* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(Crl.) No.481/2007
Decided on : 22nd January, 2015
K.S.MEENA & ORS. ..... Appellant
Through: Mr.Vineet Malhotra, Adv.
versus
NCT OF DELHI & ANR. ..... Respondent
Through: Ms.Ritu Kumar, Adv.for R-2.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
Crl.M.A. No.13331/2012
1. This is an application filed by the respondent No.2 seeking recall of order dated 21.05.2012 under Section 151 CPC read with Section 482 Cr.P.C. though this is a criminal writ petition.
2. By virtue of the order dated 21.05.2012, the writ petition of the petitioners was dismissed as withdrawn on account of a statement and a representation having been sent by the respondent No.2 from the Jail addressed to the Registrar General of this court to the effect that he does not want to pursue his criminal complaint against the present petitioners. The respondent No.2 by virtue of the present application is seeking to withdraw the said statement and consequently seeking revival/restitution of the present writ petition. Before dealing with the submission made by the respondent No.2/applicant, it will be pertinent here to give a brief background of the case.
3. The present petitioners are employees of the Tihar Jail, New Delhi who were summoned as accused persons on the basis of a complaint having been made by the respondent No.2. The summoning was for offences under Sections 323, 384 read with Section 511 IPC. The summoning order was passed by the ACMM after recording the preliminary evidence. The order of summoning was challenged by the petitioners before this court and further proceedings in the complaint filed by the respondent No.2/applicant were stayed by this court vide order dated 23.04.2007. During the pendency of this writ petition in the year 2012, the respondent No.2 was produced before this court on 17.05.2012 in judicial custody and he expressed his desire to withdraw the complaint which had filed and on the basis of which the petitioners were summoned by the ACMM. The matter was adjourned to 21.05.2012. However, on the said date, the respondent No.2 was not present in the court. It was brought to the notice of the court that the respondent No.2 was in judicial custody and since there were no production warrants issued against him for 21.05.2012, consequently, he could not be produced from the Central Jail, Tihar. However, the Registrar General had received a letter from the respondent No.2 which was placed before the court wherein it was stated that the respondent No.2 is not interested in prosecuting the complaint which he had filed against the petitioners. On the basis of the fact that the respondent No.2/applicant had appeared in person on 17.05.2012 and had expressed his desire not to pursue the criminal complaint filed by him coupled with the fact that a letter was sent by him to the Registrar General confirming the said fact, the petitioners did not press their writ petition and the same was accordingly dismissed as withdrawn.
4. Subsequent thereto on 03.08.2012, the present application, filed by the respondent No.2, was taken up wherein it was stated that he had not given his consent for withdrawal of the complaint against the petitioners of his own free will and the order dated 21.05.2012 had recorded the facts incorrectly. Notices were issued on the application to the petitioners.
5. The learned counsel for the respondent No.2/applicant has contended that the respondent No.2 never intended to withdraw his complaint against the present petitioners and at the time when he is purported to have made a statement in this regard before this court seeking withdrawal of his complaint, he was confined in judicial custody for almost 7-8 years and, therefore, he was being coerced by the petitioners and the other jail officials not to prosecute the matter. It has been stated that the apex court has also observed in Sunil Batra v. Delhi Administration; 1980 AIR 1579 that where the rights of a prisoner, either under the Constitution or under other law, are violated, the writ power of the court can and should run to his rescue. Accordingly, in the instant case, the learned counsel for the respondent No.2/applicant has contended that the statement attributed to him seeking withdrawal of his complaint against the present petitioners or the letter purported to have been written by him to the Registrar General intimating that he is not interested in prosecuting the matter against the petitioners have not been made voluntarily and thus cannot be acted upon. Accordingly, the learned counsel for the respondent No.2/applicant has prayed for revocation/modification/recall of the order dated 21.05.2012 by virtue of which the present writ petition was dismissed as withdrawn.
6. This fact has been refuted by the learned counsel for the petitioners. He has contended that not only the respondent No.2 had appeared and made a statement seeking withdrawal of the complaint made by him against the petitioners, but he had by his conduct also shown that he is not interested in prosecuting the said complaint. In this regard, he has drawn the attention of the court to the letter written by the respondent No.2 to the Registrar General of this court as well as the statement made by him before the learned CMM, New Delhi on 04.06.2013 when he got his statement recorded in CC No.18/1/07 titled Christopher James v. V.K.S.Meena & Ors. The said statement reads as under:
"I voluntarily and without any force or coercion want to make a statement that the present complaint case may be dismissed as withdrawn. I have fully understood import and consequences of my statement. I pray that the present complaint case may be dismissed as withdrawn."
7. Accordingly, it has been contended that since the respondent No.2 had also made a statement before the CMM, Delhi, therefore, he cannot be permitted to now contend, after the lapse of a considerable period of time, that the statement which is attributed to him by virtue of which the criminal complaint filed by him against the present petitioners was sought to be withdrawn, had not been made voluntarily and accordingly, the application filed by the respondent No.2/applicant is an afterthought and deserves to be dismissed.
8. I have considered the rival contentions and gone through the record. As per Section 80 of the Indian Evidence Act, 1872 the presumption of correctness is attached to the judicial proceedings. The proceedings recorded on 21.05.2012 clearly record that the respondent No.2 had appeared before the court on 17.05.2012 and had expressed his desire not to prosecute his criminal complaint which was followed up by him sending a letter to the Registrar General of this Court in this regard. It is also recorded in the order sheet that the purpose of adjourning the matter from 17.05.2012 to 21.05.2012 was to ensure that the respondent No.2 had sufficient time available to him so as to make up his mind as to whether he would like to prosecute his complaint or not. On 21.05.2012, he was not produced in the court as his production warrants had not been issued. But, nevertheless, he had shown his intention of not prosecuting his criminal complaint by writing a letter to the Registrar General of this court. The present application seeking withdrawal of the order dated 21.05.2012 was filed on 17.07.2012 after a gap of nearly two months. In addition to this, the respondent No.2 had also made a statement before the CMM, Delhi on 04.06.2013 that he does not want to prosecute his criminal complaint. Curiously, at the time when he made a statement before the learned CMM, he had been produced in custody from Phulwari Jail, Patna and not from Tihar Jail. Therefore, it could not be assumed that while he was in the custody of jail officials of Phulwari Jail, Patna, the influence of jail officials of Tihar Jail, Delhi was on him. On the contrary, the respondent No.2/applicant while getting his statement recorded on 04.06.2013 also stated that he is making the statement voluntarily and without any force or coercion. That being the state of affairs, now it is too late for the respondent No.2/applicant to turn around and contend that the order of this court dated 21.05.2012 be recalled. If this is permitted to be done, then there will be no end to litigation. The respondent No.2 is taking vacillating stands depending on the situation. The court is not aware of the reasons why he is doing so. It seems that the present application filed by the respondent No.2/applicant is actuated by some ulterior motives which are best known to the respondent No.2 himself. So far as the present application is concerned, it cannot be revived only on the ground that the statement which is purported to have been made by the respondent No.2 before this court as well as before the CMM was under force or coercion. The respondent No.2 had to show to the court as to who was the person who had put the respondent No.2 under duress and what was the duress to which he was subjected to.
9. I find that the present application is based on totally flimsy grounds and is an afterthought. The same is accordingly dismissed.
V.K. SHALI, J JANUARY 22, 2015/dm