Delhi District Court
Smt. Om Wati vs Ranbir Singh on 17 November, 2011
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No. 2/10
(Unique No.02406R0315422010)
1. Smt. Om Wati
W/o Sh. Kailash Chand
2. Shri Kailash Chand
S/o Shri Chhote Lal
Both R/o Staff Quarter No. G-5
Police Station Hauz Khas,
New Delhi ..............Revisionists
Versus
1. Ranbir Singh
S/o Sh. Rattan Singh Rathi
2. Rajesh Kumar
S/o Sh. Ranbir Singh
3. Smt. Kela
W/o Sh. Ranbir Singh
4. Ms. Poonam
D/o Shri Ranbir Singh
All R/o Staff Quarter No.G-6,
Police Station Hauz Khas, New Delhi. ........Respondents
Date of Initial Institution :26.08.2010
Date of Institution in this Court :16.09.2010
Date of reserving Order : 20.10.2011
Date of Pronouncement : 17.11.2011
C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 1/11
ORDER
The present revision petition has been filed against the order dated 11.8.10 by which the respondents No.1 & 2 only were summoned under Section 323/506/34 IPC and no summons were issued against the respondents No. 3 & 4 as no evidence was found against them by the Ld. Trial Court. Aggrieved by non-summoning of all the four respondents for offences under Section 325/323/506/34 IPC, the present revision petition has been filed by the revisionists.
2. To recapitulate the facts of the case, a complaint was filed before the Ld. Trial Court under Section 156 (3) Cr.P.C seeking directions upon the SHO P.S. Hauz Khas for registration of the FIR against all the four respondents under Section 325/354/342/506/34 IPC. It was stated in the complaint that on 04.01.09 at about 7:15 p.m, respondents No. 1 & 2 alongwith respondents No. 3 & 4 attacked the petitioner No.1 and her daughter Ashima, who was 19 years old. Due to this, petitioner No.1 received injuries on her body and daughter Ashima received head injury which required five stitches. Ld. Trial Court vide order dated 04.02.10 refused to give any direction under Section 156 (3) Cr.P.C and the petitioner was directed to lead complainant evidence.
3. Complainant examined five witnesses in support of her case. CW-1 Kusum, a neighbour was examined besides the petitioner No.1 herself as CW-3, petitioner No.2 as CW-5, C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 2/11 their daughter Ashima as CW-2 and Rajender Singh, Medical Record Assistant of AIIMS as CW-4. Ld. Trial Court after taking into consideration the witnesses of the above mentioned persons, passed order dated 11.08.10 whereby only respondents No.1 & 2 were summoned for the offence under Section 323/506/34 IPC. It is this order of the Ld. Trial Court which has been assailed by the petitioners in this revision petition.
4. Sh. Jai Kishore Singh, Ld. Counsel for the revisionist has argued that the Ld. Trial Court has not taken into consideration the statement of CW-1 Kusum while passing the impugned order of summoning. Ld. Counsel has argued that sufficient material was available on record to summon all the four respondents for having committed the offences under Section 325 IPC as well. Ld. Counsel has taken me through the statement of the witnesses referred to above, to argue that offences under Section 325/323/506/34 IPC are clearly made out against all the four respondents and the Ld. Trial Court erred in summoning only respondents No. 1 & 2 that too under Section 323/506/34 IPC only and in not summoning the respondents No. 3 & 4 at all. Ld. Counsel for the petitioner also urged that offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were also made out against the respondents but the Ld. Trial Court did not summon the accused persons under the Scheduled Tribes (Prevention of Atrocities) Act, 1989 also. C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 3/11
5. On the other hand, Sh. Jagat Rana, Ld. Counsel for the respondent has supported the order passed by the Ld. Trial Court. Ld. Counsel has argued that a revision petition does not lie against an order of summoning in view of the judgment of the Hon'ble Supreme Court in 'Adalat Prasad vs. Roop Lal Jindal' JT 2004 (7) SC 243. Regarding non-summoning of the respondents under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ld. Counsel has replied that there was neither any such prayer in the complaint filed under Section 156 (3) Cr.P.C before the Ld. Trial Court nor any such prayer is there in the present revision petition filed before this court. Regarding non-summoning of all the respondents for offences under the IPC, it has been argued that the Ld. Trial Court found contradictions in the statements of the witnesses, which is apparent from record and hence the Ld. Trial Court rightly did not summon the respondents No. 3 & 4.
6. Heard both the Ld. Counsels and the trial court record has been perused. So far as the preliminary objection regarding non-maintainability of the revision petition against the summoning order is concerned, the same is without merit.
7. In Adalat Prasad's case (supra), a three Judge bench of the Hon'ble Supreme Court in para 15 held as under:
It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 4/11 be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
8. Ld. Counsel for the Petitioner has replied that in view of the Judgment in the case of Rajender Kumar Sitaram Pandey vs. Uttam 1999 (3) SCC 134, a Revision Petition would be maintainable before this Court. In this case, it was held in Para 6 as under:-
"..............This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and therefore the bar under sub Section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and therefore the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub Section (2) of Section 397 of the Code."
9. It is seen from a perusal of the Judgment of Adalat Prasad (supra) that the same was rendered in context of reviewing the order issuing summons. In that case, trial court C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 5/11 had issued summons, and this order was recalled on an application for review by the accused. It was in this context, the Hon'ble Supreme Court held that the remedy against a summoning order is not in review but seeking its quashing under section 482 Cr PC. This case thus did not discuss as to whether a Revision would lie against an order of summoning or not.
10. In K.K. Patel vs. State of Gujarat 2000 (2) JCC SC 523, a Division Bench of the Hon'ble Supreme Court in a case where process was issued by the Magistrate held as under:-
"That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. {vide Amar Nath vs. State of Haryana (1977 4 SCC 137); Madhu Limaye vs. State of Maharashtra (1977 4 SCC 551); V.C. Shukla vs. State through CBI (1980 2 SCR 380); and Rajendra Kumar Sitaram Pande vs. Uttam(1999 3 SCC 134)}. The feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 6/11 in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
11. In Dharmi Lal Tobacco Products Ltd. vs. State of Maharashtra AIR 2009 SC 1032 once again a Division Bench of the Hon'ble Supreme Court held that a revision petition is maintainable against an order of issuance of process.
12. In view of the clear judgments of the Hon'ble Supreme Court in Rajender Kumar Sitaram (supra), K.K. Patel (supra) and Dharmi Lal (supra), a revision petition would be maintainable against an order of issuance of summons and same would not be an interlocutory order. It is thus held that the present revision petition against the order of the Ld. Magistrate issuing summons to the petitioner, is maintainable.
13. So far as non-summoning of the respondents under the Provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned, I do not find any such prayer either in the complaint filed before the C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 7/11 Ld. Trial Court or in the revision petition filed before this court. Admittedly, there was no prayer neither before the Ld. Trial Court in the complaint nor before this court in the revision petition regarding commission of offence under the previsions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. I have also perused the statements of the witnesses on behalf of the complainant recorded by the Ld. Trial Court and none of the witnesses deposed anything that the respondents made any casteist remarks against the petitioners. I, therefore, find no infirmity in the order of the Ld. Trial Court in this regard.
14. That takes me now to the merits of the case regarding non-summoning of all the respondents. Ld. Trial Court formed its opinion about summoning respondents No.1 & 2 after taking into consideration the sworn statements of the witnesses who deposed on behalf of the complainant. The said statement of CWs have also been perused by me.
15. CW-1 Kusum only states that respondents No. 1 , 2 and 4 gave beatings to petitioner No.1 Om Wati. She does not say C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 8/11 anything regarding respondent No.3. Further, she does not say anything regarding any beating having been given to petitioner No.2 Kailash Chand by the respondents. She said that CW-2 Ashima received injuries on her hand by rod. However, in the complaint, the petitioner said that her daughter Ashima received head injuries with five stitches.
16. CW-2 Ashima does not say anything about rod injury given to her mother, petitioner No.1. She also does not attribute anything on respondent No.4 Poonam.
17. CW-3 Om Wati i.e petitioner No.1 does not attribute anything upon the respondents No. 3 & 4.
18. CW-5 Kailash Chand said that respondents No. 3 & 4 came with lathies subsequently. However, this version is not corroborated by other witnesses, namely, CW-2 Ashima, CW-3 Om Wati and CW-1 Kusum. There is thus discrepancies in the statement of all the witnesses. All the witnesses do not say that all the four respondents gave beatings to the petitioners and their daughter Ashima. Different versions of the incident have been given by all the C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 9/11 four witnesses. However, it appears that respondents No.1 & 2 whose role were confirmed by all the four private witnesses did assault the petitioners whereas role of respondents No. 3 & 4 is not being attributed by all the four witnesses in unison.
19. At the stage of summoning under Section 204 Cr.P.C, summons can be issued if in the opinion of the Magistrate, there is 'sufficient ground' for proceeding. This 'sufficient ground' is to be ascertained after taking into account the statements of the witnesses recorded under Section 200 Cr.P.C and then to form an opinion regarding summoning. Taking into consideration the statements of the witnesses recorded by the Ld. Trial Court under Section 200 Cr.P.C, I do not find any infirmity in the impugned order by which only respondents No. 1 & 2 have been summoned under Section 323/506/34 IPC. The revision petition is devoid of merits and is hereby dismissed.
20. Parties are directed to appear before the Ld. Trial Court on 02.12.11.
C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 10/11
21. TCR be sent back to the concerned court alongwith a copy of this order.
22. File be consigned to the Record Room.
Announced in the open court. (RAJEEV BANSAL) Dated:17.11.2011 ASJ-3/SOUTH DISTT.
SAKET COURTS, NEW DELHI.
C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 11/11 C.R. No. 2/10 Om Wati & Anr. Vs Ranbir Singh & Others 12/11