Delhi District Court
Ca No.424/19 Date Of Institution : ... vs I. State (Govt. Of N.C.T. Of Delhi) on 6 March, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05, SOUTH
DISTRICT, SAKET COURTS : DELHI
1. CA No.424/19 DATE OF INSTITUTION : 03.12.2019
CNR No. DLST01-008087-2019
NIGAM CHAUDHARY
S/O LATE SH. SATTAN SINGH CHAUDHARY
R/O : F-109, SCHOOL ROAD, KHAN PUR,
NEW DELHI. .....APPELLANT
VERSUS
i. STATE (GOVT. OF N.C.T. OF DELHI)
THROUGH PUBLIC PROSECUTOR
ii. NARAYAN KUMAR S/O SH. BHAGWAN DAS
iii. SMT. SAPNA W/O NARAYAN KUMAR
BOTH R/O 7/143, DDA FLATS, MADANGIR, N. DELHI
ALSO AT
6/108, DDA FLATS, MADANGIR, N. DELHI
....RESPONDENTS
&
2. CR. REV. No.425/19 DATE OF INSTITUTION : 03.12.2019
CNR No. DLST01-008088-2019
NIGAM CHAUDHARY
S/O LATE SH. SATTAN SINGH CHAUDHARY
R/O : F-109, SCHOOL ROAD, KHAN PUR,
NEW DELHI. .....APPELLANT
VERSUS
i. STATE (GOVT. OF N.C.T. OF DELHI)
THROUGH PUBLIC PROSECUTOR
ii. NARAYAN KUMAR S/O SH. BHAGWAN DAS
iii. SMT. SAPNA W/O NARAYAN KUMAR
BOTH R/O 7/143, DDA FLATS, MADANGIR, N. DELHI
ALSO AT
6/108, DDA FLATS, MADANGIR, N. DELHI
....RESPONDENTS
Digitally
signed by ARGUMENTS HEARD ON : 20.02.2023
RAKESH
RAKESH KUMAR DATE OF JUDGMENT : 06.03.2023
KUMAR SINGH
SINGH Date:
2023.03.06
17:25:48
+0530
CA Nos.424/19 & 425/19 Page 1 of 7
JUDGMENT
1. Some persons allegedly trespassed a property multiple times and consequently, they faced two FIRs which resulted into two separate cases on filing of chargesheets upon conclusion of investigation in those two FIRs. Though a Ld. Magistrate took cognizance in both the cases, when the time came for putting the matter on trial, he chosen to discharge the culprits. We have to take a decision as to whether the Ld. Magistrate was legally and factually justified in his opinion or not.
Legal misinterpretation in the impugned order:
2. Offences invoked in both the FIRs resulted into summons triable case and therefore, Section-251 CrPC was applicable. Rather, the Ld. Magistrate himself has noted this fact in one of the paragraphs of his order dated 04.06.2016, which reads as under:
"The procedure of trial which has to be adopted for the offence under consideration, is of summons cases. In a number of judgments passed by the superior courts, it has been held that under the provisions of Section-251 CrPC, the Court has got inherent power to discharge/relieve accused where sufficient ground is not available to proceed further against him".
3. Earlier, there was some confusion in the legal circle regarding power of discharge in a summons triable case. However, later on, the issue was settled and now, it is the law that there will be no question of discharge in a summons case. A three judges bench of Hon'ble Supreme Court in Subramanium Sethuraman vs State of Maharashtra (2004) 13 SCC 324 has observed "The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Digitally signed by RAKESH RAKESH Section 239 which provides for a discharge in a warrant case". Another KUMAR KUMAR SINGH three judges bench of Hon'ble Supreme Court in Vishal Tiwari vs State of Date:
SINGH 2023.03.06
17:26:06
+0530
CA Nos.424/19 & 425/19 Page 2 of 7
Rajasthan has observed "It is obvious that the High Court lost sight of the fact that the stage of framing of charge will not arrive in a summons case, which the present case undisputedly is". It is of some significance to note that in a case titled In re Expeditious Trial of Cases , a constitution bench of Hon'ble Supreme Court has held that the judgment in Subramanium Sethuraman has interpreted the law correctly. In such circumstances, there cannot remain any doubt that no discharge is possible in a summons triable case.
4. The Ld. Magistrate having discharged the accused persons in summons triable case, has committed a clear illegality and therefore, such order can be set aside on this sole ground.
Factual misinterpretation in the impugned order:
5. On factual score, the Ld. Trial Court has noted the brief facts in both the cases as under:
"In brief, the allegations levelled against the accused persons, are that on 09.06.2013 at about 8:20 pm when the complainant has gone to see the property no.6/108, DDA Flats, Mandangir (hereinafter referred to as 'the property in question'), he found that there the accused Narayan Kumar and his wife Sapna, co-accused, have been carrying out illegal construction with the help of 3-4 unknown labourers. That even prior to this incident on 31.05.2013, the accused Narayan Kumar had tried to take possession of the said property forcefully after breaking open the lock and in that regard an FIR No.228/13 U/s 447/448/427/34 IPC was got lodged against him and his wife Sapna. That a Kalandra u/s 145 Cr.P.C. was also prepared and the same was pending Digitally signed by RAKESH before the SDM, Hauz Khas".
RAKESH KUMAR KUMAR SINGH SINGH Date:
2023.03.06 17:26:22 +0530 CA Nos.424/19 & 425/19 Page 3 of 7 "In brief, the allegations levelled against the accused persons, are that at the relevant time the accused Narayan Kumar along with his wife Sapna, the co-accused, was causing damage to the property situated at the given address. That the caller Nigam Cahudhary has told that about 1 year ago with regard to the same property a Kalandra u/s 145 CrPC, was filed against him and the accused Narayan Kumar, before the SDM Court, which was still pending. That the accused Narayan Kumar has confirmed this fact and has also sated that the matter related to the same property was also pending before the Civil Court".
5.1. Brief facts noted by the trial court in both the cases clearly show that there were clear allegations made by the complainant and therefore, without giving an opportunity to establish his case, the Ld. Trial Court could not have abandoned the proceedings in between. Whether the complainant can be able to establish his case after evidence is entirely a different matter.
5.2. The Ld. Trial Court appears to have swayed away by the fact that a Kalandra U/s 145 CrPC was pending in respect of the same property. In my opinion that could not have been a factor for discharge of accused persons.
Neither the proceeding before the concerned SDM was binding on the Ld. Trial Court nor he could have utilized those proceedings by treating the same as gospel truth.
5.3. The other reason which weighed with the Ld. Trial Court is that the complainant had provided an address different from the disputed property which was a doubtful circumstance. This appears to be an inference by the Ld. Trial Court and the inference is clearly wrong. There is no law that requires an entitled person to always remain or reside in his property. Who was in the possession of property, either actually (by single possession) or Digitally signed by constructively (possession by title), can be decided only after conclusion of RAKESH RAKESH KUMAR evidence and not before that.
KUMAR SINGH SINGH Date:
2023.03.06 17:26:37 +0530 CA Nos.424/19 & 425/19 Page 4 of 7 5.4. In view of the aforesaid, it seems that the Ld. Trial Court was not correct while appreciating the factual aspect of the case and therefore, his order cannot be sustained for this reason also.
Technical aspect of the present appeals:
6. Some technical issues of the present appeal are required to be noted. Initially, the complainant had filed revision petition against the impugned order but later on he withdrew the same upon realizing that a revision was not maintainable. The concerned Ld. ASJ had given liberty to the complainant to file a fresh legal action. Consequently, the complainant filed the present appeal under Section-378 CrPC.
6.1. A bare look at the provision of Section-378 CrPC shows that it applies only to a case of acquittal. It has no concern with the appeal. Further, it nowhere empowers a complainant to file an appeal before the Sessions Court. A complainant under this provision has no right to file appeal in cases instituted on police report.
6.2. It is only the proviso appended to Section-372 CrPC that envisages a power in the complainant to file an appeal challenging acquittal even in police cases. However, even this provision does not apply to an order of discharge.
6.3. It is then well settled law that when there is no scope of appeal, a final order can be challenged by way of revision. It is the argument of the Ld. Counsel representing the respondents that a revision can always be converted into an appeal but vice versa is not true. No law has been cited by him on this count. A bare glance at Section-397 CrPC shows that it does not contemplate filing of any petition. It simply casts a duty on a superior court to correct the mistakes in an order passed or proceeding conducted by a court of lesser jurisdiction. How and when, the superior court will perform its duty is not provided in the provision. This, of course, can be done suo moto or when its attention is invited towards any irregularity by filing a Digitally signed by RAKESH petition. Hon'ble Delhi High Court in Sarvesh Mathur vs State (2022) 292 RAKESH KUMAR KUMAR SINGH DLT 518 has made following observations:
SINGH Date:
2023.03.06 17:26:50 +0530 CA Nos.424/19 & 425/19 Page 5 of 7 "The first contention of the petitioner is that the learned Sessions Court had exceeded its jurisdiction by quashing the summoning order against the respondents No. 2, 3 and 4, though they had not moved against the order of summoning. This submission cannot be accepted. Section 397 Cr.P.C. provides for powers of a Sessions Judge to call for and examine the record of any inferior criminal court situated within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding or evidence or order, recorded, as also to the regularity of any proceeding of such inferior court. Section 399 Cr.P.C. spells out the powers of revision of the Sessions Judge where the records have been called for by itself, whereby such powers would be co-extensive with that of the High Court.
To therefore say that the Sessions Judge could have looked into the correctness of the summoning order qua the respondents No. 3 and 4, only if they had approached it, would be an incorrect reading of the law. The Sessions Court would be well within its powers to satisfy itself about the legality and irregularity or the proceedings or orders made by the learned Trial Court to determine whether it was grossly erroneous or the finding was recorded based on no evidence or material evidence was ignored or judicial discretion was exercised arbitrarily or perversely".
6.4. If a Court can grant relief to a person who has not approached it with the revision, I am unable to find any reason as to why a petition already filed cannot be treated as a revision petition. In such view of the matter, I do Digitally signed by not find any inhibition to treat the present petition of appeal as a revision RAKESH RAKESH KUMAR petition.
KUMAR SINGH SINGH Date:
2023.03.06 17:27:04 +0530 CA Nos.424/19 & 425/19 Page 6 of 7 Condonation of delay in filing of appeals:
7. However, there has been some delay on the part of the complainant in filing of the present appeal. Perusal of record shows that the initial delay was condoned by the Ld. ASJ while dealing with the earlier revision petition which was withdrawn with liberty to file fresh petition. The present appeal was filed with another delay condonation application. No doubt, there has been some delay, but an order which lacks the inherent jurisdiction, cannot be allowed to hold the field on account of delay. Such an order has to be treated as void ab initio and therefore, the same cannot confer any right on the accused not to be prosecuted for the charged offences. In such circumstances, I am of the view that the delay in filing the present petition must be condoned. Ordered accordingly.
8. The appeal, filed against the order dated 04.06.2016, is treated as a revision challenging the said order and is admitted.
9. The order dated 04.06.2016 passed by the Ld. Magistrate since suffers from legal and factual incorrectness, deserves to be set aside and I accordingly hold so.
10. The FIR cases are restored before the Ld. Trial Court. The Ld. Magistrate shall proceed with the case from the stage where it was left.
11. Parties shall appear before the Ld. Trial Court on 16.03.2023.
12. A copy of this judgment alongwith TCR be sent to the Ld. Trial Court.
13. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 6th DAY OF MARCH, 2023 Digitally signed by RAKESH RAKESH KUMAR KUMAR SINGH Date: 2023.03.06 SINGH 17:27:23 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA Nos.424/19 & 425/19 Page 7 of 7