Delhi District Court
Rakesh Kumar vs The State on 16 February, 2012
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. 07/2011
Unique Case I.D. No. 02402R0060522011
In the matter of :
RAKESH KUMAR
S/o Sh. Mahesh Chand,
R/o 27/52, Vishwas Nagar,
Shahdara, Delhi-110032. ........Revisionist/Petitioner
VS.
1. THE STATE
2. NARAYAN SHAH
S/o Sh. Chunchun Shah
R/o 1619/79, Uldanpur, Naveen Shahdara,
Delhi-110032.
3. SI SATYA PRAKASH
PS Shahdara, Delhi. ......................Respondents
Date of Institution : 22.02.2011
Date of reserving the Judgment in Appeal : 14.02.2012
Date of pronouncement : 16.02.2012
ORDER
1. This order shall dispose off the revision petition dated 19.02.2011, preferred by the revisionist Rakesh Kumar against the impugned order dated 11.10.2010, passed by Ld. ACMM, Karkardooma Courts, Delhi. It is also accompanied with an Criminal Revision No. 07/2011, Page No. 1 of 12 application of identical date for condonation of delay in filing the criminal revision which application has been dismissed vide my separate order.
2. I have heard submissions and gone through the record. On behalf of revisionist/petitioner, it has been submitted that vide impugned order Ld. Trial Court has dismissed the complaint case filed by the revisionist at the stage of summoning.
3. In support of the revision, it has been submitted by Ld. Counsel that mother of revisionist was owner of H. No. 1619/79, Uldanpur, Naveen Shahdara, Delhi, in which Respondent No. 1 Shiv Kumar was inducted as tenant in respect of one small kitchen, which was used by him for dwelling purpose. On 27.05.1998, respondent No. 1 had lodged complaint against the revisionist, his brother and father on which case FIR No. 217/98, u/s 448/380 IPC was registered and they were convicted by Ld. MM u/s 448 IPC but were acquitted by Sessions Court, later.
4. It is further submitted that on 17.06.1998, respondent No. 1 & 2, in connivance with each other committed a trespass in respect of the property and respondent No. 1 also removed two chairs, one table and two folding coats with mattresses and some articles of electricity fittings lying in the premises. Revisionist filed a complaint case on which Ld. ACMM has passed the impugned order. It has been submitted that Ld. Trial Court has grossly erred in holding the fact that the respondent No. 2 could not be prosecuted without obtaining necessary sanction under the provisions of section 197 Cr.PC, whereas the said act was not done by respondent No. 2 in discharge of his official duty and as Criminal Revision No. 07/2011, Page No. 2 of 12 such no sanction u/s 197 Cr.PC was required. It is further submitted that Ld. Trial Court has grossly erred in holding that CW-4 Smt. Vidhya Devi has not given any authorization to CW-1 (revisionist herein) and that no specific date and time have been mentioned in the complaint in respect of said offence. It has been claimed that any person can set the machinery of criminal law in motion irrespective of his status. Moreover, CW-4 has orally stated so about authorization. Ld. Trial court has also grossly erred in holding that CW-4 (mother of the revisionist) has impliedly given license to the respondent No. 1 and presumed the respondent No. 1 as licensee in respect of said premises and that no notice was ever served by her to terminate the license. There is no such evidence on record and this view is taken by the court in AIR. It has also been submitted that revisionist and CW-4 (Vidhya Devi) have not objected to the stay of respondent No. 1 alongwith Shiv Kumar and granted license to respondent No. 1 and that no notice was ever served upon the respondent No. 1. Shiv Kumar who had left the suit premises on 14.04.1998 and till August, 1998, no steps were taken to obtain possession from respondent No. 1 and that the revisionist filed complaint case against respondent No. 1 and respondent No. 2, only after lodging of FIR against him, his father and brother and that the present case is the counterblast to that FIR. Trial Court has also grossly erred in holding that CW-4 remained silent on the aspect of theft and that has not uttered a single word against the respondents and that the complainant has miserably failed to adduce any evidence on record to show that any of the articles allegedly stolen by respondent No. 1 was either owned him or even lying at the premises in question. Trial Court has ignored Criminal Revision No. 07/2011, Page No. 3 of 12 the fact that it itself held that respondent No. 1 was dispossessed on 27.05.1998 and also held that possession of premises was taken by the respondent No. 1 through respondent No. 2. According to Ld. Counsel for the revisionist, respondent No. 2 could not hand over possession to respondent No. 1 and the remedy was available in the civil court by filing suit for possession or to apply before the Trial Court where the criminal case was pending after conviction of the accused for restoration of possession u/s 456 Cr.PC.
5. Ld. Trial court has ignored the fact that respondent No. 1 was in possession of premises at the time of registration of FIR and that this fact was also mentioned in the order of conviction dated 06.02.2007. According to him, order of civil court is binding on criminal court and the suit for possession filed by the revisionist was decreed in favour of the revisionist and the appeal on the said order was also dismissed by the appellate court. Ld. Trial Court has ignored the testimony of CWs which was sufficient to prove the prima-facie case against the respondent No. 1 for the offences u/s 448/380/34 IPC and a prima-facie case was made out against the respondent No. 2 and it illegally got the possession restored to respondent No. 1 after dispossession on 27.05.1998. It was submitted that no sanction u/s 197 Cr.PC or u/s 140 Delhi Police Act was required as the act committed by respondent No. 2 was not done by him while discharging his official duties.
6. It is pertinent to mention that revisionist has made 'The State' as respondent No. 1, Mr. Narayan Shah as respondent No. 2 and SI Criminal Revision No. 07/2011, Page No. 4 of 12 Satya Prakash as respondent No. 3 in the Memo of Parties but in the pleadings referred Narayan Shah as respondent No. 1 and SI Satya Prakash as respondent No. 2.
7. As per report dated 24.08.2008, submitted by ACP/SHD Sub Division to Sh. Raj Kapoor, Ld. MM, Karkardooma Courts, Delhi, in case FIR No. 271/98, u/s 448/338, PS Shahdara, Delhi, it was reported that during the course of inquiry 'no facts came in the light that IO/SI Satya Prakash got restored the possession of premises in question'. There is no force in the submission that no sanction u/s 197 Cr.PC was required to prosecute SI Satya Prakash because admittedly FIR u/s 448/380/34 IPC against the revisionist as well as his brother and father was registered and they were convicted by Ld. MM and therefore, it cannot be said that respondent No. 2 SI Satya Prakash has not performed the act in discharge of his official duties. No doubt any person can set machinery of criminal law in motion irrespective of his status but it is a fact that there is no document on record whereby CW-4 Smt. Vidhya Devi had given any authorization to CW-1 and no specific date and time has been mentioned in the complaint in respect of the alleged offence.
8. Arguments raised by Ld. Counsel for the revisionist to the effect that 'Ld. MM has grossly erred in holding the fact that CW-4 Smt. Vidhya Devi, mother of the revisionist had impliedly given license to respondent No. 1 and presumed the respondent No. 1 as a licensee in respect of the said premises and that no notice was ever served by her to terminate the licence', has no force because Ld. MM has appreciated the pre-summoning evidence Criminal Revision No. 07/2011, Page No. 5 of 12 adduced by the revisionist and has made his opinion on the facts available on record. Ld. Trial Court has rightly observed that the revisionist and CW-4 Smt. Vidhya Devi have not objected for stay of respondent No. 1 alongwith Shiv Kumar and no notice has been placed on record to show that they had taken any objection or have asked him to vacate the premises.
9. Argument that 'Ld. Trial Court has erred in holding the fact that Shiv Kumar had left the suit premises on 14.04.1998 and till August, 1998, no steps had been taken to obtain possession from respondent No. 1 and that the revisionist filed the complaint case against respondent No. 1 & 2 only after lodging of FIR against him, his father and brother and that the present case is counter blast to that FIR', also has no force because admittedly the revisionist, his brother and his father were booked by police in case FIR No. 271/98, u/s 448/380/34 IPC on the complaint dated 27.05.1998 of respondent No. 1. In case, respondent No. 1 was not in possession of the premises, said FIR would not have been registered. Since said FIR was already registered against the revisionist, observation of Ld. Trial Court was factually correct. Ld. MM fully appreciated the testimony of witnesses on the record of Ld. Trial Court and appreciated the same noting inherent contradictions. It is pertinent to mention that the revisionist has claimed that one Shiv Kumar was admittedly tenant under Smt. Vidhya Devi CW-4 but his tenancy has been shown only with respect to one small kitchen by CW-1 and he had deposed that said tenant handed over possession to them on 14.04.1998. CW-2 Sh. Anil Kumar has deposed that the said tenant left the tenanted premises in 2nd week of April 1998 Criminal Revision No. 07/2011, Page No. 6 of 12 without specifying exact date or corroborating it as 14.04.1998, whereas, CW-3 Uma Shankar had deposed that one Narayan Shah, relative of Shiv Kumar had stayed with him for sometime but has not specified the period of tenancy and the date of vacation of premises. It is very strange that the revisionist has placed on record Ex. CW1/C and Ex. CW-1/B through the said witnesses to show that they had handed over possession to the owner Smt. Vidhya Devi but the revisionist had not placed on record any rent receipt or any other document to prima-facie show that any person named Shiv Kumar was tenant and possession of tenanted premises by said Shiv Kumar was actually handed over to the landlady CW-4 or to the revisionist on 14.04.1998.
10. Revisionist had not examined CW-4 when the then MM vide order dated 07.06.1999 had dismissed the complaint of the revisionist. However, subsequent to the order dated 07.08.2003, passed by Ld. ASJ, revisionist examined CW-4 by moving application u/s 311 Cr. PC on 02.09.2009 after about six years and CW-4 Smt. Vidhya Devi deposed that affairs of property bearing No. 1619/79, Uldanpur, Naveen Shahdara, Delhi, are looked after by her son Rakesh. Regarding all civil and criminal cases pertaining to Uldhanpur property, she had authorized her son Rakesh to represent her. However, in the photocopy of certified copy of judgment dated 28.06.2006 passed by Ld. Civil Judge in suit No. 16/2006 between Smt. Vidhya Devi, Narayan Shah and SHO, there is no mention of any such authority in favour of the revisionist. The above mentioned suit was filed on 20.08.1998 and the criminal complaint out of which present Criminal Revision No. 07/2011, Page No. 7 of 12 revision has arisen, was filed on 18.08.1998. Non-mention of any such authority by CW-4 in favour of revisionist belies her version that she had so authorized the revisionist to look after all her cases, civil and criminal. In her testimony recorded on 01.12.2009, she has nowhere stated that Mr. Shiv Kumar was tenant as has been mentioned in the criminal complaint. The complaint filed by revisionist makes a mention that respondent No. 1 was cousin of said Shiv Kumar who had joined Shiv Kumar for some day. If the said fact is admitted by the complaint/revisionist in the criminal complaint, there was no reason for Smt. Vidhya Devi CW-4 to conceal the fact that Shiv Kumar was tenant and respondent No. 1 being his relative also lived with him. Ld. MM has placed reliance on authority reported as AIR 2001 Supreme Court 2960, S.N. Palanitkar Vs. State of Bihar, wherein it has been held by Hon'ble Supreme Court that u/s 200 Cr. PC the Magistrate has to examine complainant and his witnesses, if any, to ascertain whether prima-facie case is made out against accused so that mis-use of process is prevented on a complaint which is false or vexatious or intended only to harass". The words "sufficient grounds" used u/s 202 Cr. PC have to be construed to mean the satisfaction that a prima- facie case is made out against the accused and not sufficient grounds for conviction."
11. For the reasons given, on the basis of appreciation of complainant's evidence, Ld. MM has prima-facie formed the opinion which appears to be reasonable and therefore, there appears no illegality or impropriety. Accordingly, revision petition is dismissed.
Criminal Revision No. 07/2011, Page No. 8 of 1212. A copy of this order be sent to Ld. MM for information. Trial court record be sent back. Revision file be consigned to record room.
Announced in the open court T.S. KASHYAP
Today i.e on 16.02.2012 ASJ-04/NORTH-EAST/DELHI
Criminal Revision No. 07/2011, Page No. 9 of 12
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTT KARKARDOOMA COURTS, DELHI Criminal Revision No. 07/2011 Unique Case I.D. No. 02402R0060522011 RAKESH KUMAR ............Applicant/Revisionist VS.
THE STATE & OTHERS ..........................Respondents ORDER
1. This order shall dispose off the application dated 19.02.2011, u/s 5 of Limitation Act, filed on behalf of the applicant/revisionist alongwith the revision petition dated 19.02.2011, preferred by him against the impugned order dated 11.10.2010, passed by Ld. ACMM, Karkardooma Courts, Delhi.
2. I have heard the submissions and gone through the record.
3. It has been submitted that there is delay of 31 days in filing the revision after taking the benefit of period spent on obtaining certified copies and hence application for condonation of delay has been moved. It has been submitted that Sh. Sanjay Gupta, Ld. Counsel for the applicant was not regular to the court due to confinement of his old father who sustained joint fracture on 06.01.2011 and later on operated on 09.01.2011. During this period , marriage of niece of the counsel was also solemnized on Criminal Revision No. 07/2011, Page No. 10 of 12 16.02.2011. It has been submitted that technicalities should not be a bar for entertaining criminal revision. Delay was neither intentional nor deliberate but was due to abovesaid reasons. No prejudice is going to be caused to the respondent if the delay is condoned. Accordingly, it has been submitted that delay be condoned.
4. Ld. Addl. PP has opposed the application submitting that there is no justification for condonation of delay as no supporting document has been filed alongwith the present application. Even affidavit of previous counsel and of revisionist has not been filed and therefore, delay should not be condoned.
5. As per Article 131 of Limitation Act, 1963, a period of 90 days has been prescribed for filing a revision from the date of order sought to be revised. In the present case, impugned order is of 11.10.2010 and period of 90 days expires on 10.01.2011. The certified copies of impugned order filed by the revisionist show that the certified copies were applied by the revisionist on 02.12.2010 which were made available to him on 14.12.2010 and therefore, by giving the grace of these 12 days (from 02.12.2010 to 14.12.2010), revision ought to have been filed uptill 22.01.2011. However, in the application for condonation of delay, it has been claimed that father of the previous advocate sustained joint fracture on 06.01.2011 and was operated on 09.01.2011 but no medical document in this regard has been filed. It is also submitted that during this period, marriage of niece of the counsel was also solemnized on 16.02.2011 at Aligarh but neither the name of niece is mentioned nor any marriage card Criminal Revision No. 07/2011, Page No. 11 of 12 has been filed. Applicant has not filed his own affidavit nor has filed affidavit of his previous counsel Sh. Sanjay Gupta. Applicant was required to explain the delay for each day w.e.f. 22.01.2011 but no such explanation has been given. The court has discretion to condone or to refuse to condone the delay (relied authority reported as 'M.K. Prasad Vs. P. Arumugam, AIR 2001 SC 2497'). The court liberally considers the application for condonation of delay but in some cases, court may refuse to condone the delay and the present case is one in which no supporting document or affidavit has been filed by the revisionist and delay of each day has not been explained. Therefore, no sufficient cause has been disclosed by the applicant/revisionist for condonation of delay, as such, the application is dismissed.
6. A copy of this order be sent to Ld. MM for information.
Announced in the open court T.S. KASHYAP today i.e on 16.02.2012 ASJ-04/NORTH-EAST/DELHI Criminal Revision No. 07/2011, Page No. 12 of 12