Delhi District Court
Shiva Bhardwaj vs State (Govt. Of Nct Of Delhi) on 15 November, 2021
IN THE COURT OF MS. CHARU AGGARWAL: ASJ-02:
CENTRAL: TIS HAZARI COURTS: DELHI
CNR No. DLCT01-004162-2021
Criminal Revision No. 72/2021
1. Shiva Bhardwaj
S/o Sh.Anil Mohan Bhardwaj
R/o 1035/27 B.K. S. Marg,
New Delhi.
2. Sadhna Bhardwaj
W/o Anil Mohan Bhardwaj
R/o 17 D, 2nd Floor, J Pocket,
Sheikh Sarai Phase II,
Malviya Nagar, Delhi.
3. Pahchaan Bhardwaj @ Parul @ Pehchaan Gusain
W/o Bhupender Singh Gusain
R/o J-4/90-B, First Floor,
DDA Flats, Kalkaji,
Delhi.
4. Trishul Bhardwaj @ Anuj
S/o Anil Mohan Bhardwaj
R/o Shop 11, 2nd Floor,
City Complex,
Haridwar, Uttarakhand. ..... Revisionists/petitioners
Versus
State (Govt. Of NCT of Delhi) ....... Respondent.
Date of institution : 17.03.2021
Date of decision : 15.11.2021
Digitally signed
by CHARU
CHARU AGGARWAL
AGGARWAL Date: 2021.11.16
15:03:14 +0530
Shiva Bhardwaj @ Ors. Vs. State 1 of 13
JUDGEMENT
1. The present revision petition u/s 397 Criminal Procedure Code ((hereinafter referred to as "CrPC") is directed against the order dated 04.02.2021 passed by Ld. CMM (Central), Delhi in the FIR No. 138/12 u/s 186/353/342/332/506/34 IPC PS D.B.Gupta Road, Delhi registered against the revisionist (s) (accused before Ld. Trial Court) whereby an application u/s 468 CrPC moved by the revisionist (s) was dismissed.
2. The FIR of this case was registered against the revisionist
(s) on 28.06.2012 on the complaint of SI Jagroop Singh vide DD No. 32 A at 07.05 p.m.
3. The facts borne out from the Trial Court Record are that on 25.06.2012, one Smt. Geeta Kataria made a police complaint against one Sh. Anil Mohan Bhardwaj (husband/father of revisionist) at police station Pahar Ganj. At that time, SI Jagroop Singh (complainant of this case) was posted at police station Pahar Ganj. On 27.06.2012 at about 9.30 a.m. SI Jagroop Singh alongwith father in law namely Pyarey Lal Kataria of Geeta Kataria went to the house of Anil Mohan Bhardwaj to inquire the complaint dated 25.06.2012 receiveed from Smt. Geeta Kataria, where wife, two sons, one daughter and one servant of Shiva Bhardwaj @ Ors. Vs. State Digitally signed 2 of 13 by CHARU CHARU AGGARWAL AGGARWAL Date: 2021.11.16 15:03:37 +0530 Sh. Anil Mohan Bhardwaj met him. It is alleged that when SI Jagroop Singh asked revisionist Sadhna Bhardwaj, wife of Sh. Anil Kumar Bhardwaj about her husband she raised her voice and started saying that they had made the entire payment to Geeta Kataria. SI Jagroop Singh asked Sadhna Bhardwaj to show the documents of repayment but she instead of showing any document got agitated and made SI Jagroop Singh to talk to her counsel. SI Jagroop Singh asked revisionist Sadhna Bhardwaj to send her husband at police station in the evening at 5 p.m. to join the investigation but on that she threatened him (SI Jagroop singh) to teach him a lesson and she would get his uniform removed, simultenously she told her both sons and servant to hold SI Jagroop Singh & Sh. Pyarey Lal Kataria and also to lock them in a room. On the instructions of Sadhna Bhardwaj, her both sons and servant locked both of them in a room after some scuffle. Revisionist Sadhna Bhardwaj again threatened SI Jagroop Singh that she would torn her clothes and implicate him in a false case of molestation/rape. After locking SI Jagroop Singh and Sh. Pyarey Lal Kataria in a room all the five persons(Sadhna Bhardwaj, her two sons, one daughter and servant) went out of their house. SI Jagroop Singh gave the Shiva Bhardwaj @ Ors. Vs. State Digitally signed by CHARU 3 of 13 CHARU AGGARWAL AGGARWAL Date:
2021.11.16 15:03:59 +0530 information at 100 number and to concerned SHO. After sometime ATO Sh. Mohan Chand Pandey alongwith staff and PCR reached at the spot. At that time, revisionist Sadhna Bhardwaj and her daughter both entered inside their house with ATO Mohan Chand Pandey. Revisionist Sadhna Bhardwaj started leveling allegations against SI Jagroop Singh that he has torned her clothes. On this complaint of SI Jagroop Singh, the FIR of this case was registered.
4. As per the chargesheet, the date of alleged incident is 27.06.2012. The chargesheet u/s 186/353/342/332/506 IPC was filed by the police before the Ld. Trial Court on 06.12.2016 i.e. after four years and ten months of the incident, therefore, the revisionist moved an application u/s 468 CrPC before Ld. Trial Court stating that none of the offence mentioned in the chargesheet provides the imprisonement for more than three years and as per Section 468 (2) (c) CrPC, the Court may take cognizance of an offence punishable upto three years within three years from the date of commencement of the period of Limitation and as per Section 469, in this case the period of Limitation has commenced from the date of offence itself since the accused and alleged commission of offence were within the knowledge of the Shiva Bhardwaj @ Ors. Vs. State Digitally signed by CHARU 4 of 13 CHARU AGGARWAL AGGARWAL Date:
2021.11.16 15:04:23 +0530 complainant since 27.06.2012 itself. On this premises the revisionist (s) filed the application u/s 468 CrPC before Ld. Trial Court which by way of impugned order was dismissed by the Ld. Trial Court, hence, the present revision petition.
5. It is stated in the revision petition as well as argued by Ld. counsel for revisonist (s) that the prosecution has filed the chargesheet against the revisionst (s) for the offences u/s 186/342/332/353/506 (part i) IPC and out of these offences only Section 332 IPC provides the maximum punishment of three years and all other offences under which chargesheet has been filed are punishable for less than three years, therefore, the Ld. Trial Court could have taken the cognizance of the offences mentioned in the chargesheet only within three years of the commission of alleged offence, thus, it is argued that taking of cognizance by Ld. Trial Court after four years and ten months is in contravention of Section 468 (2) (c) CrPC which prescribes that no Court shall take cognizance for the offence punishable upto three years after lapse of three years. Ld. counsel for revisionist (s) has also argued that none of the victim, be it SI Jagroop Singh or Sh. Pyarey Lal Kataria, in their respective statements recorded in the year 2012 made any allegations of Shiva Bhardwaj @ Ors. Vs. State 5 of 13 Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2021.11.16 15:04:44 +0530 receiving of threat to cause death from the accused persons but in order to fill the lacunae of Limitation, the said allegations were later on added by them in their statements u/s 161 CrPC recorded by the IO on 15.06.2014, after two years of incident.
6. Ld. Addl. PP has argued in support of the impugned order submitting that the chargesheet filed by the prosecution is not u/s 506 (Part i) but it is u/s 506 (Part ii) IPC which is punishable with imprisonment for seven years for which there is no limitation in filing the chargesheet and taking of cognizance by the concerned Court. He has also argued that vide order dated 06.12.2016, the Ld. CMM took the cognizance of the offences and summoned the revisionist and post taking of cognizance the trial court had become functus-officio and had no power to review its own order of taking cognizance, therefore, the Ld. Trial Court rightly dismissed the application of the revisionist.
7. I have considered the arguments advanced by Ld. Counsel for revisionist (s) and Ld. Addl. PP.
8. By way of impugned order dated 04.02.2021, the Ld. Trial Court has dismissed an application u/s 468 CrPC moved by the revisionist (s) herein observing that the chargesheet has been filed u/s 506 Part (ii) which prescribes punishment for seven Shiva Bhardwaj @ Ors. Vs. State Digitally signed 6 of 13 by CHARU CHARU AGGARWAL AGGARWAL Date:
2021.11.16 15:05:05 +0530 years for which there is no Limitation in taking the cognizance by the Court.
9. The argument of Ld. Addl. PP that accused cannot agitate the issue of limitation post taking of cognizance by the Court has no force in view of "State (Delhi Administration Vs. Anil Puri & Others ILR 1979, Delhi 350" , in which the Hon'ble Delhi High Court has observed that the Court might have taken cognizance of an offence without applying mind on the issue of limitation and in that case accused has right to agitate the issue of limitation at that stage of the matter. The relevant portion of the judgement is reproduced as under:-
"Once a limitation is barred in favour of a person he acquires a valuable-right. This right cannot be taken away except under the law. It is, therefore, necessary that before this right is taken away he gets an opportunity of being heard. We cannot, therefore, agree with Mr. Mehta that once the court has taken cognizance of an offence after the expiry of the period limitation, the accused lose his right to raise this objection despite the fact that he was afforded no opportunity of being heard before the cognizance was taken. We cannot subscribe Shiva Bhardwaj @ Ors. Vs. State Digitally signed 7 of 13 by CHARU AGGARWAL CHARU Date:
AGGARWAL 2021.11.16 15:05:20 +0530 to the view that in such circumstances it should be presumed that the Court shall be deemed to have exercised its power under section 473 to lift the bar of limitation. Whenever the plea of limitation is raised it is for the parties to show whether proceedings are barred by limitation or not. Where cognizance is ex facie barred by the limitation and the prosecution wishes to explain the delay to the satisfaction of the court the accused has a right to be heard. And in those cases where the court finds it necessary to take cognizance in the interests of justice it is but just and proper that the accused is heard before such a decision is arrived at. It is needless to add that whereever the Court comes to the conclusion under section 473 that the delay has been properely explained or that it is necessary to take cognizance inthe interests of justice, the Court must pass a speaking order. The order should indicate that the court taking cognizance has applied its mind to reach the conclusion. Order taking cognizance of an offence where the cognizance is barred by limitation without giving an opportunity to the accused and without passing any Shiva Bhardwaj @ Ors. Vs. State Digitally signed by CHARU 8 of 13 AGGARWAL CHARU Date:
AGGARWAL 2021.11.16 15:05:39 +0530 speaking order, must be struck down and it cannot be deemed that the Trial Court had exercised its power u/s 473. After all it may happen that the Court might take cognizance of an offence without applying its mind to the question whether the Limitation has run in favour of the accused, and when this happens the accused has a right to raise the plea of Limitation to convince the Court that Limitation bars the cognizance. It is the duty of the Court at that stage to decide this question."
10. The observations made in the judgement of State (Delhi Administration) (supra) were reiterated by Hon'ble Delhi High Court again in "Anil Nanda Vs. State & Ors." decided on 09.05.2008. In view of these two judgements of Hon'ble Delhi High Court, it is amply clear that accused may agitate the issue of Limitation even post taking of cognizance by the concerned Court in that Court itself, which is rightly so done by the revisionist herein.
11. In the case in hand, the main emphasis of the counsel for revisionist is that the date of alleged incident is 27.06.2012 and FIR of this case was registered u/s 186/332/342/353/506 IPC on Shiva Bhardwaj @ Ors. Vs. State Digitally signed by CHARU 9 of 13 AGGARWAL CHARU Date:
AGGARWAL 2021.11.16 15:05:58 +0530 28.06.2012 on the complaint of SI Jagroop Singh. On the same day i.e. 28.06.2012 one supplementary statement of SI Jagroop Singh was also recorded, thereafter, on various other dates i.e. on 07.08.2012, 06.09.2012 and on 15.06.2014 his statements were recorded. Similarlarly two statements u/s 161 CrPC of another victim Sh. Pyarey Lal Kataraia were also recorded, one on 29.06.2012, on the next day of the incident, thereafter on 15.06.2014, after two years of the incident. It was argued that in all the statements of both the victims recorded in the year 2012 no allegation whatsoever attracting provision of 506 (part ii) were made by them but first time those allegations were levelled in the year 2014 when their statements u/s 161 CrPC were recorded by the IO on 15.06.2014, after two years of the alleged incident and as per Ld. Counsel the same was done by the police only in order to fill the lacunae of Limitation.
12. Admittedly, the date of alleged incident is 27.06.2012. The FIR was registered on the next day of incident on the written complaint of SI Jagroop Singh. In the year 2012, three statements, including complaint, of SI Jagroop Singh and one statement of another victim Sh. Pyarey Lal Kataria were recorded and Ld. Counsel has rightly pointed out that in none of those Shiva Bhardwaj @ Ors. Vs. State Digitally signed 10 of 13 by CHARU AGGARWAL CHARU Date:
AGGARWAL 2021.11.16
15:06:21
+0530
statements recorded in the year 2012 the allegations of threat to cause death or hurt were levelled by the victims but those allegations were first time added by them in the year 2014 i.e. after two years of the incident, when their supplementary statements u/s 161 CrPC were recorded on change of IO SI Rakesh Kumar from SI Angad Singh and adding of allegation of threat to cause death or hurt by the victims after two years of the incident, to the mind of this Court, are nothing but after thought of SI Jagroop Singh and subsequent IO SI Rakesh Kumar who both being police officials are well conversant with the nitty- grities of the legal proceedings/system. Otherwise also, it is a common knowledge that in the initial period of crime the memory of the victims remain much more fresh about the incident which sometimes fades with passage of time, therefore, it is highly improbable that both the victims forgot to mentiion about threat to cause death or hurt allegedly received by them from the accused persons in the year 2012, which was the year of alleged incident when their statements u/s 161 CrPC were recorded and suddenly after two years i.e. in the year 2014 they recollected regarding the said threat and mentioned in their respective statements. In view of this, at this stage of the matter Shiva Bhardwaj @ Ors. Vs. State Digitally signed 11 of 13 by CHARU CHARU AGGARWAL AGGARWAL Date:
2021.11.16 15:06:38 +0530 also no weightage can be given on the statements of the victims recorded on 15.06.2014 alleging threat to cause death or hurt since these allegations levelled after two years of the incident are nothing but after thought of the police. The perusal of intial statements of the victims including the statement on the basis of which FIR was registered show that the allegations in those statements at best may attract the provision of 506 (part i) which prescribes the punishment upto two years and all other offences under which chargesheet has been filed prescribes the maximum punishment upto three years. Section 468 bars taking of cognizance after lapse of period of Limitation if the offence prescribes punishment upto three years. The period of limitation commence as given u/s 469 CrPC from the date of offence. In the case in hand the accused as well as the alleged offence were in the knowledge of the complainant since the day of alleged offence i.e. 27.06.2012, therefore, the period for limitation in filing the chargesheet in the case in hand would commence from the date of offence itself which is 27.06.2012. All the offences under which chargesheet has been filed provides imprisonment maximum upto three years, therefore, the limitation to take cognizance was only upto three years from the date of offence. In Shiva Bhardwaj @ Ors. Vs. State Digitally signed 12 of 13 by CHARU AGGARWAL CHARU Date:
AGGARWAL 2021.11.16 15:06:56 +0530 the case in hand the limitation to take cognizance by the concerned Court started on 27.06.2012 and ended on 26.06.2015.
It is matter of record that the chargesheet has been filed by the police in the concerned Court on 06.12.2016 which is beyond the period of Limitation, hence, the Ld. Trial Court erronously dismissed the application u/s 468 CrPC filed by the revisionist and the cognizance taken by Ld. CMM was bad in law. In view of aforesaid discussion, the impugned order dated 04.02.2021 is hereby set aside consequently, the present revision is hereby allowed. Trial Court record be sent back with copy of this order.
Revision file be consigned to record room.
(Announced in the open court Digitally signed by CHARU CHARU on 15.11.2021 ) AGGARWAL AGGARWAL Date: 2021.11.16 15:07:08 +0530 (CHARU AGGARWAL) ASJ-02:CENTRAL:THC DELHI Shiva Bhardwaj @ Ors. Vs. State 13 of 13
Shiva Bhardwaj @ Ors. Vs. State 14 of 13