Delhi District Court
Revisionist vs State ( Govt. Of Nct Of Delhi) on 22 August, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No.204526/16
ID : DLSE010020332016
Mrs. Shobha Sachdeva
W/o Shri Rajesh Sachdeva
R/o E222, Greater KailashII,
New Delhi
. . . . Revisionist
Through: Shri Narender Kumar
Khetrapal alongwith Shri
Ritesh Khatri, advocates
versus
1. State ( Govt. of NCT of Delhi)
...... Respondent No.1
Through: Sh. M. Zafar Khan,
Addl. Public Prosecutor
2. Ms. Sweety
D/o Late Shri Dev Raj Manchanda,
R/o 8A/18G, Karol Bagh,
New Delhi - 110005
. . . . . Respondent No.2
Through: Shri Vivek Sood, senior
counsel with Shri Karan
Sinha, advocate
__________________________________________________________ Date of Institution : 22.01.2016 Date when arguments were heard : 22.07.2016 Date of Judgment : 22.08.2016 CR No.204526/16 1 of 12 JUDGMENT :
1. Challenge in the present revision petition filed by revisionist under section 397 and 399 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") is to the order dated 28.11.2015 passed by learned Metropolitan Magistrate (in short "MM")08, South East, Saket Courts, New Delhi in case FIR No.709/14 Police Station Amar Colony titled as State Vs. Rajesh Kapoor.
2. Respondent No.2/complainant Sweety gave written complaint dated 15.05.14 against her husband Rajesh Kapoor to SHO Police Station Amar Colony, New Delhi and on the basis of her complaint, FIR No.709/14 under section 420 of The Indian Penal Code, 1860 (in short "IPC") was registered on 26.08.14.
3. Matter was investigated as per law. The investigating officer concluded various stages of investigation in the case and on conclusion of investigation, filed challan in the court of learned MM against accused Rajesh Kapoor. No substantial evidence was found against Neelam Kapoor and revisionist Shobha Sachdeva. Therefore, they were kept in column No.12 of the chargesheet. Accused Rajesh Kapoor avoided to join the investigation in the case. Therefore, NBW and process under section 82 Cr.P.C. was issued against him. Accused Rajesh Kapoor was declared proclaimed offender by learned MM on 26.03.15.
4. On 30.05.15, charge sheet was filed in the court of learned MM by IO of the case. Based on the contents of the chargesheet and documents placed on record, learned MM took cognizance of the CR No.204526/16 2 of 12 offences punishable under section 420/468/471/506/34 IPC. The matter was listed for 03.07.15 for recording statement of complainant under section 299 Cr.P.C.
5. Respondent No.2 / complainant appeared in the court of learned MM on 09.07.15 and sought time to file protest petition with regard to accused persons, who were kept in column No.12 of the charge sheet. She filed protest petition in the court on 06.08.15. Learned MM sought reply on the protest petition from the IO of the case. Vide order dated 28.11.15, learned MM took cognizance against accused Neelam and present revisionist Shobha Sachdeva. The application moved by respondent No.2 for further investigation under section 173 (8) Cr.P.C. was declined.
6. Revisionist, feeling aggrieved by impugned order dated 28.11.2015 passed by learned MM, has preferred the present petition.
7. On notice, respondent no.1 appeared through Additional Public Prosecutor and respondent No.2 made appearance with her counsel to contest the petition. Respondent No.2 also filed formal reply to the petition of revisionist.
8. I have heard the submissions advanced by Shri N.K. Khetrapal, learned counsel for revisionist, Sh. M. Zafar Khan, learned Additional Public Prosecutor for respondent no.1/State and Shri Vivek Sood, learned senior counsel for respondent No.2.
9. It was submitted by learned counsel for revisionist that the impugned order dated 28.11.15 passed by learned MM is illegal, incorrect and improper for various reasons inter alia that learned MM initially took cognizance of the offence only against Rajesh Kapoor on CR No.204526/16 3 of 12 30.05.15, choosing not to proceed against anyone else and posted the matter for recording evidence under section 299 Cr.P.C. He further submitted that the complainant built a new story and filed a fresh protest petition against married sister of Rajesh Kapoor, who was living away from him much earlier before the date of marriage. He further submitted that no evidence was led thereafter. The learned trial court transgressed its jurisdiction. He submitted that learned MM has no power to review its own orders. The learned trial court proceeded to summon the accused only on the basis of protest petition without there being any fresh material or evidence on record and such an exercise is not permissible in law. He argued that the court without any fresh evidence could not have proceeded against the revisionist and mere additional averments in the protest petition should not have been considered. He submitted that impugned order is absolutely perverse and is suffering from illegalities and improprieties causing injustice to petitioner. He further submitted that in her first complaint dated 15.05.14 given by respondent No.2 to police, in the FIR, statement of parties under section 161 Cr.P.C., the complainant levelled allegations only against Rajesh Kapoor. He further submitted that all the allegations made in the case against petitioner are not specific but are vague, absurd, inherently improbable and summoning order based on the same is illegal. He further submitted that the present petitioner had no knowledge as to what promises were made to complainant by Rajesh Kapoor. He further submitted that there is no prima facie case against the petitioner. She did not make any mis representation to respondent No.2/complainant and the findings of CR No.204526/16 4 of 12 learned MM in this regard are perverse and are not based on record. He submitted that complainant cannot be permitted to abuse the process of law in the name of protest petition. He submitted that the impugned order is illegal as it does not specify that for which offences they are being summoned. He submitted that summoning order dated 28.11.15 against the petitioner on the basis of protest petition which travelled beyond record and wherein new facts and assertions have been made which was not submitted before the investigating officer is thus illegal. He submitted that no such assertions in the protest petition which are new or improvements on her earlier statements could be considered. He prayed to set aside the summoning order dated 28.11.15 passed by learned MM. In support of his submissions, counsel for revisionist relied upon judgments titled as Amitabh Adhar Vs. National Capital Territory of Delhi, 2000 (85) DLT 415; Ashok Chaturvedi Vs. Shitulh Chanchani, 1998 AIR (SC) 2796; Chanduru Siva Ram Krishna Vs. Peddi Ravindra Babu, 2009 AIR (SC) 3250; Chandralekha Vs. State of Rajasthan, 2013 (14) SCC 374; GHCL Employees Stock Option Trust Vs. Indian Infoline Ltd., 2013 AIR (SC) 1433, Anu Gill Vs. State & Anr, 2001 V AD (Delhi) 411 and Vinay Jain Vs. State & Anr., 2015 (2) JCC 1427.
10. Per contra, it was submitted by learned Additional Public Prosecutor for State/respondent No.1 and learned senior counsel for respondent No.2 that the order of learned MM is perfectly right and same has been passed on correct appreciation of material available on CR No.204526/16 5 of 12 record and the same does not call for any interference by this court. It was further submitted that in the complaint dated 15.05.14, it has been clearly alleged that respondent No.2/complainant was cheated into matrimony by Rajesh Kapoor and his sisters. It was further alleged that respondent No.2 and her mother were induced by falsehood and misrepresentation by accused Rajesh Kapoor and his sisters otherwise they would have never agreed to the matrimony alliance. It was further submitted that the sisters of main accused Rajesh Kapoor were party to the cheating. They submitted that the matrimonial alliance between the parties took place with the active participation of both the sisters. The revisionist and her husband acted as parents of the accused and are directors of the fraud. It was submitted that the wedding card, which is on judicial record, has name of revisionist and her husband. The statement of respondent No.2 recorded under section 161 Cr.P.C., statement of pandit and statement of mother of complainant clearly indicate the involvement of revisionist in the matrimonial alliance. Learned senior counsel for respondent No.2 submitted that nature of the offence in the present case is such that it cannot be committed with success without conspiracy, abatement and common intention of the family members of main accused Rajesh Kapoor. They further submitted that the role of petitioner in the matrimonial alliance between the parties and the acts of cheating has been elaborated in the petition under section 156 (3)/200 Cr.P.C., statement recorded under section 161 Cr.P.C. as well as protest petition filed by respondent No.2 in the court of learned MM. It was submitted that the present revision petition is full of factual CR No.204526/16 6 of 12 allegations and counter allegations which would not be gone into at this stage and same are matter of trial. It was submitted that a prima facie case is made out against the petitioner and hence, the summoning order is correct. It was submitted that even a strong suspicion is enough for summoning the accused. Learned senior counsel submitted that the present revision petition preferred by revisionist is not maintainable as revisionary jurisdiction under section 397 Cr.P.C. is very limited. He further submitted that summoning order should not be interfered with only on account of the fact that it does not contain reasons. He further submitted that FIR need not be encyclopedia of facts. Even if an accused is not named in the FIR, his involvement is a matter of appreciation of evidence. In support of his submissions, learned senior counsel for respondent No.2 relied upon judgments titled as Amit Kapoor Vs. Ramesh Chander & Anr (2012) 9 SCC 460; Johar & Ors. Vs. Mangal Prasad & Anr (2008) 2 SCC (Crl.) 89; Bhushan Kumar and Anr. Vs. State (NCT of Delhi) (2012) 5 SCC 424; Kirender Sarkar & Ors. Vs. State of Assam (2009) 12 SCC 342, State of U.P. Vs. Munesh (2012) 9 SCC 742 and Hardeep Singh Vs. State of Punjab & Ors. (2014) 2 SCR 1.
11. I have considered the rival submissions of both the parties, carefully gone through the entire material available on record and also the judgments relied upon by learned counsel for parties.
12. FIR in the case was registered on the basis of written complaint dated 15.05.14 made by respondent No.2 / complainant against CR No.204526/16 7 of 12 accused Rajesh Kappor, wherein she alleged that she was cheated into matrimony and also subjected to mental and physical torture since her marriage dated 22.01.14 by her husband Rajesh Kapoor and his sisters. She further alleged that her husband told his date of birth as 06.10.1975 before the marriage, but after her marriage, she came to know through the sister of her husband that her husband is 50/70 years old. She further alleged that before marriage, her husband claimed to have M. Com. and MBA degree and performing his job as General Manager in Kansal Group situated at Govind Puri and earning about Rs.60 to Rs.70,000/ per month. Rajesh Kapoor is alleged to have represented to complainant that he belonged to reputed family of Amritsar having property in crores. The complainant stated that after marriage, she inquired and found that her husband could not read and write English and he was working as Sales Executive in the said organization and his services were also terminated. She further found that her husband did not have any property at Amritsar. She stated that all the expenses were borne by her even all the medical expenses of his sister. She alleged that she was forced to live under continuing torture and ill treatment up to 31.03.14. She stated that all her belongings are in possession of her husband. Her family is reported to have spent Rs.50 Lacs on her wedding. She alleged that her husband was very hard, harsh, cruel and manipulated. She left her husband's house on 31.03.14 and started living at her parental home. She alleged that her husband and his sisters are blackmailing her by crying and threat of suicide. She further alleged that her husband and her family members prepared false bio data to get the marriage done CR No.204526/16 8 of 12 on the basis of falsehood and misrepresentation.
13. A Court of Session under section 397 Cr.P.C. may call for and examine the record of proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may exercise any of the powers conferred on a court of appeal by sections 386, 389, 390 and 391 of Cr.P.C.
14. In the case in hand, this court is to see as to whether the order of learned MM dated 28.11.15 is correct, legal and has been passed in accordance with law or not. On completion of investigation, the police filed challan in the court of learned MM. Accused Rajesh Kapoor was forwarded to face trial in the case and kept in column No.11 of the charge sheet, while revisionist Shobha Sachdeva was kept in column No.12 of the charge sheet. As per report of investigating officer, no sufficient material was found against Shobha Sachdeva and Neelam Kapoor, therefore, they were kept in column No.12 of the charge sheet.
15. It is well settled principle of law that court takes cognizance of the offence and not of the offender. The accused/offender, who is involved in the case, may not be summoned at initial stage, but he/she can be summoned at later stage during the course of trial. In the case in hand, initially, revisionist was not summoned to face trial in the case. The respondent No.2 / complainant when appeared in the court for the first time on 09.07.15 and came to know that revisionist and CR No.204526/16 9 of 12 Neelam Kapoor were not forwarded to face trial in the case, she immediately filed the protest petition in the court of learned MM. Learned MM after hearing the complainant on the protest petition and the prosecution and after going through the material available on record observed that Neelam Kapoor and Shobha Sachdeva had in fact an active involvement and played an important part in the deception played upon complainant and her mother which resulted into matrimonial alliance between the parties. Therefore, learned trial court was pleased to summon Neelam Kapoor and the revisionist Shobha Sachdeva to face trial. The order of summoning the revisionist, by no stretch of imagination, can be said to be review of earlier order dated 30.05.14.
16. I have gone through the complaint dated 15.05.14 made by complainant to SHO Police Station Amar Colony, statement of complainant and her mother recorded under section 161 Cr.P.C. and other material available on record such as wedding card etc. In her initial complaint itself, the complainant stated that she was cheated into matrimony and also subjected to mental and physical torture throughout her marriage since 22.01.14 by her husband Rajesh Kapoor and his sisters. She further alleged that she and her mother were induced by falsehood and misrepresentation by her husband and his sisters, otherwise they would have never agreed to matrimonial alliance. As per revisionist herself, her father died in 2001 and her mother died in 2011 and she being the elder sister, decided to join the occasions of marriage as she was asked to join those occasions. The name of revisionist and her husband appears on the wedding card.
CR No.204526/16 10 of 12 Respondent No.2/complainant has levelled allegations of cheating, falsehood and misrepresentation not only against her husband i.e. Rajesh Kapoor, but also against the revisionist and Neelam Kapoor (sisters of Rajesh Kapoor). In view of the same, learned MM has rightly summoned the revisionist to face trial in the case.
17. In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, Hon'ble Apex Court held that :
"It is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of accused."
18. For the reasons discussed above, I do not find any illegality, CR No.204526/16 11 of 12 impropriety or perversity in the impugned order of learned MM dated 28.11.15, whereby revisionist has been summoned to face trial in the case. No ground to interfere in the order of learned MM is made out. The present revision petition lacks merit. Hence, the same is dismissed.
19. A true copy of the judgment along with TCR be sent back to learned trial court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 22.08.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No.204526/16 12 of 12