Delhi District Court
Sheela Bai vs Trial Court Vide Which Complaint Of The ... on 28 February, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
ACT SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 661 of 17
Sheela Bai
W/o Late Sh. Jangir Singh
R/o H. No. 18, Jaitpur Village
Badarpur, New Delhi110044 ..........Revisionst
Vs.
Kartar Kaur
W/o Late Sh. Hardeep Singh @ Dalip Singh
Sh. Gyan Singh
S/o Late Sh. Hardeep Singh @ Dalip Singh
Sh. Karnail Singh
S/oLate Sh. Hardeep Singh @ Dalip Singh
Sh. Jagmohan Singh
S/o Late Sh. Hardeep Singh @ Dalip Singh
All R/o H. No. 280, Jaitpur Village
Badarpur, New Delhi110044 ..........Respondents
Instituted on : 07.02.2018 Argued on : 22.02. 2018 Decided on : 28.02.2018 O R D E R 1 The revisionist has impugned the order dated 22.8.2017 passed by Ld. Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 1/6 Trial Court vide which complaint of the revisionist was dismissed for non prosecution.
2 The revision is filed on the grounds that Ld. Trial Court has failed to appreciate the submissions that revisionist was going to deposit the cost of Rs.500/ in DLSA who would have filed the receipt during the course of the day but no such opportunity was granted to her. On22.8.2017 the counsel for the revisionist was not available who was represented by Ms. Sapna Arya, proxy counsel. The evidence could not be recorded earlier due to non availability of the case file. Hence, this revision petition. 3 An application u/s 5 of Limitation Act is filed for the condonation of delay with the averment that on 25.8.2017 the revisionist has applied for certified copy of the order which was delivered on 5.12.2017. There is no delay on her part to file the revision. Hence, this application which is duly supported by an affidavit.
4 Notice of the revision is given to the respondents. 5 The facts of the care are like this. The revisionist has filed a complaint titled as "Sheela Bai v. Kartar and Ors". The respondents have been summoned for the offence u/s 448/506/323/34 IPC. On 7.4.2016 the respondents have been admitted to bail and the case was fixed for precharge Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 2/6 evidence. On 22.8.2017 no witness was present on behalf of revisionist upon which the complaint was dismissed for want of prosecution. 6 Ld. Counsel for the revisionist submitted that there was no delay on the part of the revisionist to examine the witnesses as revision was also filed against the summoning order which delayed the examination of witness. He further submitted that the approach of the Ld. Trial Court is not in accordance with law. He further submitted that dismissal of the complaint for non prosecution has caused prejudice to the revisionist. 7 Ld. Counsel for the respondents submitted that revision is not maintainable. He further submitted that application for condonation of delay should not be allowed as the revision filed by the respondents against the summoning order was not pressed after the dismissal of the complaint by Ld. Trial Court. He further submitted that Ld. Trial court has rightly dismissed the complaint for nonprosecution as revisionist was negligent in prosecuting the complaint.
8 Heard and perused the record.
9 There is delay in filing the revision petition. The delay in filing the revision is on the ground that certified copy was received on 5.12.2017 though it was applied on 22.8.2017. The certified copy placed on record bears the said Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 3/6 details as reflected by the revisionist. The matter should be decided on merits rather than on technicalities. The delay was neither intentional nor deliberate but due to the above stated reasons. There is sufficient cause to condone the delay in filing the revision. The application is allowed. 10 The respondents have been summoned for the offence u/s 448/323/506/34 IPC. The respondents were admitted to bail. The case was fixed for precharge evidence meaning thereby that Ld. Trial Court has adopted the procedure regarding trial of warrant cases instituted otherwise than on a police report. The offence u/s 506 IPC is noncompoundable as punishment is imprisonment which may extend to 7 years or with fine or with both. Ld. Trial Court appears to have invoked this part of section 506 IPC that is why the case was fixed for precharge evidence by treating it as a warrant trial case. The complaint case is treated as warrant trial case so revision is maintainable against the order passed by the Ld. Trial Court. 11 The procedure for the cases instituted otherwise than on a police report is shown from section 244 to section 250 CrPC.
12 Section 244(1) CrPC says that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 4/6 such evidence as may be produced in support of the prosecution. 13 Section 244(2) CrPC says that Magistrate may issue summons to any of the witnesses directing him to attend or to produce any document or thing. 14 Section 245(1) CrPC says that if, upon taking all the evidence referred to in section 244, the Magistrate considers, for the reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. 15 Section 245(2) CrPC says that nothing in this section shall be deemed to prevent, a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
16 It is clear from section 244 CrPC that Magistrate shall take all such evidence as may be produced in support of the prosecution. Section 245 CrPC makes it clear that accused can be discharged only when Magistrate considers that no case is made out against the accused from the evidence on record if it goes unrebutted.
17 These sections nowhere show that the warrant trial case can be dismissed for nonprosecution. The impact of the dismissal of complaint for nonprosecution is the discharge of the accused. The discharge in such a Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 5/6 fashion is nowhere warranted from the section 245 CrPC. The Ld. Trial Court could have directed the revisionist to file the list of witnesses but no such order is passed by Ld. Trial Court. The Ld. Trial Court could have adopted the other procedure in case the revisionist was not leading the evidence but complaint in a warrant trial case cannot be dismissed for nonprosecution. 18 I find infirmity in the order dated 22.8.2017 passed by Ld. Trial Court. The order dated 22.8.2017 is set aside. The revision petition is allowed. The complaint case titled as "Sheela v. Kartar Kaur & Ors" is remanded back to Ld. Trial Court to proceed in accordance with law.
19 Both the parties are directed to appear before Ld. Trial Court on 7.3.2018 20 TCR alongwith copy of this order be sent back.
21 Revision file be consigned to record room.
Announced in the
open court on
28th February, 2018 (SURESH KUMAR GUPTA)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Sheela Bai v. Kartar Kaur - CR No. 661 of 2017 6/6