Delhi District Court
Laxmi Rawat vs State (Nct Of Delhi) on 29 October, 2021
IN THE COURT OF SUDHANSHU KAUSHIK :
ADDITIONAL SESSIONS JUDGE :
WEST DISTRICT : TIS HAZARI COURTS : DELHI
IN THE MATTER OF :-
CNR No.DLWT01-001925-2021
CRIMINAL REVISION PETITION No.41/2021
LAXMI RAWAT
W/O GABBAR SINGH
R/O G-84, G-BLOCK,
JAI VIHAR, NAJAFGARH,
DELHI
.....REVISIONIST NO.1
ANKITA RAWAT
D/O GABBAR SINGH
R/O G-84, G-BLOCK,
JAI VIHAR, NAJAFGARH,
DELHI
.....REVISIONIST NO.2
VERSUS
STATE (NCT OF DELHI)
.....RESPONDENT No.1
ANIL SINGH
S/O LATE PREM SINGH
R/O G-84, G-BLOCK,
JAI VIHAR, NAJAFGARH,
DELHI
.....RESPONDENT No.2
DATE OF FILING OF REVISION PETITION : 01.03.2021
DATE OF CONCLUSION OF ARGUMENTS : 29.10.2021
DATE OF PASSING OF ORDER : 29.10.2021
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ORDER
1. By this Revision Petition, Laxmi Rawat and her daughter Ankita Rawat (hereinafter referred to as 'the petitioners') have challenged the order dated 20.02.2021 passed by the court of Sh. Aakash Sharma, MM-08, West District, Tis Hazari Courts, Delhi whereby they were summoned as additional accused to face trial for committing offences punishable under Section 302, 323 IPC read with Section 34 of IPC.
2. The brief background of the matter is that a case FIR bearing No.665/2020 under Section 302, 323 IPC read with Section 34 IPC came to be registered at Police Station Ranhola on the basis of statement of complainant Anil Singh (brother of deceased) wherein he alleged that his brother has been murdered by Amit Rawat and his associates. Investigation in this FIR concluded and charge-sheet was filed against four accused persons namely Amit Rawat, Praveen Gosain, Pradeep Singh and Digambar Gosain. On the basis of charge- sheet, the Ld. Magistrate took the cognizance of offence and issued production warrants against all the accused persons, who were in judicial custody. Record reveals that the copies of charge-sheet were supplied to all the accused persons and it stands recorded in the order-sheet dated 10.11.2020 that all the accused persons received complete set of documents.
3. During the course of committal proceedings, complainant moved an CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 2 of 17 application before the Magistrate asking him to monitor the investigation and alleging that the police intentionally did not file the charge-sheet against petitioners, although, they were also involved in commission of offence. Vide order dated 29.09.2020, the Magistrate dismissed this application after giving liberty to the complainant to file a protest petition. Thereafter, on 24.11.2020, complainant filed a protest petition seeking directions that the concerned SHO should be directed to re-investigate the matter. This protest petition was taken up by the Magistrate on 25.11.2020 and a reply was called from the Investigating Officer. On 21.01.2021, the Magistrate allowed the protest petition and observed that the same shall be treated as a complaint under Section 2 (d) Cr.P.C and asked the complainant to examine himself and his witnesses under Section 200 Cr.P.C.
4. After recording the statement of the complainant and his mother Smt. Parvati Devi, the Magistrate closed the pre-summoning evidence and posted the matter for 20.02.2021 for hearing arguments on the point of summoning. On 20.02.2021, arguments on the point of summoning were heard and the impugned summoning order was passed.
5. Petitioners have assailed the summoning order primarily on the following grounds;
(a) That the impugned order is contrary to law and it has led to miscarriage CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 3 of 17 of justice.
(b) That the impugned order was passed on surmises & conjunctures without application of mind.
(c) That after taking cognizance of the offence, there was no option with the Magistrate apart from committing the matter as the offences were exclusively triable by the Sessions Court.
(d) That after taking cognizance of the offence, the court could not have clubbed the charge-sheet with the complaint case.
(e) That by not registering the protest petition as a separate complaint, the trial court made the provisions of Section 244 Cr.P.C & 399 Cr.P.C redundant.
(f) That the Magistrate failed to appreciate that on issuing summons against any person in a warrants trial case, the procedure as prescribed under Section 244 Cr.P.C onwards needs to be followed.
(g) That the Magistrate failed to appreciate that no public witness was produced by the complainant and the complainant made improvements in his testimony recorded under Section 200 Cr.P.C.
(h) That the Magistrate took cognizance of the offence on two occasions and by doing so, he, in fact, reviewed the order of cognizance of his predecessor, which is not permissible.
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(i) That in view of law laid down in "Raj Kishore Prasad Vs State of Bihar" 1996 Supp. (2) SCR 125, a Magistrate while carrying out commitment proceedings in cases exclusively triable by the Sessions Court cannot summon additional accused by exercising power either under Section 319 Cr.P.C or under any other provision.
(j) That at the stage of committal proceedings under Section 209 Cr.P.C, a Magistrate is forbidden from applying his mind to the merits of the matter and determine as to whether any accused need to be added or subtracted to face trial before the Court of Sessions.
(k) That the Magistrate failed to appreciate the fact that summoning order cannot be passed in a mechanical manner by ignoring the material collected during investigation, which was part of the charge-sheet.
6. Counsel for the petitioners has addressed arguments in support of the grounds taken by him in the revision petition. He has submitted that the Magistrate was not vested with the discretion to exercise powers under Section 319 Cr.P.C as the offences were triable exclusively by the Sessions Court. He has argued that the Magistrate exceeded his jurisdiction by wrongly exercising discretion under Section 319 Cr.P.C and the summoning order deserves to be set-aside. He has contended that on the date of filing of the charge-sheet, no protest petition was on record and the Magistrate took cognizance of offence and CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 5 of 17 supplied the copies of charge-sheet to the accused persons. He has contended that the Magistrate was not competent to entertain the protest petition after crossing the stage of cognizance. He has argued that once the cognizance of the offence has been taken, the Magistrate was duty bound to conclude the committal proceedings and place the matter for trial before the Sessions Court. He has argued that the lower court wrongly treated the protest petition as a complaint and the said exercise was done by the Magistrate in total disregard of the provision of Cr.P.C. Counsel has submitted that in the offences, which are exclusively triable by the Sessions Court, the power to summon additional accused vests only with the Sessions Court. He has contended that in such cases, the power under Section 319 Cr.P.C can only be exercised by the Sessions Court and that too on the basis of the additional material, which might come on record during trial. He has submitted that the wrong exercise of the power by the Magistrate has led to delay in the committal proceedings, which amounts to violation of the Constitutional Right of the accused to have a speedy trial. He has stated that the summoning order dated 20.02.2021 cannot be sustained and the same deserves to be set-aside. In support of these arguments, counsel has relied on the decision in "Raj Kishore's case" (supra) and "Rajender Sharma Vs State of Madhya Pradesh" LAWS (SC) 2014 (1109).
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7. On the other hand, Addl. Public Prosecutor, duly assisted by the counsel for the respondent/complainant, has contended that the order of the Magistrate is well reasoned and does not call for interference. He has submitted that the investigating agency deliberately carried out shoddy investigation to shield the petitioners. He has contended that the Investigating Officer did not record the correct statement of the complainant and her mother. He has mentioned that the Investigating Officer deliberately ignored vital pieces of evidence to protect the petitioners, who were subsequently summoned by the court vide order dated 20.02.2021. Addl. Public Prosecutor has submitted that a Magistrate is fully competent to summon additional accused even in Sessions triable cases. He has contended that the Magistrate was competent to initiate inquiry against the petitioners and summon them to face trial with the other accused persons. He has contended that complainant initially filed an application against the report submitted by the investigating agency under Section 173 (2) Cr.P.C and in this application, he clearly pointed out that the investigation was improper as the Investigating Officer exonerated the petitioners, although, there was ample material pointing out to their involvement. He has submitted that this application was dismissed by the court with liberty to file a protest petition. He has pointed out that after dismissal of the application, complainant filed a protest petition and the CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 7 of 17 Magistrate passed orders that the same shall be treated as a complaint. He has mentioned that thereafter, the Magistrate held an inquiry by recording the statement of the complainant & his mother and the petitioners were summoned on the basis of the said statements. He has contended that in view of this, the argument about non-application of mind by the Magistrate become erroneous. He has mentioned that the Magistrate duly applied his mind and summoned the petitioners as accused. He has submitted that the Magistrate was competent to pass such orders and there is no irregularity.
8. I have perused the record in the light of respective arguments.
9. The present FIR bearing No.655/2020 under Section 302/323/34 IPC came to be registered on the basis of the statement of Anil Singh, who is the elder brother of deceased Jitender. It is the prosecution's case that on 27.06.2020, a PCR call was forwarded at Police Station Ranhola wherein the caller disclosed that his neighborers have assaulted him. On receiving this information, Sub-Inspector Amit Kumar and Constable Suresh Kumar reached the spot i.e. G-Block, near fields of Jai Vihar, Phase-I, Ranhola and came to know that injured has been taken to Rathi Hospital. The police officials reached hospital where the injured (deceased) was found present along with the complainant. Statement of the complainant was recorded wherein he disclosed that he returned from work in the evening of 27.06.2020 and came CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 8 of 17 to know that some boys were beating his younger brother (deceased) near the fields of Jai Vihar. He disclosed that he went to the spot along with his mother and observed that his brother was sitting there with multiple injuries and blood was oozing out from the wounds. On making inquiries, his brother told him that he had been beaten by Amit Rawat and his associates. Initially, the FIR was registered under Section 307 IPC but after the death of Jitender, Section 302 IPC was substituted.
10. During the course of investigation, police arrested Amit Rawat and three other accused persons namely Parveen Gosain, Digambar Gosain and Pradeep Singh and forwarded them along with the charge-sheet under Section 302, 323 IPC read with Section 34 of IPC. The concerned Magistrate took cognizance of the offence on 24.09.2021 which, as per the report submitted by the Ahlmad of the concerned court, was wrongly mentioned in the order-sheet as 15.09.2021. During the course of committal proceedings, complainant filed a protest petition on 25.11.2020. The Magistrate disposed off the protest petition vide order dated 21.01.2021 observing that the protest petition shall be treated as a complaint under Section 2 (d) Cr.P.C and directed the complainant to examine his witnesses. The complainant examined himself & his mother and the Magistrate closed the evidence. Thereafter, vide order dated 20.02.2021, Rakesh Bhandari, Laxmi Rawat and Ankita Rawat were summoned as CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 9 of 17 additional accused for having committed offences under Section 302, 323 IPC read with Section 34 of IPC.
11. The main thrust of argument of the counsel for the petitioners has been that the Magistrate was not competent to summon additional accused persons as the offence under Section 302 IPC is exclusively triable by a Sessions Court. Counsel has submitted that after taking cognizance of the offence vide order dated 15.09.2021, there was no option with the Magistrate apart from committing the matter to the Sessions Court as the offence was exclusively triable by a Sessions Court. In order to support this argument, he has placed reliance on the decision in "Raj Kishore Prasad's case" (supra) and "Rajender Sharma's case" (supra).
12. The scope of the power of a Magistrate to summon an additional accused during committal proceeding was analyzed by the Apex Court in "Raj Kishore Prasad's case" (supra) wherein it was observed that at the stage of committal under Section 209 Cr.P.C, a Magistrate is forbidden to apply his mind to the merits of the matter and determine as to whether an accused needs to be added or subtracted to face trial. In this appeal, while adjudicating upon the issue, the Supreme Court formulated the question, "Can a Magistrate undertaking commitment under Section 209 Cr.P.C of a case triable by the Court of Session, associate another person as accused in exercise of power CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 10 of 17 under Section 319 Cr.P.C or under any other provision, is the significant question which crops up for consideration in this appeal".
13. While answering this question, the court observed, "Therefore, it would be legitimate for us to conclude that the Magistrate, at the stage of Section 209 Cr.P.C, is forbidden to apply his mind to the merits of the matter and determine whether an accused need to be added or subtracted to face trial before the Court of Session". After making these observations, the Court held, "Thus, we come to hold that power under Section 209 Cr.P.C to summon a new offender was not vested with the Magistrate on the plain reading of its text as well as proceeding before him not being an 'inquiry' and material before him not being 'evidence' ".
14. The law propounded in "Raj Kishore Prasad's case" (supra) came up for considered by a Five Judges Bench of the Supreme Court in "Dharampal and others Vs State of Haryana" AIR 2013 SC 3018 wherein it was observed that even in a Sessions triable case, a Magistrate is competent to issue summons against additional accused, who has been kept in column number 2 of the charge-sheet. In this case, the Apex Court cited with approval the observation made in "Kishun Singh & Ors. Vs State of Bihar", 1993 SCC (2) 16 and observed, "As far as first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 11 of 17 report seeing that the case was triable by a Court of Sessions, the Magistrate had no other function, but to commit the case for trial to the Court of Sessions, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could no intermediary stage between taking of cognizance under Section 190 (1) (b) and Section 204 of Cr.P.C issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the committing Magistrate would have any control over the person named in column number 2 of the police report nor the Sessions Judge, till Section 319 stage was reached in the trial. Furthermore, in the even, the Sessions Judge ultimately found material against the person named in column number 2 of the police report, the trial would have to be commenced de-novo against such person which would not only lead to duplication of the trial but also prolong the same".
15. In "Dharampal's case" (supra), the Court elaborated the role of a Magistrate carrying out the committal proceedings and it was observed, "In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173 (3) Cr.P.C. In the event Magistrate disagrees with the police report, he has two choices. He may act on the basis of protest petition CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 12 of 17 that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case has been made out against the accused persons named in column number 2 of the report, proceed to try the said person or he was satisfied that a case has been made out which was triable by the Court of Sessions, he may commit the case to the Court of Sessions to proceed further with the matter".
16. After the decision in "Dharampal's case" (supra), the role of a Magistrate in cases triable by Sessions Court again came up for consideration before a Five Judges Bench of the Supreme Court in "Hardeep Singh Vs State of Punjab & Ors." (Crl. Appeal No.1750/2008) and "Rajender Sharma & Ors. Vs State of Madhya Pradesh & Anr." (Crl. SLP No.7209/2010, decided on 10.01.2014). The Constitutional Bench took note of the decision in "Dharampal's case"
(supra) and "Raj Kishore's case" (supra) and made the following observations;
"At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of Section 207 Cr.P.C & 208 Cr.P.C and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate, at the stage of Section 207 CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 13 of 17 Cr.P.C to 209 Cr.P.C is forbidden, by express provision of Section 319 Cr.P.C, to apply his mind to the merits of the case and determine whether an accused needs to added or subtracted to face trial before the Court of Sessions".
17. In "Hardeep Singh's case" (supra), the Constitutional Bench approved the observation made in "Dharampal's case" (supra) that a Sessions Judge, while issuing summons under Section 193 Cr.P.C, may summon an additional accused. While making this observation, the Apex Court did not disapprove the ratio of the decision in "Raj Kishore's case" (supra). The judgment in "Dharampal's case" (supra) as well as "Hardeep Singh's case" (supra) are judgments given by Five Judges Bench of the Supreme Court. In the judgment in "Hardeep Singh's case" (supra), the view point in "Raj Kishore's case"
(supra) was reiterated and it was delivered subsequent to the judgment in "Dharampal's case" (supra). On harmonious interpretation of the law propounded in these judgments, the inescapable conclusion is that the Magistrate while undertaking the committal proceeding of a case triable by Sessions Court is not competent to either add or subtract a new accused. The context of the law laid down in "Dharampal's case" (supra) could be understood in view of the facts of that case. In that case, the charge-sheet was put to the court against one of the accused while the other accused were kept CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 14 of 17 in column No.2 of the police report inspite of the fact that they were named as accused in the First Information Report. It was in this background that the court made observation that in such cases, the Magistrate has a role to play while committing the case to the court of Sessions upon taking cognizance on the police report. The court observed that in the event, a Magistrate disagrees with the police report, he may act on the basis of protest petition that may be filed or he may disagree with the police report and issue summons against the accused kept in column No.2 of the report and may forward them to the Sessions Court. It implies that for a Magistrate to summon a person as an accused, there should either be some allegation against him in the FIR or he should be a suspect, who has been kept in column No.2 of the charge-sheet.
There must be some material on the police report, which might indicate the involvement of such a person. In such like cases, as per the mandate in "Dharampal's case" (supra), the Magistrate has ample power to summon him as an accused even in the cases which are exclusively triable by the Sessions Court. However, in view of the observation made in "Hardeep Singh's case"
(supra), in order to summon a new accused, whose name does not figure in the FIR and against whom there is no material in the police report, the Magistrate is forbidden from summoning him as an accused and such an accused can only be summoned by a Sessions Court either during an inquiry CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 15 of 17 or trial.
18. Coming to the facts of the present case, it is an admitted position that the names of the petitioners do not figure in the FIR. No allegations were made against them in the FIR. The complainant did not level allegations against the petitioners in the initial statement, on the basis of which, the FIR came to be registered. Even the purported eye-witness Dalbir Singh Rama did not mention anything against the petitioners. There is no material in the police report, which may show the involvement of the petitioners. Although, the complainant has leveled allegations in the protest petition against the Investigating officer that he deliberately recorded his incorrect statement to shield the petitioners but this does no alter the position that there was no material in the police report showing the involvement of the petitioners. In these circumstances, in view of law laid down in "Hardeep Singh's case"
(supra), the Magistrate was forbidden to apply his mind to the merits of the case and determine as to whether the petitioners need to be added as an accused to face trial before the Sessions Court. By undertaking the exercise of recording the statements of the complainant and his mother and summoning the petitioners as an accused, the Magistrate has undertaken an exercise which is contrary to the provisions of law and therefore, the order of summoning is liable to be set-aside. In view of this, order dated 20.02.2021 passed by the CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 16 of 17 court of Sh. Aakash Sharma, MM-08, West District, Tis Hazari Courts, Delhi is set-aside.
19. The Trial Court Record be sent back along with the copy of this order.
20. Revision Petition be consigned to Record Room after completion of necessary formalities.
Announced in the open court on 29th October 2021 (SUDHANSHU KAUSHIK) Additional Sessions Judge, West District, Tis Hazari Courts, Delhi/29.10.2021 CR No.41/2021 Laxmi Rawat & Ors. Vs State & Ors. Page 17 of 17