Delhi District Court
Ca No.01/14 (Vijay Kumar Bansal vs . State) on 29 April, 2014
CA No.01/14 (Vijay Kumar Bansal Vs. State)
IN THE COURT OF SH. DINESH KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE (SOUTH)
SAKET COURTS : NEW DELHI
CA No.01/14
Unique Case ID No. : 02406R0203972013
Vijay Kumar Bansal
S/o Late Sh. BB Bansal
R/o E/348A, Greater Kailash - I,
New Delhi - 110 048.
..... Appellant
VERSUS
State of NCT of Delhi
Through Ld. A.P.P.
...... Respondent
Appeal u/S.341 Cr.P.C. for setting aside the
order passed by Ld. MM dated 22.04.2013.
Date of Institution : 29.05.2013
Received by way of Transfer : 07.04.2014
Arguments heard on : 15.04.2014
Date of Decision : 29.04.2014
Page 1 of 8
CA No.01/14 (Vijay Kumar Bansal Vs. State)
J U D G M E N T
1.0 Vide this order, I propose to dispose of an appeal u/S.341 Cr.P.C. for setting aside the impuged order dated 22.04.2013 vide which Ld. MM has dismissed the application u/S.340 Cr.P.C. The appellant is an accused in case FIR No.144/94 PS Greater Kailash - I u/Ss.341/342/34 IPC. It has been submitted that he was falsely implicated in the above said FIR by the complainant in collusion with Sh. KS Bedi, the then SHO, PS Greater Kailash
- I, IO ASI Lal Chand Yadav and SI Sunil Kumar the then posted in PS Greater Kailash - I. 2.0 The plea of the appellant is that infact he was beaten up by Sh. Raj Kumar Bansal, Smt. Kanti Devi Bansal, Km. Neelam Bansal, on the fateful date on account of which he suffered several injuries and was medically examined at AIIMS. The appellant alongwith Pradeep Kumar Bansal and Neeru Bansal had given a complaint against the aforesaid persons at PS Greater Kailash - I on 17.06.94 itself. Ms. Neeru Bansal was also examined at AIIMS on the same day at about 6:27pm. However, the police officials falsely implicated the appellant in collusion with the above said persons. After filing of the chargesheet in case FIR No.144/94, the appellant filed a complaint dated 26.06.95 u/S.340 Cr.P.C. on 27.06.95 against Sh. KS Bedi, ASI Lal Chand Yadav and SI Sunil Kumar with a request to hold an inquiry and to initiate Page 2 of 8 CA No.01/14 (Vijay Kumar Bansal Vs. State) action against the police officials u/S.200/201/202/211/217/218/120 B/182/166/167/194/195 IPC.
The appellant submitted that Ld. Trial Court had called for the reply of the police officials vide order dated 04.08.95 and the respondents/ police officials KS Bedi, the then SHO and SI Sunil Kumar filed the replies. However, ASI Lal Chand Yadav did not file any reply before the Ld. Trial court. The appellant submitted that Sh. KS Bedi and SI Sunil Kumar in their replies admitted that appellant had sustained multiple injuries and he had also filed a complaint against Raj Kumar Bansal, Smt. Kanti Devi Bansal and Km. Neelam Bansal. The police officials in their replies also admitted that Smt. Neeru Bansal also sustained injuries. The plea of the appellant is that reply of the police officials clearly reveals that appellant has been falsely implicated. The appellant has submitted that once the inquiry has been initiated and reply of two of the respondents have come on record, Ld. Trial Court could not have passed the impugned order.
2.1 The order of the Ld. Trial Court has been assailed on the ground that it amounts to review of its own order, which is not permissible in law. The appellant submitted that ASI Lal Chand Yadav in his reply to the application u/S.340 Cr.P.C. in FIR No.146/94 had denied that he was the investigating officer and also denied that SI Sunil Kumar had handed over to him the said complaint dated 17.06.94 of Vijay Kumar Bansal. It has been submitted that Page 3 of 8 CA No.01/14 (Vijay Kumar Bansal Vs. State) Ld. MM has wrongly relied upon Iqbal Singh Marwah Vs. Meenakshi Marwah, 2005 AIR SC 2119. The appellant submitted that police officials have filed the false documents to illegally frame him in the present case. 3.0 During the course of hearing, the appellant has also moved an application for making complaint to the appropriate authorities regarding important documents missing from the trial court record. It has been submitted that he had applied for certified copy of reply of SI Sunil Kumar dated 17.11.95 and of SHO KS Bedi dated 10.05.96, and on such application Ahlmad has reported that these documents were not available on the record. Therefore, complaint be made to the appropriate authorities including the Hon'ble High Court of Delhi, Ld. District & Sessions Judge, the police authorities, CBI and proceedings may initiated for loss of relevant documents.
4.0 Sh. JK Jha, Ld. counsel for the appellant submitted that the Ld. Trial Court wrongly passed the impugned order relying upon the judgment of Iqbal Singh Marwah's case (supra).
The appellant argued vehemently that he has been illegally framed in the present case FIR No.144/94 and police officials created the false Page 4 of 8 CA No.01/14 (Vijay Kumar Bansal Vs. State) documents and therefore, inquiry u/S.340 Cr.P.C. be conducted and the proper complaint may be made against them.
5.0 At the outset, I may mention that as far as the application made by the appellant for initiating action against court officials on the ground that reply of the police officials SHO KS Bedi dated 10.05.96 and SI Sunil Kumar dated 17.11.95 are missing, is concerned, the same has been made without making any serious inquiry. It is also worth to note that officials of the concerned court have also made a report without going through the record. On going through the record, I have found reply of SI Sunil Kumar dated 17.11.95 and reply of SHO KS Bedi dated 10.05.96 are very much available on the record. It shows that the court officials have acted mechanically and have not gone through the record. The appellant also seems to be trying to blow the matter out of proportion. Anyway, I have perused both the replies. Let these replies be placed alongwith application u/S.340 Cr.P.C. so that in future no such confusion may take place and court officials are also directed to be careful while making report about the availability of the documents. I have also found that on the record, the judgments, filed by Sh. JK Jha, Advocate, relating to S.340 Cr.P.C. are also very much available. Page 5 of 8
CA No.01/14 (Vijay Kumar Bansal Vs. State) 5.1 Section 340 Cr.P.C. falls in Chapter XXVI under the heading "PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE". The bare perusal of S.340 Cr.P.C. would indicate that the court is not bound to make a complaint regarding commission of an offence referred to u/S.195(1)(b). The bare perusal of the provision would make it clear that such making of complaint should be expedient in the interest of justice. The provision also reveals that before filing of the complaint, the court may hold a preliminary inquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in S.195(1)(b). It is pertinent to mention here that expediency should be judged by the court by weighing not the magnitude of injury suffered by the person, but the core issue should be the effect or impact of alleged commission of offence as upon administration of justice. 5.2 In the present case, Ld. MM seems to have passed the order in haste relying upon the judgment of Iqbal Singh Marwah's case (supra). The judgment of Iqbal Singh Marwah's case (supra) is particularly upon the point that the bar u/S.195(1)(b)(ii) would be attracted only when the offence enumerated in S.195(1)(b)(ii) have been committed with respect to a documents after it has been produced or given in evidence in proceedings in any court i.e. during the time when the document was in custodia legis. It was Page 6 of 8 CA No.01/14 (Vijay Kumar Bansal Vs. State) further held that after such offence is committed prior to its production or giving in evidence in the court, no complaint by court would be necessary and a private complaint would be maintainable.
5.3 The complainant in the present case is primarily seeking action against police officials u/S.211 IPC which is covered u/S.195(1)(b)(i) Cr.P.C. It is also worth to note that Ld. MM seems to have called the reply of the respondents and initiated some kind of preliminary inquiry as reflected vide order dated 04.08.95 in the main file pertaining to chargesheet FIR No.144/94. It seems that the confusion arose on account of the fact that after order of separation of the application u/S.340 Cr.P.C. from the main file, the orders concerning the application u/S.340 Cr.P.C. were not placed in the miscellaneous file. I consider that the impugned order dated 22.04.2013 cannot withstand the judicial scrutiny. Ld. MM could not have dismissed the application u/S.340 Cr.P.C. merely relying upon Iqbal Singh Marwah's Judgment without understanding it's applicability. The Ld. MM seems to have adopted shortcut, which is not permitted and liable to be set aside.
The case is remanded back to the court of Ld. MM. Ld. MM is required to form an opinion that whether inquiry in the present case is expedient in the interest of justice and proceed as per law. Ld. Trial Court is also directed to ensure that the reply of SHO KS Bedi dated 10.05.96 and SI Page 7 of 8 CA No.01/14 (Vijay Kumar Bansal Vs. State) Sunil Kumar dated 17.11.95 is placed alongwith application u/S.340 Cr.P.C. 6.0 A copy of this judgment along with the TCR, be sent back to the Ld. Trial Court.
Appeal file be consigned to record room.
Announced in the Open Court (Dinesh Kumar Sharma)
Today on 29.04.2014 ASJ(South) / Saket Courts/ ND
Page 8 of 8
CA No.01/14 (Vijay Kumar Bansal Vs. State)
CA No.01/14
Vijay Kumar Bansal Vs. State
29.04.2014
Present : Appellant in person
Sh. SK Kain, Ld. Addl. PP for State
Vide separately announced judgment, the order passed by Ld. MM dated 22.04.2013 is set aside. The case is remanded back to Ld. MM.
A copy of this judgment along with the TCR, be sent back to the Ld. Trial Court.
Appeal file be consigned to record room.
(Dinesh Kumar Sharma) Addl. Sessions Judge (South) / 29.04.2014 Page 9 of 8