Delhi District Court
M/S Cideas Investment (I) Pvt.Ltd vs State Of Nct Of Delhi on 20 January, 2017
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IN THE COURT OF BHUPESH KUMAR, SPL. JUDGE, (PC ACT)
CBI01, (SOUTH) SAKET COURTS : NEW DELHI
CR No. 32/15 (New 8094/16)
Unique Case ID No. : 02406R 0173122015
M/s CIDEAS Investment (I) Pvt.Ltd.,
210212, Emprie Plaza,
Mehrauli Gurgaon Road,
Sultanpur, New Delhi110030
Through its AR Mr.Pankaj Chechi
....Revisionist
Vs.
1. State of NCT of Delhi
2. M/s Akshay Lease Investo (I) Pvt. Limited,
115A, Meenakshi Garden,
Main Najafgarh Road, New Delhi.
3. Rakesh Kumar,
174175, Meenakshi Garden,
New Delhi110018
... Respondents
Date of Institution : 27.05.2015
Arguments Heard on: 23.12.2016
Date of Decision: 20.01.2017
O R D E R
1. The present revision petition has been filed by the revisionist
M/s CIDEAS Investment (I) Pvt.Ltd. Through its AR Mr.Pankaj Chechi
against impugned order dated 12.02.2015 of Ld. Trial Court vide which the
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Ld.Trial Court has not allowed the revisionist to lead fresh evidence at pre
charge evidence stage.
2. Notice of the revision was issued to respondent no.1 i.e. State,
respondent no.2 Company and respondent no.3 Rakesh Kumar.
Trial Court record was also called.
3. Arguments of Sh.Alok Kumar Pal, Ld. Counsel for
revisionist,ld. APP for state as well as other respondents heard. Written
submissions have also been filed on behalf of the revisionist and respondent
no.3.
4. Factual matrix of the matter as per trial court record is that the
revisionist has filed criminal complaint against respondent no.2 Company
and respondent no.3 being its Director/Managing Director under Sections
406/420/422/120B of IPC. In support of the complaint, the revisionist has
examined Ghanshyam Goel, Finance Manager of the Company as CW1.
Then after hearing arguments, vide order dated 06.11.2004, Ld.Trial Court
summoned respondent no.2 and 3 under Section 420 IPC. Thereafter,
revisionist was asked to lead precharge evidence and Sh. Pankaj Chechi,
authorized representative of the revisionist company appeared in witness
box as CW1. Thereafter, revisionist moved an application dated
06.05.2014 for summoning certain witnesses by mentioning their
particulars in the application itself. The summons were issued to said
witnesses for 11.08.2014. But before the said date an application was
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moved on behalf of respondent no.3 for dropping the witnesses on the
ground that at precharge stage, the complainant cannot be allowed to lead
fresh evidence. Order dated 11.08.2014 of Ld. Trial Court reflects that
certain witnesses were present in the Court , but were not examined as
respondent no.3 had moved an application for dropping the witnesses. Vide
impugned order dated 12.02.2015, the application of respondent no.3 for
dropping the witnesses, was allowed.
Ld. Counsel for revisionist submitted that ld. Trial court vide
impugned order has not allowed the revisionist to lead fresh evidence on
the ground that at presummoning stage the revisionist had not lead any
such evidence to establish that offence under Section 468/471 IPC has been
committed. It has been further submitted that as per law, there is no bar to
examine any fresh witness at precharge evidence stage, in case, the
complainant has not lead any such evidence at presummoning stage. On
the basis of these submissions prayer has been made to allow the revision
petition.
On the other hand, ld. Counsel for respondent has vehemently
submitted that as per law, once the accused has been summoned under
particular offence, the Magistrate can only hear and record complainant's
evidence to prove the commission of particular offence for which the
accused has been summoned and thereafter on the basis of said material, he
can frame the charge or discharge him, as the case may be. It has been
further submitted that in this particular matter, respondent no.3 was
summoned under Section 420 IPC only, therefore, learned Trial Court has
rightly allowed the application of respondent no.3 to drop the witnesses
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summoned by the revisionist. It has been further submitted that
complainant has filed the complaint under Section 420/406/422/120B IPC
but vide summoning order, the accused persons were summoned for
offence under Section 420 IPC only, meaning thereby, that apart from
Section 420 IPC the complaint for the remaining offences was dismissed.
Therefore, under the garb of the present application, the revisionist intend
to add certain other offences in the proceedings against the revisionist
which were not considered by the learned Trial Court at the time of order
on summoning.
It has been further urged that there is nothing in Section 244
of Cr.P.C. which gives right to the complainant to examine any witness
other than the witnesses examined at presummoning stage. Inter alia, on
the basis of these submissions prayer has been made to dismiss the revision
petition.
5. Heard. Material perused.
Before proceeding ahead here it is necessary to reproduce
Section 244 Cr.P.C. and the settled law for ready reference, which is as
under :
Section 244. Evidence for prosecution. (1) when in
any warrantcase 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 such evidence as may be
produced in support of the prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or
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other thing.
In case Chaithanya R.Menon (Dr.) @ Mini vs State of
Kerala & ors., 2008 SCC OnLine Ker 126, Hon'ble Supreme Court has,
inter alia, held as under :
But, when the case reaches the stage of
precharge evidence under Section 244 (1) Cr.P.C., the
obligation of the Magistrate is to take all such evidence
as may be produced in support of the prosecution. That
is obviously why subsection (2) of Sec.244 Cr. P.C.
has authorised the Magistrate to issue summons to any
witness, on the application of the, prosecution either to
give evidence or to produce any document or thing.
Section 244 reads as follows:
........
There is, therefore, no warrant for the assumption that under Section 244 (1) Cr. P.C. the Magistrate can take the evidence of only those witnesses whose names figure in the witness list filed earlier, presumably alongwith the complaint. Section 204(2) Cr.P.C. cannot be so construed as to fetter the power of the Magistrate to issue summons to a new witness under Section 244(2) Cr. P.C. ......... Resultantly, the impugned order discharging the accused under Section 244(1) Cr. P.C. is also set aside and the Magistrate shall give the revision petitioner an opportunity of examining the additional witnesses sought to be examined as per CMP No.4605 of 2007. The learned Magistrate shall thereafter consider the entire evidence before if and pass appropriate orders in accordance with law.
Further in case Sayeeda Farhana Shamim vs State of Bihar CR 8094/16 Bhupesh Kumar, Spl Judge (PC Act) CBI01/South/20.01.2017 6 & anr., AIR 2008 SC 2373, Hon'ble Supreme Court has, inter alia held as under : That in view of the consensus of the opinion which has emerged from various decisions of the High Courts, it appears that the power of the Magistrate should not be fettered either under Section 244 or under subsection (6) of Section 246 Cr.P.C. and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But as we have already added a word of caution that while accepting the supplementary list, the Magistrate shall exercise his discretion judiciously for the advancement of cause of justice and not to give a handle to the complainant to harass the accused.
Reverting to the present matter, the question of consideration in this matter is very limited i.e. whether the complainant can be allowed to examine fresh witness at precharge evidence stage, in case he has not examined any such witness at presummoning evidence stage.
From the plain reading of Section 244 Cr.P.C, it is found that there is no bar that the Magistrate cannot examine any fresh witness at the stage of precharge evidence stage.
Further, in view of the findings of the judgments in cases Chaithanya R. Menon (supra) and Sayeeda Farhana Shamim (supra), no doubt remains and it is quite clear that the Magistrate can allow to examine any witness required for just decision of the case at precharge evidence stage though such witness might not have been examined at pre summoning stage.
Without any further discussion the revision petition filed by CR 8094/16 Bhupesh Kumar, Spl Judge (PC Act) CBI01/South/20.01.2017 7 the revisionist stands allowed and impugned order dated 12.02.2015 stands set aside.
Before parting away, here it is necessary to mention that the revisionist moved an application dated 06.05.2014 to allow him to summon the witnesses mentioned therein. But learned Trial Court has not passed any formal orders on the said application, however, the record further reflects that summons were issued to the witnesses mentioned in the said application. Hence, the learned Trial Court is directed to proceed with the matter after re-considering the application dated 06.05.2014 moved by the revisionist.
6. Matter be placed before the Ld. Trial Court on 27.01.2017.
7. Parties are directed to appear before the Ld. Trial Court on said date.
8. Trial court record alongwith copy of this order be sent back to the Ld. Trial court.
9. Revision file be consigned to record room.
Announced in the Open Court (Bhupesh Kumar) Today on 20.01.2017 Spl. Judge (PC Act), CBI01(South) Saket Courts : New Delhi.
CR 8094/16 Bhupesh Kumar, Spl Judge (PC Act) CBI01/South/20.01.2017