Delhi District Court
Mrs. Sunita Gupta vs Mr. Mitthan Lal Aggarwal on 1 December, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
Crl. Revision No. 74/2018 (Registration No. 550/2018)
CNR No. DLCT01009881/2018
1. Mrs. Sunita Gupta
W/o Mr. Atul Kumar Gupta
R/o 16/15A, Alipur Road,
Civil Lines, Delhi110054.
2. Mr. Ankit Gupta
S/o Sh. Atul Kumar Gupta
Permanently R/o 16/15A, Alipur Road,
Civil Lines, Delhi110054.
3. Mr. Ankur Gupta
S/o Sh. Atul Kumar Gupta
R/o 16/15A, Alipur Road,
Civil Lines, Delhi110054. ........... Revisionists
Versus
1. Mr. Mitthan Lal Aggarwal
S/o Mr. Soran Lal Aggarwal
R/o 133, Gagan Vihar Main
Delhi110051.
Also at:
15/431432433, Kalyanpuri, Delhi110091.
2. Ms. Ruchi Aggarwal
D/o Mr. Mitthan Aggarwal
R/o 133, Gagan Vihar Main
Delhi110051.
3. Mrs. Kamla Aggarwal
W/o Mr. Mitthan Lal Aggarwal
R/o 133, Gagan Vihar Main,
Delhi110051. ...........Respondents
Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 1 of 15
Date of Institution : 31.07.2018
Judgment Reserved on : 27.11.2018
Judgment Pronounced on : 01.12.2018
JUDGMENT:
1. This revision impugns the order dated 30.06.2018 passed by Sh. Babru Bhan, Ld. Metropolitan Magistrate, MM07/Delhi in Complaint Case No. 6898/2018 thereby dismissing the application filed by the petitioners under Section 156 (3) of Cr. PC seeking directions to the police to register FIR on the complaint of the petitioners.
2. The brief facts of the case are that in pursuance of order dated 22.02.2017 passed by the Court of Sh. V.K. Yadav, ASJ (Central) Tis Hazari Courts, Delhi, in the anticipatory bail application filed by Petitioner No. 2, the petitioners had reached CAW Cell, Sabzi Mandi, to return the stridhan articles to the Respondent No. 2 / Accused. It is alleged that at the CAW Cell, the respondent Mitthan Lal Aggarwal threatened Petitioner No. 3 saying "teri aankhein nikaal loonga". It is further alleged that in such circumstances, Petitioner No. 3 somehow escaped and ran away and thereafter, within few seconds Ms. Ruchi Aggarwal along with her parents, in a preplanned and pre meditated manner, started beating the Petitioners No. 1 & 2. It is further alleged that the Petitioner No. 1 & 2 were badly thrashed and assaulted with slaps, fists, blows and footwear (chappal) by Mr. Mitthan Lal Aggarwal, Ms. Ruchi Aggarwal and Mrs. Kamla Aggarwal in public view including in front of various men standing in the vicinity. It is further alleged that while assaulting the petitioners and using of criminal force, these persons also hurled abuses at the petitioners and used foul words against the petitioners. It is alleged that during the incident, after petitioner no. 3 had run away from the spot, Mitthan Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 2 of 15 Lal Aggarwal specifically told the petitioner no. 1 that "tujhe chaurahe pe nanga karke nachaenge". It is further alleged that the criminal assault upon petitioner no. 1 using slippers as well as by slaps, fists and blows in full public view and in the presence of various men in the vicinity by Mitthan Lal Aggarwal and others was made knowingly with the intent of outraging the modesty of the petitioner no. 1. It is alleged that the actions on part of all accused persons in physically assaulting the petitioners by fists and blows as a result of which serious and grievous physical injuries were caused to the petitioners amount to causing grievous hurt to the petitioners. It is submitted that petitioner no. 3, who escaped during the assault, while in a state of shock, sent an email to the Commissioner of Police, Delhi and Joint Commissioner of Police, Central Range, Delhi on the date of the incident itself i.e 03.03.2017, informing them about the incident in brief. It is further alleged that on 03.03.2017, after the incident, petitioner no. 1 was not medically fit so as to visit the Police Station and to make a written complaint to the Police; however, on the very next morning, on 04.03.2017, petitioner no. 1 made a detailed complaint in writing to the SHO, P.S. Sabzi Mandi in relation to the incident of 03.03.2017. It is pleaded that the complaint submitted by the petitioner no. 1 to SHO PS Sabzi Mandi was marked to SI G.N. Tiwari and on the basis of the complaint, an NCR (noncognizable report) dated 02.06.2017 u/s 323/34 was registered on the incident. It is further pleaded that despite the fact the complaints submitted by the petitioners to SHO Sabzi Mandi clearly reveal commission of cognizable offences by the accused persons and in such circumstances, the complainants made a complaint dated 30.01.2018 to the concerned DCP complaining about the in action on the part of the SHO, Sabzi Mandi. It is alleged that even thereafter, an FIR was not registered on the Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 3 of 15 complaint of the petitioners. It is further alleged that under such circumstances, having no other alternate remedy, the petitioners filed a complainant u/s 200 Cr.P.C along with an application under section 156 (3) Cr.P.C praying that an FIR be registered on the complaint of the petitioners since the complaint disclosed commission of a cognizable offence and investigation was required by the police. It is pleaded that the application u/s 156 (3) Cr.P.C filed by the petitioners was heard by the Ld. MM and by way of the impugned order, the Ld. MM has dismissed the application filed by the petitioners essentially on the ground that de hors whether a cognizable offence was committed or not, investigation by the police is or required in the instance case since the evidence in the present case is within the reach of the petitioners.
3. That by way of the present revision petition, the revisionists seek to challenge the impugned order dated 30.06.2018 on the following amongst other grounds: That the judgment of Ld. MM is incorrect and contrary to the law laid down by the Hon'ble Supreme Court in the case of "Lalita Kumar V. State of U.P. W.P." (Crl.) 68 of 2010. The observation by the Ld. MM that there is no legal mandate that every cognizable offence has to be investigated by the police, cannot be sustained in view of the judgment of the Hon'ble Supreme Court in Lalita Kumar (Supra). It is submitted that in terms of the judgment in Lalita Kumar (Supra) the police are duty bound to register an FIR if information received disclosed the commission of a cognizable offence and in such circumstances, in case the police does not obey the letter of the law and does not register an FIR even if a complaint discloses a cognizable offence, then, Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 4 of 15 under/s 156(3) the Ld. MM ought to direct the police to register an FIR.
That in view of the dictum of Lalita Kumar (Supra), the Ld. MM ought to have applied his mind to ascertain whether the offence as alleged made out the commission of a cognizable offence. In case the complainant so disclosed a cognizable offence, and which it does disclose in the respectful submission of the petitioners, the Ld. MM ought to have directed registration of an FIR. It was impermissible for the Ld. MM to no direct registration of an FIR, even though the complaint disclosed commission of cognizable offences.
That the Ld MM failed to appreciate that in case the police fails to perform its duty of mandatory registering an FIR and commits an infirmity, it is incumbent under Section 156(3) Cr.P.C. that the Ld. MM cures such an infirmity by directing the registration of an FIR. It is submitted that any other interpretation would impermissible render the judgment of the Hon'ble Supreme Court ineffective, in as much as a person would be remediless against the failure of the police to perform their mandatory duty which has been so recognized by the Hon'ble Supreme Court of India. That because reliance by the Ld. MM upon the judgment of the Hon'ble Supreme Court in Skipper Beverages Private Limited was wrong and incorrect. The Ld. MM committed a fundamental error by failing to appreciate that the previous law of skipper beverages private Limited stood impliedly overruled after the judgment of the Hon'ble Supreme court in the Lalita Kumari (Supra).
Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 5 of 15 That because the Ld. MM failed to appreciate that the complaint filed by the petitioner categorically disclosed commission of a cognizable offence. In fact, it may be noted that recently, the petitioner under RTI Act have obtained information that it is the opinion of the Police itself that the complainant disclosed commission of an offence u/s 509 IPC. Though the petitioners, submit that the complaint discloses offences even under Section 354/323/506/120B/34 IPC, be that as it may, in view of the opinion of the police, FIR ought to have been registered on the complainant made by the petitioners.
That because even otherwise, without prejudice, to the above, the finding of the Ld. MM that the evidence is within the reach of the petitioners and there is no requirement for registration of an FIR, is erroneous. The Ld. MM failed to appreciate that the complainants/petitioners in their application under section 156(3) had categorically pleaded that "investigation is required into what was the exact modus operandi adopted by the accused persons: what role was exactly played by each of the accused persons, whether the accused persons have a criminal history etc. Police investigation is also required for proving the circumstances which would show the necessary mens rea on the part of the accused persons. That the offences disclosed in the accompanying complaint require thorough investigation by the police and the nature of information required to be collected is not possible for the complainant in his own capacity." It is submitted Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 6 of 15 that police investigation is required inter alia as it is necessary for the effective determination of what was the modus operandi adopted by the accused persons, what role was exactly played by each of the accused persons and to find other corroborative evidence in the matter. Because the place of incident is CAW cell which is a public place, the fact that the respondents dared to attack the petitioners at such a place in broad day light in front of police officials itself and alone calls for an investigation. It is incumbent upon the police officials to investigate the reasons of their brazenness and affinity to violate the law and perpetuate such shameful act in broad day light, without having an iota of fear. That because the present matter also presents a peculiar situation which includes allegations and counter allegations made by both the parties. As such, it is all the more important that proper police investigation is conducted to test the veracity of the facts and cull out the exact chronology of the events. Since, the parties are embroiled in various litigations and matrimonial disputes amongst each other, it becomes absolutely necessary for the police to investigate and determine whether the acts of assaults and abuses carried upon the complainants/petitioner were pre meditated with the objective to suppress and threaten them, and influence the outcome of other cases going on between them. That because the conclusion of the Ld. MM that evidence is in the reach of the petitioners is even otherwise highly misconceived as not all the witnesses to the incident would be known to the petitioner and it is an impossible task for the petitioners to conduct Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 7 of 15 the strangers and produce them as witnesses whereas the police is well equipped to determine witnesses to the incident and record statements. Further, it is impossible and beyond the domain of the petitioner to find out the motive and objective for commission of criminal acts by the accused/respondents. Also it is matter of investigation to find out as to why no action was taken by the police officials who were present on the spot, to prevent the assaults upon the petitioners/complainants.
That because the observation of the Ld. MM that liberty to the accused would be affected in case of the registration of an FIR is also highly erroneous and misplaced. Reliance is placed in the case of "Lalita Kumari".
That because in view of the seriousness of the allegations in the complaint, which inter alia relates to outraging the modesty of a women, it was in any case not open to the Ld. MM to reject registration of an FIR on the ground of liberty. Police investigation is of utmost important in such a case to meet the demands of justice and to maintain the balance of equity. That because reliance by the Ld. MM upon the status report filed by the police to the effect that the present complaint is a counter blast is completely erroneous. The NCR i.e NCR no. 65/2017 was registered first in time and it was much later, after a delay of about 10 months that FIR no. 342/2017 was registered on the basis of the complaint of Ms. Ruchi Gupta.
4. Notice of the revision petition was issued to the respondents and detailed Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 8 of 15 reply has been filed, submitting therein that the petitioner is seeking registration of FIR for an alleged incidence dated 03.03.2017 claiming to have been injured and hurt by the respondents. It is submitted that on 03.03.2017, the respondent no.2 (wife) was misbehaved, pushed through chest by petitioner no. 2 & 3 and they pulled her hairs and beat her. She was threatened to be killed. It is further submitted that the petitioner no.1 also beat her and abused her. It is alleged that she made a complaint to the police of the incidence and a FIR 342/17 under Sections 354/509/323/34 IPC was registered with PS Subzi Mandi and final report under Section 173 Cr.P.C. has been already filed citing the petitioners as accused which is pending before the Ld. MM. It is pleaded that during investigation the petitioners herein were examined and their statements were recorded. It is further alleged that once a FIR has been registered for the incidence of 03.03.2017, the second FIR cannot be registered and the petitioners could have raised their grievance, if any, during the investigation of the said FIR. The respondents relied upon the judgment of the Apex Court in 'Amitbhai Anilchandra Shah Vs. CBI' wherein it has been held that there cannot be two FIRs for same transaction/incident and the second FIR was quashed. It is pleaded that the documents filed alongwith the revision and relied upon by the petitioner before the Ld. MM during hearing of Section 156 (3) Cr.P.C. application nowhere points out that they suffered major injury as claimed in the petition. It is further pleaded that the medical record itself shows that the injury was minor and hence, no offence falling in the category of 'cognizable' is made out. It is alleged that the impugned judgment is self contained and the calls for no interference in as much as there is no apparent error in law or in facts committed by the Ld. MM. It is further alleged that the petition is counter blast to the FIR registered against the petitioner for the Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 9 of 15 incidence of 03.03.2017. It is submitted that the petitioner did not made any efforts to pursue the FIR registration for over a period of one year i.e. the complaint case and application under Section 156 (3) Cr.P.C. was filed on 03.03.2018 which is without any justifiable cause and reasons.
5. I have considered the rival contentions and at the very outset I may observe that the parties before this court are engaged in spat of litigations arising out of the matrimonial dispute between Ruchi Aggarwal and Ankit Gupta and needless to say that despite efforts of this court, there could be no breakthrough between the parties in so far as the aspect of settlement is concerned.
6. Coming to the facts of the present case, it is not disputed that pursuant to the directions passed by the Ld. ASJ when the revisionist before this Court Smt. Sunita Gupta (motherinlaw), Ankit Gupta (husband), Ankur Gupta (brotherinlaw), had gone to CAW Cell, Subzi Mandi on 03.03.2017 to return the stridhan articles of Ruchi Aggarwal (proposed accused no. 2), where some alleged altercation took place. According to the petitioners / revisionists, this altercation was on the issue of doing videography of the proceedings, when the respondents are alleged to have threatened the petitioners. It is alleged that the respondent Mitthan Lal Aggarwal had threatened the petitioner Ankur Gupta saying "teri aankhen nikal loonga" and on hearing this, Ankur Gupta ran away from the spot and thereafter the respondent Mitthan Lal Aggarwal, Ruchi Aggarwal and Kamla Aggarwal started giving beatings to Sunita Gupta and Ankit Gupta with slaps, fist and chappals as a result of which they received severe injuries. The entire incident took place in the CAW Cell and a complaint was made to the SHO PS Subzi Mandiupon which an NCR No. 65/2017 was registered. However, thereafter another complaint which was Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 10 of 15 allegedly in the nature of crosscomplaint was made by Ruchi Aggarwal after a delay of almost ten months upon which the SHO PS Subzi Mandi registered an FIR bearing No. 342/17 under Section 323/354/509/34 IPC against the revisionists despite the fact that NCR No. 65/2017 was registered first in time in respect of the same incident. It is alleged that after registration of FIR No. 342/2017, no action was taken on the complainant made by the revisionist claiming that it was a counter blast to the complaint made by the respondents / proposed accused. However, I may note that it is evident from the report filed by the SHO, that the present revisionist had been medically examined and injuries were found in their persons which was opined to be 'simple' in nature. This being the background, the Ld. Trial Court upon receipt of the petition under Section 156 (3) Cr.PC refused to direct registration of the FIR holding that there is no legal mandate that every cognizable offence has to be investigated by the police (reference is made to the case of "M/s Skipper Beverages Pvt. Ltd. Vs. State" reported as 92 (2001) DLT 217).
7. This being the background, I deal with this revision petition. Firstly, it is not disputed that the SHO had received the complaint from Ruchi Aggarwal with regard to the incident dated 03.03.2017 after almost 10 months i.e. on 28.12.2017 and despite the fact that the first information regarding this incident had been received by him on 4.3.2017 on the complaint made by Ms. Sunita Gupta petitioner no.1 upon which NCR bearing No. 65/2017 had been registered. Strangely, instead of registering a case on the basis of the first information received by him from Ms. Sunita Gupta / Petitioner No.1, he proceeded to register the FIR bearing No. 342/2017 at PS Subzi Mandi on a complaint received from Ms. Ruchi Aggarwal after ten months of the incident Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 11 of 15 and as per information, charge sheet has also been filed against the petitioners / revisionist nos. 2 and 3 in the said FIR.
8. Secondly, it is also prima facie evident in respect of the same incident dated 3.3.2017 that an Online information / complaint had also been given by Ankur Gupta (Petitioner No. 3) to the Commissioner of Police, Delhi via official mail on the same date at about 5 PM (as evident from the copy placed on Trial Court record) wherein it had been specially mentioned by Ankur Gupta that despite the directions of Sh. V. K. Yadav, Ld. ASJ, the Investigating Officer did not allow the videography of the proceedings and the videographer was asked to shut down the camera after which Mitthan Lal Aggarwal started threatening him saying "teri aankhe nikal loonga" upon which he (Ankur Gupta) ran way from the spot but he (Mitthan Lal Aggarwal) started beating his mother Sunita Gupta and slapped her many times whereas Kamla Aggarwal and Ruchi Aggarwal also joined him in beating Sunita Gupta and thereafter they had also started beating his elder brother Ankit Gupta. The documents on record also prima facie confirm that the office of the Commissioner of Police had duly acknowledged the said email / complaint and the matter had been referred to the Joint Commissioner of Police (Central Range) and for necessary action also to the Dy. Commissioner of Police (Vigilance).
9. Thirdly, the copy of the medical record upon which the petitioners have placed their reliance also prima facie confirm that the revisionists had also gone to Bara Hindu Rao Hospital on 03.03.2017 with the history of physically assault and had been medically examined, wherein injuries i.e. tenderness on the wrist of Sunita Gupta was observed which injuries were opined to be 'simple' in nature.
10. Fourthly, coming to the first information of the incident given to the Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 12 of 15 SHO PS Subzi Mandi by Smt. Sunita Gupta / Petitioner No. 1 on 04.03.2017 upon which the NCR No. 65/2017 was registered, there is nothing in the report to confirm that investigations were conducted in respect of the same despite the fact that allegations made in the complaint prima facie disclosed commission of cognizable offence (reference is made to the cases of "Rupan Deol Bajaj vs. Kanwar Pal Singh Gill" reported as (1995) 6 SCC 194) & "Samar Singh Puri vs. State" Crl. Rev. P. 129 /2009). The question which arises is why then the said NCR was not converted into an FIR? This too when, upon the cross complaint received from Ruchi Aggarwal after almost 10 months, an FIR was registered. I may observe that the allegations made by the petitioners before this court in the complaint, if found to be correct, would also prima facie tantamount to contempt due to noncompliance of directions of the Court (i.e. order passed by Sh. V. K. Yadav, ASJ regarding videography of the proceedings). On the face of it, the balance of equity has not been maintained by the Investigating Agency.
11. Fifthly, I may note that the Hon'ble Supreme Court in the case of "Upkar Singh Vs. Ved Prakash" reported as (2004) 13 SCC 292, had specifically observed that the registration of the cross cases in relation to the same incident by opposite parties, was permissible. The SHO, PS Subzi Mandi having failed to direct investigations into the version of the present revisionists, in respect of the incidence which had been reported to the police prior to the complaint made by the respondent Ruchi Aggarwal on which the FIR had been registered upon receipt of the complaint after almost 10 months, in my view the Ld. Trial Court was left with no option but to direct investigations in respect of the allegations made by the revisionists before this court.
12. Sixthly, I may note that the petitioners / revisionists who had been Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 13 of 15 running from pillar to post to seek justice, had also filed RTI with the P. G. Cell of Delhi Police wherein in its response it has been mentioned that at least an offence under Section 509 IPC is made out upon the complaint made by Smt. Sunita Gupta. Under these circumstances, the refusal by the local police to intervene on the allegations made by Sunita Gupta immediately and forthwith, seems to be unjustified.
13. Seventhly, I may further observe that the incident in question took place in the premises of CAW Cell, Subzi Mandi and the evidence in the form of CCTV footages, if any, the details of various persons present at the spot / site which include the police officials and the staff of CAW Cell who had witnessed the incident and who can testify with regard to the incident are with the CAW Cell of the Police and not under the possession and control of the revisionist. Also, the identity and details of various witnesses including public persons who would have been present at the spot when the incident took place wherein the petitioners were allegedly threatened, abused and slapped so much so that Smt. Sunita Gupta received simple injuries, are not known to the complainant and hence the police investigations are necessitated in the matter.
14. Eighthly, though the Ld. Counsel for the Revisionist has made certain damaging allegations against the Investigating Officer of the case in the CAW Cell, yet the same not being relevant for deciding the issue in hand, it is not necessary for this Court to delve upon the same.
15. Lastly, the charge sheet having been filed in FIR No. 342/2017 now there is little scope for the local police to investigate into the allegations made by the complainant in the same FIR and hence under these peculiar circumstances this is a clear case where the alleged cognizable offence is shown to have been prima facie made out and required to be investigated by Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 14 of 15 the police.
16. Hence, in the light of my aforesaid discussion, the impugned order dated 30.06.2018 is hereby set aside and Trial Court record is being sent back with the directions to the Ld. Trial Court to direct the SHO Police Station Subzi Mandi to register an FIR under appropriate provisions of law and investigate into the offences made out. Needless to say, the allegations made by the parties appear to be in respect of the same incident, the Ld. MM may under the given circumstances club the trial in respect of both the complaints after filing of the final report, in accordance with law. With these observations, the revision petition is accordingly disposed off.
17. Trial Court record be sent back along with copy of the order. Parties to appear before the Ld. Trial Court on 21.12.2018 (date already fixed by the Ld. Trial Court) at 2:00 PM.
Digitally
18. Revision file be consigned to Record Room. signed by KAMINI LAU KAMINI Date:
LAU 2018.12.01
17:16:22
+0530
Announced in the open Court (Dr. KAMINI LAU)
Dated: 01.12.2018 Spl. Judge (P.C. Act) CBI01
(Central) Tis Hazari Courts, Delhi.
Sunita Gupta etc. vs. Mitthan Lal Aggarwal etc. (Crl. Revision No. 74/2018) Page No. 15 of 15