Delhi District Court
Neeraj Kumar Chandok vs Vikas Chawla & Others on 8 January, 2010
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In the Court of Ms. Shalinder Kaur
Additional Sessions Judge- FTC (Central)
Tis Hazari Courts: Delhi.
Criminal Revision No.33/2009
Neeraj Kumar Chandok .....Revisionist/
Complainant
VERSUS
Vikas Chawla & Others .....Respondents
ORDER
1. The revisionist being aggrieved by the order dated 07.08.08, passed by Learned Trial Court, has filed the present revision which is under disposal vide this order.
2. It was contended on behalf of the revisionist that he had filed a complaint under Section 200 Cr.P.C for summoning of the accused persons under Section 302/385/210/217 IPC which has been dismissed by the Learned Trial Court without recording any evidence or trial of the complaint which is arbitrary and unlawful. On 02.10.03, complainant was married with respondent no.3 Ameena, sister of respondent no.1. The relations between the complainant and respondent no.3 had never been cordial because of her quarrelsome nature. She used to abuse and fight with the complainant as well as his family members and threatened them that she would not stay in the matrimonial home and would lodge a complaint of dowry demands against them. In the month of March 2004, she left the matrimonial home on the pretext of meeting her parents as she was missing them but she did not come back to the :2: matrimonial home. Meanwhile, respondent no.1 and his other relations continued to trouble and harass the complainant. He filed a divorce petition against respondent no.3 which is pending trial. However, on 28.05.04, respondent no.1 along with others came to the house of the complainant. He abused them and threatened them to kill them and to lodge a false criminal complaint against them. On 01.06.04, his deceased brother Chander lodged a written complaint addressed to DCP, East District, the copy of which was forwarded to SHO, police station Anand Vihar, requesting for protection from respondent no.1 and his family members and for taking appropriate action against them.
3. Respondent no.3 Ameena had filed a petition in Delhi Commission for Women, praying for maintenance and return of her articles to her. On 13.09.04, they had gone to attend the hearing of their case in the Commission. Respondent no.3 came there with her brother, respondent no.1 Vikas Chawla and her Bhabhi Promila Devi, respondent no.2. He along with his deceased brother Chander Kumar had also appeared before the Lady Counselor, Ms. Poonam Sharma in the Commission. During hearing, the Member asked him about the child and he told her that after Ameena started living separately from him, he did not have knowledge about the child and in case, he requested for conducting DNA test of the child. On this, accused Vikas Chawla got irritated. The Member asked Ameena to produce the list of her articles and told him to bring the dowry articles on 01.10.04. When they came out of the Commission, at the main gate, accused Vikas Chawla stopped him and asked him that why did he talk about the DNA test of the child before the member and on this issue, he started fighting with his :3: brother. Ameena and Promila started abusing him and gave beatings to him. Both of them caught hold of him and did not allow him to save his brother. In the meanwhile, two more boys whom the complainant had never seen before and did not know them, all of a sudden came there who caught hold the hands of his brother Chander. Thereupon accused Vikas gave fist blows on the head and face and gave knee kicks at private part of his brother. During this, Ameena and Promila kept on abusing him and his brother fell down. All the three accused persons ran inside the Commission. The police removed his brother to the hospital where he was declared brought dead. The police submitted charge sheet in the Court on 29.04.08 without arresting the two unidentified culprits. The respondent no.1 gave maximum protection to respondents by filing the charge sheet under lesser offence although they should have been charged sheeted for offence punishable under Section 302 IPC.
4. It was argued that the accused persons in a pre-planned manner had committed cold blooded murder of his elder brother. However, the Learned trial court without holding an inquiry on the complaint dismissed the same without giving an opportunity to the complainant to prove the averments and the contentions raised by him in the complaint. Thus, he prayed that order dated 07.08.08, dismissing his complaint be set aside. In support of the contentions, reliance has been placed upon the judgments : State of Rajasthan vs. Aruna Devi & Ors. Criminal Appeal No.761 of 1994 decided on 08.11.1994, Rajinder Prasad vs. Bashir & Ors. 2001 (2) JCC (SC) 191, Gopal Vijay Verma vs. Bhuneshwar Prasad Sinha and Ors. (1982) 3 SCC 510, Mahesh Chand vs. B. Janardhan :4: Reddy & Anr. 2003 (1) JCC 120, Kishore Kumar Gyanchandani vs. G.D. Mehrotra & Anr. 2001 (1) JCC (SC) 286, State of Rajasthan vs. Aruna Devi and others 1995(1) Recent CR P-187, Mahesh Chand vs. B. Janardhan Reddy & Anr. 2003(1) JCC 120, Mohinder Singh vs. Gulwant Singh & Mohinder Pal & Ors. AIR 1992 Supreme Court 1894 and Rosy & Anr. vs. State of Kerala & Ors. 2000 (1) JCC (SC) 228.
5. Per contra on behalf of the respondents, it was contended that the revisionist has filed the complaint which is grossly misuse of process of law. He has raised the same contention before the Hon'ble High Court, a number of times in different proceedings that the respondents had committed murder of his brother which have not been taken into account by the Hon'ble High Court. Thus, once again by way of present complaint, he has re-agitated the same issue which has been rightly dismissed by the Learned Trial Court. Respondents relied upon the judgments reported as Saran Dass vs. Ram Singh & Anr. 1996 (3) C.C. Cases 94 (HC) and Chhotu Ram vs. State of Haryana & Anr. 1996(3) C.C. Cases 278 (HC).
6. Learned Trial Court has dismissed the complaint filed by the complainant by holding that the Court has become functus officio and cannot take fresh cognizance to issue process to any accused in this case. Only the Court of Sessions has all the powers to take cognizance and to summon any accused in this case. To support the said reasoning, Learned Trial Court has cited judgments reported as Srinivas vs. State of Bihar, 2007 Cri.LJ 4498 & Kishun Singh & Ors. vs. State of Bihar 1993 Cri.LJ 1700.
:5:7. However, the Learned Trial Court has erroneously placed reliance upon these judgments as both the judgments deal with provision U/s 319 & Section 193 Cr.P.C. In the judgment Kishun Singh & Ors. vs. State of Bihar (supra), after submission of charge sheet in the Court of Magistrate, 18 accused persons named in the charge sheet were committed to Court of Sessions, Darbhanga under Section 209 Cr.P.C, to stand trial. When the matter came up before the Sessions Judge, an application U/s 319 of the Code was presented, praying for summoning of two more accused persons as the report U/s 173 of the Code revealed their involvement also in the crime but their names were omitted in the charge sheet by the Investigating Officer. The question which was considered by the Apex Court in this case was " whether a Court of Sessions to which a case is committed for trial by a Magistrate can itself without recording evidence, summon a person not named in the police report presented U/s 173 of the Code to stand trial along with those already named therein in exercise of power conferred under Section 319 of the Code" . It was held that Power to summon additional accused - No evidence led before Sessions Court - Section 319 though not attracted, Sessions Court can summon additional accused by invoking Section 193 Cr.P.C.
8. In the judgment reported as Srinivas vs. State of Bihar (supra), the police had registered a case U/s 302/109/34 IPC and after investigations submitted charge-sheet against three accused persons and kept investigations pending against rest 5 accused persons. The CJM after taking cognizance against three accused persons, committed the case to Court of Sessions. In the :6: meantime, police file supplementary report against the five accused persons, showing them as innocent. The CJM called for entire record for sessions trial along with original case diary and on the basis of material available in the original case diary took cognizance against the rest five accused persons. Thus, the Hon'ble Patna High Court while referring to Section 193 & 209 of the Code held :-
Therefore, the moment, the Magistrate commits the case to the Court of Sessions under Section 209 Cr.P.C be becomes functus officio for that case and hence, he cannot again take cognizance of the same offence which would include summoning of any other persons. After commitment, Section 193 Cr.P.C comes to play its role. Therefore, the Court of Sessions gets unfettered and complete jurisdiction of the Court of original jurisdiction to take cognizance of the offence and summon any person whose complicity comes from the material available on record. The power conferred under Section 193 Cr.P.C upon the Sessions Courts is entirely separate and distinct from the power conferred under Section 319 Cr.P.C which comes to play after commencement of trial.
9. However, in the present case, on the complaint of revisionist, FIR No.308/04 for offences punishable under Section 304/323/341/34 IPC was registered against respondents no.1, 2 & 3 in police station I.P. Estate. After investigation, the Investigating Officer submitted charge sheet on 29.08.04 which was committed to Court of Sessions under Section 209 Cr.P.C. The complainant aggrieved by the fact that the police had not conducted the investigations fairly, filed a complaint on 03.09.08 U/s 200 Cr.P.C for summoning the accused persons under Section :7: 302/285/210/217 IPC and also added respondent no.4 in the array of the accused persons. Learned MM by holding that he had taken cognizance on the police challan which he had committed to the Court of Sessions, thus, had become functus officio to try the complaint and dismissed the same.
10. In the judgment reported as Saran Dass vs. Ram Singh & Anr. 1996 (supra), similar facts came up before Hon'ble Punjab & Haryana High Court. After committal of the charge sheet to the Court of Sessions against five accused persons under Section 364/467/468/471/120-B/34/201 IPC, a complaint case against all the five accused persons for same offences including an offence U/s 302 IPC was presented. The Judicial Magistrate dismissed the complaint on the ground that the case was not covered U/s 210 of the Code as already cognizance of the offences on police report was taken and the complaint for the same offence was not maintainable. The Punjab & Haryana High Court observed :-
While dismissing the complaint of the petitioner, the Judicial Magistrate took the shelter of the principle of double jeopardy which view has been affirmed by the Additional Sessions Judge in his impugned judgment. In my considered view, both the Courts below have fallen in error in this respect as well.
11. Admittedly, when the Magistrate has already taken cognizance on a police report and specifically a complaint is filed arising out of the same offence then Section 210 of the Code is not attracted.
:8:12. It was argued on behalf of the revisionist that even after dismissal of a complaint U/s 203 Cr.P.C, there is no bar to entertain the second complaint on same facts, if fresh evidence comes before a Magistrate. In the judgment reported as Rajinder Prasad vs. Bashir & Ors. (supra), the Hon'ble Supreme Court has held as under :-
Section 190 - Police filed charge-sheet - Complainant moved applications before Magistrate for impleading four persons as accused and also to add another section against the accused persons - Magistrate allowing the applications and taking cognizance - Whether Magistrate has a power to do so - Held : (Yes) - Held, that a Magistrate has such a power under Section 190 Cr.P.C to take cognizance of offences against such persons also who have not been arrested by police as accused persons, if they were prima facie guilty of offences alleged to have been committed.
13. In the judgment reported as Kishore Kumar Gyanchandani vs. G.D. Mehrotra & Anr. (supra), the Hon'ble Supreme Court has held :-
Earlier FIR for offence of Secs. 279 and 338 of IPC was investigated and final report was submitted to the court of Magistrate which was accepted by the court - Later on the complainant filed a protest petition relating to the same case - The Magistrate took cognizance of the case and process issued - Proceeding challenged by accused - Held :
that it does not oust the Jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final report, the same having been filed by the police - In the :9: facts and circumstances of this case this appeal of complainant is allowed and order of High Court is set aside and directing the Magistrate to proceed with the pending criminal proceeding as expeditiously as possible.
14. Thus, the Trial Court at the outset could not have dismissed the complaint by holding that it had become functus officio. Accordingly, the order dated 07.08.08 is set aside. Learned Trial Court is directed to proceed with the complaint in accordance with law. Complainant to appear before the Trial Court on 18.01.10. Trial Court Record be sent back. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 08.01.2010.
Shalinder Kaur/ASJ-FTC (Central) Tis Hazari Courts: Delhi :10: Neeraj Kumar Chandok Vs. Vikas Chawla & Ors.
CR. No. 33/09
08.01.2010
Present: Revisionist in person.
Respondent No.1, 2 & 3 in person.
Vide order announced of even date on separate sheets, the complaint case is remanded back. The order dated 07.08.08 is set aside. Learned Trial Court is directed to proceed with the complaint in accordance with law.
Complainant to appear before the Trial Court on 18.01.10. Trial Court Record be sent back.
Revision file be consigned to Record Room Shalinder Kaur/ASJ-FTC (Central) Tis Hazari Courts: Delhi