Delhi District Court
Sh. Amrik Singh vs Sh. Bhagwan Singh (Since Deceased) on 28 March, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Criminal Revision No.208/13
Sh. Amrik Singh,
S/o Late S. Naurang Singh,
R/o 52/16, Ramjas Road,
Karol Bagh, New Delhi - 5. ......Petitioner
Versus
1. Sh. Bhagwan Singh (since deceased),
S/o late Roor Singh
2. Smt. Rajpal Kaur,
S/o Late Sh. Bhagwan Singh
3. Sh. Gurpreet Singh (since deceased)
S/o Late Bhagwan Singh
4. Sh. Harpreet Singh,
S/o Late Bhagwan Singh
All R/o H.No.2382 - 2383,
Gali No.12, Beadon Pura,
Karol Bagh, New Delhi - 5. .......Respondents
Date of institution : 26.10.2013
Date of Judgment : 28.03.2014
J U D G M E N T
On 25.10.2013, petitioner herein filed revision petition no.208/13 1 challenging order dt.20.03.2013 passed by learned Metropolitan Magistrate whereby his criminal complaint instituted on 18.12.99 has been dismissed and both the respondents no.2 & 4 discharged.
2. It may be mentioned here that respondents no.1 & 3 left this world during pendency of the complaint before the Trial Court.
3. While dismissing the complaint, Learned Metropolitan Magistrate has observed that evidence led by the complainant - petitioner herein, if unrebutted would not lead to conviction of the accused persons for the offences alleged by him. In this regard, reference has been made to provisions of Sec.245(1) Cr.P.C. and decision in Surinder Kumar @ Palu Singh V. Jagdish Lal, 1983(2) RCR (Crl.) 137.
Revision petition lies within a period of 90 days from the date of impugned order. Herein, it came to be filed on 25.10.2013. Therefore, petitioner has filed an application seeking condonation of delay of "180 days"
in filing of the revision petition.
In the application, the applicant has alleged that delay was not intentional but beyond his control as he has been suffering from various diseases / ailments and remained under treatment of various doctors, from time to time.
3. The application has been opposed by filing reply on behalf of respondents no.2 & 4.
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4. In support of his application, petitioner - applicant has examined himself as CW1. No evidence has been led by the respondents on this application.
5. In the course of arguments, petitioner - applicant, who is himself an Advocate, has submitted that the delay in filing of the revision petition after 180 days of the passing of the impugned order be condoned as he has been suffering from various diseases right from the year 1997.
6. On the other hand, learned counsel for respondents submitted that petitioner - applicant has not proved any medical record to suggest that he was advised complete bed rest by any of the doctors during the period from 20.03.2013 to August,2013. Further, it has been submitted that no medical record has been got duly proved by the petitioner - applicant by summoning any doctor. Reference has been made to the admission of the petitioner - applicant that he has been appearing in his matters pending before different courts during the period from 20.03.2013 to August,2013 on the given dates of hearing. Therefore, the contention is that petitioner - applicant has failed to prove that he had any sufficient cause for condonation of delay in filing of present revision petition.
7. While appearing in court as CW1, petitioner - applicant has deposed that since 1987, he has been suffering from prostrate problem and in the year 1996 he was operated for hernia. He has been getting medical treatment at RML Hospital. In the year 2006, he suffered from anemia, but still he is under 3 medical treatment. His eyes were operated upon in the year 2010, but still his medical treatment is continuing. As stated by applicant he has to take about 12 tablets in a day.
To prove the medical record, it was for the petitioner - applicant to examine doctors from the concerned hospital, but he has not examined any doctor. He admitted in his cross examination that the doctors did not advice him complete bed rest in writing and that this advise was oral one. The impugned order came to be passed on 20.03.2013. On that day, the complainant was very much present in court. Admittedly, he applied for certified copy of impugned order on 21.08.2013 i.e. about 5 months after passing of the order.
8. As to why he did not apply for certified copy prior to 21.08.2013, petitioner - applicant has stated in his cross examination that he might have suffered from attack of spondylitis and also because he was unable to stand up and move. He was not sure about it. So, in this regard the petitioner - applicant was required to prove medical record. He has not got proved any such medical record by examining any doctor. The only medical record for the period from 20.03.2013 to 21.08.2013 is photocopy of one OPD registration card dt.27.04.2013. In absence of any other medical record for the period, it cannot be said that the applicant suffered from any attack of spondylitis or was unable to stand up or move during this period, so as to show that he was not in 4 a position even to apply for certified copy of impugned order prior to 21.08.2013. The petitioner - applicant has candidly admitted in his cross examination the factum of his attendance before this court, during the said period 20.03.2013 to August,2013 on the given dates of hearing. However, he added that he so appeared as and when he was fit to move. It was for the petitioner - applicant to prove by leading cogent and convincing evidence, as to on which date he was unfit to move and appear. While he was appearing in different matters in different courts during the said period.
In his cross examination, petitioner - applicant further admitted to have attended present court in another Crl. Rev. Petition no.130/12 titled as "Amrik Singh V. Bhagwan Singh" on 23.03.2013, 07.06.2013, 16.07.2013 and 17.08.2013. When he appeared before this very court on the aforesaid four dates, he could apply for certified copy of the impugned order soon after passing of the impugned order or prior to 31.08.2013, but the fact remains that he applied for certified copy of impugned order five months' after passing thereof i.e. when even statutory period of 90 days for filing of the revision petition had elapsed.
9. It is true that petitioner - applicant is a senior citizen, but in view of the above discussion, this court finds that when he has not been able to prove any sufficient cause for condonation of long delay in filing the revision petition, the application U/s 5 of Limitation Act deserves to be dismissed. I order 5 accordingly.
10. Although application has been dismissed, this court has got powers U/s 397 Cr.P.C. to see illegality and irregularity in any order passed by the Trial Court. Having regard to these powers and having heard on merits as well, the Court proceeds to see if there is any illegality or irregularity in the impugned order.
11. As per allegations levelled by the complainant - petitioner in his complaint, occurrence took place on two days i.e. on 09.03.98 at 6.00 p.m. and thereafter on 10.03.98 at 5.00 p.m., at the time he visited his property no.2382
- 83, Street No.12, Bedanpura, Karol Bagh. Respondent no.1 Bhagwan Singh (since deceased) was a tenant in respect of the portion of the aforesaid property. Respondent no.2 is widow of respondent no.1. Respondent no.4 is son of respondents no.1 & 2. As already noticed above, respondent no.3 (another son) has already left this world.
12. As regards the occurrence dt.09.03.98, at about 6.00 p.m., the complainant alleged to have visited the aforesaid property and found that nut bolts, latches and lock of the door, opening in the street no.12 had been tampered with. He further noticed that all the respondents were carrying on unauthorised and illegal construction. They did not allow him to enter the ground floor portion. When he enquired about tampering, respondent no.2 started hurling abuses. Other respondents joined her and threatened to kill 6 him and his family. Respondent n o.1 chased him with an unsheathed kirpan and he had to save his life by escaping. He reported the matter to PCR and also to SHO PS Karol Bagh.
13. As regards the occurrence which took place on 10.03.98 at 5.00 p.m., case of the complainant - petitioner is that when he visited the aforesaid property to set the locking arrangement, respondent no.2 followed by other respondents hurled abuses at him. Then they attacked him with fist blows and slaps loads and threw him on the road. While respondent no.3 robbed him of his purse, other respondents helped him. His purse contained Rs.1200/ and other items. He was dragged on to the road. He reported the matter to police. But no action was taken.
In the subsequent paragraphs, he has mentioned the steps taken by him by way of complaints to senior police officers. According to the complainant, earlier he filed Writ Petition no.919/99 for directions to the police for registration of FIR but the said petition was withdrawn. Ultimately, he filed his complaint on 18.12.99.
In order to prove his case, complainant examined himself as CW1; CW2 HC Ramesh Singh from PS Malviya Nagar; CW3 Gursharan Singh, eye witness to occurrence dt.10.03.98; CW4 ASI Ashwani Kumar from PS Karol Bagh; CW5 Dr. M.S. Chopra, Chief Medical Officer; CW6 HC Jai Parkash; and CW8 B.S. Bhatti, Record Clerk, LNJP Hospital.
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14. As regards delay in filing of complaint, the criminal complaint came to be filed on1 8.12.99 i.e. about one year and nine months after the occurrence. As noticed above, prior to filing of criminal complaint, petitioner filed a writ petition before the High Court but the same was ultimately got dismissed as having been withdrawn. Copy of the writ petition is Ex.PW1/DB. Its perusal reveals that it was filed somewhere on 28.10.98 seeking directions to the police for investigation. Vide order dt.08.10.99, this petition was dismissed as having been withdrawn. Criminal complaint came to be filed on 18.12.99.
It is for the complainant to explain delay in filing of the complaint, while leading evidence before the Trial Court. Since question of limitation is a point of fact and law, he may explain the same by leading evidence even on merits, after framing of the charge/notice and as such this point could be deferred for consideration subsequently.
Occurrence dt.09.03.98
15. As noticed above, first occurrence took place on 09.03.98 in front of the aforesaid house at about 6.00 p.m. As alleged by the complainant, at that time he found nuts & bolts, latches and locking arrangement of the door of his own (which owns in street no.12) tampering with. Further that respondents no.1 to
4 were carrying on unauthorised construction. These respondents did not allow him to enter in respect of ground floor. When he enquired about tampering with the aforesaid locking system, respondent no.2 hurled abuses 8 and other respondents joined her and then he and his family were threatened with death. Respondent no.1 even chases the complainant with unsheathed sword.
According to the complainant, he submitted the complaint Ex.CW4/A to the police. Perusal of this complaint Ex.CW4/A reveals that it was delivered at PS Karol Bagh on the same day at 7.45 p.m. The complainant narrated the occurrence dt.09.03.98 in this complaint. Even in the writ petition (copy Ex.CW1/DB), he narrated about it and also referred to complaint dt.09.03.98 submitted to SHO PS Karol Bagh. Then, he made statement in court as CW1 and narrated the occurrence.
For consideration, on the point of charge, Learned Metropolitan Magistrate should not have taken into consideration noncorroboration of the version regarding the occurrence dt.09.03.98 by persons from public. In other words, the version narrated by the complainant regarding the occurrence dt. 09.03.98 could not be thrown away at such a stage for want of corroboration from independent source.
Learned Metropolitan Magistrate has referred to decision in Hari Obula Reddi V. State of A.P., 1980 Crl. LJ 1330, wherein it was observed that evidence of "interested witnesses" should be subjected to careful and abstracted caution. Complainant cannot termed to an interested witness. Evidentiary value of sole testimony of the complainant can be assessed even 9 after framing of charge. Therefore, decision in Hari Obula Reddi's case (supra) did not adversely affect the case of complainant.
16. As to what is to be taken into consideration at the time of framing of charge, in L. K. Advani v. Central Bureau of Investigation 1997 III AD (Delhi) 53, Hon'ble High Court observed as under: "(52). it is manifest from above that the charges can be framed against an accused person only in those discerning, few cases where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charge.
xxxxx xxxxx xxxxx In other words, the Court would be justified in framing the charges against an accused if the prosecution has shown the seed in the form of the incriminating material which has got the potential to develop itself into a full fledged tree of conviction later on."
Occurrence dated 10.03.1998
17. So far as occurrence dt.10.03.98 is concerned, Learned Metropolitan Magistrate has observed that the complainant made material improvements in his version provided to the police on 10.03.98 and further that he did not provide any clarification as to in what manner accused persons helped accused - respondent no.3 in removal of purse and his removal to the roll after having pulled by her.
Presence of criminal complaint submitted to court would reveal that therein complainant specifically mentioned that accused no.2 followed by 10 respondents no.1, 3 & 4 started hurling abuses and assaulted him by way of fists blows, slaps and threw him on the road whereas respondent no.3 robbed him of his purse and accused no.1 to 4 helped her.
18. While appearing in court on 06.07.2001, the complainant narrated the manner in which he was thrown on the road by respondent no.2 followed by corespondent. As regards robbery, he stated that respondent who stole his purse was helped by accused no.1, 2 & 4. While so stating he named accused no.3 as the person who robbed him of his purse while others were assisting. This version is therefore not in contradiction with the version available in the criminal complaint. In the writ petition, copy whereof is Ex.PW1/DB also the complainant narrated the manner in which he was assaulted by the four accused thrown on the ground and his purse was stolen.
On merits, as regards the occurrence dated 10.03.1998, learned Metropolitan Magistrate has observed certain contradictions in the statement of the complainantpetitioner and that of CW3.
According to the complainant on 10.03.1998 when he visited in front of his aforesaid property to inspect the ground floor portion and to make arrangement regarding the nutbolts and latch tampered by the respondents, at that time, respondent no. 2 followed by the other three respondents started hurling abuses at him, that respondent no. 3 stole his purse, with the help of three respondents and in this way, took away Rs.1200/ in cash, Time Bank 11 Card, enrolled card issued by Delhi Bar Association and identity card issued by NDBA, Court fees and driving license. All of the them then gave him kick blows while posting him down on the road. He reported the matter to the police but no action was taken.
The complainant then narrated the steps take by him to set the law into motion up to filing of the present complaint.
It is true that in complaint Ex CW4/B submitted by him to the police, he named accused no. 3 for removal of his purse but did not allege that in this act he was helped by coaccused. However, at this stage of framing of charge, such a contradiction could not be taken into consideration by learned Metropolitan Magistrate particularly when the complainant specifically alleged about presence of other three respondents on the given date, time and place and attributed to them fist blows & slaps; that his spectacles were removed; and that he was thrown on the ground. He also specified the items which his purse contained.
Similarly, when the complainant stated in Court that he was dragged on the road by all the three respondents, but this fact does not find mention in his written complaint dated 10.03.1998 (where in he named only Gurpreet for this act) same cannot be said to be a ground to throw away the entire version narrated by complainant regarding the manner in which the occurrence took place.
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Another contradiction taken into consideration by the Trial Court is that CW1 stated that respondents threatened to kill him but no such allegation was levelled in the complaint addressed to the SHO or in the complaint made before the Court.
It is true that in complaint Ex PW4/B sent to the SHO, or in the criminal complaint addressed to the Court complainant did not allege about any such threat, but from this omission it cannot be said that the entire testimony of the complainant was not to be believed.
Learned Metropolitan Magistrate also took into consideration improbability in the case of the complainant, as pointed out in para 16 of the judgment.
It is true that the complainant was not medically examined on 10.03.1998 and rather examined on 14.03.1998, but complainant submitted his written complaint Ex CW4/B to the police on the same night at about 9.20 pm. So, it was for the police to get the complainant examined from the hospital. Since no action was taken by the police, as noticed above, complainant had to file writ petition before the Hon'ble High Court (although the same was ultimately got dismissed as having been withdrawn.) Simply because the complainant left the spot on his scooter after the occurrence, his entire version cannot be thrown away on the ground that in the given situation he could no go away of his own i.e. without the help of any 13 other person.
Complainant examined before the Trial Court CW3 Sh. Gurcharan Singh in support of the occurrence which took place on 10.03.1998. CW3 narrated in Court regarding presence of the accused persons and about role played by them. He happened to reach the spot at about 5 pm. At that time, number of persons were present there. The witness saw the complainant showing broken "kunda" from his room no. G17. He specifically named Rajpal Kaur, Bhagwan Singh and two sons Minto & Pintu and about their participation in the crime.
According to the witness, Rajpal Kaur pushed the complainant. As a result, he fell down and his turban and spectacles also fell down. Other accused started punching the complainant while he was lying there. Some persons tried to intervene but they did not come forward as they were threatened. The witness further deposed that Minto took out purse from the rear pocket of the complainant. On intervention of some people, all the accused persons retreated. With the assistance of some persons, complainant got up, put on his turban and spectacles. He was crying in pain. Other people helped to take him up to his scooter. Then the complainant started his scooter and went away.
Learned Trial Magistrate observed in the impugned judgment that complainant did not mention in complaint regarding presence of Gurcharan 14 Singh, CW3 on 10.03.1998 or in the complaint submitted to the SHO, but at the same time learned Metropolitan Magistrate himself kept this lacuna aside.
One of the grounds, on which learned Metropolitan Magistrate, disbelieved the testimony of CW3, is that there is no explanation as to how the complainant got the telephone number of this witness particularly when both of them had left the spot immediately after the occurrence and they were not known to each other.
It is true that from the evidence, it appears that complainant and CW3 Gurcharan Singh were not known to each other, but CW3 stated that he remained in touch with the complainant on phone after the occurrence. There is nothing on record to suggest that CW3 was inimical against the accused or had any motive to support the complainant. CW3 being an independent witness and having narrated the manner in which the occurrence took place on 10.03.1998 in his presence, at the stage of charge, learned Trial Magistrate should not have discarded his statement simply on the aforesaid ground that it remained unexplained as to how the complainant got telephone number of CW3.
Statement of CW3 could also not be discarded on another ground that he provided very brief description of the role attributed to the accused persons and did not help the complainant to go hospital.
Conclusion 15
19. In view of the above discussion, this Court finds that prima facie learned Trial Magistrate erred in passing order of discharge of respondents no. 2 & 4 while observing that the evidence led by the complainant, if unrebutted, would not warrant their conviction.
20. Accordingly, while disposing of revision petition, though filed beyond the prescribed period of limitation, impugned order dated 20.03.2013 is set aside. While exercising powers under Section 398 CrPC, the Trial Court record is ordered to be laid before Learned Chief Metropolitan Magistrate with directions to make further inquiry or direct any subordinate Magistrate to make further inquiry into the complaint "as to the offence(s) for which charge is to be framed against the two accusedrespondents no. 2 and 4", (earlier discharged by the learned Trial Magistrate), so as to frame charge accordingly, record their plea and dispose of complaint on merits in accordance with law.
21. Complainantpetitioner and respondent no. 2 and 4 to appear before Learned Chief Metropolitan Magistrate, on 04.04.2014.
22. Trial Court record be sent for being laid before Learned Chief Metropolitan Magistrate. File of revision be consigned to Record Room.
Announced in Open Court
on 28.03.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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