Delhi District Court
Sudipta Basu vs The State Of Nct Of Delhi on 15 April, 2024
IN THE COURT OF MS. APARNA SWAMI, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
CNR No. DLND01-010274-2022
Criminal Revision No. 629/2022
IN THE MATTER OF :
Sh. Sudipta Basu
S/o Late Sh. Amiya Kumar Basu
r/o C-1/1403 Vasant Kunj
New Delhi-110 070
......... Revisionist.
Vs.
i) State of NCT of Delhi
......... Respondent No.1
ii) Smt. Rupa Basu W/o Sh. Sudipta Basu r/o C-1/1403 Vasant Kunj (Terrace Floor) New Delhi-110 070.
Also at:
Smt. Rupa Basu through The Principal Kamla Nehru College August Kranti Marg New Delhi-110 049.
......... Respondent No.2
Date of institution : 25.11.2022
Date on which order reserved : 12.02.2024
Date of order : 15.04.2024
Final Order/ Decision : Revision is dismissed.
CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 1/9
ORDER ON THE REVISION PETITION
1. The present revision petition was filed under section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') seeking setting aside of the order of Ld. Metropolitan Magistrate-01, Patiala House Courts, New Delhi dated 05.08.2022, whereby the application for condonation of delay in filing of the charge sheet filed by the Investigating Officer was allowed by the Ld. Metropolitan Magistrate and the case was fixed for arguments on the point of charge.
2. The grounds of challenge in the present revision petition are:-
i) That while passing of the impugned order dated 05.08.2022, Ld. Magistrate had not applied the judicial mind. Thus, the order is perverse and deserves scrutiny by this court.
ii) That the impugned order dated 05.08.2022 is erroneous and against the facts and circumstances of the case. The filing of the charge sheet at belated stage defies all logics and is against the established law and principles laid down by the Hon'ble Supreme Court of India in the catena of judgments.
iii) That the FIR in this case is based on concocted facts and story. Therefore, the Investigating Officer should have filed the closure report rather than a delayed charge sheet.
iv) That gross injustice would be caused, if the impugned order dated 05.08.2022 is not set aside.CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 2/9
3. On filing of the present revision petition, notice was issued to the respondents and arguments were heard in detail.
4. The submissions advanced on behalf of the Ld. Counsel for the revisionist are that the impugned order dated 05.08.2022 of Ld. Magistrate is a cryptic order as it is passed without application of judicial mind. Ld. Counsel for revisionist primarily based his arguments on the grounds of revision which are mentioned as aforesaid in para 2. Additionally, Ld. Counsel for revisionist has prayed to drop the proceedings and to remand back the present matter to Ld. Magistrate for taking cognizance in specific and clear terms. It is vehemently argued by Ld. Counsel for the revisionist that Ld. Magistrate after deciding the application of condonation of delay filed by the Investigating Officer has not taken the cognizance in the present matter, but has straight away put the case for arguments on the point of charge. In support of his arguments, Ld. Counsel for the revisionist relied on the judgment of Hon'ble High Court of Delhi in a case titled Sanjit Bakshi Vs. State of NCT of Delhi & Anr., Crl. M.C. No.4177/2019 and Crl. M.A. No. 34231/2019.
5. Per contra, Ld. Counsel for respondent as well as the State had argued that the impugned order of 05.08.2022 of Ld. Metropolitan Magistrate-01, Patiala House Courts, New Delhi has been passed after appreciation of law. It was further argued that Ld. Magistrate had condoned the delay and have put the matter for arguments on the point of charge. It was also submitted that as Ld. Magistrate has put the matter on the point of charge, this specifically shows that cognizance has been taken.
CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 3/9It is also argued by Ld. Counsel for respondent that the FIR is pertaining to alleged commission of offence punishable under Section 498A of Indian Penal Code, the Ld. Magistrate was well within her powers to condone the delay in filing of the charge sheet and proceed with the matter on merits. Hence, it is averred that there is no infirmity and perversity in the impugned order dated 05.08.2022. Thus, request is made to dismiss the present revision petition. In support of his arguments, Ld. Counsel for the respondent has relied on the judgment of Hon'ble Supreme Court of India in a case titled Mrs. Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director - Dr. K. M. Cherian & Ors., Criminal Appeal No. 829/2005.
6. In the present case, FIR was registered on 08.02.2016 and the charge sheet was filed on 17.02.2019. Evidently, there is a delay in filing of the charge sheet. The Investigating Officer at the time of filing of the charge sheet annexed an application seeking condonation of delay in filing of the charge sheet. Perusal of the file reveals that Ld. Magistrate on 05.08.2022, had dealt with the application of the Investigating Officer for condoning the delay on merits and thereafter, the matter was put for framing of the charge.
7. For the purpose of reference, the operative paragraphs of the impugned order dated 05.08.2022 of Ld. Metropolitan Magistrate-01, Patiala House Courts, New Delhi is reproduced hereinbelow:-
" -x x x-
At the outset, it would be pertinent to record that the essence of the offence is section 498A is cruelty as CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 4/9 defined in the explanation appended to the said section and is a continuing offence and on each occasion on which the complainant was subjected to cruelty a new starting point of limitation starts......
-x x x-
Further, in this particular matter, the fact that the complainant was working in Bhutan is also considered while deciding this condonation of delay application. Contemporary matrimonial law in India already recognized that women have too often been subject of circumstances rather than the author of it. Therefore, the light of aforementioned discussion and in the interest of justice, the delay stands condoned.
Put up for arguments on charge, if any, on 09.12.2022."
8. At this stage, it is relevant to quote the Section 190 of Code of Criminal Procedure, which empowers the Magistrate to take cognizance in certain circumstance:-
"(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence -
(a)upon receiving a complaint of facts which constitute such offence;
(b)upon a police report of such facts;
(c)upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. (2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
9. The cognizance of an offence is stated to be taken once the Magistrate applies his/ her mind and to decides the initial proceedings against the proposed accused. Taking of cognizance is a judicial intention and judicial orders cannot be passed in a cryptic manner. It is equally important to note that at the time of taking of cognizance a Magistrate is not required to consider the CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 5/9 offence of the proposed accused or to evaluate the merits of the case. It is also not necessary to pass a detailed order giving detailed reasons while taking cognizance. What is required is simply that the order taking cognizance should only reflect application of judicial mind.
10. For the just disposal of the revision petition in hand, the contents of Section 465 of Code of Criminal Procedure are of substantial importance. For the purpose of reference, Section 465 of Code of Criminal Procedure is re-produced as under:-
"(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2)In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
11. In the case of Pradeep S. Wodeyar Vs. State of Karnataka, Appeal No. 1288 of 2021, the Hon'ble Supreme Court of India discussed the scope of Section 465 of CrPC. The gist of the observations are as under:-
Firstly, the court noted that Section 465 deals with irregularity of complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial. It is "a broad residuary provision that covers all irregularities that are not CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 6/9 covered" by other provisions. Further, there is no indication in S. 465 that it applies only to orders of conviction or acquittal.
Secondly, the Court observed that "Section 465 stipulates that the order passed by a Court of competent jurisdiction shall not be reversed or altered by a Court of appeal on account of an irregularity of the proceedings before trial or any inquiry." It was further observed that cognizance is a pre-trial or inquiry stage and hence, any irregularity in the cognizance order is covered within the ambit of S. 465.
Thirdly, the Court cautioned that under S. 465, "any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself, because such frequent interference by superior Court at the interlocutory stages tends to defeat the ends of Justice instead of serving those ends."
Fourthly, the Court also explained that "Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure. This interpretation is supported by sub-
section (2) to Section 465 which states that while determining if the irregularity has occasioned a failure of justice, the Court shall have regard to whether the objection could or should have been raised at an earlier stage in the proceeding. Fifthly, the Court clarified that Section 465(2) does not mean that "if the alleged irregularity is challenged at an earlier stage, the failure of justice is deemed to be proved. Even in such cases though, where the challenge is made before the trial begins, the party has the burden of proving a failure of justice. Further, even if the challenge is made before the trial begins, the Court still needs to determine if the challenge could have been made earlier. And lastly, the Court observed that "the test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No strait jacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 7/9 prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation.
12. Thus, Section 465 of CrPC stipulates that the order passed by a court of competent jurisdiction shall not be reversed or altered by a court on account of irregularity during the proceedings or during an inquiry unless it has led to irreparable irregularity or infraction. It is also well settled position of law that cognizance is a pre-trial and an inquiry stage. Therefore, irregularity of a cognizance order, if any, is covered by the provisions of Section 465 of CrPC.
13. Coming now, to the grievances of the revisionist. This court has given thoughtful consideration to the impugned order dated 05.08.2022. The order of Ld. Metropolitan Magistrate-01, Patiala House Courts, New Delhi is a detailed order in which the aspect of condonation of delay in filing charge sheet in relation to the matrimonial offence including Section 498A of IPC has been dealt with meticulously in light of the provisions of Section 468 CrPC. The impugned order has been passed on merits.
14. By the impugned order dated 05.08.2022, Ld. Magistrate condoned the delay and the matter was fixed for arguments on the point of charge. From the wordings of the order, it is seen that words 'taking of cognizance' has not been specifically mentioned. But as the Ld. Magistrate had condoned the delay and placed the matter for arguments on the point of charge, it clearly shows that the matter has been proceeded on merits.
CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 8/915. The record nowhere shows that non-mentioning of the specific words 'taking cognizance' has caused some irreparable prejudice to the party. As discussed in the case of Pradeep S. Wodeyar (supra), this type of irregularity do not cause loss or irreparable damage and thus, it cannot constitute a ground for interference by the appellate court. Hence, in the opinion of this court the impugned order dated 05.08.2022 do not require any modification. However, it is directed to the Ld. Magistrate that before hearing the arguments on the point of charge, Ld. Trial Court shall comply with the provisions of Section 207 of CrPC.
16. With the abovenoted directions, the present revision petition is dismissed and disposed off.
17. Copy of this order along with Trial Court Record be sent back to the Ld. Trial Court.
Digitally signed by
18. Revision file be consigned to Record Room. Aparna Aparna Swami Date:
Dictated & Announced in the open court Swami 2024.04.15 16:51:31 +0530 On 15.04.2024 (Aparna Swami) ASJ-07/PHC/New Delhi 15.04.2024 CR No. 692/22 Sudita Basu Vs. State of NCT of Delhi & Anr. Page 9/9