Delhi District Court
State vs . Bharat Pratap on 3 May, 2016
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS:DELHI
(Crl. Revision No. : 29/14)
Unique Case ID No. : 02405R0083172014
FIR No. : 105/09
U/s : 498A/406 IPC
PS : CWC Nanakpura
State Vs. Bharat Pratap
Bharat Pratap
S/o Col. Mahender Pratap
R/o 1901 SADAF,
Jumeira Beach Residence
Dubai UAE
Also at :
C/928, Ansal Palam Vihar,
Gurgaon, Haryana. ... Petitioner
Vs.
1 State of Delhi.
2 Ms. Sanyukta Singh
W/o Mr. Bharat Pratap
B11/8219, Vasant Kunj,
New Delhi ... Respondents
Date of institution of case 01.04.2014
Date on which, order have been reserved 11.04.2016
Date of pronouncement of order03.05.2016
C.R No. : 29/14 1/10
2
ORDER:
The present revision petition has been filed on behalf of the petitioner Bharat Pratap against the impugned order dated 06.09.2013 regarding the framing of the charge passed by the Ld. Trial Court in case bearing FIR No.105/09 u/s 498 A/406 IPC PS: Nanakpura titled as "State Vs. Bharat Pratap".
2. Brief facts necessary for the disposal of the present revisionpetition are that the complainant Ms. Sanyukta Singh filed a complaint before the CAW Cell, Nanakpura regarding the harassment, maltreatment and cruelty meted out to her by her husband Bharat Pratap (petitioner herein) and his other family members on account of insufficiency of dowry and for not meeting their demands of more dowry articles. In the said complaint, it was also alleged that the aforesaid accused persons have also dishonestly misappropriated or converted to their own use the Istridhan articles of the complainant and had not returned the same despite demands. The CAW Cell, Nanakpura inquired into the complaint of the complainant and also made efforts to reconcile the matter between the parties and when the said efforts failed, it recommended the registration of the present FIR bearing no.105/09 u/s498A/ 406/34 IPC at PS: CWC, Nanakpura and accordingly the present FIR was registered. The matter was investigated by the police and thereafter the chargesheet u/s 498A/ 406/34 IPC was filed before the concerned Ld.Trial Court. On the filing of the chargesheet, Ld. Trial Court took the cognizance of the matter and supplied the copies of the chargesheet to the accused persons.
Thereafter, the arguments on the point of charge were heard and vide impugned order dated 06.09.2013 passed by the Ld. Trial Court, it was held that no charge was made out against the coaccused Geeta Pratap (motherinlaw of the complainant) & Anjali Pratap (sisterinlaw of the complainant) and accordingly, C.R No. : 29/14 2/10 3 they were discharged and further, it was held that primafacie case for framing charge u/s 498A IPC & u/s 406 IPC was made out against the accused Bharat Pratap and accordingly, the charge u/s 498A IPC and u/s 406 IPC was framed against the accusedBharat Pratap (petitioner herein) by the Ld. Trial Court.
Aggrieved by the aforesaid impugned order 06.09.2013 passed by the Ld. Trial Court, the petitioner Bharat Pratap has filed the present revisionpetition wherein it has been prayed that the said impugned order dated 06.09.2013 qua the petitioner herein, may be set aside and the petitioner/accused may be discharged.
3. Upon filing of the present revisionpetition, the notices were issued to the respondentsState and Ms. Sanyukta Singh and accordingly, the said respondents entered their appearance.
Trial court record (hereinafter referred as 'TCR') was also summoned and the same has been received.
4. I have heard the arguments on the revisionpetition put forward by the Ld. counsel for the petitioner and Ld. Addl. PP for the respondent no.1 State and have carefully gone through the record of the case.
Arguments have not been addressed on behalf of the respondent no. 2 Ms. Sanyukta Singh, despite opportunity being given.
5. It has been submitted on behalf of the petitioner that impugned order dated 06.09.2013 passed by the Ld. Trial Court was against the settled provisions of law and was not sustainable both in facts and law. It is further submitted that Ld.Trial Court has not properly dealt with the issue of limitation and erred in calculating the period of limitation while erroneously holding that the case falls C.R No. : 29/14 3/10 4 within the period of limitation by attributing that the time was taken in counseling in CAW Cell and the time was also taken for lodging the FIR after permission granted by the DCP concerned after the period of settlement. It is submitted that Ld. Trial Court seriously erred in ignoring that it was not the date of lodging of FIR which was the commencement of the period of limitation but the said period has to be computed from the period the cause of action has arisen. It is further submitted that the cause of action in the present case has arisen at the time when the complainant had left her matrimonial home on 02.04.2009 and her first complaint was lodged on 22.04.2009 and thereafter the chargesheet was filed on 24.05.2012 and hence the entire case was time barred. It is submitted that Ld. Trial Court erred by giving plausible explanation to the extent that mediation proceedings were taking place at CAW Cell, although no mediation was conducted between the parties at CAW Cell and only notices were given for participation of proceedings at CAW Cell and hence Ld. Trial Court erred in holding that time was lost on account of mediation proceedings. It is further submitted that Ld. Trial Court has failed to appreciate that no explanation whatsoever have been given for the delay caused in obtaining permission from the DCP concerned and in the absence of any explanation, the period of the limitation cannot be deemed to be extended and thus the Ld. Trial Court erred in holding that the case has been filed within the limitation period. It is submitted that Ld. Trial Court also erred in holding that court at Delhi was having jurisdiction to try the present case, although no cause of action has arisen at Delhi in this case. It is further submitted that the matrimonial home of the complainant was at Gurgaon and during the most part of her matrimonial life, the complainant had resided with accused Bharat Pratap at Dubai and thus, only the Dubai Court or the Gurgaon Court had the jurisdiction and Ld. Trial Court erred in holding that the courts at Delhi also have the jurisdiction to entertain and try the present case. It is submitted that the Ld. Trial Court has failed C.R No. : 29/14 4/10 5 to appreciate that the allegations made in the complaint were too vague and general in nature and erred in holding that the charge for committing the offences u/s 498A and u/s 406 IPC were made out against the petitioner herein. It is further submitted that the Ld. Trial Court erred in not considering the fact that to constitute an offence u/s 406 IPC, it is essential that there must be a specific allegation that the accused was entrusted with some properties and the accused dishonestly misappropriated or converted the same for his own use and lastly refused to return the articles when the same were demanded and in the instant case, no such allegations have been made and as such Ld. Trial Court erred in holding that the charge for committing the offence u/s 406 IPC was made out against the petitioner herein. It is submitted that the Ld.Trial Court has failed to appreciate that in the entire chargesheet, there was no proximity in the conduct of the petitioner or harassment in connection to any dowry demand and as such entire case of the complainant do not come within the purview of Section 498A IPC and hence Ld. Trial Court erred in framing the charge u/s 498A against the petitioner. It has also been submitted that the Ld. Trial Court has seriously erred in framing the charges against the petitioner herein, although no sufficient material for framing of charge qua him was available on record in this case.
It has been further submitted that the impugned order dated 06.09.2013 passed by the Ld. Trial court was erroneous and was based on surmises & conjectures and mere assumptions & presumptions and was not sustainable in law and it has been prayed that the impugned order dated 06.09.2013 passed by the Ld. Trial Court may be set aside and the petitioner may be discharged.
In support of his contentions, Ld. counsel for the petitioner has relied upon the case law cited as 2001 V AD (Delhi) 411, 2002 II AD (Delhi) 285, Order dated 10.08.2010 passed by the Hon'ble High Court of Delhi in Crl. MC No. C.R No. : 29/14 5/10 6 799/2009, III (2004) CCR 130 (SC), 104 (2003) DLT 824, (1999) 4 SCC 690, MANU/HP/0100/2010 and Judgment dated 03.03.2005 passed by the Hon'ble Supreme Court of India in Appeal (Crl.) 372/2005.
6. On the other hand, it has been submitted by the Ld. Addl. PP for the respondent no. 1 State that there was no illegality or irregularity in the impugned order dated 06.09.2013 regarding framing of charge qua petitioner Bharat Pratap passed by the Ld. Trial Court. It is further submitted that the clear and specific allegations regarding maltreatment, torture and harassment on account of insufficient dowry have been made by the complainant against the petitioner in her complaint before the police. It is submitted that the complainant has also alleged the misappropriation of her Istridhan articles by the petitioner and as such the charge under the relevant provisions of law have been rightly framed by the Ld. Trial Court. It is further submitted that Ld. Trial Court has rightly held that the court at Delhi was having jurisdiction as part of the offence of cruelty and harassment was committed by the petitioner within the jurisdiction of the courts at Delhi. It is submitted that Ld.Trial Court has also correctly dealt with the question of limitation and has rightly held that complaint was filed by the complainant within the limitation period of commission of offence.
It has been further submitted on behalf of the respondent no. 1 State that Ld. Trial Court has properly considered and appreciated the material on record and have rightly ordered the framing of charge against the petitioner. Ld. Addl. PP submitted that case law relied upon by Ld. counsel for the petitioner was not applicable as the facts and circumstances of the present case were different from the facts and circumstances of the cases discussed therein. Ld. Addl. PP also submitted that there was no illegality or irregularity in the impugned order dated 06.09.2013 C.R No. : 29/14 6/10 7 passed by the Ld. Trial Court and he prayed that present revision petition filed on behalf of the petitioner may be dismissed.
7. I have carefully considered the submissions made on behalf of the petitioner and the respondent no. 1 State and have carefully gone through the record of the case. I have also carefully perused the TCR and case law relied upon by the Ld. counsel for the petitioner.
It is pertinent to mention here that the arguments have not been addressed on behalf of the respondent no. 2 Ms. Sanyukta Singh, despite opportunity being given.
8. In the present case, vide impugned order dated 06.09.2013, the Ld. Trial Court held that primafacie case for committing the offences u/s 498A IPC & u/s 406 IPC was made out against the accused Bharat Pratap (petitioner herein) and accordingly, the charge for committing the said offences have been framed against the petitioner herein by the Ld. Trial Court.
9. It has been submitted on behalf of the petitioner that impugned order dated 06.09.2013 passed by the Ld. Trial Court was against the settled provisions of law and was not sustainable both in facts and law. It is further submitted that Ld.Trial Court has not properly dealt with the issue of limitation and erred in calculating the period of limitation while erroneously holding that the case falls within the period of limitation by attributing that the time was taken in counseling in CAW Cell and the time was also taken for lodging the FIR after permission granted by the DCP concerned after the period of settlement. It is submitted that Ld. Trial Court seriously erred in ignoring that it was not the date of lodging of FIR which was the C.R No. : 29/14 7/10 8 commencement of the period of limitation but the said period has to be computed from the period the cause of action has arisen. It is further submitted that the cause of action in the present case has arisen at the time when the complainant had left her matrimonial home on 02.04.2009 and her first complaint was lodged on 22.04.2009 and thereafter the chargesheet was filed on 24.05.2012 and hence the entire case was time barred. It is submitted that Ld. Trial Court erred by giving plausible explanation to the extent that mediation proceedings were taking place at CAW Cell, although no mediation was conducted between the parties at CAW Cell and only notices were given for participation of proceedings at CAW Cell and hence Ld. Trial Court erred in holding that time was lost on account of mediation proceedings. It is further submitted that Ld. Trial Court has failed to appreciate that no explanation whatsoever have been given for the delay caused in obtaining permission from the DCP concerned and in the absence of any explanation, the period of the limitation cannot be deemed to be extended and thus the Ld. Trial Court erred in holding that the case has been filed within the limitation period. It is submitted that Ld. Trial Court also erred in holding that court at Delhi was having jurisdiction to try the present case, although no cause of action has arisen at Delhi in this case. It is further submitted that the matrimonial home of the complainant was at Gurgaon and during the most part of her matrimonial life, the complainant had resided with accused Bharat Pratap at Dubai and thus, only the Dubai Court or the Gurgaon Court had the jurisdiction and Ld. Trial Court erred in holding that the courts at Delhi also have the jurisdiction to entertain and try the present case. It is submitted that the Ld. Trial Court has failed to appreciate that the allegations made in the complaint were too vague and general in nature and erred in holding that the charge for committing the offences u/s 498A and u/s 406 IPC were made out against the petitioner herein. It is further submitted that the Ld. Trial Court erred in not considering the fact that to constitute an offence u/s C.R No. : 29/14 8/10 9 406 IPC, it is essential that there must be a specific allegation that the accused was entrusted with some properties and the accused dishonestly misappropriated or converted the same for his own use and lastly refused to return the articles when the same were demanded and in the instant case, no such allegations have been made and as such Ld. Trial Court erred in holding that the charge for committing the offence u/s 406 IPC was made out against the petitioner herein. It is submitted that the Ld.Trial Court has failed to appreciate that in the entire chargesheet, there was no proximity in the conduct of the petitioner or harassment in connection to any dowry demand and as such entire case of the complainant do not come within the purview of Section 498A IPC and hence Ld. Trial Court erred in framing the charge u/s 498A against the petitioner. It has been submitted that the Ld. Trial Court has seriously erred in framing the charges against the petitioner herein, although no sufficient material for framing of charge qua him was available on record in this case. It has also been further submitted that the impugned order dated 06.09.2013 passed by the Ld. Trial court was erroneous and was based on surmises & conjectures and mere assumptions & presumptions and was not sustainable in law.
The aforesaid submissions made on behalf of the petitioner have been denied on behalf of the respondent no.1State, however, I find considerable force in the said submissions made on behalf of the petitioner as the perusal of the impugned order dated 06.09.2013 reveals that the Ld.Trial Court has failed to properly appreciate the material on record and has also not properly considered or dealt with the contentions put forward on behalf of both the parties. The perusal of the record further reveals that the Ld.Trial Court has also not properly appreciated the submissions made on behalf of the petitioner herein and have not given clear and specific findings in respect of the various contentions raised on behalf of both the parties. In these circumstances, in my considered opinion, the impugned order dated C.R No. : 29/14 9/10 10 06.9.2013, qua petitionerBharat Pratap, passed by the Ld.Trial Court is not sustainable in law and is liable to be set aside.
10. Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, the impugned order dated 06.9.2013 qua petitioner herein, passed by the Ld.Trial Court is set aside and the present matter is remanded back to the concerned Ld.Trial Court, who shall hear the matter afresh qua the framing of charge in respect of accused Bharat Pratap ( petitioner herein) and shall record the clear and specific findings in respect of the various contentions raised on behalf of both the parties, in accordance with law.
Parties are directed to appear before the concerned Ld.Trial Court on 11.5.2016, for Further Proceedings.
TCR alongwith copy of this order be sent back to the concerned Ld.Trial Court.
In view of the above, the present revision petition filed on behalf of the petitioner Bharat Pratap stands disposed of.
Revision file be consigned to the record room.
(Announced in the open ) ( Paramjit Singh)
(court on 03.5.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
C.R No. : 29/14 10/10
11
CR No. 29/14
03.5.2016
Present: None for the petitioner
Sh. Pramod Kumar, Addl.PP for respondent no.1 State.
None for respondent no.2.
Vide separate order, announced in the open court, the impugned order dated 06.9.2013 , qua petitioner herein, passed by the Ld.Trial Court has been set aside and the present matter has been remanded back to the concerned Ld. Trial Court, who shall hear the matter afresh qua the framing of charge in respect of accused Bharat Pratap (petitioner herein) and shall record the clear and specific findings in respect of the various contentions raised on behalf of both the parties, in accordance with law.
Parties are directed to appear before the concerned Ld. Trial Court on 11.5.2016 for Further Proceedings.
TCR alongwith copy of the order be sent back to the concerned Ld. Trial Court .
In view of the above, the present revision petition filed on behalf of the petitioner stands disposed of.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 03.5.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
C.R No. : 29/14 11/10