Delhi District Court
Surender Singh vs Tasvir Singh Rathi Cc on 6 March, 2013
1
IN THE COURT OF SH. SANJEEV KUMAR: ADDL. SESSIONS
JUDGE(01): NORTH : ROHINI COURTS: DELHI
CRIMINAL REVISION NO.67/12.
U/S. 220/34 IPC
PSALIPUR.
1. SURENDER SINGH
S/O. SHRI SAROOP SINGH DAHIYA
R/O. FLAT NO.2, TYPEIV,
PSASHOK VIHAR, DELHI.
2. TASVIR SINGH RATHI
S/O. SH. H.S. RATHI
R/O. QUARTER NO.8/61,
TYPEII, POLICE LINE,
PITAMPURA, DELHI. ....REVISIONISTS
V
1. STATE (GOVT. OF NCT OF DELHI)
2. SHRI JAGIR SINGH
S/O. SHRI UTTAM SINGH,
R/O. V.P.O. JHANGOLAI,
DELHI. ..... RESPONDENTS
IMPUGNED ORDER DATED 12.03.2012, PASSED BY SHRI
SUMEDH KUMAR SETHI, LD.MM, ROHINI COURT, DELHI IN
CASE TITLED AS JAGIR SINGH VS TASVIR SINGH RATHI CC
NO.80/05,U/S. 190 Cr.P.C. PSALIPUR.
Date of Institution :29.09.2012
Date of Arguments:18.02.2013
Date of Order:06.03.2013
ORDER:
CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 1 OF PAGE 7 2
1. The present revision petition has been filed against the impugned order dated 12.03.2012 passed by ld. MM in CC no.80/05, u/s.190 Cr.P.C., PSAlipur, Delhi, whereby both the revisionist have been summoned u/s. 220/34 IPC. The brief facts of the case which lead to the filing of the present revision petition are that complainant was permanently residing at Village JhangolaI, Delhi and on 20.03.2001 he was erecting a wall to build a small room for cattle within within his residence in his village Old Abadi. The revisionist No.2 namely HC T.S. Rathi stopped him from raising such construction despite the fact that he told to him that said construction is not against the law as the same was within the Old Abadi area. Thereafter complainant met with the SHO of PS Alipur i.e. Revision No.1 and apprised that construction is legal and according to the law. It is further alleged that on the same day revision no.2 met him and demanded Rs.5,000/ for allowing him to do the construction job, but he refused and on 28.03.2001 revisionist no.2 again went to his house and asked the permission for raising the construction and thereafter got registered a case FIR No. 107/11, u/s. 188 IPC and arrested in this case against the complainant on the garb of circular issued by the DCP (PHQ) bearing number 3721180/ C&T, ACV CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 2 OF PAGE 7 3 dated 27.11.1997 and later on filed the chargesheet in the court under Section 188 IPC despite the fact that complainant has obtained the report from the SDM for construction is illegal. It is further alleged that the court of then ld. MM, Ms. Raj Rani Mitra vide her order dated 10.03.2003 discharged the complainant on the basis of report receiving from the revenue authority i.e. SDM for construction is legal being in Old Abadi Area. It is also alleged by the complainant that both the revisionists illegally put the complainant on trial due to non fulfillment of Rs.5,000/ and thus committed offence under Section 220/34 IPC and accordingly he filed the complaint case number 80/05.
2. During the pendency of the complaint case he led his evidence and on the basis of the evidence, ld. MM vide impugned order dated 12.03.2012 took the cognizance and summoned both the revisionists.
3. Being aggrieved by the said order present revision petition has been filed. The main ground which is taken by the ld. Counsel for the revisionists that both the accused persons were following the circular issued by the Commissioner of Police whereby they were directed to stop the illegal construction in unauthorized CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 3 OF PAGE 7 4 colony. Hence, respondent/complainant was also booked under Section 188 IPC because he was also raising illegal construction. Hence, the act of both the revisionist comes within the purview of their official duty. Hence, they issued notice within three months prescribed period no proceedings either civil or criminal against the revisionists can be initiated due to bar under Section 140 D.P. Act.
4. It is argued by ld. Counsel for the revisionists that earlier complainant had filed a civil suit for claiming damages against both the revisionists and Commissioner of Police, Delhi, but said civil suit was dismissed by the court of Shri Nepal Singh then ld. ASJ on the ground that since notice u/s. 140 D.P. Act has been given after three months prescribed period, therefore, suit was dismissed being barred by limitation.
5. It is further argued by the ld. Counsel for revisionists that said order of Shri Nepal Singh , was further confirmed by the Hon'ble High Court vide judgment dated 12.07.2004 passed in RFA No. 867/03 filed by the complainant/respondent herein and also by the Hon'ble Supreme Court of India in S.L.P. (Civil) No.24134/04 dated 03.123.2004 on the similar ground. It is further submitted by the ld. Counsel for the revisionists that since the requirement of notice u/s. CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 4 OF PAGE 7 5 140 D.P. Act equally applicable on both the civil as well as criminal proceedings for prosecuting against an official of Delhi Police due to bar u/s. 140 D.P. Act. Therefore, ld. MM had committed gross error and even violated the order of Apex Court by taking cognizance against the revisionists by ignoring the provision of Section 140 of DP Act. Hence, the order passed by ld. MM is liable to be set aside.
6. On the other hand, ld. Counsel for the respondent has argued that there is no error in the order passed by the ld. MM because he has duly applied his mind and came to the conclusion that bar of Section 140 D.P. Act or Section 197 Cr.P.C. is applicable in the present case. Hence, present revision petition is liable to be dismissed.
7. I have heard the argument on behalf of both the parties and also gone through the record. From perusal of impugned order dated 12.03.2012 it is evident that ld. Trial MM has taken cognizance only u/s. 220 IPC. Section 220 IPC is reproduced as under :
220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law.--Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 5 OF PAGE 7 6 knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
8. Thus, it is evident that Section 220 IPC is applicable against a person who hold an office which empowered him to commit any person for trial or to confine. Secondly, he must do the said act maliciously or corruptly.
9. It is admitted fact that, both the revisionists have taken the action against the respondent by filing a charge sheet u/s. 188 Cr.P.C. in FIR No.107/01, hence there act was under the colour of the duty. Definitely asking bribe of Rs.5,000/, does not come in the colour of duty, but revisionists have not been summoned for asking bribe which is punishable under the Prevention of Corruption Act, but they have been summoned u/s 220 IPC. The act of the revisionists/accused persons comes under the colour of their official duty. Hence, in my view permission u/s. 140 D.P. Act is required before taking cognizance against the revisionists / accused persons u/s 220 IPC.
10. Respondent / complainant was also very well aware that he required to give notice u/s. 140 D.P. Act before taking any action against the respondent complainant that why he has sent a notice CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 6 OF PAGE 7 7 u/s. 140 D.P. Act to Hon'ble L.G and to Commissioner of Police on 25.03.2003 (Annexure H). But same was sent after one year from the date of alleged offence. Hence, same was time barred. That is the reason his suit for seeking damages was dismissed by the then Ld. ADJ Shri Nepal Singh, vide judgment dt. 18.8.2003. And said order was uphold right up to the Hon'ble Supreme Court.
11. Since, the requirement of notice u/s. 140 D.P. Act is necessary before proceedings against any police offence in both civil as well as criminal proceedings, therefore, when against same cause of action civil suit was dismissed for sending notice after the requisite period. Further the criminal proceedings on the same caused of action also cannot be initiated. Hence, ld. MM has committed gross error by taking cognizance u/s 220 IPC and ordered the summoning to revisionists. Hence, I set aside the impugned order dated 12.03.2012 passed by the ld. MM.
12. Trial court record be sent back to the trial court concerned along with copy of order. File be consigned to record room.
Announced in the open Court (SANJEEV KUMAR) Dt. 06.03.2013. ASJ01 (North), Rohini, Delhi CR 67//12 SURENDER & ANR VS STATE & ANR PAGE 7 OF PAGE 7