Delhi District Court
Ajay Sarin And Anr vs State Government Of Nct Of Delhi on 18 March, 2024
IN THE COURT OF SH. LOVLEEN,
ADDITIONAL SESSIONS JUDGE-03 (SOUTH EAST),
SAKET COURTS, NEW DELHI
DLSE010097202023
CRL. REVISION No. 567/2023
1. AJAY SARIN
S/o Late Sh. Harish Chander Sarin
R/o 200, Midwood Way Colonia,
New Jersey, USA 07067-3118
2. ANITA KHANNA
R/o 200, Midwood Way Colonia,
New Jersey, USA 07067-3118
....Revisionist
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
Through
Chief Prosecutor, South East Distt.
2. PRERNA SHARMA
W/o Bharat Sethi
R/o C-207, Ground Floor,
Greater Kailash Part-I
New Delhi
.....Respondents
Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 1 of 8
Date of institution : 20.09.2023
Date of Reserving judgment : 19.02.2024
Date of Pronouncement : 18.03.2024
Decision : Disposed of.
JUDGMENT
1. This is a criminal revision petition u/s 397 Cr.PC filed against order dated 04.06.2019 passed by the court of Ld. Metropolitan Magistrate-4, SED in Criminal Complaint No.10545/2017 titled Prerna Sharma Vs. Ajay Sarin & Ors. whereby the revisionists were summoned to face trial for the commission of offence punishable u/s 499/500 IPC at the instance of respondent No. 2 herein. The petition is accompanied by an application for condonation of delay.
2. The revisionists have challenged the impugned order citing multiple grounds, factual as well as legal. Revisionists object to their summoning by stating that the facts demonstrated by the respondent before the Ld. Trial Court, leading to the passing of impugned order, are an incomplete and misleading representation of the factual picture. The legal ground cited by the revisionists is that the Ld. Trial Court failed to hold inquiry u/s 202 Cr.P.C. before ordering the summoning of the revisionists and that service of process was not effected upon the revisionists in terms of the sovereign international treaties. The revisionists have also argued that being ordinary residents of and citizens of United States of America they were not aware of the Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 2 of 8 proceedings initiated by the respondents against them in the Trial Court. As such, a prayer has been made to entertain the present revision petition after condoning delay and set aside the impugned order. The revisionists have filed multiple written submissions on record. Revisionists also relies upon the following judgments:
Sunil Tyagi V. Govt. of NCT of Delhi and Anr. 2021 SCC Online Del 3597; Microsoft Corporation and Anr. Vs. Tech Hearcles OPC Pvt. Ltd. & Ors. CS (Comm.) No. 276 of 2021 Order dated 18.02.2022; Microsoft Corporation and Anr. VS. Tech Hearacles OPC Pvt. Ltd. & Ors. CS (Comm.) No. 276 of 2021 Order dated 14.03.2022; Binay Kumar Singh V. British Broadcasting Corporation & Ors. Judgment dated 07.07.2023; Metro Ortem Ltd. Vs. Maharashtra State Road Transport Corporation 2021 SCC Online Del. 3597 ; Bashir Ulla Khan Vs. Mohd. Rafi and Anr. (Madhy Pradesh High Court 18.05.2006). Adalat Prasad Vs. Rooplal Jindal & Ors. 25.08.2004 Subramanium Sethuraman Vs. State of Maharashtra & Anr. 17.09.2004 (Supreme Court of India);
Vijay Dhanuka and others Vs. Najima Mamtaz (2014) 14 SCC 638; Abhijeet Pawar Vs. Hemant Madhukar Nimbalkar and another (2017) 3 SCC 528 ; (2016) 12 SCC 608 State of Rajasthan V. Mohinuddin Jana Alvi ; AIR 1987 SC 1353 MANU/SC/0460/1987 Collector, Land Acquisition V. Mst. Kariji & Ors.; 2001 SCC Online Bom 1095: (2002( 2 Mah LJ 65 : 2002 Cri LJ 1884; Ram Krishna Jairam Damdar V. Savita; (2008) 14 SCC 582 State (NCT of Delhi) V. Ahmed Jaan; (1994) 1 SCC 1 S.P. Chengal Varya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs.
Premco Rail Engineer Ltd. & Ors. V. State and Anr. 2023 SCC Online Del 6511 dated 27.07.2023 Delhi High Court. Bilkis Yakub Rasool Vs. Union of India and others 2024 SCC Online SC 25 Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 3 of 8
3. The respondent No.2 has vehemently opposed the prayer of revisionists on all the above aspects. It is argued on behalf of respondent No.2 the revisionists have been correctly summoned by Ld. Trial Court vide the impugned order. It is further argued that the revisionists were deliberately avoiding service. In fact, it is submitted that the revisionists are owners of a property situated within the jurisdiction of the Ld. Trial Court and hence, no inquiry u/s 202 Cr.P.C. was required to be undertaken by the Ld. Trial Court before passing the impugned order. Respondent No.2 relies upon the following judgments:-
Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Ors. Civil Appeal No. 8183-8184 of 2013; Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. Civl Appeal No. 2474/2475 of 2012; Mitender Pal Singh Solanki Vs. Surender Singh and Ors. RFA 861/2016; Kumar and Ors. Vs. Karnataka Industrial Corporation Bank Ltd. And Ors. Crl. Appeal No. 2049/2066 of 2012; Commissioner of Income Tax -4 Vs. Historic Infracon ITA 409/2017; CJ Paul and Others Vs. District collector and Others Civil Appeal No. 4968 of 2009; Adalat Prasad Vs. Roop Lal Jindal Crl Appeal 91 of 2002; Subramanium Sethuraman Vs. State of Maharashtra Crl. Appeal No. 1253 of 2002; Apex Traders Vs. Satnam Sales Corporatoin Crl. MC 2425/2010; Leena Vivek Masal Vs. State of Maharashtra and Ors. Crl. Appeal No. 09 of 2018; Sonu Gupta Vs. Deepak Gupta & Ors. Crl.
Appeal No. 285-87 of 2015; Aroon Purie Vs. State, Crl. MC 3492/2013; Jefferey J. Diermeier Vs. State of WB 2010 (6) SCC 243; M. N. Damani Vs. S.K. Sinha 2001 Crl.J. 2571 Supreme Court. Expeditious Trails of cases u/s 138 NI Act of Hon'ble Supreme Court of India in Suo Motu writ Petition Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 4 of 8 Crl. No. 2 of 2020; Shivjee Singh VS. Nagendra Tiwary and Others, of Hon'ble Supreme Court of India in Criminal Appeal No. 1158 of 2010; Krishna Murari Lal VS. IFCI Factors Ltd. Of Hon'ble Sdelhi High Court in Criminal MC 3937 of 2012 and Criminal MA No. 18900 of 2012; Norther India Paint Colour and Varnish Co LLP Vs. Sushil Chaudhary of Hon'ble Delhi High Court in Crl. M.C 2480/2023, Crl. MA 9435/2023; Ram Singh VS. Madhuri Singh of Hon'ble Delhi High Court in Crl. MC 1713/2016 and Crl. MA 7262/2016; Bansilal S. Kabra VS. Global Trade Finance Limited & Anr. (Crl Application No. 1344 of 2010) DISCUSSION
4. This court has considered the above submissions and the records. Before delving into the arguments of the parties pertaining to the merits of the case, it would be appropriate to adjudicate as to whether or not an inquiry u/s 202 Cr.P.C. was required to be undertaken by the Ld. Trial Court before passing the impugned order. In order to decide the above aspect, we may turn to the original complaint filed before the Ld. Trial Court by the respondent No.2. As per said complaint, the revisionists are residing at C-72, G.F., South Extension Part-II, New Delhi. However, contrary to the same, during the course of arguments in the present court, the revisionists have placed on record photocopies of their passport issued by United States of America. The revisionists claim that they are citizens and ordinary residents of United States of America, although they admit that the property situated in South Extension Part-II belongs to revisionist No.
1. The respondent No. 2, upon a query by this Court, admits that Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 5 of 8 revisionists herein are citizens of USA, but submits further that since revisionists are the owners of the above mentioned property situated in South Extension Part-II, the Ld. Trial Court was not under any obligation to hold an inquiry u/s 202 Cr.P.C. before passing the impugned order.
5. Admittedly, the Trial Court record reflects that the process / summons repeatedly sent to the revisionists by Ld. Trial Court through ordinary means and by post addressed at the above mentioned South Ex-II property belonging to revisionists No.1 were received back unserved. Admittedly, the process / summons returnable on 22.07.2023 issued by the Ld. Trial Court were served upon the revisionists through Whats app on mobile numbers +1(732)585-0375 and +1(917)288-5900. Admittedly, the said mobile numbers pertain to an area code falling in United States of America. Admittedly, the respondent No. 2 provided the said mobile numbers to the Ld. Trial Court for effecting service upon the revisionists. The Trial Court record does not reflect any other mobile number / phone number of the revisionists which was issued in India. Admittedly, Smt. Renu Sharma, mother of respondent No. 2 has specifically mentioned in a Civil Action filed in the Superior Court of New Jersey against the revisionists herein and others that both of them are residents of New Jersey, USA. The reference of respondent No. 2 is specifically available in the pleadings of said Civil Action (the relevant pleadings and documents have been placed on record by the revisionists herein Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 6 of 8 alongwith the present petition and which are not disputed by the respondent No. 2. In fact, the said civil action culminated on 12.06.2015, which order of culmination is the document Ex.CW1/B relied upon by the respondent No.2 to corroborate her complaint against the revisionists). Admittedly, respondent No.2 has not bothered to touch upon the aspect of place of ordinary residence of the revisionists herein in her complaint filed before the Ld. Trial Court. Nor has she dealt with the said aspect in her pre-summoning evidence. The above facts, when considered collectively, are sufficient to assume that respondent No.2 was well aware of the fact that the revisionists herein were not the ordinary residents of South-East Delhi. That being so, she was under a legal obligation to disclose the said fact to the Ld. Trial Court at the very outset. Had she disclosed the said fact to the Ld. Trial Court, Ld. Trial Court would definitely have invoked Section 202 Cr.P.C. before ordering the summoning of the revisionists vide the impugned order.
6. As to the argument of respondent No.2, to the effect that since revisionist No. 1 is the owner of an immovable property situated in South East District Delhi, hence, revisionists may be considered as ordinary residents of Delhi, it must be observed that the same seems illogical and preposterous in view of the fact that 'ownership of an immovable property' and 'ordinary residence' are two separate facets of an individual's life, which may or may not coincide. In the present case, the discussion in the aforegoing paragraph reflects that Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 7 of 8 revisionists are not the ordinary residents of Delhi.
7. In such circumstances, the condonation application as well as the present revision petition are allowed for want of compliance of Section 202 Cr.P.C. Resultantly, the impugned order dated 04.06.2019 is hereby set aside with the directions that the Ld. Trial Court shall consider the summoning of the revisionists afresh after complying with the provision u/s 202 Cr.P.C. It is clarified that none of the above observations shall cast any shadow on the merits of the case as the present judgment has been passed purely in the context of the legal position u/s 202 Cr.P.C. A copy of this judgment be sent forthwith to the Ld. Trial Court alongwith TCR.
8. This revision file be consigned to Record Room, as per rules.
Dictated and Announced
in open Court on 18.03.2024 (Lovleen)
ASJ-03 (South East),
Saket Courts, New Delhi
Crl. Revision No: 567/2023 Ajay Sarin and Anr. Vs. State Government of NCT of Delhi page no. 8 of 8