Delhi District Court
-: 1 :- Bishan Singh vs . Smt. Savita on 31 March, 2017
-: 1 :- Bishan Singh Vs. Smt. Savita
CR No:440611/2016
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI)-1
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :-
CR No. : 440611/2016
Bishan Singh
S/o Daya Chand
R/o 1669/2A, Gaushala Road
Najafgarh
New Delhi.
......... Revisionist
VERSUS
Smt. Savita
W/o Naresh Chand
R/o D 37, Gopal Nagar
Najafgarh, New Delhi- 110043.
.........Respondent
CR No. 440611/2016
Date of Institution 29.11.2016
Reserved for orders on 22.03.2017
Judgment announced on 31.03.2017
CR No: 440611/2016 Page No.1 of 20 DOO 31.03.2017
-: 2 :- Bishan Singh Vs. Smt. Savita
CR No:440611/2016
JUDGMENT
1. These are revision petition under Section 397/399 of Cr.P.C. filed by the revisionist against the order dated 30.04.2016 passed by the Court of Ld. MM- 01, Dwarka Courts, New Delhi and application dated 15.11.2016 under Section 5 of the Limitation Act filed by the revisionist for condonation of delay in filing the revision petition.
2. Briefly stated relevant facts for disposal of the application under Section 5 of Limitation Act for condonation of delay and revision petition are as under :-
3. The revisionist has filed the above noted revision petition stating therein that the respondent/complainant has filed the complaint bearing no. CC 26/01 alleging that the revisionist/accused used to harass the respondent for not bringing enough dowry and on 23.07.2011 the revisionist/accused joined hands with other accused persons i.e. father, mother and brothers and did not allow the respondent/complainant to draw drinking water and also falsely informed the parents of respondent/complainant that she has left the matrimonial home and in the complaint, the respondent/complainant further stated that on CR No: 440611/2016 Page No.2 of 20 DOO 31.03.2017
-: 3 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 24.07.2011 respondent/complainant was beaten mercilessly by all the accused persons and the revisionist/accused hit the respondent with a sharp object on her eye and call was made to the police and the complainant/respondent was taken to RTRM hospital at Jaffarpur Kalan by her husband and her MLC no. 2991 dated 24.07.11 was prepared . It is further stated that the police did not lodge the FIR against the revisionist and his family members and the complainant filed the complaint in the court of Ld. ACMM, Dwarka against all the family members including father, mother and brothers of the revisionist.
4. It is stated that vide order dated 30.04.2016 , Ld. MM-01, Dwarka Courts, New Delhi was pleased to order for issuance of summons to respondent no. 3 (revisionist herein) and dismissed the complaint as alleged against all other family members.
5. It is further stated that respondent/complainant being aggrieved by the impugned order dated 30.04.2016 preferred the revision petition in the court of Ld. Sessions Judge and Sh. Anil Kumar, Ld. Sessions Judge was pleased to dismiss the revision petition vide order dated 15.10.2016.
6. It is stated that Ld. Trial Court has failed to appreciate that the statements of complainant and her CR No: 440611/2016 Page No.3 of 20 DOO 31.03.2017
-: 4 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 husband are self contradictory. It is stated that Ld. MM has also failed to appreciate that the complainant had made statement to the police on 24.07.2011 in which she stated that scuffle between the brothers had started due to non payment of Rs. 500/- which is the water bill payable by the husband of the respondent/complainant and in the said complaint, there is no allegation of demand of dowry.
7. It is further stated that Ld. Trial Court hs failed to appreciate that the complainant/respondent has made material alteration and improvisation in her earlier statement dated 24.07.2011 made to the police. It is stated that in her statement before the court , complainant has stated that she was hit by some sharp object but the in the MLC, it is stated that injury was sustained by some blunt object and the same has not been appreciated by the Ld. Trial Court . It is stated that the revision petition is liable to be allowed.
8. In the application under Section 5 of the Limitation Act dated 15.11.2016, the revisionist has stated that he is posted at Baikunthpur in the Jalpaiguri district of West Bengal as Sub Inspector in the Border Security Force(BSF) and is living there with his family and the place of posting is about 1700 kms away from Delhi and it is not easy for the revisionist to avail leave CR No: 440611/2016 Page No.4 of 20 DOO 31.03.2017
-: 5 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 and he could not prefer the revision petition against the impugned order dated 30.04.2016 as the sanction of leave in forces is very difficult. It is further stated that revisionist was not aware that summoning order can be challenged in the form of revision petition and came to know about the same when the revision petition filed by the respondent was dismissed on 15.10.2016 and on that account there is delay of 120 days in filing the revision petition.
9. Respondent has filed replies to the revision petition and application under Section 5 of Limitation Act and has contested the same.
10. In the reply to the revision petition the respondent has stated that the revision petition is not maintainable as the revisionist is trying to misuse the process of law. It is stated that statements of respondent and her husband have been corroborated with the material and Ld. Trial Court has passed the order on the basis of material on record. It is stated that the revisionist had been harassing the respondent for not bringing sufficient dowry but the husband of the respondent advised the respondent/complainant to compromise with the situation as revisionist is his elder brother. It is stated that revisionist used to taunt the respondent/complainant and did not allow the CR No: 440611/2016 Page No.5 of 20 DOO 31.03.2017
-: 6 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 respondent/complainant to fetch water and consume the electricity etc. It is further stated that on 24.07.2011 the respondent was beaten up mercilessly and revisionist had hit her eye with a sharp object and her left eye was injured and thereafter call was made to the police and the respondent was taken to hospital where MLC No. 2991/11 dated 24.07.2011 was prepared. It is stated that in the kalandara under Section 107/150 Cr.P.C., it has been mentioned that the revisionist had hit on the eye of respondent/complainant with sharp object. It is stated that the impugned order dated 30.04.2016 does not suffer from any infirmity.
11. Respondent has also filed reply to the application under Section 5 of the Limitation Act for condonation of delay and has contested the same. In the reply, respondent has stated that there is delay of more than 120 days in filing the revision petition and and the revisionist has not explained reasonable grounds for condonation of delay. It is stated that present revision petition is a delaying tactics. It is stated that the revisionist was fully aware of the proceedings of the Ld. Trial Court and had appeared before the Trial Court as well as the concerned police officials and also filed application before Ld. Revision Court in which the revision petition filed by the respondent was pending. It is stated that application does not disclose sufficient CR No: 440611/2016 Page No.6 of 20 DOO 31.03.2017
-: 7 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 ground for condonation of delay and is liable to be dismissed.
12. I have heard Ld. Counsel for the parties and perused the records.
13. The contention of Ld. Counsel for the revisionist is that the revisionist was employed in BSF and was posted at a distant place and could not avail leave and revisionist was also not aware that he could prefer the revision petition against the impugned order, hence there is delay in filing the revision petition. Ld. Counsel for the revisionist has relied on the following decisions:
(i) N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123
(ii) Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and Others, (2002) 3 Suprme Court Cases 195.
(iii) State Vs. Rajeev Bharti & Anr., Crl. M.C. No. 3614/2011.
14. Ld. Counsel for the respondent has contended that the application under Section 5 of the Limitation Act does not disclose sufficient ground for condonation of delay and the revisionist has falsely pleaded that he did not get the leave as he has not filed any documents on record to prove that leave was declined to him and CR No: 440611/2016 Page No.7 of 20 DOO 31.03.2017
-: 8 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 moreover the respondent no. 3 was visiting Delhi and had also engaged a counsel to defend him in the revision petition No. 172/16 which was filed by the respondent/complainant against the impugned order dated 30.04.2016.
15. The revision petition is directed against the impugned order dated 30.04.2016 passed by Ld. Trial Court whereby the Ld. Trial Court was pleased to pass order for summoning of respondent no. 3 (revisionist herein) for offences under Sections 323/506 IPC in the complaint titled as Smt. Savita Vs. Sh. Daya Chand & Ors. filed by the complainant/respondent. As per the impugned order dated 30.04.2016, Ld. Trial Court was pleased to observe that there is prima facie sufficient ground for summoning accused no. 3( revisionist herein) for offences under Sections 323/506 IPC and there is no sufficient evidence to summon the other accused persons.
16. Feeling aggrieved by the impugned order dated 30.04.2016, the complainant ( respondent herein) preferred one revision petition being CR No. 172/16 which was dismissed by Sh. Anil Kumar, Special Judge( The Companies Act), ASJ-03, Dwarka Courts, New Delhi vide order dated 15.10.2016. As per order dated 15.10.2016 passed in CR no. 172/16 by Ld. ASJ-03, CR No: 440611/2016 Page No.8 of 20 DOO 31.03.2017
-: 9 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 Dwarka Courts , the present revisionist i.e. Sh. Bishan Singh was impleaded as respondent no. 3 in the said revision petition and he was represented by the counsel in the said revision petition.
17. The plea which has been raised by way of application under Section 5 of the Limitation Act is that revisionist is employed in BSF and is posted at a distance from Delhi and that he was not aware that summoning order can be challenged and on that account revision petition was not filed within the period of limitation.
18. It is to be noted that the criminal revision petition no. 172/16 filed by the respondent/complainant was disposed of vide order dated 15.10.2016 and the revisionist was duly represented in the said revision petition and contested the same and had engaged a counsel. In the circumstances, it is not open for the revisionist to plead that he was not aware that the revision petition can be filed against the summoning order as he had already engaged a counsel for representing him in revision petition no. 127/16 and had availed legal advise.
19. Article 131 of the schedule of the Limitation Act, 1963 provides a period of limitation of 90 days for filing of revision petition and the said period of 90 days CR No: 440611/2016 Page No.9 of 20 DOO 31.03.2017
-: 10 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 shall commence from the date of order or sentence sought to be revised.
20. The present revision petition was filed on 29.11.2016. The contention of Ld. Counsel for the revisionist is that the revisionist was employed in BSF and was posted at a distant place and could not avail leave and revisionist was also not aware that he could prefer the revision petition against the impugned order, hence there is delay in filing the revision petition.
21. The revisionist has also not pleaded that after passing of the summoning order, he had not visited Delhi and had not contacted any counsel or by any other reason he was prevented from filing the revision within the period of limitation. Revisionist has also not filed on record any order passed by his employer in order to show that he had applied for leave for any specific period for preferring the revision petition against the impugned order and the same was declined.
22. The revisionist has relied on decision N. Balakrishnan Vs. M. Krishnamurthy (Supra) wherein Hon'ble Supreme Court has been pleased to hold:
9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no CR No: 440611/2016 Page No.10 of 20 DOO 31.03.2017
-: 11 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.---------------------------------
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11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy.
23. The revisionist has relied on decision Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and Others, (2002) 3 Suprme Court Cases 195 CR No: 440611/2016 Page No.11 of 20 DOO 31.03.2017
-: 12 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 wherein Hon'ble Suprme Court has been pleased to hold :
12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.
24. In Amardeep & Others Vs. State of Delhi & Anr. Crl. Rev. P. 573/2014 & Crl.MA 14417/2014 & Crl. MA 14420/2014 , Hon'ble High Court of Delhi was pleased to hold that it is incumbent upon the revisionist /petitioner to show that he was prevented by some sufficient cause which resulted in delay in filing the revision petition.
25. In Amardeep & Others Vs. State of Delhi & Anr. ( Supra), Hon'ble High Court of Delhi was pleased to observe :
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-: 13 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016
6. In Inder Industries V. Gemco Electrical Industries 147 (2008) DLT 305, this Court held as under :
"10. For the purpose of condonation of delay, there must be some cause which can be termed as "
sufficient cause". Condonation of delay cannot be allowed only because the delay is unintentional and there are sufficient attending circumstances to bolster up the same. Crux of the problem is as to whether there is some plausible and reasonable explanation given by the appellant in his application for condonation of delay caused in preferring the appeal and that the impugned order is liable to be interfered with on the ground that it is perverse or patently erroneous. There should be some extenuating circumstances justifying the condonation of delay under Section 5 of the Limitation Act. There must be some compelling reasons for the Court to condone the delay.
11. xx xx xx xx xx xxxxxxxxxxxxxxxxxx
12. In a recent authority reported in Writ Petition No.2165 of 2006 titled as Sow.Kamalbai w/o Narasaiyya Shrimal and Narsaiyya s/o Sayanna Shrimal vs. Ganpat S/o Vithalrao Gavare, 2007 (1) MhLJ 807, it is held:
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-: 14 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016
15. The expression "sufficient cause"
cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such 'sufficient cause' stated in the application and as such no interference in the impugned order is called for ."
26. The another ground which has been raised by the revisionist is that he was not aware that he could challenge the impugned order dated 30.04.2016 by filing the revision petition and on that account, the revision petition was not filed within the period of limitation. The revisionist has filed the copy of order dated 15.10.2016 passed by Sh. Anil Kumar, Ld. ASJ-03, Dwarka Courts, New Delhi whereby the criminal revision petition no. 172/16 titled as Savita Vs. Daya Chand etc. was dismissed and the present revisionist was respondent no. 3 in the said revision petition and was duly represented by his counsel. The order dated 15.10.2016 passed in criminal revision petition no. 172/16 shows CR No: 440611/2016 Page No.14 of 20 DOO 31.03.2017
-: 15 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 that the the revisionist had obtained legal advise after passing of the summoning order against him and was well aware of right of challenging the impugned order by filing a revision petition but he did not prefer to file the revision petition within the period of limitation. It is also to be noted that criminal revision petition No. 172/16, titled as Savita Vs. Daya Chand etc. was dismissed by Ld. ASJ-03 on 15.10.2016 and the present revision petition has been filed on 29.11.2016 i.e. after a gap of one and a half month of disposal of criminal revision petition number 172/16. This shows that the revisionist was waiting for the outcome of the criminal revision petition no. 172/16 for taking any further action. In the circumstances, it cannot be said that there were any bonafide reasons or sufficient cause for not preferring the revision petition within the period of limitation. The revision petition is hopelessly barred by period of limitation.
27. Although the revision petition is barred by period of limitation but parties have raised contentions on merits and the same are also being considered and disposed of accordingly.
28. The contention of Ld. Counsel for the revisionist is that there are contradictions in the statements of complainant and her husband recorded CR No: 440611/2016 Page No.15 of 20 DOO 31.03.2017
-: 16 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 before the Trial Court and there is contradiction in the statement of complainant with her statement recorded by the police in Kalandara under Section 107/150 Cr.P.C. and in the statement, the complainant has stated that the revisionist/accused No. 3 had injured her with sharp object but as per MLC she had sustained injury by some blunt object.
29. The revisionist has filed copies of Statements of CW1 Ms. Savita, CW2 Sh. Naresh Kumar, CW3 Dr. A.S. Yadav, Medical Officer, CW4 Sh. Roshan Lal, Record Clerk, DDU Hospital, CW5 Sh. Bal Kishan, father of complainant and CW6 Sh. Ram Pal, uncle of complainant and the copy of impugned order dated 30.04.2016.
30. In the impugned order dated 30.04.2016, Ld. Trial Court has been pleased to observe :
In Pre Summoning Evidence, complainant has examined herself as CW1 and reiterated the facts of the complaint.
CW2 Naresh Chand who is the husband of the complainant deposed before the court that the accused persons threatened him and his wife. He also stated the same contents of CW1.
CW5 Bal Kishan & CW6 who is the father and uncle of the complainant also stated the same contents of CW1.
Arguments heard. Record perused carefully.
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-: 17 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 After considering all the material produced by the complainant which is on record and in the light of evidence of CW1, CW2, CW5 & CW6, this court is of the considered view that prima facie sufficient ground is made out against accused no. 3 for the offence u/s 323/506 IPC and there is no sufficient evidence to summon the other accused persons.
31. The complainant (respondent herein) feeling aggrieved by the impugned order dated 30.04.2016 preferred a criminal revision petition bearing CR No. 172/16 titled as Smt. Savita Vs. Daya Chand etc. which was dismissed by Ld. ASJ-03 on 15.10.2016 and in the criminal revision petition no. 172/16, the present revisionist was arrayed as respondent no. 3 and was duly represented by his counsel.
32. In the order dated 15.10.2016 passed in Crl. Revision No. 172/16 titled as Savita V. Daya Chand & Ors. it has been observed :
8. I have gone through the statement of complainant, her husband, father of complainant and uncle of complainant and medical evidences.
Keeping in view contradiction between ocular evidence and medical evidence and contradiction in the statement of complainant made to the police in writing and given in the Court, I find that CR No: 440611/2016 Page No.17 of 20 DOO 31.03.2017
-: 18 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 Ld. Trial Court has committed no infirmity or irregularity in passing the impugned order.
33. The contentions which have been raised by the revisionist are that there are contradictions in the statements of complainant recorded before the Court and as recorded by the police in the Kalandara under Section 107/150 Cr.P.C. and there are also contradictions in the statements of CW1 and CW2 and the nature of object used in the MLC is mentioned as blunt while in her statement, the complainant has stated that she was hit by some sharp object.
34. In Fiona Shrikhande Vs. State of Maharashtra and Anr. , Crl. Appeal No. 1231/2013, Hon'ble Supreme Court has been pleased to observe :
11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal case is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to CR No: 440611/2016 Page No.18 of 20 DOO 31.03.2017
-: 19 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others ( 1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.
35. In Krishan Kathuria Vs. State & Anr., Crl. M.C. 549/2012 & Crl. Appeal No. 1922/12, Hon'ble High Court of Delhi has been pleased to observe:
4. -------------
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The scope of enquiry is extremely limited CR No: 440611/2016 Page No.19 of 20 DOO 31.03.2017
-: 20 :- Bishan Singh Vs. Smt. Savita CR No:440611/2016 only to ascertainment of truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon detailed discussion of the merits/demerits of the case. Again, there is no invariable rule that independent public witnesses are to examined to establish a case as there is no reason to disbelieve the evidence of the complaint at the stage of issuing process on a private complaint. The case is to be judged solely on the allegations made in the complaint and the evidence led by the complainant and it is not within the scope or authority of the Magistrate to make a meticulous or detailed examination of the evidence.
36. In view of aforesaid discussions, I find no infirmity or illegality in the impugned order. The revision petition and application under Section 5 of Limitation Act for condonation of delay are devoid of merits and same are dismissed.
37. A copy of this order be sent back to the court concerned. Revision file be consigned to record room.
Announced in the open Court (HARISH DUDANI) today on 31.03.2017 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
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