Delhi District Court
Anil Kumar vs State on 19 November, 2016
Crl. Rev. No.224/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 224/2016
Under Section : 394 Cr.P.C.
Police Station : Madhu Vihar
FIR No. : 239/2010
Unique I.D. No. : 45110/16
In the matter of :-
ANIL KUMAR
S/o Late Sh. Nawal Kishore
R/o C-7/154 A, Keshav Puram,
Delhi-110035
Inspector (EOW),
Mandir Marg, New Delhi.
.............Revisionist
VERSUS
1. STATE
2. POONAM CHAND SHARMA
Director, M/s Overseas Mobiles Pvt. Ltd.,
175, F.I.E. Patparganj,
Delhi-110092
3. MILLIND SHAHANE
CEO
4. SANJAY DUBEY
Director/Officer
5. SUPRAKASH MUKHOPADHYAYA
Director/Officer
6. BRINDRA SANYAL
Director/Officer
7. AJAY CHOPRA
Director/Officer
8. AJAY PONKSHYE
Director/Officer
9. ANTHONY D'SOUZA
CFO
Page 1 of 13 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
Crl. Rev. No.224/2016
10. ANOOP AGGARWAL
Regional Manager
Registered Office of individuals
(from Sr. No.3 to 10) at :
Kamla Executive Park, 7th floor,
Near Vazir Glass Factory,
Opp. Andheri Kurla Road, Andheri (East)
Mumbai-400059
11. M/S DRIVE INDIA ENTERPRISES SOLUTIONS LTD.
Registered Office at :
Kamla Executive Park, 7th floor,
Near Vazir Glass Factory,
Opp. Andheri Kurla Road, Andheri (East)
Mumbai-400059
............Respondents
Date of Institution : 05.10.2016
Date of Receiving : 16.10.2016
Date of reserving judgment : 04.11.2016
Date of pronouncement : 19.11.2016
Decision : Petition is allowed.
ORDER
1. This is a revision petition directed against the order dated 27.09.2016 and other connected orders, passed by ld. trial court in the case titled as State v. Anthony D'Souza & others, bearing FIR No. 239/2010, PS EOW, filed under Section 406/409/420/467/468/471/120-B IPC.
BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts giving rise to revision petition in hand are that petitioner was IO in case FIR no. 239/2010 PS EOW. He filed a closure report before ld. CMM. Complainant appeared before ld. MM and filed application for taking cognizance against the accused persons.
3. Thereafter, after hearing complainant as well as IO, ld. CMM passed order dated 20.11.2014 thereby taking cognizance against all the named accused Page 2 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 persons under various Sections and all the named accused were summoned accordingly. At the same time, ld. CMM made certain observations thereby showing her disapproval to the submissions/reasons given by IO, for filing the closure report and directed to send a copy of that order to Joint CP (EOW) to apprise him about the state of affairs and to take necessary actions against the IO (petitioner herein). The order dated 20.11.2014 was challenged by one accused in a revision petition filed before Sessions Court and said criminal revision no. 20/15 was allowed by the court of Sh. Ajay Gupta, ld. ASJ. The order dated 20.11.2014 was set aside and the matter was remanded back to ld. CMM to pass a speaking order on the point of summoning. On receipt of that order from the Sessions Court, ld. CMM again heard submissions and thereafter she passed fresh summoning orders against the accused persons vide order dated 24.02.2016.
4. This time, she did not make any observation in respect of IO and the proceedings continued in respect of the appearance of the accused persons and their bail before the trial court up to 29.04.2016. On 29.04.2016, ld. CMM directed to issue notice to ld. DCP (EOW) along with IO to appear in person for 18.05.2016. On 18.05.2016, ld. DCP (EOW) was advised to do the needful in respect of list of witnesses, etc. and the matter was again posted for 08.07.2016. Thereafter, matter was again posted for 11.08.2016. On 11.08.2016, once again direction was given to ld. DCP (EOW), so as to explain the action taken against the IO in compliance of order dated 24.02.2016. Ld. DCP (EOW) had sent a report before ld. CMM, which was taken up on 29.08.2016. Ld. DCP (EOW) had reported that an inquiry was conducted by the then ACP (Headquarter) against the IO and nothing could be substantiated during such inquiry. Ld. CMM was not satisfied with such Page 3 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 report given by ld. DCP (EOW) and she observed that ld. DCP (EOW) had sent eyewashing-letter without furnishing any details/documents of the inquiry, which was conducted by ld. ACP. Ld. CMM further observed that ld. DCP (EOW) was directed to conduct inquiry himself. She also passed observations that it appeared to her that ld. DCP (EOW) had tried to shield the IO i.e. the petitioner herein and therefore, she further directed to issue notice to Commissioner of Police, to do needful himself and to ensure implementation of orders passed by her in the past. Thereafter, order was passed by ld. CMM on 27.09.2016, wherein she mentioned that there was clerical mistake in her order dated 29.08.2016 and the date of 24.02.2016 was mistakenly mentioned, though the order should be read as 20.11.2014.
5. Ld. DCP (EOW) had appeared on that day, who had filed response to the order passed by ld. CMM and ld. CMM was once again not satisfied with the same. She expressed shock over the response of the department, raising questions over the inquiry conducted by an ACP, though the directions were given to Joint CP (EOW) to conduct the inquiry. She further made observations that IO was absolved by conducting an eyewash-inquiry and even the complainant was not given any opportunity of hearing. She directed that complainant should be also heard in the inquiry. She gave further advises, in order to conduct inquiry against the petitioner herein. She further passed orders to request Commissioner of Police to look into the matter himself or to get enquiry conducted through Special Commissioner of Police (Vigilance).
GROUNDS : -
6. Being aggrieved of the last order dated 27.09.2016 and previous orders, the revisionist has preferred this revision petition on the following grounds :-
Page 4 of 13 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 ● That the impugned order passed by trial court is illegal, improper, unjustified, perverse, wrong and against the basic principles of law as well as the law settled by the hon'ble Supreme Court of India as well as High Court of Delhi through its numerous judicial pronouncements. ● That the trial court did not take into consideration the Delhi High Court Rules, Section 6 in Part -H, Volume III, Chapter 1. ● That the trial court had prejudged the action of the IO and thereafter directed the disciplinary authority to conduct enquiry which is against the law recently and categorically laid down by our own High Court on 18.12.2015 in WP(CRL) 207/2015 Rakesh Chand v. State of NCT of Delhi.
● That ld. CMM failed to consider the judgment of hon'ble Supreme Court of India in case of Tessta Setalvad and Anr v. State of Gujarat and Ors. (2004) 10 SCC 88.
● That ld. CMM failed to appreciate the judgment of the Apex Court in S. Palani Velayutham & ors. v. Dist. Collector, Tirunvelveli, Tamil Nadu & Ors. ● That ld. CMM failed to appreciate that before directing for initiation of enquiry, the trial court had already concluded the outcome of the enquiry through the impugned order. No enquiry officer would be able to come to any other conclusion in view of the fact that the trial court had already given its finding through a judicial order and had already held that the erring officer is guilty of misconduct. Such a procedure is absolutely against the settled principles of law.
● That the trial court failed to appreciate that such type of observation is bound to affect the trial of the case and that too at the very initial stage. ● That the trial court had ordered enquiry against the abovementioned IO to Page 5 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 be conducted by the Commissioner of Police but had also gone overboard in directing that such enquiry should be conducted through the Special Commissioner of Police (Vigilance), which is a clear indication of judicial overreach and transgression of judicial powers.
● That the trial court did not accept the enquiry reports filed on two separate occasions and remarked that the same were not satisfactory. The subsequent enquiry report being submitted by the Commissioner of Police through DCP (EOW) was also not acceptable to the ld. CMM and she yet again ordered further enquiry against the IO. Further, such enquiry was not only ordered to be conducted by him through Special Commissioner of Police (Vigilance) personally vide the impugned order dated 27.09.2016. Further serious remarks were also made against the Police Department and its functioning which were wholly unwarranted for. ● That the trial court failed to appreciate that on an earlier occasion while disagreeing with the final report submitted by same IO vide order dated 20.11.2014 on the same grounds, the trial court had passed remarks against IO and the same has been set aside by reasoned order by Sessions Court, which has analogous powers of hon'ble High Court, but surprisingly on the same ground again the trial court below passed adverse remarks against same IO for the same reason.
● That the order of ld. ASJ has attained the finality as none of the parties has challenged the order passed by ld. ASJ in its criminal revision jurisdiction.
● That the trial court failed to appreciate the bona fide conduct of the IO regarding the supply of copies of the documents to the ld. counsel for the accused persons and further has contradicted itself in the impugned order Page 6 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 viz-a-viz the connected order. Also the trial court below issued between against the IO regarding the said issue, which was wholly unwarranted and uncalled for.
● That the trial court failed to appreciate the provisions of Delhi Police Act, 1978 wherein under the Chapter: "Regulation, Control and Discipline of the Police", u/s 21 and 23, provisions relating relating to "Powers of Punishment" and "Appeal from Orders of Punishment" have been provided respectively. Also because the trial court failed to appreciate the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980 wherein detailed procedure regarding the departmental enquiries to be conducted against the police officers, has been mentioned. ● That the trial court failed to appreciate that initiation of enquiry or taking action is a quasi-judicial function of the superior officer of Police Department and the same was done in pursuance of the abovementioned codified law and rules and regulations formulated by the Govt. of India and the Police Department.
● That the trial court failed to appreciate that court below is not the appellate authority of the disciplinary authority i.e. of DCP in the matter. Also the court below has neither the revisional power, but in fact, the trial court passed such orders as if the trial court is the appellate authority or having above such powers.
● That the trial court failed to appreciate that such types of orders not only discouraged the morale of police officers but at the same time a wrong message goes to the society and unscrupulous persons get encouraged. ● That the trial court failed to appreciate that after order dated 21.11.2014 was set aside by ld. ASJ, the order regarding the taking of action against Page 7 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 the IO, also stood vacated. Subsequently, not considering this fact, ld. CMM contradicted herself in her order dated 11.08.2016 and 29.08.2016, wherein she made observations regarding the action taken against the IO in compliance of her order dated 24.02.2016, whereas in fact no such action was ordered in the order dated 24.02.2016.
● That the trial court failed to appreciate that it had no jurisdiction to interfere with the quasi-judicial jurisdiction of the appellate authority. The trial court below passed such an order without providing any kind of opportunity to explain the reasons, which is against the basic principles of natural justice i.e. audi alteram partem.
● That the aforesaid observation/direction of ld. CMM is highly unwarranted, not in keeping with the legal provisions.
FINDINGS :-
7. Ld. counsel for petitioner relied upon the judgment passed in the case of Parmeshwari Devi v. State and Anr., 1977 AIR 403 SC; and Amar Nath and Others v. State of Haryana & Others, 1977 AIR 2185.
8. He submitted that petitioner herein is not a party to this litigation, which is between State and accused as well as complainant. The impugned order infringes valuable rights of the petitioner and is conclusive qua the petitioner.
Therefore, this order cannot be treated as "interlocutory order" qua petitioner. He further submitted that the impugned order was passed despite the fact that the initial directions given by ld. CMM on 20.11.2014 stood set aside in a criminal revision preferred by one of the accused persons. His further submissions were on the lines of the grounds taken in the revision petitioner and for the sake of brevity, I do not intend to repeat the same.
9. On the other hand, ld. counsel appearing for complainant submitted that the Page 8 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 impugned order is an interlocutory order, vide which only direction was given to conduct inquiry against the petitioner and this order did not decide the case or any rights of the petitioner herein. He further submitted that ld. CMM was justified in passing the impugned order, in view of the suspicious conduct of the petitioner in filing the closure report.
10. Ld. Addl. PP for State submitted that the impugned order cannot be treated as interlocutory order qua petitioner herein, because this order is conclusive in respect of the petitioner and therefore he has right to challenge the legality of this order under revisional jurisdiction. He further submitted that the directions and observations made by ld. CMM were uncalled for and were beyond her power and jurisdiction.
11. The simple issue involved in this revision proceeding is that whether ld. CMM was within her powers and jurisdiction to pass the directions and observations in the impugned orders? Another question would be that whether this order is to be treated as interlocutory order?
12. In Parmeshwari Devi v. State and Anr., 1977 AIR 403 SC, it has been held that " The code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of Sub-section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights".
Page 9 of 13 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016
13. In Amar Nath and Others v. State of Haryana & Others, 1977 AIR 2185, it has been held that "It seems to us that the term "interlocutory order" in s. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision on s. 397 of the, 1973 Code. Thus for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. Outside the purview of the revisional jurisdiction of the High Court, to submit that this petition is maintainable to invoke impugned order does not fall into the category of "interlocutory order".
14. In Mohan Lal Magan Lal Thacker v. State of Gujarat, [1968] 2 S.C.R. 685, it has been held that "An interlocutory order, through not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals."
15. If I analyze the impugned order on the parameters of interlocutory order as explained by Supreme Court in aforesaid cases, then I do find that this order is conclusive against the petitioner herein and the directions given vide these Page 10 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 orders do affect the right of the petitioner as IO of the case. Therefore, this order cannot be treated as interlocutory order qua the petitioner.
16. Now, coming to the question of legality of this order, there are two questions to be decided by this court. The first objection was raised on behalf of petitioner that the directions given vide order dated 20.11.2015 lapsed, when that order was set aside by the Sessions Court in the revision petition filed by one of the accused persons. Ld. counsel for complainant challenged this contention submitting that no such observation was made by the Sessions Court in its order dated 02.12.2015. I have gone through the order passed by Sessions Court in criminal revision no. 20/15 dated 02.12.2015. Ld. Judge did not touch the portion of impugned order therein, as far as it related to observations made against the petitioner herein. The court had dealt with the question of summoning of the accused persons and restricted its observations and findings in respect of that question. Therefore, I am in agreement with the contention of complainant as well as reasoning given by ld. CMM that her directions did not impliedly stood over-ruled by setting aside of summoning order of the accused persons.
17. However, it is to be seen whether ld. CMM was within her powers to pass the directions and observations as recorded in order dated 29.08.2016 and thereafter on 27.09.2016. While going through a final report (closure report herein), a Magistrate is empowered to either accept the report or to direct for further investigation or to take cognizance and pass summoning orders against the accused persons. While doing so, if Magistrate is confronted with such material on the record, which prima facie shows a misconduct on the part of IO, then Magistrate may take notice of the same and refer the matter to the police department. However, the Magistrate cannot empower himself Page 11 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 with the powers of disciplinary authority of the IO, so as to decide the action if any, to be taken against the IO. Rule 6 in part H Chapter 1 Volume III of the Delhi High Court Rules discourages the practice of criticism on the conduct of police and other officer, though there is no blanket ban over the same. Therefore, ld. CMM at the most could have referred to the department i.e. Delhi Police, her observations based on perusal of the closure report filed by petitioner herein. Thereafter, it was within domain of the department of police to take cognizance of the observations made by ld. CMM and to decide the further course of action to be taken against the petitioner herein. Any departmental inquiry is to be conducted within parameters of service laws and for such purposes, it is prerogative of the disciplinary authority to take a decision, as to any departmental inquiry is required or not. In the present case from the observations coupled with directions passed by ld. CMM, it does appear that she literally dictated her terms.
18. It does appear that ld. CMM literally dictated as to how the inquiry was to be conducted; who had to conduct such inquiry; who was to be heard during such inquiry and how the report was to be given. It also reflects from her observations that she had also taken a final decision regarding misconduct of the IO and wanted a punishment for him from the department. Unfortunately, all these actions were beyond the powers and jurisdiction of ld. CMM. She had no such authority to dictate her term to the department of police, so as to take a particular action against the petitioner herein. Her job was complete by referring her observations qua the petitioner, to the disciplinary authority of the petitioner and she was supposed to leave it to the discretion of the disciplinary authority to proceed further.
19. Therefore, I do find that the impugned order dated 27.09.2016 coupled with Page 12 of 13 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.224/2016 previous order dated 29.08.2016 qua the petitioner were passed beyond the jurisdictions of ld. CMM and hence, all observations and directions given qua the petitioner in aforesaid two orders are set aside. Revision petition is accordingly allowed, leaving it for the police department to take a call on the basis of observations made by ld. CMM qua the petitioner in order dated 20.11.2014, without being influenced with the further observations and remarks as well as directions given by ld. CMM in the subsequent orders.
20. TCR along with copy of order be sent back to the trial court.
21. File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA)
today on 19.11.2016 Additional Sessions Judge (Shahdara),
(This order contains 13 pages) Karkardooma Courts, Delhi
Page 13 of 13 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi