Delhi District Court
Kavita Devi vs Raj Kumar on 23 May, 2022
IN THE COURT OF SHRI GAGANDEEP SINGH : SPECIAL JUDGE (NDPS):
NORTH DISTRICT: ROHINI COURTS : DELHI
CRIMINAL APPEAL No. 61/2022 (DLNT010033752022)
1. Kavita Devi
W/o Manoj Kumar Sharma
2. Manoj Kumar Sharma
S/o Sh. Bhola Sharma
Both R/o Jhuggi No. 61, B Block
Phase IV, Sahabad Dairy
Sector26, Rohini, Delhi110042 ...Appellants
V.
1. Raj Kumar
2. Azima W/o Raj Kumar
3. Naspa
All R/o Jhuggi Infrot of 61, B Block
Phase IV, Multani Camp, Shahbad Dairy
Delhi ...Respondents.
Date of Institution : 26.04.2022
Arguments Heard On: 09.05.2022
Judgment Passed On : 23.05.2022.
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JUDGEMENT
1. This is a criminal appeal under Section 372 of CrPC preferred by the appellants (Complainants before the Ld. Trial Court) against the impugned order dated 04.04.2022 in the complaint case bearing No. 4186/2020 passed by Ld. MM06, North District, Rohini Courts, titled 'Kavita Devi & Ors. V. Raj Kumar & Ors. whereby complaint of the appellants/complaint was dismissed on the point of maintainability
2. The facts in brief of the appeal as pleaded are complainants as well as the respondents/accused persons are the resident of same area. The respondents are having criminal record and on 06.09.2020, the accused persons/respondents stopped the appellants as well as deceased from taking water from the common water point in the nearby locality. The respondents started abusing the the whole family family of the victims/appellants. The appellants/victims left the point in order to avoid the quarrel. On the same evening at about 9:30 p.m, the respondents/respondent after proper planning barged into the house of the complainants where appellant no.2/complainant no.1 was coooking and deceased was sitting when accused persons attacked complainant no.2/appellant no.2 while respondent Azima and Naspa caught hold of him and accused Sahil attacked deceased Sanjay Sharma with with knife. The appellants/complainant and Deep Narayan ( Brother of the deceased) took deceased to Ambedkar Hospital. In the meanwhile, respondent no.2 and 3 started washing blood with water and broom. Accused Sahil ran away from the spot. Injured Sanjay Sharma succumbed to the injuries. The appellants made complaint against accused persons/respondents herein namely Raj Kumar, Azima and Naspa, but the appellants have been advised to approach the Sessions Page 2/5 Court by moving appropriate application. The appellants, thereafter, filed the complaint under Section 200,210 and Section 190 of CrPC against the accused persons/respondents herein with prayer to add the name of said accused persons/respondent in the FIR No. 451/2020 PS Bhalswa Dairy and a proper and fair inquiry be initiated.
3 But the Ld. Trial Court after the calling the Status report from the IO dismissed the complaint on the point of maintainability.
4. The said impugned order has been challenged on the following grounds :
(I) The Ld. Trial Court has not taken the present complaint seriously and not followed the criteria laid down by the Hon'ble Supreme Court regarding maintainability of the complaint and procedure to be adopted.
(II)The Ld. Trial Court has also failed to appreciate the seriousness of the crime and passed a bald order without any reasoning behind it.
(III) The impugned order speaks of its own that the Ld. Trial Court has not conducted the trial under Section 210 Cr.P.C and the impugned order is the miscarriage of justice and based on conjectures and surmises.
The Ld counsel for the appellant also placed reliance upon the judgment in case titled State of M.P. V. Mishri Lal (dead) & Ors. (2003) 9 SCC 426.
5. I have heard and considered the contentions of the parties and have also perused the material placed on record.
Page 3/56. The matter is at the stage of admission of the present appeal. Notice upon the appeal is yet to be issued the respondents herein as maintainability issue of the present appeal filed under Section 372 of Cr.P.C needs to be considered first .
7. As far as the grievance of the appellants being the complainant in a State case titled State V. Sahil, bearing FIR No. 451/2020 under Section 302 IPC of P.S Shahbad Dairy is concerned, he filed the separate complaint under Section 200 read with Section 190 Cr.P.C being not satisfied with the investigation . The record also reflects that the said incident also led to the registration of the FIR No. 451/2020 for which the chargesheet is already filed for the offence under Section 302 IPC. Only one person namely Sahil has been chargesheeted and the appellants herein are praying for prosecution and trial of three other offenders namely Raj Kumar, Azima W/o Raj Kumar and Naspa (Respondent No.1, 2 and 3 herein). The said request of the appellants was not considered by the Ld. Trial Court (rightly or wrongly so ) on the ground of chargesheet being already filed and the complaint was dismissed. But the merits of the said appeal is not the issue herein .
8. The present appeal is stated to have been filed under Section 372 Cr.P.C and the said provision is reproduced hereunder:
372. No appeal to lie unless other provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
(Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court ) Page 4/5
9. It is, thus, apparent from the said statutory provision that the appeal shall lie only if the law of the land provides for the same. In the present case in hand, Chapter 29 of Code of Criminal Procedure prescribes for the appeals from Section 372 to 380 Cr.P.C and only in case the case of the appellant is covered under the abovesaid provisions, the present appeal shall be stated to be maintainable. It has already been observed that the present appeal is against the impugned order dated 04.04.2022 whereby the separate complaint registered under Section 200 read with Section 190 Cr.P.C has been dismissed. It is neither a acquittal or conviction of offenders order .No finding qua the culpability of the offender sought to be prosecuted on behalf of the complaiants herein has been given by the court of Ld MM and complaint has been dismissed only on technical ground only .None of the provisions of chapter 29 of the CrPC covers the present appeal . The judgment relied upon by Ld. Counsel for the appellants is not applicable herein being distinguishable on facts.
10. In the light of the abovesaid reasons, it has to be held that the present appeal is not maintainable being not covered within the scope of Code of Criminal Procedure , 1973. The appeal is accordingly dismissed. It is, however, clarified that nothing has been expressed herein qua the averments made in the present case. The appellants may approach the concerned court qua redressal of their grievances against the impugned order as per law .
TCR be sent back with a copy of this order.
Appeal file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
On 23.05.2022 Special Judge (NDPS):
North, Rohini Courts, Delhi
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