Delhi High Court
Shri Narender Singh vs The State Through S.H.O. on 3 July, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C No.2042/2008
% Date of Decision : 03.07.2008
Shri Narender Singh ....... Petitioner
Through: Mr.R.Kumar, Advocate.
Versus
The State through S.H.O. ......... Respondent
Through : Mr.R.N.Vats, APP for the State.
CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
The petitioner has impugned the order dated 11th April, 2008
dismissing his revision petition under Section 397 of Criminal
Procedure Code against the summoning order dated 21st June, 2007
passed in FIR No.363/2003, Police Station Malviya Nagar, under
Section 493/376 of the Indian Penal Code.
The petitioner is a process server and the allegations against him
are that he did not serve the summons of a case pending between
Smt.Indu Malhotra and Pankaj Malhotra on 5th November, 2001 and
fabricated the report. The report given by the petitioner indicates that
he had visited Smt.Indu Malhotra at 12 noon whereas Smt.Indu
Malhotra being a Government servant was at her office and not at the
address the summon was alleged to had been served at that time. The
allegation against the petitioner is that he never served the summons
but handed over the same to Sh.Pankaj Malhotra, her husband who
fraudulently obtained the signatures of Smt.Indu Malhotra and the
report of the service was fabricated by the petitioner.
Considering the facts and circumstances it is apparent that there
are specific allegations of fabricating the report on the summons of
service at a time when the complainant was not present at her
residence and being a Government servant was on duty. The fabrication
of the report was not done in the Court.
The Additional Sessions Judge has considered that fabrication
was done in the summons issued by the Court and in the
circumstances there was no bar on taking cognizance.
The learned counsel for the petitioner has submitted that no
cognizance can be taken except upon the complaint of the Court and
has relied on (1998) 2 SCC 493, Sachida Nand Singh & Anr Vs. State of
Bihar and Anr and 118(2005) DLT 329 (SC), Iqbal Singh Marwah & Ors.
Perusal of the judgments relied on by the petitioner reflects that they
are clearly distinguishable. In Sachida Nand Singh & Anr (Supra) it was
held by the Apex Court that there is no bar under Section 195(1)(b) of
taking cognizance of offence if the offence was committed before
document was produced in the Court. Bar contained in Section
195(1)(b)(ii) of Cr.P.C. would not apply where forgery of the said
document was committed before the said document was produced in
court. Admittedly the report on the summons issued by the family
Court at Jaipur which was to be served on the complainant Smt.Indu
Malhotra, was allegedly fabricated by the complainant at Delhi. Merely
because the ex-parte decree against the complainant Smt.Indu
Malhotra has not been set aside by the Court at Jaipur, it cannot be
held that the allegation of fabrication and forging of the report by the
petitioner has been adjudicated or a finding has been given in favor of
the petitioner by a competent Court.
Considering the entirety of facts and circumstances I do not find
any manifest error or illegality in the order of Additional Sessions Judge
dismissing the revision of the petitioner, so as to entail interference in
the present petition. Considering the totality of facts it also cannot be
inferred that quashing of summoning order would secure the ends of
justice. The petition, therefore, is without any merit and it is dismissed.
It is, however, clarified that dismissal of the petition is not the final
expression of any opinion on the merits of the case.
July 3, 2008 ANIL KUMAR, J.
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