Delhi District Court
Abid Ali S/O Late Shaukat Ali vs State (Nct Of Delhi) on 15 November, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
CR No. 62/14
Abid Ali S/o Late Shaukat Ali,
R/o H. No. 26A, Gali No. 1
Johri Farm, Jamia Nagar,
New Delhi
.....Revisionist
vs
1. State (NCT of Delhi) .....Respondents
2. The S.H.O.
PS Jamia Nagar, New Delhi.
Unique ID : 02406R0230402014
Date of Institution : 12.09.2014
First date in this court : 12.09.2014
Final arguments concluded : 15.11.2014
Decided on : 15.11.2014
JUDGMENT (Oral)
1. The revisionist, being the complainant de facto in a State case, has challenged order dated 17.05.14 of the learned Magistrate rejecting his application under Section 216 Cr.P.C. for alteration of notice which was framed on 20.11.13. On the very first date, while issuing notice to the State, the revisionist was directed to implead the accused persons by filing amended memo of parties, which was done and notice was issued CR No. 62/14 Abid Ali vs. State Page 1 of 7 Pages (2) to the accused persons who are now present as private respondents. I have heard learned counsel for revisionist as well as private respondents. I have also heard learned Additional Public Prosecutor, who supports the revisionist.
2. Briefly stated, the grievance of the revisionist/complainant de facto, supported by State is that inspite of his MLC dated 12.01.2012 prepared at the Jai Prakash Narayan Apex Trauma Center, AIIMS categorically describing the nature of injury as grievous, the learned Magistrate framed notice for offence under Section 323 IPC and even dismissed the application under Section 216 Cr.P.C. of the complainant de facto by way of the impugned order.
3. Learned counsel for revisionist submitted that it was the duty of the learned Magistrate to frame notice in accordance with material on record including the MLC of the revisionist which described the nature of injuries suffered by the revisionist as grievous.
4. Learned Additional Public Prosecutor supporting the revision petition also submitted that the MLC of the revisionist being clear in itself as regards nature of injuries, notice for offence under Section 325 IPC ought to have been framed.
5. Learned counsel for private respondents/accused persons resisted the revision on the grounds that the revision petition is without supporting affidavit of the revisionist; that the application under Section CR No. 62/14 Abid Ali vs. State Page 2 of 7 Pages (3) 216 Cr.P.C. was rightly dismissed by the learned Magistrate since the said provision is not available to complainant de facto and the impugned order is an interlocutory order, so the revision is not maintainable; that the delay of 24 days in filing the revision petition has not been explained; that the MLC of the revisionist fails to describe the kind of fracture suffered by the revisionist; that by relying upon the discharge summary of revisionist which is not a part of charge sheet, the revisionist has committed perjury and even the discharge summary does not pertain to this case since it is dated 01.12.12 while the incident allegedly occurred on 12.01.2012.
6. As regards the maintainability of the present petition on the grounds that the same was brought by the complainant de facto and not the State, there is no challenge from the private respondents. Even otherwise, there is no bar in entertaining the revision brought by private aggrieved party in a State case, as held by the Hon'ble Delhi High Court in the case of Maninder Kaur vs State, 1999 (2) CC Cases 240.
7. At the very outset, it needs to be kept in mind that there is no dispute that MLC of the revisionist prepared at Jai Prakash Narayan Apex Trauma Center, AIIMS forms part of the charge sheet and in the said MLC the injuries suffered by the revisionist have been opined to be grievous in nature. There is also no dispute that where an injured suffers grievous hurt, the offence made out would be under Section 325 IPC and not under Section 323 IPC. However, it is clarified that as per learned CR No. 62/14 Abid Ali vs. State Page 3 of 7 Pages (4) counsel for private respondents, they are disputing that the nature of injuries was correctly opined to be grievous, though they do not dispute that the same are recorded as grievous in the MLC.
8. The dispute raised by the present respondent is that the MLC while opining the injuries to be grievous does not specify the kind of fracture suffered. But that cannot be the basis of ignoring the MLC for the purposes of framing notice.
9. The discharge summary of the revisionist prepared by the Trauma Center, AIIMS, on which reliance has been placed by the revisionist in the present proceedings does not form part of the charge sheet. However, the effort of the private respondents to call for perjury proceedings against the revisionist on the grounds that the discharge summary is dated 01.12.12, so does not pertain to the present issue is a futile argument since the date 01.12.12 mentioned in the discharge summary has to be read as month followed by date followed by year.
10. As regards the contention that the impugned order is interlocutory order, I fail to agree. The test to determine the revisability of an order is as to whether upholding the objections would have culminated the matter. In the present case, by refusing to frame notice for offence under Section 325 IPC, the learned Magistrate culminated the matter to the extent that after full dress trial, it would not be possible to convict the private respondents for offence under Section 325 IPC since CR No. 62/14 Abid Ali vs. State Page 4 of 7 Pages (5) the appropriate notice having not been framed, it would be depriving the private respondents of a fair and informed trial. Therefore, I do not agree that the impugned order is interlocutory order.
11. As regards the contention of private respondents that Section 216 Cr.P.C. is not available to complainant de facto, in my considered view framing of notice is the duty of the trial court. As per Section 251 Cr.P.C., it is for the Magistrate to state to the accused the particulars of the offence of which he is accused and ask him if he pleads guilty or has any defence to make. Therefore, in the present case it was the duty of the learned Magistrate to frame notice in accordance with the material available on the charge sheet, which included MLC of the revisionist. Rather, as reflected from trial court record, the cognizance was taken by the learned Magistrate for offences including the offence under Section 325 IPC. As such, the view taken by the learned Magistrate in the impugned order that the application under Section 216 Cr.P.C. was not moved by the State, so deserved rejection, was not correct view.
12. In the impugned order, the learned Magistrate also made a reference to order dated 18.03.13 of his predecessor in which the injuries were found to be simple and so as per the impugned order, the issue could not be agitated again. A perusal of order dated 18.03.13 of the learned Magistrate would show that the same was passed on a protest petition seeking addition of the offence under Section 392 and 452 IPC; however, CR No. 62/14 Abid Ali vs. State Page 5 of 7 Pages (6) even in that order, apparently the learned Magistrate overlooked that as per MLC the nature of injuries suffered by the revisionist were found to be grievous.
13. In the impugned order, the learned Magistrate also observed that there is no previous order recording that the offence under Section 325 IPC also is made out. In that regard also, the finding of the learned Magistrate is contrary to record since in order dated 12.03.12, the magistrate specifically took cognizance of the offences including the offence under Section 325 IPC, which was one of the offences under which charge sheet was filed.
14. So far as the limitation in filing the revision petition is concerned, the same has been explained by way of separate application for delay condonation, stating that due to illness of his mother in Aligarh, the revisionist got delayed by 24 days in bringing this revision petition. It cannot be said that the ground presented by the revisionist for condonation of delay is not a sufficient ground. Most importantly, the provision under Section 397 Cr.P.C. empowers a court of Sessions to call for and examine on its own also the records of any magisterial court for the purpose of satisfying itself as to correctness, legality and propriety of any order, finding or sentence. Wherever a statute confers suo motu powers on any authority, the said powers have implicit in it an attendant duty to invoke the same to meet the ends of justice. That being so, the CR No. 62/14 Abid Ali vs. State Page 6 of 7 Pages (7) revisional court cannot refuse to intervene and perpetuate the illegality, having noticed the same, on some technical ground like limitation.
15. In nutshell, since the charge sheet was filed for offences including the offence under Section 325 IPC; the cognizance was taken for offences including offence under Section 325 IPC; the MLC of the revisionist specifically records the nature of injuries as grievous, the notice liable to be framed against the accused persons also has to be including for offence under Section 325 IPC.
16. In view of above discussion, I am unable to support the impugned order dated 17.05.14 of the learned Magistrate, so the same is accordingly set aside. Revision petition is allowed and learned Magistrate is directed to frame notice again in accordance with law as discussed above.
7. Copy of this order be sent to learned Magistrate and revision file be consigned to records.
(GIRISH KATHPALIA) ADDITIONAL SESSIONS JUDGE05 SOUTH EAST, SAKET COURTS NEW DELHI ANNOUNCED IN THE OPEN COURT ON 15.11.2014 CR No. 62/14 Abid Ali vs. State Page 7 of 7 Pages