Delhi District Court
Sugriv vs Murat Singh S/O Sh. Dal Chand on 29 August, 2013
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IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Sugriv
S/o Sh. Dal Chand
R/o H. No. 167
Village Chhatarpur
New Delhi ... Petitioner/Revisionist/Complainant
V E R S U S
1. Murat Singh S/o Sh. Dal Chand
2. Dal Chand S/o Sh. Tirkha Ram
3. Mrs. Krishna W/o Sh. Dal Chand
4. Ms. Archna W/o Sh. Murat Singh
All residents of H. No. 263
Tyagi Mohalla,
Village Chhatarpur, New Delhi
5. Sushi S/o Sh. Suraj Parkash
6. Jitender S/o Sh. Suraj Parkash
Both residents of H. No. 33
Village Chhatarpur
New Delhi ... Respondents/Accused
Criminal Revision No. : 27/13(original no. 12/10)
Date of institution/transfer : 17.02.2010/16.01.2013
Date of reserving order : 13.08.2013
Date of pronouncement : 29.08.2013
J U D G M E N T
This revision petition has been filed by the CR No. 27/13 Sugriv Vs. Murat Singh 2 petitioner against the order dated 28.01.2010 passed by Ld. ACMM-5, Patiala House Courts, New Delhi by which the Ld ACMM had dismissed the complaint filed by the petitioner while refusing to summons the respondents herein as accused.
2. The brief facts and background of the case are that the petitioner herein had filed a criminal complaint U/s 200 Cr.P.C. r/w Section 156(3) Cr.P.C. against the respondents for the alleged offences punishable U/s 147/148/149/308/323/427/452/506 IPC. The gist of the allegations levelled by the petitioner was that on 06.11.2006 at about 10.45 AM when he was alone at his house, all the respondents had come to his house, in furtherance of their common intention and while being armed with dandas, lathis and iron rods, in order to kill him and to take forcible possession of his house, and had inflicted injuries on his person. It was alleged in the complaint that the respondent Murat Singh had given a lathi blow in his head, the respondents Sushil and Jitender had given danda blow, on his back and chest and the respondents Dal Chand, Archna and Krishna had also given iron rod blows and kick blows to him. The petitioner further claimed in his complaint that some how he managed to run away from the spot and to save his life and later on he had also come to know that the respondents had succeeded in getting registered a false case against him vide FIR No. 777/06 at the above PS Mehrauli.
3. A perusal of the TCR reveals that after the filing of the complaint, Ld MM concerned had called for a status report from the SHO of the PS as one complaint was already CR No. 27/13 Sugriv Vs. Murat Singh 3 found to have been given to the SHO by the petitioner regarding the above incident. However, it appears that the above status report was never received and the matter was fixed then for consideration/arguments on the application U/s 156(3) Cr.P.C. of the petitioner, which was dismissed vide order dated 03.05.2007 and the matter was then fixed for recording the pre-summoning evidence of the petitioner. The petitioner had examined one Sandeep @ Sonu as CW1 and had also examined himself as CW2 in the above complaint and ultimately after hearing arguments on the point of summoning, the Ld ACMM trying the matter at the relevant time had dismissed the above complaint filed by the petitioner vide a detailed order dated 28.01.2010, which is under challenge in this revision petition.
4. Being aggrieved with the above order, the petitioner had filed this revision petition, which was earlier registered as CR No. 12/10, and vide order dated 09.07.2010 of the Ld predecessor of this court, the same was allowed and the impugned order dated 28.01.2010 passed by the Ld ACMM concerned was set aside and the petitioner was directed to appear before the Ld trial court for hearing and summoning of the accused persons in accordance with law.
5. However, the above order dated 09.07.2010 of this court was challenged by the respondents herein before the Hon' b le High Court in Criminal M.C. No. 2149/2011 and vide order dated 08.11.2012, the Hon' b le High Court had set aside the above order of this court on the ground that in view of the propositions of law laid down by the Hon'ble Supreme CR No. 27/13 Sugriv Vs. Murat Singh 4 Court in case A. N. Santhanam Vs. K. Elangovan 2011 (2) JCC 720 (SC) an opportunity of hearing should also have been given to the respondents herein in the above revision petition and had thus remanded the matter back to this court for a fresh decision. However, since the above court of the Ld predecessor of this court stand already been abolished, the matter now stands registered in this court vide CR No. 27/13.
6. I have heard the arguments advanced by Sh. L. K. Verma, Ld counsel for the petitioner and Sh. Dinesh Kumar, Ld counsel for the respondents. The entire records of the trial court as well as of this revision petition have also been perused.
7. As stated above, one cross case vide FIR No. 777/09 U/s 308/323/34 IPC was also registered regarding the same incident dated 06.11.2006 against the petitioner herein and some of his family members. Though the petitioner had filed the above criminal complaint against the respondents on 09.01.2007 and his application U/s 156(3) Cr.P.C. seeking the directions for registration of an FIR was dismissed by the Ld MM on 03.05.2007, but he had taken a long period of more than 2 years in leading his pre-summoning evidence, though he had examined on record only two witnesses, including himself.
8. After going through the pre-summoning evidence led by the petitioner in his above complaint, it is found that he had examined one Sandeep @ Sonu as CW1 on record and this witness has claimed himself to be a tenant of the petitioner CR No. 27/13 Sugriv Vs. Murat Singh 5 and an eye witness of the incident. He claims that he was present at his home on 06.11.2006 at about 10.30/10.45 AM when all the above respondents being armed with lathis, dandas and sariyas etc had entered the house of the petitioner and had given bearings to him. He also claims that the petitioner was alone in his house at that time and he and his father had come to the rescue of the petitioner, and then the petitioner fled away from the house as he had received injury on his had and blood was coming from his head and the respondents had also threatened to kill the petitioner whenever they will find him. He has also stated that the police came to the spot and arrested the respondents no. 1 to 4, but he do not know whether the respondents had received any injury or not, but the petitioner had not caused any injury to them and he had also given one affidavit Ex. CW1/A regarding the above incident.
9. CW2 is the petitioner himself examined in his above complaint and he has also stated on similar terms regarding the above incident in which all the 6 respondents being armed with the above weapons had entered into his house and had given beatings to him. He claims that the respondents had come to take possession of his house and to kill him and the respondent Murat Singh had given a lathi blow on his head and he was rescued by his neighbour Sonu from the clutches of the respondent and the respondents had also received some injuries in the said incident with their own hands. He also says that thereafter, he succeeded in running away from the spot and then got admitted himself in a private hospital situated at Noida where he was medically examined vide report CR No. 27/13 Sugriv Vs. Murat Singh 6 Ex. CW2/A and had also subsequently made complaint to the police Ex. CW2/B, got photographs of the seen of incident Ex. CW1/C1 to CW1/C10 and ultimately filed the above complaint which is Ex. CW2/D in the court. However, the above medical report/slip, police complaint and photographs, though exhibited, were never proved as per law.
10. The Ld ACMM after considering the evidence led by the petitioner in the pre-summoning stage had dismissed the above complaint vide the impugned order dated 28.01.2010 as she was of the view that the evidence was not inspiring much confidence as the entire thrust of the complainant/petitioner had been to establish that he had not caused any injuries to the respondents though he was already an accused in the above cross case and it appeared to the Ld ACMM that the petitioner wanted to create a false defence for the above cross case. The Ld ACMM was also of the view that the evidence led on record also did not suggest as to whether the door of the petitioner was open or closed at that time or whether the entry of the respondents in his house was permissive or forcible and the injuries suffered by the respondents were not explained by the petitioner.
11. The above order of the Ld MM was earlier set aside by the Ld predecessor of this court on the basis of the observations made in the judgment in case Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors AIR 1976 SC 1947 of the Hon' b le Supreme Court, wherein it was observed that at the stage of issuing process, the court of Magistrate mainly be concerned with the allegations made in the complaint or the CR No. 27/13 Sugriv Vs. Murat Singh 7 evidence led in support of the same to form a prime facie view for proceeding further against the accused and it should not enter into a detailed discussion of the merits or demerits of the case.
12. However, the Ld counsel for the respondents has argued that even in the above judgment in case of Smt. Nagawwa, Supra, it has been observed by the Hon' b le Supreme Court that for forming an opinion about the summoning of the accused, the court can take into consideration the inherent, improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. He has also argued that the contents of the complaint and the evidence led by the petitioner before the court of Ld ACMM cannot be apparently be believed and as the same lack reliability and are full of material contradictions, which make the happening of the alleged incident to be doubtful and improbable, as claimed by the petitioner.
13. As stated above, a cross case vide FIR No. 777/09 U/s 308/323/34 IPC was also registered against the petitioner herein and some of his family members regarding the same incident. However, from the contents of the complaint and the evidence led by the petitioner, the injuries suffered by the respondents herein, which are the subject matter of the above cross case, had remained unexplained. In the complaint it was mentioned by the petitioner that when the accused persons had entered into his house in furtherance of their common object and had started giving beatings to him, then CR No. 27/13 Sugriv Vs. Murat Singh 8 due to the activeness of the petitioner and as a right of his private defence and to save his property, he had also given some beatings to the respondents. However, when the petitioner had stepped into the witness box, he had only stated that the respondents had received some injuries in the said incident with their own hands. He has also stated that he was alone in his house at that time and it just cannot be believed that 6 persons armed with weapons are entering into his house with an intent to kill him and instead of inflicting any material injuries on his person, they themselves will cause or suffer injuries to their associates by the above weapons. Apart from the above, there is also the statement of CW1, who says that he had not seen any injuries on the person of the respondents. This fact comes to the root of the case and makes the contents of the complaint and the entire evidence led by the petitioner herein to be doubtful.
14. Again, it is mentioned in the complaint that the respondent Murat Singh had given a lathi blow on the head of the complainant/petitioner and the respondents Sushil and Jitender had given danda blows on the back and chest of the complainant and the respondents Dal Chand, Archna and Ms. Krishna had given the iron rod blows and kick blows to him, but when he had examined himself in this court, the petitioner had only stated that the respondent Murat Singh had given a lathi blow on his head and he is silent regarding the specific weapons with which the other respondents were armed or regarding the inflicting of any blows on his person by the other respondents. Further, according to CW1 Sandeep CR No. 27/13 Sugriv Vs. Murat Singh 9 he was a tenant of the petitioner, whereas the petitioner/CW2 has stated that CW1 was his neighbour.
15. Again, the conduct of the petitioner is also to be seen by the court in finding truth in his allegations and case. It is mentioned in the complaint as well as stated by both the above CWs that the petitioner had managed away to run away from the spot and it has also come on record in the evidence that the respondents no. 1 to 4 were arrested by the police from the spot itself. This in itself is also strange as it does not sound any reason as to why the respondents no. 1 to 4 will chose to remain present at the spot though they were guilty of tress-passing into the house of the petitioner being armed with weapons and there is also any justification as to why the petitioner will run away to a distant place in Noida and will get himself medically examined in Noida, instead of approaching the local police or the hospital authorities immediately.
16. The above discrepancies and contradictions in the complaint and the evidence led in the complaint are coming apparently for consideration and these are not something which require any further material to be taken into consideration. It is well settled that summoning of an accused in a criminal case is not a mere formality and the court is not bound to believe and to act upon whatever evidence may be produced by the complainant and the court is will competent to test the veracity of the contents of the complaint and the evidence led on record and to apply its mind to find out if there are sufficient grounds for CR No. 27/13 Sugriv Vs. Murat Singh 10 proceeding further in the matter against the accused persons or not. Ld counsel for the respondents has rightly referred to the judgment of the Hon'ble Supreme Court in case of Pepsi Food Ltd Vs. Special Judicial Magistrate (1998) 5 SCC 749, wherein the following observations were made " summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have a criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time or recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused " . The above propositions are also stated to have been followed by the Hon' b le Supreme Court in some other cases like Keki Hormusji Gharda & Ors V. Mehervan Rustom Irani (2009) (3) JCC 2086 and M. N. Ojha & Ors Vs. Alok Kumar Srivastav & Anr (2009) (4) JCC 2575.
CR No. 27/13 Sugriv Vs. Murat Singh
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17. Besides the above, the photocopies of the true
copies of the of the judgment of the Ld Sessions Court dated 03.08.2011 and order on sentence dated 06.08.2011 in the above cross case SC No. 182/08, FIR No. 777/06 and the judgment dated 01.05.2012 of Hon' b le High Court in Criminal Appeal No. 1121/2011 titled Sugriv Tyagi Vs. State, arising out of the above decision, have also filed on record by Ld counsel for the respondents which show that the petitioner Sugriv herein, his wife Usha Devi, his daughter Mona Tyagi, his son Amit Tyagi and one Ravi Dutt Tyagi were put on trial in the above cross case and out of them, accused Amit Tyagi was tried as a juvenile and the accused Mona Tyagi and Ravi Dutt Tyagi were acquitted giving benefit of doubt, but the accused/petitioner Sugriv and his wife Usha Devi were convicted in the above case. Though the wife of the accused was given the benefit of probation of good conduct, but the petitioner herein was sentenced to RI for a period of 3 years and a fine of Rs. 5000/-, in default SI for 6 months for offence U/s 325 IPC, vide the above judgment dated 03.08.2011 and order on sentence dated 06.08.2011 of Ld ASJ. Though the petitioner had preferred the above appeal before the Hon'ble High Court against the above judgment, but in appeal, he had not challenged his conviction on merits and hence, his conviction was upheld and his sentence was reduced to the period of imprisonment already undergone by him and some fine, vide the above judgment dated 01.05.2012 of the Hon'ble High Court.
18. Thus it has already been established up-to the Hon' b le High Court now that the incident has not taken place CR No. 27/13 Sugriv Vs. Murat Singh 12 in the way in which the petitioner is claiming it to have taken place and rather by not challenging his conviction, he had accepted the other part of the story as put forward in the above cross case. Since the above judgments are the admitted documents and are record of judicial proceedings, though subsequent in nature, but the court can certainly consider these documents on record at this stage. In the above cross case, the respondents no. 1 to 4 had all suffered injuries and the injuries suffered by respondent Krishna Devi were grevious in nature. The respondents no. 5 and 6 were the eye witnesses of the above incident and hence the Ld ACMM was right in observing that the sole purpose of petitioner in filing of the above complaint was to create a false defence. Even otherwise, the evidence led by the petitioner and the contents of complaint do not make out a case of summoning of the respondents as accused for the alleged offences.
19. In view of the above discussion, the impugned order dated 28.01.2010 passed by the Ld ACMM concerned is being upheld and this revision petition is dismissed. Let a copy of this judgment be sent to the Ld ACMM concerned. TCR be also returned back. File of the revision petition be consigned to record room.
Announced in the open
court on 29.08.2013 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South District
Saket Court Complex
New Delhi
CR No. 27/13 Sugriv Vs. Murat Singh