Delhi District Court
Shamsuddin @ Shammi vs The State Of Delhi on 28 September, 2013
IN THE COURT OF RAMESH KUMARII,
ASJ01, NORTH EAST, KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0347522012
Criminal Revision No. 39/2012
Assigned to Sessions. 10.12.2012
Arguments heard on. 03.09.2013
Date of order. 28.09.2013
IN THE MATTER OF :
Shamsuddin @ Shammi,
S/o Shri Islamuddin,
R/o 161/5, Laxmi Nagar,
Delhi - 110092.
...........Revisionist
Versus
The State of Delhi.
.....Respondent
ORDER:
1. Present revision petition under section 397/399/401 of the Criminal Procedure Code had been directed against the order of Ld. MM, Ms. Sushila Bala Dagar, dated 04.12.2012 along with application for stay of operation of impugned order dated 04.12.2012 and against the summoning and supplementary charge sheet against the present revisionist on the ground that order of ld. trial court is illegal, improper, unjustified, perverse, wrong, against the basic provisions of Crl. Rev. No.39/2012 Shamshuddin v. State. 1/5 law as well as against the settled law by the Hon'ble Supreme Court of India through its various pronouncements and that ld. trial court has passed the impugned order in a very casual and mechanical manner and thereby dismissing the application of petitioner without applied her judicial mind.
2. It is further submitted that ld. trial court has failed to law laid down by Hon'ble Supreme Court of India that summoning order of an accused in a criminal case is a serious matter, criminal law cannot be set into motion as a matter of routine and that trial court has not appreciated the fact that the petitioner has nothing to do with the family affairs of Nadeem or Naimuddin or Jaibun Nisha in any manner and so on many other grounds have been mentioned against in the impugned order int he present revision petition.
3. Ld. counsel for revisionist has pressed his arguments and placed reliance on judgment in case titled "Ladu Devi & another Vs. State of Rajasthan"
reported in 2005 Crl. L.J. 583. Ld. counsel had referred operative para :
"summoning of additional accusedBar or res judicata/issue estoppelapplicabilitycourt on earlier occasion in application S.319 declined to summon petitioners as additional accused revision against that order was dismissedorder hereby attained finalitypetitioners cannot be added as additional accused on basis of supplementary charge sheet submitted by police under section 173principle of res Judicata and issue estoppel would apply".
4. Ld. counsel for revisionist has also placed reference of judgment of Hon'ble High Court of Delhi in case titled "Rakesh Kanojia Vs. State" in Criminal Crl. Rev. No.39/2012 Shamshuddin v. State. 2/5 revision No.782/2010 and criminal Misc. No.18672/2010 decided on 07.02.2012". Ld. counsel for revisionist has also placed judgment of Hon'ble High Court of Delhi in case titled "Neelam Suri v. State" reported in 2008(1) JCC 593 wherein the Hon'ble High Court had set aside the summoning order of the trial who was kept in column No.12 due to insufficient evidence and ld. trial court had summoned without analyzing the evidence placed on record.
5. Ld. counsel for revisionist further relied on the judgment in case title as Lalta v. State of U.P., AIR 1970 SC 1381 which is as under :
28. The essentials of the rule of issue of estoppel are :
(i) the parties in the two proceedings must be same;
(ii)the issue that was decided earlier must be identical with that which is sought to be reagitated.
The issue estoppel applies only when both the earlier and the present proceedings are criminal prosecutions.
29. Thus, it can be concluded that where an issue has been decided by a competent Court on a former occasion, such finding constitutes an estoppel or res judicata against the parties to that proceedings. It may be clarified here that the principle of issue estoppel would not be applicable if the offence for which accused is to be tried subsequently is distinct offence.
30. Therefore, if the above principle of issue estoppel and res judicata is applied to the facts of the present case, it can be said that cognizance against the present petitioners on application under Section 319 Cr.P.C. on the basis of evidence recorded in Court was not taken by the learned trial judge and that order of the learned trial Judge dated 02.09.2003 had become final because revision against the said order was dismissed by this Court vide order dated 24.09.2003 meaning thereby the issue whether present petitioners could be added as additional accused persons or not had been decided by the competent Court on former occasion and therefore, the Crl. Rev. No.39/2012 Shamshuddin v. State. 3/5 findings recorded by the learned trial judge in favour of the present petitioners in the order dated 02.09.2003 rejecting application under section 319 Cr.P.C. which were affirmed by this Court in revision through order dated 24.09.2003, operate as an estoppel or resjudicata against prosecution because the parties in both proceedings are the same and the issue which was decided earlier is the same and identical.
6. On other hand, Ld. APP for the State argued that the order dated 04.12.2012 of Ld. MM is quite good and does not suffer from irregularity, incorrectness and impropriety.
7. Arguments heard. Record perused. On perusal of record, it is revealed that present revision petition is directed against order of Ld. MM dated 04.12.2012 along with application for stay upon which this court had suspended order of ld. MM vide order dated 14.12.2012.
8. It is further revealed that trial court vide order dated 04.12.2012 has dismissed the application for cancellation of NBW of the present applicant/revisionist and court must have given an opportunity to get cancel his NBW. Hence, present revision was filed. Arguments submitted by ld. counsel for revisionist are of not much more relevant nature in respect of order dated 04.12.2012 by ld. MM.
9. Ld. counsel had pressed his arguments on u/s 319 Cr. P.C. and seeking the discharge of present applicant on the ground that since this court had dismissed the application u/s 319 Cr.P.C. against summoning of present applicant. Hence, in these circumstances summoning of present applicant is not proper. Crl. Rev. No.39/2012 Shamshuddin v. State. 4/5
10.On perusal of trial court record where order on application u/s 319 Cr.P.C. find place which reflects that application under section 319 Cr. P.C. was dismissed because ld. trial court had issued summon to the present applicant, hence, application u/s 319 Cr. P.C. was not maintainable.
11.In these circumstances arguments of ld. counsel was not much more relevant for the purpose of discharge of present applicant, however, as far as NBW are concerned opportunity could have be granted to get cancelled his NBW upto the extend of order dated 04.12.2012. Order of Ld. MM dated 04.12.2012 is set aside and revision is allowed upto that extent. At this stage, trial court may summon the present applicant/revisionist. Trial Court record be sent back with a copy of this order. Revision proceedings be consigned to record room. PRONOUNCED IN THE OPEN COURT ON THIS 28.09.2013.
( RAMESH KUMARII ) ADDL. SESSIONS JUDGE01, NE KARKARDOOMA COURTS: DELHI.
Crl. Rev. No.39/2012 Shamshuddin v. State. 5/5