Delhi District Court
Sunil Kumar vs State (Govt Of Nct Of Delhi) on 4 September, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No.7/12
(Unique I.D. No.02406RO089102012)
Sunil Kumar
S/o Sh. Mange Ram
R/o H. No.A-7, Amba Apartment,
Plot No.5, Sector-10, Dwarka, Delhi.
(Working as Sub-Inspector
in Delhi Police) ...........Revisionist
Versus
1. State (Govt of NCT of Delhi)
2. Shree Chand
S/o Late Sh. Ramphal
R/o 471, Chirag Dilli,
New Delhi (complainant)
3. Sunil
S/o Late Sh. Nathi Singh
R/o House No.482, Chirag Dilli,
New Delhi.
4. Anil
S/o Late Sh. Nathi Singh
R/o House No.482, Chirag Dilli,
New Delhi.
...........Respondents
Date of Institution : 19.04.2012
Date of Reserving Order : 13.08.2012
Date of Pronouncement Order : 04.09.2012
C.R. No.7/12 Sunil Kumar vs. State & Ors. 1 /17
ORDER
1. This Criminal Revision has been filed against the order dated 25.8.2011 passed by the Ld. Trial Court. The said Order reads as under:
"File taken up today on application moved on behalf of the complainant seeking modification in order dt. 13.4.2011.
In the present application, it is stated that on 13.04.2011 the case was fixed for summoning of the accused. However, it appears that in the closing part of the order, it has inadvertently been mentioned that both the accused persons be summoned for the next date whereas in this case there are three accused persons.
I have heard the submission of Ld. Counsel for the complainant and also perused the order dated 13.04.2011 and found that inadvertently summons were ordered to have been issued against two accused persons but it has not been mentioned as to against which accused persons the summoning order has been passed. The perusal of the order also shows that it contains nothing which suggest that any of the accused has been precluded from the summoning order.
Therefore the order dated 23.07.2011 be considered as containing names of all the three accused persons and the summons be issued against all of them for the next date. Accordingly, application is disposed of. "
C.R. No.7/12 Sunil Kumar vs. State & Ors. 2 /17
2. It would be advantageous to quote the operative part of the said Order dated 13.04.2011 passed by the Ld. Trial Court, which reads as under:
"I have gone through the record and the statements of CW-1, CW-2 and CW-3. In my view, both the proposed accused persons in this case have misbehaved the complainant and physically manhandled him and also extended threat to kill. Therefore, there is sufficient material on record for summoning the proposed accused persons under Section 342/323/355/34 IPC.
Issue summons against both the accused persons on filing PF for 23.07.2011." (emphasis supplied.)
3. Grievance of the Revisionist is that he was not summoned in the Order dt. 13.4.2011 but without following the due process of law, he has been summoned vide order dt. 25.8.2011 which is an excessive exercise of power by the Ld. Trial court as the Order dt. 25.8.2011 amounts to review of the earlier order and the Ld. Trial Court does not enjoy the power of reviewing its own order under the scheme of the Code. The said order cannot even be modified, is his argument. Further, Ld. Counsel for the C.R. No.7/12 Sunil Kumar vs. State & Ors. 3 /17 Revisionist has argued that the impugned order is also not sustainable in the eyes of law as there was no application u/s 200 Cr PC before the Ld. Trial Court by which it could have entertained the complaint and examined the complainant to pass order for summoning against the Revisionist. It has been stated that once the application u/s 156(3) Cr PC is dismissed by the court, the said application cannot be treated as a complaint u/s 200 Cr PC automatically, in the absence of any specific complaint u/s 200 Cr PC. Next, it was argued that the complainant had prayed for investigation of offence under the Prevention of Corruption Act and the Ld. Trial Judge was not competent to take the cognizance of the offence, which can only be taken by a Special Judge u/s 5 of the Prevention of Corruption Act. Further, it was argued that the complainant had not obtained sanction for prosecution against the Revisionist, as he is a Sub Inspector in Delhi Police and hence he cannot be prosecuted without sanction. On merits, it has been stated that the deposition of CW-5 HC Manphool Singh has not been taken into C.R. No.7/12 Sunil Kumar vs. State & Ors. 4 /17 consideration by the Ld. Trial Court while passing the impugned order summoning the Revisionist which demolishes the allegations of the complainant against him. It has been stated that the impugned Order dt. 13.4.2011 was correct in the sense that the Ld. Trial Court was satisfied that no offence was made out against the Revisionist and hence, it had directed summoning of the other two accused persons namely Sunil and Anil, both sons of Nathi Singh. On these grounds, the revisionist has challenged his summoning.
4. On the other hand, counsel for the complainant/ Respondent No. 2 vehementally argued that the present Criminal Revision is time barred. On merits, it was argued that in the order dt. 13.4.2011, it was not specifically mentioned that the Revisionist is discharged and hence the only corollary to it is that even the Revisionist was summoned but due to a typographical error in the said Order, instead of directing issuance of summons against all the three accused persons, it was C.R. No.7/12 Sunil Kumar vs. State & Ors. 5 /17 mentioned two accused persons. When this came to the notice of the complainant, an application was moved by him before the Ld. Trial Court for modification of the Order dt. 13.4.2011 and in turn, the Order dt. 13.4.2011 was modified on 25.8.2011. As such, it has been argued that there was no review of the order dt. 13.4.2011 but only a modification to this Order was done on 25.8.2011 which is permitted by Section 362 Cr PC. So far as cognizance of the offence under the Prevention of Corruption Act is concerned, it has been argued that no such cognizance has been taken by the court below. Hence, the Criminal Revision has been prayed to be dismissed.
5. I have heard both the learned counsels namely for the Revisionist and for the contesting Respondent - Complainant. Respondents No. 3 & 4 were also accused before the ld. Trial Court and there is no challenge on their behalf to their summoning.
C.R. No.7/12 Sunil Kumar vs. State & Ors. 6 /17
6. So far as limitation for filing Criminal Revision is concerned, the law is settled that the limitation starts to run when the Order, against whom the person is aggrieved, comes to his knowledge {see Rajesh Garg vs. Tata Tea Ltd. 2011 (3) JCC 1892}. Trial Court record shows that the summoning order was first passed on 13.4.2011 for 23.7.2011. On 23.7.2011 Respondents No. 3 & 4 only appeared. The Revisionist was directed to be summoned vide order dt. 25.8.2011. On 30.1.2012, an application for cancellation of NBWs was filed before the ld. Trial Court. So the impugned order came to the knowledge of the Revisionist on 30.1.2012 and it is from this date that the limitation will start to run. As per Article 131 of Limitation Act the limitation is of 90 days for filing a Criminal Revision. The Revisionist filed the Revision on 18.4.2012 and hence the same is within limitation.
7. As noted above, the first argument raised on behalf of the revisionist is that the Ld. Trial Court, after having dismissed the application filed under Section 156 (3) C.R. No.7/12 Sunil Kumar vs. State & Ors. 7 /17 Cr.P.C for investigation of the case, became functus officio as there was neither any complaint under Section 200 Cr.P.C nor any prayer to that effect was made in the application filed under Section 156 (3) Cr.P.C.
8. Trial Court record was summoned and has been perused. Ld. Counsel for the revisionist is right in saying that there is no separate application u/s 200 Cr PC but there is an application filed u/s 156 (3) Cr PC on the record of the Ld. Trial Court. There is however, no order by which the application u/s 156 (3) Cr PC was dismissed by the Ld. Trial Court, unlike claimed by the Ld. Counsel. In this regard, Order dt. 20.3.2007 was passed by the Trial Court to the following effect:
"Matter is fixed today for orders on the app u/s 156(3) Cr PC. In my considered opinion, compt may proceed with the matter as complaint case and if need be enquiry can be got conducted u/s 202 Cr PC. Adj to 4.4.07 for CE."
C.R. No.7/12 Sunil Kumar vs. State & Ors. 8 /17
9. However, argument of the Ld. Counsel as noted above, is without merit. It is trite that a court is not bound to give directions for registration of an FIR and for investigation of the case as and when an application under Section 156 (3) Cr.P.C is filed before it. Court enjoys discretionary powers to allow or not to allow such an application and such decision is to be taken judicially and judiciously. In Vishwanath vs. State of U.P 2009 Cr. L J 149 Allahabad High Court held that it is not that in every case where application under Section 156 (3) Cr.P.C is filed for registration of FIR and investigation of the case that the Magistrate is bound to register the FIR. Ld. Single Judge of the Hon'ble Allahabad High Court relied upon a Division Bench decision of Allahabad High Court in the case of 'Sukhwasi vs. State of U.P.' 2007 (6) ALJ 424 wherein the reference on this point made to the larger bench is as under:-
"Whether the Magistrate is bound to pass an order on each and every application under section 156 (3) Cr.P.C containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by C.R. No.7/12 Sunil Kumar vs. State & Ors. 9 /17 the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?
This reference was answered by the Division Bench as under:-
"The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156 (3) Cr.P.C and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156 (3) Cr.P.C as a complaint."
10. Relying upon the aforesaid observations of the Devision Bench, Ld. Single Judge came to the conclusion that even in cases where prima facie cognizable offence is disclosed from the averments made in the application under Section 156 (3) Cr.P.C in appropriate case according to the facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases, the application under C.R. No.7/12 Sunil Kumar vs. State & Ors. 10 /17 Section 156 (3) Cr.P.C can be treated as complaint.
11. In view of the clear pronunciation of law, it is held that the Magistrate is competent to treat the application filed under Section 156 (3) Cr.P.C as a complaint and if an order under Section 156 (3) Cr.P.C is not passed by the Magistrate, he does not become functus officio, but remains seizin of the cause and can treat the said application as a complaint and can proceed with the same in accordance with law.
12. One more argument which has been raised is that the order dated 13.04.2011 passed by the Ld. Trial Court did not mention the name of the revisionist to be summoned. However, vide order dated 25.08.2011, the order dated 13.04.2011 was modified and the revisionist was summoned by this order and this exercise of jurisdiction by the Ld. Trial Court was without jurisdiction as the Magistrate has no power to review its order. Reliance has been placed on the judgment in case of 'Adalat Prasad vs. Roop Lal Jindal'. Per contra, Ld. C.R. No.7/12 Sunil Kumar vs. State & Ors. 11 /17 Counsel for the respondent/complainant has stated that a court of Magistrate has powers to modify its order under Section 362 Cr.P.C and hence it cannot be said that a court of Magistrate has no powers to review or modify its order.
13. This argument of the Ld. Counsel for the revisionist has substance. Trial Court record shows that vide order dated 13.04.2011 summoning Order was passed and the expression used by the Ld. Trial Court for this purpose is 'issue summons against both the accused persons on filing PF for 23.07.2011.' This Order did not say that all the three accused persons were to be summoned nor did it say as to who were those both accused persons, who were to be summoned. On 23.07.2011, accused Sunil and Anil both sons of Late Nathi Singh appeared with their counsel and their bails were accepted by the Ld. Trial Court. Apparently, there was neither any summoning to the revisionist nor did he appear nor any discrepancy in the order dated 13.04.2011 was pointed out to the court and the matter was posted for further proceedings on C.R. No.7/12 Sunil Kumar vs. State & Ors. 12 /17 21.11.2011. On 02.08.2011, an application for modification of the order dated 13.04.2011 came to be filed on behalf of the complainant whereby summoning of the revisionist was also sought and on this application, the order dated 25.08.2011 came to be passed by the Ld. Trial Court whereby all the three accused persons were directed to be summoned. In the entire Cr.P.C, there is no enabling provision which vests any power in a court to review/modify its own order. There are no inherent powers in a Court of Magistrate which it can invoke to secure the ends of justice. In the absence of such a specific and positive provision, a Court of Magistrate cannot modify its order. Reliance has been placed on Section 362 Cr.P.C to say that the Court has powers to correct any clerical error in its order and the Order dt. 13.4.2011 only suffered from a clerical error to the effect that instead of saying 'all the accused persons', assuming that there were only two accused persons who were to be summoned, Ld. Trial Court summoned 'both the accused persons'. Such an error being only clerical in nature, can C.R. No.7/12 Sunil Kumar vs. State & Ors. 13 /17 very well be corrected by the Court, is the argument of the Ld. Counsel for the Complainant. I am not in agreement with the argument led on behalf of the complainant in this regard. Although, Section 362 Cr PC does enable a Court to correct clerical or arithmetical errors but what is to be seen is whether such correction can be made in any 'Order' or only in a 'Judgment'. Section 362 Cr.P.C falls under Chapter XXVII which deals with 'Judgment'. Summoning in the present case was done purportedly u/s 204 Cr PC which falls under Chapter XV which deals with 'Complaints to Magistrates." Section 362 Cr.P.C is an enabling provision which deals with alteration of 'judgment or a final order disposing of a case' only to the effect of correcting a clerical or arithmetical error. Two expressions have been used in this provision namely 'judgment' and 'final order disposing of a case'. Judgment as is commonly understood is final expression on the decision on merits of case of the parties and is not an order. A judgment is distinguishable from order and it is only a judgment which can be modified to the extent of C.R. No.7/12 Sunil Kumar vs. State & Ors. 14 /17 correction of clerical or arithmetical error and nothing else. It cannot be disputed that the impugned order was not an order by which the case was disposed of. So the impugned order is neither a 'Judgment' nor 'an order disposing of a case'. There is no other provision available in the entire Cr PC under which an order passed by a Court can be modified by it subsequently.
14. All said and done, there is another error in the Order dt. 25.8.2011 and the last para of the said order is reproduced below:
"Therefore the order dated 23.07.2011 be considered as containing names of all the three accused persons and the summons be issued against all of them for the next date. Accordingly, application is disposed of. (emphasis supplied)"
As noted above, by Order dt. 25.8.2011 practically the Order dt. 23.7.2011 was modified to be treated as to carry the names of all the three accused persons for being summoned. By order dated 23.07.2011, the presence of C.R. No.7/12 Sunil Kumar vs. State & Ors. 15 /17 respondents No. 3 & 4 was recorded and they were admitted to bail. Actually no summoning was done by Order dt. 23.7.2011 but it was done by order dt. 13.4.2011.
15. Ld. Trial Court in the present case has modified its order of summoning vide its order dated 25.08.2011 which is not permissible in law. The only remedy, in such a situation, available to the complainant was to approach the superior court for modification of such an order but instead of doing that, the complainant, in his wisdom, moved an application for modification of the order before the same court. Line of action chosen and exercised is improper. The Ld. Trial Court is expected to be more careful in future in passing its order so that such avoidable errors do not creep in its orders.
16. In the net result, the impugned orders dt. 13.4.2011 and 25.8.2011 cannot be sustained in the eyes of law and the same are hereby set aside. The matter is remitted to the Ld. Trial Court for passing the Orders afresh, after C.R. No.7/12 Sunil Kumar vs. State & Ors. 16 /17 taking into consideration the depositions of the complainant and his witnesses and then to pass appropriate orders, in accordance with law.
17. The other objections regarding cognizance of offence under the Prevention of Corruption Act and 'sanction' are not being dealt with since the matter is being remitted for passing orders afresh in accordance with law and this order shall not be treated as an expression of opinion of this court either on these objections or on merits of the case of the parties. It is clarified that the Trial Court is free to proceed further in the matter in accordance with law.
18. TCR be sent back to the Ld. Trial Court concerned alongwith a copy of this order.
19. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal) Dated:04.09.2012 ASJ-3/South District Saket Courts, New Delhi C.R. No.7/12 Sunil Kumar vs. State & Ors. 17 /17 C.R. No.7/12 Sunil Kumar vs. State & Ors. 18 /17