Delhi District Court
Paraswati Dutta vs Asi Hari Singh (Deleted From Array Of ... on 10 January, 2023
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Revision No. 99/2022
PS- Greater Kailash
U/Sec. 156(3) CrPC
In The Matter Of :-
Paraswati Dutta
W/o Dr. Pradeep Dutta
R/o H. No. A-2, Kailash Colony
New Delhi.
.... Revisionist.
Versus
1. ASI Hari Singh (Deleted from array of parties on 16.03.22)
S/o Sh. Gurmukh Singh
R/o Village Islampur
PS- Sadar Rajpura, District Patiala, Punjab
Alternative Address
C/o SSP Patiala, Mini Secretariat
Patiala, Punjab.
2. Ran Singh (Ct. Delhi Police 2315/SD)
C/o Police Station Mehrauli
New Delhi.
Alternative Address
C/o DCP (South), Hauz Khas
New Delhi.
3. The State (GNCT of Delhi)
Through SHO, PS- Greater Kailash, New Delhi
.... Respondents
Date of Institution : 16.03.2022
Date of Reserve for judgment : 23.12.2022
Date of Judgment : 10.01.2023
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 1 of 18
JUDGMENT
1) Revisionist, who is complainant before Ld Trial court, has filed present revision petition, thereby challenging order dated 13.12.2021, in complaint case no.37/1A/2014(New Number 616597/2016).
2) Revisionist has arrayed ASI Hari Singh and Constable Ran Singh, besides the state as respondents in present petition.
3) After filing of present revision petition, respondent ASI Hari Singh was deleted from the array of parties, on the basis of submissions of Ld. Counsel for revisionist, who had submitted that revisionist has no grievance against ASI Hari Singh. Thereafter, amended memo of parties have filed in which besides Constable Ran Singh, revisionist arrayed the State as respondent no. 2.
4) Revisionist as such wanted that Ld. Trial Court should have summoned Constable Ran Singh also, in impugned order. As such, State was a proforma party against whom no specific prayer was made by revisionist.
5) The net result is that revisionist claimed that Ld. Trial Court by dismissing the complaint case against Constable Ran Singh, vide impugned order, committed illegality and therefore, it should be corrected, by way of present revision petition.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 2 of 186) Revisionist shall be referred as complainant and Constable Ran Singh shall be referred as "accused Ran Singh Ran Singh" in my subsequent paragraphs, in order to avoid confusion.
7) Case of complainant, as per her complaint is that on 15.05.2008, one ASI Hari Singh along with accused Ran Singh Ran Singh, came to her residence around 08.45PM for serving summons on her husband, with respect to one criminal case. ASI Hari Singh was under the influence of alcohol, as complainant smelled it. Husband of complainant was not at home at that time and complainant told Hari Singh and to note down the mobile number of her husband, which was written on the compound wall and talked to him. ASI Hari Singh lost his tamper and abused complainant. ASI Hari Singh told complainant that her husband was inside her house and threatened that he will drag her husband outside the house by making obscene gestures. Complainant repeatedly asked ASI Hari Singh to call her husband but of no avail. That accused Ran Singh did not try to dissuade ASI Hari Singh from threatening, intimidating and terrorizing complainant. In this manner, accused Ran Singh abetted commission of offences punishable u/s 503/506/509/510 IPC. Further, accused Ran Singh gave false evidence by making statement in police station G.K-1, wherein he stated that incident had taken place at 06.30PM. That statement of accused Ran Singh was submitted in the court of sub-divisional judicial Magistrate, Rajpura, Patiala, Punjab on 17.05..2008. Further, ASI Hari Singh in furtherance of his common intention, gave false evidence against husband Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 3 of 18 of complainant by swearing false affidavit on 21.08.2009 in complaint case no.AC/360/2009 in State Information Commission, Chandigarh, Punjab, wherein he stated that incident in question had taken place at 06.30PM. Inspector, Additional SHO G.K.-I, in his inquiry report on 06.07.2008 had stated time of occurrence to be 08.00pm. Therefore, accused Ran Singh along with Hari Singh are guilty of committing offences u/s 191/193 IPC. She claimed that accused Ran Singh and ASI Hari Singh did not follow rules and procedure, for serving summons as they visited the house of complainant, after sunset, in inebriated condition. So, they had illegally trespassed the premises of complainant. Complainant had secured various information from different department through RTI application, which she annexed with the complaint. She also annexed various reports and communications with different departments along with the complaint. She prayed that ASI Hari Singh along with accused Ran Singh must be tried and punished for offences, punishable u/s 191/193/447/503/506/509/510 IPC.
8) The complaint was accompanied with application u/s 156(3) Cr.P.C, vide which complainant prayed for registration of FIR. That application was dismissed by Ld. Trial Court vide order dated 23.02.2012. That order of Ld. Trial Court was challenged by complaint in criminal revision petition no.37/2012 and that revision petition was dismissed by Ld. Sessions Court vide order dated 27.08.2012. the order of Ld. Sessions Court, as such is not set aside by Hon'ble Delhi High Court till date and therefore, has attained finality.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 4 of 189) After dismissal of application u/s 156(3) Cr.P.C, Ld. Trial Court took cognizance of offences, fixed the matter for pre-summoning evidence.
10) Complainant examined eight witnesses in total, in her pre- summoning evidence.
11) She examined herself as CW1. She examined her husband Pradeep Dutta as CW2. Besides that she examined various officials, who brought summoned record with them, from CW3 to CW8. After examining said witnesses, she closed her pre-summoning evidence and matter was fixed for arguments on summoning.
12) After hearing arguments on summoning, Ld. Trial Court dismissed the complaint against accused Ran Singh, vide impugned order and hence, present revision petition.
13) The revision petition was filed within limitation period.
14) In the grounds of revision petition, complainant referred to her case, as mentioned in her complaint and the documents, she had produced during course of pre-summoning evidence, for praying setting aside of impugned order.
15) Accused Ran Singh, claimed that impugned order was rightly Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 5 of 18 passed by the Ld. Trial Court. Apart from that, his counsel argued that since accused Ran Singh is a public servant, being a Delhi Police official, necessary sanction should have been obtained by complainant u/s 197 Cr.P.C, before praying summoning of accused Ran Singh. He also argued that necessary sanction u/s 140 of Delhi Police Act, should have been obtained before prosecuting accused Ran Singh. In support thereof, he relied upon the judgment of Deepak Kumar Versus Ombir Singh & Ors, passed by Hon'ble Delhi High Court in Criminal M.C. 664/15 and Criminal M.A. 2537/15, pronounced on 08.08.2018.
16) Per contra, Ld. Counsel for complainant relied upon case laws viz. Rajender Singh Versus Dharmender Sharma, passed by Hon'ble Delhi High Court in Criminal M.C. No.5598/2014, pronounced on 07.08.2022, Paul George Versus State of N.C.T of Delhi passed by Hon'ble Apex Court in criminal appeal no.501/2008 on 14.03.2008 and Prem Chand Goyal versus Krishan Kumar & Ors, passed by Hon'ble Delhi High Court in criminal M.C. No.2137/1998.
17) Ld. Addl. P.P . for the State argued that petition may be decided as per law.
18) Ld. Trial Court vide impugned order concluded that there is no ground to summon accused Ran Singh. Now, that conclusion is intertwined with the issue of whether bar under Section 140 of Delhi Police Act and under Section 197 of Cr.P.C, were attracted in the given facts and Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 6 of 18 circumstances of this case.
19) I am firstly dealing with the conclusion drawn by Ld Trial Court.
20) As per complainant, there were sufficient grounds to proceed against accused Ran Singh, based on pre-summoning evidence, which was contrary to the conclusion drawn by Ld. Trial Court. In order to appreciate the said rival claims, I have to consider the pre-summoning evidence, brought on record by complainant. Here, I must mention relevant law regarding summoning in criminal cases. Hon'ble Apex Court in case titled as Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., (1998) 5 SCC 749, wherein following observations were made :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 7 of 18 spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record any may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
21) So, in the wake of above observations, summoning in criminal cases is not to be done mechanically. Judicial mind has to be used on the facts and circumstances of each case, before concluding whether a person should be or should not be summoned for committing a criminal offence.
22) Keeping in mind above mentioned law, I am proceeding further.
23) Complainant in her ocular testimony as CW1 deposed that ASI Hari Singh shouted, hurled abuses and made gestures against her. She also claimed that ASI Hari Singh was drunk at that time when he had visited her house around 08.30PM on 15.05.2008. She also claimed that ASI Hari Singh had grabbed her hand and shoulder through window and tried to molest her. ASI Hari Singh had also threatened her. So, all those allegations were basically made by complainant, against ASI Hari Singh only. Surprisingly, on the very first day of filing of present revision petition, complainant through her counsel claimed that she has no grievance against Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 8 of 18 ASI Hari Singh and therefore, ASI Hari Singh was deleted from the array of parties. In the wake of said claim of complainant, I conclude that complainant for reasons best known to her, rested her case against ASI Hari Singh. In other words, all her allegations against ASI Hari Singh were put to rest, by her.
24) Complainant in her pre-summoning evidence deposed that "all the time, the person at the back remained silent and did not make any efforts to save her". That was the only claim of complainant against accused Ran Singh, which aggrieved her towards accused Ran Singh. I failed to understand as to what offence accused Ran Singh had committed, by remaining silent. It was not the case of complainant that both accused Ran Singh and ASI Hari Singh under a pre-planned conspiracy, had visited her house. .it was not her case that alleged wrongful acts of ASI Hari Singh were done at the instance of accused Ran Singh. In her evidence, complainant had claimed that accused Ran Singh (referred as 'another person') was standing at a distance of about 7/8 feet from the place where ASI Hari Singh was standing. Now, possibility of accused Ran Singh not knowing the alleged wrongful acts of ASI Hari Singh, as such cannot be ruled out. In the wake of that possibility, I conclude that accused Ran Singh had not done any illegal act by standing at a distance from ASI Hari Singh.
25) Complainant claimed that accused Ran Singh had abetted the commission of offences punishable u/s 503/506/509/510 IPC by remaining silent at the place of occurrence. That claim is legally not tenable as Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 9 of 18 accused Ran Singh had neither instigated nor engaged or aided ASI Hari Singh in doing alleged criminal acts of criminal intimidation or making of gestures intending to insult the modesty of complainant or misconduct in public by ASI Hari Singh. There was no evidence to the effect that accused Ran Singh had willfully concealed any material fact, which he was bound to disclose or had voluntarily cause or procured or attempted to cause or procured a thing to be done, in the given facts and circumstances of this case. Complainant did not prove the fact that accused Ran Singh had aided ASI Hari Singh in any manner, for the purpose of commission of offences, allegedly done by ASI Hari Singh. There was no evidence of any encouragement or assistance, given by accused Ran Singh to ASI Hari Singh on the day of incident for the purpose of commission of alleged offences. Therefore, even if it is believed that accused Ran Singh was present at the premises of complainant, with ASI Hari Singh, then that fact by itself, did not tantamount to abetment of any offence by accused Ran Singh.
26) So, ocular testimony of complainant did not prima facie prove commission of any offence by accused Ran Singh.
27) Husband of complainant Pradeep Dutta was examined by complainant as CW2. His evidence was based on hearsay, as he got SOS call from his wife on 1505.2008 around 08.30PM. As per his ocular testimony, his wife had told him that she was threatened, touched and misbehaved by two people wearing Khaki uniform in her house compound.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 10 of 18That evidence was very weak in nature for the purpose of summoning accused Ran Singh. Infact, he also did not specify the details of role of accused Ran Singh in alleged crime. Therefore, his testimony did not prima facie prove that accused Ran Singh had committed any offence against complainant.
28) Complainant relied upon various documents which I am appreciating in my subsequent paragraphs.
29) Ex.CW1/1 and Ex.CW1/2 are entry and exit records dated 15.5.2008. Ex.CW1/1 is not decipherable and therefore, is inconsequential. Ex.CW1/2 noted that at 05.20pm, ASI Hari Singh from Rajpura Punjab had come to police station Greater Kailash for getting summons served at A-2, Kailash Colony, New Delhi and has left the police station for the same. Therefore, both the said documents were not incriminating, against accused Ran Singh.
30) Ex.CW1/3 was form-A filled by complainant seeking information regarding facts mentioned therein. Ex.CW1/4 was reply to the said form A in which it was noted that no constable from police station Greater Kailash visited house of complainant on 15.05.2008. That reply is not challenged by complainant, till date and therefore, it has attained finality. It means that accused Ran Singh had not visited the house of complainant, as per records of concerned police station.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 11 of 1831) Ex.CW1/5 was complaint of complainant, addressing ACP Chitranjan Park against ASI Hari Singh and connivance of local Greater Kailash police station, in letting Hari Singh alone to her house. That complaint again did not mention any illegal act being done by accused Ran Singh. That complaint was made against ASI Hari Singh only. It did not help the cause of complainant against accused Ran Singh.
32) Ex.CW1/6 was an application filed by husband of complainant, addressing the office of DCP (South) Hauz Khas New Delhi wherein identity of the concerned constable who had accompanied ASI Hari Singh to the house of complainant amongst other details was sought. It did not implicate the accused Ran Singh with any offence.
33) Ex.CW1/7 was an inquiry report regarding complaint of complainant, filed by Rohitash Kumar, Inspector Law and Order, police station Greater kailash in which it was concluded that accused Ran Singh had not done any illegality against complainant. It also noted that allegations of complainant being terrorized and her modesty being outraged after sunset and ASI Hari Singh, being inebriated condition were not substantiated. It also noted that there was no fault on the part of accused Ran Singh. It did not support the version of complainant .it was not challenged by complainant before concerned authority and therefore, has attained finality.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 12 of 1834) Ex.CW1/8 (Mark E) was letter written by husband of complainant to Depuy Commissioner of police South-East, New Delhi, which noted that accused Ran Singh was standing at a distance of 10 meters from ASI Hari Singh. Now, as per complainant, in her presummoning evidence, she had deposed that accused Ran Singh was standing at a distance of 7/8 feet from ASI Hari Singh in the compound of her house whereas, her husband in Ex.CW1/8 (Mark E) claimed that accused Ran Singh was standing at a distance of 10 meters from the site of the window where the conversation between complainant and ASI hari Singh took place. 10 meters if converted into feet, comes out to 32 feet and 9 inches. Now, there is substantial difference between the version of complainant and her husband in this regard which made the case of complainant doubtful. Further, complaint of complainant Ex.CW1/14 noted that accused Ran Singh was standing at a distance of 5/10 meters from her. So, that fact further confusion in version of complainant. In the light of said appreciation, Document mark E therefore only created confusion. I discarded the same accordingly being not trustworthy.
35) Document Ex.CW4/A, Ex.CW1/12, Ex.CW1/13 & Ex.CW1/14 again were inconsequential regarding the illegal acts, allegedly done by accused Ran Singh. Therefore, I discarded the same.
36) Ex.CW1/8 (colly) was copy of record maintained by Delhi Commission for Women. Those proceedings concluded with the directions that assistant secretary, Delhi Commission for Women, concluded that "the Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 13 of 18 commission decided to write to DCP South, Kailash Colony, Greater Kailash New Delhi for inquiring outraging the modesty of a women". That finding as such did not implicate accused Ran Singh with any offence and therefore, is discarded by me being inconsequential in nature. For the same reason, documents Ex.CW1/10, Ex.CW4/B, Ex.CW1/11 and Ex.CW5/A are discarded by me being inconsequential in nature.
37) The affidavit of ASI Hari Singh Ex.CW1/9 noted that entry was made in Roznamcha vide which accused Ran Singh was deputed to accompany him for serving summons upon husband of complainant. That affidavit was filed by ASI Hari Singh in the concerned court at Rajpura, Punjab and therefore, that court is the concerned court which can appreciate the said document. Therefore, said document is inconsequential for the purpose of adjudication of this case.
38) Ld. Counsel for complainant vehemently argued that as per record there was discrepancy in the record pertaining to visit of accused Ran Singh with ASI Hari Singh to her house and also the time of said visit. He argued that on one hand RTI reply Ex.CW1/4 noted that no constable from police station Greater Kailash visited the house of complainant on 15.05.2008 whereas report of Inspector concerned Ex.CW1/6 noted that accused Ran Singh being a constable, had visited the house of complainant on 15.05.2008 between 7.45 pm to 8 pm. Coupled with the same, said discrepancy was noted in the proceedings before Delhi Commission for Women in Ex.CW1/8 (colly) and in letters Ex.CW1/10 and Ex.CW1/11, Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 14 of 18 written by Member, DCW to DCP concerned. That discrepancy by itself did not make out any offence, as against accused Ran Singh. The officials who were maintaining the record, had to answer the said discrepancy. It is not that accused Ran Singh had prepared the said records. So, discrepancy in the record regarding visit of accused Ran Singh to house of complainant and time of said visit, by itself did not make out any offence against accused Ran Singh.
39) The net result is that, documents filed by complainant did not prima facie attract any offence, being committed by accused Ran Singh.
40) So, the ocular testimonies of complainant witnesses and documents relied by complainant, did not prima facie make out any offence being committed by accused Ran Singh. Based on pre-summoning evidence led by complainant, as such accused Ran Singh cannot be summoned. Ld. Trial Court rightly dismissed the complaint of complainant, as against accused Ran Singh.
41) The next aspect is with regard to the application u/sec. 140 Delhi Police Act. That provision, categorically bars prosecution of police officer who had done any wrongful act, under the colour of his duty or authority or in excess of such duty or authority, if said prosecution is initiated, more than three months after the date of act, complained against said police official.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 15 of 1842) Now, in this case, as per record accused Ran Singh had visited the house of complainant on 15.05.2008. Complainant filed RTI application vide Ex.CW1/3 on 21.05.2008 and got reply of the same on 17.06.2008 vide Ex.CW1/4. She filed complaint to ACP concerned on 02.07.2008 vide Ex.CW1/5. Surprisingly, she filed criminal complaint against accused Ran Singh before Ld. Trial Court on 10.06.2011.
43) In this case as the version of complainant in her complaint and in pre-summoning evidence was that, accused Ran Singh should have dissuaded, ASI Hari Singh from threatening, intimidating and terrorizing complainant. It was claimed by her that accused Ran Singh was in uniform on 15.05.2008 and being a police officer, he should have protected complainant. Since, accused Ran Singh did not do so, so he committed abetment of certain offences. The said claim as such, even if believed to be true indicated that complainant wanted to convey that accused Ran Singh had done wrongful acts by aiding ASI Hari Singh who in turn, had threatened and harassed her. That inaction on the part of accused Ran Singh, as per complainant was done by accused Ran Singh under the colour of his duty. If that is so, then bar of section 140 Delhi Police Act was attracted. The alleged wrongful act of accused Ran Singh was done on 15.05.2008 but complainant filed criminal complaint before Ld. Trial Court on 10.06.2011. It was not filed within three months of said alleged wrongful act of accused Ran Singh. Therefore, complaint was barred u/sec. 140 Delhi Police Act.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 16 of 1844) Lastly, I find that above highlighted inaction on the part of accused Ran Singh, was something which accused Ran Singh did not do, during course of his official duty. As per complainant, being a police officer, accused Ran Singh should have protected her. It means that accused Ran Singh had derelicted in his duty. If that is so, then bar u/sec. 197 CrPC was also attracted. Admittedly, there was no sanction which complainant obtained u/sec. 197 CrPC. Therefore, complaint was barred for the said lack of sanction also.
45) The case laws referred by complainant were distinguishable on fact. They did not help the cause of complainant.
46) In Rajender Singh (supra), it was alleged by the aggrieved party that concerned public servant had defamed him in front of people in the locality and a sum of Rs. 15000/- was forcibly taken from him. Same is not the situation in present case.
47) In Paul George (supra), concerned police officers on the way to destination for conveying urgent message, went over the road divider and hit a scooter being driven by the victim. Same is again not the situation in present case.
48) In Prem Chand Goel (supra), allegations were that concerned police officers had torchered and beaten the aggrieved person in custody. Same is not the situation in present case.
Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 17 of 1849) Accordingly, I conclude that Ld. Trial Court passed correct and legal impugned order. Same needs no interference. Present revision petition is devoid of merits. Same stands dismissed.
50) As such, Constable Ran Singh (2315/SD), did not do any illegal act on 15.05.2008, as alleged by complainant.
TCR be sent back alongwith copy of this judgment to Ld. Trial Court.
Announced in the Open Court Today [PRASHANT SHARMA] ASJ-02, South-East/Saket/Delhi 10.01.2023 Paraswati Dutt Vs Hari Singh , CR No. 99/22 Page 18 of 18