Delhi District Court
Ran Singh vs State on 5 August, 2024
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 124/2021
IN THE MATTER OF:
Ran Singh
S/o Late Shri Desh Ram
R/o 25, Amrit Nagar, NDSE,
Part-I, New Delhi-110049.
........Revisionist
Versus
State
....... Respondent
Instituted on : 13.04.2021
Reserved on : 20.07.2024
Pronounced on : 05.08.2024
JUDGMENT
1. Vide this judgment, I shall dispose of present revision petition U/s 397 Cr.P.C preferred by revisionist Ran Singh against the order dated 19.10.2020 passed by Ld. CMM (South) in case titled as State Vs. Radhika @ Radhika Narain pertaining to FIR No. 337/2008, U/s 448/453/420/468/471/120B IPC, PS Amdedkar Nagar (EOW) whereby cognizance was taken for commission of offences U/s 448/453/120B IPC and revisionist alongwith two other persons was summoned as accused.
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Digitally
signed by
SUNIL SUNIL GUPTA
Date:
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2. Briefly stated the facts as per record are as under:-
A case FIR No. 337 was lodged against the revisionist for the commission of offence U/s 448/34 IPC on 29.07.2008 at PS Ambedkar Nagar on the basis of a report dated 08.07.2008 by Sh. Shoban Singh, ACP/GC on the complaint dated 30.01.2008 of the revisionist addressed to Commissioner of Police, Delhi. As per the complaint of the revisionist, he was authorized by one Radhika Narain (only child/inheritor of Late Sh. Kumar Narain and Late Smt. Geeta Narain) to look after the property i.e., E- 162/A, Sainik Farms, New Delhi (hereinafter referred to property in question) vide General Power of Attorney dated 29.12.2005. It was mentioned therein that he was in possession of said property and was constantly keeping watch on the house after locking it. It was further mentioned that he had started living in the house and started paying a rent of Rs. 10,000/- per month as per rent agreement. It was alleged that local police of PS Ambedkar Nagar and PP Sainik Farms were extending threats to implicate him in murder case of mother of Ms. Radhika Narain as she was murdered in the same house by some unknown criminals on 07.10.2002. Said case was still untraced and local police was threatening him to dispossess him from the premises. It was prayed by the revisionist that he may kindly be saved from the unwarranted and unlawful threat of the local police. It was also mentioned that local police was not having locus-standi qua his possession and that some independent agency working under Commissioner of Police may kindly be entrusted with inquiry into the matter. On receipt of this complaint, vigilance inquiry was conducted. On the report thereof, Commissioner of Police directed registration of the case and transfer of the same to EOW after recording his remarks qua an anomaly Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 2/ 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.08.06 17:01:09 +0530 regarding the name of owner of the property Sh. C.V. Narain as reflected in his death certificate and the name of the father of Radhika Narain as reflected in her school leaving certificate as well as there being no record of her having been adopted or her living in the property in question. After registration of FIR, investigation was conducted and charge-sheet was filed before Ld. CMM (South) on 13.09.2019 against the revisionist alongwith Ms. Radhika @ Radhika Narin and one Inder Singh for commission of offences U/s 448/453/420/468/471/120B IPC. Vide order dated 19.10.2020, Ld. CMM (South) took cognizance for commission of offences punishable U/s 448/453/120B IPC whereas aspect regarding taking cognizance qua remaining offences was left open for consideration till the time FSL report by way of supplementary charge-sheet was filed by the State. Revisionist alongwith two accused persons was summoned as accused vide said order for 12.01.2021. That order is being challenged in these proceedings.
3. Arguments heard.
4. It has been argued by Ld. Counsel for revisionist that impugned order is not sustainable in the eyes of law. He has assailed the order on two grounds. His primary ground for assailing the impugned order is that the charge-sheet was filed after more than 11 years of registration of FIR and in view of bar contained in Section 468 Cr.P.C., Ld. CMM (South) could not have taken cognizance for commission of offences U/s 448/453/120B IPC. It has been submitted that prosecution has not moved any application seeking condonation of delay in filing the charge-sheet and in the absence thereof, taking of cognizance by Ld. CMM (South) for aforementioned offences was Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 3/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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bad in law. His second ground for assailing the impugned order is that in any case, ingredients for commission of offence U/s 448/453 IPC were not made out in the the given facts so, Ld. CMM (South) could not have taken cognizance for those offences without first satisfying himself as to whether the charge-sheet is containing relevant material in this regard. Ld. Counsel for revisionist has gone through the contents of Section 441 IPC and has submitted that for making out a prima facie case for commission of offence U/s 448 IPC, it was necessary for the investigating agency to show that the revisionist had entered into the property in question which was in possession of someone else. It has been submitted that Section 441 IPC makes entry of a person in the property in possession of another as a punishable offence. It has been submitted that it is not even the case of investigating agency that anyone was in direct or indirect possession of property in question so, offence U/s 441 IPC and as a consequence thereof, offence U/s 448 IPC was not made out. Ld. Defence Counsel has relied upon the order dated 06.01.2009 of Ld. SDM, Hauz Khas whereby Kalandra U/s 145 Cr.P.C. against the revisionist alongwith two other accused persons was dismissed primarily on the ground that no one had stayed inside the property since 07.12.2002 and that the issue of ownership of property was within the jurisdiction of Civil Court. It has been submitted that in view of this categorical position which has not been denied by anyone, revisionist could not have intimidated/insulted/annoyed any person in possession of said property. It has been submitted that cognizance for commission of an offence by the Court is a serious matter as it entails serious consequences for a person summoned as an accused because he is required to face the entire trial thereafter. It has been submitted that the order in question is bad in law. He Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 4/ 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.08.06 17:01:23 +0530 has prayed for setting-aside the impugned order. He has relied upon the following judgments:-
(a) Vipin Kalra & Anr. Vs. State 2002 (61) DRJ 236;
(b) State Vs. Mahender Singh, Crl. Appeal No. 26/1983 (Delhi High Court).
5. On the other hand, it has been submitted by Ld. Addl. PP for State that there is no illegality in the impugned order. It has been submitted that the charge-sheet was filed by investigating agency for the offences U/s 448/453/420/468/471/120B IPC and offence U/s 420 IPC is punishable with imprisonment up to 7 years and for that reason, it cannot be said that there was any delay on the part of investigating agency in filing the charge-sheet in view of section 468 (2) (c). It has been submitted that it was within the power of Ld.CMM (South) in taking cognizance for the offences which he deemed fit and merely because cognizance for offence U/s 420 IPC was deferred till filing of FSL result by the State, it cannot be said that cognizance taken for offences U/s 448/453/120B IPC was bad in law. It has been further submitted that as far as the submission regarding absence of ingredients of offences for which cognizance was taken by Ld. CMM (South) is concerned, such detailed appreciation of material on record was required to be done at the stage of consideration on the point of charge and not at the stage of taking cognizance. It has been submitted that Ld. Counsel for revisionist shall be at liberty to make relevant submissions before Ld. Trial Court at the stage of charge and he may seek his discharge at that stage as per law. Ld. Addl. PP for State has relied upon the judgment of Hon'ble Apex Court in State of Gujarat Vs. Afroz Mohd. Hasanfatta, Crl. Appeal Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 5/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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No.224/2019.
6. I have considered the submissions from both the sides alongwith record and judgments cited.
7. Relevant portion of the impugned order is being reproduced below for ready reference:-
"On the basis of charge sheet filed by the State, the cognizance of the offences punishable under Section 448/453/120B of IPC, 1860 is taken, as per Section 190(b) of CrPC, 1973, the aspect taking cognizance qua the offences relating to forgery is left open for consideratin, after the State files the FSL report, by way of a separate supplementary charge-sheet. Let all the three accused be summoned through the IO, for 12.01.2021."
8. One of the grounds taken by revisionist to assail the impugned order is that cognizance for offences punishable u/s 448/453/120B IPC could not have been taken by Ld. Trial Court has the property in question was admittedly not in possession of any individual so the accused could not have entered the same with intention to commit an offence or to intimidate/ insult/ annoy any person in possession of property. On the other hand, Ld. Addl. PP for State has argued that those submissions can be made by Ld. Defence Counsel before Ld. Trial Court at the stage of consideration on charge. As far as the judgment of Hon'ble Delhi Court in State (Delhi Administration) Vs. Mahinder Singh (Supra) relied upon by Ld. Counsel for revisionist is concerned, same is clearly distinguishable on facts as in Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 6/ 13 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.08.06 17:01:37 +0530 that matter, State had preferred an appeal against acquittal of respondent for offences u/s 448/427 IPC which is admittedly not the case here. Regarding requirement of detailed reasons while passing summoning order in such a factual context, this Court is enlightened by judgment of Hon'ble Apex Court in State of Gujarat Vs. Afroz Mohd. Hasanfatta (Supra). In that case, the accused was summoned for the offences u/s 420/465/467/468/471/477A/120B IPC by Ld. Magistrate after having been charge-sheeted by investigating agency by way of supplementary charge- sheet. Said order was challenged by way of a criminal revision petition before Hon'ble Gujarat High Court which set-aside the same. One of the questions before Hon'ble Apex Court was to the following effect:-
"While directing issuance of process to the accused in case of taking cognizance of an offence based upon a police report under Section 190(1)
(b) Cr.P.C., whether it is mandatory for the Court to record reasons for its satisfaction that there are sufficient grounds for proceeding against the accused?"
9. While examining aforementioned question, Hon'ble Apex Court held as under:-
"17. The learned senior counsel appearing for the respondent- accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent- accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. On the facts and circumstances of those cases, this Court held that the order of Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 7/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, 'complaint' does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman that "under Section 190(1)
(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that "a complaint of facts which constitutes an offence".
10. Hon'ble Apex Court further held as under:-
"21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is " there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 8/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality."
11. Applying aforementioned principles to the case at hand, impugned order cannot be faulted with. Revisionist is trying to rely upon documents including order dated 06.01.2009 stated to be passed by Ld. SDM(Hauz Khas) on a kalandra u/s 145 Cr.P.C. filed by police, succession certificate granted in favour of Smt. Radkhika Narain @ Radha vide judgment dated 22.04.2015 of Ld. ACJ (South) and order dated 13.08.2018 of Ld. ASCJ(South) in CS No.1125/2017 titled as Smt. Santosh & Ors Vs. Radhika Narain @ Radha, which are not part of the chargesheet filed by Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 9/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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police hence, cannot be looked into by this Court for deciding present revision petition. As per the charge-sheet, one Mr. Edwin D'Souza might be the legal heir to inherit the property in question as he was the son of late Smt. Geeta Narain who was born when she was unmarried. In such an eventuality, he might be considered in constructive possession of said property. This Court is refraining from examining this issue in detail at this stage as it may prejudice the revisionist in pursuing his legal remedies as per law. In nutshell, this ground is not sufficient to set aside the impugned order.
12. Having said that, it is to be noted that FIR in this matter was lodged on 29.07.2008 for commission of offence u/s 448/34 on an unknown date and final report in the form of charge-sheet u/s 173 Cr.P.C. was filed before Ld. CMM (South) on 13.09.2019 i.e., after lapse of a period of more than 11 years. Though the charge-sheet was filed for commission of offences u/s 448/453/420/468/471/120B IPC however Ld. CMM took cognizance for offences u/s 448/453/120B IPC only vide order dated 19.10.2020. The question of taking cognizance for remaining offences was left open till filing of FSL report by way of supplementary charge-sheet. Section 448 IPC is punishable with imprisonment of one year or with fine upto Rs.1000/- or with both. Similarly, Section 453 IPC provides punishment of imprisonment upto 2 years and fine. Section 468 Cr.P.C. which is being invoked by Ld. Counsel for revisionist for challenging the impugned order provides as under:-
"468. Bar to taking cognizance after lapse of the period of limitation.-
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Digitally
signed by
SUNIL SUNIL GUPTA
Date:
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(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"
13. Considering the aforementioned provision, it can be safely said that the period of limitation for taking cognizance for commission of offences punishable u/s 448/453/120B IPC was 3 years. As mentioned earlier, charge-sheet was filed after lapse of a period of more than 11 years since registration of FIR and cognizance was taken after around 1 year thereof. Regarding the date relevant for the purpose of computing the period of limitation u/s 468 Cr.P.C., this Court is guided by the judgment of Hon'ble Apex Court in Sarah Mathew Vs. Institute of Cardio Vascular Diseases & Ors. AIR 2014 SC 448 wherein it was held that the date of institution of prosecution and not the date on which cognizance is taken by the Crl Rev. No. 124/2021 Ran Singh Vs. State Page No. 11/ 13 Digitally signed by SUNIL SUNIL GUPTA Date:
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Magistrate is relevant. It means that the relevant date in this case is 13.09.2019 which is without doubt much beyond the period of limitation. Though section 473 Cr.P.C. provides that Court may take cognizance of an offence after expiry of period of limitation on being satisfied that delay has been properly explained or that it was necessary so to do in the interest of justice, impugned order is not containing anything to show that Ld. CMM had condoned the delay under this provision. As held by Hon'ble Apex Court in State of Himachal Pradesh Vs. Tara Dutt & Anr. AIR 2000 SC 297, whenever a Court exercises is discretion u/s 473 Cr.P.C., same must be by a speaking order indicating satisfaction of the Court to the effect that delay was satisfactorily explained and condonation of the same was in the interest of justice.
14. Ld. Addl. PP for State has submitted that there was no illegality in impugned order as cognizance for remaining offences punishable u/s 420/468/471 IPC (Section 420 IPC is punishable with imprisonment upto 7 years so the period of limitation is not applicable in the cases pertaining to that offence) was deferred. Ld. Addl. PP did not elaborate this aspect further and also failed to bring any judgment of Hon'ble High Court or Hon'ble Apex Court supporting this line of argument. It would have been altogether another scenario in case, cognizance was taken by Ld. CMM for offence u/s 420 IPC also which is not the case here.
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SUNIL SUNIL GUPTA
Date:
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15. Considering the above discussion, this Court is of the view that the order taking cognizance was beyond the period of limitation as prescribed u/s 468 Cr.P.C. Same is hereby set-aside. Matter is remanded back to Ld. Trial Court with request to pass the order qua cognizance afresh as per law.
Revision petition stands disposed of in said terms. Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2024.08.06
Announced in the open (Sunil Gupta) 17:02:31
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Court on 05.08.2024 Additional Sessions Judge-06
South, Saket Courts, New Delhi
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