$~8. * % IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: Judgment delivered on:
29. 09.2016 18.10.2016 + W.P.(CRL) 2741/2016 & Crl.M.A.No.14601/2016 VIJAY KUMAR BANSAL & ANR. ........ Petitioner
s STATE Through: Mr. Jitendra Sethi, Advocate. versus ..... Respondent Through: Ms. Kamna Vohra, ASC for the State. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI JUDGMENT
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition to seek the setting aside of orders dated 09.01.2013 and 10.05.2016 passed by the learned ASJ, and the order dated 21.01.2015 passed by the learned MM, Saket Courts, Delhi, whereby the application of the petitioners under Section 256 Cr PC was dismissed. Though the writ petition in its title invokes Article 226 with Article 227 of the Constitution of India, upon an objection being raised by the respondent that a writ petition under Article 226 would not lie to assail a judicial order, learned counsel for the petitioner has submitted that the present petition may be treated as one under Article 227 W.P.(Crl.) No.2741/2016 Page 1 of 8 of the Constitution of India, namely, under the supervisory jurisdiction of this Court.
2. The factual background, as extracted by the learned ASJ-04 and Spl Judge (NDPS) South East, Saket Courts, Delhi in the impugned order dated 10.05.2016 passed in Crl. Revision No.148/2015 titled, “Vijay Kumar Bansal & Pradeep Kumar Bansal v. State” is as follows: a) Complainant Smt. Kalpana Bhattacharya was employed as a Music Teacher in MCD Primary School, Kailash Colony and was engaged in the Census Program conducted by Government of India and was performing her Census Duty in Greater Kailash-I area, when on 23.05.2010, at around 10:30 AM, the petitioners, who were residing at E/348A, Greater Kailash-I, New Delhi not only obstructed her in discharge of her Government Duties, but also assaulted her, caused injuries and also made an attempt to insult her modesty. b) Upon a written complaint made by the complainant in this regard, the present FIR was registered against the petitioners and charge sheet was filed against them by the IO for the aforesaid offences. However, vide order dated 01.12.2010, the Court was pleased to take cognizance against the petitioners only for an offence u/s 186 Cr.PC and they were summoned to face trial for 26.02.2011. c) On two applications filed by the petitioners on 04.10.2012, u/s 468 and Section 256 Cr.PC, Sh. Amitabh Rawat, the then Ld. MM summoned the IO of this case. Vide his order dated 06.11.2012, the then Ld. MM dismissed the said applications moved by the W.P.(Crl.) No.2741/2016 Page 2 of 8 petitioners, holding that an express cognizance taken by his predecessor in interest, for an offence u/s 186 IPC, necessarily included an implied cognizance of the remaining offences as well. d) The said order was challenged by the petitioners by way of revision petition bearing No.210/2012, which was decided by the Court of Sh. Ajay Kumar Jain, the then Ld. ASJ, Saket, whereby Ld. Sessions Court held that there was no concept of any implied cognizance recognized under Cr.PC. He allowed the revision and the impugned order was set aside. e) The learned ASJ held that in the facts and circumstances of the case, the matter be remanded back to the Trial Court to pass a fresh order on cognisance, and to proceed in accordance with law.
3. Pertinently, this order of the learned ASJ dated 09.01.2013 (which is also one of the order assailed in the present petition) was accepted by the petitioners inasmuch, as, they did not challenge the same and chose to participate in the proceedings after the remand before the learned Magistrate. It is also pertinent to note that after remand, the learned Magistrate on 24.05.2014, dismissed the application under Section 256 Cr PC filed by the petitioners. At the same time, the learned Magistrate held that the case did not fall within her jurisdiction.
4. This order was again challenged by the petitioners by way of a revision. The learned ASJ decided the same vide order dated 22.08.2014. The order passed by the learned Magistrate dated 24.05.2014 was set aside. The learned ASJ held that the order passed by the learned Magistrate was W.P.(Crl.) No.2741/2016 Page 3 of 8 non-speaking and cryptic in nature. Once she had held that she had no jurisdiction to try the case, she could not have gone into the merits of the petitioners applications.
5. The learned ASJ directed that the several applications of the petitioners under Section 256Cr PC to be heard afresh and disposed of after giving an opportunity of hearing to the revisionist/ petitioners by the Trial Court. Thus, the learned ASJ once again remanded the matter back to the court of the learned Magistrate. Pertinently, this order dated 22.08.2014 passed by the learned ASJ was neither assailed when the same was passed, nor is it assailed in the present petition.
6. The case then landed in the court of Ms. Sheetal Choudhary Pradhan, MM. The learned Magistrate, on this occasion, by a detailed order dated 21.01.2015 dismissed the applications of the petitioner under Section 256 Cr PC read with Section 2(d) (whereby the petitioners sought dismissal of the complaint/FIR in view of non appearance of the complainant on previous dates). This order dated 21.01.2015 was carried in revision by the petitioners and vide the impugned order dated 10.05.2016, the learned ASJ has dismissed the said revision.
7. The submission of learned counsel for the petitioner, firstly, is that the learned ASJ while passing the order dated 09.01.2013 could not have remanded the matter to the court of the learned Magistrate.
8. I do not find any merit in this submission of the petitioner for the reason that, firstly, the order dated 09.01.2013 passed by the learned ASJ in Crl Revision No.210/2012 was accepted by the petitioners. It was open to W.P.(Crl.) No.2741/2016 Page 4 of 8 the petitioners to assail the said order when it was passed. Instead, the petitioners accepted the said order and proceeded to pursue their applications under Section 256 Cr PC once again before the learned Magistrate. Not only this, the said order merged in the subsequent order passed by the learned Magistrate on 24.05.2014, whereby the application of the petitioners under Section 256 Cr PC was again dismissed, and also in the order passed by the learned ASJ on 22.08.2014, whereby the learned ASJ once again set aside the order passed by the learned Magistrate on 24.05.2014. Pertinently, even on this occasion, the learned ASJ directed that the applications of the petitioners under Section 256 Cr PC be heard afresh and disposed of after giving opportunity of hearing to the revisionist/ petitioners. The parties were directed to appear before the Trial Court on 30.09.2014. This order was again not assailed by the petitioners on the ground that the matter could not have been remanded back to the learned ASJ.
9. The petitioner again accepted the said order dated 22.08.2014, and pursued their application under Section 256 Cr PC before the learned Magistrate. Thus, it is too late in the day for the petitioners to now seek to assail the order dated 09.01.2013 passed by the learned ASJ remanding the petitioners applications under Section 256 Cr PC for fresh consideration by the learned Magistrate, and also requiring the learned Magistrate to once again consider the matter remanded back to it and to pass orders of cognisance afresh.
10. The submission of learned counsel for the petitioner is that under Section 256 Cr PC, if the complainant does not appear on the date appointed W.P.(Crl.) No.2741/2016 Page 5 of 8 for appearance of the accused, “the Magistrate shall, notwithstanding anything herein before contained, acquit the accused ... ....”. The submission is that the mandate of law is clear and the court is bound to acquit the accused once the complainant does not appear on the day appointed for appearance of the accused.
11. Learned counsel submits that in the present case, initially, on 01.12.2010 the learned Magistrate simultaneously dealt with the challan filed by the State in case FIR No.73/2010 under Section 186/353/332/5
IPC registered at PS Greater Kailash-I, as also the complaint under Section 195 Cr PC and took cognisance of the offence under Section 186 Cr PC only. The submission is that the offence under Section 186 Cr PC is non cognisable. Since the learned Magistrate did not take cognisance of the other offences alleged against the petitioners/ accused in the charge sheet, or the complaint, the presence of the complainant before the court was essential and the non appearance of the complainant on the dates when the accused was summoned and appeared should have led to acquittal of the accused by virtue of Section 256(1) Cr PC.
12. Learned counsel for the petitioner has sought to place reliance on S.Rama Krishna v. S. Rami Reddy (Dead) by his LRs & Ors., (2008) 5 SCC535 wherein the Supreme Court has held that the mandate of section 256(1) of the Code is that the magistrate should acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. The Supreme Court held that if such an exceptional course is to be adopted, it must be spelt out. Such discretion in favour of the complainant must be exercised with great care and caution. The complainant cannot allow the W.P.(Crl.) No.2741/2016 Page 6 of 8 case to remain pending for an indefinite period. His conduct is of immense significance. The submission is that the courts below have not followed this mandate of the law.
13. On the other hand, the learned ASC has opposed the petition on advance notice. Ms. Vohra has submitted that the applications preferred by the petitioner u/s 256 Cr PC were wholly misplaced in the facts of the present case, since the learned Magistrate was not dealing only with a complaint case. It is submitted that “complaint” as defined u/s 2(d) of the Code does not include a police report, which had been laid before the learned Magistrate in the present case. Therefore, the complainant at whose instance the FIR came to be registered was not obliged to remain present before the learned Magistrate to pursue her complaint. Ms. Vohra has fully supported the detailed judgment passed by the learned ASJ while dismissing the petitioners criminal revision.
14. Having heard learned counsel for the petitioner and the learned ASC, I am of the view that there is no merit in the present petition and the impugned judgment passed by the learned ASJ does not call for any interference either under Article 227 of the Constitution of India or u/s 482 Cr PC. A plain reading of the explanation to section 2(d) of the Code shows that where the police report discloses, after investigation, the commission of a non-cognisable offence, the police officer shall be deemed to be a complainant, and the report submitted by him shall be deemed to be a complaint. This, obviously, does not include a case where a police officer has filed a charge sheet/ made a report disclosing the commission of cognisable offences, as in the present case. Where, the final report discloses W.P.(Crl.) No.2741/2016 Page 7 of 8 the commission of both non-cognisable and cognisable offences, section 2(d) can have no application. The mere fact that the learned Magistrate initially dealing with a case-vide order dated 01.12.2010, took cognisance against the petitioners for the offence u/s 186 IPC and summoned the accused to face trial under that provision, does not lead to the conclusion that the learned Magistrate had rejected the charge sheet qua the other offences alleged against the petitioners. To do so, the learned Magistrate would have had to apply his mind and disclose his reasons in his order, which were not so recorded. In any event, the order dated 01.12.2010 does not survive and stands substituted by the subsequent order of the learned Magistrate dated 21.01.2015.
15. I find that the learned ASJ while passing the impugned order dated 10.05.2016 has correctly appreciated the legal proposition. For applicability of explanation to section 2(d) of the Code, the nature of the offence has to be decided on the basis of the charge sheet/ final report filed by the investigating agency after conclusion of the investigation, and not by the order of the Court taking cognisance thereof. Since the police had itself filed the charge sheet for offences which were cognisable in nature, by force of section 2(d) of the Code, section 256 is not attracted in the facts of the case. Thus, this petition is dismissed as being meritless. OCTOBER18 2016 sr VIPIN SANGHI, J W.P.(Crl.) No.2741/2016 Page 8 of 8