Delhi District Court
Devender Kumar vs State on 3 December, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. 174/13
Unique I.D. No. 02402R0389682013
In the matter of :-
Devender Kumar . . . Revisionist
S/o Sh. Mangat Singh
R/o H-22, Sec. 22, NOIDA
Distt : Gautam Budh Nagar (U.P)
Working as Inspector in Delhi Police
At present : SHO of PS : Nand Nagri, Delhi
VERSUS
1. State . . . Respondents
(NCT of Delhi)
2. Ravi Dutt Sharma
S/o Unknown
R/o B-95, Village : Gokalpur, Delhi (Process Server)
C/o Nazarat Branch, KKD Court Complex
Shahdara, Delhi
Date of Institution : 02/12/13
Date of reserving order : 02/12/13
Date of pronouncement : 03/12/13
ORDER
This order shall dispose of a Criminal Revision Petition U/s 397/399 r/w Sec. 401 Cr.P.C preferred by the revisionist Devender Kumar against the impugned order dated 28/11/13 passed by Ld. Chief Crl. Rev. No. 174/13 Page 1 of 9 Metropolitan Magistrate, Shahdara District in complaint case No. 179/13 whereby Ld. CMM has directed for registration of FIR U/s 186/341/342 IPC against the revisionist.
2. Trial court record has been summoned.
3. I have heard the submissions from Ld. Counsel for revisionist as well as Ld. Addl. Public Prosecutor for State and gone through the record.
4. On behalf of the revisionist, it has been submitted by Ld. Counsel that the present revision is maintainable and in support of his contention reliance has been placed on authorities reported as Gautam R. Patel v N.C.T of Delhi, 2007(1) JCC 448 and Jagdish Gandhi & Ors v N.C.T of Delhi 2008 (4) LRC 249 (Delhi). However, Ld. Counsel for the revisionist has submitted that the impugned order is illegal, improper, unjustified, perverse, wrong and against the provisions of law and various pronouncements of Hon'ble Apex Court and Hon'ble High Courts. The impugned order has been passed in a casual and mechanical manner without giving any reason as to why the investigation is necessary for which direction U/s 156(3) Cr.P.C was required as apparently no scientific investigation is required to be done. It is submitted that the various guidelines laid down in authority reported as Subhkaran Luharuka v State have been ignored by Ld. CMM. An order U/s 156(3) Cr.P.C cannot be passed unless and until, the complainant filed/approached the SHO U/s 154(1) Cr.P.C and then filed complaint/approached the DCP U/s 154(3) Cr.P.C. Reliance has been placed on authority reported as Sakiri Vasu v State of U.P and Ors., AIR 2008 SC 907. It was also Crl. Rev. No. 174/13 Page 2 of 9 submitted that Ld. Trial Court has completely failed to appreciate that petitioner/revisionist is a public servant and sanction is required and without sanction the order for registration of FIR U/s 156(3) Cr.P.C cannot be passed. Reliance has been placed on authority reported as Anil Kumar & Ors. v M.K. Aiyappa and Anr., MANU/SC/1002/2013 : 2013 X AD (SC)
386.
5. It has been submitted that very initiation of making the complaint is illegal U/s 195 Cr.P.C by Ld. ACJ to the court of Ld. CMM as the complaint can only be filed subsequent to holding an inquiry U/s 340 Cr.P.C and none of the offences U/s 186/341/342 IPC falls U/s 195(1)(i)(a) Cr.P.C and entire proceeding is illegal. It has further been submitted that Ld. Trial court has completely overlooked the mandatory provision of Cr.P.C by entertaining the present complaint U/s 201 Cr.P.C whereas Ld. Area Magistrate of PS : Nand Nagri was required to take the cognizance. As per Sec. 156(3) Cr.P.C, the Judicial Officer having jurisdiction to take cognizance U/s 195 Cr.P.C can only pass the order and Sec. 201 Cr.P.C makes it obligatory on Judicial Officer to refer the matter to the court having jurisdiction to entertain the complaint. It is also submitted that Ld. Trial Court has completely failed to appreciate the distinction between the provisions under Chapter XV and XXVI.
6. Relying on authority reported as Brahm Parkash Gupta v State 2008 (106) DRJ 199, it has been submitted that Sec. 156(3) Cr.P.C cannot be used as a tool and it cannot be misused. Reference has been made to the authorities reported as P. Sirajuddin v State and Nafed v State submitting that there must be a preliminary inquiry when allegations are made against the government officers.
Crl. Rev. No. 174/13 Page 3 of 97. It has been submitted that the allegations made by the complainant-Process Server are improbable and absurd who has played fraud. It has also been submitted that the Ld. Trial Court had no power to direct for registration of FIR with the rider that the same be investigated by an officer of a particular rank i.e of ACP that too under the supervision of Additional Commissioner of Police and the said direction is contrary to law laid down by Hon'ble Apex Court in Hemant Dhasmane v Central Bureau of Investigation & Anr., AIR 2001 SC 2721. Ld. Counsel for the revisionist has submitted that the impugned order be set aside.
8. Ld. Addl. Public Prosecutor for State has however submitted that the complaint has been made by the Process Server addressed to Ld. District & Sessions Judge, Shahdara, who in turn assigned the same to Ld. Administrative Civil Judge and the complaint U/s 195 Cr.P.C has been made by him to Ld. CMM, Shahdara, Delhi. The PS: Nand Nagri falls within the jurisdiction of Shahdara District and therefore Ld. CMM, Shahdara, had the territorial jurisdiction in the matter. The Process Server had gone to execute the warrants and summons issued by the two different courts when the revisionist and his staff have misbehaved with him causing obstructions in discharge of his public functions. The said Process Server was also wrongfully confined and therefore the offences U/s 186 and 341 IPC are prima facie made out. While the Process Server was present in the room of Incharge VB, he faced the problem in execution of the court process and thereafter he had reported the matter to the SHO but he instead of assisting him in getting the process served/executed, allegedly misbehaved, wrongfully restrained and obstructed the Process Server in discharge of his official duty. Since SHO himself has been named as an accused, it was proper that the investigation be assigned to a superior officer of the rank of ACP, as has Crl. Rev. No. 174/13 Page 4 of 9 been directed by Ld. Trial Court. Ld. Addl. Public Prosecutor submitted that there is no illegality, irregularity or impropriety in the impugned order.
9. There is no dispute that revision against an order directing registration of FIR while exercising its power U/s 156(3) Cr.P.C is maintainable in view of authority reported as Kishan Lal v Dharmendra Bafna & Anr 2009 (9) Scale 768 wherein it has been held that :
"It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdiction error or an error of law is noticed".
10. A perusal of the record reveals that the Process Server Mr. Ravi Dutt Sharma posted at Nazarat Branch, Karkardooma Court, Delhi has submitted his complaint dated 10/10/13, to Ld. District & Sessions Judge, Shahdara, Delhi. Ld. District & Sessions Judge, Shahdara had made an endorsement dated 14/10/13 assigning the said complaint to Ld. Administrative Civil Judge, Shahdara to deal with the matter. Sh. Neeraj Gaur, Ld. Administrative Civil Judge, Shahdara District, Karkardooma Court, Delhi, thereafter made a complaint dated 15/10/13 U/s 195 Cr.P.C to the Ld. Chief Metropolitan Magistrate, Shahdara District, Karkardooma Courts, Delhi enclosing the original complaint made by the Process Server. In the said complaint he had observed that allegations made in the complaint prima facie constitute offences U/s 186 IPC and U/s 341 IPC.
11. Ld. CMM on receipt of the complaint had issued notice to the DCP for 29/10/13 vide order dated 17/10/13. On 29/10/13, ACP Seemapuri had appeared and sought adjournment for filing the report and the matter was adjourned to 13/1/13. On that day, further time was sought by ACP and matter was adjourned to 28/11/13. On 28/11/13, report was Crl. Rev. No. 174/13 Page 5 of 9 filed on behalf of Addl. DCP vide letter No. 179/13 dated 27/11/13 submitting that inquiry into the matter was got conducted by ACP Seemapuri wherein fault on the part of the Inspector Devender Kumar, SHO, PS Nand Nagri was established. In the impugned order, Ld. Trial Court has reproduced the contents of the complaint wherein allegations were made against the SHO concerned and the staff and after considering the complaint, Ld. Trial court had observed that from the allegations made in the complaint offences U/s 186, 341 and 342 IPC are clearly made out. Therefore, Ld. Trial court has substantially complied with the guidelines issued by Hon'ble High Court in authority reported as Subhash Manchanda v State & Anr., 2013 II AD (Delhi) 277 and Subhkaran Luharuka and Shree Ram Mills Ltd. v State (Govt of NCT of Delhi) and Utility Premises Pvt Ltd. It is pertinent to mention here that in the present case, the complainant is a Process Server posted at Karkardooma Court who had gone to PS Nand Nagri to serve the summons issued from the court of Sh. Arvind Kumar, Ld. ADJ and warrants issued from the court of Sh. Sharad Gupta, Ld. MM but he faced the difficulty in execution of the process at police station. He has narrated the entire episode in his complaint which reflects that in VB Room, one person disclosed his identity as Ct. Sanjay Kumar, who received the processes and signed as HC Barhamjeet and on protest by the complainant, he struck off the signatures made by him and took the complainant to Reader of SHO and then to Duty Officer who both refused to receive the processes. He was thereafter, produced before the revisionist to whom facts were disclosed, whereupon he started misbehaving by remarking whatever has been done by Ct. Sanjay, Reader and Duty Officer was correctly done and that he would teach complainant how to do service; that complainant is below a Constable and he being fourth class employee was nobody to teach them work and Crl. Rev. No. 174/13 Page 6 of 9 made him to stand up for half an hour with hands up and was made to sit on floor for 3-4 hours as punishment. He also asked his staff to bring DD register and remarked that complainant should be confined (band karo) and then he would see as to what the Judge of complainant would do and that he (complainant) should make the revisionist talk on phone with the Judge then he would see as to what a Judge can do as Judge is also an officer so is revisionist. Despite request of complainant to let him go and come back after executing the court work, complainant was not allowed. Complainant has placed on record the photocopies of the process bearing the cuttings allegedly done by the Constable who had put the signatures of other Head Constable and subsequently the signatures were struck off. The original or copy of the process was not delivered to the Process Server but he was provided only photocopy thereof. He was allegedly ill- treated, wrongly confined, punished by making him stand hands-up and was also allegedly asked to sit on the floor for about 3-4 hours. He has made the complaint against the SHO concerned, the revisionist herein. Under the circumstances, he could not have been expected to have first approached the revisionist against whom he had the grievance and therefore the contention that he could not have made the complaint directly to the court has no merit.
12. The contention raised by Ld. Counsel for the revisionist that the complaint U/s 195 Cr.P.C by Ld. ACJ to the court of Ld. CMM could only be filed subsequent to holding an inquiry U/s 340 Cr.P.C is not tenable because the question of holding an inquiry U/s 340 Cr.P.C would arise only when the offence referred to falls in clause (b) of Sub-section (1) of Section 195 Cr.P.C which appears to have been committed in or in relation to a proceeding in that court or, as the case may be in respect of a document produced or given in evidence in a proceeding in that Court.
Crl. Rev. No. 174/13 Page 7 of 9The complainant Process Server Ravi Dutt Sharma is a public servant and being employee in the court he was administratively subordinate to Ld. Administrative Civil Judge, who had made the complaint U/s 195 Cr.P.C and therefore in the complaint he had formed a view after considering the contents of the complaint that from the allegations made therein prima facie offence U/s 186 IPC and U/s 341 IPC are constituted and therefore there was no illegality in the complaint. The question of obtaining sanction against the offender being a police officer, is to be appreciated at the time of taking cognizance of offence or filing of charge- sheet and contention in this regard is pre-mature at this juncture.
13. The impugned order has been passed by Ld. CMM, Shahdara and PS Nand Nagri falls in the territorial jurisdiction of District Shahdara, Delhi and therefore Ld. Trial Court was competent and had territorial jurisdiction to pass the impugned order.
14. The contention that Ld. Trial court has completely failed to appreciate the distinction between Chapters XV and XXVI has no merit. In authority reported as Baru Ram v State of Haryana 1990 Cr.L.J NOC 153, it was held that if cognizance of offence has not been taken by the Magistrate U/s 190(1)(a) Cr.P.C on receipt of complaint, he can direct investigation U/s 156(3) Cr.P.C after registration of the case. In authority reported as Minu Kumari & Anr v State of Bihar and Ors (2006) 4 Supreme Court Cases 359, it was held that the Magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of a case U/s 190 (1)(i)(a) Cr.P.C.
15. It cannot be said that the complaint made by Ld. Administrative Civil Judge to Ld. CMM U/s 195 Cr.PC accompanied Crl. Rev. No. 174/13 Page 8 of 9 with the complaint of Process Server is abuse of court process or of provisions of law. The contention that allegations made by the Process Server are improbable and absurd cannot be outrightly rejected or disbelieved rather the photocopies of the warrant and summons placed by him on record prima facie support his allegations. The letter No. 179/13 dated 27/11/13 submitted by Mr. Rajender Singh Sagar, Additional DCP, N/E District, Delhi also supports the complainant as it has been reported that in the inquiry conducted by ACP Seemapuri fault on the part of Inspector Devender Kumar, SHO, PS Nand Nagri was established.
16. There is no doubt that a Magistrate cannot direct investigation to be conducted by an officer of a particular rank. However, in the present case the complainant had made the allegations against the SHO, PS Nand Nagri, (the revisionist herein) and therefore an order directing investigation to be conducted by an Officer of the rank of ACP cannot be said to be illegal because investigation by a superior officer alone can serve the purpose of inquiry or investigation.
17. In my considered view there appears no illegality, irregularity or impropriety in the impugned order. The revision is therefore dismissed. Copy of order alongwith trial court record be sent to the Ld. Trial Court. Revision file be consigned to Record Room.
Announced in the open court today i.e 3rd December 2013 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi Crl. Rev. No. 174/13 Page 9 of 9