clear that we have made no adjudication on the merits of the pending case and merits of the allegations made by the second respondent as regards commission of the offence punishable under Section 302 read with Section 34 of the Penal Code, 1860;
(iv) Rule is made absolute on above terms with no order as to costs."
9.1 With due respect, again ratio of this judgment is not applicable to the facts of the present case as there is no application under Section 156(3) Cr.P.C. surviving and there is no concealment of facts. Rather, the entire complaint of the respondent No. 2 is based upon the facts and circumstances disclosed in the charge-sheet filed by the State.
10. Reliance is also placed on Vanitabai & Ors. v. State of Maharashtra & Anr. reported as III (2017) DMC 642 (DB) (Bom.), especially on para 16, which is reproduced hereunder:-
16. We find that when the learned Magistrate has taken cognizance of the allegations of respondent No. 2 in complaint R.C.C. No. 366/2016 against accused Nos. 1 to 6 and has Signature Not Verified Digitally Signed By:AANCHAL TAGGAR Signing Date:01.06.2023 CRL.REV.P. 17:35 210/2021 Page 23 of 26 Neutral Citation Number : 2023:DHC:3977 discharged accused No. 7, they cannot be again compelled to face ordeal of trial on the same facts. It amounts to abuse of the process of the Court. Hence, we hold that F.I.R. is not maintainable and pass the following order:
ORDER
(i) Criminal Application is allowed. The F.I.R. registered against the applicants at C.R. No. 38 of 2017 at Begumpura Police Station, Aurangabad now transferred to Vaijapur for offence punishable under Section 498-A, 323, 504, 506 read with Section 34 of Indian Penal code, is hereby quashed.
(ii) We clarify that the observation made herein are made only for deciding the present application filed by the present applicants and these observations shall not be used elsewhere in any other trial against the present applicants or anybody else."
10.1 In the above case, same accused were again facing another trial on the same facts. It is not the case of the respondent No. 2 here. As on date, there is no case registered against the present petitioners and only a complaint is pending before Ld. M.M., hence ratio of this judgment is not applicable.
11. It is also submitted that testimony in another case is not to be relied upon as was held in the case of Shadab Siddique @ Aman Vs. State of West Bengal & Anr. reported as 2017 SCC Online Cal 102. Relevant is para No. 9, which is reproduced hereunder:-
"9. Finally, the learned Counsel for the petitioner sought for production of the documents like seizure list and/or deposition recorded in the course of trial in the aforesaid case relating to possession of fire arms where the petitioner had been convicted. It is settled law that evidence of one case cannot be used in another case until and unless the witness has been confronted with his deposition in the other case. No such effort has been made by the defence in the course of trial of the instant case. Hence, I am constrained also to disallow the prayer of the petitioner to produce/rely on the documents exhibited and/or evidence adduced in the aforesaid case under the provisions of the Arms Act."
11.1 With due respect, again ratio of this judgment has not application to the present case as there is no order of the Ld. M.M. on merits of the Signature Not Verified Digitally Signed By:AANCHAL TAGGAR Signing Date:01.06.2023 CRL.REV.P. 17:35 210/2021 Page 24 of 26 Neutral Citation Number : 2023:DHC:3977 complaint. Witnesses are yet to be recorded as ordered by Ld. ASJ and the outcome of consideration of merits of evidence to be led by complainant cannot be discussed at this stage.
11.2 It is also submitted that respondent No. 2 never requested to examine any further witnesses and the Court on its own cannot grant the said opportunity. The complainant's case cannot be treated as a cross-case. In my view, in the interest of justice, Ld. ASJ has the power to order examination of any further witness(s), if the complainant wishes, so as to uncover the truth and to set the controversy to finally rest and with a view to give a broader view to the Ld. Magistrate to decide the complaint on merits.
12. On the other hand, respondent No. 2 has relied upon the State of M.P. v. Mishrilal (Dead) and Ors. reported as (2003) 9 SCC 426. In para 7 and 8 of this judgment, it is mentioned that when there were two versions of the same incident and a complaint has been filed on the basis of the version as propounded by the complainant, duly supported by forensic evidence, so the case is to be decided on its own merit. Hence, the learned ASJ was right in giving a chance to the complainant/respondent No. 2 to lead further evidence to prove the contents of the complaint at pre-summoning stage.
13. It is also the submission of the respondent No. 2 that the petitioners have moved this Court at a premature stage as there is no finding against them, which may prejudice the present petitioners. Rather the learned ASJ, vide impugned judgment, has only remanded the matter back with a fixed time frame and has given opportunity to complainant/respondent No. 2 to examine further witnesses, if required, and if after crossing the said stage, the learned MM passes any adverse order against the interest of the petitioners, they have every right to challenge the same. This Court agrees Signature Not Verified Digitally Signed By:AANCHAL TAGGAR Signing Date:01.06.2023 CRL.REV.P. 17:35 210/2021 Page 25 of 26 Neutral Citation Number : 2023:DHC:3977 with this submission. Recording of pre-summoning evidence is essentially at the instance of the complainant and proposed accused persons cannot object to the same. As and when, if at all, they are summoned, at that stage the present petitioners will have a right to challenge their summoning.
14. The revision petition is without any merit and the same is hereby dismissed.
TALWANT SINGH (JUDGE) MAY 29, 2023/nk/mr Signature Not Verified Digitally Signed By:AANCHAL TAGGAR Signing Date:01.06.2023 CRL.REV.P. 17:35 210/2021 Page 26 of 26