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Delhi District Court

Rajesh Kumar vs The State on 22 November, 2022

          IN THE COURT OF MS. SHALINDER KAUR:
         PRINCIPAL DISTRICT & SESSIONS JUDGE:
         SHAHDARA DISTRICT, KKD COURTS DELHI

Criminal Revision No.89/2022

RAJESH KUMAR
S/o Late Sh. Charan Singh
R/o D­5, 2nd And 3rd Floor
Naveen Shahdara, Delhi­110032
                                                .....REVISIONIST

                                VERSUS
THE STATE
Through Govt. of NCT of Delhi.

                                               .....RESPONDENT
Date of filing            : 20.07.2022
Date of Decision         : 22.11.2022

ORDER

1. Vide this order, I shall dispose of the criminal revision petition preferred by the revisionist assailing the order dated 27.04.2022, passed by Ld. MM (Mahila Court)-01, Shahdara, Karkardooma Courts, Delhi, whereby the application seeking further investigation of FIR No. 755/2014 for collection of further evidence filed on behalf of the complainant was allowed.

BRIEF FACTS

2. The relevant facts of the case to decide the present revision petition are that the complainant Usha Rani has got registered FIR bearing no. 755/2014 under Section 323/341/34 IPC against the wife of revisionist namely Geeta Devi which was got registered by the complainant Smt. Usha Devi as a counter­ blas to the FIR bearing No.754/2014 registered under Sec.

Rajesh Kumar vs. State 323/354/452/506/509/34 IPC on the complaint of the wife of the revisionist in which the complainant Usha Rani and her son are the accused. Whereas in respect of both the cases only one DD entry i.e. DD no. 14A was recorded.

3. It is contended that on the day of the incident, the PCR call was made by the wife of the revisionist namely Geeta Devi but daughter of complainant who is also known as Geeta taking advantage of similar name took her mother to GTB Hospital in PCR van. With respect to non action by the PCR staff, the revisionist made a complaint before the Deputy Commissioner of Police, Police Control Room, PHQ on 03.12.2014. It was contended that the FIR no.755/2014 was registered on the basis of false, fabricated and concocted story made by the complainant Smt. Usha Devi. The name of the revisionist was later on added in the complaint with malafide intentions. It is further contended that accordingly as per the original tehrir of the complainant, the revisionist was rightly not charge­sheeted by the police.

4. It is also contended that vide order dated 04.05.2018 both the cases arising out of FIR No. 754/2014 and 755/2014 which were in reference to the same incident were clubbed by the Ld. CMM and both the cases were heard together till 29.03.2022. Thereafter the cases were segregated without any reason.

5. It is further contended that with respect to the application seeking further investigation in the case FIR No. 755/14 filed by the complainant Usha Rani, notice was not issued to the revisionist, nor any copy of the application was furnished, thus Cr. Rev No.89/22 Page 2 of 9 Rajesh Kumar vs. State depriving, the revisionist an opportunity of being heard. Further, the application for further investigation was not forwarded by the Ld. APP for the State. Accordingly, the complainant Usha Rani has no locus standi to move an application to seek further investigation in the case.

6. Sh. Harinder Chaudhary, Advocate, on behalf of revisionist submitted that the Ld. Trial Court has passed the impugned order based on assumptions and presumptions and the order was passed two days prior to the date already fixed i.e. 29.04.2022. Therefore, the Ld. Trial Court did not judiciously decide the application. Moreover, the Ld. Trial court has fixed the next date for filing of supplementary charge­sheet without even waiting for the outcome of further investigation as ordered by it. Thus the impugned order is not legally sustainable and is beyond the powers provided u/s 173(8) CrPC to the Magistrate. It was submitted that the de facto complainant had no independent locus standi to maintain such application in a State case. Morever, further investigation cannot be ordered by the Ld. Trial Court after cognizance has already been taken by it. It was also submitted that the alleged incident took place at a common staircase being used by the accused and the complainant, therefore, finding any independent witness of the incident is not possible. It was submitted that the direction to collect CCTV footage/mobile phone record is totally unwarranted as same shall not be available now after a long gap of time. It was submitted that thus the impugned order will result in a futile, time wasting exercise causing serious prejudice to the accused.

Rajesh Kumar vs. State

7. Ld. Chief P.P. for the State submitted that the impugned order is not erroneous as Ld. Trial Court has called for further investigation report from the police which it is empowered to do so even though in the order sheet it has been mentioned that the supplementary charge sheet be filed. On the other hand, it was submitted on behalf of the complainant Usha Rani that she has moved an application before the Ld. Trial Court U/s 173 (8) Cr.PC for further investigation in the case as the police before filing the charge sheet did not investigate the case diligently as it did not collect the vital evidence nor recorded the statements of material witnesses which is important in this case. It was submitted that the investigation was carried out negligently and carelessly therefore, further investigation is required in respect of the revisionist Rajesh Kumar who is himself a police personnel being Sub­Inspector. It was submitted that the accused Geeta Devi under the influence of the revisionist had attacked the complainant on the day of the alleged incident despite which no investigation was conducted against him by the police. It was submitted therefore the impugned order does not require any interference.

8. Apart from hearing the arguments, I have perused the trial court record as well as revision record meticulously. First and foremost I will deal with the contention of the Ld. Counsel for the revisionist that the impugned order was pronounced by the Ld. Trial Court two days before the actual date fixed for pronouncement of order. Perusal of the record shows that Ld. Trial Court had heard arguments of the parties, i.e. the State, Cr. Rev No.89/22 Page 4 of 9 Rajesh Kumar vs. State accused as well as the complainant on the application moved on behalf of the complainant Smt. Usha seeking further investigation in the case and the case was listed for orders/clarification, if any for 29.04.2022. The parties were given liberty to file further documents, if any, in support of their arguments at least two days prior to the next date of hearing. Pertinently, hearing of the arguments on both sides was concluded on 29.03.2022. The order in this case was announced by the Ld. Trial Court on 27.04.2022 after taking up the case in terms of the directions transfer order no. 15/DHC/Gaz./G­7/VI­ E­2(A)/22 dated 26.4.2022 to pass orders/judgment already reserved. It is apparently clear that the Ld. Trial Court was under

transfer and in view of the transfer order and the directions issued therein, it passed the impugned order on 27.04.2022 instead of 29.04.2022. The Ld. Trial Court had granted sufficient time to the parties to file documents, if any after concluding the hearing of the arguments on the application. Apparently, none of the parties had filed any document till 27.04.2022. Thus, the Ld. Trial Court had pronounced the order. Therefore, there is no force in the arguments raised on behalf of the revisionist that the impugned order is not a judicious order or is malacious.

9. It was also submitted on behalf of the revisionist that the Ld. Trial Court could not have ordered for further investigation of the case since the cognizance of the offence was already taken by it. Perusal of the record shows that the charge­sheet was filed in this case on 30.12.2015 and the Ld. MM had taken congnizance of the offence. Meanwhile, the complainant had Cr. Rev No.89/22 Page 5 of 9 Rajesh Kumar vs. State preferred the present application for seeking directions for further investigation u/s 173 (8) Cr.PC. Thus, in the present case, the charge is not framed and before the trial could commence, aforesaid application moved by the complainant Smt. Usha was taken up for hearing. The law has been well settled that by virtue of Section 173 (8) Cr.PC, a Magistrate has ample power to order for further investigation even after taking cognizance when the trial has not commenced. Morever, the Ld. Trial Court can order further investigation u/s 173 (8) Cr.PC even on the basis of the application preferred in this regard by the de­facto complainant, during post­cognizance stage but before charge is framed.

10. It is relevant to mention in the judgment titled 'Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj vs. State of A.P. (1999) 5 SCC 740", wherein the Hon'ble Supreme Court held that even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation.

11. The Hon'ble Supreme Court in the judgment titled 'Vinubhai Haribhai Malaviya & Ors. vs. The State Of Gujarat & Anr. Criminal Appeal NO.478­479 of 2017 dated 16.10.2019 has held that post cognizance the Magistrate is not denuded of powers to order further investigation. It was held :

"To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Sec. 173 (8) to further investigate an Cr. Rev No.89/22 Page 6 of 9 Rajesh Kumar vs. State offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid­way through the pre­trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), section 2(h) and Section 173(8) of the Cr.PC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law." It was also clarified that, "the investigation spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun."

Therefore, the Hon'ble Supreme Court, in conclusion, observed that, "when Section 156(3) of CrPC states that a Magistrate empowered under Section 190 of Cr.PC may order such an investigation, such Magistrate may also order further investigation under Section 173(8), regard being had to the Cr. Rev No.89/22 Page 7 of 9 Rajesh Kumar vs. State definition of investigation contained in Section 2(h)." The Hon'ble Supreme Court has proceeded on the basis that a criminal trial does not begin after cognizance is taken, but only after charges are farmed."

12. In view of the settled law, even after taking cognizance of the offence, the Ld. Trial Court has not erroneously ordered for further investigation as it has power to do so.

13. In the present case, the complainant Usha Rani has categorically stated that on 01.12.2014 when she was working in the kitchen, she had heard the husband (revisionist) of the accused Geeta asking her to hit/beat the complainant by saying, "isko maar dena" and thereafter he went for his duty. Thus there is no error in the finding by the Ld. Trial Court that such an allegation by the complainant prima facie show meeting of minds between the accused Geeta and her husband to attack the complainant but despite such meeting of minds, no investigation qua husband of the accused Geeta has been carried out in the present FIR. The Ld. Trial Court has observed, undoubtedly it appears that IO has not even asked the revisionist to join investigation so as to clarify the aforesaid allegations made by the complainant. Ld. Trial Court has also observed that further investigations were required to investigate :

(a) Role of husband of accused Geeta Rani in instigating/conspiring with accused to attack complainant.

(b) Recording of statement of independent witness after taking details from complainant.

Rajesh Kumar vs. State

(c) Collection of any CCTV footage/mobile phone record, if available till date of the parties involved in the present matter.

14. The Investigating Officer of the case on 31.10.2022 before this court has furnished the report submitting that re­investigation as per orders of the Ld. Trial Court were being carried and final report in respect of the outcome of the investigation will be filed before the Ld. Trial Court. Therefore, there is no illegality in the impugned order passed by the Ld. Trial Court to order further investigation of the case. In respect of the further investigation, final report is yet to be filed by the police before the Ld. Trial Court.

15. The present revision petition is accordingly dismissed. Parties are directed to appear before the Ld. Trial Court on 28.11.2022. TCR be sent back along with copy of this order. Revision file be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT ON 22 nd November, 2022 (SHALINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI Cr. Rev No.89/22 Page 9 of 9 Rajesh Kumar vs. State