Delhi District Court
Brig. (Retd.) Sharven Kumar Mohan vs State Of Nct Of Delhi on 27 October, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Criminal Revision
CNR No. DLSW010014052017
Registration No. 66/17
Brig. (Retd.) Sharven Kumar Mohan
S/o Late Sh. R.K.Mohan
R/o 1501, Sheuth CGHS, Plot No.6,
Sector 19B, Dwarka, New Delhi .....Revisionist
Versus
State of NCT of Delhi .....Respondent
Revision under section 397 read with section 399 Cr.P.C.
for setting aside the order dated 16.01.2017 passed
by Sh. Ankur Jain, ACMM, Dwarka, New Delhi.
Date of Institution : 09.02.2017
Arguments heard on : 22.09.2018
Date of Judgment : 27.10.2018
JUDGMENT
1. Revision under section 397 read with section 399 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been preferred by revisionist/complainant against impugned order dated 16.01.2017 CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 1 of 12 passed by Trial Court of Sh. Ankur Jain, ACMM(SW)/ Dwarka Courts, New Delhi, in Comp. Case No. 98/15 titled as "Brig.(Retd) Sharven Kumar Mohan Vs. Smt. Saroj Jain/Sweety" whereby Ld. Trial Court has dismissed the application for leave to amend the complaint, moved by the complainant.
2. I have heard the revisionist through Sh. P.S.Rana, Learned counsel and respondent through Sh. Pramod Kumar, Ld. Addl. PP for the State. I have perused the record of Revision and of Trial Court. I have given my thoughtful consideration to the contentions put forth.
3. Revision petition rests upon the premise that the impugned order is bad in law as well as on facts; even in order dated 01.12.2015, Annexure D, the Ld. ACMM has failed to appreciate the basic fact that the complaint u/s 156(3) and 200 Cr.P.C. was made by the revisionist on 08.10.2015 and in retaliation a false complaint by the accused was made on 13.10.2015 after knowing the complaint made by the revisionist; Ld. Trial Court has failed to understand the facts of the case and without appreciating the facts and dates of events passed a vague order that CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 2 of 12 general vague statements have been made in the application ; having committed that glaring mistake in his order dated 01.12.2015, Ld. ACMM appears to be resistant to correct the glaring mistake committed by him in taking any further action on the complaint made by the revisionist; Ld. ACMM refused to accept the statements of witnesses in the form of affidavits when given to him and returned the same and wanted to examine the witnesses personally without the assistance of the advocate of the revisionist/complainant; Ld. ACMM was presented the recordings of accused with CW1 by CW1 in a DVD in which it is evident that the accused had the full knowledge of the complaint made by the revisionist before the ACMM on 08.10.2015 and accused filed a false case against the revisionist thereafter, as a counter blast in retaliation on some ones saying, statement to which effect was made by the accused before the court of Ld. ASJ, copy of the order dated 16.12.2015 is annexed as Annexure E. It is further averred that Ld. ACMM has failed to appreciate the corroboration of the witnesses examined; Ld. ACMM has grossly erred in making observations on the facts placed before him and law laid down by the Apex Court even after CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 3 of 12 reading and placing the judgment before him and has expressed his bias and disinterest and passed the orders without going into the depth of the laid down law, complaint and amended complaint made by the revisionist; Ld. ACMM has grossly erred in appreciating the term cognizance. It is further averred that the order dated 16.01.2017 has caused flagrant miscarriage of justice and if the amended complaint is not accepted, there shall be multiple proceedings on the same facts involving same witnesses and documents and will further cause uncalled for harassment to the revisionist, who is already suffering by acts of the accused persons and it is prayed that the impugned order be set aside.
4. The revisionist/complainant had preferred complaint titled Brig. (Retd.) Sharven Kumar Mohan Vs Smt. Saroj Jain/Sweety complaining offences under sections 120B/384/388/420/441/451 and 506 IPC along with application under section 156 (3) Cr.P.C. in October2015. After calling for status report, hearing the counsel for complainant and perusal of record, the Magisterial Court had dismissed the application under section 156 (3) Cr.P.C. vide speaking order dated 01.12.2015. Revisionist/complainant had not availed any remedy CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 4 of 12 against said order dated 01.12.2015. Thereafter, matter was fixed by the Magisterial Trial Court for leading of presummoning evidence. After availing several opportunities for leading presummoning evidence, the complainant through counsel examined four complainant witnesses namely CW1 Sunita Sharma, CW2 Seema Sharma, CW3 Ram Karan Yadav and CW4 Rajender Singh Chauhan in presummoning evidence. Thereafter, on 12.01.2017, an application seeking leave to amend the complaint was filed by the complainant through counsel which was dismissed vide impugned order of date 16.01.2017.
5. It is the submissions of Ld. Counsel for revisionist/complainant that in view of the law laid in S. R. Sukumar Vs S. Sunaad Raghuram, (2015) 9 SCC 609, the complainant is entitled to amend the complaint with the purposed amendment. Also is the argument of the Ld. Counsel for revisionist/complainant that in view of the law laid in case of Rajesh Dubey Vs State & Others, W.P. (Crl.) 533/2012 & Crl. M.A. 4340/2012 decided on 13.09.2013 by Hon'ble Ms. Justice Sunita Gupta of Delhi High Court there is no need for CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 5 of 12 arraigning the respondent/accused or to hear respondent/accused in this revision petition. Also has been argued by the Ld. Counsel for revisionist/complainant that in this case the cognizance has not been taken by the Magisterial Court.
6. In the case of Tula Ram & Others Vs. Kishore Singh (1977) 4 SCC 459, the Apex Court interalia held as follows:
"The expression "taking cognizance" in Section 190 of the Code of Criminal Procedure, 1973 merely means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceedings he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
In case the Magistrate after considering the CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 6 of 12 statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
While Chapter 14 (under which Section 190 falls) deals with post cognizance stage, Chapter 12 (under which Section 156 falls), so far as the Magistrate is concerned, deals with pre cognizance stage. Section 190 and 156(3) are mutually exclusive and work in totally different spheres. A Magistrate can order investigation under Section 156 (3) only at the pre cognizance stage, that is to say before taking cognizance under Section 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 207 of the Code.
7. In the case of CREF Finance Ltd. Vs Shree Shanthi Homes (P) Ltd. & Another, (2005) 7 SCC 467, the Supreme Court interalia held that in case the Magistrate does not refuses to take cognizance and return the complaint to the complainant but proceeds to examine the complainant and/or to examine such other evidence as complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry.
8. In the case of Raghu Raj Singh Rousha Vs Shivam Sundaram Promoters Private Limited and Another (2009), 2 SCC 363, CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 7 of 12 after the application under section 156 (3) Cr.P.C. was dismissed by Magisterial Court then in the revision filed before the High Court, the said order was set aside with a direction to the Metropolitan Magistrate to examine the matter afresh after calling for a report from police authorities whereby the police authorities were directed to hold preliminary inquiry on the basis of complaint made by the petitioner/complainant and to submit report to the Ld. Magistrate within 3 weeks. In the case of Rajesh Dubey (Supra), the facts were held to be different from case of Raghu Raj Singh Rousha (Supra) as in the case of Rajesh Dubey (Supra), the Ld. Additional Sessions Judge vide impugned order dated 27.02.2012 had not given any directions to the police to investigate the matter but had simply remanded back the matter to the Ld. Metropolitan Magistrate for reconsideration of the application under section 156 (3) Cr.P.C. and to pass orders afresh and the Ld. Metropolitan Magistrate, while deciding afresh may decide the matter as deemed appropriate. Also was held in the case of Rajesh Dubey (Supra) that the petitioner therein cannot possibly imagine what order the Ld. Metropolitan Magistrate was going to be pass and such CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 8 of 12 order cannot be said to be prejudicial to the petitioner under the circumstances therein as even no direction was given to police to investigate the matter or register the case whereby the only direction was to reconsider the application under section 156 (3) Cr.P.C. of the Code on the basis of material already available on record. Accordingly the pronouncements in case of Rajesh Dubey (Supra) are of no help to revisionist.
9. In the case of Raghu Raj Singh Rousha (Supra) it had been interalia held that the Magistrate has a few options in regard to exercise of his jurisdiction. He may take cognizance of the offence and issue summons. He may also postpone the issue of process so as to satisfy himself that the allegations made in the complaint petition are prima facie correct and either inquire into the case himself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purpose of deciding as to whether or not there is sufficient ground for proceeding. If there is judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to take further action, then it means that Magistrate has taken cognizance. CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 9 of 12 In the case in hand, after hearing the complainant/counsel and perusing the record, the Metropolitan Magistrate had dismissed the application under section 156(3) Cr.P.C. vide speaking order dated 01.12.2015 which was not assailed by the revisionist/complainant and the Metropolitan Magistrate had fixed the matter for leading of pre summoning evidence whereby complainant through counsel on various dates of hearing later had examined four complainant witnesses. In this fact of the matter, relying upon the law laid in the case of Tula Ram (Supra), CREF Finance Limited (Supra) and Raghu Raj Singh Rousha (Supra) it can be said that the Magistrate had taken cognizance and it cannot be said that the Magistrate had not taken cognizance. Pronouncements in case of S R Sukumar (Supra) are of no help to revisionist as the facts and circumstances of said case are at variance and entirely different and distinguishable to facts and circumstances of the case in hand.
10. In the proposed amended complaint, the revisionist/complainant had wished not only the amendment under the CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 10 of 12 garb of subsequent events but also wanted to arraign Smt. Santosh Arora, Shri I. J. S. Mehra and Shri Rajneesh Arora as accused no. 2, 3 and 4 respectively, which persons were not arraigned originally as accused in original complaint. It had also been submissions of Ld. Counsel for complainant that there was no occasion to arraign these persons Smt. Santosh Arora, Shri I. J. S. Mehra and Shri Rajneesh Arora as respondents in this revision petition along with original respondents/accused Saroj Jain/Sweety as cognizance had not been taken by the Court. The cognizance had been taken by the Court of Metropolitan Magistrate. It also cannot be presumed that complainant was not aware of the version of his witnesses examined in pre summoning evidence as CW1 to CW4 respectively to appropriately draft and prepare original complaint arraying not 1 but 4 accused as aforesaid. The complainant cannot be permitted to change the facts averred in the original complaint as the complainant was well aware about the evidence to be led by him. In the impugned order it had been held by the Magisterial Court that in the application for amending the complaint nowhere it has been stated as to what specific facts have CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 11 of 12 come within the knowledge of the complainant/revisionist which were not earlier known to complainant.
11. I find no illegality, no impropriety, no infirmity in the impugned order to set aside it or to permit amending of complaint in the fact of the matter. The revision petition is not maintainable. Revision petition is dismissed.
12. Copy of this order with TCR be sent to concerned Magisterial Court.
13. File of this revision petition be consigned to record room after Digitally signed digitization of records. GURVINDER by GURVINDER PAL SINGH PAL SINGH Date: 2018.10.27 10:49:14 +0530 Announced in the open court (GURVINDER PAL SINGH) th on 27 October, 2018 ASJ 05/SW/DWARKA COURTS NEW DELHI (pb) CNR No. DLSW010014052017 CR No 66/17 Brig (Retd.) Sharven Kumar Mohan Vs. State Page 12 of 12