Delhi District Court
Paramjeet Kaushik vs State on 10 November, 2016
Criminal Revision No. 57321/16 D.O.D.: 10.11.2016
IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE04 (NORTH): ROHINI COURTS: DELHI
Criminal Revision No.: 57321/2016
Paramjeet Kaushik
S/o Late Sh. R.K Kaushik
R/o 396, Behind Rajeev Gadhi Stadium,
Village & Post Office Bawana, Delhi110039.
.....Petitioner/Revisionist
Versus
1. State
2. Deepak Sharma
S/o Sh. Jagmohan Sharma
R/o M1/33A, Phase1, Budh Vihar,
Delhi.
.......Respondents
Date of Institution : 15.12.2014 Date on which Order was reserved: 14.10.2016 Date on which Order pronounced : 10.11.2016 O R D E R
1. Vide this common order, I shall dispose of the revision petition preferred against order dated 18.09.2014 (hereinafter called the impugned order) passed by Ld MM (North) Rohini Courts, Delhi, whereby the Paramjit Kaushik Vs. State & Ors. Page 1 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 application U/s 156(3) Cr.PC as well as the complaint case of petitioner (herein after called the complainant for the sake of convenience) have been dismissed, as also the petition U/s 340 read with Section 195 Cr.PC filed by respondent no. 2 namely Sh. Deepak Sharma (hereinafter called respondent no. 2 ) for prosecuting the complainant for concealment of material facts and making false statements before the Court of law.
2. Brief facts relevant and necessary for deciding the revision petition as well as the petition U/s 340 Cr.PC are that complainant filed Complaint Case U/s 200 read with Section 156(3) Cr.PC before trial Court on the averments that in the early morning of 06.08.2010, respondent no. 2 Deepak Sharma alongwith his associates including his brother committed assault on his own sister (who is wife of complainant) with intention to create false evidence against him as matrimonial dispute was going on between the parties. In order to create fasle defence, the respondent no. 2 claimed that he was on duty as teacher in school on 06.08.2010 and thus, took plea of alibi. Said respondent also furnished one certificate purportedly issued by Principal of said school i.e. Nigam Pratibha Balika Vidyalaya, Mukund Pur, Civil Lines Area, Delhi stating therein that respondent no. 2 was present in the said school from 7.15 am to 9.50 am on 06.08.2010. The complainant assailed the said certificate as well as the plea of alibi raised by respondent no. 2 by alleging that respondent no. 2 inconnivance with Principal of the school, forged and fabricated relevant record by causing interpolations in the attendance record of the school for the month of August Paramjit Kaushik Vs. State & Ors. Page 2 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 2010. For the said purpose, he further claimed that in the relevant entry made in the attendance register of 06.08.2010, respondent no. 2 was shown to be on casual leave but subsequently, interpolations were made by said respondent by appending his signatures and by overwriting the earlier mentioning of he being on leave, in order to create false and forged document. He further claimed that the total number of leaves availed by respondent no. 2 in the month of August, 2010 as mentioned in the attendance register, also differed with the number of leaves individually mentioned against his name during the month of August,2010. He also alleged that the brother of respondent no. 2 was also present at the time of assault, who also created false defence by claiming himself to be present in his office and attached certificate from his employer in that regard. Complainant claimed that Cell ID Location of both the mobile phones being used by brother of respondent no. 2, would also show his location to be at the place of assault. Based on these allegations and while relying upon certain judgments, prayer was made before for issuance of direction for registration of FIR by concerned SHO.
3. After going through the report filed by concerned SHO and after considering the submissions raised on behalf of complainant, Ld trial Court formed the opinion that there appear to be no forgery or manipulation of attendance register of respondent no. 2 at his work place on 06.08.2010 and no case was made out for registration of FIR. Ld Magistrate also observed that the complaint case seems to be baseless and without any merit and Paramjit Kaushik Vs. State & Ors. Page 3 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 consequently, not only declined the prayer for registration of FIR in exercise of power conferred by Section 156(3) Cr.PC but also declined the cognizance in the matter and dismissed the complaint case filed by complainant, thereby giving rise to the present revision petition before this Court.
4. In his petition U/s 340 Cr.PC, respondent no. 2 has averred that the complainant has deliberately concealed material fact in the present revision petition regarding initiation of proceedings U/s 182 IPC against him by State in order to obtain favourable order from this Court. Apart from that, he has further averred that the complainant has made number of contradictory statements alongwith supporting affidavits in different Courts in different proceedings at subsequent points of time and thus, it is a fit case where proceedings should be initiated against him for making false statement before the Court.
5. I have already heard Ld counsel Sh. Shubham Asri Adv on behalf of complainant/revisionist, Sh. Pankaj Bhatia Ld Additional PP on behalf of respondent no. 1/State and Sh. R.B Dubey Adv on behalf of respondent no. 2. I have also gone through the material available on record including trial Court record as well as the authorities cited at the Bar.
6. Before coming to the impugned order assailed by way of revision petition, I would take up the petition U/s 340 Cr.PC filed by respondent no. 2 for prosecuting the complainant for making false statement before the Court. After referring to the averments made in the petition U/s Paramjit Kaushik Vs. State & Ors. Page 4 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 340 Cr.PC available on record, counsel for respondent no. 2 vehemently argued that complainant has deliberately concealed from this Court in the revision petition that proceedings U/s 182 IPC has already been initiated against him by State and he has already been summoned as an accused therein. He also referred to subsequent proceedings/litigations which arose between the parties on the subsequent dates and the relevant proceedings carried out before different Forums in those proceedings, in support of his contention that complainant has made contradictory and false statements in different Courts and thus, it is a fit case where he should be prosecuted under the law. In support of these submissions, he also relied upon the following judgments:
1. Chandra Shashi Vs. Anil Kumar Verma, reported at JT 1994 (7) 459.
2. Dhanajay Sharma Vs. State of Haryana & Ors., reported at AIR 1995 SC 1795.
3. Sanjeev Kumar Mittal Vs. The State, passed in TEST. CAS No. 19/2004, decided on 18.11.2010 by Hon'ble Delhi High Court.
4. In the matter of COURT ON ITS OWN MOTION IN RE: Vinod KumarJain, Passed in CONT. CAS.(CRL.) 8/2011 decided on 22.10.2013 by Division Bench of Hon'ble Delhi High Court.
5. H.S Bedi Vs. National Highway Authority of India reported at 227 (2016) Delhi Law Times 129.
7. On the other hand, counsel of complainant opposed the petition on the ground that there is no concealment of any material fact on the part of complainant. He submitted that respondent no. 2 has instituted three separate Paramjit Kaushik Vs. State & Ors. Page 5 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 proceedings on the same set of allegations for prosecuting the complainant. He pointed out that proceedings U/s 182 Cr.PC has already been initiated, petition U/s 340 Cr.PC has been filed by respondent no. 2 in the present revision petition and complaint U/s 200 Cr.PC has also been filed by respondent no. 2 before Magistrate. He therefore, contended that respondent no. 2 is abusing the process of law by instituting three parallel proceedings against complainant on same set of allegations. He further argued that the petition U/s 340 Cr.PC is not maintainable under the law as respondent no. 2 has failed to show that any false statement either on oath or in the form of affidavit, has been made by complainant in the proceedings pending before this Court. He therefore, urged that the said petition should be dismissed with exemplary cost.
8. I have gone through the judgments cited on behalf of respondent no. 2 which deals with the ratio of law with regard to prosecution of a person found guilty of making false statement before the Court of law and displaying his tendency to make false and incorrect statement before the Court of law in the course of judicial proceedings or to file fabricated documents in judicial proceedings pending before the Courts. There is no dispute to the proposition of law laid down/discussed in the said authorities. At the same time, it is well settled law that power conferred by Section 340 read with Section 195 Cr.PC should be invoked by the Court only when it finds that it is expedient in the interest of justice to do so. It is also no more resintegra that such power should not be invoked merely on the asking of Paramjit Kaushik Vs. State & Ors. Page 6 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 the party or in order to enable the party to settle personal score with the opposite party.
9. In the case in hand, the respondent no. 2 has alleged that the complainant has made false and contradictory statements in different Courts in different proceedings and has concealed the factum of initiation of proceedings U/s 182 IPC against him for setting criminal law into motion with regard to alleged incident dated 06.08.2010. No doubt, the complainant has not mentioned in the revision petition that proceedings U/s 182 IPC has already been initiated against him but nevertheless, withholding of said fact does not make any difference and thus, same does not amount to concealment of material fact from the Court. Moreover, power U/s 340 read with Section 195 Cr.PC cannot be invoked on the basis of concealment of material facts. The matrimonial dispute is already going on between sister of respondent no. 2 and complainant being husband and wife. Apart from matrimonial disputes, some other litigation is also going on between the parties.
10. Considering the overall facts and circumstances of the case and in view of the discussion made herein above, I do not deem it expedient in the interest of justice or find any justifiable ground to initiate any proceedings against complainant by virtue of power U/s 340 read with Section 195 Cr.PC. Consequently, the petition U/s 340 read with Section 195 Cr.PC of respondent no. 2 is hereby dismissed.
11. Now, I shall deal with the impugned order which is assailed by Paramjit Kaushik Vs. State & Ors. Page 7 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 way of present revision petition.
12. While opening the arguments, Ld counsel of complainant vehemently argued that Ld MM failed to exercise the jurisdiction vested in him by declining to issue direction for registration of FIR. He argued that trial Court ought to have issued direction for registration of FIR as allegations made in the petition U/s 156(3) Cr.PC are disclosing commission of cognizable offence regarding forgery of record by respondent no. 2 and his associates. He also referred to the copy of attendance register for the month of August, 2010 concerning respondent no. 2 as placed on record as also to the certificate dated 25.07.11 purportedly issued by Principal of the school in which respondent no. 2 was working during the relevant period, which is also filed on record. He also referred to other relevant documents filed alongwith revision petition, in order to bring home his point that interpolations have been made by respondent no. 2 in connivance with Principal of the school, in order to create false plea of alibi. He vehemently argued that the relevant entry of 06.08.2010 shown in the attendance register, would reveal that initially respondent no. 2 was shown to be on leave but subsequent thereto, he made overwriting by putting his signature in the said entry. He further pointed out that the forgery is further writ large from the fact that the total number of leaves purportedly availed by respondent no. 2 during the month of August, 2010 as per said attendance register, differs from the individual leaves mentioned against his name in the said month. He therefore, urged that it is a fit case where directions should be issued for Paramjit Kaushik Vs. State & Ors. Page 8 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 registration of FIR and to get the matter investigated by the police as he argued that it is not within the reach of complainant to get the handwriting and signature of respondent no. 2 compared through handwriting expert and same can only be done during field investigation to be carried out by the police. Alternatively, he argued that complainant ought to have been given opportunity to prove those allegations by producing his witnesses during pre summoning evidence but trial Court straightaway dismissed the complaint case without affording any opportunity to complainant in that regard. Counsel also argued that the said approach adopted by Ld MM is not tenable in the eyes of law. Therefore, the impugned order, to that extent, should be set aside in case this Court is not inclined to issue direction for registration of FIR.
13. Per contra, Ld counsel of respondent no. 2 supported the impugned order by arguing that trial Court has passed detailed and speaking order while declining to issue direction for registration of FIR as well as while dismissing the complaint case of the complainant. He vehemently argued that the complainant has not approached this Court with clean hands. He submitted that complainant has failed to show that there is any apparent or manifest error in the impugned order passed by Ld Magistrate. Thus, the impugned order should not be interfered by this Court in exercise of its revisional jurisdiction. He further argued that there was no prayer made by complainant to allow him to lead pre summoning evidence and thus, there is no infirmity in the impugned order to the extent whereby the cognizance has Paramjit Kaushik Vs. State & Ors. Page 9 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 been declined by the Court below. He further argued that the complainant failed to comply with the provision contained in Section 154(2) Cr.PC before approaching the Court of law for invoking the power conferred by Section 156(3) Cr.PC and for said reason also, Ld trial Court has rightly declined the prayer to issue direction for registration of FIR in this case. In support of his respectful submissions, he also placed reliance upon the following judgments:
1. Chandrika Singh Son of Late Kali Prasad Singh Vs. State of U.P., Station House Officer, Sritam Ram Son of Shri Sidhari Ram and Dr. Tirthraj Singh Son of Late Bhola Singh, reported at 2007 Cr.LJ 3169 (Allahabad).
2. Biju Purushothaman Vs. The State of Kerala & Ors. MANU/KE/0132/2008 decided on 01.10.2012 by High Court of Kerala.
3. Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors, passed in Criminal Appeal No. 1577/2012 decided on 01.10.12012, by Hon'ble Supreme Court of India.
4. Devarapalli Lakshiminarayana Reddy & Ors. Vs. V. Narayana & Ors. reported at AIR 1976 SC 1672.
5. Mrs. Priyanka Srivastava & Anr. Vs. State of U.P & Ors, passed in Criminal Appeal No. 781/2012 decided on 19.03.2015 by Hon'ble Supreme Court of India.
6. Meenakshi Anand Sootha Vs. The State & Anr, decided by Hon'ble High Court of Delhi on 20.11.2007.
7. Pawan Verma Vs. SHO PS Model Town & Ors., passed in Criminal MC No. 3575/2008 decided on 10.02.2009 by Hon'ble Delhi High Court.
8. Mohd Salim Vs. State, passed in Criminal MC No. 3601/2009 decided on Paramjit Kaushik Vs. State & Ors. Page 10 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 10.03.2010, by Hon'ble Delhi High Court.
9. Ramesh Bhateja Vs. State & Ors, passed in Criminal MC No. 147/14 decided on 13.01.2014 by Hon'ble Delhi High Court.
14. Firstly, I shall deal with the relevant part of the order whereby trial Court has declined to issue direction for registration of FIR in the present matter. No doubt, the complainant levelled allegations of interpolations and forgery being made in the attendance register of the school but at the same time, it cannot be over looked that discretion has been conferred upon Magistrate to issue direction for registration of FIR in appropriate cases. Such discretion has to be exercised in judicious manner and not mere at the asking of the complainant. While saying so, I am also fortified by the catena of judgments delivered by Hon'ble Apex Court as well as by our own High Court including the relevant judgments relied by counsel of respondent no. 2 herein. It may be noted that the legislature has used the word 'may' in Section 156(3) Cr.PC. It is an undisputed fact that matrimonial dispute is already going on between complainant and his wife (who is sister of respondent no. 2 herein). The case set up by complainant is that it was respondent no. 2 and his associates including his brother who themselves had assaulted the wife of complainant on 06.08.2010, whereas the opposite party is claiming other way round. At the same time, respondent no. 2 has also created defence that he was at his work place at the time of said incident. In this backdrop, I do not find any illegality or infirmity in the view taken by Ld Magistrate in declining the request regarding registration of FIR. There is one more reason for arriving at the Paramjit Kaushik Vs. State & Ors. Page 11 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 said conclusion. Before invoking the power of the Magistrate as conferred by Section 156(3) Cr.PC, it is mandatory on the part of complainant to approach police authorities for registration of FIR against the alleged persons as per mandate of law provided in Section 154(1) and (3) Cr.PC. The complainant did not comply with the said provision before approaching the Court of Magistrate for seeking direction regarding registration of FIR in this case. Hence, I do not find any reason to interfere in the relevant part of the impugned order, whereby trial Court has declined the prayer made in the application U/s 156(3) Cr.PC for registration of FIR in this case.
15. This brings me down to the latter part of the impugned order, whereby trial Court has also declined the cognizance and dismissed the complaint case of the complainant. While declining the cognizance and dismissing the complaint case, Ld Magistrate has observed that the allegations seem to be made by complainant in order to create false defence or to put up pressure upon the opposite party as matrimonial disputes were already pending between complainant and his wife and holding that attendance register has been manipulated and forged would lead to commencement of parallel proceedings when allegations levelled against complainant are already subjudice in other criminal case.
16. However, the aforementioned observations made by Ld trial Court are not found to be justified or tenable in the eyes of law. Merely because matrimonial dispute is already pending between complainant and his wife and merely because respondent no. 2 happens to be brother in law of Paramjit Kaushik Vs. State & Ors. Page 12 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 complainant, it cannot be inferred that the complainant has levelled false and frivolous allegations in order to put pressure upon the opposite party or in order to create false defence in his favour. From the bare perusal of the relevant entry dated 06.08.10 in the attendance register of the respondent no. 2, one can see from naked eyes that there are over writings appearing in it. It is also primafacie evident from the attendance register for the month of August, 2010 that total number of leaves availed by respondent no. 2 are not tallying with the individual leaves availed by him in the month of August, 2010. In this backdrop, this Court is of the view that complainant deserves to be afforded an opportunity to prove the allegations made by him in the complaint case by producing his witnesses during pre summoning evidence. Of course, it is well within the right of Magistrate to dismiss the complaint case U/s 203 Cr.PC after taking pre summoning evidence on record in case he does not find any sufficient ground for proceeding against the respondent. There is no substance in the argument raised on behalf of respondent no. 2 that since no prayer was made by complainant for allowing him to lead pre summoning evidence, he cannot be allowed to challenge the order declining cognizance by the Court below. Firstly, it is mentioned in the main heading of the petition filed by complainant that the said complaint was also being filed U/s 200 Cr.PC. Secondly, it becomes the bounden duty of Magistrate to prove an opportunity to the complainant for proving the allegations levelled by him in the petition disclosing commission of cognizable offences under the law. At this juncture, it would also be useful Paramjit Kaushik Vs. State & Ors. Page 13 of 14 Criminal Revision No. 57321/16 D.O.D.: 10.11.2016 to refer to the provision contained in Section 202 Cr.PC which empowers the Magistrate to order for conducting enquiry in appropriate cases as deemed fit. The trial Court has fallen into grave error insofar as it declined the cognizance and dismissed the complaint case as a whole. Consequently, the impugned order to that extent cannot be sustained under the law. The relevant part of the impugned order whereby the prayer U/s 156(3) Cr.PC has been declined, is sustained. However, the latter part of the impugned order whereby the cognizance has been declined and complaint case has been dismissed, is hereby set aside. Complaint is restored to its original number. Trial Court is directed to provide an opportunity to the complainant to lead pre summoning evidence by producing his witnesses before it and thereafter, to pass the order afresh on the basis of material available before it. Resultantly, the revision petition is partly allowed to the extent mentioned herein above. TCR be sent back alongwith copy of this order. File of revision petition be consigned to Record Room.
Announced in open Court today
On 10.11.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
Paramjit Kaushik Vs. State & Ors. Page 14 of 14