Delhi District Court
Cr No. 119/13. Pankaj Malhotra vs . State & Others. on 9 July, 2014
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 119/2013.
Pankaj Malhotra,
S/o Jugal Kishore Malhotra,
R/o H. No. 33, Pocket1,
PhaseII, Sector 13,
Dwarka, Delhi110075. ... Revisionist.
Vs.
1. State of Delhi,
(NCT of Delhi).
2. Lalita,
D/o Beju Nayak,
R/o Village Shakambar,
Post Office Raibogarh,
District Sundergarh, Orrisa.
3. J.B. Karki,
DCP Office,
PS Parliament Street Complex,
District New Delhi, New Delhi.
Also at:
H. No. 69, Pocket1, PhaseII,
Page No. 1. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
Sector13, Dwarka, New Delhi.
4. Simmy Chandel,
W/o Surender Kr. Chandel,
R/o H. No. RZ152, BlockA,
Patel Garden, New Delhi110059.
5. Santosh Sharma,
W/o Not Known,
R/o H. No. 36, Pocket1,
Phase2, Sector13,
Dwarka, New Delhi. ... Respondents.
Date of Institution. : 4.7.2013.
Arguments Advanced On. : 22.5.2014.
Date of Order. : 9.7.2014.
9.7.2014.
Present: Revisionistcomplainant in person.
Sh. Pramod Kumar, ld. Addl. PP for
State/respondent no. 1.
None for respondents no. 2 and 5.
Respondents no. 3 and 4 in person.
The present criminal revision petition is fixed for order, for today.
Arguments on the present criminal revision petition were addressed by Sh. D. Hasija, ld. counsel for revisionist, Sh. Page No. 2. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others. Pramod Kumar, ld. Addl. PP for State/respondent no. 1 and Sh. J.K. Dhingra, ld. counsel for respondents no. 3 to 5. None had appeared on behalf of the respondent no. 2 inspite of her deemed service by way of publication as per order dated 4.10.2013 and no arguments were addressed on her behalf.
I have perused the entire record including TCR, written submissions filed on behalf of the revisionist, respondents no. 3 and 4 and respondent no. 5, carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 CrPC filed by the revisionistcomplainant is to the impugned order dated 25.8.2012 passed by Sh. Harjyot Singh Bhalla, the then ld. MM, Dwarka Courts, Delhi, in complaint case no. 30/1, titled as "Pankaj Malhotra Vs. Lalita & Others", whereby the ld. Trial Court had dismissed the application u/s 156 (3) CrPC of the revisionist herein for giving direction to the police to register an FIR against the respondents no. 2 to 5 and fixed the case for pre summoning evidence.
2. The case of the revisionist is that inspite of making a Page No. 3. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
complaint against the respondents no. 2 to 5 before the SHO PS Dwarka for commission of offences punishable u/s 107/182/195/195A/203/211/389/499/500/120B/ 34 of IPC, no action was taken by the police and even after reporting the matter to the higher police officials, no action was taken by them also. Thereafter, the revisionist had filed the original complaint case against the respondents no. 2 to 5 herein and the ld. Trial Court vide its order dated 23.12.2010, directed the police to file status report/action taken report on the aforesaid complaint of revisionist herein and pursuant thereto, the police had filed its action taken report on 20.1.2011, wherein it was stated that the complainant could not be contacted and the accused persons have denied their role. Thereafter, on 5.3.2011, the ld. Trial Court directed the Inquiry Officer, who had filed status report on 20.1.2011, to file another status report. Consequently on 27.4.2011, the Inquiry Officer had filed another status report dated 27.4.2011. It is also the case of the revisionist that he had filed another petition u/s 482 CrPC bearing Crl. M.C. No. 2325 of 2013 before the Hon'ble Delhi High Court, which was withdrawn by the revisionist on 30.5.2013, with liberty to file the present petition. Page No. 4. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
3. In the present criminal revision petition, the revisionist had taken the ground that the ld. Trial Court failed to appreciate that the complaint of the revisionist herein specifically disclosed the commission of all the aforesaid offences and out of which Section 389 IPC was cognizable and in cases of such a nature, thorough investigation by the police is required to find out the modus operandi of the offences committed by the accused persons. It was also urged that once the complaint disclosed the commission of cognizable offences, the police has no power to refuse the registration of FIR. It is also the case of the revisionist that even if the said information did not furnish all the details, it was the duty of the police to find out the same during investigation and to collect all necessary evidences. It was also contended that the revisionist inter alia wanted the police to discover the previous and subsequent conduct of the respondents no. 2 to 5 so as to procure evidence to prove their common intention and conspiracy, as the revisionist himself may not be able to produce the same before the Court. It was also stated that the police had filed the status report on the basis of reply given by the respondents no. 2 to 5 Page No. 5. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
during preliminary inquiry, whereas no inquiry was made about the fact of demanding of Rs. 10 lakh by the respondents no. 2 to 5 from the revisionist, although it was specifically mentioned in the original complaint that the respondents no. 2 to 5 had approached the mother and brother of the revisionist, for not pursuing another complaint made by the respondent no. 2 against the revisionist, and to depose in favour of the revisionist. It is also the case of the revisionist that at the stage of registration of a case on the basis of the information disclosing a cognizable offence in compliance to Section 154 (1) CrPC, the concerned police official cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. It was further contended that the ld. Trial Court committed grave illegality by not directing the police to register an FIR and instead directing the revisionist to lead pre summoning evidence. It was also the case of the revisionist that there is nothing in Section 156 (3) CrPC to suggest that a magistrate can ask for a status report/preliminary inquiry/action taken report/additional action taken report from the police, Page No. 6. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
which is not meant to be a report in terms of Section 173 (1) CrPC. Accordingly, it was prayed that the impugned order may be set aside and the present revision petition may be allowed. Ld. counsel for revisionist had relied upon the following judgments:
(i) Amit Khera Vs. Govt. of NCT of Delhi & Others, 2010 (4) JCC 2515.
(ii) Acharya Arun Dev Vs. State & Another, 2005 (2) JCC 897.
(iii) Kuldeep Singh Vs. State, 1994 Cri. LJ 2502.
(iv) Priya Gupta Vs. The State, 2007 (2) JCC 1330.
(v) Satish Kumar Goyal Vs. State & Others, 2000 II AD (Delhi) 841.
(vi) Abhay Nath Dubey Vs. State of Delhi & Others, 2002 VI AD (Delhi) 528.
(vii) Lallan Chaudhary & Others Vs. State of Bihar & Page No. 7. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
Another, 2006 (3) JCC 1731.
(viii) Ramesh Kumari Vs. State (NCT of Delhi) & Others, (2006) 2 SCC 677.
(ix) Rajni Palriwala Vs. D. Mohan, 2009 (3) JCC 1896.
(x) Shanti Devi Vs. State, 2002 (2) JCC 794.
(xi) Udaybhan Shuki Vs. State of UP & Others, 1999 Cri. LJ 274.
(xii) Manohar Singh & Another Vs. State & Others, 2013 (4) AD (Delhi) 189.
(xiii) Ajay Malviya Vs. State of UP & Others, 2001 Cri. LJ 313.
(xiv) Sabir Vs. Jaswant & Others, 2002 Cri. LJ 4563.
(xv) Ram Dhan Vs. State of UP & Another, (2012) 5 SCC 536. Page No. 8. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
(xvi) Perumal Vs. Janaki, Criminal Appeal No. 169 of 2014, decided on 20.1.2014 by Hon'ble Supreme Court.
(xvii) State of Punjab Vs. Raj Singh & Another, (1998) 2 SCC 391.
(xviii) Srinivas Gundluri & Others Vs. Sepco Electric Power Construction Corporation & Others, (2010) 8 SCC 206.
4. Per contra, ld. counsel for respondents no. 3 to 5 strongly opposed the arguments advanced on behalf of the revisionist and had stated that there is no infirmity or illegality in the impugned order and the ld. Trial Court had passed a just and reasonable order in the given facts as per law and no interference in the same is called for. He had accordingly prayed that the present revision petition may be dismissed. Ld. counsel for respondents no. 3 to 5 had relied upon the following judgments:
(i) Amar Nath & Others Vs. State of Haryana & Others, 1977 4 SCC 137.
Page No. 9. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
(ii) Madhul Maya Vs. State of Maharashtra, AIR 1978 SC 47.
(iii) Ripen Kumar Vs. Department of Customs, 88 (2000) DLT 541 (DB).
(iv) Karan Singh Vs. Ram Singh & Others, 1995 (3) RCR 143.
(v) Skipper Beverages Pvt. Ltd. Vs. State, 92 (2001) DLT 217.
(vi) Ram Babu Gupta & Another Vs. State of UP & Others, 2001 All. LJ 1587.
(vii) Gulab Chand Upadhyaya Vs. State of UP & Others, 2002 Cri. LJ 2907.
(viii) Sukhwasi Vs. State of UP, 2008 Cri. LJ 472.
(ix) Gopal Krishan Dua Vs. State, 2009 (2) JCC 1153. Page No. 10. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
(x) Brahm Prakash Gupta Vs. State, 2008 (106) DRJ 199.
(xi) Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Pvt. Ltd. & Another, (2009) 2 SCC 363.
(xii) Rajesh Jain Vs. State (NCT of Delhi) & Others, 170 (2010) DLT 363.
(xiii) Mona Panwar Vs. Hon'ble High Court of Judicature at Allahabad through its Registrar & Others, 2011 Cri. LJ 1619.
(xiv) Ravindra Kumar Vs. State (Govt. of NCT of Delhi) & Another, 2013 (4) JCC 2505.
(xv) K. Venkateshwarlu Vs. State of Andhra Pradesh, AIR 2012 SC 2955.
(xvi) M.K. Sharma Vs. UOI & Others, 172 (2010) DLT 360 (DB).
(xvii) Abdul Rehman & Others Vs. K.M. AneesulHaq, Page No. 11. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
2013 (4) Crimes 408 SC.
(xviii) Balappa & Another Vs. State of Karnataka, 2011 Cri. LJ 4804.
5. The relevant portion of the impugned order dated 25.8.2012 is reproduced as under: "... ... ...
1. Complainant has filed the present complaint u/s 200 CrPC on the ground that complainant was a peace loving law abiding citizen having clean antecedents and was residing alongwith his widowed mother and his elder brother and sister in law. The accused no. 1 was working as a maid servant in their house at the address mentioned in the memo of parties. The accused no. 2 was the President, accused no. 3 was the Cashier and the mother of the complainant was the Vice President of the groups housing society concerned at the relevant time. There were political rivalries between the mother of the complainant and the accused no. 2 to 4 herein.
2. The accused no. 2 to 4 were constantly objecting to the parking of a catering van owned by the complainant in the parking of the society and several false complaints were Page No. 12. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
made by the accused no. 2 to 4. On 2.4.2008 all the accused persons in furtherance of their common intention lodged a false complaint with PS Dwarka falsely alleging that accused no. 1 maid servant of the complainant was being raped by the complainant for the last one month. It was further alleged that on the night of 1.4.2008 the complainant slapped accused no. 1 while he was taking his meals and accused no. 1 had came out of flat and intimated accused no. 3 who in turn consulted with accused no. 2 and police were informed by accused no. 2. It is also submitted that accused no. 2 and 3 had given information to police on the night intervening between 1/2.4.2008 at about 12.30 am that servant of Flat No.58, Sector 13, NSIT, Dwarka was being badly beaten, based upon which DD No. 4PP dated 2.4.2008 was was lodged. Accused no. 1 alongwith other accused came to police station Dwarka and false allegations of rape were levelled resulted into recording of FIR No. 215/08. False statements were given u/s 161 CrPC to the IO and complainant was taken into custody on 2.4.2008 and remained in custody upto 21.8.2008 for a period of 2 years, 4 months and 18 days without any benefit of bail. Vide judgment dated 21.8.2010 complainant herein was acquitted of the office u/s 376 IPC.
3. It is the case of the complainant that allegations were made against him to tarnish his image in the society and relatives and Page No. 13. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
friends and amounted to defamation. It has also been stated that during the pendency of the case, the accused persons had demanded a sum of Rs. 10 lakh to hush up the matter or depose in favour of the complainant in the Court. Complainant has also stated that offence u/s 182/195/195A/203 and 211 IPC have been committed by all the accused persons and offence u/s 107 IPC was committed by accused no. 2 to 4 when they abetted lodging of false complaint by accused no. 1 against the complainant herein.
4. In my opinion as far as offence u/s 182/195/195A and 211 IPC are concerned, this Court cannot take cognizance unless a complaint in writing was made by public servant or by the Court concerned. Therefore, I cannot take cognizance of the said offence. As far as offence u/s 203 is concerned, same is not applicant as no offence has been committed about which false information was given. False information alleging commission of offence is not covered u/s 203 IPC. Section 203 envisages giving false information which a person knows or believes to be false about an offence which has been committed and not where although no offence has been committed and a false complaint has been lodged. As far as the allegations regarding defamation are concerned, no doubt alleging that a person committed such a heinous crime may tarnish his image in the society and even amongst the family members.
Page No. 14. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
5. I have perused the judgment dated 21.8.2010 pronounced by ld. ASJ Ms. Ravinder Kaur wherein she has categorically observed that dispute with the family of the accused over parking of their vehicle took an ugly shape resulting in false implication of complainant herein in such a heinous offence. The ld. Judge also observed that it was very unfortunate that the members of the society out of sheer vengeance over the issue of parking of their vehicles used a maid servant to satisfy their grudge and got the complainant herein falsely implicated in the offence of rape. I, therefore, take cognizance of the offence of defamation u/s 499/500/34/107/120B IPC.
6. There are also allegations that during pendency of trial for the said case Rs. 10 lakh was demanded from the complainant herein. I, therefore, take cognizance of offence u/s 383/34/120B of IPC. ... ... ..."
6. I find no force in the arguments of the ld. counsel for revisionist that the ld. Trial Court should not have called for the action taken report on the complaint of the revisionist and rather straightaway should have directed for registration of FIR once the complaint disclosed the commission of cognizable offences. Hon'ble Delhi High Court in the case titled as "Subhkaran Luharuka Vs. Page No. 15. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
State", Crl. M.C. No. 612223 of 2005, held as under: "52A. For the guidance of subordinate Courts, the procedure to be followed while dealing with an application under Section 156 (3) of the Code is summarized as under:
(i) Whenever a Magistrate is called upon to pass orders under Section 156 (3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the complainant under section 154 (3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He Page No. 16. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused.
In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
Page No. 17. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filled along with a complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint.
However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the prerequisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
7. Thus, as per the ratio of aforesaid case law, it was justified for the ld. Trial Court to call for the action taken report on the complaint of the revisionist from the police, Page No. 18. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
even if the complaint disclosed cognizable offences. The same was all the more necessary since at the time of consideration of the application u/s 156 (3) CrPC on the first date, neither the proposed accused persons are a party nor they are heard and even the IO is not present so it is not clear to the Court as to what action in the matter has been taken by the police or whether the FIR in the matter has been registered or whether the complaint made by the complainant to the police has been filed. This is also necessary to avoid passing of an order for registration of FIR in the matter where on the complaint of the complainant, the police has already register an FIR and the complainant is not aware of the same.
8. The revisionist himself has admitted that in the first action taken report filed by the police on 20.1.2011, it was stated that they could not contact the revisionist and the respondents no. 2 to 5 had denied their role.
9. As regards the contention of the revisionist that the ld.
Trial Court called again for the status report vide order dated 5.3.2011, the same is not borne out from the record as the ld. Trial Court merely observed that it considered it Page No. 19. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
fit before passing direction to the IO, who had filed status report, to appear in person. However, the police on its own had filed another action taken report dated 27.4.2011 on that date. The earlier action taken report called by the ld. Trial Court was regarding the action taken by the police on the complaint of the revisionist and not the status report regarding investigation done by the police, as claimed by the ld. counsel for revisionist.
10. The law how to exercise the power u/s 156 (3) CrPC has been described in following two judgments: In "M/s Skipper Beverages Pvt. Ltd. Vs. State", 2002 CRL LJ NOC 333 (Delhi), it was held: "Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order u/s 156. But case, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before Page No. 20. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
Court, and interest of justice demand that police should step into to help complainant, police assistance and be taken. Thus, where allegations of theft of cheque and forgoing of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under section 156(3) would be justified." In another case titled "Gulab Chand Upadhyay Vs. State of UP & Others", 2002 Crl. LJ 2907, Hon'ble Allahabad High Court, in para 24, observed that where accused with his name and address are known to the complainant, the evidence of the witnesses are also known to him and it is not a case where any other material evidence is required to be collected and can be preserved, then it is not a case where any other material evidence is required to be collected and can be preserved, then it is not a case where any "investigation was required by the police for launching a successful prosecution".
11. In view of the ratio of the aforesaid case laws, it is clear that it is not in every case where allegations of cognizable Page No. 21. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
offences have been made, registration of an FIR is to be ordered by a ld. Magistrate and rather in all such cases where all the information regarding the name and particulars of the accused persons are known to the complainant and production of evidence is in the control and domain of the complainant and field investigation by police for collection of evidence is not necessary, no FIR can be registered as the complainant can lead his pre summoning evidence in the said regard.
12. Further, as regards the offences u/s 182/195/195A and 211 IPC, claimed by the revisionist to have been made out from the allegations mentioned in the complaint filed before the ld. Trial Court, I am of the considered opinion that the ld. Trial Court had rightly observed that it cannot take cognizance of the said offences unless a complaint in writing was made by the public servant or by the Court concerned.
13. I am fortified by the following judgments in this regard:
(i) Abdul Rehman & Others Vs. K.M. AneesulHaq, 2013 (4) Crimes 408 SC.
Page No. 22. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
(ii) In "M.S. Ahlawat Vs. State of Haryana", AIR 2000 SC, the Hon'ble Supreme Court has held as under: "Every innocent or false statement does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial discussion in the light of all material circumstances. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or serve the ends of a private party."
(iii) In "State of UP Vs. Mata Bhikh & Others", (1994) 4 SCC 95, the Hon'ble Supreme Court has held as under: "The provisions of this Section are mandatory, the prosecution in respect of the offences mentioned in the Section can be initiated only by the public servant, private complaint does not be."
(iv) In "Surjit Singh Vs. Balbir Singh", AIR 1996 SC Page No. 23. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
1592, it was held as under: "The provision of Section 195 CrPC are mandatory and no Court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing required under that Section. However, every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but the Court is to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice."
14. The judgments cited by the ld. counsel for revisionist do not help the case of the revisionist in any way in the facts and circumstances and in view of the aforesaid case laws. None of the judgment cited makes it mandatory for a Magistrate in every case to order for registration of FIR, if there are allegations of commission of cognizable offences.
15. As regards the offence u/s 203 IPC, claimed by the revisionist to have been made out from the allegations mentioned in the complaint filed before the ld. Trial Court, the ld. Trial Court had rightly opined that the said offence is not made out, as it was not claimed that any Page No. 24. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
offence was committed regarding which false information was given and that false information alleging commission of offence is not covered u/s 203 IPC. The ld. Trial Court had right relied upon Section 203 IPC regarding giving of false information which a person knows or believes to be false about an offence which has been committed and not where although no offence has been committed and a false complaint has been lodged.
16. The registration of an FIR for a nonbailable offence is a serious matter, which can have grave repercussions for an accused and may even curtail his liberty and bring ridicule to him and his family. It is pertinent to mention that the observation of Ms. Ravinder Kaur, ld. Special Judge (NDPS)/ASJ, Dwarka Courts, New Delhi, in her judgment dated 21.8.2010 in case FIR No. 215/08, u/s 376/506 IPC of PS Dwarka, whereby the revisionist was acquitted for the offences u/s 376/506 IPC, were not reiterated conclusively in the operating part of the said judgment and it was not categorically held that the case of the prosecution against this revisionist was false. Rather the revisionist was acquitted on the ground that the prosecution could not prove its case beyond Page No. 25. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
reasonable doubt and from the same, it cannot be inferred at this stage that the said case was false.
17. The revisionist has not stated the clear material facts on the basis of which, he came to know that the respondents no. 2 to 5 were in connivance and conspiracy. It is well settled that a conspiracy is always hatched in secrecy and seldom there is direct evidence for the same, but it least some material should have been specified by the revisionist on the basis of which it could have been prima facie inferred that there was any such connivance or conspiracy.
18. Considering the totality of the facts and circumstances and in view of the aforesaid discussions, it is prima facie clear that the entire facts including the names of the proposed accused (respondents no. 2 to 5 herein) are in the knowledge of the revisionist and also all the proposed evidence is within the domain and control of the revisionist. Further, there is nothing for which field investigation by police is needed, to collect the evidence. The ld. Trial Court had exercised its discretion u/s 156 (3) CrPC in a judicious manner and it cannot be said that the Page No. 26. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
said exercise was arbitrary or without application of mind. In any case, the ld. Trial Court had merely dismissed the application u/s 156 (3) CrPC and had taken cognizance for the offences u/s 499/500/34/107/120B IPC and u/s 383/34/120B IPC and had granted opportunity to the revisionist to lead pre summoning evidence. Also the ld. Trial Court has not dismissed the complaint. Further if the revisionist has a strong case, then he can bring sufficient material in his pre summoning evidence for summoning of the proposed accused persons (respondents no. 2 to 5 herein). Also after completion of pre summoning evidence and before passing the order on summoning, the ld. Trial Court may conduct an enquiry or direct the police for investigation on any aspect, if needed and the revisionist can also move the said Court in this regard. In view of above, no infirmity or illegality in the impugned order is found. Accordingly, the impugned order dated 25.8.2012 of the ld. Trial Court is upheld and the present revision petition is dismissed.
19. A copy of this order alongwith TCR be sent to the ld.
Trial/Successor Court for proceeding further as per law, for 18.7.2014 at 2.00 pm. Page No. 27. Contd... ... ...
CR No. 119/13. Pankaj Malhotra Vs. State & Others.
20. Revisionist is directed to appear before the ld.
Trial/Successor Court at the given date and time.
21. Revision petition file be consigned to record room. Announced in the open Court on 9.7.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 28. Contd... ... ...