Delhi District Court
Indu vs (1) State on 27 September, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No.42/12
(Unique I.D. No.02406R0261472012)
Indu
D/o Late Sh. N.L. Pasrija
R/o 83-A, Sant Nagar,
East of Kailash, New Delhi. ...........Revisionist
Versus
(1) State
(2) Narender Singh
Process-server, Nazarat Branch,
Tis Hazari Court, Delhi. ...........Respondents
Date of Institution : 18.10.2012
Date of reserving the order : 13.09.2013
Date of Pronouncement Order : 27.09.2013
ORDER
1. This Revision Petition has been filed by the complainant Mrs. Indu against the order dated 18.07.2012 by which the accused Narender Singh was discharged in FIR No. 363/03.
2. The issue involved in this case is very simple, as to whether in the given situation respondent No. 2 accused can be charged under C.R. No. 42/12 Indu vs. State & Ors. 1 /14 Section 193 IPC or not.
3. Facts of the case which give rise to the filing of the present revision are a little chekered. Revisionist and her husband namely, Pankaj got married on 04.10.1997. They lived together till 31.03.2003 and on that day, one lady Pooja came to their house and claimed herself to be wife of Pankaj with whom she had married on 09.12.2002. She also informed the revisionist that Pankaj had already divorced the revisionist Indu on 04.04.2002 and obtained an ex-parte decree of divorce from Jaipur Court. Revisionist claimed no knowledge about the said ex-parte decree and got an FIR No. 363/03 registered against her husband Pankaj under Section 376 and 493 IPC on the ground that despite obtaining a decree of divorce on 04.04.2002, Pankaj continued to have sexual intercourse with her. Challan was filed in the said case and charge under Section 376/493 IPC was framed against Pankaj on 21.03.2005. Pankaj preferred a revision against the order on charge before the Hon'ble High Court but the same was dismissed on 24.04.2007. In the meanwhile, it transpired that the present respondent No.2 Narender Singh, who was C.R. No. 42/12 Indu vs. State & Ors. 2 /14 a Process-server in Tis Hazari Courts, had submitted a service report on 05.11.2001 on the summons received from Jaipur Court regarding service on the present revisionist Indu. The revisionist maintained that on 05.11.2001, she was in her office, being a government servant, and she was never served with any notice from the Jaipur Court and her signatures were obtained by her husband on the said summons fraudulently. Major penalty disciplinary proceedings were held by the competent authority under the CCS(CCA) Rules against respondent No.2 Narender Singh, and the charge was proved against him. Vide order dated 29.08.2006, punishment of withholding of five increments was inflicted upon the respondent No.2. However, before the said order could be passed, the revisionist wrote to SHO, P.S. Mehrauli for taking action against the respondent No.2 in accordance with law as he had fabricated a false report before the Jaipur Court in the aforesaid divorce proceedings against her. However, on the said complaint, Police filed a supplementary charge-sheet giving clean chit to the respondent No.2 Narender Singh but, the said supplementary charge-sheet was not accepted by the court and vide order dated 21.06.2007, respondent No.2 was summoned to face trial C.R. No. 42/12 Indu vs. State & Ors. 3 /14 for the offence under Section 193 IPC. Respondent No.2 challenged the summoning order before the Sessions Court but the said challenge was turned down vide order dated 11.04.2008. Dis- satisfied, Respondent No.2 took the matter to the Hon'ble High Court but there too his revision against the summoning order was dismissed vide order dated 03.07.2008. In the meanwhile, an order dated 07.05.2008 was passed and the matter pertaining to Respondent No. 2 was committed to the Sessions Court as the main charge-sheet under Section 376/493 IPC was pending trial before the Sessions Court and accordingly, on 27.11.2008, FIR under Section 376/493 IPC against Pankaj and an offence under Section 193 IPC against Narender Singh were clubbed together. However, on 30.07.2010, Ld. Sessions Court sent back the proceedings under Section 193 IPC to the Ld. Magistrate and this order was challenged by the revisionist before the Hon'ble High Court. However, before the said revision could be decided by the Hon'ble High Court, the impugned order came to be passed on 18.07.2012 whereby the respondent No.2 Narender Singh was discharged by the Ld. Magistrate and in the circumstances, the revisionist withdrew the revision petition filed before the Hon'ble C.R. No. 42/12 Indu vs. State & Ors. 4 /14 High Court against the order dated 30.07.2010, with liberty to revive the same, subject to decision of revision proposed to be filed by her against the impugned order dated 18.07.2012. This is how the present revision has been filed by the complainant Indu.
4. Grievance of the revisionist/complainant is that at the stage of framing of charge, only a prima facie case is to be seen against an accused and there is sufficient material on record to form such an opinion, more so when the summoning order of the respondent No.2 Narender Singh under Section 193 IPC was upheld, firstly by the Sessions Court and then by the Hon'ble High Court. It has been stated that while passing the order of punishment in the departmental proceedings against the respondent No.2, the original records were summoned from Jaipur Court and they were perused and after satisfying himself that the accused Narender Singh had caused manipulation in the summons on 05.11.2001, penalty of withholding of five increments was handed out to him. It has been stated that the presence of the revisionist in her office on 05.11.2001 was also proved by Sh. B.S. Negi - Principal but the same was not relied upon C.R. No. 42/12 Indu vs. State & Ors. 5 /14 by the Ld. Trial Court in the impugned order.
5. Ld. Counsel for the respondent No.2 Narender Singh, on the other hand, vehemently opposed the revision petition. Firstly, it was argued that no revision can be filed in a state case by a complainant. Secondly, Delhi Courts had no jurisdiction to entertain such complaint of the complainant as the decree of divorce in question was passed by Jaipur Court and she ought to have filed such a complaint, if any, before the Jaipur Court. It was also argued that the disciplinary proceedings conducted cannot be looked into by the revisional court. One more argument is that a private complaint for an offence under Section 193 IPC is not maintainable and the cognizance for such an offence can be taken only if the complaint is filed by the court.
6. I have heard both the parties and have perused the records of the case including the TCR which too was summoned. In short, the allegations against the respondent No.2 Narender Singh were that he had filed a false report before the Jaipur Court inasmuch as summons C.R. No. 42/12 Indu vs. State & Ors. 6 /14 were stated to be served on the revisionist on 05.11.2001 at 12:00 noon whereas the revisionist has claimed that on the said day, she was in her office at 12:00 noon and that the Respondent No.2 never served her any summons and that her signatures were obtained on the said summons by her husband fraudulently. The effect of the said report is that Jaipur Court passed an exparte decree of divorce against the revisionist. It is the case of the revisionist that her husband Pankaj and she, always lived at Delhi, although, Pankaj at times used to go to the Jaipur for the purpose of his business and stayed there in hotel and filing of the case by him at Jaipur Court was only with an object of keeping her in dark. It has been stated that the respondent No.2 Narender Singh was the Process-server and he marked the said process to himself and without ever servicing the said summons upon her, he submitted a report to the effect of serving her on 05.11.2001 at 12:00 noon before the Jaipur Court. The respondent No.2 was dealt with departmentally and a major penalty charge-sheet was served upon him, which culminated into the penalty of withholding of 5 future increments of respondent No.2 Narender Singh. Before passing the penalty order, the concerned authority had satisfied C.R. No. 42/12 Indu vs. State & Ors. 7 /14 himself by calling the original records from Jaipur Court and he himself perused the said report dated 05.11.2001 given by accused Narender Singh regarding service of the revisionist on 05.11.2001 at 12:00 noon.
7. So far as first objection raised on behalf of accused Narender Singh is concerned, the same relates to locus standi of the complainant to prefer the revision in a State case. Reliance has been placed on the judgment of K. Pandurangan vs. SSR Velusemy, 2003 Crl. L. J. 4964 (SC). However, a perusal of the said judgment in Para 6 shows that court has suo motu power of revision under Cr.P.C, 1973, and if that is so, the question of said jurisdiction being invoked at the instance of an outsider would not make any difference as the jurisdiction can be invoked by the Court itself or at the instance of third party. Section 397 of Cr.P.C confers the power of revision of High Court and any Sessions Court which may call for the records of any proceedings before any inferior criminal court within its local jurisdiction for the purpose of satisfying itself about the correctness etc of any sentence or order. According to the Code, equal powers C.R. No. 42/12 Indu vs. State & Ors. 8 /14 are conferred on the High Court and the Sessions Court so far as the power of calling for the records of the subordinate criminal court is concerned u/s 397. As such, on the same analogy as recorded by the Hon'ble Supreme Court in the case of Pandurangan, it would not make any difference if the said power of revision is exercised by the Sessions Court itself or at the instance of the complainant. The objection regarding maintainability of the present revision has thus no merit.
8. Regarding the objection with respect to territorial jurisdiction, same is also without merit as the alleged report was prepared at Delhi by accused Narender Singh and hence a complaint with regard to the said report being false can very well be filed before the court at Delhi.
9. Yet another objection was raised with respect to the disciplinary proceedings that the same cannot be looked into in revisional jurisdiction by this court. Again the objection is zealous in nature. The inquiry proceedings are a part of the Trial Court Record C.R. No. 42/12 Indu vs. State & Ors. 9 /14 and when the revisional court has power to call for the TCR, it cannot be said that a part of the TCR which consists of the disciplinary proceedings, cannot be looked into by this court.
10. One more objection which was raised is that a private complaint with respect to an offence under Section 193 IPC cannot be maintained, unless a complaint is made by the concerned court. However, even this objection is without merit as the said objection was also raised by the respondent No.2 Narender Singh before the Hon'ble High Court and the same was turned down in order dated 03.07.2008 by the Hon'ble High Court. Respondent cannot re-agitate the same issue again and again.
11. One more objection, which has been raised on behalf of respondent No.2 is that the Ld. Trial Court had no jurisdiction to summon accused Narender Singh when no charge-sheet was filed against him by the prosecution. He has stated that power to summon a person other than the accused can be exercised by the court only under Section 319 Cr.P.C and the said stage had not reached before C.R. No. 42/12 Indu vs. State & Ors. 10 /14 the Trial Court and hence the summoning of the accused by the Trial Court is not in accordance with law. The said objection raised is bereft of merit. The accused had challenged the order of summoning firstly before the Sessions Court and then the Hon'ble High Court and at both the forums, he was unsuccessful and, therefore, it does not lie in the mouth of the accused now at this stage to re-agitate the summoning by the Ld. Trial Court.
12. Now coming to the impugned order, it is noticed that the Ld. Trial Court has passed the said order in oblivion of previous proceedings which took place in this case right upto the Hon'ble High Court and passed the impugned order in a mechanical manner. There is no mention in the entire impugned order as to for what offence the charge was to be framed against the accused Narender Singh. The order only takes into consideration the supplementary challan which was filed by the police wherein the police had given a virtual clean chit to accused Narender Singh. Ld. Trial Court has ignored the order dated 21.06.2007 by which the accused Narender Singh was summoned to face trial under Section 193 IPC. Ld. Trial Court also C.R. No. 42/12 Indu vs. State & Ors. 11 /14 ignored the order dated 11.04.2008 passed by the Ld. Sessions Court whereby challenge to the order of summoning by accused Narender Singh was turned down. Ld. Trial Court ignored yet another order dated 03.07.2008 of the Hon'ble High Court by which the summoning order of accused Narender Singh for facing trial under Section 193 IPC was upheld. In complete oblivion of these three orders, the Ld. Trial Court passed the order in question, discharging the accused. Ld. Trial Court did not agree to the departmental proceedings wherein the accused was held guilty and was inflicted with a punishment withholding of 5 increments. The finding is written in the impugned order that the original report was not considered in the departmental proceedings. This finding is contrary to record as Sh. Vinod Yadav, Administrative Civil Judge in his order had recorded that he himself called for the records from the concerned court and perused the same, including the original report of the delinquent official and the court's proceedings. Ld. Trial Court, although, took into consideration the statement of Sh. B.S. Negi - Principal, according to whom, the revisionist Indu was present on her duty on 05.11.2001 during office hours from 08:00 a.m to C.R. No. 42/12 Indu vs. State & Ors. 12 /14 05:00 p.m but stated that this statement in itself cannot form the basis of raising grave suspicion against the accused. Ld. Trial Court failed to notice that there are other circumstances which read with the statement of a Principal do give rise to a grave suspicion against the accused.
13. Legal position regarding framing of charge as summed by Hon'ble Mr. Justice Vipin Sanghi in the case of Sajjan Kumar vs. CBI in Judgment dt. 19.7.2010 is clear that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence for arriving at a conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then the charge has to be framed. If on the basis of the material on record, the Court could form an opinion that the accused might have committed the offence, it can frame the charge. At the time of framing of the charge, the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage.
C.R. No. 42/12 Indu vs. State & Ors. 13 /14 Before framing the charge, the Court must apply its judicial mind to the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided at the trial.
14. There is thus enough material on record to sustain framing of charge against the accused u/s 193 IPC. As such, the impugned order discharging the accused cannot be sustained in the eyes of law. The impugned order dated 18.07.2012 is, therefore, set aside with the directions that charge u/s 193 IPC be framed against the accused/Respondent No. 2.
15. TCR be sent back to the concerned court alongwith a copy of this order.
16. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated: 27.09.2013 ASJ-3/South District
Saket Courts, New Delhi
C.R. No. 42/12 Indu vs. State & Ors. 14 /14