Delhi District Court
Hasmat Ali vs Amar Singh Etc on 13 August, 2014
Hasmat Ali Vs Amar Singh etc
13.08.2014
Pre:
File perused.
IN view of the facts and circumstances of the case revision
petition does not deserve any merit to succeed at this stage, hence I
upheld the impugned order dated 08.01.2014 and dismissed the revision
petition. Accordingly, the revision petition stands disposed of. Trial
Court record, if any, be sent back with a copy of the order. Revision
petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-3
PATIALA HOUSE COURTS
NEW DELHI DISTRICT
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE-3, PATIALA HOUSE COURTS NEW DELHI DISTRICT
Criminal Revision No.44/14
IN THE MATTER OF :
Hasmat Ali
s/o Sh. Shokat Ali
r/o Khasra nos. 541 and 422
Village Mehrauli, New Delhi.
..............Revisionist
Versus
1. Amar Singh
2. Tarun
Both r/o 27, Lodhi Estate,
New Delhi.
3. Ramesh r/o not known
4. State
................Respondents
13.08.2014
ORDER:
1. By this order I shall dispose of the revision petition filed by the revisionist under section 397 / 399 Cr.P.C. against the impugned order dated 08.01.2014 passed by the ld. MM, Delhi whereby the Revisionist case No. 8/1/12 titled as 'Hasmat Ali v. Amar Singh & Ors.' was dismissed under Section 203 Cr.P.C.
2. The brief facts of the case are that upon filing of the application under Section 156 (3) Cr PC by the revisionist before trial court, an ATR report was called from the SHO, PS Tuglak Road. In response thereof, 2 Inspector Sunil Kumar, Inter State Cell, Crime Branch had filed a report stating that the allegations made by the complainant were found to be false and therefore no FIR had been registered. After considering the report filed by Inspector Sunil Kumar, the Ld. Predecessor Court had declined the prayer under Section 156(3) of Cr PC, 1973. Thereafter, the complainant/ Revisionist had challenged the said Order before the Ld. ASJ01, New Delhi. However, the Ld. ASJ01, New Delhi had upheld the Order passed by the Ld. Predecessor Court on 01.03.2012. Since then, the complainant pursued this case as a Revisionist case.
3. During the proceedings under Section 200 of Cr.P.C. 1973, the complainant / revisionist examined himself as CW1 Hasmat Ali and his father as CW2 Haji Shaukat Ali before the ld. Trial Court. During examination on oath, CW1 Hasmat Ali deposed in line with the Revisionist and reiterated that he had been abducted by the respondents no.2 and 3 i.e. Tarun and Ramesh respectively. Accused Ramesh had put a revolver to him and threatened him to keep silent. He stated that at the house of the MP Amar Singh, the respondents Tarun, Ramesh and some others had snatched his mobile bearing no. 9873056561. Accused Amar Singh had abused him and threatened to kill him, slapped him and told him to write four different statements as per his directions. He stated that he was locked in the room for 34 hours and that thereafter, he was handed over to the Crime Branch, Chanakya Puri. CW1 Hasmat Ali further deposed in his statement that on the same day, he had written 4 pages to Sh. Satish Sharma, SHO, PS Chanakya Puri and he was released by the SHO after 3 obtaining his signatures on 2 printed forms.
4. During the course of proceedings, CW2 Haji Shaukat Ali who happens to be father of Hasmat Ali stated that on 25.09.2008 his son Hasmat Ali had left home telling that he was going to the Rashtrapati Bhawan to give evidence and at about 10.00 a.m. he had seen in news that his son had been abducted. He has also stated that on returning at home his son narrated to him that he was abducted by the respondents.
5. After the proceedings under Section 200 of Cr PC, investigation was marked to the SHO, PS Tuglak Road under Section 202 of CrPC in order to verify the allegations made by the complainant. In the investigation report filed by SI Bishambr Dayal on behalf of SHO, PS Tuglak Road, it is reported that the allegations made by the complainant are unbelievable because they are not corroborated by any independent witness including the cigarette shop vendor. Also, it is reported that upon inquiry, the respondent, Tarun Kumar informed that on 24.09.2008, Hasmat Ali had himself come to 27 Lodhi Estate, in order to extort money/strike a monetary deal with the MP Amar Singh and when the police and media had been called to expose his blackmail tactics, he had changed his stand and claimed that he had been kidnapped/abducted.
6. Ld. Trial Court after having gone through all the material available on record dismissed the complaint case vide impugned order dated 08.01.2014.
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7. Feeling aggrieved with the impugned order dt. 08.01.2014, the revisionist filed the present revision petition under section 397 / 399 Cr. PC for setting aside the impugned order.
8. Arguments were heard. During the course of arguments ld. Counsel for the revisionist argued and submitted that vide order dated 08.01.2014 the complaint of the revisionist was dismissed u/s 203 Cr. PC by the ld. Trial court on account of the fact that revisionist could not examine other relevant witnesses so as to corroborate the testimonies of CW1 and CW2 respectively. He further submitted that corroboration at the stage of issuance of process is not mandatory. Ld. Counsel for the revisionist argued and submitted that revisionist has filed a complaint case against the respondents with prayer to direct the S.H.O., P.S. Tuglak Road, New Delhi to register an FIR against the respondents under sections 323/365/341/342/506/392/387/34 IPC and 25/54/59 of Arms Act or issue summons, call and punish them on the grounds in brief that he is a witness in a case FIR No.14/2009 under sections 7/8/12/13(1)(d) of the Prevention of Corruption Act, 1988 and section 120-B IPC registered at P.S. Crime Branch, in a case 'NOTE KE BADLE VOTE KAND' took place on 22.07.2008 by three members of Parliament of BJP, wherein respondents are accused persons. Ld. Counsel for the revisionist again argued and submitted that the Ld. Trial Court Judge called the action taken report from the concerned police on 5 the application filed u/s 156(3) Cr.P.C. and ultimately rejected the application. Ld. Counsel for the revisionist again argued and submitted that Ld. Judge dismissed the revisionist's case at the stage of issuing summon to accused persons saying that testimony of CW-1 complainant is unbelievable because it is not corroborated by any independent witness including the cigarette shop vendor. The impugned order dated 8.01.14 is annexed as Annexure R1 at page no. 13 to 15. The Ld. Magistrate's opinion that the testimony of CW-1 Hasmat Ali is unbelievable because it is not corroborated by any independent witness is illegal and incorrect. Whereas CW-1 revisionist has categorically stated on oath that he was kidnapped by R-2 and R-3 at the instance of R-1 on the point of revolver and he was restrained and confined at the house of respondent No.1 and his mobile phone was snatched, he was beaten and threatened to kill his life. However, if a person deposed on oath before a court then at the initial stage of the case, the allegation is prima-facie proved and it is sufficient ground to issue summon the respondents/accused persons. It is a case of kidnapping, wrongful confinement, criminal intimidation and beating and in these circumstances, it is not necessary for independent witness because the offence has been committed with an individual person, which was kept secretly and kidnapped by respondents and hence it is not possible that a public person can come forward and depose against the accused persons before the court at the instance of the revisionist. 6 However, the finding of the Ld. Magistrate is illegal. There was no question of examination of cigarette shop vendor because the offence did not took place before or in knowledge of cigarette shop vendor. The offence of kidnapping was committed while the revisionist was going to purchase the cigarette and there after he was kept in car, confined in the house of respondent no. 1 and beaten there. Thus all offences were committed except kidnapping at the house of respondent no. 1. Therefore, no public witness was ready to depose in favour of the revisionist. Ld. Counsel for the respondent again submitted that the Ld. Magistrate has failed to appreciate the action taken report filed by the concerned police wherein it is admitted that on the date of incident the revisionist was picked up by the police at the house of respondent No.1 and this fact itself indicates the truthfulness of the revisionist's case prima-facie, that on the date of occurrence the revisionist was confined at the house of respondent no.1 Amar Singh.
9. Again ld. Counsel for the revisionist argued and submitted that as per section 203 Cr.P.C. if a person has given statements on oath then his testimony is alone sufficient to proceed the matter. The opinion of Ld. Magistrate that the complainant's case is not corroborated by any independent witness including the cigarette shop vendor is illegal since the revisionist's case is not that the offence was committed in the presence of cigarette shop vendor. The revisionist has deposed that he 7 was kidnapped by respondent Nos.2 and 3 while he was going to take the cigarette at cigarette shop Khan Market Parking. Further it is alleged that thereafter the revisionist was confined at the house of respondent No.1 and he was slapped, abused, confined and threatened to kill his life, thus except the offence of kidnapping, rest offences were committed at the house of respondent No.1 and hence there was no question of deposition of any independent witness in support of the revisionist. The revisionist has categorically stated on oath that respondent No.2, who was P.A. of respondent No.1, was making call on 24.09.2008 at 10.00 p.m. and asked the revisionist to give the statement in favour of respondent No.1 Amar Singh. He has further deposed that on the same day when he reached at Prithvi Raj Road, the accused/respondent No.3 met him and forced the revisionist to depose in favour of Amar Singh, i.e., respondent No.1. The Ld. Magistrate has failed to appreciate the fact that on the date of occurrence while the revisionist was going to depose before JPC in his car bearing No.DL-5C-C-7218 and when he took a turn towards Khan Market for purchasing cigarette and parked vehicle in the parking at the same time a Toyota Corrola car stopped near him and respondent Nos. 2 and 3 came out from the said car and asked the revisionist 'HASMAT BHAI BAAT KARNI HAI' and thereafter the revisionist set in the car of respondent Nos.2 and 3, in the meanwhile respondent No.3 put the revolver on the revisionist and threatened to keep silent. The 8 respondent No.2 drove the car and taken at the house of respondent No.1/Amar Singh, M.P. Rajya Sabha at 27, Lodhi Estate, New Delhi and there they snatched his mobile bearing No.9873056561 and thereafter respondent No.1 started abusing the revisionist, he slapped him and threatened to kill the revisionist and his family. Further, respondent No.1 forced the revisionist to write some different statements and thereafter he was locked in the room for 3-4 hours, later on he was handed over to police and taken to P.S. Tuglak Road. The revisionist wrote a four pages complaint to then SHO Shri Satish Sharma, P.S. Chanakya Puri, Crime Branch on the same day and at 08.00 p.m. he was released from the police station. But police did not take any legal action against the respondents. These statements given on oath itself sufficient evidence to constitute the alleged offence and to summon the accused persons. In support of his contentions he has relied upon the following judgments:
i. 2010[3] JCC 2238 - Shivjee Singh Vs Nagendra Tiwary & Ors, wherein it has been observed that:-
"12. The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint 9 or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non- examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused."
ii. 2013[2] JCC 1083 - Krishan Kathuria Vs State & Anr., wherein it has been observed that:-
"4. The Metropolitan Magistrate under Section 202 Cr.P.C. may disagree with the report of investigation and take cognizance. This Section does not compel the Magistrate to accept the result of the enquiry or investigation. The Magistrate may apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment, he is not fettered in any way except by judicial considerations; he is not bound to accept what the enquiry officer says, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. Íf the police had taken an attitude not acceptable to the complainant, his right to examine himself and/ or his witness cannot be taken away in view of the said report of the investigating officer. Under Section 202 Cr.P.C., an enquiry is held in order to enable the Court to come of a conclusion as to whether any prima facie case has been made out as against the accused persons named in the complaint or some of them. The criteria for summoning of the accused is whether the un-rebutted evidence makes out a prima facie offence against the accused or not. The scope of enquiry is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon detailed discussion of the merits/ demerits of the case. Crl.M.C. 549/2012 Page 4 of 6 Again, there is no invariable rule that 10 independent public witnesses are to be examined to establish a case as there is no reason to disbelieve the evidence of the complainant at the stage of issuing process on a private complaint. The case is to be judged solely on the allegations made in the complaint and the evidence led by the complainant and it is not within the scope or authority of the Magistrate to make a meticulous or detailed examination of the evidence."
On the strength of the above citations, he submitted that order dated 08.01.2014 of ld. MM be set aside.
10.Contrary to it ld. Counsel for the respondent has also argued the matter at length. Written submissions have also been filed. It is submitted by the ld. Counsel for the respondent that present revision has been filed by the revisionist Hasmat Ali against the final order passed by the Ld. MM Court Patiala House, after considering detailed enquiry and weighing of the evidence led by the revisionist herein that there is no prima facie case made out by the revisionist herein for the issuance of the summon under section 204 of the Cr.PC against the respondent herein and same was dismissed under Section 203 of Cr.P.C. It is also submitted that the revisionist who tried to blackmail the respondent to extort money from respondent No.1, who was arrayed as accused in the FIR No. 14/2009 P.S. Crime Branch and the revisionist was allegedly one of the witness in same . It is submitted that revisionist had filed a complaint with sole motive to extort money and tarnish the image of the respondents and the complaint by the revisionist was bundle of lies and there was nothing against the 11 respondents. It is stated the Ld. MM Court has followed well settled legal position prescribed under the Cr.PC by calling report under section 202 of the Cr.P.C. It is again submitted that report was called by the Ld. MM twice from the PS. Tuglak Road and Crime Branch of Delhi Police. It is also submitted that Chapter XVI of the Code has Sections 204 to 210. Section 204 deals with the issuance of process by the Magistrate. The process is issued by the Magistrate if in his opinion there is sufficient ground for proceeding.
11.Ld. counsel for the respondent again argued and submitted that Supreme Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker and another held that the inquiry under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint, i.e., for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned. In the present case the Ld. MM has after ascertaining the truth and evaluation of the evidence found that there is no prima facie case made out by the revisionist against the respondent herein and discard the veracity of the complainant.
12.Ld. counsel for the respondent again argued and submitted that Hon'ble Supreme Court held in Adalat Prasad Vs. Roop Lal Jindal 12 Case, that an occasion to consider Sections 200, 202 and 204 of the Code. The scheme of the above provisions was explained in the following manner:
"12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code.13. Section 202 contemplates "postponement of issue of process".
13. Ld. counsel for the respondent again argued and submitted that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code, But after taking cognizance of the complaint 13 and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code.
14.Ld. counsel for the respondent again submitted that it is held in Mathew case [(1992) 1 SCC 217] that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the 14 material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. Ld. Counsel again submitted that there is nothing wrong commited by the LD. MM Court while dismissing the complaint under Section 203 after considering the evidence lead by the complainant.
15.In the case of Shivajee Singh vs Nagendra Tiwary on which the revisionist heavily relied the Hon'ble Supreme Court of India had made it clear that "Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Sessions then in terms of proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath. Section 203 empowers the Magistrate to dismiss the complaint if, after considering the statements made by the complainant and the witnesses on oath and the result of the inquiry or investigation, if any, made under Section 202(1), he is satisfied that there is no sufficient ground for proceeding. The exercise of this power is hedged with the condition that the Magistrate should record brief reasons for dismissing the complaint. Section 204, which talks of issue of process lays down that if the Magistrate taking cognizance of an offence is of the view that there is sufficient ground for proceeding then 15 he may issue summons for attendance of the accused in a summons- case. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI of Cr.P.C. finds adequate 16 support from the judgments of this Court in R.C. Ruia v. State of Bombay, 1958 SCR 618, Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639, Nirmaljit Singh Hoon v. State of West Bengal (1973) 3 SCC 753, Kewal Krishan v. Suraj Bhan (1980) Supp SCC 499, Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC. The aforesaid view was reiterated in Mohinder Singh v. Gulwant Singh (supra) in the following words:
"The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry."
16.Ld. counsel for the respondent again submitted that there was no prima facie case made out against the respondent. The revisionist has failed to point out any infirmity or illegality in the order dated 8.1.2014 17 passed by Ld.MM Court. On these grounds ld. Counsel for the respondent submitted that in the light of the aforesaid stated facts and circumstance the present revision is liable to be dismissed with exemplary cost.
17.Before reaching at any conclusion let the relevant sections be re- produced verbatim which are as under:-
":Section 200 Cr. PC Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any,and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint ; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 :
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Section 201 Cr. PC Procedure by Magistrate not competent to take cognizance of the case.
201. Procedure by Magistrate not competent to take cognizance of the case.If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing, CHAP COMMENCEMENT OF PROCEEDINGS BEFORE 18 MAGISTRATES CHAPTER XVI COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES."
18.The interesting aspect of this case is that revisionist / complainant stated in his complaint that on 25.09.2008 at about 7.30 a.m. he was going to Parliament in respect of case FIR No.14/2009 under sections 7/8/12/13(1)(d) of the Prevention of Corruption Act, 1988 and section 120-B IPC registered at P.S. Crime Branch. He has also alleged that he was forced to give the statement in favour of respondent No.1 Amar Singh. It is also alleged by the revisionist that on the date of occurrence while he was going to depose before JPC in his car bearing No.DL-5C-C-7218 and took a turn towards Khan Market for purchasing cigarette and parked vehicle in the parking at the same time a Toyota Corrola car stopped near him and respondent Nos.2 and 3 came out from the said car and asked the revisionist 'HASMAT BHAI BAAT KARNI HAI' and thereafter the revisionist sat in the car of respondent Nos.2 (Tarun) and 3(Ramesh), in the meanwhile respondent No.3 put the revolver on the revisionist and threatened to keep silent. The respondent No.2 drove the car and was taken at the house of respondent No.1/Amar Singh, M.P. Rajya Sabha at 27, Lodhi Estate, New Delhi and there they snatched his mobile bearing No. 9873056561 and thereafter respondent No.1 started abusing the revisionist, he slapped him and threatened to kill the revisionist and his family.
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19.The another interesting aspect of this case is that a complaint case was filed along with application u/s 156 (3) Cr. PC before ld. Trial Court. Ld. Trial Court called an ATR from the SHO PS Tuglak Road. In response thereof, Insp. Sunil Kumar, Inter State Cell, Crime Branch had also filed a status report dated 21.11.2011 stating that the allegations made by the revisionist / complainant were found to be false. Hence, ld. Trial court dismissed the application filed /s 156 (3) Cr. PC on 12.12.2011, against which revisionist went before the then ld. ASJ-01, New Delhi. The then ld. ASJ-01, New Delhi upheld the order dated 12.12.2011 of ld. Trial court vide the then ld. ASJ order dated 01.03.2012. Thereafter, revisionist/ complainant pursued his case as a complaint case and revisionist/ complainant examined two witnesses i.e. CW1 Hasmat Ali (revisionist himself) and CW2 Haji Shaukat Ali (father of revisionist) before ld. Trial court.
20.Having perused the depositions of these witnesses ld. Trial Court also dismissed the complaint case of the revisionist, vide impugned order dated 08.01.2014 observing that after filing of the reports of Inspector Sunil Kumar, Inter State Cell, Crime Branch and SI Bishamber Dayal, PS Tuglak Road, the complainant had the opportunity to rebut them by bringing or summoning any independent witness through this Court to prove the veracity of his version. The testimonies of the witnesses i.e. CW1 Hasmat Ali is unbelievable 20 because it is not corroborated by any independent witnesses, vide impugned order dated 08.01.2014.
21.Against this impugned order dated 08.01.2014 revisionist has come before this court on the grounds that depositions of CW1 Hasmat Ali and CW2 Haji Shaukat Ali made on oath before ld. Trial court itself sufficient evidence to constitute the alleged offences and to summon the accused persons/ respondents. Therefore, ld. MM / trial court has committed serious error in its order dated 08.01.2014 holding that no ground exists to summon the respondents/ accused persons for the alleged offences. In support of his contentions ld. Counsel for the revisionist has relied upon the citations : 2010[3] JCC 2238 - Shivjee Singh Vs Nagendra Tiwary & Ors; and 2013[2] JCC 1083 - Krishan Kathuria Vs State & Anr. discussed (supra).
22.Contrary to it, Ld. counsel for the respondents no.1 (Amar Singh) and 2(Tarun) submitted at length as discussed above that there was no prima facie case made out against the respondent. The revisionist has failed to point out any infirmity or illegality in the order dated 8.1.2014 by Ld.MM Court. Respondent no.3 (Ramesh ) could not be served as neither his address was filed by the revisionist nor his complete particulars were supplied by revisionist on PF / RC. 21
23.Perusal of the citations reveals that the first and foremost duty imposed upon the court is that court of ld. MM has to see whether a prima facie case is made out for committal of offence or not. In this regard the ld. MM on the testimonies of CW1 Hasmat Ali and CW2 Haji Shaukat Ali observed in impugned order dated 08.01.2014 that:-
"I have considered the testimonies of CW1 Hasmat Ali and CW2 Haji Shaukat Ali, in light of the reports given by Inspector Sunil Kumar, Inter State Cell, Crime Branch and SI Bishamber Dayal, PS Tuglak Road. In my view, the testimony of CW2 Haji Shaukat Ali is hearsay and cannot be relied upon to summon the respondents. Further, in my view the testimony of the complainant, CW1 Hasmat Ali is unbelievable because it is not corroborated by any independent witness. After filing of the reports of Inspector Sunil Kumar, Inter State Cell, Crime Branch and SI Bishamber Dayal, PS Tuglak Road, the complainant had the opportunity to rebut them by bringing or summoning any independent witness through this Court to prove the veracity of his version. The complainant has not taken any such step. Therefore, his sole testimony is being discredited. In view of the aforesaid, the Revision is dismissed under Section 203 of Cr PC. File be consigned to the Record Room."
24.Careful analysis on this aspect was made in judgment 'Tata Motors Ltd. vs State CRL.REV.P. 16/2008 & CRL.M.A. No. 4301/2008 decided on 12 February, 2009, wherein it has been observed that:-
"20. The legal position that emerges from the above decisions of the Supreme Court and this Court is as under:
(1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There is a further distinction to be drawn between the cases at the post-cognizance but pre-
summoning stage and those at the post-summoning stage. (2) It is only at the post-summoning stage that the respondents in a criminal complaint would answer the description of an `accused.' Till then they are like any other member of the public. Therefore at the pre-summoning stage the question of their right to be heard in 22 a revision petition by the complainant in their CRL.REV.(P) No. 16/2008 Page 10 of 16 capacity as "accused" in terms of Section 401 (2) CrPC does not arise.
(3) At the post-cognizance but pre-summoning stage, a person against whom the complaint is filed might have a right to be heard under the rubric of `other person' under Section 401(2) CrPC. If the learned MM has not taken the cognizance of the offence then no right whatsoever accrues to such "other person' to be heard in a revision petition.
(4) Further, it is not that in every revision petition filed by the complainant under Section 401(2) CrPC, a right of hearing has to given to such "other person" or the accused against whom the criminal complaint has been filed. The right accrues only if the order to be passed in the revision petition is prejudicial to such person or the accused. A order giving a specific direction to the learned MM to either proceed with the case either at the post- cognizance or post-summoning stage or a direction to register an FIR with a direction to the learned MM to proceed thereafter might be orders prejudicial to the respondents in a criminal complaint which would therefore require them to be heard prior to the passing of such order."
25.If the first stage for taking cognizance against the offence is complete then the court of ld. MM proceeds on the basis of material available on record by whom the offence has been committed and qua whom it was committed. In the present case, the ld. MM did not find any prima facie case for the committal of the offences as observed above, therefore complaint was dismissed by ld. Trial court.
26.Taking note of the aforesaid discussed aspects I am of the view that it is a well settled proposition of law that determination of facts is the sole discretion of ld. MM. However, this court has limited jurisdiction to enter into his discretion on the ground of propriety and correctness. In the present case not only the matter has been filtered by the then ld. 23 ASJ vide order dated 01.03.2012 against the impugned order dt. 12.12.2011 passed on the application filed u/s 156 (3) Cr. PC and subsequently after recording complainant's evidence similar position was also found by the ld. MM vide impugned order dated 08.01.2014 that no prima facie case is made out to proceed further into the matter as a result of which the complaint was dismissed.
27.Undoubtedly, domain of revision is the wider domain and this court has concurrent powers and it attributes the principle of judicial review partially therefore , this court would take a little bit freedom to discuss the issue in question. The deposition of CW1 reveals a prima facie case for the offences 365/ 342/ 341/ 506/ 387/ 392/ 34 IPC and 25/54/59 Arms Act but this deposition was found lacked in absence of corroboration. This controversy goes to the root of this case since during the course of detailed preliminary inquiry by the police officials it was revealed that neither cigarette shop vendor has seen the revisionist nor he has any connection with him which does not substantiate the allegations of the revisionist against the respondents. So, the non-examination of cigarette shop vendor and no such other material has come on record to rebut the ATR report filed by the Crime Branch, is fatal and leads to uphold the view of ld. MM in the impugned order dated 08.01.2014.
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28.The main argument of ld. Counsel for the revisionist is that there is no need of corroboration at the time of issaunce of process against the proposed accused. In this regard in the present case a thorough inquiry has been conducted not only by the police officials but also by the ld. Trial Court during the proceedings of complaint u/s 200 Cr. PC. The scope of enquiry under Section 202 is extremely restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution / complainant whether prima facie case has been made out so as to put the proposed accused on a regular trial 25 and that no detailed enquiry is called for during the course of such enquiry.
29.In the present case, Ld. Trial Court called an ATR from the SHO PS Tuglak Road. In response thereof, Insp. Sunil Kumar, Inter State Cell, Crime Branch had also filed a status report dated 21.11.2011 stating that the allegations made by the revisionist / complainant were found to be false. Hence, ld. Trial court dismissed the application filed /s 156 (3) Cr. PC on 12.12.2011, against which revisionist went before the then ld. ASJ-01, New Delhi. The then ld. ASJ-01, New Delhi upheld the order dated 12.12.2011 of ld. /Trial court vide the then ld. ASJ order dated 01.03.2012.
30.Under these facts and circumstances of the case, the citations: 2010[3] JCC 2238 - Shivjee Singh Vs Nagendra Tiwary & Ors; and 2013[2] JCC 1083 - Krishan Kathuria Vs State & Anr. discussed (supra) relied upon by the ld. Counsel for the revisionist are not applicable in the present case since facts in the citations with are entirely distinct with this case. Therefore, I do not find any substance in the contentions raised by the ld. Counsel for the revisionist that no corroboration is required to take the cognizance by the ld. MM., precisely for the reasons that when the court is satisfied that the declaration suffers from some infirmity it may reject the evidence or 26 may insist on corroboration unless one is certain about the exact words of the victim as observed in 'Ram Nath Madho Pd. v. State of M.P., AIR 1953 SC 420'. Thus, in light of the above discussed facts and circumstances of the case, I am of the view that versions of CW1 Hasmat Ali and CW2 Haji Shaukat Ali (father of revisionist) does not appear sound enough to set aside the impugned order dated 08.01.2014 and comes under the shadow of doubt again precisely for the reasons that there is no other corroborative evidence on record to prove their allegations as it has come on record in the status report dt. 21.11.2011, which was called from Crime Branch, Chanakaya Puri and filed by Inspector Sunil Kumar, that on the complaint which had been made by the revisionist, a detailed inquiry was conducted by the Crime Branch and two Constables of 12th Batallion, RAC, who were deployed at Khan Market and also from the Security Guard, had denied of any incident of taking away forcibly the revisionist having been noticed by them. Furthermore, the revisionist who was a witness in case FIR No. 14/09 had already sought security from the police being the prosecution witness in the criminal case and the said request has already been allowed by Member Secretary, Delhi Legal Aid Services, Patiala House Court Complex and the revisionist has already been provided with the security. It has come on record that the detailed report was recorded vide DD No. 10, dated 25.09.2008 and the complaint was not found to be substantiated. I do not find any merit in 27 the revision petition of the revisionist.
31.In this backdrop the corroboration of the depositions of revisionist who have been examined as CW1 and his father CW2 in this case was indispensable as it has come on record during the course of disposal of the proceedings of this case that on the basis of ATR report / status report dt.21.11.2011 the allegations of revisionist were found false. It was also reported upon inquiry, the respondent Tarun Kumar informed that on 24.09.2008, Hasmat Ali had himself come to 27 Lodhi Estate, in order to extort money / strike a monetary deal with the MP Amar Singh and when the police and media had been called to expose his blackmail activities, he had changed his stand and claimed that he had been kidnapped/abducted. So the non-corroboration impact the truthfulness of complainant version. Hence, I do not find any force in the contentions of ld. Counsel for the revisionist for the issuance of process against the respondents.
32.It may be kept in mind that respondent no.3 Ramesh could not be served on account of non filing of complete address and PF/RC. Under these facts and circumstances revision petition does not deserve any merit to succeed at this stage, hence I upheld the impugned order dated 08.01.2014 and dismissed the revision petition. Accordingly, the revision petition stands disposed of. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 13.08.2014 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-3 PATIALA HOUSE COURTS NEW DELHI DISTRICT 28