Delhi District Court
Sh. Vinod Kumar vs Sh. O.P. Sisodia on 27 March, 2017
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS: NEW DELHI
CR 204754.16 in CR No. 80/16
SH. VINOD KUMAR
S/O SH. KISHAL LAL
H.NO. 92, SECTOR15,
HUDA, JAGADHARI,
DISTT. YAMUNA NAGAR,
HARYANA135003.
.......Petitioner
Versus
SH. O.P. SISODIA
89 (GF) KAILASH HILLS,
EAST OF KAILASH,
NEW DELHI110065. .......Respondent
Instituted on : 16.07.2016
Argued on : 15.03.2017
Decided on : 27.03.2017
ORDER:
By way of present revision petition, the petitioner had challenged the impugned order dated 19.03.2016 passed by the court of Ms. Archana Beniwal, the then learned MM8 SED, Saket Courts, New Delhi in CC No. 139/4/14 PS Amar Colony, u/s. 500 IPC, titled as O.P. Sisodia Vs. Vinod Kumar whereby Ld. MM, was pleased to direct framing of charge for the offence punishable u/s. 500 IPC against the petitioner on 25.05.2016. Feeling aggrieved from the said order, the petitioner had challenged the same on the following amongst other grounds:
That the impugned order as passed by the Ld. M.M. was not only contrary to the facts and law and against the material available on record but also suffered from the non application of judicious mind as no primafacie material was available on record for framing of charge qua the petitioner. It was further stated that the impugned order was not a speaking order holding that offence u/s. 500 IPC was made out against the accused.
It was further contended that Ld. M.M. had failed to appreciate CR No. 204754/16 Vinod Kumar Vs. O.P. Sisodia. Page No. 1/5 that the present complaint was nothing but a counter blast to the civil suit filed by the petitioner against the complainant/respondent and the Ld. M.M. had also erred in holding that the averments made by the petitioner in his written statement filed before the Hon'ble High Court in suit CS (OS)No. 1133 of 2011 titled "Dr. Harveer Singh & Ors. Vs. All India Blind Relief Society (Regd). & Ors." had constituted a publication u/s. 499 IPC and the averments so made were not covered under the absolute privilege which had not fallen within the purview of defamation. The impugned order was passed by the Ld. M.M. without awaiting the outcome of aforesaid civil suit pending between the parties before Hon'ble High Court of Delhi and the present complaint instituted against the petitioner was mischievous and the defamation imputed was covered under the exceptions provided to Sec. 499 IPC hence could not have formed the commission of offence u/s. 500 IPC and hence the impugned order deserved to the set aside and petitioner deserved to be discharged by this Court in exercise of its revisional powers and jurisdiction.
2 The brief facts that had necessitated filing of the present revision petition are succinctly given as under: As per the case of petitioner/accused who is practicing a advocate, he was inducted as a member of All India Blind Relief Society and he was elected as the President of the said society on 15.11.2009. In March 2011 he had refused to toe the line as per the wishes of one Mr. L.K. Sagar who wanted the petitioner to accept the resignation of certain members of the society without verification and hence he was illegally removed on 16.03.2011 from the post of President and also from the membership on the basis of resignation letter dated 28.12.2009 and he came to know about this fact only in May 2011.
It was stated further that on 10.05.2011 one Dr. Harveer Singh who was also a member of governing body of the society had filed a suit being CS (OS) No. 1133 OF 2011 before the Hon'ble High Court of Delhi challenging the induction of 187 individuals as members of the society in which the petitioner was impleaded as defendant No. 2 and the complainant was arrayed CR No. 204754/16 Vinod Kumar Vs. O.P. Sisodia. Page No. 2/5 as defendant No. 3. On 07.07.2011 the petitioner had filed his written statement in the said suit contending therein that the petitioner was of the opinion and belief that Mr. L.K. Sagar in collusion with complainant and some members of the society wanted to illegally take over the society assets for this own benefit and hence he had forged and fabricated the records of the society to execute his illegal and malafide intentions.
It was contended further that on 22.09.2011 the petitioner had issued a legal notice for defamation on the basis of allegation made in the written statement and copy of the said WS was stated to be also supplied to the counsel of the complainant and it was not known as to how and by whom the said document was circulated and came to the notice of the respondent herein and on 04.01.2012, a complaint bearing No. 139/4/14 was filed by the complainant against the petitioner before the Court of Ld. M.M., who after examining the witnesses of complainant had summoned him vide order dated 22.11.2013 and thereafter the impugned order was passed by Ld. M.M. which order had been assailed by him before this Court invoking its revisional powers and jurisdiction.
3 I have heard both the learned counsels for the parties and have also gone through the impugned order and the material placed on record. 4 When the Ld. Counsel for the respondent was asked about the attraction of provisions of Section 500 IPC, in respect of the judicial proceedings and pleadings therein, Ld. Counsel has relied upon the following citations:
(i) Sanjay Mishra v. Govt. of NCT of Delhi, reported in Indian Kanoon http:indiankanoon.org/doc/62501359/;
(ii) Bikramjit Alhuwalia & Ors v. Simran Ahluwalia, reported in Indian Kanoonhttp:indiankanoon.org/doc/80168157/; and
(iii) Arundhati Sapru v. Yash Mehra, reported in Indian Kanoon http:indiankanoon.org/doc/173988137/;
CR No. 204754/16 Vinod Kumar Vs. O.P. Sisodia. Page No. 3/55 The factual matrix of the case revolves around of para--1 of the additional pleas taken by the petitioner herein before the Hon'ble High Court in the WS filed by him, wherein he had made the following assertions; "... It is stated that Mr. L K Sgar in collusion with Mr. O P Sisodia and some other members of the society wants to illegally take over the society and its assets for his own benefit and has therefore forged and fabricated the records of the society to execute his illegal and malafide intentions."
6 On a bare and plain reading of the same makes it amply clear that averments, if any, were made by the petitioner against Sh L K Sagar and not against the present respondent.
7 Further, perusal of the record reveals that in para 11 of the criminal complaint filed by the respondent before the Ld. MM, he had alleged that the petitioner had circulated the contents of the WS on 1.7.2011 and also on 4.7.2011, he had heard about maligning assertions being propagated against him at the behest of the petitioner.
8 However, perusal of the record reveals that WS containing the aforesaid assertions was signed and attested on 7.7.2011 and not on 1.7.2011 or 4.7.2011. However, the Ld. MM not only while summoning the petitioner as an accused, but also while passing of the impugned order, had completely ignored the aforesaid facts.
9 It shall also be pertinent to mention here that CWs No. 2 to 5 examined by the respondent herein, had nowhere specified any particular date and time as to when publication of alleged defamatory remarks was made to them.
10. Further more, none of the witnesses so examined by the petitioner before the Ld. Trial Court had stated that by virtue of publication of said remarks, the image of the petitioner had lowered down or tarnished in his eyes and perception.
CR No. 204754/16 Vinod Kumar Vs. O.P. Sisodia. Page No. 4/511 However, I do not find any merits in the plea taken by the counsel for the petitioner that assertions made were in good faith and the falsity or otherwise in respect of the same are yet to be established by the Hon'ble High Court, as it purely amounts to probable defence of the petitioner as provided in the exceptions attached to the offence, which can be duly established and proved, only during stage of trial.
12 In these circumstances, I have no hesitation in holding that no offence as alleged had been committed in the given facts and circumstances of this case, therefore, impugned order as passed by the Ld. MM was against the settled canons of law and was not passed after due application of judicious mind.
12 Accordingly, the petition is allowed and the impugned order is hereby set aside 13 Copy of the order be sent to Ld. Trial Court for its perusal and record.
14 Revision petition be consigned to record room after completion of all other necessary formalities in this regard.
Announced in the open Court on 27.03.2017 ( LOKESH KUMAR SHARMA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi CR No. 204754/16 Vinod Kumar Vs. O.P. Sisodia. Page No. 5/5