Delhi District Court
Sh. Ram Mani Panday vs State on 9 October, 2013
In the court of Additional Sessions Judge03 (NE), Room no.
53, Karkardooma Courts, Delhi.
Cr. Revision no. 28/13
PS Seemapuri
Sh. Ram Mani Panday
Chief Editor Vigilance To City Crimes Satellite
Newspaper, Media Enclave, D1/D2, Dilshad Colony,
Delhi95 ... Revisionist
Versus
State
...Respondent
FIR no. 643/2006
U/s 120B/170/384/406/419/420 IPC
PS Seemapuri (Crime)
Date of filing : 29.07.2013
Date of Institution : 30.07.2013
Decision reserved on : 26.09.2013
Date of decision : 09.10.2013
JUDGMENT: 1.1 (Background) - In order to adjudicate the issue raised in revision petition, it is incumbent to give background, on the basis of material available in revision petition and the record summoned. An FIR no. RC6 (E)/EOWI/2002/DLI, under the title CBI vs Devender Singh Rawat and Others. u/s 120B r/w section 409/420/467/468/471 IPC r/w section 13 (2), 13 Cr. R. no. 28/13 1/11 (1) (d) of the Prevention of Corruption Act was registered and vide complaint no. 10/2005 it was sent for trial to the court of Special Judge (CBI matters) Patiala House Court, New Delhi an FIR no. 643/06 PS Seemapuri (Crime) was registered and chargesheet u/s 120B/170/384/406/419/420 IPC was filed in the court of Metropolitan Magistrate, Karkardooma Court, Delhi under the title State vs Kislay Panday and others. The present petitioner Sh. Ram Mani Panday is one of the accused in the said case. On 23.10.07 the petitioner filed an application before Ld. District and Sessions Judge, Tis Hazari, Delhi for transfer of this case to the court of Special Judge, Patiala House, on the ground that subject matter of this case FIR and of the regular case pending in the court of Special Judge are substantially same and in order to avoid conflicting orders or judgment, both the cases are to be tried in one court. On 15.12.07 the applicant Kislay Panday filed an application in the court of Sh. Anand Swaroop Aggarwal, (the then) Metropolitan Magistrate, KKD, Delhi (the successor court is of Ms. Ravinder Bedi, Ld. CMM, KKD, Delhi, in brief trial court) wherein the petitioner prayed to stay the proceeding of Cr. R. no. 28/13 2/11 present case FIR during the pending of transfer petition before Ld. District & Sessions Judge, Delhi. However, by order dated 23.03.2010 Ld. District & Sessions Judge, sine a die the transfer petition with liberty to get it revived, while observing in the body of order that petitioner had filed CIVIL writ petition no. 2322/2008 under the title Ram Mani Panday vs PNB Housing wherein a similar question was involved, but despite directions the petition had not filed copy of civil writ petition in the record of transfer petition. The transfer petition was consigned to record room. By order dated 12.7.13 the court of Ms. Ravinder Bedi, Ld. CMM, KKD, Delhi dismissed the Kislay Panday's application dated 01.12.2007 besides imposing the cost of Rs. 3000/ and case has been adjourned to argument on point of charge. The court observed that there is delay tactics, the subject matter of present case FIR and of case pending before the court of special judge CBI are entirely separate, secondly there is no stay by the Hon'ble High Court of Delhi and petitioner had taken various adjournments on the one pretext or the other, which result into delay. Lastly the petitioner had filed application u/s 245 Cr. R. no. 28/13 3/11 (2) Cr PC for his discharge and plea of jurisdiction was not taken at any point of time and lastly on 07.05.2013 the adjournment was sought for filing written synopsis being on the point of charge. The petitioner Ram Mani Panday, being one of the accused in the said FIR case is feeling aggrieved by impugned order, it is being assailed in the present revision petition, to summon the trial court record, to waive the cost imposed and pass other appropriate order in the larger interest of justice in favour of petitioner and against the respondent.
1.2 (Plea in revision petition) - The petition reiterates the facts as well as other proceedings, its substance has already been mentioned in the paragraph 1.1 above. There is specific provisions of sections 3 / 4 of the Prevention of Corruption Act, 1988, which talks about trial of cases by the designate court of Special Judge, who may also try the other offences either falling in the Act 1988 or under the other provisions of law and by reading the section 4 of the Code of Criminal Procedure 1973 together, it is amply clear that when specific offences are to be dealt by special Act, all the cases having same substance and involving same subject matter are to be Cr. R. no. 28/13 4/11 dealt by the special court. Otherwise, the petitioner had filed transfer of the petition, to avoid conflicting orders in the same subject matter and also in the interest of justice. The petitioner relies upon the law laid down in precedent and case law, which are reproduced hereunder:
(i) Cantonment Board Ambala vs Pyare Lal AIR 1966 Supreme Court 108 (V 53 C 26) held that a question of jurisdiction not depending upon facts to be investigated, can be allowed to be raised at any stage.
(ii) H. N. Rishbud and Inder Singh vs The State of Delhi, 1954 SC 2 GJX 0151 SC that when the attention of the court is called to such an illegality at a very early stage it would not be fair to the accused, not to obviate the prejudice that may have been caused thereby by appropriate orders, at that stage, but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat the difficult burden u/s 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice.
(iii) Mangharam vs State and others, AIR 1965 Rajasthan 210 (V 52 C 64), on the point of section 202 Cr PC and 197 Cr PC it was held that authority of the Magistrate to take cognizance and sanction u/s 197 Cr PC being a condition precedent for taking cognizance, depends on the question whether court has jurisdiction to take further proceeding in the matter.
(iv) Hira Lal Chaudhary and others vs State 1956 Allahabad 619 (AIR V 43 C 203 Oct), held it is open to the accused to Cr. R. no. 28/13 5/11 raise objection to jurisdiction at any time, when he can satisfy the court on the evidence which has come up to that time, that the court has no jurisdiction and therefore no further proceedings should be taken.
(v) Babulal vs Aditya Birla & Ors 1986 (1) Crimes 249 while referring case of Manghram (supra), held it is certainly not the law that irrespective of the availability of objections going to the root of jurisdiction, an accused in a criminal trial has to pass through the various stages of the trial.
(vi) Abhay Lalan vs Yogendra Madhav Lal 1981 Cri. L. J 1667 if the question of jurisdiction is raised the trial can be commenced only after deciding the question of jurisdiction.
(vii)State of Assam vs Prasenjit Narzari and others 1991 (1) Crimes 710 that it will be chaos in the field of Law and courts if such acts are allowed as done by the Additional Sessions Judge not being designated court.
(viii) CBI vs Braj Bhushan Prasad & Ors, 2001 Cri. L. J. Supreme Court 4683, section 4 of the Prevention of Corruption Act relates to jurisdiction of court for trial offences under that Act, and sanction 4 of the Code of Criminal Procedure also mandates that notwithstanding anything contained under the general law, the special legislation would apply to the Prevention of Corruption cases.
(ix) Pandurang vs State of Maharashtra AIR 1987 Supreme Court 535 held right or wrong, guilty or not guilty is not the question but the decision on merit of the case can be by the forum competent to decide and having jurisdiction to decide Cr. R. no. 28/13 6/11 the same.
1.3 (Arguments in support of revision petition) - During the course of arguments similar contentions have been advanced that first of all point of jurisdiction is to be determined since for want of jurisdiction, the entire proceeding or order would be nonest. It is also the mandate of law, while reading provisions of section 177 and 462 of Cr PC and petitioner is raising the plea of jurisdiction at first instance. Therefore, the impugned order is liable to be set aside.
2. (Plea of State) Whereas Sh. R. K. Pandey, Ld. Addl. PP for the State opposed the revision petition that in fact the impugned order dated 12.07.2013 is exhaustive, as it has dealt with all aspects raised before the trial court and it was also contended on behalf of State that the subject matter of present case and the case pending before Ld. Special Judge, CBI are entirely separate, therefore, there is no infirmity or illegality in the impugned order dated 12.07.2013 and the revision petition is liable to be dismissed. Otherwise, there was no stay on the proceeding by the higher court. The matter pertains to the year 2006 and court had provided opportunity to argue on point of charge, consequently there Cr. R. no. 28/13 7/11 is no reason to set aside the impugned order.
3. (Findings) - The contentions of both the sides are assessed, in the light of statutory provisions of law particularly section 177, 462 and section 4 of Code of Criminal Procedure, 1973 as well as sections 3 (1), 3 (2) and 4 of the Prevention of Corruption Act 1988. The revision petition is accompanying typed copy of record, that is why trial court record was called. Moreover, copy of application dated 01.12.2007 was also not filed with the revision petition, photocopy was filed at the stage of arguments and trial court record was also called to peruse the same. After considering the provisions of law and the record, the revision petition is dismissed for the following reasons :
(i) The chargesheet was filed u/s 170/406/420/419/384/120B IPC and cognizance was taken by the court of Metropolitan Magistrate. To say there was no chargesheet nor cognizance of offences under the provisions of the Prevention of Corruption Act.
(ii) The petitioner had filed CIVIL writ petition before Hon'ble High Court of Delhi. However, its record had not been produced. As appears, the petitioner is intending to say Cr. R. no. 28/13 8/11 that question of jurisdiction may be decided in the Civil writ petition filed before Hon'ble High Court of Delhi, whereas on the other side the petitioner is intending to get the case transferred to other court of special judge so that there may not be conflicting order or judgments; the transfer petition is lying sine a die. Whereas there is no stay on the proceedings pending before the trial court, either by directions in the Civil writ petition or in the transfer petition.
(iii) The petitioner had already filed his application u/s 245 (2) Cr PC and it is still pending for argument and decision.
(iv) Generally, question of jurisdiction is addressed to the concern court, if there are reservations, however, the petitioner is relying upon Abhay Lallan case (supra), however in the same case it was held that High Court in exercise of its inherent power u/s 482 Cr PC may interfere on the question of jurisdiction, but petitioner has not brought any fact to the knowledge of trial court or in the present proceeding that any petition u/s 482 Cr PC was filed or pending in Hon'ble High Court of Delhi,
(v) Ordinarily on the eve of transfer of case to other court, the proceedings goes continuously from the stage where the Cr. R. no. 28/13 9/11 same were pending on the eve of transfer of case. Want of jurisdiction is one aspect and to try the two matters in one court is another aspect, they are not mutually exclusive in nature.
(vi) The prayer clause of revision petition is confining to either stay of impugned order or of calling of the record or of waiving of the cost but there is no prayer for setting aside the impugned order. It has been requested orally in the arguments stage. Otherwise, there is no illegality or incorrectness in the findings given in the order.
(vii) The applicant was Kislay Panday and his application was dismissed and cost of Rs.3000/ was also imposed on him, he has not come before the court seeking setting aside order on point of cost, therefore the present petitioner Sh. Ram Mani Panday has no locus standi for setting aside of cost imposed on applicant Kislay Panday.
However, while adjudicating the contentions raised, it is not an opinion with regard to the issues pending either in transfer petition or in the civil writ petition but the reasons have been assigned because the impugned order has been assailed and contentions have been advanced in respect of Cr. R. no. 28/13 10/11 revision petition. Therefore, any expression given in the present judgment are not tantamount any finding on the other matters pending in the transfer petition or in the civil writ petition, and while remaining in judicial discipline, those issues have not been touched upon.
Accordingly, the revision petition stands disposed off. The revision file be consigned to record room. A copy of this Judgment be sent to trial court along with trial court record.
Announced in open court (Inder Jeet Singh)
Asvina 17, SAKA 1935 Additional Sessions Judge03
(NE District), Room No.53,
IInd Floor, Karkardooma Courts,
Delhi.
09.10.2013
Cr. R. no. 28/13 11/11