CRL.M.C./5069/2018 of S.R VAISH Vs STATE & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHIReserved on: 6[th]November, 2019Pronounced on: 27[th]November, 2019

+CRL.M.C. 4551/2018 and Crl.M.A.31631/2018, 35622-35623/2018, 5574/2019

SALMAN KHURSHID

..... Petitioner

Through:Mr. Sidharth Luthra, Senior Advocatewith Mr. Aadil Singh Boparai, Ms.Sakshi Kotiyal, Mr. Shivanshu Singh& Mr. Prithvi Narula, Mr. PramodKumarDubeyandMr.KushankSindhu,Advocatesalongwithpetitioner in person.

versus

STATE NCT OF DELHI & ORS...... RespondentsThrough:Ms. Meenakshi Chauhan, APP forState with SI Rakesh Kumar, PS AmarColonyMr. Puneet Mittal, Senior Advocatewith Ms. Vasudha Bajaj &Mr. A.Gupta, Advocates for R-5.

+CRL.M.C. 5069/2018 and Crl.M.A.33507/2018

S.R VAISH

..... Petitioner

Through:Mr. Madhav Khurana, Advocate withMr. Nitin Saluja, Mr. Mudit Gupta,Mr. Varun Singh, Mr. Aman Panwar,Mr. Akshay, & Mr. Harsh G.Advocates

versus

+CRL.M.C. 175/2019 and Crl.M.A.5611/2019

+CRL.REV.P. 950/2018 and Crl.M.A.5601/2019

versus

STATE & ANR

..... Respondents

Through:Ms. Meenakshi Chauhan, APP forState with SI Rakesh Kumar, PS AmarColonyState with SI Rakesh Kumar, PS AmarColony

Mr. Siddharth Luthra, SeniorAdvocate with Ms. Mumtaz Bhalla,Mr. Aadil Bopanai, Ms. Ritika Ahuja& Ms. Vaishali, Advocates for R-2.Advocate with Ms. Mumtaz Bhalla,Mr. Aadil Bopanai, Ms. Ritika Ahuja& Ms. Vaishali, Advocates for R-2.

CORAM:HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1.These petitions arise out of various orders relating to criminalcase pending on the file of the Metropolitan Magistrate, South-EastDistrict at Saket Courts Complex, New Delhi and have given rise tocertain common questions of fact and law and, therefore, on therequest of all parties, have been heard together and are being decidedthrough this common judgment. It may be mentioned here that thecriminal case relates to first information report (FIR) no.421/2015 ofpolice station Amar Colony, which was registered on 31.03.2015, onthe complaint of Rear Admiral M.M. Chopra, described as Vice-Chairman of Delhi Public School Society (“DPS Society”) respectingan incident that had statedly occurred from about 9.30 a.m. onwardson 30.03.2015 in the office of DPS Society located at Block, East ofKailash, New Delhi-110 065.

2.On the allegations made in the complaint dated 30.03.2015which formed the basis of the above-said FIR, the police initially tookit to be case involving offence punishable under Section 448 readwith Section 34 of the Indian Penal Code, 1860 (IPC), reference at that

time having been made to the involvement of Dr. (Mrs.) Sharda Nayak(respondent in Crl. MC 175/2019 and Crl. Rev. 950/2018), sheconcededly being life member of the said society.The initialinvestigation into the said FIR resulted in report dated 18.02.2016(charge-sheet) under Section 173 of the Code of Criminal Procedure,1973 being submitted in the court of the Metropolitan Magistrate on01.03.2016 on the basis of which cognizance was taken for offenceunder Section 448 IPC whereby the afore-said respondent (ShardaNayak) was summoned as an accused.

3.By order dated 01.03.2017, the request of investigating agencyfor“furtherinvestigation”wasallowedbytheMetropolitanMagistrate and this eventually led to supplementary report(supplementary charge-sheet) dated 15.12.2017 being submittedwhereby request was made for prosecution of certain others to beinitiated, they including petitioner Mr. Salman Khurshid (Crl. MC4551/2018) and petitioner S.R. Vaish – also described as SatyajitVaish – (Crl. M.C. 5069/2018), the investigating agency requestingfor cognizance to be taken and trial to be held for offences underSections 419, 451, 474, 120B IPC.

4.Cognizance on the supplementary charge-sheet was taken bythe Metropolitan Magistrate, by order dated 08.01.2018, in terms ofwhich the two above-mentioned petitioners, and one Narender Kumar,were summoned. But, the said order was set aside by this court byorder dated 09.05.2018 in Crl. MC 1589/2018 for the reason the maincharge-sheet had not been considered. The Metropolitan Magistrate

thereafter passed fresh order, this time upon perusal of the maincharge-sheet and the supplementary charge-sheet and by proceedingsrecorded on 04.08.2018 took cognizance and issued process againstthe said three persons summoning them as accused.

5.Meanwhile, the case against the person described as primeaccused (Dr. Sharda Nayak) had come up before the MetropolitanMagistrate for consideration of charge. By order dated 09.06.2017,charge was found made out for putting her on trial for offencespunishable under Sections 416, 451, 467, 471, 474 IPC. The order ledto formal charges being framed on 22.07.2017.The said ordersframing charge, and the charges framed in its wake, were assailedbefore the court of Sessions, its revisional jurisdiction having beeninvoked by petition (Crl. Rev. 493/2017) preferred by respondent Dr.Sharda Nayak. The revision petition was allowed, by judgment dated15.09.2018 of the Additional Sessions Judge, setting aside the order ofthe Metropolitan Magistrate, the respondent Sharda Nayak havingconsequently been discharged.

6.While the State and the complainant (and Society) havechallenged the revisional court’s order of discharge of respondentSharda Nayak by Crl. MC 175/2019 and Crl. Rev. 950/2018, the othertwo accused viz. Mr. Salman Khurshid (petitioner in Crl. MCNos.4551/2018) and Mr. S.R. Vaish (petitioner in Crl. MC 5069/2018)by their respective petitions have brought challenge to the summoningorder passed by the Metropolitan Magistrate in their respect.

7.From the material submitted with the two charge-sheets whichhave been presented pursuant to investigation into the subject FIR itappears that there is substantive evidence available confirming the factthat Mr. V.K. Shunglu (second petitioner in Crl.Rev.P.950/2018) wasthe elected Chairman of DPS Society holding the said office duringthe relevant period, Rear Admiral M.M. Chopra (third petitioner inCrl.Rev.P. 950/2018 – also the first informant) being the ViceChairman. While the former (the then Chairman of DPS Society) wasaway on some foreign visit, the latter (the Vice Chairman) was inIndia and in absence of the former would assumably be looking afterthe duties of the office held by him.

8.Though in the FIR, registered on the complaint of the ViceChairman of DPS society, allegations have been made about trespassinto the premises of its office at about 09:30 a.m. on 30.03.2015, theinvestigation has brought out evidence showing the entry of theaforementioned persons sent up for trial with large group of othersaround 08:30 a.m. and in this regard reference may be made to thestatements (under section 161 Cr.P.C.) of security guards named TutuKumar, Tarni Prasad Singh, Sham Bihari, Abhey Singh, confirmationof their word coming forth in similar statements (under section 161Cr.P.C.) of certain others including Zeenat Khader (Joint Secretary),Komal Yadav (driver), Madan Singh (driver) and Ashwani Kumar(driver).

9.The prosecution relies upon, inter alia, the eye-witness accountof large number of employees of DPS society including Mr. P.K.

Mahajan(DeputyDirector),JaenderSinghVirdi(AdditionalSecretary), Anupama Kumari (Programme Executive), Smt. SunitaMehandiratta(ExecutiveAssistant),SanjeevRanjanPrasad(Accountant), Ratheesan (Accountant), Mohd. Naushad (Accountant),Mr. I.J. Noata (Consultant), Veer Singh Naryal (UDC), Manju Rawat(UDC), Gireesh Chander (LDC), Dharam Singh (peon),and SanjuKumar (safai karamchari), each of whom by their respectivestatements (under section 161 Cr.P.C.) seek to confirm that Dr. ShardaNayak, accompanied by Mr. Salman Khurshid, Mr. S.K. Vaish andMr. Narender Kumar (the three persons additionally sought to beprosecuted), forming part of large group, had entered into the officeof DPS Society and gone into the office room of the Chairman whereDr. Sharda Nayak had proceeded to occupy the official chair of theChairman, declaring to the entire staff that she had taken over as theChairperson of DPS Society. These witnesses also seek to state thatthe said four persons had called the entire staff to the conference roomwhere they were addressed by Dr. Sharda Nayak and Mr. SalmanKhurshid, each of whom had told those assembled that the existingworking Committee of the Society had been dissolved and Dr. ShardaNayak had been elected as the new Chairperson.

10.It may be mentioned here itself that, during the investigationinto the FIR, the police had called upon Dr. Sharda Nayak, by noticesunder section 91 Cr.P.C. to furnish documentary proof, inter alia,about such changes in the Society wherein she may have been electedas the Chairperson, she having responded by reply merely stating

that the required documents were in public domain and could beinspected in the office of Registrar of Societies.

11.It was conceded at the hearing that there had been no suchelections (as was claimed) held preceding the above mentionedincident of 30.03.2015 wherein Mr. V.K. Shunglu, the existingChairman of the DPS Society may have been replaced by Dr. ShardaNayak. In this context, in fact, the learned senior counsel appearingon her behalf (also appearing for Mr. Salman Khurshid) submitted thatDr. Sharda Nayak had been under some “illusion” about her claim tobe the Chairperson of DPS Society.From this, it can be safelydeduced that on the date of the incident i.e., 30.03.2015 Mr. V.K.Shunglu continued to be the Chairman of the DPS Society and theclaim allegedly made at the time of the visit and stay of aforesaidpersons in the office of the Chairman of the said society, during hisabsence, about Dr. Sharda Nayak having been elected as the newChairperson was not only false but baseless to their knowledge.

12.Be that as it may, it must also be noted here that theinvestigation has brought out that during the relevant period, the DPSSociety comprised of nineteen life members. The said nineteen lifemembers included not only the then Chairman and Vice Chairman ofthe society, but also three out of four persons against whomallegations have been made, viz. Dr. (Mrs.) Sharda Nayak, Mr. SalmanKhurshid and Mr. Narender Kumar. It may also be noted here that itwas conceded at the hearing that the grand-father of the fourth accused(S.R.Vaish) had been earlier life member of the said society.

13.From the FIR, registered on the basis of complaint dated31.03.2015 of the Vice Chairman of DPS Society, it is clear that he(the first informant) was himself not present at the scene at therelevant point of time.It appears that the information which heconveyed to the police was based on the facts which he may havegathered from the employees of the society who would have beenpresent, some of whom have been mentioned above.He reported“illegal trespass” into the office of the society by “some personnel”,the locks of the office of the Chairman having been broken, theintruders appearing to be “very dangerous and harmful”, Dr. (Mrs.)Sharda Nayak having “forcibly occupied” the office of the chairmanand having issued orders to the staff and certain others quarters, andon such facts solicited intervention of the police for restraint againstcontinuation of such activities. As observed earlier, the police took itto be case of criminal trespass and registered the FIR forinvestigation only into the offence under section 448 read with section34 IPC. It is inherent in this that it was incumbent on the investigatingpolice to gather evidence by examining all relevant witnesses,particularly such employees as were present on the premises and mayhave seen or heard or otherwise witnessed the events in full or in part.

14.The main charge-sheet which was submitted on 01.03.2016concluded with request for prosecution to be initiated for theaforesaid offence (under section 448 IPC) against Dr. (Mrs.) ShardaNayak. As has been brought out at the hearing by petitioner Mr.Salman Khurshid himself, the first charge-sheet was based primarily

on the statements of Ms. Sunita Mehandiratta (Executive Assistant),Ms. Anupama Kumari (Programme Executive), Mr. Veer SinghNaryal (UDC), Mr. Gireesh Chander (LDC), Ms. Manju Rawat(UDC), Mr. Dharam Singh (peon), Mr. Shyam Lal (peon), Mr. MalbeAbbas (peon), and Mr. Sanju Kumar (Safai Karamchari). The saidcharge-sheet (i.e., the main one) referred to reports of two otherincidents subsequent to the one of 30.03.2015, the first occurring on13.04.2015 and the second on 15.05.2015, the latter (the incident of15.05.2015) forming subject matter of separate FIR No.605/2015involving offences under sections 365/323/342/452/34 IPC of PoliceStation Amar Colony. It was conceded at the hearing that Dr. (Mrs.)Sharda Nayak is also an accused in the criminal case arising out ofsaid other FIR (No.605/2015) which is now pending consideration ofthe charge (post the summoning order) in the same court ofMetropolitan Magistrate.

15.The main charge-sheet referred to the probe into the role ofcertain others, viz., Mr.Manish Gupta, Mr. Kanwar Pal Malik and Mr.Rajiv Maheshwari, they having accompanied Dr. (Mrs.) Sharda Nayakto the office of DPS society on 30.03.2015, the investigating agencyfinding no sufficient material to attribute culpability on their part. Italso stated that Mr. Salman Khurshid and Mr. Narender Kumar (whohave been summoned on the basis of supplementary charge-sheet)being life members of the DPS society had “legal right” to come to itsoffice, no eye witness having made any “specific allegations againstthem” except as to their presence.

16.It appears that the complainant (and DPS society) were notsatisfied with the result of investigation culminating in the charge-sheet as aforementioned, presented on 01.03.2016, for trial only of Dr.(Mrs.) Sharda Nayak to be held, that too on the charge limited to theone for offence under section 448 IPC. protest petition was filed, tothe maintainability of which objections were raised. But, while thesaid matter was pending before the Metropolitan Magistrate, theStation House Officer (SHO) of Police Station Amar Colony, by hisrequest in writing dated 18.02.2017, sought permission of theMetropolitan Magistrate for “further investigation” to be carried out.Taking note of this request, the Metropolitan Magistrate, by her orderdated 01.03.2017, gave go-ahead to the investigating police, whiledeclining to act upon the protest petition which, in the given fact-situation, even otherwise had been rendered unnecessary.

17.Asisclearfrom thenarration of thechronology,thesupplementary charge sheet which was submitted in the wake of“further investigation” in exercise of the power vested in the police interms of section 173 (8) Cr.P.C. has resulted in summoning as accusedof three more persons (two of whom are petitioners before this court),by the impugned order dated 04.08.2018, the third of them (NarenderKumar) having chosen not to challenge the said order till date.

18.It may be noted at the same time that the supplementary charge-sheet had sought prosecution as additional accused not only of the saidthree persons but also of three others (Manish Gupta, RajivMaheshwari and Mr. K.P. Malik), order of the Metropolitan

Magistrate being conspicuously silent in their regard, there being nogrievance raised even by the complainant or the State in this respect.

19.It also needs to be noted again that as result of the cognizancebeing taken on the supplementary charge-sheet, the scope of proposedtrial stands expanded so as to include not merely the offence undersection 448 IPC but also the offences punishable under sections419/451/474 and 120-B IPC. Further, as was conceded at the hearingon these petitions, it is clear that the supplementary charge-sheet isbased, inter alia, not only on the version of witnesses who wereexamined in the initial investigation but also certain others includingMs. Zeenat Khader (Joint Secretary), Mr. Ratheesan (Accountant),Mr. Mohd. Naushad (Accountant), Mr. I.J. Noata (Consultant), Mr.Girish Chand Bhat (LDC), Mr. Komal Yadav (driver), Mr. MadanSingh (driver), and Mr. Ashwani Kumar (driver).

20.To recapitulate, the Metropolitan Magistrate had summoned Dr.(Mrs.) Sharda Nayak as accused, by order dated 01.03.2016, on thebasis of material submitted with the main charge sheet.As notedearlier, by order dated 01.03.2017, she granted the prayer of the policefor further investigation and thereafter directed the matter to come upfor “status report” being submitted on 18.04.2017. The supplementarycharge-sheet was submitted in December, 2017. Even while thefurther investigation was under-way, the Metropolitan Magistrateproceeded to consider – prematurely, in opinion of this court – thequestion of charge against Dr. (Mrs.) Sharda Nayak on the basis of

material presented with the main charge sheet that had been submittedearlier.

21.Byorderdated09.06.2017,theMetropolitanMagistrateconcluded that prima facie case was made out for putting the aforesaidperson (Dr. Sharda Nayak) on trial on charge for offences undersections 416/451/467/471/474 IPC. The said order, and the chargesframed in its wake, have been set aside by the revisional court byimpugnedorderdated15.09.2018.Noticeably,byvirtueofsupplementary charge sheet the evidence gathered therewith had alsocome on record and cognizance had been taken thereupon leading toadditional three accused having been summoned on 04.08.2018. Thefactum of filing of the supplementary charge-sheet is noticed in theproceedings of the revisional court. But then, it is not clear as towhether the revisional court had taken view based on considerationof the evidence in entirety – that is to say as to whether the materialwhich was considered by said forum included the evidence presentedboth with the main charge-sheet and the supplementary charge-sheet.

22.There is, however, no doubt as to the fact that the revisionalcourt’s view, leading to the order of discharge of Dr. (Mrs.) ShardaNayak, is based on scrutiny of the material restricted to the roleattributed to her. It has, inter alia, noted that she was life member ofthe DPS society, and there was no evidence of forced entry as locks ofthe office were not broken. It concluded that there was no case ofcriminal trespass for the reason there was no intent to commit anoffence or to intimidate, insult or annoy any person. It held that no

person had accused her of having made any mis-representation leadingto the offence of cheating, none having been induced to deliver anyproperty or to do or omit to do anything which said person would nothave otherwise done. The revisioanl court has also held that there wasno impersonation indulged in by Dr. (Mrs.) Sharda Nayak inasmuch asshe had signed certain documents (to which reference is made by thecomplainant side) in her own name. It accepted the argument of Dr.(Mrs.) Sharda Nayak that merely signing the said documents in thecapacity of Chairperson of DPS society would not amount toexecution of false document so as to incur liability to be prosecutedon criminal charge of forgery.

23.The learned senior counsel for the DPS Society (which isaggrieved), he being supported by Additional Public Prosecutorpressing the petition of the State, has submitted that the revisionalcourt while directing discharge of Dr. (Mrs.) Sharda Nayak has falleninto error not only by not appreciating the facts and circumstancesbrought out through the evidence that has been presented in light ofcorrect position of law but also by overlooking the additional evidencewhich was presented with the supplementary charge-sheet.

24.Petitioners Mr. Salman Khurshid and Mr. S.R. Vaish, on theother hand, contend that it was unjust and unfair on the part of theMetropolitan Magistrate to act upon the material gathered during“further investigation” with the supplementary charge-sheet since itwas based on, as is their argument, “de novo” or “re-investigation”rather than “further investigation”. It is their submission that the

material submitted with the main charge sheet itself had indicated thatno case was made out against either of them, the evidence gatheredand presented during the supplementary charge-sheet being not worthyof reliance.

25.It is the argument of petitioner Mr. Salman Khurshid that thesummoning order dated 04.08.2018 does not disclose any reasons, andtherefore, it deserves to be set aside, reliance being placed on SunilBharti Mittal vs. CBI (2015) 4 SCC 609. It is submitted that the factthat he (Mr. Salman Khurshid) is life member of the DPS Societycannot be lost sight of and that given his “legal right” to come to thesaid office, he cannot be prosecuted in the present case only becausehe had accompanied Dr. (Mrs.) Sharda Nayak and others to the saidplace. He placed reliance, inter alia, on Vinay Tyagi vs. Irshad Ali,(2013) 5 SCC 762 and Hathi Singh & Ors. vs. State of Rajasthan,(1979) 4 SCC 340. It is his argument that there is no evidence of anyinducement or deceit indulged in by him and the representation thatDr. (Mrs.) Sharda Nayak had become the Chairperson of the societywould not constitute the offence of cheating and for this he relies onMs.AlvernaB.Mcgrathvs.Dr.G.K.Francis&Anr.,Crl.Rev.236/2009 of Madras High Court.It is also his argument,based on rulings of the Supreme Court in Mohd. Ibrahim vs. State ofBihar, (2009) 8 SCC 751, and Sheila Sebastian vs. R. Jawaharaj &Anr., (2018) 7 SCC 581 that there is no case of forgery made outinasmuch as Dr. (Mrs.) Sharda Nayak had used her own name, thoughin assumed capacity of Chairperson, the presence of the said person

and others accompanying her only giving rise to civil dispute. Analternative argument is raised that prosecution for offence ofcriminal conspiracy under section 120-B IPC read with sections 448and 451 IPC is barred (in absence of sanction) under section 196(2)Cr.P.C. and, in this context, reliance is placed on Rahul Kanwal &Ors. vs. State & Anr., 2004 SCC Online Del 608.

26.The petitioner Mr. S.R. Vaish refers to franchise that had beengiven by DPS Society in favour of “Manav Vikas Society”, of whichhe is the President, for opening of school in Gurgaon and seeks tojustify his visit to the office of the society in that context. There isreference (in the case for prosecution) to his services having beenavailed by Dr. (Mrs.) Sharda Nayak during the period of her stay inthe office of DPS society for several hours on 30.03.2015 for purposesof sending certain e-mails from the computer systems of the societyoffice. His argument is that only screen-shots of such e-mails havebeen presented, no case being made out in absence of any betterevidence about such role having been played by him, also becausethere was no certificate under section 65-B of Indian Evidence Act,1872.In this context, he places reliance on Sanjaysinh RamraoChavan vs. Dattatray Gulabro, (2015) 3 SCC 123. He has argued thatsince Mr. V.K. Shunglu was not in India at the time of allegedincident, the entry into the office, and the acts of commission oromission attributed to the accused persons, only constitute “civiltrespass”, referring in this context to Abdul Hossain vs. MassadulHaq, 1972 Crl.L.J. 1499.It is also his argument that no case of

criminal trespass is made out because none of the witnesses for theprosecution would state that intent was to commit an offence or tointimidate, insult or annoy any person. He refers in support to Mathrivs. State of U.P., AIR 1964 SC 986, and Isaac Isanga Musumba &Ors. vs. State of Maharashtra, (2014) 15 SCC 357.

27.Per contra, the complainant, and the State, submit grievancethat the evidence in entirety has been glossed over. Reference is madenot only to the statements under section 161 Cr.P.C. of the abovementioned persons but also to the documentary evidence showingpresence of all the four persons (who are sought to be prosecuted) inthe office of the society from 8:30 a.m. onwards, at least one of thewitnesses(SanjuKumar,safaikaramchari)describingthoseaccompanying Dr. (Mrs.) Sharda Nayak, and the three other accused,as “bouncers”. Reference is also made by the complainant, and theState, to the documentary evidence showing, inter alia, that Dr. (Mrs.)Sharda Nayak had been in contact with another security agency (SuperSlueth Security Agency & Allied Services) even prior to the incidentof 30.03.2015, she having informed Mr. Aseem Khajuria (witness forthe prosecution), proprietor of the said security agency, through Mr.Manish Gupta, in advance of the visit to the office of DPS Society on30.03.2015, that she would be requiring security services at the DPSSociety office and that when called he should come prepared with allthe necessary documents such as agreement, etc. and he havingaccordingly reached the society office sometime between 9:30 and10:00 a.m. on 30.03.2015, alongwith agreement prepared in the format

which was in use, drawn on non-judicial stamp paper.Thedocumentary evidence includes agreement purporting to have beenexecuted on 30.03.2015 by the said witness on behalf of securityagency and by Dr. (Mrs.) Sharda Nayak in her purported capacity ofChairman of DPS Society. It is pointed out that the agreement wasprinted on non-judicial stamp paper that had been purchased on03.01.2015.This,accordingtothecomplainantandState,demonstrates prior design, concert and intent to take over the Societyoffice.

28.Along with the charge-sheet, the police also presented certainother documents which had been executed, signed or issued by Dr.(Mrs.) Sharda Nayak in the capacity of Chairperson of DPS Societyusing its letter head or other stationery or e-mail IDs. These include aletter of appointment bearing No.DPSS/ADMN/6019 addressed to Mr.Rajeev Maheshwari appointing him as the administration in-charge ofDPS Society. Further material includes communication addressed toMr. Omkar Misra, regional head of Premier Shift Pvt. Ltd. SainikFarms, New Delhi (security agency engaged by the society) requiringsecurity services to be removed with immediate effect and charge tobe handed over to new security agency.This communication wasissued by the Secretary of the DPS Society appointed in that capacityby Dr. (Mrs.) Sharda Nayak.She issued press note under hersignatures declaring herself to be the Chairperson of DPS Society,referring to certain earlier events like elections held in January, 2014and constitution of Dispute Resolution Committee, etc. Sheaddressed letter to Station House Officer of Police Station AmarColony, acknowledged by the said office vide DD No.4-B on31.03.2015 on the subject of threats allegedly extended by two namedpersons. She constituted new working committee and addressed aletter to the life members signing her name in the capacity ofChairperson of DPS Society inviting accused Narender Kumar to bethe Chairman Emeritus. She appointed Mr. K.P. Malik new PublicRelations Officer of DPS Society, addressing communication to himon the subject, on the letter head of the Society, signing in the capacityof Chairperson. By two separate communications, also signed by Dr.(Mrs.) Sharda Nayak as Chairperson of DPS Society, prepared on theletter-heads of the Society, she informed Mr. Pramod Grover and Mr.M.M. Chopra informing each of them that their membership of theSociety had been suspended, certain serious charges reported againstthem intended to be investigated/inquired into by retired Judge of theSupreme Court. similar communication was addressed to Mr. RajivTaneja, Secretary of the Society, this being captioned as “officeorder”,thereby communicatingterminationofhiscontractasSecretary with immediate effect.Yet another communication wasaddressed to Pro-Vice Chairman (Satellite Schools), inter alia,informing about postponement of certain meetings, Dr. (Mrs.) ShardaNayak signing as Chairperson using the letter-head of the Society.

29.There is further evidence presented which statedly indicates thateven after the FIR had been lodged on 31.03.2015 about the incidentof 30.03.2015, Dr. (Mrs.) Sharda Nayak continued declaring herself to

be the Chairperson of DPS Society sending various communicationsin that capacity using the letter-heads of the Society, these including acomplaint dated 13.04.2015 to SHO of Police Station Amar Colonyalleging criminal trespass, destruction of evidence, etc. and letterdated 01.04.2015 addressed to the Hon’ble Prime Minister of Indiamaking certain allegations of corruption and irregularities in theaffairs of DPS Society, which communication was made over by theMinistry of Home Affairs, inter alia, to Commissioner Delhi Police,the authorities in the government treating it as communicationreceived from Chairman of DPS Society. Further, on 15.04.2015, sheaddressed an e-mail to “Core School Principals” requiring certain datato be sent to her, she being the Chairperson of DPS Society. Anothersimilar communication was addressed on 23.04.2015 to Pro-ViceChairperson, again on the letter-head of the Society, declaring herselfto be the Chairperson. Besides such communications on the letter-heads, there is material presented indicating e-mails have been sentusing the e-mail IDs of the Society, at the instance of Dr. (Mrs.)Sharda Nayak, reference to the role of petitioner Mr. S.R. Vaish beingin this context.

30.The grievances of the complainant, and the State, vis-à-vis therevisional court’s order directing discharge of Dr. (Mrs.) ShardaNayak are correct. In fact, the error in the approach to the matterbegan when the case was taken up by the Metropolitan Magistrate forconsideration of charge. As has been noted earlier, the deficiencies inthe investigation leading to the main charge-sheet had been pointed

out first by the complainant lodging protest petition, the investigatingagency conceding by making its own request seeking liberty to subjectthe case to further investigation. The facts alleged and the evidencepresented, even with the main charge-sheet, had demonstrated thepossibility that the case might involve prosecution for offences beyondthe one punishable under section 448 IPC. Further, the deficiency inthe initial investigation related to the role of persons other than Dr.(Mrs.) Sharda Nayak who alone had been sent up for trial at that stage.It is against this backdrop that the Metropolitan Magistrate acceptedthe request of the police for opportunity to be given for furtherinvestigation. Though some argument was raised at the earlier hearingon these petitions as to impermissibility of further investigation beingallowed after cognizance had been taken, the said ground of challengehas been given up with due deference to the law authoritatively laiddown by the Supreme Court in recent decision reported as VinubhaiHaribhai Malaviya & Ors. vs. The State of Gujarat & Anr., 2019 SCCOnline SC 1346.

31.Be that as it may, once the Metropolitan Magistrate hadaccepted the submissions that the earlier investigation suffered fromdeficiency and that the matter required further investigation not onlyto collect additional evidence to examine what offences had beencommitted but also to ascertain if any other persons were complicit insuch crimes as may have been committed, there was no question ofproceeding to hear the parties on the basis of main charge-sheet on theissue of charge against the solitary accused summoned in its respect.

By the order whereby further investigation was allowed, the case wastaken to the next date only to await report regarding furtherinvestigation. There was no occasion or justification to shift from thesaid position. The fact that the Metropolitan Magistrate took adecision on the question of charge against Dr. (Mrs.) Sharda Nayakalone, that too on the basis of main charge-sheet, even while thefurther investigation was still not concluded, only means the issue hasbeen adjudicated upon without the benefit of complete evidence beingtaken into consideration. This has resulted in situation wherein thecase for prosecution on what turns out to be crucial accusation –offence of criminal conspiracy involving all the four afore-mentionedindividuals – having also been overlooked.

32.The revisional court committed similar error and improprietyby proceeding to consider the case for framing of charge against Dr.(Mrs.) Sharda Nayak on the basis primarily of the evidence that waspresented with the main charge-sheet. Technically speaking, since theorder that was impugned before it was based on scrutiny of suchlimited material, the revisional court while examining its correctnesscould not have gone into the additional evidence that was presentedwith the supplementary charge sheet. But then, conscious as it wasthat supplementary charge-sheet had been presented even while therevisional challenge was pending, such supplementary report havingalso led to additional accused persons being summoned on basis ofadditional material, the revisional court could not have proceeded todetermine the question of charge based on limited scrutiny.It wasinstead desirable in such fact-situation that it should have remitted thecase to the trial Magistrate for re-consideration. The revisional court’sorder is perverse because it does not take into consideration substantialpart of the evidence that had come on record with the supplementarycharge-sheet and this may be illustrated by reference merely to theevidence showing termination of the services of the existing securityagency and bringing along by Dr. (Mrs.) Sharda Nayak and others ofthe proprietor of the new security agency engaged by her, by priorconcert, along with security guards of such new agency. Similardeficiency on account of non-consideration of supplementary charge-sheet also while directing discharge of an accused was dis-approved ofby the Supreme Court in Deepu @ Deepak vs. State of MadhyaPradesh, 2019 (2) SCC 393.

33.On the foregoing facts, and in the circumstances, the impugnedorder of discharge passed by the revisional court cannot be sustained.But, as has been observed earlier, since the order directing charges tobeframedagainstDr.(Mrs.)ShardaNayakpassedbytheMetropolitan Magistrate is also perverse on account of deficientscrutiny of the evidence in entirety, the said order also cannot beallowed to stand. The appropriate course, in such fact-situation, wouldbe to remit the case for fresh consideration on the question of charge.

34.This court must reject the argument of the other two petitioners(i.e. Mr. Salman Khurshid and Mr. S.R. Vaish) as to impermissibilityof the Metropolitan Magistrate directing further investigation.Thefacts and circumstances taken note of at length above clearly show

that the initial investigation was perfunctory. The additional evidencewhich has come on record through the supplementary charge-sheetwould itself justify the permission granted by the MetropolitanMagistrate for further investigation, the power and jurisdiction to doso in which regard is now duly acknowledged with reference, interalia, to decision in Vinubhai Haribhai Malaviya (supra). This courtalso finds no substance in the submission that the supplementarycharge sheet represents an endeavor of the police to carry out “re-investigation” or “de novo” probe. Without doubt, some of thewitnesses were again examined. But then, given the deficiencieswhich were pointed out, it was only appropriate to do so in the presentcase.

35.The argument that the summoning order must be set aside onlybecause it does not give detailed reasons ignores the settled law on thesubject. In Nagawwa vs. Veeranna Shivalingaqppa Konjalgi, (1976) 3SCC 736, the Supreme Court had held that it is not the province of theMagistrate at such stage to enter into detailed discussion on themerits or demerits of the case.

36.In Kanti Bhadra Shah vs. State of West Bengal, (2000) 1 SCC722, the Supreme Court ruled thus:-

“12. If there is no legal requirement that the trialcourt should write an order showing the reasons forframing charge, why should the already burdenedtrial courts be further burdened with such an extrawork.The time has reached to adopt all possiblemeasures to expedite the court procedures and tochalk out measures to avert all roadblocks causing

avoidable delays. If Magistrate is to write detailedorders at different stages merely because the counsel-would address arguments at all stages, the snailpaced progress of proceedings in trial courts wouldfurther be slowed down.We are coming acrossinterlocutory orders of Magistrates and SessionsJudges running into several pages. We can appreciateif such detailed order has been passed forculminating the proceedings before them. But it isquite unnecessary to write detailed orders at otherstages, such as issuing process, remanding theaccused to custody, framing of charges, passing overto next stages in the trial.”

(emphasis supplied)

37.In Chief Controller of Imports & Exports vs. RoshanlalAgarwal, (2003) 4 SCC 139, the legal position was reiterated thus:-

“9. In determining the question whether any processis to be issued or not, what the Magistrate has to besatisfied is whether there is sufficient ground forproceeding and not whether there is sufficient groundfor conviction. Whether the evidence is adequate forsupporting the conviction, can be determined only atthe trial and not at the stage of inquiry. At the stage ofissuing the process to the accused, the Magistrate isnot required to record reasons. This question wasconsidered recently in U.P. Pollution Control Boardv. Mohan Meakins Ltd.(2000) 3 SCC 745 and afternoticing the law laid down in Kanti Bhadra Shah v.State of W.B. (2000) 1 SCC 722, it was held asfollows: (U.P. Pollution case, SCC p. 749, para 6)

“6. The legislature has stressed the need torecord reasons in certain situations such asdismissalofacomplaintwithoutissuingprocess. There is no such legal requirementimposed on Magistratefor passing detailed

order while issuing summons. The processissued to accused cannot be quashed merely onthe ground that the Magistrate had not passeda speaking order.”

(emphasis supplied)

38.In Bhushan Kumar & Anr. vs. State (NCT of Delhi) & Anr.,(2012) 5 SCC 424, while addressing similar issues, the Supreme Courtreferred to its decision reported as Chief Enforcement Officer vs.Videocon International Ltd., (2008) 2 SCC 492, and construed theprovisions of Sections 190 and 204 Cr.P.C. concerning “cognizance”and “issuance of process” and observed thus:-

“13.Section 204 of the Code does not mandatethe Magistrate to explicitly state the reasons forissuance of summons. It clearly states that if in theopinion of Magistrate taking cognizance of anoffence, there is sufficient ground for proceeding,then the summons may be issued. This sectionmandates the Magistrate to form an opinion as towhether there exists sufficient ground for summonsto be issued but it is nowhere mentioned in the sectionthat the explicit narration of the same is mandatory,meaning thereby that it is not pre-requisite fordeciding the validity of the summons issued.”

(emphasis supplied)

39.The reliance by the petitioners on decisions in Mehmood UlRehman vs. Khazir Mohammad Tunda & Ors., (2015) 12 SCC 420,Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC409 and Birla Corporation Limited vs. Adventz Investments &Holdings Limited & Ors., 2019 SCC Online SC 682, is misplaced.

Explaining the position of law, the Supreme Court in recent decisionreported as State of Gujarat vs. Afroz Mohammed Hasanfatta, 2019SCC Online SC 132, has delineated the fine distinction respecting thesummoning order vis-à-vis in case arising out of police report incontrast to case arising out of criminal complaint and has explainedthe ruling inMehmood Ul Rehman(supra). The followingobservations of the court in the said case (Afroz Mohamed Hasanfatta)are, infact, complete answer to the contentions urged to the contraryby the petitioners:-

“24. In summoning the accused, it is not necessaryfor the Magistrate to examinethe merits and demeritsof the caseand whether the materials collected isadequatefor supporting the conviction. The court isnot required to evaluate the evidence and its merits.The standard to be adopted for summoning theaccused under Section 204 Cr.P.C.is not the same atthetime of framing the charge. For issuance ofsummons under Section 204 Cr.P.C., the expressionusedis“thereissufficientgroundforproceeding…..”; whereas for framing the charges,the expression used in Sections 240 and 246 IPC is“there is ground for presuming that the accused hascommitted an offence….. ”. At the stage of takingcognizance of the offence based upon police reportandforissuanceofsummonsunder Section204 Cr.P.C., detailed enquiry regarding the meritsand demerits of the case is not required. The fact thatafter investigation of the case, the police has filedcharge sheet along with the materials thereon may beconsidered as sufficient ground for proceeding forissuance of summons under Section 204 Cr.P.C.

25. In so far as taking cognizance based on the policereport, the Magistrate has the advantage of the

charge sheet, statement of witnesses and otherevidencecollectedbythepoliceduringtheinvestigation. Investigating Officer/SHO collects thenecessaryevidenceduringtheinvestigationconducted in compliance with the provisions of theCriminal Procedure Code and in accordance with therules of investigation. Evidence and materials socollected are sifted at the level of the InvestigatingOfficer and thereafter, charge sheet was filed. Inappropriate cases, opinion of the Public Prosecutor isalso obtained before filing the charge sheet. The courtthus has the advantage of the police report along withthe materials placed before it by the police. UnderSection 190 (1)(b)Cr.P.C., where the Magistrate hastaken cognizance of an offence upon police reportand the Magistrate is satisfied that there is sufficientgroundforproceeding,theMagistratedirectsissuance of process. In case of taking cognizance ofanoffencebaseduponthepolicereport,theMagistrate is not required to record reasons forissuing the process. In cases instituted on policereport, the Magistrate is only required to pass anorder issuing summons to the accused. Such an orderof issuing summons to the accused is based uponsubject to satisfaction of the Magistrate consideringthe police report and other documents and satisfyinghimself that there is sufficient ground for proceedingagainst the accused. In case based upon the policereport, at the stage of issuing the summons to theaccused, the Magistrate is not required to record anyreason.In case, if the charge sheet is barred by lawor where there is lack of jurisdiction or when thecharge sheet is rejected or not taken on file, then theMagistrate is required to record his reasons forrejection of the charge sheet and for not taking onfile.In the present case, cognizance of the offence hasbeen taken by taking into consideration the chargesheet filed by the police for the offence under Sections

420, 465, 467, 468, 471, 477A and 120B IPC,theorder for issuance of process without explicitlyrecording reasons for its satisfaction for issue ofprocess does not suffer from any illegality.”

(emphasis supplied)

40.Given the abundant material that has been noted earlier, itcannot be said that there are no grounds to proceed against thesepetitioners who seek to assail the summoning order. The summoningorder confirms that in taking the view reflected therein, theMetropolitan Magistrate had taken into consideration the materialsubmitted with the main charge-sheet as well as supplementarycharge-sheet and, thus, there is sufficient indication available onrecord regarding application of mind. The challenge to the summoningorder, thus, cannot be accepted.

41.As result of the view taken above vis-à-vis the question offraming of charge against Dr. (Mrs.) Sharda Nayak, and the rejectionof the challenge to the summoning order for reasons set out above, itwould be appropriate that this court refrains from recording anyobservations on the merits of the case pressed by the State for puttingthe four above-mentioned accused persons on trial or, for that matter,the contentions of the accused on question of charge, lest any viewrecorded here prejudices the argument of either side. These are mattersthat ought to be considered by the criminal court which is in seisin ofthe case.

42.For the foregoing reasons, the petitions of Mr. Salman Khurshidand Mr. S.R. Vaish (Crl.M.C. 4551/2018 and Crl.M.C.5069/2018)along with applications filed therewith are dismissed.

43.The petitions of State (Crl.M.C. 175/2019) and of Delhi PublicSchool Society & Ors. (Cr.Rev.P. 950/2018) along with applicationsfiled therewith are allowed. The order dated 09.06.2017 of theMetropolitan Magistrate along with formal charges framed in its wakeby said court on 22.07.2017 and judgment dated 15.09.2018 of theadditional sessions Judge in Crl.Rev. 493/2017 are set aside.

44.As consequence of the above directions, the criminal caseagainst Dr. (Mrs.) Sharda Nayak stands revived, she being obliged toappear as an accused in the case before the concerned criminal courton the date being fixed hereinbelow. She would also be obliged tofurnish fresh bail bonds to regulate her presence in the proceedingshereinafter.

45.The criminal case of the State arising out of FIR No.421/2015of Police Station Amar Colony, based on the two above mentionedcharge-sheets,shallbetakenupbytheconcernedcourtofMetropolitan Magistrate for consideration of the question of charge onthe date to be fixed for the purpose by the presiding officer of the saidcourt as per its convenience.Needless to add, however, that theMetropolitan Magistrate in rendering decision on the question ofcharge against the four persons who stand summoned will not feelbound or be influenced by the view taken on the said subject by the

orders which have been set aside or any observation of this courtrecorded in this judgment.

46.Reference has been made in earlier part of this judgment toanother criminal case arising out of FIR No.605/2015 of Police StationAmar Colony. As has been noticed, the said case relates to an incidentwhich seems to have direct nexus with the incident which is thesubject matter of the case from which these petitions arise.Beforeproceeding further, the Metropolitan Magistrate will consider if boththe cases require to be heard or tried together or jointly.

47.The parties are directed to appear before the concerned criminalcourt on 16[th]December, 2019.

48.The petitions and the applications filed therewith are disposedof in above terms.

(R.K. GAUBA)JUDGE

NOVEMBER 27, 2019vk