Delhi District Court
Dr. Shambhuji vs Surender Kumar on 16 August, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No.45/12
(Unique I.D. No.02406R0272882012)
Dr. Shambhuji
S/o Late Sh. O.P. Kulshreshtha
R/o E-907, Saraswati Vihar,
Delhi-110034. ...........Revisionist
Versus
Surender Kumar
S/o Sh. Ishwar Singh
R/o D-1, Type-III,
Safdarjung Hospital Staff Quarters,
West Kidwai Nagar,
Delhi-110029 ...........Respondent
Date of Institution :31.10.2012
Date of Pronouncement of Order :16.08.2013
ORDER
1. Vide order dated 28.07.2012, the Ld. Trial Court came to the conclusion that no offence under Section 506/34 IPC is made out in the complaint of the Revisionist/complainant as no specific C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 1/13 allegations of threat were extended by the accused to the complainant, though, threats were extended to other witnesses but they did not make any complaint to the court. By the same order, however, respondent No.1 Surender Kumar was summoned for the offence punishable under Section 500/34 IPC.
2. Grievance of the revisionist/complainant is that the complaint filed by him before the Ld. Trial Court for commission of offence under Section 506/34 IPC by the respondent/accused, has been rejected only on the ground of non-competency of the revisionist to file such complaint, holding that no threats were extended to the complainant. It has been stated that the Ld. Trial Court clearly came to the conclusion that threats were extended to other witnesses but since they did not prefer to make any complaint to the court, the Ld. Trial Court, by the impugned order, refused to summon the respondent/accused, for the offence under Section 506/34 IPC.
3. The revisionist/complainant has appeared in person and has stated that there is no provision in the entire Cr.P.C which prohibits C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 2/13 filing of a complaint by a person against whom the offence was not committed by the accused. He has stated that neither the definition of the word 'complaint' as appearing in Section 2(d) of Cr.P.C contemplates its filing only by the person against whom the offence was committed nor any such embargo is put in Section 190 Cr.P.C which authorises a Magistrate to take cognizance of an offence. It has been stated by the revisionist that there is no concept of locus standi so far as the filing of complaint within the meaning of Cr.P.C is concerned. Reliance has been placed on a pronouncement of the Hon'ble Supreme Court in the case of 'Vishwa Mitra vs. O.P. Podar, AIR 1994 SC 5, which was subsequently followed and reiterated in various judicial pronouncements by the Hon'ble Supreme Court as well as Hon'ble High Courts of different States. The revisionist has argued that since no qualification has been attached to the complainant for filing a complaint for the commission of an offence under Section 506 IPC, non-summoning of the accused for this offence by the Ld. Trial Court only on the ground that the complaint was not filed by the person to whom the threats were extended, is contrary to law, which needs to be corrected in the revisional C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 3/13 jurisdiction by this court.
4. Ld. Counsel for the respondent, however, has vehementally opposed the petition by stating that it can only be the person, who has been threatened, who can file a complaint for commission of offence under Section 506 IPC and since the said person, who was allegedly threatened, has not preferred to file any complaint against the accused, dismissal of complaint under Section 506 IPC is perfectly valid and is in accordance with law. He further argued that even on merits no such offence is made out and hence the Ld. Trial Court was right in not summoning the respondent for the offence u/s 506 IPC.
5. I have heard both the parties and have perused the records of the case. Succinctly stated, the facts of the case, as could be culled out from the impugned order, are that on 08.03.2010 the respondent/accused abused one Dr. S.K. Dass, Addl. Medical Superintendent of Safdarjung Hospital. At that time, the revisionist/complainant was working as Sr. Chief Medical Officer in the same hospital in the Department of Psychiatry, while the accused was working as Chief Sanitary Superintendent in the hospital. A C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 4/13 written complaint was made by the complainant regarding abusive behaviour of the respondent to the Medical Superintendent, for taking necessary action in the matter. Subsequently, the accused is stated to have made insinuations against the complainant to other staff members, lowering his reputation in the eyes of various persons in the office. Thus aggrieved, the revisionist filed a complaint under Section 190 Cr.P.C before the Ld. Trial Court. The complainant examined 9 witnesses including the said Dr. S.K. Dass and himself and by the impugned order, the Ld. Trial Court summoned the accused for having committed an offence under Section 500/34 IPC, but declined to summon the accused under Section 506 IPC for the reason that the person, who was threatened, did not make any complaint to the court and no threats were extended to the complainant.
6. Section 2(d) of Cr.P.C defines a complaint as under:-
'complaint' means any allegation made orally or in writing to a Magistrate with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 5/13
7. If this definition is minutely observed, it is noticed that there is no such requirement put by legislature that the complaint should relate to commission of offence against the complainant only. The words that some person whether known or unknown has committed an offence are comprehensive enough to include even a complaint made by a person against whom the said offence has not been committed. These words do not contemplate filing of a complaint before the Magistrate only by the person against whom the offence was committed. Had it been the intention of the legislature that the complaint should be filed only by the victim, there was no handicap for the legislature to say it in so many words, restricting the filing of a complaint only by the victim. When there is no such restriction imposed by legislature on the competence of the complainant to file the complaint, no such condition can be read in the statute. The intention of the legislature is clear that the criminal justice system can be set into motion by any person. I may hasten to add here that where ever any such qualification is required to be attached to the complainant, the same has been specifically provided by the legislature in the Code of Criminal Procedure itself or in the special C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 6/13 statute. Sections 195 to 199 Cr.P.C prohibit taking of cognizance of certain offences by a Magistrate. Cognizance for those offences can be taken by a Magistrate only if the complaint is filed after following the process required by these Sections. But apart from these five Sections, there are no other impediments prescribed by law under the Cr. P.C. which prohibits filing of a complaint before a Magistrate by a non-victim. In Vishwa Mitra vs. O.P. Podar , AIR 1994 SC 5, Hon'ble Supreme Court made following relevant observations in this regard:-
4. ...... Therefore, from a combined reading of Section 4 (2) with S. 190 of the Cr. P. C., it transpires that upon a complaint filed by a person setting out facts therein which constitutes the offence before a Magistrate specified in Section 190, the Magistrate will be competent to take cognizance of the offence irrespective of the qualifications or eligibility of the complainant to file the complaint. It must, however, be conceded that where a provision to the contrary is made in any statute, which may indicate the qualification or eligibility of a complainant to file the complaint, the Magistrate before taking cognizance is entitled and has power to inquire whether the complainant satisfies the eligibility criteria.
5. It is thus crystal clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 7/13 offence before a Magistrate entitled to take cognizance under Section 190 and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. Section 190 of the Code of Criminal Procedure clearly indicates that the qualification of the complainant to file a complaint is not relevant. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. Even with regard to offences under the Indian Penal Code, ordinarily, anyone can set the criminal law in motion but the various provisions in Chapter XIV prescribe the qualification of the complainant which would enable him or her to file a complaint in respect of specified offences and no Court can take cognizance of such offence unless the complainant satisfies the eligibility criterion but in the absence of any such specification, no Court can throw out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint.
8. In this regard, in A.R. Antulay vs. Ramdas Sriniwas Nayak, AIR 1984 SC 718 a Constitution Bench of the Hon'ble Supreme Court made following observations as under:
C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 8/13
6. It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Criminal P. C. envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position under as (i) Section 187-A of Sea Customs Act, 1878,
(ii) Section 97 of Gold Control Act, 1968, (iii) Section 6 of Imports and Exports Control Act, 1947, (iv) Section 271 and Section 279 of the Income-tax Act, 1961, (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity (Supply) Act. This list is only illustrative and not exhaustive.
While Section 190 of the Criminal P. C. permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Cr. P. C. These specific provisions clearly C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 9/13 indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See Section 2(n), Cr. P. C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendatta or vengeance. If such is the public policy underlying penal statutes, who brings an act or, omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. ..........
C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 10/13
7. The scheme underlying Criminal P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non- cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is 'competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to Court.
9. These observations of Constitution Bench were then approved in Manohar Lal vs. Vinesh Anand 2001 (5) SCC 407 in following words:
5. ...... To pursue an offender in the event of commission of an offence, is to sub-serve a social need -- Society cannot afford to have a criminal escape his liability, since that would bring about a State of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus -- the doctrine of locus-standi is totally foreign to criminal jurisprudence.
C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 11/13
10. Of late, in Subramaniam Swami vs. Manmohan Singh 2012 (3) SCC 64 this proposition has again been reiterated.
11. Having regard to the clear position of law as enunciated by the Hon'ble Supreme Court, it is no more res-integra that a complaint having been filed by a non-victim is maintainable and cannot be thrown out only on the ground that it has not been filed by the victim. In this view of the matter, with this being the position of law, the impugned order refusing summoning because of non-competence of the revisionist to file a complaint under Section 506 IPC against the respondent, cannot stand judicial scrutiny. The Ld. Trial Court clearly erred in law in refusing to entertain the complaint of the Revisionist for offence u/s 506 IPC allegedly committed by the respondent qua a person, other than the complainant. As a result, the impugned order, in so far as it relates to non-summoning of accused for Section 506 IPC due to incompetency of the revisionist, cannot be sustained in law and is hereby set aside.
12. The matter is remitted to the Ld. Trial Court for proceedings further in the matter, treating the revisionist competent to file C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 12/13 complaint under Section 506 IPC for threats (which were not extended to him but to some other witnesses), in accordance with law. It is made clear that this court has not expressed any opinion regarding the merits of the case and only the competence of the Revisionist has been decided.
13. A copy of this order be sent to the Ld. Trial Court concerned.
14. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated:16.08.2013 ASJ-3/South District
Saket Courts, New Delhi
C.R. No. 45/12 Dr. Shambhuji vs. Surender Kumar 13/13