Delhi District Court
M/S Zee Media Corporation Ltd vs State (Govt. Of Nct Of Delhi) on 3 August, 2016
Cri. Rev. no.45/16
Zee Media v. State & Ors
20.07.2016
Pre: Ld. Counsel for the revisionist.
Ld. Counsel for the respondents.
No time left.
Put up for order on 25.07.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/20.07.2016
25.07.2016
Pre: None.
Due to heavy rush of work no time left.
Put up for order on 27.07.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/25.07.2016
27.07.2016
Pre: None.
Order not ready.
Put up for order on 03.08.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/27.07.2016
03.08.2016
Pre: None.
File perused, vide separate detailed order placed along side in the
file, the revision petition is dismissed. Accordingly, 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)
ASJ-03/PHC/NDD/03.08.2016
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (03) , PATIALA HOUSE COURT, NEW DELHI
Criminal Revision No.45/16
IN THE MATTER OF :
M/s Zee Media Corporation Ltd.
Through its Authorized Representative
[Mr. Prasanna Raghav]
FC 19, Sector 16- A
NOIDA, UP.
.............. Revisionist
Versus
1.STATE (Govt. of NCT of Delhi)
2.M/s Jindal Steel and Power Limited,
Through its Director Mr. Rajiv Bhaduria,
Jindal Centre, 12, Bhikaji Cama Place,
New Delhi - 110066.
................Respondents
03.08.2016
ORDER
1. By this order I shall dispose of revision petition filed u/s 397 Cr. P.C. against the order dated 04.04.2016 passed by ld. MM - 05, PHC, New Delhi (hereinafter referred as impugned order) whereby ld. trial court dismissed the application of the revisionist filed u/s 210 Cr. PC on the grounds that proposed accused persons do not have any 'locus standi' at this stage.
2. Briefly facts of the case are that a complaint case no.26/1C/15 titled as "Jindal Steel Power Ltd. v. Subhash Chandra & Ors." u/s 200 Cr. PC has been filed by the respondent no.2 Jindal Steel Power Ltd. for the offences u/s 499/ 500/ 503 IPC against the revisionist. During the 2 course of trial, ld. Counsel for the revisionist [proposed accused persons] intervened in the matter and filed applications u/s 210 Cr. PC and 340 Cr.PC. They asserted before the ld. Trial court that they have the 'locus standi' to appear before the trial court to make submissions. On the other hand, the said complaint case is at the stage of recording of complainant[respondent no.2] evidence. Therefore, ld. Trial Court after having heard arguments of ld. Counsel for the revisionist passed the impugned order dated 04.04.2016 and dismissed the application filed u/s 210 Cr.PC. Feeling aggrieved with the impugned orders dated 04.04.2016, ld. Counsel for the revisionist filed the revision petition.
3. During the course of arguments, ld counsel for the revisionist submitted that in view of the Hon'ble High Court order dated 10.03.2016 the revisionist has locus standi to participate in the proceedings pending before Ld. MM in the case titled as 'JSPL vs. Subhash Chandra & Ors'. He further submitted that no evidence has been recorded to initiate process to summon the accused so far. In support of his contentions, ld. Counsel has relied upon the following judgments:-
I) Hardeep Singh v. State of Punjab 2014 [3] SCC 92, wherein it has been observed that:-
In Union of India & Ors. v. Major General "30.
Madan Lal Yadav (Retd.), AIR 1996 SC 1340, a three- Judge Bench while dealing with the proceedings in General Court Martial under the provisions of the Army Act 1950, applied 3 legal maxim "nullus commodum capere potest de injuria sua propria" (no one can take advantage of his own wrong), and referred to various dictionary meanings of the word 'trial' and came to the conclusion:
"It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
(Emphasis supplied) X X X X Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial."
In another judgment 'Md.Shamim and Ors. v. The State of Bihar & Ors 2002 (4) PLJR 829, it has been observed that:-
".... The materials on record which have not been controverted by any of the parties support the contention that a Police Case is pending regarding the same allegation which are subject matter of the present complaint case. In such circumstances, Learned Magistrate was required to follow the procedure laid down under Section 210 of the Code of Criminal Procedure and accordingly, , stay the proceedings of enquiry or trial in the complaint case and should have proceeded further only after calling for a report on the matter from the police officer conducting the investigation....................."
In judgment Amit Chopra v. State 2009 [3] JCC 2282 it has also been observed that:-
"Present petition is directed against the order dated 04.03.2009, by virtue of which, the prayer of the petitioner, on a complaint filed by the petitioner under Section 190 (1) (a) of the Cr. PC has been rejected and the learned ACMM has also declined to issue orders under Section 156 (3) of the Cr. PC.
............. After some hearing in the matter, it is agreed that the matter may be remanded back to the concerned court with the direction to hear the matter afresh, taking into consideration the grounds raised in the present petition, as well. ......"4
In judgment 'State of Punjab v. Bhag Singh 2004 [1] SCC 547, in this case it has also been observed that:-
"Reasons introduce clarity in an order. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to a reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi- judicial performance."
In the judgment Raj Kishore Jha v. State of Bihar 2003 (11) SCC 519, it has also been observed that:-
"Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and Anr. v. State of U.P., [1995] Supp. 1 SCC 547, it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination- in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officer's non- examination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Prasad and Ors. v. State of Bihar, [1996] 2 SCC 317, it was held that case of prejudice likely to be suffered mostly depends upon facts of each case and no universal straight Jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and Am. v. State (Delhi administration, [2000] 2 SCC 646, Bahadur Naik v. State of Bihar, [2000] 9 SCC 153 and, Ram Gulam Chaudhury and Ors. v. State of Bihar, JT (2001) 8 SC 110.
The requirement of compliance with Section 145 of the Evidence Act was highlighted by learned counsel for the accused-respondents.
The question of contradicting evidence and the requirements of compliance with Section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of Tahsildar Singh v. State of U.P., AIR (1959) SC 1012.5
The Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it has also been indicated as to how a witness can be contradicted in respect of his former statement by drawing particular attention to that portion of the former statement. This question has been recently considered in the case of Binay Kumar Singh v. State of Bihar , [1997] 1 SCC 283 and the Court has taken note of the earlier decision in Bhagwan Singh v. State of Punjab, AIR (1952) SC 214 and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. But in elaborating the second limb of Section 145 of the Evidence Act it was held that if it is intended to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of contradicting him. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of section 145 of the Evidence Act. The aforesaid position was indicated in Rajender Singh and Ors. v. State of Bihar, [2000] 4 SCC 298.
Since the judgment of the High Court is practically non-reasoned, one course open is to remit the matter back to the High Court to rehear appeal and pass a reasoned judgment dealing with all relevant aspects. But considering the long passage of time, we think it appropriate to decide the case by analyzing the evidence brought on record.
One salient feature of the case is, there was only one gunfire by Bundeo Jha (A-l) from a considerable distance as per the prosecution version. Here again, the High Court has fallen into an error by observing that the fire was done from a close range as if the prosecution version was that. On the contrary, right from the beginning the prosecution version is that the gun was fired from about a distance of 70-80 ft. On that score also the High Court's conclusion that the medical evidence varied with the ocular evidence suffers from vulnerability. Taking into account the fact that the only shot was fired from a considerable distance in this case application of Section 302 IPC, is ruled out, though there cannot be any rule that whenever one shot is fired from a distance, Section 302 IPC would not be applicable. It would depend upon the nature of the gun, the position of the assailant and the victim, obstructions from any intermediary object which may cause deflection of the shot and several other relevant factors. The appropriate applicable provision on the facts of the case is Section 304 Part II IPC so far as Bundeo Jha (A-l) is concerned. Rest of the accused persons who were convicted by the Trial Court were implicated by application of Section 149 IPC.
On a reading of the prosecution evidence as analysed in great detail by the Trial Court, we find that definite roles have been ascribed to Bundeo Jha (A-l), the assailant with the gun, Arjun Jha (A-2), Gopal Jha (A-4), Rajendra Jha (A-6) and Daya Nand Jha (A-7). But the accusations have not been clearly established against rest of the accused persons. Therefore, the acquittal as directed by the High Court, so far as they are concerned, stands confirmed. Accused-Bundeo Jha (A-l) is convicted under Section 6 304 Part II IPC and Section 27 of the Arms Act with corresponding sentences of 7 years RI and 5 years RI respectively. Accused Rajendra Jha (A-6) and Daya Nand Jha (A-7) are guilty for offences punishable under Section 304 Part
11 read with Section 109 IPC with custodial sentence of 7 years RI. Daya Nand Jha (A-7), Rajendra Jha (A-6), Parmanand Jha (A-15). Gopal Jha (A-4) and Arjun Jha (A-2) are convicted under Section 304 Part II read with section 149 IPC with custodial sentence of 7 years. Accused-Bundeo Jha (A-l), Arjun Jha (A-
14), Gopal Jha (A-4) are found guilty for offence punishable under Section 148 IPC and sentenced to RI for 3 years. The sentences are directed to run concurrently.
The appeals are allowed to the extent indicated. The respondents who are on bail shall surrender to custody forthwith to serve the remainder of their sentence, if any. Before we part with the case, we feel it necessary to indicate that non- reasoned conclusions by appellate Courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless..."
In another judgment Smt. Krishna And Anr. Versus State Crl M. C. No. 493 of 2009, it has also been observed that -
"I have heard learned counsel for the parties and gone through the material on record. Time and again the Apex Court has stressed the necessity of passing a speaking order and observed that for a sound juristic mechanism, reasoned orders be passed as they act only provide sanctity to the decision but also assure the parties that their case has been heard and decided in a just manner. In the case of M/s. Goyal Enterprises Vs. State of Jharkand reported at 2008(2) JCC (NI) 156 the Apex Court held:
6. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind: all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.'"
In another judgment M/S. Shree Mahavir Carbon Ltd. vs Om PrakashJalan (Financer) & Anr. 2013 (13) SCALE 503, has again 7 reiterated the need and requirement of passing a reasoned order. It has been observed that:
"5. Before we part with, we would like to observe that this case necessitates making certain comments on the importance of rationale legal reasoning in support of judicial orders...
9. ... However, there is no discussion worth the name, in the impugned judgment, as to how and on what basis the High Court accepted such a plea of the respondents herein, in recording its conclusion that it was a case of rendition of accounts simplicitor.
13. We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on a objective consideration.
14. When we talk of giving "reasons" in support of a judgment, what is meant by "reasons"? In the context of legal decision making, the focus is to what makes something a legal valid reason. Thus, "reason would mean a justifying reason, or more simply a justification for a decision is a consideration, in a non- arbitrary ways in favour of making or accepting that - decision. If there is no justification in support of a decision, such a decision is without any reason or justifying reason.
15. We are not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justifying that conclusion."
4. Contrary to it, Ld. Sr. counsel Mohit Mathur submitted that vide impugned order dated 04.04.2016 passed by Ld. MM, the application filed under Section 210 Cr. P.C has been dismissed by Ld. MM. Ld. counsel again submitted that now, revisionist has no locus standi to participate at the stage of recording of Pre summoning evidence. Ld. counsel for respondent again submitted that since matter is pending before Hon'ble High Court in view of order, therefore, this court has no jurisdiction to entertain this revision petition. 8
5. For the sake of brevity and convenience the provisions of Section 210 Cr.P.C is being reproduced as under : -
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
6. I have given careful consideration to the submission of Ld. Counsel for the revisionist and Ld. Counsel for the respondents as well. It has come on record that a complaint case has been filed by the respondents for the offences punishable under Section 499/500/503 IPC against the revisionist and same is at the stage of recording of pre-summoning evidence. But before pre-summoning evidence is recorded, the revisionist filed an application under Section 210 Cr. P. C to intervene in the proceedings on the ground that the revisionist has locus standi to defend himself. It has also come on record that already proceedings are pending before the Hon'ble High Court to decide the question of locus standi. In this backdrop, I have also gone through Section 210 Cr.P.C which reveals that nowhere Section 210 mandates 9 that before issuance of process to the accused/ revisionist, he has the right to participate in the proceedings. Apart from this, to my view if the revision petition is allowed by way of setting aside the impugned order dated 04.04.2016 it may not only impact the administration of criminal justice but also make the administration of criminal justice system dysfunctional. Therefore, to my view, the revision petition does not deserve any merit to succeed at this stage precisely for the reasons that the matter is at the stage of recording of pre-summoning evidence and the matter is already pending before Hon'ble High Court to decide the question of locus standi. Hence the revision petition is dismissed. Accordingly, 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 03.08.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS, NEW DELHI 10