Delhi District Court
Sh. Onkar Sharma vs The State on 27 April, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE-4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
Cr. Revision No. : 32/14
UID NO . 02402R0207972014
In the matter of
Sh. Onkar Sharma
R/o, 170 B, Pocket-J & K,
Dilshad Garden,
Delhi. ..... Revisionist
versus
The State ..... Respondent
Final arguments heard :22.04.2015
Date of order :27.04.2015
Decision :DISMISSED
JUDGEMENT
1. The present revision petition has been filed against the order dated 27.02.2015 passed by Sh Sumeet Anand, Ld. Relieving M.M, Shahdara, KKD, Delhi, in the State case titled as State vs Onkar Sharma. Vide aforesaid order Ld.M.M. has dismissed the application moved by the petitioner (hereinafter to be referred as accused) with the title as ""APPLICATION FOR SUSPENSION OF CHARGE & RELEASE OF BAIL BONDS SINCE COGNIZABLE OFFENCE HAS BEEN DROPPED" with cost of Rs. 20000/- to be paid to DLSA.
2. The brief facts which are necessary for the adjudication of the Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 1/10 present revision petition are that the accused is facing trial allegedly for commission of offences u/s 494/496 IPC. On dated 08.01.2015 the accused moved the aforesaid application and submitted that the FIR of the present case was also registered u/s 498A IPC and at the time of framing charge, only section 495/496 IPC were found applicable and section 494 IPC was also added and section 498A IPC was dropped vide order dated 27.01.2014. It is stated that as per section 177 Cr.P.C, the court of Ld. MM does not have jurisdiction to try the present case. It is also submitted that in the revision petition, the charges u/s 495 IPC was dropped. It is further stated that the charges u/section 494 IPC can not be framed by the court of its own without fresh investigation, thus, charges u/s 494 is supposed to be dropped. Thus, accused sought the following reliefs in his application:-
(a) as per section 177 Cr.P.C, the learned trial court does not have territorial jurisdiction to try the present case.
(b) The charges u/s 494 IPC be dropped.
(c) and the charges against the accused be suspended and his bail bonds be released.
3. Vide impugned order, the said application was dismissed by Ld. MM with cost Rs. 20,000/- against which present revision petition has filed. I have heard the submissions of petitioner, Ld. Addl. P.P for the State and gone through the record of the case.
4. Two paragraphs of the order of Ld MM are very much relevant here as the same provides the complete background about the case as well as describes the conduct of the petitioner.
5. The para no. 4 & 9 of the order of learned MM reads as under:
"Before proceeding to decide this application, for the sake of convenience and to avoid shuffling of pages of the bulky record, I deem it appropriate and necessary to put in this Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 2/10 ordersheet a datewise memorandum of similar applications moved by the accused time and again through different counsels and before different presiding officers of this court, seeking the similar reliefs.
a) Application dated 08.01.2015 for SUSPENSION OF CHARGE & RELEASE OF BAIL BONDS SINCE COGNIZABLE OFFENCE HAS BEEN DROPPED. (application at hand)
b) Application dated 20.10.2014 for SUSPENSION OF CHARGE OR GRANT AN STATUS QUO TO THE JUDICIAL PROCEEDINGS.
C) Application dated 16.052014 for SUSPENSION OF ENTIRE PROCEEDINGS & GRANT OF ITS STAUS QUO
d) Application dated 05.02.2014 to REVIEW THE ORDER DATED 27.01.2014 (i.e. order on charge) and 30.01.2014 (i.e. order dismissing the application for release of FDR)
e) Application dated 27.07.2013 for MAINTAINANCE OF STATUS QUO OF THIS PROCEEDINGS TILL FINALISATION OF LEGAL STATUS OF COMPLAIINANT AS WIFE SINCE DIVORCE PETITION OF THE APPLICANT / ACCUSED AGAINST HIS FIRST WIFE IS PENDING.
f) Application dated 21.11.2012 for GRANTING STAY IN THE PROCEEDINGS SINCE THE MATTER HAS BEEN REFERRED BEFORE THE DJS, TIS HAZARI, DELHI
g) Application dated 20.09.2012 for INTERIM RELIEF BY GRANTING STATUS QUO OF THE PRESENT PRCEEDINGS
h) Application dated 19.12.2011 for GRANT OF STATUS QUO OF THE PROCEEDINGS WHERE AT ONE HAND PROSECUTION WILL BE FREE TO MOVE AFRESH UNDER INTIMATION TO ME/MY COUNSEL FOR FURTHER CONDUCT OF PROCEEDINGS AND, ON THE OTHER HAND I SHALL ALSO BE FREE TO MOVE AGAIN FOR QUASHING ETC.
i) Application dated 20.12.2010 for COMPLETION OF HEARING IN MY PART HEARD APPLICATION DATED 25.03.2010 AND DECISION ABOUT AREA JURISDICTION.
j) Application dated 22.10.2011 for DIRECTION TO RETURN THE CASE RECORD PERTAINING TO FIR NO. 180/08 U/S 495,496,415,417 AND 498-A PENDING BEFORE HONOURABLE MM Ms. SAVITRI, KARKARDOOMA, TO THE RESPONDENT. (addressed to the then Ld. Districts and Sessions Judge)
k) Application dated 14.11.2011 for DIRECTION TO RETURN BACK CASE RECORD PERTAINING TO FIR NO. 180/08 U/S 495,496,415,417 AND 498-A PENDING BEFORE HONOURABLE MM Ms. SAVITRI, KARKARDOOMA, TO THE Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 3/10 RESPONDENT. (addressed to the then Ld. ACMM)
l) Application dated 17.02.2014 on BEHALF OF THE SURETY FOR RELEASE OF SURETY AMOUNT.
m) Application dated 10.07.2014 on BEHALF OF THE UNDERSIGNED (I.E SURETY) FOR RELEASE OF BANK'S FIXED DEPOSIT.
n) Application dated 27.01.2014 for RELEASE OF BAIL BOND.
o) Application dated 07.05.2013 for RELEASE OF SURETY MONEY.
p) Application dated 10.05.2013 for RELEASE OF SURETY MONEY (BANK'S FIXED DEPOSITE RECIEPTS) BY REPLACING IT BY VEHICLE'S RC.
q) Application dated 08.05.2013 for RELEASE OF SURETY MONEY.
6. The para no. 9 of the order of Ld. MM reads as under:
"As it has been already pointed out that the accused in this case has preferred 7 revision petition from time to time, I deem it appropriate to highlight certain excerpts from some of the revision petitions which patently suggest that the relief sought by the accused in this application at hand has already been agitated by him and the same has been declined, resulting in the finality of the order passed by the Ld. Trial court, without prejudice to the rights of the accused to challenge the same before the higher court. However, the accused for reasons best known to him instead of approaching the appropriate forum opens a fresh round of already agitated applications before the trial court again and again with every change of presiding officer in the trial court.
a) The first Revision order passed by the then Ld. District & Sessions Judge ways back to 21.07.2012, wherein order dated 28.04.2012 was under the challange, whereby the application of the accused seeking a direction to return back the case record of this case to him was dismissed by the trial court.
The application was dismissed on the ground that a similar application had already been dismissed, as recorded in the order dt. 28.04.2014. Further reason was that, by way of this application the accused is basically challenging the order by virtue of which the cognizance was taken and he is seeking declining of cognizance, which is not Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 4/10 permissible.
The Ld. Revision Court accordingly dismissed the Revision for being without any merits.
b) The second revision petition passed by the then Ld. Sessions Judge ways back to 10.12.2012, wherein the accused challenged the order's dated 07.09.2012, 19.11.2012 & 26.11.2012 whereby the trial court ordered for issuance of NBW's against the accused so as to ensure his presence before the court.
The Ld. Revision Court dismissed the Revision after detailed discussion and recorded that no infirmity was found in the orders passed by the Trial court.
c) The third revision petition passed by the then Ld. District & Sessions Judge ways back to 15.01.2013, whereby the accused challenged the order dated 21.12.2012 whereby the trial court for cancellation of proceedings under Section 82 & 83 Cr.P.C imposed a cost of rs. 15,000/- upon the accused.
The Ld. Revision court dismissed the Revision Petition accordingly.
d) The fourth Revision petition was decided by the Ld. Sessions Judge vide order dated 05.07.2014. In this revision petition the accused has assailed orders dated 27.01.2014 (order on charge) and 30.01.2014 (whereby the court dismissed his application for release of bail bonds). It is pertinent to note herein that, the Ld. Revision court in addition to deciding the legality of the orders dated 27.01.2014 & 30.01.2014 also decided certain other important aspects as agitated by the accused / revisionist in his revision petition.
The following excerpts from Judgment dated 05.07.2014 are necessary and important from the point of view of decision of application at hand. Hence they are reiterated below for the sake convenience and ready referral.
Para 4 "the main argument addressed by the learned counsel for the petitioner is that the alleged marriage was solemnized at Haridwar and the complainant lived in Bihar. They never resided together with the jurisdiction of this court and therefore the court at Delhi has no jurisdiction to try the case" X X X X X X X Para 5 "Section 182 (2) Cr.P.C provides that any Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 5/10 offence punishable under section 494 or 495 IPC may be enquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage. Admittedly, the marriage between the complainant and petitioner was solemnized in Haridwar but the perusal of the FIR reveals that the first wife and the two daughters of the petitioner were staying ar Dilshad Garden and therefore by virtue of section 182(2) Cr.P.C the delhi court has jurisdiction to try the offence under section 494 & 495 IPC"
Para 7 "Another grievance of the petitioner as pert he grounds of revision is that the court has framed charges in respect of non-cognizable offences without recording the statement of witnesses. It is argued that the cognizance has become invalid, null and void".
Para 8 "After investigation the police had filed chargesheet under sections 494/495/496/415/417/498-A IPC. Sections 417, 495 & 496 are non cognizable while section 498 - A is cognozable. Section 155 (2) Cr.P.C provides that no police officer shall investigate a non-cognizable case without the order of the magistrate having power to try such case or commit the case for trial. Where a case involves one cognizable offence alongwith a non-cognizable offence, it should be treated as a cognizable offence for the purpose of sub section 2 of section 155 Cr.P.C and this is the intention of tge legislature expressly manifested in sub section 4 of section 155 (4) Cr.P.C. in case of bigamy where the offence is clubbed with other offences under section 498-A, the cognizance taken by the magistrate on the basis of the chargesheet filed by the police is a valid cognizance, inasmuch as, even in a case registered as a cognizable case, if after the investigation is found that a non-cognizable case is made out, the bar of section 155 (2) will not apply. Hence, in the present case, the cognizance taken by the Ld. MM of the offences mentioned in the charge sheet cannot be faulted. It is another matter that the court ultimately framed charges only under sections 494/ 495/496 IPC. I also find no merit with regard to the plea that the charges of non cognizable offence could not have been framed without recording of statements of complainant and other witnesses"
Para 11 "so far as order dated 30.01.2014 is concerned, i find no illegality or infirmity in the said Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 6/10 order of the Ld. MM thereby dismissing the application of the petitioner for release of his bail bonds" .
e) The Fifth Revision Petition was decided by the Ld. Sessions Judge vide order dated 27.10.2014, whereby the accused had assailed orders dated 28.04.2012 (whereby application of accused seeking direction to return back the case record of this case to him has been dismissed), 21.12.2012 (whereby a cost of Rs.
15,000/- was imposed upon the accused in lieu of cancellation of process U/s 82 &83 institutes against him) & 15.07.2014 (whereby the application for release of FDR was dismissed) Before highlighting the necessary excerpts from Judgment dated 27.10.2014, it is pertinent to mention that order dated 28.04.2012, in challenge under fifth revision, was earlier challenged in first revision petition which was dismissed. Accordingly, order dated 28.04.2012 had attained finality.
Further, order dated 21.12.2012, in challenge under fifth revision petition, was earlier challenged in third revision petition which was dismissed. Accordingly, order dated 21.12.2012 had attained finality.
Further, a similar application which was dismissed vide order dated 15.07.2014 was earlier dismissed vide order dated 30.01.2014, which was earlier challenged in fourth revision petition which was dismissed. Accordingly, order dated 30.01.2014 had attained finality. Hence, as all the ordered as challenged in the fifth revision petition had already attained finality, the fifth revision petition was per se not maintainable and accordingly dismissed.
The Learned Revision court while dismissing the revision petition of the accused, observed in para 5 of the Judgment as follows;
"It is well apparent that revisionist re-agitated the same contentions again and again, which can be termed only as a frivolous tactic on the part of the petitioner to mislead and confuse the court, so as to not allow the further prosecution of the case".
f) The sixth revision petition was decided by the Ld. Sessions Judge vide order dated 27.10.2014, whereby order dated 04.03.2014 was assailed by the accused, whereby his application to review the framing of charge against him and application for dropping of all the sections Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 7/10 levelled against him was dismissed by the trial court. The sixth revision of the accused was dismissed at the outset at the very ground of being barred by limitation. In the judgment, however, considering the conduct of the accused the Ld. Sessions court observed in para 4 that, "it is well apparent that the petitioner was resorting to multiple litigation in respect of the same order before different forums".
g) The seventh revision petition was decided by the Ld. Sessions Judge vide order dated 17.11.2014, whereby the accused had once again challenged the order dated 27.01.2014, whereby the trial court had framed charges under section 494/495/496 IPC. The revision petition was dismissed by the Ld. Sessions court with the following observations;
Para 3 "the revision petition has been filed on the ground that the trial court has no territorial jurisdiction to try the offence in question, as the alleged marriage took place in Haridwar, Uttaranchal".
Para 4 "through this revision petition once again order dated 27.01.2014 has been challenged, vide which charges were framed against the accused. From perusal of the trial court record,I find that the revisionist had already challenged this order in past in criminal Revision no. 32/14.
"It is well apparent from the trial court record that the revisionist had been filling revision petition one after the other and the purpose appears to be to stall the trial."
7. Thus, it is clear from the above referred paras that accused is habitual of moving frivolous applications. It is also clear that accused has also assailed the same order again and again by filing revision petitions. The order (dt. 27.01.2014) of framing charges u/s 494/495/496 IPC was challenged by the petitioner in a revision petition and vide order dated 05.07.2014 learned Sessions Court had upheld the order of framing charge u/s 494/496 IPC and had dropped section 495 IPC. Thus, the order of framing of charge u/s 494 IPC was challenged and upheld by Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 8/10 learned sessions court vide order dated 05.07.2014. The petitioner again challenged the same issue in another revision petition which was dismissed vide order dated 17.11.2014. Thus, it is clear that order of framing of charges u/s 494 IPC has already been upheld and this issue could not have been re- agitated before learned trial court again by the petitioner by way of his application dated 08.01.2015.
8. Thus, keeping in view of the background of the case and conduct of the accused, it is clear that despite knowing that the issues raised in the application regarding territorial jurisdiction and non maintainability of charge of section 494 IPC were already agitated before learned ASJ and had already been decided vide order dated 05.07.2014, still accused moved the said application without any rhyme and reason. If the petitioner was aggrieved of the order passed by learned ASJ, he ought to have availed appropriate remedies available to him but he had no legal right to re-agitate the same issues before the Ld. MM. It is clear from the aforesaid conduct of the accused that despite knowing that the issues which he is raising in his application have already been decided still he moved an application which was legally not maintainable and that could only be with the sole object to further delay the trial of the case. The charge sheet of this case was filed on 15.12.2008 and till date not even a single witness has been examined and it is clear from the aforementioned conduct of the accused that most of the delay occurred in this matter can only be attributed to the accused as most of the time has been consumed in deciding the various frivolous applications moved by the accused. It is clear that the accused is habitual of moving frivolous applications and the Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 9/10 application in hand is another one in the series.
9. Since the accused had filed frivolous application and delayed the trial, thus, it is held that the application of accused has been rightly dismissed by learned trial court with cost of Rs. 20,000/-. This court does not find any infirmity in the impugned order. Thus, the present revision petition is hereby dismissed. TCR be sent alongwith copy of this order. Revision file be consigned to record room.
( AJAY GUPTA ) ASJ04/Shahdara/KKD Delhi (Announced in open court on 27.04.2015) Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 10/10 Cr. Revision No. 32/14 Sh. Onkar Sharma vs State Page 11/10