Delhi District Court
Ashwani Khattar & Anr vs Present : Mr. Abhishek Rai on 10 July, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
CR No.60/13
ASHWANI KHATTAR & ANR. V. SHIV KHERA & ANR.
APPEARANCES
Present : Mr. Abhishek Rai, Ld. Counsel for the petitioners.
Mr. Sakal Bhushan, Ld. Counsel for the respondent no.1.
Mr. Salim Khan, Ld. APP for the State/ respondent no.2
10.07.2013
O R D E R
1. This criminal revision confronts this Court with an interesting question of law as to :whether in a warrant triable case after summoning of the accused, the complainant in recording his evidence in terms of section 244 Cr.P.C. can simply adopt the evidence led by him at pre summoning stage and whether the Magistrate could accept such course by the Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 1 to 13 2 complainant and post the matter for cross examination by the accused? This is what precisely has been done during the proceedings recorded on 19.12.12012 in the court of Ms. Namrata Aggarwal, Ld. MM (South), Saket Courts, New Delhi, which course of action has been assailed by the petitioners/accused persons tongs and hammer in the present revision petition .
2. First thing first. there is a delay in filing the present revision petition by 8 days. At the outset, as no dispute is raised, finding sufficient cause the same is condoned.
3. In a nutshell, it is the case of the complainant/respondent no. 2 that he entered into a contract dated 06.06.2009 with the accused persons / petitioners for reconstruction of his house at C6/4, Vasant Vihar, New Delhi and the accused persons committed cheating upon him in as much as during the construction they used poor quality material in the construction so much so that contrary to the various clauses of the contract, they failed to ensure the construction of the building so as to make it structurally safe and earthquake proof despite knowledge that the property Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 2 to 13 3 falls in high seismological zone; so much so the entire amount that was paid to them was embezzled / misappropriated by them so as to cause wrongful lost to him.
4. It is pertinent to mention here that Sh. Naveen Kumar Kashyap, the then, Ld. MM vide order dated 01.11.2011 dismissed the application u/s 156 (3) Cr.P.C. and allowed the complainant to lead evidence, if any, consequent to which the complainant came in the witness box and examined himself as CW1. It is thereafter that Ms. Namrata Aggarwal, Ld. MM on considering the pre summoning evidence took cognizance of offence u/s 418/420/427/440/120B IPC and issued process against the accused.
5. It appears that both the petitioners/accused persons have assailed the summoning order in criminal M. C. No. 2175/12 before the High Court of Delhi and the accused persons have since been exempted from personal appearance in the proceedings before the trial court and the criminal revision is still subjudice.
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6. Now the matter was listed for hearing before the Ld. MM on 19.12.2012 on which date the complainant appeared and gave a two line statement to the effect that he was adopting his pre summoning evidence Ex. CW1/A. Request for adjournment was made by proxy counsel appearing for the accused persons for cross examination and accordingly Ld. MM adjourned the matter for cross examination of CW1. In the present revision petition the impugned order has assailed interalia on the ground that pre summoning evidence at pre cognizance stage is no evidence vis a vis the accused persons and such evidence cannot be allowed to be adopted by the complainant as the examination in chief of the complainant or any other witnesses on his behalf is mandated to be recorded in the presence of the accused persons in terms of section 273 and 275 Cr.P.C.
7. Per contra, it has been urged on behalf of the respondent no.2/complainant that the impugned order is interlocutory in nature and cannot be assailed in revision and that evidence led at pre summoning stage is evidence for the purposes of inquiry and petitioners/accused persons are at Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 4 to 13 5 liberty to cross examine the complainant.
8. I have given my thoughtful consideration to the submissions made by Ld. counsel for the parties and I have also perused the relevant record of the case.
9. It may be highlighted that the proceedings before the Ld. MM are under Chapter XIX Cr.P.C. providing for "Trial of warrant cases by Magistrate" and Part 'A' deals with cases instituted on police report while Part 'B' deals with cases instituted otherwise than on police report. It is under part 'B' that section 244 is placed which provides as under: S.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 other thing.
10. Needless to point out that it is only after the Magistrate has proceeded in terms of section 200 to 204 of the Cr.P.C. that the stage u/s 244 Cr.P.C. arises for consideration. Bare perusal of section 244 of the Code would show that on Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 5 to 13 6 summoning of the accused, the Magistrate is mandated to hear the prosecution in the sense of providing audience to the prosecution albeit. Complainant and then the Magistrate is mandated to take all such evidence, as may be produced, in support of the prosecution.
11. When sub section (1) & (2) to section 244 Cr.P.C. are read conjointly, it means that the Magistrate has to allow the prosecution to lead all such evidence, as may be produced by the prosecution in support of its case. The words 'may be produced' means that a discretion is left with the prosecution to prove its case in the best possible manner as suited to its legal interest. It is not a stage where the Magistrate, as provided under section 202 (1) could direct the police to make an investigation. At the cost of repetition, the purport of section 244 Cr.P.C. by using the words 'such evidence as may be produced' mean that 'it is in the domain of the prosecution to lead evidence'.
12. It must be borne in mind that under section 245 (1) Cr.P.C. after taking all evidence pursuant to section 244 Cr.P.C., the Magistrate may discharge the accused if he finds Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 6 to 13 7 that no case is made out against the accused or the evidence if remain unrebutted would not warrant his conviction. It is section 246 Cr.P.C that empowers the Magistrate to frame charge if there are grounds for presuming that accused has committed offence triable under that Chapter.
13. It is well settled that 'trial is a judicial proceeding before the Court which ends in conviction or acquittal'. The trial starts when charge is framed against the accused. The proceedings before the charge is framed, as in the present warrant case, are in the nature of judicial proceedings defined by section 2 (i) of the Code that includes 'any proceedings in the Court of which evidence is or may be legally taken on oath'. Needless to point out, when the Magistrate under section 200 Cr.P.C is enjoined upon to examine the complainant under oath, be it summons or warrant case, the pre summoning evidence must be taken to have been recorded in "judicial proceeding".
14. Now, although Section 244 of Cr.P.C. does not provide that accused on summoning has a right to cross examine the complainant or his witnesses, such legal right Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 7 to 13 8 inheres at the stage of such judicial proceedings before the matters come for consideration of charge under Section 245 and 246 of the Code. Reference can be had to decision in Ajoy Kumar Ghose v. State of Jharkhand, 2009 CRI. L. J. 2824. In the cited case, it was further explained that:
".......in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. On the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to dis charge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge....."
15. Further, as only a prima facie view is be taken whether there are sufficient grounds for proceeding that the accused has committed an offence or not, the plea of the petitioners Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 8 to 13 9 urging that there should be a mandate upon the complainant to come again in the witness box and lead evidence de novo on oath neither serves any legal purpose nor it helps in fast tracking the disposal cases.
16. It may be indicated that Section 273 of the Code has no application here because it speaks about recording of evidence in the presence of the accused in case of a trial or other proceedings, meaning thereby ejesdum generis "proceedings" that culminate in adjudication of guilt or otherwise of the accused. Section 275 Cr.P.C. also speaks about the trial in a warrant case and it does apply to inquiry or judicial proceedings.
17. At the cost of repetition, I do not see any mandate of the Code that post cognizance and before consideration of charge the complainant must, in all circumstance, come again in the witness box to repeat or reiterate the same story, with or without modification/improvement or embellishment or omission over his previous statement in the same Court at the pre summoning stage and it is a practical solution that complainant in his discretion can adopt the evidence led a Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 9 to 13 10 precognizance stage in judicial proceedings. This process if adopted avoid wastage of precious Court time and resources.
18. To my mind, there is no question of prejudice to the accused summoned if evidence is adopted in such manner as unlike in a case instituted on police report, the accused gets a legal right to cross examine the complainant and/or his witnesses twice: before and after consideration of charge. The requirement of principles of fair trial running through the length and breadth of criminal laws is that the accused must know what is the case against him and I do not see any thing in specific that examination in chief must in all circumstance be recorded in the presence of the accused in an inquiry or judicial proceedings. The right to cross examine which is available with the accused is most potent weapon by which defence can fire all the cylinders that would enable the Magistrate to arrive at a decision one way of the other in terms of section 245 and 246 Cr.P.C. It is section 246 of the Code that lays down conditions for a full fledged trial and not section 244 of the Code. Adopting pre summoning evidence in proceedings u/s 244 of the Code is no illegality or Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 10 to 13 11 incorrectness in holding the proceedings. No case law to the contrary has been cited by the ld counsel for the petitioners/revisionists nor I have come across any despite hard research.
19. In the said view of the discussion, the course adopted by the complainant in adopting his evidence led at the pre summoning stage cannot be faulted and the Ld. MM in allowing such course thereby placing the matter for cross examination by the petitioners/accused persons have not committed any illegality nor followed an incorrect procedure. The evidence recorded at the pre summoning stage is evidence within the meaning of section 3 of the Indian Evidence Act which means and include "all statements which the court permits or requires to be made before it by the witnesses, in relation to matter of fact under inquiry, which is by way of oral evidence as also documentary evidence". The complainant in his pre summoning evidence not only has given an ocular account of the happenings but in doing so he has relied on documentary evidence. Undoubtedly, the word "evidence" in section 244 Cr.P.C. is used in the same manner Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 11 to 13 12 as in the Indian Evidence Act.
20. The sum result is that there is no illegality or irregularity in the proceedings committed by the ld Trial Court. This Revision Petition is dismissed. A copy of this order along with trial court record be sent back to the court concerned.
21. File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA) TODAY i.e 10.07.2013 ASJ01/PHC/NEW DELHI 10.07.2013 ...
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CR No.60/13
ASHWANI KHATTAR & ANR. V. SHIV KHERA & ANR.
10.07.2013
Present : Mr. Abhishek Rai, Ld. Counsel for the petitioners.
Mr. Sakal Bhushan, Ld. Counsel for the respondent no.1. Mr. Salim Khan, Ld. APP for the State/ respondent no.2 Vide separate order of even date, there is no illegality or irregularity in the proceedings committed by the ld Trial Court. This Revision Petition is dismissed.
A copy of this order along with trial court record be sent back to the court concerned.
File be consigned to the Record Room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI 10.07.2013 Ashwani Khattar & Anr. v. Shiv Khera & Anr. Page 13 to 13