Delhi District Court
Sh. Jitender vs State (Nct Of Delhi) on 10 July, 2018
Criminal Revision No.114/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 114/2018
Under Section : 200 Cr.P.C.
Police Station : Mandawali
CC No. : 1360/18
CNR No. : DLET01-003769-2018
In the matter of :-
SH. JITENDER
S/o. Shri Rajbir Singh,
R/o. Plot No.21A, GF, H-Block,
Kutub Vihar, Phase-I, New Delhi.
Working as
Constable in Delhi Police,
posted at Kamla Market Circle, Delhi.
............PETITIONER
VERSUS
1. STATE (NCT of DELHI)
2. SH. SHISH PAL SINGH
S/o. Shri Indraj Singh,
R/o. H.No.L-704, Aura Chimera,
Raj Nagar Extension, Ghaziabad, U.P.
..........RESPONDENTS
Date of Institution : 04.07.2018
Date of reserving order : 10.07.2018
Date of pronouncement : 10.07.2018
Decision : Petition is allowed.
ORDER
1. This revision petition is directed against the order dated 01.06.2018, passed by the trial court in the complaint case titled as Shish Pal Singh v. Jitendra, bearing CC No.1360/18, under Section 200 Page 1 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 Cr.P.C. Vide impugned order, trial court directed SHO PS Mandawali to investigate in to the claim of complainant by properly registering an FIR.
2. Briefly stated, the relevant facts giving rise to this revision petition are that respondent no.2 herein (hereinafter referred to as complainant) filed a complaint case under Section 200 Cr.P.C. with prayer to give direction to police to register FIR. Complainant alleged that on 20.10.2016 at about 01:45 PM he was waiting for passenger in his car at Akshardham Metro Station. Complainant was working as driver with Uber cab. He had parked his car under tree because it was hot day and he was asked by one ice-cream hawker to remove his car. Complainant had heated words with that hawker, who claimed that he used to pay monthly money to petitioner herein and that hawker called petitioner from inside the Akshardham Metro Station. Petitioner was not in his uniform and he punched complainant on his face without any reason, resulting into bleeding from lower lip of the complainant. Petitioner said that he was commando and he would teach lesson. Complainant protested such action of petitioner and informed that he was ex-defence official and complainant insisted for lodging of FIR against petitioner. He was taken to hospital for his MLC and his MLC was prepared, but at the same time petitioner also got his MLC prepared and thereafter, complainant was impicated in a false case. Complainant made complaint to DCP office, which was forwarded to PG Cell, but in vain. Hence, this complaint.
3. Ld. MM after calling for a status report, directed for registration of FIR observing that it was counter claim of the complainant against police and medical examination of complainant was also conducted.
Page 2 of 7 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 Therefore, police should have investigated the counter claim of complainant upon proper registration of FIR. GROUNDS :-
4. Being aggrieved of the impugned order, petitioner has filed this revision petition on the following relevant grounds :-
● That trial court did not consider the law laid down by Supreme Court in which Supreme Court categorically laid down the conditions which has to be necessarily fulfilled prior to passing the order under Section 156(3) Cr.P.C (Ref.Ms. Priyanka Srivastava v. State of U.P. passed on 19.03.2015), which are as follows.
1. Complaint has to be given to SHO firstly as per the provisions of section 154 Cr.P.C.
2. Secondly the complainant has to approach DCP as per the provisions of Section 154(3) Cr.P.C, if his grievances not redressed by SHO.
3. Thirdly the complainant has to give affidavit in regard to truthfulness of the allegation made in the complaint and that complaint has to be verified through police.
● That in the present matter, there was no any complaint to SHO filed by respondent no.2. Thus, order is liable to be set aside only on this score i.e. flagrant violation of the condition laid down by Supreme court.
● That trial court failed to appreciate that for direction to register FIR under Section 156(3) Cr.P.C, there must be a cognizable offence. As a matter of fact upon the MLC of respondent no.2, an opinion has been given by the doctor of LBS hospital, Khichripur, Delhi, and the doctor had concluded that the injuries sustained by respondent no.2 are simple in nature and on the allegations leveled by complainant/respondent no.2, at the best offence under Page 3 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 Section 323 IPC is made out and which is non cognizable offence. ● That trial court failed to appreciate that the limitation for the offence is provided under Section 468 Cr.P.C. As per the provision, the limitation for taking cognizance under Section 323 IPC is only one year. As per the case of complainant/respondent no.2, he was beaten up on 20.10.2016 and he had filed the complaint case before the court on 22.03.2018 i.e. after a gap of more than 2 years 5 months. There is no application for condoning the delay. As such the complaint of the complainant/ respondent no.2 is time barred.
● That in the case of Rohtash v. State of Haryana, Supreme Court had refused the prayer of complainant in case of murder for registration of FIR only on a ground of delay of four years and about 10 months.
● That trial court did not appreciate that the present case has been filed nothing but a counter blast to the FIR registered against the complainant and without any application under Section 156(3) Cr.P.C.
● That trial court failed to take into consideration the established law passed by courts in regard to power under Section 156(3) Cr.P.C. The order under Section 156(3) Cr.P.C should not be passed in usual course and it can be passed only if investigation is required and such type of order should not be passed if the proposed evidence is well within the competence of the complainant to produce in the court.
● That trial court failed to appreciate that such type of order would have a very adverse affect not only to the petitioner, his family, Page 4 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 Career, but also a very bad name to the police organization in which petitioner has been serving for about 8 years, with a spotless Career and his work has been always appreciated by the seniors.
5. Ld. counsel for petitioner relied upon certain judgment in support of his contention, which are as follows :-
● Gautam R. Patel & Ors. v. Govt. of NCT of Delhi & Ors., 2007 [1] JCC 448.
● Jagdish Gandhi & Anr. v. State & Anr., 2008 [4] JCC 2684. ● Balveer Singh & Anr. v. State of Rajasthan & Anr. Criminal Appeal No.253 of 2016, decided by Supreme Court on 10.05.2016.
● Mrs. Priyanka Srivastava & Anr. v. State of U.P. & Ors. 2015 CRI.L.J 2396.
● Rohtash Kumar v. State of Haryana, Criminal Appeal No.306 of 2013 decided by Supreme Court on 14.02.2013. APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
6. Ld. counsel for petitioner argued that the order passed by ld. MM was illegal because ld. MM entertained a kind of plea of defence of the complainant, which was to be taken in FIR No.383/16, under Section 186/332/353 IPC. He further submitted that even otherwise from the allegations made by the complainant, a case for offence punishable under Section 323 IPC only is made out, for which FIR cannot be registered because it is non-cognizable offence. He further submitted that this complaint was also filed after long delay.
7. Per contra, ld. counsel for complainant submitted that the FIR could be registered under Section 155 Cr.P.C and no such plea of limitation of time was taken in the status report filed by police.
8. I have given due consideration to the rival contentions. The Page 5 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 allegations made by complainant in this case do make out only a case of offence under Section 323 IPC, which is a non-cognizable offence. Section 156 Cr.P.C deals with investigation of cognizable case only. Clause-3 of this provision provides that any Magistrate empowered under Section 190 may order such investigation as above mentioned. Thus, it amply clear that even Magistrate can exercise his discretion to give direction for investigation into a case, which relates to cognizable offence. In these circumstances, I do find that ld. MM overlooked this aspect of this case, while giving direction to police to register FIR merely on the basis of a case disclosing offence under Section 323 IPC only. MLC of complainant was placed in trial court record, which describes suffered injury by him as abrasion over lower lip and nature of injury was given as simple. Therefore, there should not have been any doubt regarding nature of case being projected by complainant.
9. Secondly, it had already come on the record in the form of status report that FIR No.383/16 was registered against the complainant on the basis of complaint made by petitioner herein and that FIR it self mentioned that the complainant had physical altercation with the petitioner. Therefore, abrasion over lower lip should not have raised so much of alarm for ld. MM, so as to assume that there was a counter case. In the case of Priyanka Srivastava (supra), Hon'ble Supreme Court did caution the Magistrates to act with circumspection before exercising jurisdiction under Section 156(3) Cr.P.C. For such purposes, Magistrate in appropriate cases were advised to verify the truth and to verify the veracity of allegations as well. It is also borne out from the trial court record that the complainant moved his Page 6 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.114/2018 complaint before Insp. PG Cell, Delhi Police on 31.03.2017 and before DCP (East District) on 23.12.2016 only. As per status report, inquiry was conducted and the allegations made by complainant were not substantiated. A care has to be taken by the court to see, if accused in a case does not use provision of law to put pressure upon the prosecution/ complainant directly or indirectly.
10.Further more, the complaint before ld. MM was filed on 22.03.2018, though the incident allegedly took place on 20.10.2016. Offence under Section 323 IPC is punishable with imprisonment of one year and as per Section 468 Cr.P.C, the limitation period to take cognizance of the offence would be one year. According to Section 469 Cr.P.C, the limitation would commence from the date of offence for the purpose of this case. Thus, apparently this complaint under Section 200 Cr.P.C was also filed before ld. MM beyond the period of limitation and this aspect was also overlooked by ld. MM.
11.In view of my foregoing discussions, I find that the impugned order dated 01.06.2018 cannot be sustained, being bad in the eyes of law. Hence, revision is allowed and impugned order dated 01.06.2018 is set aside.
12.TCR be sent back along with copy of order to the trial court. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALAPULASTYA Location: Court No.3, PRAMACHALA Karkardooma Courts, Delhi Date: 2018.07.10 18:05:13 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 10.07.2018 Special Judge (PC Act) CBI, East (This order contains 7 pages) Karkardooma Courts, Delhi Page 7 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi