Delhi District Court
Garima Gupta vs State on 28 March, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04, CENTRAL,
TIS HAZARI COURTS, DELHI.
CNR No. DLCT01-002437-2024
CR No. 64/2024
Garima Gupta
W/o. Sh. Veenu Bansal
R/o. H. No. 6/8, Lancer Road,
Timarpur, Delhi-54.
.... Revisionist
Vs.
State of NCT of Delhi
Through its SHO
PS Cyber North
.... Respondent
Date of institution of revision : 20.02.2024
Date on which Order reserved : 28.03.2024
Date on which Order pronounced : 28.03.2024
ORDER
1. This is a criminal revision petition u/s. 397 r/w 399 Cr. P.C. filed by the revisionist Garima Gupta seeking setting aside of order dated 15.02.2024 passed by Sh. Sumeet Anand, ld. CMM, Central, THC, Delhi in CR Case No. 10946/2023 in matter titled as 'State vs. Unknown' pertaining to FIR No. 123/2022, u/s. 507/509 IPC r/w 66D/84C of the IT Act, PS Cyber North.
2. The brief facts of the case are that the aforementioned FIR CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 1 of 10 was registered on the complaint of revisionist. After investigation, the IO filed cancellation report stating that there are no evidences on record which prove the allegations of the complainant. The revisionist filed an application before the ld. Trial Court for seeking preservation of CDRs and IPDRs of several persons and after hearing the parties, the ld. Trial Court disposed of the application vide order dated 18.01.2024.
3. Thereafter, another application was filed by the revisionist before the ld. Trial Court seeking supply of additional documents, which was also dismissed by the ld. Trial Court vide impugned order dated 15.02.2024. At the same time, the ld. Trial Court observing that despite giving opportunities, the complainant has failed to file any protest petition till date, closed the right of the revisionist to file protest petition. The matter was then listed for consideration/submission, if any with respect to the cancellation report.
4. Aggrieved by the said impugned order, the revisionist had approached this Court for seeking setting aside of the impugned order dated 15.02.2024 on several grounds which are detailed below:-
(A) Because the impugned order dated 15.02.2024 is erroneous, arbitrary and irrational as the ld. CMM has vaguely closed the right of the petitioner to file the protest petition without appreciating the fact that the same could not be filed unless the petitioner is having knowledge of all the documents.
(B) Because the ld. CMM erred while passing the impugned order as the petitioner has moved an application before the Court to direct the IO to provide complete set of documents, so that the petitioner could file the protest petition. It is apparently clear that the protest petition cannot be filed without perusing the CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 2 of 10 entire documents and with incomplete documents, otherwise, that will also lead to a mere pleading which will ultimately result in dismissal.
(C) Because the documents as asked by the petitioner by way of the application as detailed above are essential and material to indicate loopholes in the faulty and partial investigation done by the IO. (D) Because the ld. CMM erred while passing the impugned order as the notice for the complaint was issued for 29.01.2024 but due to the work suspend by the lawyer on that day, the Counsel for the petitioner could not appear and 08.02.2024 is effective first date for the petitioner.
(E) Because the ld. CMM erred while closing the right of the petitioner to file the present petition as it has gravely prejudiced the right of the petitioner to prosecute her complaint. The said approach is against the principles of law as settled by the Hon'ble Apex Court and Hon'ble High Court.
(F) Because the Hon'ble Apex Court has succinctly laid down the approach to be taken by the Magistrates while dealing with the protest petition and it says that it is the bounden duty of the Court of law that injustice wherever visible must be hammered and the voice of the victim of the crime is dispassionately heard.
(G) Because non filing of the protest petition will lead to travesty of justice and the denial of the said right to the petitioner will not only defeat the justice but also the cancellation report will be decided on the incomplete facts and documents.
(H) Because on 15.02.2024, the matter was only listed for the disposal of the application filed by the petitioner, however, the ld. CMM arbitrarily closed the right of the petitioner to file protest petition without giving any opportunity to the petitioner to file its protest petition.
(I) Because the ld. Trial Court has erred in passing the above order as it is the gross violation of the law and is unsustainable in the eyes of law.
5. During the pendency of the present revision petition, the revisionist approached the Hon'ble High Court of Delhi u/s. 482 CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 3 of 10 Cr. P.C. challenging the order dated 18.01.2024 of the ld. Trial Court. Vide order dated 28.02.2024, the Hon'ble High Court of Delhi disposed of the petition with the observations as detailed below :-
"11. The grievance of the petitioner essentially relates to certain evidences which according to the petitioner would be relevant for deciding the protest petition that may be filed by the petitioner opposing the closure report filed by the State. The petitioner is aggrieved in the manner the investigation has taken place. It is the case of the petitioner that the data, of which the petitioner sought preservation, would be essential for ultimate decision that the Magistrate may take on the closure report filed by the respondent/State.
12. It is not disputed that the investigation in relation to FIR 123/2022 has already been conducted which led to filing of the closure report by the State. In such circumstances, any order of preservation of data would amount to further investigation which prima facie in the opinion of this Court is not permissible.
13. The cancellation report is still pending consideration. The learned CMM after considering the cancellation report can either close the investigation by accepting the closure report or take cognizance under Section 200 CrPC or direct further investigation by the State. However, before any such order is passed, no directions to investigate further can be issued by the learned CMM.
14. It is also not in doubt that the learned CMM while considering the petition for protest can pass further directions that may be necessary for the purpose of deciding the protest petition in a just manner. However, in the absence of any petition for protest of the closure report, I find no infirmity in the order passed by the learned CMM refusing the application for preservation of the CDR and IPDR.
15. The learned counsel for the petitioner, however, points out that in terms of the circular of the Ministry of Communication, Department of Telecommunication, the record of the CDR and IPDR may not be preserved for more than two years. He submits that in such circumstances, if the petitioner succeeds, the investigation may remain incomplete without the relevant evidence.CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 4 of 10
16. Admittedly, the revision petition filed by the petitioner challenging the order dated 15.02.2024, whereby the right of the petitioner to protest was closed by the learned CMM is listed for consideration on 02.03.2024.
17. This Court is of the opinion that to balance the equities it would be apposite to direct the learned ASJ to expeditiously dispose of the revision petition filed by the petitioner.
18. The learned CMM is directed to adjourn the proceedings till the decision is taken by the learned ASJ.
19. No further orders are required to be passed at this stage in the present petition.
20. The petitioner is at liberty to challenge the orders passed by the learned CMM or learned ASJ in case of any grievance.
21. It is made clear that this court has not expressed any opinion on the merits of the case or on the maintainability of the proceedings pending before the learned ASJ. The same be decided on its own merits and in accordance with law.
22. The petition is disposed of in the aforesaid terms."
6. The ld. Counsel for revisionist argued that the right of the revisionist to file the protest petition has been closed by the ld. Trial Court on the second opportunity when the matter was heard on the application for supply of additional documents. It is further argued that the right to file the protest petition is the valuable right of the revisionist which substantially affects the rights and liabilities of the parties and therefore, it cannot be an interlocutory order. It is further argued that the impugned order has finally closed the right of the revisionist and therefore, the order is final in nature qua the filing of the protest petition by the revisionist. It is further argued that the revision is maintainable and in support of his arguments, the ld. Counsel relied upon the CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 5 of 10 judgments of Hon'ble Apex Court in Amarnath and Ors. vs. State of Haryana and Ors., AIR 1977 SC 2185 and Madhu Limaye vs. State of Maharashtra, 1978 AIR 47 and Asian Resurfacing of Road Agency Pvt. Ltd. and Ors. vs. CBI, AIR 2018 SC 2039. It is further argued that the ld. Additional Standing Counsel for the State admitted before the Hon'ble High Court that the CDRs of four mobile and IPDRs of three mobile numbers have already been obtained and placed on record before the ld. Trial Court, however, no such record is available in the trial court file. It is further argued that the additional documents as required by the application of the revisionist, are very much essential for filing the protest petition. It is prayed that the impugned order of the ld. Trial Court may kindly be set aside.
7. The Addl. PP for State argued that there is no error, illegality or irregularity in the impugned order and no interference is called for. It is further argued that the ld. Trial Court has rightly dismissed the application of the revisionist and closed the right to file protest petition as despite numerous opportunities, no protest petition has been filed and the revisionist is trying to delay the proceedings by filing one application after the other. It is further argued that the impugned order is interlocutory in nature and the revision petition is not maintainable. It is further argued that in the given facts and circumstances, in the interest of justice, one opportunity may be granted to the revisionist for filing the protest petition.
8. Arguments heard. Record perused.
9. As far as the question of interlocutory order is concerned, the Hon'ble Apex Court in Amarnath case (Supra), held as CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 6 of 10 follows:-
"It seems to us that the term "interlocutory order"
in sec. 397 (2) of 1973 Code has been used in restricted sense and not in broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory orders so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Sec. 397 of the 1973 Code."
10. The right to file protest petition is undoubtedly a precious and important right of the complainant. By no stretch of imagination that it cannot be said that the closure of right to file the protest petition does not affect the substantial rights and liabilities of the parties. Thus, this Court is of the considered view that the impugned order is not interlocutory order in nature and the present revision petition is maintainable.
11. In the present case, the arguments of the revisionist are two folds. Firstly, the impugned order is challenged for the reason that the application seeking supply of additional documents has been dismissed by the ld. Trial Court and secondly, that the right to file the protest petition has been closed.
12. As far as the former argument is concerned, it is pertinent to observe that initially an application was filed by the revisionist before the ld. Trial Court seeking preservation of CDRs/IPDRs of certain phone numbers and the said application was disposed of by the ld. Trial Court. The CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 7 of 10 revisionist challenged the said order of the ld. Trial Court before the Hon'ble High Court of Delhi and vide order dated 28.02.2024, the Hon'ble High Court of Delhi also disposed of the petition stating that in the absence of any petition for protest of the closure report, no infirmity is found in the order passed by the ld. CMM refusing the application for preserving of the CDRs and IPDRs. Thus, the contention of the revisionist was put at rest by the Hon'ble High Court of Delhi regarding the CDRs and IPDRs.
13. Interestingly, when the revisionist could not succeed in his application for preservation of CDRs/IPDRs, she moved another application for supply of those CDRs/IPDRs which came to be dismissed by the ld. Trial Court by the impugned order. It is settled preposition that the thing which cannot be done directly, cannot be allowed to be done indirectly. Even otherwise, it is not in dispute that all the documents which were filed alongwith charge-sheet have already been supplied to the revisionist. By way of the second application, the revisionist is seeking certain record, the application regarding preservation of which has already been dismissed and the controversy was set at rest. The question whether additional documents/evidence is required is to be adjudged by the ld. Trial Court while deciding the protest petition, if any, of the complainant and while considering the cancellation report filed by the investigating agency.
CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 8 of 1014. At the time of considering the protest petition, if any, or the cancellation report, the ld. Magistrate has the following options :-
(1) To accept the cancellation report and to close the investigation.
(2) Take cognizance on the cancellation/closure report. (3) Take cognizance on the original complaint/protest petition u/s. 200 Cr. P.C. (4) To direct the further investigation.
15. Before coming to the stage of considering the protest petition, if any/cancellation report, any order asking the investigating officer to collect additional documents/information would amount to further investigation, the stage of which has still not arrived. Thus, the impugned order regarding dismissing the application of the revisionist for supply of additional documents is found to be a legal and sound order.
16. As far as the closure of right to file the protest petition by the revisionist is concerned, there are no two views that it is an invaluable right which has accrued in favour of the complainant as the investigating agency has chosen to file cancellation report. The impugned order reflects that the ld. Trial Court has abruptly closed the aforesaid right of the revisionist while deciding the application for supply of additional documents. Though there is apparently some delay on the part of the revisionist to file the protest petition but the order-sheets also reflect that on one of the date before the ld. Trial Court i.e. on CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 9 of 10 29.01.2024, the ld. Members of Bar were reportedly abstaining from work, which cannot be attributed to the revisionist. Thus, in the interest of justice, the revisionist is allowed to file protest petition before the ld. Trial Court within a period of one week from the date of this order. The impugned order is partly set aside only to this extent.
17. The revision petition stands disposed of in above terms.
18. Copy of this order be sent to the Ld. Trial Court alongwith the TCR for information and necessary action.
19. Copy of this order be also supplied to the revisionist.
20. Revision file be consigned to Record Room.
Digitally signed SUSHIL by SUSHIL ANUJ TYAGI Pronounced in open court ANUJ Date: on 28th day of March, 2024 TYAGI 2024.03.28 16:28:32 +0530 (SUSHIL ANUJ TYAGI) Additional Sessions Judge-04, Central, Delhi, THC, Delhi. CR No. 64/2024 Garima Gupta vs. State and Anr. Page No. 10 of 10