Delhi District Court
Jitendra Kumar Sharma vs The State (Nct Of Delhi) on 30 August, 2022
Jitendra Kumar Sharma V. State & Ors.
AND
Jitendra Kumar Sharma V. State & Anr.
IN THE COURT OF ARUN SUKHIJA,
Ld. ADDL. SESSIONS JUDGE-03 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
Criminal Revision No. - 02/2022
IN THE MATTER OF:
Jitendra Kumar Sharma
B-6/88, Sector-7, Rohini,
Delhi-110085. ...Revisionist/Petitioner
Versus
1. The State (NCT of Delhi)
2. Mr. Ravi Malik S/o Late Shri S.P. Malik
R/o C-216, 217, 218, Near Nirman Vihar
Metro Station, Exit Metro Gate No.4,
Delhi-110092.
3. Mr. Dinesh Moral
Inspector, Delhi Police,
Posted at Crime Branch,
Shakarpur, Delhi.
4. Mr. Abodh Sharma
Sub-Inspector, Delhi
P.S. Preet Vihar, Delhi.
5. Ms. Suranya
Sub-Inspector, Delhi Police
P.S. Preet Vihar, Delhi. ...Respondents
AND
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Criminal Revision No. - 45/2022
IN THE MATTER OF:
Jitendra Kumar Sharma
B-6/88, Sector-7, Rohini,
Delhi-110085. ...Revisionist/
Petitioner
Versus
1. The State (NCT of Delhi)
2. Mr. Ravi Malik S/o Late Shri S.P. Malik
R/o C-216, 217, 218, Near Nirman Vihar
Metro Station, Exit Metro Gate No.4,
Delhi-110092 ...Respondents
::- COMMON ORDER -::
1. By way of this common Order, this Court shall decide the Revision
Petition Nos.02/2022 and 45/2002. In CR No.02/2022, Revisionist
has challenged the order dated 01.10.2021, whereby, the application
under Section 156(3) Cr.P.C. as well as complaint under Section
200 Cr.P.C. filed by Revisionist/Petitioner was dismissed. In Crl.
Rev. No.45/2022, Revisionist/Petitioner has challenged the order
dated 23/11/2021, whereby, protest application filed by
Revisionist/Petitioner was dismissed.
2. The respondent no.2 has lodged FIR No.119/2019 P.S. Preet Vihar,
Delhi for extortion against the unknown person on basis of
complaint dated 30.07.2019. The charge sheet has been filed in the
said case against four accused persons namely Kanika, Vani Luthra,
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Shubham @ Shivam and the revisionist i.e. Jitendra Sharma.
Succinctly, the facts which emerged-out from the said case are as
follows:-
(i) An unsigned photostat copy of a legal notice was sent to Dr.
Ravi Malik (Respondent No.2) from Chamber no. C-1 and 2,
C.L. Joseph Block, Tis Hazari Courts, Delhi on 21.07.2019
on the letter head of Sharma & Co., Advocate and Solicitors,
Jitender Sharma.
(ii) The name of the noticee namely Krishan, S/o Late Sh. Daulat
Ram, R/o VPO Bhorgarh, Narela, Delhi was mentioned and
the same was sent by Shubham @ Shivam associate of the
revisionist.
(iii) On 25.07.2019, Shri Inderjeet Singh, counsel on behalf of Dr.
Ravi Malik has sent a reply to the said notice at the aforesaid
address i.e. Chamber No. C-1 and 2, Sharma & Co., C.L.
Joseph Block, Tis Hazari Courts, Delhi
(iv) On 29.07.2019, a call was received by Dr. Ravi Malik,
respondent no.2 inter-alia stating "Doctor notice ka koi
jawab nahi bana to jaib dhilli kar, kaise, kub aur kahan
bataa denge" .
(v) Dr. Ravi Malik received three calls from Mobile
No.8700935866 on 30.07.2019 from one caller Kanika. He
was called by the said lady to meet in Chamber i.e. C-1 and
2, C.L. Joseph Block, Tis Hazari Courts, Delhi, which was
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not agreed by respondent No.2 Dr Ravi Malik. Another call
was received by Dr. Ravi Malik and Kanika asking him to
meet at 2 p.m. on 31.07.2019 at Host Restaurant, Connaught
Place, Delhi.
(vi) The raiding party was constituted to lay the trap for
apprehending culprits, who were making extortion calls to
respondent no.2. A lady police official namely WSI Sharnaya
Sain was sent along with respondent no.2 to Host Restaurant
while remaining raiding party was detailed for a close watch.
(vii) At about 2 p.m., four persons, all in the uniform/dress of
Advocates - 2 men and 2 women, came in a cab. The co-
accused persons Kanika and Vani Luthra demanded Rs.15.00
Lakhs from respondent no.2 for not pursuing their legal
notice and finally, the same was negotiated for Rs.11.00
Lakhs and out of that, Rupees One Lakh was given to Ms.
Vani.
(viii) The handing-over of Rupees One Lakh given by Dr. Ravi
Malik to Ms.Vani and the conversation that rest of Rs.10
Lakhs will be given in the evening happened in front of
Revisionist. The conversation regarding sending of the notice
and the consequent reply by the Advocate was also done in
the presence of Revisionist.
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(ix) The accused Kanika was arrested on 31.07.2019 and from
her possession inter-alia following documents and money
were recovered and seized:-
(a) Legal Notice, which was served on Dr. Ravi Malik on the
letter head of Jitender Sharma;
(b) Reply to the said notice which was sent by Dr. Ravi
Malik; and
(c) a sum of Rupees One Lakh.
3. On and after the arrest of Kanika, Jitender Kumar Sharma, Vani and
Shubham were interrogated but were released after being given
notice to join investigations. During investigation, it was found
from the mobile phone no.8595122791 of the revisionist that he has
sent a voice message dictating the contents of legal notice to Vani
Luthra on her mobile no. 8506856152 and notice, which was sent to
Dr. Ravi Malik, was found in the chat details of his mobile phone.
The Laptop of the revisionist was also found to be formatted and
both the accused persons Vani Luthra and Jitender Kumar Sharma
were arrested on 10.09.2019.
4. After about 21 months, the Revisionist/Petitioner has filed the
complaint under Section 200 Cr.P.C. and application under Section
156(3) Cr.P.C. inter-alia alleging as under:-
(a) An FIR bearing no. 119/19 under Sec. 385/34 IPC at PS Preet
Vihar was registered after a delay of more than 9 days.
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(b) On 31.07.2019, the Petitioner was taken to the police station
Preet Vihar from Connaught Place and after some questioning
at PS Preet Vihar, he was released in the evening on the
assurance that he would be required as a prosecution witness in
the said extortion matter.
(c) Subsequently on or around 07-08/08/2019, the investigation of
the said FIR was transferred to the Crime Branch, Shakarpur,
Delhi and the Petitioner was arrested in the above matter on
10.09.2019.
(d) The said alleged notice dated 21.07.2019 was manipulated and
forged. A reply/notice dated 25.07.2019 sent by counsel
Sh.Inderjeet Singh, Advocate for respondent No.2, does not
mention the notice to be a photocopy and this shows clear
manipulation and distortion and raises strong suspicion against
the prosecution story. Further, the reply-notice does not refer to
the specific paragraphs of the notice dated 21.07.2019 rather
the same is quite vague and non-specific and this shows that
the original notice, if at all any, has been deliberately and
purportedly concealed and a photocopy is prepared/tailored
malafidely as per the unscrupulous 'requirements' of Mr. Ravi
Malik to maliciously book/implicate the Petitioner and others
in this false case.
(e) The initial FIR has been registered at PS Preet Vihar, Delhi, in
which, there is substantial unexplained delay and wherein, the
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Petitioner had joined investigation on 31.07.2019, but he was
not arrested and let free by the IO. However, in the meantime,
this matter was surprisingly transferred to Crime Branch,
Shakarpur, Delhi, where a new IO (of the rank of Inspector)
was appointed in the alleged offence, which carries a maximum
punishment of 3 years of fine (Section 384 IPC) and sadly, the
IO has resorted to unfair, biased and one-sided investigation in
a pre-determined manner malafidely targeting the Petitioner
and he has shielded the real culprits by his partisan, motivated
and biased investigation.
(f) The Petitioner was arrested in this case despite there being no
overt act/involvement on his part in this matter or any other
case and two more FIRs i.e. 305/19, PS Anand Vihar u/s.
385/34 and FIR no. 260/19, PS North Rohini, u/s. 385/34 IPC
had been malafidely and extremely belatedly registered at the
behest of Crime Branch against the petitioner with a view to
just effect arbitrary and unlawful arrest of the Petitioner in
order to bypass the Supreme Court guidelines, as mentioned in
the judgment of Arnesh Kumar Vs. State of Bihar , though,
the Petitioner has no role at all in the alleged commission of
crime, which can be clear from the bare perusal of these FIRs.
(g) It is further amply clear from the evidence on record that there
is conscious, deliberate and calculated cheating and abetment
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on the part of Mr. Ravi Malik coupled with distortion and
concealment of the facts.
(h) As per FIR, on 29.07.2012 at about 7.00 pm, a call was
received on the landline of Mr. Ravi Malik, wherein, the caller
(a male person), who was speaking in Haryanvi accent and
who asked Mr. Ravi Malik to 'Jeb dhili karle'. On this basis, the
FIR in question has been registered on the next day i.e. on
30.07.2019 at around 11.45 p.m. (after a delay of about 1 day
and 5 hours), which is clear from the bare perusal of the FIR.
Further, the delay in registration of this FIR, is not explained
anywhere, which casts a shadow of grave suspicion on the
entire prosecution story and insinuates obnoxious manipulation
and distortion.
(i) The statement recorded u/s. 161 Cr.P.C. dated 31.07.2019
(submitted with the chargesheet in case FIR no. 119/2019) that
on 30.07.2019 between 04.53 p.m. to 06.07 p.m., certain phone
calls had been made by the accused Mansi Kohli @ Kanika,
wherein, she asked Dr. Ravi Malik to meet her at 'Host'
Restaurant on 31.07.2019 at around 2.00 p.m. Pertinently, the
FIR in this matter was registered after around 6 hours of this
alleged conversation, yet in the FIR, there is no mention of the
complainant having conversed with the accused and agreeing
to meet her the next day, which is quite surprising and hard to
believe. Had the meeting between the accused Mansi Kohli @
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Kanika and Dr. Ravi Malik been agreed, as mentioned in the
alleged statement of the complainant u/s. 161 Cr.P.C., dated
31.07.2019, the same would have been mentioned in the FIR
itself. This raises serious doubts regarding the truthfulness of
the statement dated 31.07.2019 and renders it liable to be
discarded.
(j) It is clear that the facts in this matter (in the FIR as well as in
the statement dated 31.07.2019) are distorted, manipulated and
concealed to the deception of all norms of law and justice.
Further, Dr. Ravi Malik negotiated the alleged deal with
accused Mansi Kohli @ Kanika and another outside the hotel
'Host' and not in the presence of petitioner thereby concealing
everything from the petitioner, which further strengthens
suspicion against Dr. Ravi Malik and demonstrates his
calculated and targeted abetment and instigation as well as
facilitation and commission of other offences on his part.
(k) Dr. Ravi Malik himself called the accused and fixed meeting to
meet at Host Restaurant in Connaught Place and allured rather
persuaded and abetted her to take money voluntarily offered by
him and then got her arrested illegally, unlawfully and
malafidely and even the element of any 'fear' is also clearly
ruled out, rather it has become a case of conspiracy in regard to
the false implication, allurement and malicious prosecution. It
is further quite surprising that Dr. Ravi Malik did not bother to
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record any calls allegedly made by the accused during evening
hours of 30.07.2019 because the recording would have
divulged the instigation and abetment of the complainant, as he
himself, by offering money, instigated and allured the accused
Mansi Kohli @ Kanika to meet him on 31.07.2019 at Host
Restaurant, Connaught Place and roped in other innocent
persons (including the Petitioner) also in the current case, who
had, in fact, nothing to do with the alleged offence.
(l) The accused no.1 (respondent No.2) has been preventing the
alleged lodging of complaint with the regulatory authority
(CDMO), which is clear from the conversation attached hereto
and at no point of time, he expressed his clout/ willingness to
face the alleged complaint, which was proposed to be allegedly
made to the CDMO, rather he kept on pestering, facilitating
and abetting by repeatedly calling Ms. Kanika as his 'younger
sister' and by malafidely passing of the money to her in the
presence of accused no.4 (respondent No.5) herein, who had
also been a party to his abetment and facilitation succeeded in
maliciously implicating the Petitioner and others in false,
improvised and unlawful case.
5. The revisionist in additions to the submissions of complaint has
argued as under:-
(i) As per the complaint made, a cognizable offence is made out
against Respondents no. 2 and 5, still, the Ld. Trial Court has
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dismissed the application under Section 156(3) Cr.P.C. as
well as complaint under Section 200 Cr.P.C. Even if, the
application under Section 156(3) Cr.P.C. was dismissed, yet
the complainant ought to have been allowed to lead continue
the complaint under Section 200 Cr.P.C..
(ii) The Ld. Trial Court has acted as a mouthpiece for the
respondents, wherein, the Status Report surprisingly resorts
to protecting the police officials under Section 140 D.P. Act
and Section 197 Cr.P.C., though, there is no palpable or
tangible evidence on record, which shows that respondents
no.2 to 5 were acting in discharge of their official duties at
the relevant time and the reliance has been placed on the
judgments of (i) K. Kalimuthu Vs. State of by DSP
LAWS(SC)-2005-3-11 decided on 30.03.200, (ii)
Matajog Dube 1956 Cr LJ 140 (SC), (iii) Amrik Singh
1955 CrLJ 865 (SC) and (iv) Baijnath Gupta 1966 CrLJ
179(SC).
(iii) The alleged incident at the Host Restaurant was allegedly at the
crowded place and the investigation agency was having
sufficient time to join public witness, however, no public
witness was joined in the alleged incident and the police
officials are only interested persons for facilitating the
conspiracy from very beginning and abetting the crime. An FIR
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bearing no. 119/19 under Sec. 385/34 IPC at PS Preet Vihar
was registered after a delay of more than 9 days.
(iv) On 31.07.2019, the Petitioner was taken to the police station
Preet Vihar from Connaught Place and after some questioning
at PS Preet Vihar, he was released in the evening on the
assurance that he would be required as a prosecution witness in
the said extortion matter.
(v) Subsequently on or around 07-08/08/2019, the investigation of
the said FIR was transferred to the Crime Branch, Shakarpur,
Delhi and the Petitioner was arrested in the above matter on
10.09.2019.
(vi) The said alleged notice dated 21.07.2019 was manipulated and
forged. A reply/notice dated 25.07.2019 sent by counsel
Sh.Inderjeet Singh, Advocate for respondent No.2, does not
mention the notice to be a photocopy and this shows clear
manipulation and distortion and raises strong suspicion against
the prosecution story. Further, the reply-notice does not refer to
the specific paragraphs of the notice dated 21.07.2019 rather
the same is quite vague and non-specific and this shows that
the original notice, if at all any, has been deliberately and
purportedly concealed and a photocopy is prepared/tailored
malafidely as per the unscrupulous 'requirements' of Mr. Ravi
Malik to maliciously book/implicate the Petitioner and others
in this false case.
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(vii) The initial FIR has been registered at PS Preet Vihar, Delhi, in
which, there is substantial unexplained delay and wherein, the
Petitioner had joined investigation on 31.07.2019, but he was
not arrested and let free by the IO. However, in the meantime,
this matter was surprisingly transferred to Crime Branch,
Shakarpur, Delhi, where a new IO (of the rank of Inspector)
was appointed in the alleged offence, which carries a maximum
punishment of 3 years of fine (Section 384 IPC) and sadly, the
IO has resorted to unfair, biased and one-sided investigation in
a pre-determined manner malafidely targeting the Petitioner
and he has shielded the real culprits by his partisan, motivated
and biased investigation.
(viii) The Petitioner was arrested in this case despite there being no
overt act/involvement on his part in this matter or any other
case and two more FIRs i.e. 305/19, PS Anand Vihar u/s.
385/34 and FIR no. 260/19, PS North Rohini, u/s. 385/34 IPC
had been malafidely and extremely belatedly registered at the
behest of Crime Branch against the petitioner with a view to
just effect arbitrary and unlawful arrest of the Petitioner in
order to bypass the Supreme Court guidelines, as mentioned in
the judgment of Arnesh Kumar Vs. State of Bihar , though,
the Petitioner has no role at all in the alleged commission of
crime, which can be clear from the bare perusal of these FIRs.
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(ix) It is further amply clear from the evidence on record that there
is conscious, deliberate and calculated cheating and abetment
on the part of Mr. Ravi Malik coupled with distortion and
concealment of the facts.
(x) As per FIR, on 29.07.2012 at about 7.00 pm, a call was
received on the landline of Mr. Ravi Malik, wherein, the caller
(a male person), who was speaking in Haryanvi accent and
who asked Mr. Ravi Malik to 'Jeb dhili karle'. On this basis, the
FIR in question has been registered on the next day i.e. on
30.07.2019 at around 11.45 p.m. (after a delay of about 1 day
and 5 hours), which is clear from the bare perusal of the FIR.
Further, the delay in registration of this FIR, is not explained
anywhere, which casts a shadow of grave suspicion on the
entire prosecution story and insinuates obnoxious manipulation
and distortion.
(xi) The statement recorded u/s. 161 Cr.P.C. dated 31.07.2019
(submitted with the chargesheet in case FIR no. 119/2019) that
on 30.07.2019 between 04.53 p.m. to 06.07 p.m., certain phone
calls had been made by the accused Mansi Kohli @ Kanika,
wherein, she asked Dr. Ravi Malik to meet her at 'Host'
Restaurant on 31.07.2019 at around 2.00 p.m. Pertinently, the
FIR in this matter was registered after around 6 hours of this
alleged conversation, yet in the FIR, there is no mention of the
complainant having conversed with the accused and agreeing
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to meet her the next day, which is quite surprising and hard to
believe. Had the meeting between the accused Mansi Kohli @
Kanika and Dr. Ravi Malik been agreed, as mentioned in the
alleged statement of the complainant u/s. 161 Cr.P.C., dated
31.07.2019, the same would have been mentioned in the FIR
itself. This raises serious doubts regarding the truthfulness of
the statement dated 31.07.2019 and renders it liable to be
discarded.
(xii) It is clear that the facts in this matter (in the FIR as well as in
the statement dated 31.07.2019) are distorted, manipulated and
concealed to the deception of all norms of law and justice.
Further, Dr. Ravi Malik negotiated the alleged deal with
accused Mansi Kohli @ Kanika and another outside the hotel
'Host' and not in the presence of petitioner thereby concealing
everything from the petitioner, which further strengthens
suspicion against Dr. Ravi Malik and demonstrates his
calculated and targeted abetment and instigation as well as
facilitation and commission of other offences on his part.
(xiii) Dr. Ravi Malik himself called the accused and fixed meeting to
meet at Host Restaurant in Connaught Place and allured rather
persuaded and abetted her to take money voluntarily offered by
him and then got her arrested illegally, unlawfully and
malafidely and even the element of any 'fear' is also clearly
ruled out, rather it has become a case of conspiracy in regard to
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the false implication, allurement and malicious prosecution. It
is further quite surprising that Dr. Ravi Malik did not bother to
record any calls allegedly made by the accused during evening
hours of 30.07.2019 because the recording would have
divulged the instigation and abetment of the complainant, as he
himself, by offering money, instigated and allured the accused
Mansi Kohli @ Kanika to meet him on 31.07.2019 at Host
Restaurant, Connaught Place and roped in other innocent
persons (including the Petitioner) also in the current case, who
had, in fact, nothing to do with the alleged offence.
(xiv) The accused no.1 (respondent No.2) has been preventing the
alleged lodging of complaint with the regulatory authority
(CDMO), which is clear from the conversation attached hereto
and at no point of time, he expressed his clout/ willingness to
face the alleged complaint, which was proposed to be allegedly
made to the CDMO, rather he kept on pestering, facilitating
and abetting by repeatedly calling Ms. Kanika as his 'younger
sister' and by malafidely passing of the money to her in the
presence of accused no.4 (respondent No.5) herein, who had
also been a party to his abetment and facilitation succeeded in
maliciously implicating the Petitioner and others in false,
improvised and unlawful case.
(xv) The Ld. Trial Court has wrongly come to the conclusion that
all the four accused persons negotiated for the alleged deal
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took-place at Host Restaurant, however, the alleged
telephonic recording nowhere discloses that any negotiation
took-place at Host Restaurant, rather the alleged negotiation
took-place outside the Host Restaurant and where the
revisionist was not even present. The revisionist has not even
participated in any manner in the alleged crime.
(xvi) The Ld. Trial Court erred in holding that the Petitioner did
not deny the alleged notice which was allegedly sent to the
respondent Dr. Ravi Malik. The said notice was not sent by
the Petitioner and the same has never been admitted by him.
The said notice is being foisted upon the petitioner, whereas,
the evidence is showing otherwise. The respondent Dr. Ravi
Malik has actively abetted the crime in the conspiracy and
collusion with the other respondents.
(xvii) A perusal of typed conversation/transcript clearly shows
abetment on the part of respondents No.2 to 5, including Dr.
Ravi Malik and despite there being clinching evidence, the
respondents are being allowed to take undue advantage out of
their own wrongs and arbitrary, whimsical and biased
investigation.
(xviii)There is no bar to maintain a second complaint in respect of
the same very incident, as held by Hon'ble Apex Court in the
case of Shiv Shankar Singh Vs. State of Bihar & Anr.
2012 (1) SCC and in the case of Manikandan Vs. Pandian
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& Ors. 1989 (Supp.) (2) SCC 648 . The impugned order is
contrary to the evidence existing on the record.
(xix) The Revisionist/Petitioner, in order to buttress his arguments,
has also placed reliance upon the following judgments:-
(a) Upkar Singh Vs. Ved Parkash and Ors. Criminal
Appeal No.411 of 2002 decided on 10.09.2004;
(b) B.P. Srivastava Vs. N.P.Mishra 1971 SCR (1) 317;
(c) Emperor Vs. Amiruddin Salebhoy Tyabjee (1922)
24 BomKR 534;
(d) Minu Kumari & Anr. Vs. State of Bihar, Criminal
Appeal No.420 of 2006 decided on 12.04.2006;
(e) Dr. Rajni Palriwala vs Dr. D. Mohan & Anr.
Criminal M.C. 6525/2006 decided on 22.04.2006
and
(f) Thota Papi Reddy and Ors. Vs. Gudalli Yellaiah
Land Anr. 2006 CrLJ 4409.
6. Per contra, ld. Counsel for the respondents has argued that Ld. Trial
Court has rightly dismissed the application under Section 156(3)
Cr.P.C., complaint under Section 200 Cr.P.C. and also the protest
petition on the following arguments:-
(a) The complaint does not disclose any cognizable offence, as
tried to be built by the revisionist/petitioner, and thus, no
question of directing the investigation under Section 156(3) of
Cr.P.C. Since, no cognizable offence is made out, there is no
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question of proceeding under Section 200 Cr.P.C. also. The
reliance is placed upon the following Judgments:-
(i) Sukhwasi Vs. State of Uttar Pradesh
MANU/UP/1115/2007 decided by Hon'ble High
Court of Allahabad on 18.09.2007;
(ii) Dharmeshbhai Vasudevbhai & Ors. Vs. State of
Gujarat & Ors. Crl. Appeal no. 914/2009 decided by
Hon'ble Supreme Court on 05.05.2009;
(iii) H.S. Bains Vs. State (Union Territory of
Chandigarh) Crl. Appeal No. 687/1980 passed by
Hon'ble Supreme Court on 10.10.1980 and
(iv) Mehmood Ul Rehman Vs. Khazir Mohammad
Tunda, (2015) 12 SCC 420.
(b) The law is amply clear that there cannot be a second FIR with
regard to the same incident and being a defence of the accused,
who is facing criminal trial. The reliance has been placed on
the following judgments:-
1. T.T. Antony etc. Vs. State of Kerala & Ors. 2001 (3)
Crimes 276 (SC) and
2. Mohd. Salim Vs. State Crl. M.C. No.3601/2009
passed by Hon'ble High Court of Delhi on
10.03.2010;
(c) The application under Section 319 Cr.P.C. also cannot be
invoked, at this stage, in view of the judgment of Hardeep
Singh Vs. State of Punjab 214 (1) Crime 133 .
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(d) The revisionist has alleged in the complaint about the
shortcomings of investigation, which includes non-joining of
public witnesses, manipulation of witness, delay in lodging the
FIR etc. All these are the defences of the accused persons,
which cannot be permitted at this stage in view of the judgment
of State of Orissa Vs. Debendra Nath Padhi Crl. Appeal
Nos. 497/2001 and 46/2004 and SLP (Crl.) No.
1912/2003 decided by Hon'ble Supreme Court on
29.11.2004 .
(e) The revisionist Court has to see the legality/propriety in the
impugned order and cannot evaluate the evidence, which,
otherwise, is a matter of trial. The reference has been made to
the judgment of Criminal Revision No.646/2018 Tapan
Mohan Vs. State High Court of Delhi decided on
25.01.2021 .
(f) The revisionist has not denied the receipt of reply to the notice
dated 25.07.2019 and even has kept mum when this was
discussed by Kanika and Vani Luthra during negotiations on
31.07.2019 at Host Restaurant in the presence of the revisionist
Jitender Sharma nor he has raised any objection till date or
filed any complaint to the police inter alia stating therein that
he never sent any such notice nor was sent on his behalf and
more so, even after the recovery of legal notice and reply of
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legal notice from the possession of co-accused Kanika at the
time of her arrest on 31.07.2019.
(g) The accused Kanika has not challenged the transcript and on
the contrary, the accused Kanika has submitted in her bail
application that she was employee of accused Jitender Sharma
and everything was done on his instructions. In this regard,
para no. 9 of the bail application filed by her, which was
decided by the Court of Ms. Shivali Sharma, the then ld.
CMM, KKD, Delhi, has been relied upon.
(h) The complaint filed by the complainant is also not
maintainable in the eyes of law as he has not obtained
mandatory sanction under Section 140 of the D.P. Act, wherein,
the protection has been provided from prosecution for the acts
done by the police officers or other persons. The cases of
Gauri Shankar Prasad Vs. State of Bihar Crl. Appeal No.
379/2000 and Satish Sharma Vs. State 2019 JCC were
relied upon. It is further argued that since respondent no.2 was
part of the raiding team, thus, he is also protected under the
category of "other persons" under Section 140 D.P. Act.
(i) In the charge sheet filed against all the accused persons, there
are very strong and cogent evidence to categorically show the
involvement of all the accused persons, including the
revisionist/petitioner.
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(j) A Charge sheet was filed and congnizance was taken by Ld.
MM and in pursuance of that, accused persons, including the
petitioner, have appeared in the Court and the matter is fixed at
the stage of charge, as such, Ld. Trial Court cannot pass any
under Section 173(8) CrPC for further investigation and
reliance has been placed on Amrutbhai Shambhubhai Patel
Vs. Sumanbhai Kantibhai Patel & Ors. 2017 and (2) JCC
1396 decided by Hon'ble Supreme Court.
(k) The revisionist is already convicted for the commission of
fraud and was deported from U.K. to India.
(l) The Ld. Counsel for Respondent No.2, in order to buttress his
arguments, has also placed reliance upon the following
judgments:-
(a) Dharmeshbhai Vasudevbhai & Ors. Vs. State of
Gujarat & Ors. Crl. Appeal no. 914/2009 decided by
Hon'ble Supreme Court on 05.05.2009;
(b) Gauri Shankar Prasad Vs. State of Bihar & Anr.
2000 SCC (Cri) 872 and
(c) Satish Sharma Vs. State & Ors. 2019 (2) JCC 1022
passed by Hon'ble High Court of Delhi.
7. This Court has perused the entire record and the relevant
judgments, as relied upon by the parties. The moot question, which
arises for consideration is, whether any cognizable offence is made
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out from the complaint, which was filed by the revisionist against
Respondents no. 2 to 5.
8. The foundation of the complaint and FIR lodged by the respondent
No.2 is unsigned photostat copy of the Notice and calls received by
him, thus, there was no stand of the respondent No.2 that he has
received signed copy of the Notice at any point of time. The said
fact is also revealed from the charge sheet. There is also nothing to
show that Petitioner and respondent No.2 were earlier known to
each other and it is also not the case of the Petitioner that the
respondent No.2 was earlier known to Petitioner and there was an
animosity between both of them. It is well settled law that FIR is
not the encyclopedia which must disclose all facts and details to the
offence reported.
9. During the course of arguments, this Court has raised a query from
the revisionist that for what offence, respondent no.2 has committed
the offence of abetment. The revisionist has half-heartedly argued
that respondent no.2 has committed the abetment to commit
extortion and for the same, the Revisionist has laid heavy reliance
on the conversation between respondent no.2 and accused Kanika
and from the transcript thereof, the revisionist has argued that by
such conversation, the respondent no.2 has himself abetted the
offence of extortion.
10. This Court fails to understand, how a person can commit a crime
against himself. It is the case of respondent no.2 that he received the
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call on 29.07.2019, whereby, fear in the mind of respondent no.2
was created when the following words were used by the caller:-
"Doctor notice ka koi jawab nahi bana to jaib dhilli kar,
kaise, kub aur kahan bataa denge"
11. In view of the apprehension and fear and also in order to unearth
the motive behind such calls, photocopy of the legal notice (which
is received by the respondent no.2), he has made a complaint to the
concerned police officials.
12. The police officials, in order to unearth the entire racket of
extortionist, who were threatening the doctors/nursing home, have
formed a raiding team, which also consists of respondent no.2.
13. As a part of investigation, in order to reach the real culprits, which
were totally unknown, the respondent No.2 has tried to convince the
caller that he is under the fear and wanted to pay the extortion
money.
14. The entire motto and motive appears to unearth the truth behind
such calls and bring the actual culprits to book. As per record of the
charge sheet, the extortion calls were made against respondent no.2
and the person cannot be an abettor against himself.
15. A bare look into the transcript, which is heavily relied upon by the
revisionist, does not, in any manner, show that he has abetted to the
crime against himself and whatever was said by him, appears to
throw bait, in order to unearth the racket of extortionist. This is the
usual practice and procedure adopted in the case when the trap is
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laid down in order to unearth the crime. Similar pattern is adopted
in the cases of Prevention and Corruption Act and real motive for
laying the trap is to unearth the true facts and bring the crime into
the books. If, the version of the revisionist is accepted, then, it
would be totally against the criminal jurisprudence that abettor
would commit a crime against himself and in every case of trap the
complainant would be booked for the abetment.
16. The principle of 'actus non facit reum nisi mens sit rea' that no one
can be guilty without the criminal intent. In the present case, on the
face of it, there does not appear to be any criminal intent on behalf
of respondent no.2, while talking to accused Kanika, rather the
motive was to unearth the real culprits behind the extortion racket.
The arguments of the Petitioner are totally far-fetched and sans
merit and the same are hereby rejected.
17. The Ld. Trial Court has also rightly invoked and relied upon the
provisions of Section 140 D.P. Act as well as Section 197 Cr.P.C..
The police officials were acting in their official capacity when they
have prepared investigation team for the raid and consequent
thereupon raid was made, in order to unearth the truth and in that
raiding team, respondent no.2 was one of the members. The IO has
done the investigation and other police officials have joined the
investigation and consequent thereupon, a final report in the form of
charge sheet was also filed and the Ld. Trial Court has already
taken cognizance in the said charge sheet against the accused
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persons, including the petitioner. The provisions of Section 140 D.P.
Act and Section 197 Cr.P.C. are clearly attracted to the facts and
circumstances to the present case.
18. The reading of entire complaint appears to be the defence of
revisionist in the said FIR. The Ld. Trial Court has also rightly held
that defence of the accused i.e. the revisionist cannot be looked at
this stage. This Court is of the considered view that the Revisionist
will get his ample opportunity during cross-examination of the
witnesses in FIR No. 119/2019 under Sections 384/385/506/120B/
34 IPC P.S. Preet Vihar or at the time of leading his evidence. If, the
Petitioner thinks that his case is very strong on merits, then, he may
seek his discharge from the Ld. Trial Court.
19. This Court is of the considered view that no cognizable offence at
all has been made out in the complaint of petitioner and in view
thereof, there was no requirement to invoke Section 200 Cr.P.C. In
view of the settled proposition from the judgments, as relied upon
by the respondent no.2, the complaint can be dismissed, which does
not disclose any cognizable offence.
20. In the charge sheet emanating from the complaint of respondent
No.2, the Ld. Trial Court has rightly dismissed the protest petition
as the complainant/respondent no.2 was not aggrieved from the
investigation and the same was filed by the accused i.e.
petitioner/revisionist. Furthermore, this Court is in complete
agreement with arguments of Ld. Counsel for respondent No.2, on
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basis of the Judgment Amrutbhai Shambhubhai Patel (Supra),
that since the congnizance was taken by the Ld. Trial Court, no
directions for further investigation can been passed under Section
173(8) of Cr.P.C.
21. The respondent No.2 has relied upon the Judgment of Mohd.
Salim Vs. State, Manu/DE/0575/2010 wherein, the Hon'ble
High Court has held as under:-
"...I am, therefore, satisfied that the impugned order, if
allowed to stand, will result in gross abuse of the process of
the Court, at the behest of a person accused of committing a
serious offence. If such an order is not quashed, it will give
a convenient tool to the persons facing trial for committing
heinous crimes, pursuant to investigation carried out by the
Stage machinery, to thwart the legal process, by filing a
complaint at a time which suits their strategy, giving a
counter version claiming themselves to be innocent and
implicating persons, who are likely to depose against them,
so as to put pressure on those witnesses not to depose
against them. In fact sheer pressure of being accused of
having committed a serious offence, by itself may dissuade
the witnesses from coming forward to give evidence against
the accused and if that happens, the accused will become
successful in his sinister design of frustrating the legal
process initiated against him. Such attempts, therefore,
need to be nipped in the bud and such abuse of legal
process needs to be curbed by an effective and
decisive intervention by this Court, which owes a duty
to uphold the legal process and prevent its abuse or
misuse by anyone, whosoever he may be..."
(Portions bolded in order to highlight)
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22. The jurisdiction of this Court under the revision is culled-out under
Section 397 Cr.P.C. and the same is reproduced as under:-
"397. Calling for records to exercise powers of
revision.--
(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any
inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of
any finding. Sentence or order, recorded or passed, and
as to the regularity of any proceedings of such inferior
Court, and may, when calling for such record, direct
that the execution of any sentence or order be
suspended, and if the accused is in confinement, that
he be released on bail or on his own bond pending the
examination of the record.
"Explanation.--All Magistrates, whether Executive
or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to
the Sessions Judge for the purposes of this sub-section
and of section 398.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions
Judge, no further application by the same person shall
be entertained by the other of them."
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23. From the bare perusal of the aforesaid Section, it is apparent that
this Court has very limited power while exercising powers of
revision. This Court has to exercise its power within four corners of
law and to see whether there is any infirmity in the order passed by
Ld. Trial court. The Court is also to see whether the learned trial
court has exercised the jurisdiction, which is not vested in it by law
or failed to exercise the jurisdiction, which is vested in it by law or
acted with material irregularity. It is well-nigh settled that
Revisional Court is not a Court of appeal and if order of the
Magistrate is passed in accordance with law or does not suffer from
any infirmity, then it is not required to be interfered with.
24. In view of the above observation, this Court is of the view that
impugned orders do not need any interference as same are not
illegal, arbitrary or suffer with any perversity. As such, impugned
orders are hereby upheld.
FINAL ORDER:
In view of the above observations, this Court is passing the
following final order:-
ORDER
(a) Criminal Revision petitions No.02/2022 and 45/2022 are hereby dismissed.
(b) The parties shall bear their own respective costs.
(c) The copy of this order be sent forthwith to the respective Ld. Trial Court.
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(d) Two sets of this order have been prepared and signed, out of which, one set each be kept in both Criminal Revision Petitions as original one.
Files of Criminal Revision Petitions be consigned to Record Room after due compliance.
The order is pronounced in the open Court on this 30 th day of August, 2022 under my hand and seal.
(ARUN SUKHIJA) Additional Session Judge-03 (East District) Karkardooma Courts, Delhi Crl. Rev. No. 02/22 & 45/22 Page - 30 of 30