Delhi District Court
Hem Chand Gupta S/O Late Ram Swaroop vs State (Nct Of Delhi) on 17 September, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
CNR No.DLSH010057452018 date of institution : 29.08.2018
Crl. Revision No.44/18 decision reserved on : 11.09.2018
I.D. No. 210/18 date of decision : 17.09.2018
In the matter of
Hem Chand Gupta s/o Late Ram Swaroop
r/o A36, Vivek Vihar, Delhi. ...Petitioner
Versus
State (NCT of Delhi)
...Respondent
J U D G M E N T [On revision petition arising from order dated 04.06.2018 r/w order dated 02.01.2018 passed by Sh. Prayank Nayak, Metropolitan Magistrate (Shahdara), Karkardooma Courts, Delhi (briefly the trial court)] 1.1 (Background/introduction) - In order to decide the revision petition, it needs to give background and introduction of facts and proceedings, which are culled out from the record of trial court of FIR No.230/2009 PS Seemapuri and the revision petition.
1.2 An FIR No.230/03.07.2009 was registered in PS Seemapuri for the offence punishable u/s 287/304A IPC. The petitioner/accused Hem Chand Gupta was admitted on bail by the police on 05.07.2009 being bailable offences. Thence, on 31.07.2015, petitioner/accused Hem Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 1 of 8 Chand Gupta filed an application seeking status/progress report as it was matter of more than five years old and he had not received any information of the case. His application was taken up by the trial court on various dates on 06.08.2015, 24.08.2015, 28.08.2015, 10.09.2015, 07.11.2015, 22.12.2015, 23.01.2016, 07.06.2016 and 08.01.2017. On 10.09.2015 during the pending of that application, the chargesheet was filed (it was forwarded by the then ACP on 10.11.2009). Notice was issued by the trial court to ACP concerned as to why the chargesheet had not been filed in time. The matter was adjourned for 07.11.2015 but on 11.09.2015 (that after filing of chargesheet on 10.09.2015), an application was filed by ASI Meghan Singh, MACT Cell, North East district by writing an explanation that file was lying in the almirah and building of PS Seemapuri was shifted in the new building. But the MHC(R) had consigned the file of his own to Record Room.
The petitioner had protested the application that the chargesheet is barred by time and there is inordinate delay of six years and petitioner had filed a detailed reply opposing the application dated 11.09.2015 of ASI Meghan Singh. On 22.01.2016, ACP had also rendered written explanation that chargesheet ought to have been filed in time, it was barred by limitation on 07.07.2011, but the file was lying with ASI Meghan Singh unnecessarily, the IO did not put the file in the court for trial and kept sitting on it without any cogent reasons. ACP had also requested the trial court that SHO PS Seemapuri is directed to move proper application to the court for condonation of delay immediately.
Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 2 of 81.3 By order dated 02.01.2018, the trial court heard both sides and came to the conclusion that as per the FIR one victim namely Om Prakash had died due to rash and negligent act, the trial court formed an opinion that victim and public at large should not be made to suffer due to negligence on the part of investigating agency, particularly, delay has not been caused due to the conduct of complainant or victim, accordingly delay was condoned by the trial court and application of petitioner was rejected. On 04.06.2018, on the basis of that order dated 02.01.2018, the trial court took the cognizance of offences punishable u/s 287/304A IPC.
1.4 Petitioner is feeling aggrieved by the order dated 04.06.2018 r/w order dated 02.01.2018.
2.1 (Plea in the revision petition) - The petitioner reiterates the facts and features besides background as to how he had moved the application dated 31.07.2015, followed by filing of application dated 11.09.2015 and then the impugned orders. Whereas section 287 IPC prescribes maximum punishment of six months or fine of Rs.1,000/, section 304A IPC provides punishment of two years or fine or both but for the purpose of taking cognizance maximum period is three years (as per section 468 Cr.P.C.) but the chargesheet was filed after a period of nine years, the ground taken in application dated 11.09.2015, does not show any record to substantiate the extension of time or as and when police station Seemapuri was shifted to new building, had it been so, police office being public office would have been maintaining the record. There is no such record shown. There is also no record of any D.D. Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 3 of 8 entry regarding transfer of IO or missing of the file or subsequently it was shifted by MHC(R), all these grounds are without any authenticated proof, therefore, the application was without plausible grounds for extension of period of limitation, in fact they are vague and manipulated, it was not entitling for extension of time.
Otherwise, it was the petitioner who moved the application for status/progress report and moreover, he had also compensated/compromise with Smt. Prem Sheila Devi, wife of deceased Om Pakash, she was paid Rs.1,50,000/ by way of Term Deposit Receipts of Rs.50,000/ each on 04.08.2009. Secondly, when there was no ground to extend the period of limitation, the ground was rather concocted. The trial court failed to consider the factual circumstances and impugned order was passed on some other reasons, consequently, impugned order is liable to be set aside and chargesheet is to be treated barred by law of limitation.
2.2 (Oral submissions) - Mohd. Saleem, Advocate for the petitioner reiterates the same set of circumstances, while referring the record of application (it is also part of the trial court record) proceedings, and the Memorandum of Understanding between the petitioner and wife of the deceased coupled with copies of bank draft that amount was paid to the family of victim. All these circumstances show that petitioner is bona fide, but on the other side, the impugned order dated 04.06.2018 r/w order dated 02.01.2018, does not whisper any opinion with regard to contents of the application dated 11.09.2015 as well as reply filed by the Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 4 of 8 petitioner, rather court introduced its own opinion which was not even in the application or in the status report by the ACP or otherwise.
3. (Plea of State/respondent) - Sh. Rakesh Mehta, Ld. Addl. P.P. for the State has reservations that order dated 04.06.2018 is regarding taking cognizance and cognizance was rightly taken. The petitioner has not referred order dated 02.01.2018 in the revision petition. Otherwise, order dated 02.01.2018 has sufficed the requirement of law that court may take into consideration all the aspects and this order is emerging from the circumstances mentioned in the application as well as during the submissions. It is also fact that there is no delay to be attributed to the complainant or victim side and in case because of human error, the investigating agency had kept the file in the almirah, there was shifting of police station in new building which will not be construed that charge sheet was not filed intentionally. Therefore, revision petition is without merits and it is liable to be dismissed.
4.1 (Findings with reasoning) - The submissions of both the sides are considered and assessed keeping in view the material on record, the contents of the application dated 11.09.2015 by ASI Meghan Singh, the findings returned by the trial court, the statutory provisions of law (section 468473 Cr.P.C.).
4.2 An issue is emerged that the revision petition is in respect of order dated 04.06.2018 and there is no revision petition against order dated 02.01.2018, whereas the order dated 04.06.2018 cannot be read independently since it is emerging from the order dated 02.01.2018 by which the application was disposed off and subsequent order dated Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 5 of 8 04.06.2018 is a formal order. Hence, order dated 04.06.2018 is to be read with order dated 02.01.2018.
4.3 The order dated 02.01.2018 does not whisper anything about the contents of application moved by ASI Meghan Singh but the trial court took other view, from the point of victim and prospective of nature of case as well as there was no delay attributed towards the complainant/victim. Since it is an old matter of FIR No.230/2009 of PS Seemapuri, just for the reason the trial court has not given any opinion about the contents of application, it would not be justified to remand the case back for additional opinion, as the application was disposed off by the trial court of its reasons. Thus, the matter can be decided on merits also.
4.4 After taking stock of all the circumstances and materials, the revision petition is allowed, the impugned order dated 04.06.2018 r/w order dated 02.01.2018 are set aside by holding that the police report is barred by time for the following reasons :
(i) the FIR is of 03.07.2009 and the date of offence is 02.07.2009 at 9.15 pm, the FIR is u/s 287/304A IPC and as per section 468(2)(c) Cr.P.C. the period for taking cognizance is three years, which was upto 03.07.2012, therefore, the chargesheet brought on 10.09.2015 was after statutory period of three years,
(ii) as per reply/explanation by ACP, it was an admitted case of police that the chargesheet was barred by time and SHO PS Seemapuri was asked to move appropriate application immediately, Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 6 of 8 whereas SHO had not filed any application but the application was a manuscript application by ASI Meghan Singh, it was not even got forwarded from SHO nor its contents shows that ASI Meghan Singh was authorised by the SHO to file the application, consequently the application dated 11.09.2015 by ASI Megan Singh was without authority,
(iii) in the application filed by ASI Meghan Singh, he took the stand that the file was in the almirah, police station was shifted to new building and MHC(R) had consigned it to the Record Room but there is no documentary record produced, whereas each movement of file is subject matter of entries in the record,
(iv) in terms of statutory provisions of law, particularly section 473 Cr.P.C., the court may take cognizance after expiry of period of limitation, in case it is satisfied on the facts and circumstances that the delay is properly explained or it is necessary to do so in the interest of justice, the trial court has not even considered the contents of application moved by ASI Meghan Singh to satisfy itself whether the delay is properly explained,
(v) in Bombay Pharma Vs. State of M.P. 1991 Cr.L.J. 707 (para 23
25), it was held that negligent or leisure action on the part of concerned police public servant should not be allowed to operate to prejudice of accused to deprive him of the benefit of law of limitation. Whereas the period limitation was expired on 03.07.2012 but the chargesheet was brought on 10.09.2015 that too after initiation of process by the petitioner/accused intending to knowing the status of the case, Crl. Revision No.44/18 Hem Chand Gupta Vs. State (NCT of Delhi) Page 7 of 8
(vi) the delay of about six years in filing the chargesheet in the court is inordinate delay, the chargesheet was not carrying any explanation nor any application to condone the delay was filed with the charge sheet, the application was brought subsequently by ASI Meghan Singh, whereas he had no independent authority to such application when the chargesheet was already forwarded by the SHO as well as by ACP vis avis SHO was asked to move the application but it was not filed ever since by the SHO.
5. Accordingly, the revision petition is allowed, the chargesheet is held to be barred by law of limitation prescribed and for want of any satisfactory reasons, the time could not be extended and impugned order dated 04.06.2018 r/w 02.01.2018 of trial court is set aside. The trial court be sent back to the trial court alongwith the copy of this judgment. Revision petition file be consigned to Record Room.
Announced in open court today Monday, Bhadra 26, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 17.09.2018 Digitally signed by INDERJEET SINGH INDERJEET Location:
Shahdara District, SINGH Karkardooma
Courts
Date: 2018.09.17
17:04:14 +0530
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