Delhi District Court
Upendra Sharma vs Government Of Nct on 25 January, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Revision No. 1 of 2016
I.D. No 02403R0019662016
Upendra Sharma
Son of Sh. D.N. Sharma
Resident of 297 Gautam Nagar,
PS Hauz Khas,
New Delhi-110049.
...Petitioner
VERSUS
1. Government of NCT
Through Commissioner of Police
2. Sukhjeet Singh
Son of Late Shri Rattan Singh,
Resident of H-672, Gali No.7,
Palam Extension, Sector-7,
Dwarka, New Delhi.
... Respondents
Date of institution of the case : 23.01.2016
Date of reservation of orders : 23.01.2016
Date of announcement of orders : 25.01.2016
ORDER
1. This revision petition has been filed against the impugned order dated 05.11.2015 by which the Ld. Trial Court has summoned the petitioner / accused for the offence punishable under Section 3 (1)(x) of the Schedule Castes and the Scheduled Tribes Prevention of Atrocities Act 1989 (hereinafter referred to as 'SC / ST Act').
2. Ld. Counsel for the petitioner submitted that the Ld. Trial Court has not proceeded in accordance with the provisions of Section Upendra Sharma vs. State CR No. 1 of 2016 1/10 202 (1) of the Code of Criminal Procedure (Cr.P.C.). He submitted that the accused / petitioner was residing in the jurisdiction of PS Hauz Khan at the time of the alleged incident which was not within the territorial jurisdiction of the Ld. Trial Court. He submitted that in these circumstances, the procedure adopted by the Ld. Trial Court in examining the complainant and his two witnesses was not an 'inquiry' within the provisions of Section 202 (1) of the Cr.P.C. He further submitted that since the accused was residing outside the territorial jurisdiction of the Ld. Trial Court, the Ld. Trial Court was mandatorily required to call for an Inquiry Report from the police regarding alleged incident. In this regard, he had relied upon judgment of the Hon'ble Supreme Court in Udai Shankar Awasthi vs. Sate of U.P. & Anr. in Criminal Appeal No. 61 of 2013 passed on 09.01.2013, Chandra Poojari vs. State of Karnataka reported in 1998 Cri LJ 53 and judgment of Hon'ble Punjab & Haryana High Court in Dr. Jasminder Kaur & Anr. vs. Raj Karan Singh Boparai passed on 03.10.2013.
3. Ld. Counsel for the petitioner further submitted that the Ld. Trial Court has not complied with the provisions of Section 204 (2) of the Cr.P.C. He submitted that the summons have been issued without any list of prosecution witnesses being filed with the complaint which was mandatory as the word 'shall' has been used in Section 204 (2) of the Cr.P.C. He further submitted that the Ld. Trial Court has only mentioned Section 3 of the SC / ST Act for which it has summoned the petitioner without detailing the specific sub-section of Section 3. It was further submitted that the alleged offence has taken place inside a closed chamber which is not within 'public view' as envisaged under Section 3 (1) (x) of the SC / ST Act. He further submitted that the witnesses examined by the complainant have retired ten years prior to the incident Upendra Sharma vs. State CR No. 1 of 2016 2/10 and it was highly unlikely that they would have witnessed the incident. He further submitted that complaint has been filed after a period of eight months from the date of the alleged incident which was an afterthought. It is further stated that the petitioner had taken disciplinary action against the complainant and this complaint is nothing but a malafide act.
4. I have heard Ld. Counsel for the petitioner and have pursued the record of the Trial Court.
5. The proceedings before the Ld. Trial Court have been initiated on the basis of a complaint filed by the complainant Sukhjeet Singh under Section 200 of the Cr.P.C. along with which an application was moved under Section 156 (3) of the Cr.P.C. for directions to the police for registration of an FIR for the offence punishable under Section 3 (1) (x) of the SC / ST Act. Status Report was called for by the Ld. Trial Court on the complaint by order dated 01.05.2012. On 27.06.2012, the Ld. Trial Court dismissed the application under Section 156 (3) of the Cr.P.C. with the observations that all the facts constituting the offence under Section 3 (1) of the SC / ST Act were within the knowledge of the complainant and no evidence was required to be collected by the police. The Ld. Trial Court then posted the complaint for recording of evidence of the complainant.
6. On 21.01.2013, the complainant was present in person with his Counsel before the Ld. Trial Court and he was examined as CW1. Subsequently witness Ashok Kumar was examined as CW2 on 16.12.2013 and Kalidas as CW3 on 28.08.2014. On 28.08.2014, the complainant was re-examined under Section 311 of the Cr.P.C. on an application filed by the complainant. Thereafter, the Ld. Trial Court Upendra Sharma vs. State CR No. 1 of 2016 3/10 posted the matter for arguments and by the impugned order dated 05.11.2015, summoned the petitioner / accused for the offence punishable under Section 3 (1) (x) of the SC / ST Act.
7. The first submission made by the Ld. Counsel for the petitioner was that since the petitioner was residing beyond the territorial jurisdiction of the Ld. Trial Court, it should have conducted an inquiry under Section 202 (1) of the Cr.P.C. and ought to have called for a police report of the incident. With respect to the provisions of Section 202 (1) of the Cr.P.C. as amended in the year 2005, in the case of Vijay Dhanuka v. Najima Mamtaj reported in (2014) 14 SCC 638 the Hon'ble Supreme Court was pleased to hold that:-
"11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his Upendra Sharma vs. State CR No. 1 of 2016 4/10 jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
13. In view of the decision of this Court in Udai Shankar Awasthi v. State of U.P., this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment: (SCC p. 449, para 40) "40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out Upendra Sharma vs. State CR No. 1 of 2016 5/10 whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
(emphasis supplied)
14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows:
"2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.
15. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process.
16. In view of what we have observed above, we do not find any error in the order impugned. In the result, we do not find any merit in the appeals and the same are dismissed accordingly."
(emphasis supplied)
8. In view of the law laid down by the Hon'ble Supreme Court in the case Vijay Dhanuka v. Najima Mamtaj (Supra) above, it is apparent that the 'inquiry' which is envisaged under Section 202 (1) of the Cr.P.C. is examination of witnesses of the complainant. The same was different from the examination under Section 200 of the Cr.P.C. Upendra Sharma vs. State CR No. 1 of 2016 6/10 which was restricted to the complainant with the option being available to the Magistrate to examine witnesses present with the complainant if any. Such inquiry is to be conducted by the Magistrate to decide whether or not there is sufficient ground for proceeding against the accused.
9. In the present case, the complainant was examined as CW1 initially when he alone was present with his Counsel on 21.01.2013. Subsequently two of his witnesses were examined as CW2 and CW3. In view of the law laid down in the case of Vijay Dhanuka v. Najima Mamtaj (Supra), the necessary inquiry as envisaged under Section 202 (1) of the Cr.P.C. has been conducted by the Ld. Trial Court. Hence there is no irregularity in the procedure adopted by the Ld. Trial Court as contended by the Ld. Counsel of the petitioner.
10. Next contention of the petitioner that the specific offence has not been mentioned in the summoning order. The complaint of the complainant has alleged that on 17.08.2011, he had approached the accused / petitioner to have his interline ticket signed but the accused / petitioner tore his form and uttered caste specific derogatory remarks to him. CW2 and CW3 have claimed that they witnessed and heard the caste derogatory specific remarks uttered by the accused. The impugned order mentions the offence for which the petitioner has been summoned as Section 3 of the SC / AT Act. It is to be seen that the offence which is alleged to have committed is falls under Section 3 (1)
(x) of the SC / ST Act. Even if the exact provision of law / offence for which the petitioner was summoned is not specifically mentioned in the impugned order, the same cannot be considered to be an irregularity for which any interference is warranted under Section 397 of the Cr.P.C.
Upendra Sharma vs. State CR No. 1 of 2016 7/10
11. The next submission made was that the offence as alleged has taken place inside the chamber of the accused / petitioner and the same would not be within in 'public view' as contemplated under Section 3 (1) (x) of the SC / ST Act. In the case of Ghasi Ram vs. NCT of Delhi, reported in 2007 (4) JCC 2648, the Hon'ble High Court of Delhi was pleased to hold that the expression 'public view' cannot be equited with 'public place'. It was held that in order to attract the offence the act should been done by the accused in any place within the public view and it is not necessary that such place should be a public place. It was held that such place can even be a place which is not a public place but is within public view. In the present case there are two witnesses examined by the complainant who have seen and heard the accused uttering caste specific remarks. Thus even if the offence has taken place within the chamber office of the accused, it is within public view as the incident has been witnessed by two persons. Hence no fault can be found in the impugned order summoning the petitioner.
12. The next submission of the petitioner was that no list of witnesses as provided under Section 204 (2) of the Cr.P.C. was called. It is to be seen that offences under SC /ST Act are exclusively triable by the Court of Sessions. Proviso to Section 202 (2) of the Cr.P.C. lays down that if it appears to the Magistrate that the offence complained of is triable by Court of Sessions, he shall call upon the complainant to produce all the witnesses and examine them on oath. The Trial Court record reveals that the complainant has been granted opportunities to examine the witnesses he sought to rely upon after which he closed his evidence on 28.08.2014. The complainant has examined himself and two other witnesses in terms of the proviso to Section 202 (2) of the Upendra Sharma vs. State CR No. 1 of 2016 8/10 Cr.P.C. The same is sufficient compliance of provisions of Section 204 (2) of the Cr.P.C. Hence, this submission has not merit and same is rejected.
13. The remaining submissions of the counsel for the petitioner are the defences of the petitioner. In the case of National Bank of Oman v. Barakara Abdul Aziz reported in (2013) 2 SCC 488, the Hon'ble Supreme Court was pleased to hold as under:-
"9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."
(emphasis supplied)
14. In view of the law laid down in the case National Bank of Oman v. Barakara Abdul Aziz (Supra), defences which an accused can have are not to be considered in the inquiry under Section 202 (1) of the Cr.P.C.
Upendra Sharma vs. State CR No. 1 of 2016 9/10
15. For the reasons recorded above, the impugned order does not suffer from any infirmity. The revision petition is thus dismissed. TCR be sent back to the Ld. Trial Court alongwith copy of this order. Revision file be consigned to record room.
Announced in the open Court (REETESH SINGH) on 25th January, 2016 ASJ-02/FTC, PHC/NDD 25.01.2016 Upendra Sharma vs. State CR No. 1 of 2016 10/10