Delhi District Court
(1) Subhash Motwani vs (1) M/S Frankfinn Management ... on 31 March, 2014
IN THE COURT OF SH. SANJAY JINDAL, ADDL. SESSIONS
JUDGE WEST - 04, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No. 13/3
IN THE MATTER OF :
(1) Subhash Motwani
S/o Sh. S.S. Motwani
R/o 3/35, Kamia Mansion Arthur Bunder Road,
Colaba, Mumbai400005
(2) S.S. Motwani
S/o Sh. S.S. Motwani
R/o 3/35, Kamia Mansion Arthur Bunder Road,
Colaba, Mumbai400005
............PETITIONERS
versus
(1) M/s Frankfinn Management Consultants
Through its authorised representative,
Sh. Arun Kumar, Manager (Operations)
721, Suneja TowerII,
District Centre, Janakpuri,
New Delhi110058
........RESPONDENT
DATE OF FILING : 24.09.2012
DATE OF ARGUMENT : 01.03.2014
DATE OF ORDER : 31.03.2014
CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 1/9
O R D E R
1. This is a revision petition filed by petitioners against the impugned Order dated 28.08.2012 passed by the Ld. ACMM thereby dismissing the application filed by petitioners u/s 245 Cr.P.C seeking their discharge.
2. The brief facts necessary for disposal of the present petition are that the respondent filed a complaint against the petitioners u/s 34/120B/500/501/502 IPC in respect of the alleged act of defamation. After obtaining presummoning evidence, the petitioners were summoned u/s 500 IPC vide order dt. 27.06.2005. Subsequently, vide order dt. 07.09.2009 notice u/s 251 Cr.P.C was served upon the petitioners and matter was fixed for post notice complainant's evidence. Thereafter on 17.07.2012 the petitioners filed application u/s 245 Cr.P.C seeking their discharge which was ultimately decided/dismissed by Ld. ACMM vide order dt. 28.08.2012 i.e the impugned order.
3. By way of present petition, it is contended on behalf of the petitioner that the impugned Order is liable to be setaside as the Ld. Trial Court has committed a material irregularity and illegality in not appreciating the fact that as on 07.09.2009 when the notice u/s 251 Cr.P.C was served, the CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 2/9 suit filed by respondent against the petitioners based on identical allegations has been dismissed by the Hon'ble High Court of Delhi and effect of the said dismissal has not been considered. Further that order dt. 28.08.2012 nullifies the effect of the order dt. 10.05.2012 passed by Hon'ble Supreme Court in which permission was granted to the petitioners to approach the trial court for appropriate relief. Further, the trial court has not taken into consideration the majority view of Hon'ble Supreme Court in case titled as Radeyshyam Kejriwal vs. State of West Bengal & Anr. vide (2011) 3 SCC 581 which is to be analyzed in light of article 142 of The Constitution dealing with extra ordinary powers of Hon'ble Supreme Court. With certain other contentions, it is prayed that impugned order be set aside and the complaint be dismissed. During course of arguments, the counsel for petitioner has referred to several other judgments of Hon'ble Supreme Court and different other superiors courts which include 2012 (1) SCC 333, 2013 (9) SCC 1, 2011 (2) SCC (Crl) 721, 2008 (100) DRJ 578, AIR 1936 Lah. 385, 166 (2010) DLT 362, 2014 (1) SCC 188, 2013 (7) SCC 94, 2013 (9) SCC 245, 1984 (3) SCC 161, 1998 (1) SCC 226, 2005 (3) SCC 284 & 1998 (4) SCC 409.
4. Notice of the petition was sent to respondents and CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 3/9 appearance was also made on their behalf. The petition is strongly opposed. The ld. counsel for respondent has relied upon the judgments i.e AIR 1954 SC 397, 2005 (4) SCC 370, 2002 (8) SCC 87 & 2000 (6) SCC 359.
5. I have heard ld. counsel for parties and carefully perused the record in the light of submissions made before me.
6. On perusal of record, it reveals that the respondent filed a complaint against the petitioners u/s 34/120B/500/501/502 IPC in respect of the alleged act of defamation. After obtaining presummoning evidence, the petitioners were summoned u/s 500 IPC vide order dt. 27.06.2005. Subsequently, vide order dt. 07.09.2009 notice u/s 251 Cr.P.C was served upon the petitioners and matter was fixed for post notice complainant's evidence. Thereafter on 17.07.2012 the petitioners filed application u/s 245 Cr.P.C seeking their discharge which was ultimately decided/dismissed by Ld. ACMM vide order dt. 28.08.2012 i.e the impugned order.
7. Apart from above, it is clear from the record that the petitioners herein filed a petition u/s 482 Cr.P.C before Hon'ble High Court of Delhi vide Crl. M.C. 2322/2006 seeking quashing of the present complaint. In the said petition reference was also made to the summoning order CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 4/9 dt. 27.06.2005 passed by Ld. MM and also to the civil suit vide CS (OS) 367/2002 pending before Hon'ble High Court of Delhi. The said petition was dismissed by Hon'ble High Court vide order dt. 27.02.2008.
8. Then after framing of notice u/s 251 Cr.P.C on 07.09.2009 by the Ld. MM, the petitioners filed Crl. M.C. No. 3686/2009 before Hon'ble High Court of Delhi challenging the summoning order dt. 27.06.2005 and dismissal of the complaint. By that time, the above mentioned civil suit had already been dismissed by Hon'ble High Court of Delhi vide order dt. 12.09.2008. After taking into consideration all the relevant facts and submissions, the Hon'ble High Court of Delhi dismissed the said petition vide order dt. 07.03.2012.
9. Thereafter, the petitioners challenged the order dt.
07.03.2012 of Hon'ble High Court before Hon'ble Supreme Court in Spl. Leave to Appeal (Crl) No. 3666/2012. The said petition was dismissed as withdrawn vide order dt. 10.05.2012 with liberty to the petitioner to approach the MM for appropriate relief. It was also observed by Hon'ble Supreme Court that there was no expression of opinion on the merits of the proposed claim.
10.Thereafter, the petitioners filed application u/s 245 Cr.P.C before the trial court which was dismissed vide the CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 5/9 impugned order. The Ld. Trial court while dismissing the application has observed that, " The Hon'ble Court had given permission to withdraw the petition with liberty to approach this court. At the same time, the court observed that they have not given any observation in respect of the merits of the claim of the accused persons. It is settled law that no court of law has the power to override the statutory provisions or to enact any law. The legislature has provided for procedure to be followed in the summons case and according to section 254 Cr.P.C and 255 Cr.P.C., accused can be acquitted of the charges only after prosecution evidence is recorded and court finds that no case is made out against the accused persons. There is no provision to discharge an accused in summon case. Even section 258 Cr.P.C is not applicable to a complaint case i.e the case in hand. Therefore, in my opinion, this court has no jurisdiction to stop this proceedings or to discharge the accused persons. It is worth to mention that the jurisdiction of the Magistrate is excluded from the perview of section 482 Cr.P.C. Therefore, in the name of interest of justice, as well, this court has no power to go against the procedural scheme of law as provided in ChapterXX of Cr.P.C".
11.If the two judgments of Hon'ble High Court of Delhi i.e CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 6/9 order dt. 27.02.2008 & 07.03.2012 are perused, it is evident that the issue relating to pendency of civil suit and subsequent disposal of the same were duly brought to the notice of Hon'ble High Court and Hon'ble High Court of Delhi in its wisdom dismissed both the petitions filed by petitioners. So far as order dt. 10.05.2012 of Hon'ble Supreme Court is concerned, the same does not reflect any opinion about the merits of the case and the petition has been dismissed as withdrawn. Liberty has been granted by Hon'ble Supreme Court to the petitioners to approach to the trial court for appropriate relief. The Hon'ble Supreme Court has no where specified the nature of such appropriate relief. The order dt. 10.05.2012 can not be interpreted in such a manner that the trial court shall be having powers to override the order passed by Hon'ble High Court of Delhi. The Hon'ble Supreme Court has not set aside the order dt. 27.06.2005 (summoning) or order dt. 07.09.2009 (notice u/s 251 Cr.P.C). In my opinion, the effect of the order dt. 10.05.2012 is that the Hon'ble Supreme Court has left the question of legality of notice open to be decided at the trial, which can be the only appropriate remedy available to the petitioners so far as the trial court is concerned.
12.The filing of application u/s 245 Cr.P.C before the trial court CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 7/9 and the present petition before this court seems to be result of over enthusiasm on part of petitioners or a deliberate attempt to delay the proceedings and in my opinion, the second reason seems to be more suitable and appropriate. The Hon'ble Supreme Court while dealing with a similar situation in Subramanium Sethuraman Vs. State of Maharashtra & Anr. AIR 2004 Supreme Court 4711 has observed that it was impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provisions to recall such order and for an aggrieved person the only course available to challenge the issuance of process u/s 204 of the Code is by way of petition u/s 482 Cr.P.C ( already availed in this case). It has also been observed by Hon'ble Supreme Court in the said case that once a plea is recorded (section 252 Cr.P.C) in a summon case, the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.
13.Hence, a careful perusal of the record in general and the impugned Order in particular, it reveals that the petitioner has not been able to show any reasonable ground for interfering with the impugned Order. Ld. Trial Court while passing the impugned Order dated 28.08.2012 has taken into CR No. 13/3 Subhash Motwani & Anr. vs. M/s Frankfinn Management Consultants PAGE No. 8/9 consideration all the relevant facts. It is well settled law that revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. The order passed by Ld. MM is a speaking order in which reasons for dismissing the application u/s 245 Cr.P.C have been discussed. If the impugned order is analyzed in light of the scope of section 397 Cr.P.C, no wrong, illegality, impropriety or irregularity is noticed therein. The judgment relied upon by counsel for petitioners is not helpful to him being distinguishable on facts.
14.In view of above discussion, the revision petition is found to be devoid of merits, hence, dismissed.
TCR be sent back alongwith copy of this Order.
File of the revision petition be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (SANJAY JINDAL)
TODAY i.e.ON 31 MARCH, 2014 ASJ:04:WEST:THC:DELHI
TH
31.03.2014
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