Delhi District Court
& Sessions Judge : South District : Saket vs State on 8 June, 2017
IN THE COURT OF MS. ASHA MENON : DISTRICT
& SESSIONS JUDGE : SOUTH DISTRICT : SAKET
NEW DELHI
CIS - Cr. Rev. 81682016
CNR DLST01002157 2015
1 Amandeep Gill
S/o Sh. M.S. Gill,
R/o W78, Anupam Garden,
New Delhi.
2 Ekta Gill
D/o Sh. M.S. Gill,
R/o W78, Anupam Garden,
New Delhi. ...Petitioners
Vs.
State ...Respondent
Instituted on : 11.12.2015 Order Reserved on : 07.06.2017 Order pronounced on : 08.06.2017 O R D E R The present revision petition has been filed by Sh. Amandeep Gill and Ms. Ekta Gill against the orders of the Ld., MM 03, South dated 12.08.15 and 26.08.15.
Vide order dated 12.08.15, the Ld. Trial Court directed the framing of charge against the accused persons being the revisionists herein and the charge was actually framed on 26.08.15.
CIS - Cr. Rev. 81682016. Page 1 of 7I have gone through the written submissions filed by the Ld. Counsel for the petitioners. I have heard Sh. Harshvardhan Pandey, Ld. Counsel for the petitioner and Sh. Salim Khan, Ld. Additional Public Prosecutor for the State.
Brief facts as made out from the record are that a complaint case had been filed U/s 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'Act') against M/s Tyagi Pipe Craft Pvt. Ltd., Amandeep Gill and Ekta Gill. The process U/s 82/83 Cr.PC were issued against these accused persons in that complaint case and thereafter the Ld. Trial Court dealing with the complaint U/s 138 of Act directed the registration of an FIR vide order dated 17.05.13 for the offence U/s 174A IPC against the two accused persons. The present matter arises from the proceedings relating to this FIR registered U/s 174A IPC.
The chargesheet was submitted against the accused M.S. Gill for the offence U/s 176 IPC and against the accused Ekta Gill and Amandeep Gill U/s 174A IPC. Cognizance of the offences U/s 174A/176 IPC was taken vide orders dated 05.03.14 by the Ld. Trial Court. Before framing of the charge, arguments were heard on 12.08.15 and on that date the Ld. Trial Court rejected the contention of the Ld. Counsel for the accused that before processes U/s 82/83 Cr.PC could be issued, the Court was bound to issue summons and thereafter bailable warrants and after the nonbailable warrants only, finally the process U/s 82 Cr.PC could be issued. The Ld. Trial Court observed that there was no such provision made in the Code of Criminal CIS - Cr. Rev. 81682016. Page 2 of 7 Procedure which forbid the Court from issuing nonbailable warrants without first issuing bailable warrants in every case where summons were not served.
It also rejected the submission of the Ld. Counsel for the accused that once nonbailable warrants were issued after the process U/s 82 Cr.PC, such issuance of the nonbailable warrants nullified the process U/s 82 Cr.PC. The Ld. Court was of the view that the offence is complete when a person against whom the proclamation is issued fails to appear at the specific place and time. Since the record discloses that after the process U/s 82 Cr.PC was issued against the accused persons, they had not appeared on 14.02.2016, clearly, the offence was prima facie made out. It also observed that these orders were never challenged before any superior Court. Accordingly, it found sufficient material to proceed against the accused Amandeep Gill and Ekta Gill for the offence U/s 174A IPC and against the accused M.S. Gill for the offence U/s 176 IPC Section 174A IPC reads as under :
"Whoever fails to appear at the specified place and the specified time, as required by a proclamation published under sub section (1) of Section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable for CIS - Cr. Rev. 81682016. Page 3 of 7 fine."
Therefore, on the basis of the material available on the record, it is clear that the Ld. Trial Court had not committed any error in concluding that prima facie an offence U/s 174A IPC was made out against the revisionists / petitioners and that charge had to be framed accordingly.
The revisionists / petitioners have submitted that the impugned order was liable to be set aside because the revisionists / petitioners were in another matter in the Tis Hazari Courts and this fact was informed to the Court by the complainant after the process U/s 83 Cr.PC had been returned. It is also stated that this disclosure is in connection to the proceedings U/s 82 Cr.PC as the nonbailable warrants were issued against the revisionists / petitioners. It is also contended that the process U/s 82 Cr.PC had been obtained by the complainant, M/s Tyagi Pipe Craft Pvt. Ltd. by concealing facts as the revisionists / petitioners were being represented by a counsel in the other case.
It is submitted that infact the complainant was delaying the matter by not filing the process fee and that the bailable warrants were never issued and executed against the revisionists / petitioners and the Ld. Trial Court directed the issuance of the nonbailable warrants instead of issuance of bailable warrants. It is further submitted that the revisionist / petitioner no.2 though had gone abroad with her husband in the year 2008, had returned from her matrimonial home on account of estrangement from her husband and her particulars CIS - Cr. Rev. 81682016. Page 4 of 7 were the same as before. It is also submitted that the report of the Process Server was also extremely doubtful. For these reasons, it was prayed that the impugned order be set aside.
The scope of the revision powers is very limited. As held by the Hon'ble Supreme Court of India in the case titled Amit Kapoor Vs. Ramesh Chander in the Criminal Appeal No.1407/2012 the object of the powers of revision is to set right a patent defect or an error of jurisdiction or law, which has to be a well founded error. The error must be grossly erroneous or some material produced should have been ignored or judicial discretion ought to have been exercised arbitrarily or perversely and only in these circumstances would the Court interfere, applying revisionary powers, with the orders of the Ld. Trial Court. None of these circumstances prevail in the present case.
Since the issuance of directions for registration of the FIR is on the record and the facts leading to such directions are also disclosed on the record namely the nonappearance of the revisionists / petitioners, pursuant to the process U/s 82/83 CrPC, the Ld. Trial Court had sufficient material to proceed with the trial after having taken cognizance and direct framing of the charge. There is nothing that discloses error leave alone gross error in the directions of the Ld. Trial Court.
However, in the written submissions, a totally new stand has been taken namely that no Court could take cognizance of the offence U/s 174A IPC without a complaint from the concerned Court. Be that as it may, this submission of the Ld. Counsel for the petitioners CIS - Cr. Rev. 81682016. Page 5 of 7 though founded on several judgements to the effect that cognizance of an offence punishable U/s 188 IPC cannot be taken without the complaint of the Court concerned, is also liable to be rejected. Firstly, as noticed above, the cognizance was taken on 05.03.14 and this was never challenged.
All the judgments including that of the Hon'ble Supreme Court in C. Munippan and Ors Vs. State of Tamil Nadu, JT 2010 (9) SC 95, holding that the cognizance of the offence U/s 188 IPC cannot be taken unless there was a complaint in writing by a competent public servant to deal with the offence U/s 188 IPC. However, the Hon'ble High Court of Delhi had occasion to deal with the same question i.e. could the Magistrate take cognizance of the offence U/s 174A IPC without the written complaint of the Court concerned. This order is in Maneesh Goomer Vs. State in the Crl. M.C. No.4208/2011 and Crl. M.A. No.,19453/2011 decided on 04.01.2012. That case was also in relation to a complaint U/s 138 N.I. Act where the process U/s 82 Cr.PC had been issued and directions for registration of the FIR U/s 174A IPC had been issued by the Ld. Metropolitan Magistrate. The Hon'ble High Court dealing with the contention of the petitioner, being the accused in the matter, that no cognizance could be taken on a chargesheet on a complaint U/s 195 Cr.PC, observed as below :
".....it may be noted that Section 174A IPC was introduced in the Code w.e.f. 23.06.2006. Section 195(1) Cr.PC provides that no Court shall take cognizance of offences punishable U/s 172 to 188 (both inclusive) of the IPC or of the abetment, or attempt to commit CIS - Cr. Rev. 81682016. Page 6 of 7 the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.PC has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code w.e.f 23.06.2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are noncognizable, offence punishable U/s 174A IPC is cognizable. Thus the Police officer on a complaint U/s 174A IPC is competent to register an FIR and after investigation thereon file a chargesheet before the Court of Ld. Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Ld. Counsel for the petitioner."
This judgment applies on all fours to the facts of the present case. The contention of the Ld. Counsel for the petitioners is, therefore, rejected that a complaint is necessary before cognizance of the offence U/s 174A IPC can be taken.
The revision petition is, accordingly, dismissed. The trial court record be returned along with a copy of this order. The parties are directed to appear before the Ld. Trial Court for further proceedings on the date 29.06.17.
The revision petition file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 08.06.2017 District & Sessions Judge (South)
Saket/New Delhi.
CIS - Cr. Rev. 81682016. Page 7 of 7