Delhi District Court
Smt. Kiran vs State Of Nct Of Delhi on 6 June, 2016
IN THE COURT OF MS. VRINDA KUMARI:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
Criminal Revision no.10/16
UID No.02406R0099612016
Smt. Kiran
w/o Sh. Yashdev Singh Sejwal
d/o Sh. K.S Deswal
r/o Flat no.154, Plot no.34,
Sector4, Dwarka, New Delhi.
..........Revisionist
Vs.
1. State of NCT of Delhi
2. Smt. Asha Rani
d/o Late Sh. Randhir Singh Sejwal
H.no.24, village Saidulajaib
New Delhi.
....... Respondents
Date of filing of revision : 11.03.2016
Date of allocation : 14.03.2016
Arguments concluded on : 31.05.2016
Date of order : 06.06.2016
Revision petition under section 397 Cr.PC against the
impugned order dated 11.02.2016 passed by Ld. MM02
(Mahila Court), TisHazari Courts, Delhi in the complaint case
bearing CC no.14/3/09 titled as 'Randhir Singh Vs. Kiran
&Ors', PS Mehrauli
CR No.10/16 06.06.2016 Page no. 1/15
ORDER
1. The present revision petition is directed against the order dated 11.02.2016 passed by Ld. MM02 (Mahila Court), Tis Hazari Courts, Delhi in CC No.14/3/09 titled as 'Randhir Singh Vs. Kiran & Ors.' .
2. The complaint for the offences U/S 420/494/495/120B/34 IPC was filed by Sh. Randhir Singh Sejwal (fatherinlaw of the revisionistrespondent no.1) against the revisionist respondent alongwith her father and sister. Vide order dated 06.12.2003, it was observed by Ld. Trial Court that no prima facie case u/s 420 IPC was made out, however, offence u/s 417 IPC was made out. Regarding the offences u/s 417/494/495 IPC, the complainant was directed to lead pre summoning evidence. Vide order dated 08.06.2006, Ld. Trial Court dismissed the complaint not being maintainable on the ground that the complainant Sh. Randhir Singh Sejwal had not filed any SPA on record regarding permission or authorization to file the complaint on behalf of his son. It was also observed that the aggrieved person was the son of the complainant who was competent to file the complaint as per section 198 Cr.PC. The said order was challenged by the complainant. Vide order dated 30.10.2006 in the revision petition, the case was remanded back with the observation that the impugned order by which the complaint case had CR No.10/16 06.06.2016 Page no. 2/15 been dismissed solely on the ground of nonmaintainability had caused hardship to the petitioner. Ld. Trial Court was directed to hear the arguments of the petitioner on merits as well and to decide if there was sufficient material at that stage to presume commission of any offence against the respondents therein. While giving such directions, it was observed that the authorities relied upon by the prosecution prima facie showed that father is also an aggrieved person to initiate complaint for bigamy. It was also observed that the contents of the photocopy of the Power of Attorney filed on record revealed that the petitioner had the authority from his son.
3. Consequently, arguments were addressed on the point of summoning of the accused persons by ld. Trial Court on 02.05.2007. Three accused persons including the revisionist were directed to be summoned for the offences punishable u/s 417/494/495/120B IPC.
4. After appearance of the accused persons, precharge evidence was being recorded. In the meantime, the matter was referred to mediation center and settlement was brought about between the parties. The complainant Sh. Randhir Singh also expired. Vide order dated 23.10.2013, Ld. Trial Court was informed by ld. Proxy counsel for the complainant that the matter had been settled. The settlement/agreement CR No.10/16 06.06.2016 Page no. 3/15 was placed on record. It was also informed that the complainant had expired and that the main counsel would withdraw the instant complaint case on 03.01.2014. On 03.01.2014, the proxy counsel for the complainant submitted that the petitioner would withdraw the complaint case after completion of the second motion. On the next date of hearing i.e 18.01.2014, Ld. Counsel for the complainant submitted that the case would be withdrawn by the proposed attorney holder, as the previous one was not available, after quashing of the connected case FIR no.146/2002, PSCivil Lines. On 27.08.2014, ld. Counsel for the complainant submitted that the accused had not taken required steps in the connected case FIR no.146/02, PS Civil Lines.
5. In these circumstances, the case was again listed for C.E for 19.11.2014 on which date the application was moved by Smt. Asha Rani for being impleaded as a complainant in place of deceased Late Sh. Randhir Singh Sejwal. Ld. Counsel for the revisionistrespondent also moved application seeking dismissal of complaint/dropping of proceedings against the respondents on the ground of death of complainant.
6. Upon the abovesaid two applications, the impugned order dated 11.02.2016 was pronounced and it was held by ld. Trial Court that there was no impediment in her (Smt. Asha CR No.10/16 06.06.2016 Page no. 4/15 Rani) impleadment as complainant in place of deceased Randhir Singh Sejwal. Such impleadment was, however, subject to execution and furnishing of fresh Power of Attorney in her favour by the husband of revisionistaccused no.1, namely, Sh. Yashdev Singh Sejwal. Application of the revisionist for dropping of proceedings/dismissal of the complaint was dismissed on the ground that section 256 Cr.PC was not applicable since the instant case was a warrant case. It was also observed that the discretion u/s 249 Cr.PC was to be exercised judiciously and not arbitrarily. Ld. Trial Court used its discretion and allowed the complaint to continue.
7. The impugned order has been challenged on various grounds by the revisionistrespondent no.1. It is submitted that Smt. Asha Rani does not fall into the category of 'aggrieved person' as mentioned in section 198 Cr.PC. The husband of the revisionist never appeared before the Court even once and case has been running on behalf of his GPA holders whereas authenticities of GPAs dated 23.08.2002 and 18.05.2011 in favour of the original complainant Randhir Singh Sejwal itself was in question. It is submitted that under Article 120 of the Limitation Act, 1963 the application for substitution of the legal heir must be filed within 90 days. It is submitted that the order has violated Article 21 of the CR No.10/16 06.06.2016 Page no. 5/15 Constitution of India.
8. The perusal of the record shows that Smt. Asha Rani's application for her impleadment as complainant in place of Late Sh. Randhir Singh Sejwal was without any affidavit. Though it was mentioned in the application that she was the daughter/legal heir of late Sh. Randhir Singh Sejwal, no address or any other detail was provided by her nor any document in support of this averment was filed. Therefore, notice of revision petition was directed to be served by way of affixation at the address of Late Sh. Randhir Singh Sejwal. Despite service by affixation , Smt. Asha Rani did not appear before the Court.
9. I have heard the arguments and have perused the record carefully including trial court record.
10. At the outset, reference is made to Article 120 of the Limitation Act, 1963 in view of the objection of revisionist that the application for impleadment as complainant was made by Smt. Asha Rani (respondent no.2) before the trial court beyond limitation period. Article 120 deals with proceedings to have the legal representative of a deceased plaintiff or appellant, or of a deceased defendant or respondent, made a party under the Code of Civil Procedure, 1908 and not the proceedings under Code of Criminal Procedure, 1973.
CR No.10/16 06.06.2016 Page no. 6/15
11. The concept of locus of the complainant is alien to criminal trial. A complaint can be filed by anybody whether aggrieved or not. However, an exception has been carved out by the legislation in all its wisdom. This exception pertains to offences under Chapter XX of the Indian Penal Code. Section 198 (1) & (2) of the Cr.P.C specifically provide as to who can be a complainant in such cases. This section reads as follows
198. Prosecution for offences against marriage (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of subsection (4) may make a complaint on his behalf;
CR No.10/16 06.06.2016 Page no. 7/15
(c) where the person aggrieved by an offence punishable under (section 494 or section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister(or, with the leave of the Court, by any other person related to her by blood, marriage or adoption).
(2) For the purpose of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
12. Sub section (1) of section 198 Cr.PC provides that complaint of an offence punishable under Chapter XX of the IPC can be by some person aggrieved by the offence. Proviso (c) to this subsection refers to the offence punishable u/s 494 and section 495 of the IPC and provides an exception in case where the person aggrieved by the offences is the wife. In such a case, complaint may be made on her behalf by her relatives specifically mentioned in the proviso. The exception to the subsection (1) where aggrieved person is the husband has been provided in proviso (b). It pertains to CR No.10/16 06.06.2016 Page no. 8/15 circumstances where husband is serving in any of the Armed Forces of the Union and has been precluded from obtaining leave of absence by his Commanding Officer to enable him to make a complaint in person. In such circumstances, some other person authorized by the husband may make a complaint on his behalf. Proviso (a) to the sub section (1) is in respect of a person under the age of 18 years or a person who is an idiot, a lunatic or is from sickness or infirmity unable to make a complaint. Apart from it, this proviso also refers to women who cannot be compelled to appear in public in view of legal customs and manner in which case, some other person may with the leave of the Court make a complaint on his or her behalf. The instant case does not fall under any of the categories mentioned in the provisos.
13. Subsection (2) of section 198 Cr.PC refers to section 497 and section 498 of the IPC and categorically mandates that no person other than the husband of the woman shall be deemed to be aggrieved by the above said offences. The proviso to section (2), however, states that in the absence of the husband some person who had care of the woman on his behalf at the time when offence was committed may make a complaint on his behalf with the leave of the Court.
14. Perusal of the complaint shows that Sh. Randhir Singh Sejwal filed the complaint case under the authorization of his CR No.10/16 06.06.2016 Page no. 9/15 son. The son of the complainant Sh. Yashdev Singh Sejwal is an NRI residing in Netherland. The complainant has specifically mentioned in his complaint as follows:
"The said son of the complainant authorized his father to pursue and file any case on his behalf before the lawful authority and Court and also appear and can reply on his behalf to the same before the concerned authorities. Therefore, the complainant is a competent person to file the present complaint in all manner before the Hon'ble Court".
15. The complainant filed the complaint in capacity of a person authorized by the aggrievedhusband (Yashdev Singh Sejwal) by virtue of power of attorney the copy of which was filed alongwith the complaint. Now, Smt. Asha Rani wants to continue the prosecution and she has been allowed by Ld. Trial Court subject to her furnishing the Power of Attorney on behalf of the aggrieved in her favour.
16. Ld. Counsel for the revisionist has argued that initially, the complaint could not have been filed by Sh. Randhir Singh Sejwal in view of bar of section 198 Cr.PC and now his daughter cannot step in his shoes.
17. In this regard reference may be made to the judgment dated 20.7.2012 of Hon'ble High Court of Judicature at Madras in Deepalakshmi Vs. K. Murugesh, Crl.O.P Nos.27285 and CR No.10/16 06.06.2016 Page no. 10/15 27329 of 2010 and M.P Nos.1, 1 of 2010 and 1 and 1 of 2011 wherein it has been observed "25. A close reading of Section 198 (1) of the Code would go to show that a complaint in respect of these specified offences can be made only by an aggrieved person. For some offences, the aggrieved person is the husband and for some offences it is the wife and for some other offences, it is both husband and wife. There can be no doubt that if the aggrieved person is not in a position to make a complaint in person due to any one of the reasons enumerated in Section 198 of the code, then, such aggrieved person can authorise some one else to file the complaint. If such authorisation is under Section 198 (1) (a) of the Code, leave of the Court should be obtained for filing the complaint by the authorised person, whereas, if the authorisation is under Section 198 (1)(b) Cr.PC, no such leave of the Court is required. In my understanding, if any such authorisation is given, then the person, in whose name the authorisation is given, becomes the complainant. The authorised person will be at liberty to conduct the case in his own name. Here, aggrieved person does not figure as a complainant at all and instead, it is only the authorised person, who figures as the complainant in the case. In other words, the authorised person is not acting as an agent of the aggrieved person and instead, though he is not an aggrieved person, he figures as the complainant simplicitor.
26. Now coming to the general power of attorney, here, there is a relationship of principal and agent. As and when the principal is not able act CR No.10/16 06.06.2016 Page no. 11/15 on his own in person, he gives power to some one else to act on his behalf. Here the agent acts only on behalf of the principal and under his directions. Such power is always revocable. The principal, after revoking the power, can appoint a new power agent. For any reason, if the principal dies, the agent cannot continue with the proceedings because the power dies with the principal. Thereafter, it is only for the legal representatives of the principal to prosecute the matter further. Similarly, if the power agent dies during the pendency of the proceedings, then the principal will have right either to prosecute the case by making his own appearance or by appointing a new agent on his behalf. Thus, the relationship between the principal and power agent is totally distinguishable from the relationship between the aggrieved person and the authorised person as referred to in Section 198 Cr.PC. So far as Section 198 Cr.PC is concerned, it relates only to the relationship of the aggrieved person and the authorised person and the same has got nothing to do with the relationship between the principal and the agent".
18. In the abovesaid judgment, Hon'ble High Court also considered K. Gopalakrishnan Vs. Karunakaran rep. by the Power of Attorney Holder ((2006) 4 CTC 333) and Shankar Finance and Investments Vs. State of Andhra Pradesh and others ((2008) 8 SCC 536) and held "29. From these two judgments, it is very clear that there is no bar in our Indian Criminal CR No.10/16 06.06.2016 Page no. 12/15 Jurisprudence for a power agent to file a private complaint on behalf of his principal. But the only restraint is that the power agent cannot speak to a fact of which he has got no knowledge. It is after all a very elementary principle of rule of evidence as envisaged in the Indian Evidence Act. Except the said rider, absolutely, there is no bar for a power agent to file a complaint. Per contra, if the contention of the petitioners that power agent cannot file a complaint representing his principal is accepted, then, it would only lead to absurdity. In the modern world, either on account of employment or for some other purpose, people go abroad or to a distant State in this country and settle down either permanently or temporarily. It is also possible that a foreigner may be an aggrieved person of a matrimonial offence who may not be in a position to visit India to file a complaint and to attend the future hearings. For such people it may be practically impossible to prefer complaint in person. They may not fall within Section 198 (1)(a) of Cr.PC. In such a situation, the offender cannot be allowed to go scot free. After all, as held by Honourable Justice P.Sathasivam, it is purely procedural and not substantive. Thus, we cannot accept an interpretation which will lead to absurdity. Therefore, I firmly hold that a power agent can file a complaint representing his principal. Thus, the argument of the learned senior counsel for the petitioners is rejected.
30. In this case, the complaint has not been filed by the father of the petitioner as an authorised person as referred to in Section 198 Cr.PC. Instead, he has filed the complaint only as a power agent of his son, who is the aggrieved person. Therefore, I hold that CR No.10/16 06.06.2016 Page no. 13/15 this complaint filed by the power agent is maintainable".
19. In the instant case also the complaint was filed by the father of the aggrieved person (husband of revisionistrespondent no.1) as a power agent of his son, even though, he was not the 'authorised person' as referred to in section 198 Cr.P.C.
20. Though the facts of the case Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SC 983 are not applicable to the present case, it has been categorically held by the three Judges bench of Hon'ble Supreme Court of India that the section 198 Cr.P.C creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. Vide the order dated 30.10.2006, Ld. ASJ in the criminal revision petition has already held that instant complaint was filed by the proper person. That order was not challenged. The summoning of the accused persons by Ld. Trial Court vide order dated 02.05.2007 was also not challenged.
21. So far as, the power of the Magistrate U/S 249 Cr.P.C is concerned it is a discretionary power. Ld. TrialCourt has exercised its discretion and has decided to go ahead with the prosecution of the case. In these circumstances, the CR No.10/16 06.06.2016 Page no. 14/15 application of Smt. Asha Rani, a family member of the aggrieved person Sh. Yash Dev Singh (husband of revisionistrespondent no.1) to continue the prosecution was allowed by Ld. Trial Court subject to execution of Power of Attorney in her favour by the aggrieved person.
22. As has already been discussed in light of abovementioned case laws, the instant complaint could have been filed and prosecuted through a power agent as well and there is no impediment in allowing another family member to continue with the prosecution of the warrant case instituted on a complaint subject to furnishing of a fresh Power of Attorney duly executed by the aggrieved person in her favour. In these circumstances, the Court does find any illegality or infirmity in the impugned order of Ld. Trial Court. The revision petition is, therefore, dismissed.
23. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 06 th DAY OF JUNE, 2016.
(Vrinda Kumari)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
CR No.10/16 06.06.2016 Page no. 15/15