CRL.M.C./2172/2016 of DURGA DEVI Vs STATE OF GOVT. OF NCT OF DELHI & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : November 03, 2016

+CRL.M.C. 2172/2016DURGA DEVI

..... PetitionerThrough:Mr. Jawahar Singh, Advocate

versus

STATE OF GOVT. OF NCT OF DELHI & ORS.

..... RespondentsThrough:Ms. Meenakshi Chauhan, AdditionalPublic Prosecutor for the State withSub-Inspector Sandeep Kumar, PoliceStation Mehrauli, DelhiMr. Subhash Chand Budhiraja,Advocate for respondent No. 2Ms. Sunita Ojha, Ms. AkankshaJotriwal, Advocate for respondentNo.3

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S.TEJI, J.

1.By this petition filed under Article 227 of the Constitution ofIndia read with Section 482 of Cr. P.C. the petitioner is seeking anorder thereby quashing the impugned order dated 18.08.2015 passedbylearnedAdditionalSessionsJudgeinCriminalRevisionCrl. M.C.No.2172/2016Page 1 of 10

No.30/2015, vide which the revision petition preferred by thepetitioner was dismissed and the order passed by learned MetropolitanMagistrate summoning the petitioner in complaint being CCNo.146/01/09 for the offences punishable under Section 323 & 341 ofIPC was upheld.

2.In brief, the facts of the case are that when the complainant wasgoing to withdraw his pension through bus plying on route No.533 andwhen he deboarded the bus at Adhchini bus stop, the petitioner hereinstarted beating him with sandal/chappal from his behind. Thepetitioner is also alleged to have abused the complainant in filthylanguage. The complainant raised alarm whereupon public personsgathered to save him and call on 100 number was made by oneRakesh Kumar after which PCR van arrived at the place of incident.The complainant and petitioner were taken to Police Station HausKhas, where the complainant was advised to approach Police StationMalviya Nagar. Statement of the complainant was recorded at PoliceStation Malviya Nagar. Since no action was taken on the complaint,the complainant made complaint to the public grievance commissionand letter was written to Additional Commissioner of Police(Vigilance). complaint under Section 200 of Cr.P.C. was filedagainstthepetitionerforcommittingoffenceunderSection323/341/500 IPC as well as against SHO of Police Station MalviyaNagar for not taking action on this complaint. On 18.01.2009, ASIGopi Chand of Police Station Malviya Nagar recorded the statementof the complainant. Finding the statement of the complainant duly

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corroborated with the various complaints made by him to the variousauthorities, the learned Metropolitan Magistrate, prima facie found thesufficient material for summoning the petitioner for the offence underSection 323/341 of IPC. However, due to lack of any specificallegation the petitioner was ordered to be summoned for offenceunder Section 323/341 of IPC.

3.AggrievedbytheaforesaidorderpassedbylearnedMetropolitan Magistrate thereby summoning the petitioner for theaforesaid offences, the petitioner filed criminal revision petitionbefore the Court of learned Additional Session Judge. The petitionerraised her contentions regarding delay in lodging the complaint, andmisrepresentation of the true facts by the complainant before thelearned Metropolitan Magistrate. The learned Additional SessionsJudge vide order dated 18.08.2015, dealing with all the avermentsmade by the petitioner, dismissed the criminal revision preferred bythe petitioner while upholding the order of summoning the petitionerpassed by learned Metropolitan Magistrate in CC No.146/1/09 for theoffence punishable under Section 323/341 of IPC. Aggrieved by thesame, the petitioner preferred the present petition before this Court.

4.Learned counsel for the petitioner contended that the petitionerhad preferred petition for quashing the cognizance of offence takenagainst her vide order dated 17.12.2014 and the same is still pendingbefore the learned Metropolitan Magistrate – 02/SD. The petitionerhas prayed for taking cognizance of all her complaints made against

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the various authorities and for registration of case of molestationcommitted by the complainant on 03.09.2009. The petitioner hasreferred various contentions regarding lodging and filing of variouscomplaints against the complainant (respondent No. 2 herein) inrelation to disputes relating to certain acts at her property.

5.Learnedcounselforthepetitionercontendedthatmererecording of the statement of the complainant does not amount totaking the cognizance of the offence. More so, the petitioner has takenthe ground of limitation in preferring the complaint as well as thealleged molestation by respondent No. 2. To support her contentions,as raised in the petition, the following judgments are relied upon:

i)S.R. Sukumar vs. S. Sunaad Raghuram (Crl. A.No.844of2015arisingoutofSLP(Crl)No.4813/2012;No.844of2015arisingoutofSLP(Crl)No.4813/2012;

ii)S.K.Sinha,ChiefEnforcementOfficervs.Videocon International Ltd. and Ors., (2008) 2SCC 492;Videocon International Ltd. and Ors., (2008) 2SCC 492;

iii)Sheikh Zakir vs. State of Bihar, AIR 1983 SC911;911;

iv)RadhakrishnaNageshvs.StateofAndhraPradesh (Crl. Appeal No.1707 of 2009);Pradesh (Crl. Appeal No.1707 of 2009);

v)State of Punjab vs. Gurmit Singh, (1996) 2 SCC384;384;

vi)Rajinder @ Raju vs. State of H.P. (2009) 16 SCC69;69;

6.Learned counsel for the petitioner further contended that while

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proceeding under Section 200 Cr.P.C. the learned MetropolitanMagistrate recorded the statement of the complainant on 12.05.2010and no other material witnesses were examined and still found primafacie case against the petitioner, which is against the principles of law.Learned counsel for the petitioner has also referred various orderspassed by learned Additional Sessions Judge while hearing therevision petition of the petitioner, which are matter of record and thesame can only be referred in her defence before the appropriate Court.

7.Learned counsel for the petitioner further contended that thelearned Additional Chief Metropolitan Magistrate as well as learnedAdditional Session Judge failed to appreciate the fact that thesummoningofanaccusedhasseriousconsequencesfortheaccused/petitioner as she has to face trial in criminal case which maygo on for years altogether.

8.Learned counsel for the petitioner has also raised the contentionregarding inordinate delay in making the complaint before the learnedMetropolitan Magistrate.

9.On the other hand, learned counsel appearing on behalf ofrespondent No. 2 (complainant) contended that there is no illegality orinfirmity in the order passed by learned Metropolitan Magistrate aswell as by learned Additional Session Judge while upholding the orderof summoning the petitioner in case under Section 323/341 IPC,therefore the present petition filed by the petitioner is liable to berejected outrightly.

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10.I have heard the submission made by both the sides and alsogone through the contents of the petition as well as the impugnedorder passed in this case.

11.After careful scrutiny of the case in hand, this Court isconscious of the fact that the complaint filed by the respondent No. 2relates to the offence under Section 323/341 IPC and there are specificallegations made against the petitioner in the complaint itself. ThisCourt also finds that the petitioner had raised several other incidentsand the complaints made against the complainant (respondent No. 2herein) as well as legal issues regarding issuance of summoning order,which in the considered opinion of this Court can be adjudicatedduring trial. So far as the summoning order passed by the Trial Courtis concerned, this Court is of the considered view that in decidingwhether process should be issued, the Trial Court can take intoconsideration improbabilities appearing on the face of the complaintor in the evidence led by the complainant in support of the allegations.It is also settled principle that the Trial Court has been given anundoubted discretion in the matter and the discretion has to bejudicially exercised by it. In the considered opinion of this Court, oncethe Trial Court has exercised its discretion, it is not for this Court, tosubstitute its own discretion for that of the learned MetropolitanMagistrate or to examine the case on merits with view to find outwhether or not the allegations in the complaint, if proved, wouldultimately end in conviction of the accused.

12.It would be relevant to refer to the decision in Dy. ChiefController of Imports and Exports v. Roshanlal Agarwal and Ors.(2003) 4 SCC 139, wherein the Hon’ble Supreme Court, held asunder:

“9. In determining the question whether any process is tobe issued or not, what the Magistrate has to be satisfiedis whether there is sufficient ground for proceeding andnot whether there is sufficient ground for conviction.Whether the evidence is adequate for supporting theconviction, can be determined only at the trial and not atthe stage of inquiry. At the stage of issuing the process tothe accused, the Magistrate is not required to recordreasons.

xxxxxxx

“The legislature has stressed the need to record reasons incertain situations such as dismissal of complaint withoutissuing process. There is no such legal requirement imposed ona Magistrate for passing detailed order while issuingsummons. The process issued to accused cannot be quashedmerely on the ground that the Magistrate had not passed aspeaking order.”

13.In U.P. Pollution Control Board v. Dr. Bhupendra Kumar

Modi and Anr. (2009) 2 SCC 147, this Court, in paragraph 23, heldas under:

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“23. It is settled legal position that at the stage ofissuing process, the Magistrate is mainly concerned withthe allegations made in the complaint or the evidence ledin support of the same and he is only to be prima faciesatisfiedwhethertherearesufficientgroundsforproceeding against the accused.”

14.This Court observes that the complaint was filed in this caseagainst the petitioner for the offence punishable under Section323/341 of IPC and there are very clear and specific allegationsagainst the petitioner which can be adjudicated during trial of the case.So far as the grounds taken by the petitioner herein are concerned,those are the subject matter of trial and need not to be tried here. Thepetitioner has filed the present petition under Section 482 of Cr. P.C.seeking quashing of the summoning order dated 17.12.2014 passed bythe learned Metropolitan Magistrate, and this Court primarily ought tosee as to whether any prima facie case has been made against thepetitioner or not and in the considered opinion of this court, the courtbelow had found prima facie material available on record to summonthe petitioner.

15.On the point of limitation, the learned Additional SessionsJudge has referred to section 468 of Cr.P.C., which provides limitationfor the complaint under Section 156(3) read with section 200 ofCr.P.C. The admitted fact of the case is that the incident is of02.09.2008 and the complaint under Section 156(3) read with section

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200 of Cr.P.C. was filed on 09.03.2009, and the petitioner issummoned for the offence punishable under Section 323/341 of IPC.Section 323 of IPC provides the imprisonment of either description fora term which may extend to one year or with fine. Therefore, thelearned Additional Sessions Judge has rightly held that the complaintis very well within limitation as section 323 of IPC is punishable withimprisonment which may extend to one year.

16.After going through the contents of the petition as well as theimpugned orders, this Court does not find any illegality or infirmity inthe impugned orders passed by learned Metropolitan Magistrate aswell as learned Additional Session Judge.

17.Resultantly, the present petition filed by the petitioner isdismissed and the petitioner is directed to appear before the TrialCourt and to take appropriate legal remedies as available under thelaw.

18.Before parting with the order, this court would like to place iton record by way of abundant caution that whatever has been statedhereinabove in this order has been so said only for the purpose ofdisposing of the present petition. Nothing contained in this order shallbe construed as expression of final opinion on any of the issues offact or law arising for decision in the case which shall naturally haveto be done by the Trial Court seized of the trial.

19.A copy of this order be sent to Trial Court for information.

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NOVEMBER 03, 2016pkb

(P.S.TEJI)JUDGE

Crl. M.C.No.2172/2016