Delhi District Court
Ms. Neeta Chadha vs State on 23 July, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDIL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 15/16 & New No. 54311/16.
23.07.2016
IN THE MATTER OF:
Ms. Neeta Chadha,
S/o Late Sh. Parmanand Chadha,
r/o C2B/30B, Janak Puri, New Delhi.
....... Appellant.
Versus.
1. State.
2. Virender Kak,
S/o Sh. M.L. Kak,
r/o N140, Naya Palam Vihar,
Bijwasan Road, Gurgaon, Haryana.
....... Respondents.
Date of Institution : 03.03.2016.
Date of arguments : 22.07.2016.
Date of Judgment : 23.07.2016.
JUDGEMENT
1. This is an appeal against the order dated 02.02.2016 passed by the Ld. MM, vide which the application u/s. 311 Cr.P.C filed by the appellant has been dismissed and vide the same order, the protest petition filed by the appellant was also dismissed.
2 Aggrieved by the order the appellant has filed the present appeal on the ground that the Ld. Trial Court has failed to appreciate that police officials failed to investigate the matter honestly and sincerely. The father of CA No. 15/16 & New No. 54311/16 Page No1/4 the accused was not made party in the present case. The IO has not recorded the statement of the father of the accused. Ld. Trial Court has framed notice u/s. 354 IPC on 15.11.2006 without considering the fact that Section 509 IPC is also applicable. The complainant had given an application dated 05.07.2004 to the IO/SHO Veena Sharma wherein she had requested the IO to investigate the matter against Sh. Moti Lal Kak, who is father of the accused. It is also mentioned that police has not properly investigated the matter. It is prayed that order dated 02.02.2016 be set aside.
3. Reply to the appeal filed by the respondent no. 2 wherein the contents of appeal were denied. It is mentioned that father of the respondent no. 2 has died on 20.02.2009. The charge has been framed against the respondent no. 2 after following due process of law on 15.11.2006 and both the applications have been filed after a considerable delay. It is prayed that both the applications be dismissed.
4. I have heard Ld. Counsel for the appellant from DLSA, Ld. Chief PP for the State and Ld. Counsel for the respondent no. 2 at length and perused the record of this court as well as trial court record very carefully.
5. Perusal of the Trial Court record reveals that appellant filed an application u/s. 311 Cr.P.C on 29.10.2012 wherein it is mentioned that respondent no. 2 is related to the Jagat Guru Bhagwan Gopi Nathjee Charitable Cultural and Research Foundation (Regd.) and the Vice President of the said foundation i.e. Bhushan Lal Bhan has already been examined as defence witness. Vide application dated 29.10.2012 applicant sought that CA No. 15/16 & New No. 54311/16 Page No. 2/4 Chairperson Sh. Pran Nath Kaul, President Sh. M.K. Zarabi, Secretary Dr. B.L. Pandit and Ex. Joint Secretary Sh. Brijlal Razdan (Raina) be summoned as defence witness.
Perusal of the file further reveals that protest petition has been filed by the appellant on 18.07.2014 mentioning that the investigation has not been conducted properly and fairly. The concerned IO did not record the statement of father of accused. Case under Section 509 IPC is also made out. The complainant had given application to the IO dated 05.07.2004 but the matter has not been investigated properly.
6. In the present case, notice u/s. 354 IPC was framed against the respondent no. 2 on 15.11.2006 and perusal of the Trial Court Record reveals that counsel for the complainant and complainant were present at the time of framing of notice u/s. 354 IPC. After the framing of notice all the witnesses have been examined and the appellant has filed application u/s. 311 Cr.P.C on 07.12.2011 and same was allowed by the Ld. MM on 28.04.2012. Perusal of the Trial Court Record reveals that P.E was closed on 09.07.2012 and the matter was posted for recording statement of accused i.e. respondent no. 2. On 24.09.2012 statement of accused was recorded u/s. 313 Cr.P.C and on 08.10.2012, Bhushan Lal Bhan examined as DW1 and on 29.10.2012 application u/s. 311 Cr.P.C was filed.
I am of the view that after conclusion of prosecution evidence when the mater has been posted for defence evidence the application u/s. 311 Cr.P.C dated 29.10.2012 was filed and the present application was filed at a very belated stage. Moreover, the names of persons to whom the complainant wants to produce as witness are not mentioned in the list of witnesses along CA No. 15/16 & New No. 54311/16 Page No3/4 with the chargesheet. Thus, Ld. MM has rightly dismissed the application u/s. 311 Cr.P.C dated 29.10.2012.
7. The protest petition was filed by the complainant in the year 2014, I am of the view that protest petition is not maintainable when the trial is at the fag end and matter is posted for final arguments. Thus, the Ld. MM has rightly dismissed the protest petition filed by the complainant.
8. In view of the above discussions, I do not find any infirmity or illegality in the impugned order dated 02.02.2016 passed by the Ld. Trial court in Case FIR No. 269/04, PS Janakpuri and it is upheld. The appeal filed by the appellant is without any merits and same is hereby dismissed.
Copy of judgment be sent alongwith TCR. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN
COURT ON : 23.07.2016 (NARESH KR. MALHOTRA)
ASJ5 (West), THC, Delhi.
CA No. 15/16 & New No. 54311/16 Page No. 4/4