Delhi District Court
Id No. 02406R0132132015 vs State on 10 May, 2016
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Criminal Revision No. 148 of 2015
ID No. 02406R0132132015
1 Vijay Kumar Bansal,
S/o Late Sh. B. B. Bansal,
R/o E/348A, Greater Kailash - I,
New Delhi - 110048.
2 Pradeep Kumar Bansal,
S/o Late Sh. B. B. Bansal,
R/o E/348A, Greater Kailash - I,
New Delhi - 110048. .......Petitioners
Versus
State .......Respondent
Instituted on : 17.04.2015
Argued on : 10.05.2016
Decided on : 10.05.2016
O R D E R
1 Feeling aggrieved from the order dated 21.01.2015, passed by the Court of Ms. Sheetal Chaudhary Pradhan, Learned Metropolitan Magistrate10, SouthEast District, Saket Courts, New Delhi, in a case FIR No. 73/2010, u/s 186/353/332/509/34 IPC, Police Station Greater Kailash01, whereby the Ld. MM was pleased to dismiss one application u/s 256 Cr.PC filed by the petitioners for dismissal of case and was further pleased to take cognizance of the aforesaid offences against them, the present revision petition has been preferred by the petitioners challenging the aforesaid order on the following amongst other grounds: Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 1/11 That Ld. MM had failed to understand and comply with the mandate of law as envisaged u/s 256 r/w Section 2(d) "Explanation" Cr.PC, which made it mandatory for the Ld. MM to dismiss the complaint for non appearance of the complainant. It was contended further that Ld. MM had acted in utter disobedience of the specific order dated 22.08.2014 passed by Ld. ASJ and had proceeded to decide only one application dated 30.09.2014 filed by the petitioners u/s 256 Cr.PC and had not bothered to pass any orders on the other pending applications filed under same section by the petitioners on 04.10.2012, 25.04.2013, 27.06.2013, 15.01.2014, 15.04.2014, 24.05.2014 and 24.07.2014 and thus, the Ld. MM had not only erred in law, but also had violated the principles of criminal jurisprudence and without even applying her mind on the facts and circumstances of this case, the Ld. MM went ahead with passing of the impugned order.
It was contended further that Ld. MM had also failed to understand the law which required the presence of IO on each and every date of hearing as the aforesaid case was to be treated as a complaint case within the meaning of explanation as attached to Section 2(d) of Cr.PC. Ld. MM was also stated to have violated the mandate of law laid down in "State of Uttar Pradesh Vs. Singhara Singh & Ors." (AIR 1964 SC 358), "Nazir Ahmad Vs. King Emperor" (AIR 1936 PC 253[2]), "Shanti Dhawan Vs. LIC of India" (1997 IV AD (Del)467).
It was contended further that Ld. MM by reviewing the order of the Ld. Predecessor had violated the law laid down by the Hon'ble Apex Court in Adalat Prasad's Case and had passed the impugned order, which was against principles of Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 2/11 law and was therefore, liable to be set aside.
It was stated further that when the arguments on the application u/s 256 Cr.PC were heard by the Ld.MM on 30.09.2014, then it was incumbent upon her to have decided the case on the basis of the status as it existed on that date, when the IO was not present and therefore, Ld. MM should have dismissed the said case on 30.09.2014 itself. However, Ld. MM had wrongly held that IO was never issued process as directed on 04.10.2012 and 06.11.2012 or that the complainant was not even summoned on any single occasion by the Court, hence, for non appearance of the complainant in the said case, no fault could have been attributed to her conduct and thus her absence could not have been considered as a negligent act on the part of the complainant. Further, it was held that Ld. MM had again gone wrong in holding that the present matter being one with an offence u/s 186 IPC was warrant triable case and therefore, the impugned order dismissing the petitioners application u/s 256 Cr.PC r/w Section 2(d) Cr.PC as moved on their behalf holding it to be not maintainable after appearance of complainant Ms. Kalpana Bhattacharya was totally misconceived and not tenable in law. It has also been contended that Ld. MM had further committed a gross illegality in taking recognizance against the petitioners for an offence u/s 186 Cr.PC, which was already taken against them by her Ld. Predecessor on 01.12.2010, which order was never challenged and thus had attained finality, therefore, the order of recognizance on the part of Ld. MM was illegal being bared by limitation as provided u/s 468 Cr.PC and amounted to a review of the previous order dated 01.12.2010 of the same Court. Petitioners have also contended that the actions of Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 3/11 Ld. MM in firstly dismissing their application u/s 256 Cr.PC and thereafter, proceeding to take recognizance for the offence u/s 186/332/353/509/34 IPC was against all the well settled principles and canons of natural justice and fair trial. 2 Brief facts that had given rise to the filing of the present revision petition are succinctly given as under: Complainant Smt. Kalpana Bhattacharya was employed as a Music Teacher in MCD Primary School, Kailash Colony and was engaged in the Census Program conducted by Government of India and was performing her Census Duty in Greater KailashI area, when on 23.05.2010, at around 10:30 AM, the petitioners, who were residing at E/348A, Greater KailashI, New Delhi were stated to have not only obstructed her in discharge of her Government Duties, but also had assaulted her, caused injuries and also made an attempt to insult her modesty. Upon a written complaint made by the complainant in this regard, the present FIR was registered against the petitioners and charge sheet was filed against them by the IO for the aforesaid offences. However, vide order dated 01.12.2010, the Ld. Predecessor of the said Court was pleased to take cognizance against the petitioners only for an offence u/s 186 Cr.PC and they were summoned to face trial for 26.02.2011.
On two applications filed by the petitioners on 04.10.2012, u/s 468 and Section 256 Cr.PC, Sh. Amitabh Rawat, the then Ld. MM was pleased to summon the IO of this case while issuing notice of those applications to the State and vide his order dated 06.11.2012, the then Ld. MM was pleased to dismiss the said applications moved by the petitioners holding that an express cognizance taken Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 4/11 by his predecessor in interest, for an offence u/s 186 IPC, necessarily included an implied cognizance of the remaining offences as well.
The said order was challenged by the petitioners by way of revision petition bearing no. 210/2012 decided by the Court of Sh. Ajay Kumar Jain, the then Ld. ASJ, Saket, whereby Ld. Sessions Court while holding that there was no concept of any implied cognizance recognized under Cr.PC, the said revision petition was allowed and the impugned order was set aside. Thereafter, the said case was assigned to Mahila Court and Ms. Twinkle Wadhwa, the then Ld. MM, Mahila Court vide her order dated 24.05.2014 had dismissed another application move by the petitioners u/s 256 Cr.PC and while dismissing the same, the Ld. MM was further pleased to hold that the case of the petitioners was not falling within the jurisdiction of the Mahila Courts and hence, it deserved to be tried by the regular Court. This order was again challenged by the petitioners by way of revision petition bearing no. Nil, which was decided by the Court of Sh. Jitendra Mishra, the then Ld. Sessions Judge vide his order dated 22.08.2014 by way of which the Ld. ASJ was further pleased to set aside the said order and had allowed the same while holding that the order passed by the Ld. MM was non speaking and cryptic in nature and also was contradictory to the facts and law as Ld. MM while holding that her Court had no jurisdiction to try the said case had further gone ahead to dispose off the application, which was done by her without having any jurisdiction.
It shall be pertinent to point out here itself that Sh. Ajay Kumar Jain, the then Ld. ASJ03, vide his goodself's order dated 09.01.2013 passed in Criminal Revision Petition bearing No. 2010/2012 was further pleased to direct the Ld. MM Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 5/11 to pass a fresh order on cognizance and to proceed further in accordance with law. However, none of the Magistrates proceeding further with the case in the trial Court had noticed the aforesaid direction of the Ld. ASJ and it was only the Court of Ms. Sheetal Chaudhary Pradhan, who had not only considered and complied those directions, but had also taken the cognizance of remaining offences against the petitioners and feeling aggrieved from the said action of the Ld. MM, the petitioners have approached this Court for getting the same set aside by way of present revision petition.
3 I have heard Petitioner No. 1 Sh. Vijay Kumar Bansal appearing in person and also Sh. Hemendra Jailiya, Learned Counsel appearing for Petitioner No. 2 in this case.
4 Both of them have categorically argued and submitted before me that an offence u/s 186 IPC of which the cognizance was taken by the Ld. Magistrate at the first instance vide his order dated 01.12.2010, was punishable with imprisonment of either description for a maximum term of three months or with fine which could have existed upto Rs.500/ or both, hence, by applying provisions of Section 468 Cr.PC, the period of limitation for taking cognizance in the said case as was available to the Ld. MM was only upto 1 (one) year from the date of commission of offence as provided u/s 468(2)(b) r/w 469(1)(a) Cr.PC. However, Ld. MM by taking the said cognizance after a period of almost about 5 years from the date of occurrence had clearly and categorically violated the provisions of Section 468 IPC and therefore, the order perse was illegal and was liable to be set aside on this short ground alone.
Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 6/11 5 Further it has been vehemently argued and emphasized repeatedly by
the petitioners that Section 2(d) Cr.PC defines the meaning and definition of a complaint and the explanation attached to said definition itself makes it amply clear that where a final report is made by a police officer after conclusion of investigation about disclosure of commission of a noncognizable offence then, same shall be deemed deemed to be a complaint within the meaning of Section 2(d) and the police officer filing such report shall be deemed to be a complaint.
6 In the light of aforesaid explanation it has been vehemently argued and submitted by petitioner no. 1 appearing in person for himself that since the Ld. Magistrate had already taken cognizance for an offence u/s 186 IPC vide his order dated 01.12.2010, hence, that order itself had brought the present matter within preview of Section 256 Cr.PC dealing with trial of summon cases by the Ld. MM as provided under chapter XX of the Cr.PC and therefore, it was incumbent upon the IO of the case to have caused his appearance on each and every date of hearing after issuing summons to the petitioners. Further in the alternative, he had submitted that even mentioning of other Sections by the IO in the charge sheet would not have taken his case outside the preview of a commission of non cognizable offences. In this regard he had also cited the pronouncement of Hon'ble Supreme Court in AIR 1964 SC 358, wherein it was held that "the rule which applies is that where a power is given to do certain thing in a certain way, that the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden".
Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 7/11 7 However, this contention of petitioner no. 1 has not been borrowed or
supported by Ld. Counsel representing the petitioner no. 2 in this case. 8 However, I am not impressed with either of the contentions raised on behalf of the petitioners because even the explanation attached to Section 2(d) Cr.PC itself makes it clear that in order to bring a case within the preview of that definition, the final report must discloses the commission of a noncognizable offence or offences, as the case may be and it shall not apply to the cases where alongwith three substantial cognizable offences, one noncognizable offence was also found to have been committed as an ancillary offence. Therefore, I do not find any merits in the arguments of petitioner no. 1 that investigation of a single offence u/s 186 IPC conducted by the police and mentioned by it in the charge sheet would solely bring his case within the preview of explanation attached to Section 2(d) Cr.PC to the complete exclusion of remaining offences, which are not only cognizable in nature but are warrant trial as well.
9 Had the view of Petitioner No. 1 be borrowed for the sake of arguments then in all the cases involving the offence of this nature, the provision of Chapter XX of Cr.PC would have started applying and the trial of warrant cases would have lost its significance.
10 Hence, I have no hesitation in holding that the nature of offence has to be decided on the basis of charge sheet/ final report filed by the Investigating Agency after conclusion of investigation and not by order of the Court taking cognizance thereof.
Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 8/11 11 So far as finality attained by the order dated 01.12.2010 as contended
by the petitioners is concerned, I have no hesitation in holding that once the Ld. ASJ vide his order dated 09.01.2013 had directed the Ld. MM to reconsider the entire material and pass fresh orders on cognizance, then even the aforesaid order had also got washed away and had lost its legal sustainance and the so called finality attached to it. Although the period of limitation as provided under the provisions of Limitation Act for preferring a revision petition is provided as 90 days, but that does not preclude the Sessions Court to call for records of a case pending before a Magistrate at any point of time and to examine the same by virtue of powers vested in it by way of Section 397 Cr.PC. Therefore, once a Magistrate had acted in compliance of directions given to her by the Superior Courts, her action cannot be considered as a recall or review of her own order or the orders passed by her predecessor in interest which could have been stated to have been hit by the mandate of Hon'ble Apex Court in Adalat Parsad's Case.
12 So far as, the remaining contentions of the petitioners regarding disposal of only one application by Ld. MM is concerned, I have no hesitation in holding that once the Ld. MM vide her impugned order had actually complied with and given practical shape to the directions to the Ld. Revisional Court, then even the provisions of Section 468 Cr.PC dealing with the period of limitation would not have got attracted in this matter as offences u/s 332 & 509 IPC of which the cognizance was taken by the Ld. MM vide the impugned order are punishable with imprisonment of either description upto 3 (three) years and therefore, the period of limitation of three years in this case would have started running not from the date Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 9/11 of commission of offences itself, as provided in section 469(1)(a) Cr.PC rather it should have commenced to run from the date of the order dated 09.01.2013, when the Ld. Sessions Court was pleased to issue directions for reconsideration of the entire material by Ld. MM and pass fresh orders on cognizance. So if the matter being considered from that aspect, then the order of cognizance cannot be stated to have been hit by the provisions of Section 468 IPC.
13 So far as the remaining contentions of the petitioners are concerned same are essentially not based on any sound reasoning backed by any legal procedure to support the same and hence, are not sufficient enough to shake the correctness, legality and propriety of the impugned order. 14 Hence, I have no hesitation in holding that once the police itself had filed the charge sheet for offences which were cognizable in nature, then by no stretch of imagination, the present case could have fallen within the category of explanation attached to Section 2(d) Cr.PC thereby making it to fall under the category of complaint cases attracting provisions of Section 256 Cr.PC even on the date of filing of charge sheet itself. Once provisions of section 256 Cr.PC itself had not been attracted to the facts of the present case on the date of filing of the charge sheet, then I have no hesitation in holding that dismissal of one application as moved before Ld. MM would have clearly amounted to dismissal of all the previous applications filed under the same section by the petitioners and therefore, no prejudice was going to be caused to the petitioners by an alleged omission committed by the LD. MM in not dealing with or deciding all such applications filed under the same section, which otherwise also were not maintainable.
Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 10/11 15 In view of the aforesaid discussion, I have not hesitation in holding
that the present impugned order, as passed by Ld. MM is a perfectly reasoned and legally sound order, therefore, same does not call for any interference of this court in the exercise of its revisional powers and jurisdiction and the revision petition is accordingly dismissed being devoid of any merits.
16 TCR be sent back alongwith a copy of this order to the Ld. Trial Court for its perusal and necessary compliance.
17 Revision file be consigned to record room after completion of all other necessary formalities in this regard.
announced in the
open court on (LOKESH KUMAR SHARMA)
10 May, 2016 Additional Sessions Judge04 & Spl. Judge (NDPS)
th
South East, New Delhi
Vijay Kumar Bansal & Anr. v. State - CR No. 148 of 2015 11/11