Delhi District Court
Rita Devi vs Deepak Kumar on 25 April, 2019
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Criminal Revision No.: 12/2018
CNR No. DLSW010007992018
Rita Devi,
W/o Sh. Raghuraj Sahni,
R/o D480, Qutub Vihar PhaseII,
Goyla Dairy, New Delhi110071
.....Revisionist
Versus
1. Deepak Kumar
2. Sonu Kumar
3. Bikki Kumar
All sons of Late Ramesh Chand
4. Nirmala Devi,
W/o Late Ramesh Chand
All R/o House No. 456, Bhopani Mod,
Bhopani Chowk, Faridabad, Haryana.
.....Respondents
Revision under section 397 Cr.P.C. against the
order dated 17.11.2017 passed by Magisterial Court
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Date of Institution : 09.01.2018
Arguments heard on : 01.04.2019
Date of Judgment : 25.04.2019
JUDGMENT
1. Revision under section 397 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been preferred by revisionist against impugned order dated 17.11.2017 passed by Trial Court of Sh. Santosh Kumar Singh, Ld. Metropolitan Magistrate05, South West District, Dwarka Courts, New Delhi, in CC no. 4996535/2016 titled as Rita Devi Vs Deepak Kumar & Others, P.S. Chhawla, whereby Ld. Trial Court has dismissed the complaint case for non prosecution.
2. I have heard the revisionist/complainant through Sh. M.S. Singh, Learned counsel and respondents through Sh. Vikash Badesara, Ld. Counsel. I have perused the record of revision and of Trial Court. I have given my thoughtful consideration to the contentions put forth.
3. Revision petition rests upon the premise that the impugned CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 2 of 9 order passed by the Trial Court is bad in law and on facts, based on conjectures and surmises, dismissed the complaint case under section 200 Cr.P.C. arbitrarily and deliberately without assigning any cogent reason while the revisionist along with her counsel were present on 17.11.2017. Also was argued that the Trial Court has not appreciated the facts mentioned in complaint and deliberately ignored pre summoning evidence of CW1 and CW2. Also was argued that prima facie case for the offences under section 323/341/354/380/506/452/34 IPC was made out against the respondents/accused from the perusal of evidence of CW1 & CW2 and prayed for setting aside the order dated 17.11.2017.
4. Ld. Counsel for respondents no. 1 to 4 has argued that there is no infirmity or illegality in the impugned order and the revision petition is based on flimsy grounds and is liable to be dismissed with cost. Also was argued that the material available with the Ld. Trial Court was sufficient for dismissing the complaint and prayed for dismissal of revision petition.
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5. Trial Court Record reveals that on criminal complaint under section 200 Cr.P.C. filed by revisionist complainant, after leading of pre summoning evidence, vide order dated 28.03.2013 the Magisterial Trial Court summoned respondents no. 1 to 4 for offences under section 452/323/34 IPC and in addition thereto respondent no. 1/accused was also summoned for offence punishable under section 380 IPC.
6. Revisionist complainant had complained that arraigned respondents accused had committed house tresspass at her premises after having made preparation to cause hurt to her and had assaulted her causing injuries to her person besides which respondent accused no. 1 took away her silver chain which had fallen in scuffle at place of incident.
7. On 27.11.2014, revisionist complainant was examined in pre charge evidence. On 18.05.2015, Sh. Satya Dev Yadav was also examined in precharge evidence. The aforesaid witnesses in pre charge evidence were cross examined by the Ld. Counsel for respondent/accused persons. Trial Court Record also reveals that on CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 4 of 9 24.08.2015 and 21.03.2016 complainant witness Raghuraj Sahni was in attendance for precharge evidence. On 24.08.2015 since respondent no. 1 and 4 were absent, so said complainant witness Raghuraj Sahni was not examined in their absence. On 21.03.2016 all accused persons had absented so said witness Ragu Raj Saini @ Ragubir Saini was discharged unexamined and bailable warrants were issued against accused persons.
8. Trial Court Record also reveals that in terms of order of date 14.03.2014 Vicky Kumar @ Vikas Verma was declared juvenile.
9. Chapter XIX of Cr.P.C. embodies the trial of warrant cases by Magistrate (A) in cases instituted on a police report and (B) in cases instituted otherwise than on police report. Section 244 of Cr.P.C. embodies that evidence produced in support of prosecution is to be recorded in warrant cases instituted otherwise then on police report. Section 245 of Cr.P.C. embodies that if upon taking all evidence referred in section 244 Cr.P.C. the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 5 of 9 if unrebutted, would warrant his conviction, then the Magistrate shall discharge him. If the Magistrate considers the charge to be groundless then for the reasons to be recorded by such Magistrate, the Magistrate can discharge the accused at any previous stage of the case. Section 246 of Cr.P.C. provides that when such evidence for prosecution has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try then he shall frame in writing a charge against the accused. Later thereto, after the plea of accused is recorded and if he pleads not guilty then the accused is to be asked and it is to be recorded in writing whether he wishes to cross examine the witness (es) for the prosecution whose evidence has been taken and those witnesses named by accused shall be recalled and after cross examination and re examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken accordingly. As per Section 247 Cr.P.C., thereafter, the accused shall be called upon to enter upon his defence and produce his evidence but before that Statement of CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 6 of 9 Accused needs to be recorded.
10. In the entire Chapter XIX of Cr.P.C. there is no provision for dismissing the case for non prosecution. Even Section 249 of Cr.P.C. embodies that when proceedings have been instituted upon complaint and the complainant is absent on any day fixed for hearing of the case and the offence may be lawfully compounded or is not a cognizable offence, then in his discretion the Magistrate at any time before the charge has been framed, can discharge the accused.
11. Sections 380 and 452 of I.P.C. are both cognizable offences which cannot be lawfully compounded in terms of Section 320 Cr.P.C. In the fact of the matter, even Section 249 of Cr.P.C. cannot be invoked by Magistrate Trial court.
12. The findings of the Magisterial Trial Court in impugned order regarding it being apparent to Trial Court from conduct of revisionist/complainant that she was not willing to pursue the matter which was pending in precharge evidence since 24.07.2014 and the CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 7 of 9 revisionist/complainant seeking adjournment on every date is erroneous as had been elicited hereinabove that on 24.08.2015 and 21.03.2016, the complainant witness Ragu Raj Sahni was in attendance for precharge evidence but for absence of accused could not be examined. Dismissal of case for non prosecution also is not in accordance with Chapter XIX of Cr.P.C. Also on Magisterial Trial Court record in precharge evidence there had been evidence of complainant revisionist Rita Devi and other witness Satya Dev Yadav. Even if for want of more evidence precharge evidence may have been closed by the Trial Court, even then the Magisterial Trial Court had to take recourse to Sections 245 and 246 Cr.P.C. elicited hereinabove to consider whether the accused had to be discharged or not to be discharged and precharge evidence on record needed to be considered for invocation of either of these sections. While passing the impugned order, the led precharge evidence had been ignored by the Magisterial Trial Court.
13. In view of forgoing discussions, I am of the considered opinion that elicited procedure laid in Chapter XIX Cr.P.C. has not been CR No.:12/2018 CNR No. DLSW010007992018 Rita Devi Vs Deepak Kumar & Others Page 8 of 9 followed by the Magisterial Trial Court and the case has been wrongly dismissed for non prosecution. The impugned order is accordingly set aside and complaint is restored to its original position/stage. Revisionist/complainant, respondents/accused no. 1,2 & 4 are directed to appear before Trial Court concerned on 07.05.2019 for further proceedings in accordance with the procedure established in Cr.P.C.
14. Trial court record alongwith copy of this judgment be sent back to concerned Magisterial Court for information and compliance.
15. File of revision petition be consigned to record room. Digitally signed by GURVINDER
GURVINDER PAL SINGH
PAL SINGH Date: 2019.04.25
14:48:16 +0530
Announced in the open court (GURVINDER PAL SINGH)
on date 25th April, 2019 ASJ 05/SW/DWARKA COURTS
NEW DELHI (pb)
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