Delhi District Court
Pappu Kumar vs The State on 19 August, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Revision No.225/12
Pappu Kumar
s/o Sh Shanker Singh
RZ41 Ranaji Enclave
Najafgarh,New Delhi
....Revisionist
Vs.
The State
(NCT of Delhi)
...... Respondent
Date of Institution : 15.10.2012
Reserved for order on : 08.08.2014
Date of Pronouncement: 19.08.2014
ORDER
The present revision u/s 397 Cr.PC has been preferred for setting aside the order dated 05.07.2010 passed by Sh Naresh Kumar Laka Ld. MM whereby the Ld. MM has accepted the cancellation report of the Police.
2. Briefly stated the facts for giving rise to this revision is that the revisionist/complainant filed complaint u/s 156(3) Cr.PC Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 1 of 9 before the Ld. Trial Court alleging that he is Secretary of Residents Welfare Association, Ranaji Enclave and an authorised agent of Delhi Vidyut Board, now BSES vide agreement dated 1.4.2002. It is alleged that the accused persons are problem creator and commit crimes and try to provoke the innocent persons of the colony not to pay electricity bill charges to the complainant and provoke to use electricity free of cost. On 25.5.2002, complainant came to know about the electricity theft being committed by the accused persons. Firstly complainant alongwith his staff went at the house of Sh KP Singh and found him indulging in tempering with meter by cutting of main cable which connect meter and introduce the pin switch which help electric supply without running meter when the switch is on. Thereafter Heera Singh was found to have changed the coil of meter. Both pleaded guilty and put their signatures on the fine challan slips. Despite requests they did not pay the electric charges and threated the complainant to kill him in case he disconnect his connection of electricity. Since 2003 Sh. KP Singh refused to pay the electricity bill charges. It is further alleged that complainant alongwith his other staff went to the house of KP Singh and asked him to pay the charges or his supply shall be disconnected to which Sh KP Singh went inside and brought a double barrel gun and threatened the complainant and his staff either to go or they will be killed but then the matter was compromised with the intervention of local residents Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 2 of 9 and KP Singh agreed to pay the charges. It is further alleged that from June 2003 again, Sh. KP Singh stopped making payment and stated that the meter is faulty and further stated that he will not pay and also let others pay. Thereafter, no solution took place and complainant made complaint dated 5.8.2003 against KP Singh and Heera Singh etc. but no FIR was registered by the Police. Again on 11.8.03 complaint was made and lastly on 11.11.2003 but police did not register the FIR. It is alleged that the complaints were a lodged as per the order of Hon'ble High Court of Delhi vide Civil Writ Petition no.6155/2000 in Smt. Sushil Devi & Anr vs. Delhi Vidyut Board & Ors wherein the Hon'ble High court has authorised the police to lodge an FIR and contractor is also authorised to disconnect the electricity. Since no complaint was registered by the Police, hence complaint u/s 156(3) Cr.PC has been filed. Vide order dated 14.5.2004 SHO PS Najafgarh was directed to register case and then investigate the matter. Accordingly, FIR no. 341/04 PS Najafgarh was registered. Thereafter, cancellation report was filed. Vide order dated 5.7.2010 none was present for complainant. No arguments advanced on cancellation report despite opportunities. Therefore, Ld. MM accepted the cancellation report and fixed the case for pre summoning evidence. Feeling aggrieved by the said order, the revisionist has preferred this present revision for setting aside the said order dated 5.7.2010.
Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 3 of 9
3. This revision was received by this court on 15.10.2012. Trial court record was summoned which was received and thereafter I have heard the arguments from the Ld. Counsel for the revisionist.
4. On perusal of the revision petition, it is revealed that the same is accompanied by an application for condonation of delay in filing the revision. Admittedly, order dated 5.7.2010 has been challenged in the present revision filed on 15.10.2012. The revision has been filed after about two years. I have perused the application for condonation of delay. The revisionist has taken the plea that he was in judicial custody during the said period and this his brother was in comma in AIIMS Hospital. For the reasons mentioned in the application, the delay in filing the present revision is condoned.
5. During the course of arguments, it has been submitted by the Ld. Counsel for the revisionist that the IO submitted false status report that the original bill were not filed by the complainant hence further investigation cannot be proceeded. It is submitted that the original bills of the dues and tampering of the meter and other relevant documents were filed in the Court alongwith the complaint case and copies were supplied to IO with information that the original are in judicial file. But the IO has submitted the report Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 4 of 9 impartially that the documents were not supplied. The IO did not obtained the documents with malice and ulterior motive and it is apparent that the IO was hand in gloves with the accused persons. It is further submitted that the revisionist was in JC and proceedings of receiving notice could not be managed properly. The earlier counsel obtained several dates for filing protest application but all went in vain as the case was not properly managed. It is submitted that Ld. MM accepted the report without any arguments and there was a ground for Magistrate for issuing necessary direction u/s 173(8) Cr.PC . It is submitted that acceptance of the final report causes serious prejudice to the revisionist as the investigation was a partial and unfair investigation, carried out with a view to shield the accused persons and the opportunity for filing protest application was waived on the latches of previous counsel. Ld. Counsel stated that the litigants should not suffer due to lapses of the counsel. It is submitted that the order passed by the Ld. MM may kindly be set aside.
6. In consideration of the arguments advanced by the Ld. Counsel for the revisionist, I have also perused the trial court file and the order passed by the Ld. MM. Order dated 5.7.2010 is as under: '5.7.2010 Present: Ld.APP for the State.
Complainant/injured is absent.
Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 5 of 9 Despite giving three opportunities, no arguments were advanced on the untrace/cancellation report. Keeping in view the investigation, the cancellation report is accepted.
This file be attached with the complaint case.
(Naresh Kumar Laka) Metropolitan Magistrate (SW) Dwarka Delhi 05.07.10
7. On 27.03.09, time was sought by the counsel for the complainant to file the protest petition. On 15.7.2009 complainant was present in person and thereafter on 11.1.2010 father of the complainant was present before Ld. MM. The order passed by the Ld. MM is clear that on the date of passing the said order, complainant/revisionist was not present. His Counsel was also not present. Neither protest petition was filed nor arguments on behalf of the complainant/revisionist were heard by the Ld. MM. However, Ld. MM has fixed the complaint case for presummoning evidence and on 15.02.2011, the complaint of the complainant was also dismissed in default.
8. In the present revision, complainant/revisionist has challenged the order for accepting the cancellation report. The order passed by the Ld. MM clearly indicate that no arguments have been heard by the Ld. Counsel for the complainant/revisionist at the time of passing the impugned order. Revisionist has taken the plea that he Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 6 of 9 was in judicial custody and could not look after his case. The record revealed that the previous counsel of complainant/revisionist has also even not filed the protest petition for the reason best known to him. The plea of the revisionist is that opportunity to file the protest application was waived on the latches of the previous counsel. Order under challenged revealed that Ld. Counsel for the complainant did not put in his appearance before the Ld. MM on that day. It is well settled law that the party should not suffer for the lapses of counsel.
9. It is stated in case law Union Public Service Commission Vs. Papaiah (1997) 7 SCC 7614: 1997 SCC (Cri) 1112 that before passing the order of discharge and closing the case, notice to the informant is a must. The fact that the IO has issued the notice to the information, is not enough.
10. In case law Sampat Singh Vs. State of Haryana (1993) 1 SCC 561: 1993 SCC (Cri) 376 it is stated that when an investigation culminates into a final report, the duty of the Magistrate or court is to scrupulously scrutinize the report and the accompaniments by applying judicial mind either to accept or to reject the final report. It is further stated that but when the case is exclusively congnizable by Special Judge, it is not within the Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 7 of 9 jurisdiction of Magistrate to cancel it.
11. In case State of W.B Vs. Salap Service Station, 1994 SCC (Cri) 1713 it is stated that the purpose of subsection (8) of Sec.173 is to enable the investigating agency to gather further evidence and that cannot be frustrated. If the materials incorporated in the supplementary charge sheet do not make out any offence, the question of framing any other charge against the accused on the basis of that report may not arise but in case the Court frames a charge, it is open to the accused to seek discharge in respect of that offence also. The rejection of the report outright at that stage, therefore, is not correct.
12. In view of my above discussions, I am of the view that an opportunity should be given to the complainant/revisionist to file the protest petition and to make arguments on the cancellation report filed by the Police. In view of this, the order dated 5.7.2010 passed by the Ld. MM in case FIR no. 341/04 PS Najafgarh is setaside. Ld. MM is directed to take on record the protest petition and thereafter hear the arguments on cancellation report and then proceed as per law. Only one opportunity would be given to the complainant/revisionist to file the protest petition and advance arguments on cancellation report. Complainant/revisionist is directed Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 8 of 9 to file the protest petition and make arguments on the date fixed by the Ld. MM and that thereafter no opportunity shall be granted whatsoever. Revision stands allowed accordingly.
13. Complainant/revisionist is directed to appear before the Ld. Trial court on 30.08.2014 and Ld. Trial court is directed to proceed in accordance with law.
14. Trial court files (complaint case CC no.1060/1 u/s 156(3) Cr.PC) titled Pappu Kumar Vs. Kishan Pal Singh and file of FIR no.341/04 PS Najafgarh be sent back to the court concerned with the copy of this order and revision file be consigned to record room.
Announced in the Open Court on 19.08.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Pappu Kumar Vs. The State (NCT of Delhi) C.R.No.225/12 Page No. 9 of 9