R.K. Mishra & Ors. vs State & Anr.
2009 Latest Caselaw 3188 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. W. No. 86/2008

                                 Judgment reserved on: 21.07.2009
%                                Judgment delivered on:17.08 .2009

R.K. Mishra & Ors.                               ...... Petitioner
                                  Through: Mr. Ramesh Gupta,
                                  Senior Advocate with Mr. Rakesh
                                  Tiku, Advocate & Manish Tiwari,
                                  Advocate
                    versus

State & Anr.                           ..... Respondent
                                  Through:     Ms.   Mukta   Gupta,
                                  Advocate for R-1
                                  Mr. Asit Kumar Roy, Advocate
                                 with           Mr. Sandeep Sharma,
                                 Advocate for R-2

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may        Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?               Yes

3.     Whether the judgment should be reported          Yes
       in the Digest?

KAILASH GAMBHIR, J.

*

1. By this writ petition filed under Articles 226/227 of the

Constitution of India r/w Section 482 Cr.P.C., the petitioners seek to

challenge the illegality and impropriety of the summoning order

dated 19.7.2007 passed by the Court of Shri Kuldeep Narain, M.M.,

New Delhi and the order dated 22.11.2007 passed by Shri P.S.

Teji, Additional Sessions Judge, New Delhi in exercise of his

revisional powers.

2. The brief facts as set out by the respondent complainant

in her complaint filed before the concerned Magistrate are as

under:

The Respondent No. 2 - Complainant is employed with

Pusa Polytechnic, New Delhi as a lecturer and also holds an

additional post of Chief Security Officer of Pusa Campus whereby

she was entrusted the job to remove the unauthorized structures

and constructions within the campus of ITI Pusa. On the

intervening night of 10/11.03.2007 complainant's car namely

Maruti Alto, which was parked in front of house of the complainant

caught fire. The complainant and her 12 years old daughter saw

the car burning and as per their version the petitioner had put fire

in the petrol pipe of the car and when they raised alarm, they were

threatened by the petitioners with dire consequences to be told

that the next target could be the complainant or her daughter if

she did not stop her action of removal of encroachment. The

complainant called the Fire Brigade also and they filed a report

dated 11.3.2007. It is the case of the complainant that she

approached the SHO as well as higher officials and also applied

through RTI for the registration of an FIR but her appeal was

disallowed by Sh. Rajesh Kumar Appellate Authority, Joint

Commissioner of Police vide order dated 02.04.2007. Aggrieved

with the same the complainant made a complaint to the court of

Ld. MM and vide order dated 19.7.2007 the court of MM

summoned the present petitioners. Aggrieved with the said order,

the petitioners preferred revision which was dismissed by the Ld.

Additional Sessions Judge vide order dated 22.11.2007 and feeling

aggrieved with the same present petition has been preferred.

3. Mr. Ramesh Gupta, Senior Advocate with Mr. Rakesh

Tiku, & Manish Tiwari, argued that the instant complaint is

nothing but an abuse of process of law and has been instituted by

the complainant/respondent No.2 as she had been nursing

personal grudge against the petitioners for the reasons best known

to her as would be evident from the other circumstances as well.

It is alleged by the petitioners that the complainant/Respondent

No.2 misled the trial court and has deliberately concealed the

factum of filing of a Civil Writ Petition on the same set of

allegations and imaginary story being W.P. (Civil) No. 4162 of

2007 wherein she sought investigation of the case. The counsel

for the petitioners submitted that the Ld. M.M. failed to

appreciate that deposition of CW-1 and CW-2 are in contradiction

with each other since CW-2 has stated that she had informed her

mother after seeing her car being burnt whereas CW-1 the

complainant/Respondent No.2 in her statement stated that she

had seen all the three persons running away after burning her car,

and such contradictory statements have no incriminating value

qua the petitioners. Moreover, the Ld. M.M. failed to appreciate

that even the so called independent witness CW-3 clearly stated

that nobody had told him that the petitioners had put the car of the

complainant/respondent No.2 on fire, the counsel contended. The

counsel for the petitioners further urged that subsequently CW 3

stated that he does not know much about the instant case and

therefore the independent witness, who was examined by the

complainant/respondent No.2 failed to give any strength to her

case. It is further stated that the ld. M.M. failed to appreciate

that along with his report, SI Jaipal Singh has placed on record the

letter written by the complainant respondent No.2 herself to the

SHO P.S. Inderpuri, New Delhi admitting the fact that she had not

seen any one at the site of the incident nor she had any doubt on

any one who could be held responsible for the said incidence. The

counsel for the petitioners submitted that the Ld. M.M. erred in

disbelieving the report of two independent government agencies

and believed the version of the Complainant/respondent No.2 as

gospel truth. Counsel relied on the following judgments in support

of his submissions.

(a) M/s. Pepsi Food Ltd. vs. Special Judicial Magistrate 1998

Cr LJ 1 (SC).

(b) Smt Nagawwa vs. Veernanna Shivalingappa Konjalgi

1976 Cr LJ 1533 (SC).

(c) Madhavrao Jiwajirao Scindia vs. Sambhajirao

Chandrajirao Angre 1988 SCC (Cr) 234.

(d) Dilawar Babu Kurane vs. State of Maharashtra AIR 2002

SC 564.

(e) Chandra Deo Singh vs. Prokash Chandra Bose 1963 (2)

Cr LJ 397 (SC).

(f) Smt Jancy Nelson D'souza vs. Nelson D'souza 2004 Cr LJ

1690 (Bom).

(g) Kanshiram vs. State 2000 IV AD (Delhi) 495.

(h) Surinder Suri vs . State of Haryana 1996 (2) RCR 701.

(i) Inder Mohan Goswami and another vs. State of

Uttaranchal 2007 V AD (Cr) (SC) 369.

4. Per contra, Mr. Asit Kumar Roy, counsel for the respondent

no. 2 contended that it is an admitted fact that the petitioners are

influential and highly placed officials who had carried illegal

constructions at their respective residential premises and

encroachments on Government land. It was further urged that

the trial has already commenced and only two eyewitnesses have

been examined so far and therefore at this stage this court should

be hesitant to exercise its jurisdiction under Article 226/227 of the

Constitution of India. The counsel for Complainant/respondent

No.2 also contended that it is not obligatory on the part of the ld.

Magistrate to act on the police report as looking into the facts of a

case the Magistrate may accept or reject the same. It was further

submitted by the counsel for the Complainant/respondent No.2

that SI Jaipal Singh did not investigate the matter properly as he

did not know even the identity of the petitioners. It was averred

that SI Jaipal in his report stated that Vimal Dimri is the Principal

of ITI Pusa, which is totally wrong, as the post of Principal of ITI

Pusa does not exist, secondly, the name of other petitioner is given

as R.B. Sharma, Director ITI Pusa which is again wrong, as the

name of the said petitioner is Sh. R.N. Sharma and he is the

Director of Delhi Jal Board and the petitioner No.1 , Sh. R.K.

Mishra, Officer was on Special Duty to Vice Chairman, DDA but as

per report of SI Jaipal, he was OSD to Deputy Commissioner, DDA

which is totally wrong. The counsel urged that the officials of Fire

Service have no authority to make a report regarding cause of fire

as this is the duty of the Investigation Officer of the Police

Department to investigate the case and register FIR u/s 435 & 436

(Mischief by fire or explosive substances with intent to destroy)

and section 4 of Prevention and Damage of Public Property Act.

Hence, the report dated 23.03.2007 issued by the Fire Services

baseless and warranted. In fact, no investigation to know the

cause of fire was ever conducted by police or any of the authority

till today. It was also submitted that the Ld. M.M. himself got

recorded the statement of the complainant/respondent No.2 and

her witnesses to know the reality and thereafter, being fully

satisfied, issued the summoning order considering the case of the

complainant as genuine and bonafide merited to take cognizance

against the accused/petitioners. The counsel for

complainant/respondent No.2 further submitted that the Ld. ASJ

after hearing both the parties correctly dismissed the said revision

petition of the petitioners. The counsel relied on the decision of

the Apex Court in Satpathy vs. Ram Aggarwala and ors (1987)

4 SCC 58.

5. Ms. Mukta Gupta, standing counsel for the State urged

that inconsistencies in the complaint viz a viz depositions of the

complainant and her daughter before the court, are so apparent

and noticeable not warranting summoning of the petitioners.

6. I have heard learned counsel for the parties and

carefully gone through the record.

7. The Apex Court in M/s. Pepsi Food Ltd. (Supra) while

examining the scope and power of the High Court under Article

226/227 of the Constitution of India and Section 482 Cr.PC. held as

under

It is settled that High Court can exercise its power of Juducial review in criminal matters. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Art.226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. Under Art. 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Arts. 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Art. 227 and Section 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers

by the High Court under Arts. 226 and 227 may be referred to.

8. In the above judgment the Apex Court cautioned for not

setting the machinery of criminal law into motion just as a matter

of course by the Magistrates as summoning of any person in a

criminal case is a serious matter.

9. Now with this settled legal position that the summoning

of an accused being a serious matter, the next question would

arise as under what circumstances and based on what material, the

Magistrate can direct summoning of a person accused of an offence

in the complaint. The object of Section 202 Cr.P.C. is to prevent

harassment of innocent persons by indiscriminately issuing

processes against them. It is a well settled legal position through

catena of decisions of the Apex Court that at the stage of issuing

the process the Magistrate is primarily concerned with the

allegations made in the complaint and the evidence led in support

of the same, and based on such material if the Magistrate finds

there is a prima facie case then he can direct to issue the process

against the accused person. The stage of issue of process does not

warrant a meticulous or detailed examination of the evidence to

find out as to whether the allegations made in the complaint and

the evidence led in support thereof would result into ultimate

conviction of the accused or not. At the stage of enquiry under

Section 202 Cr.P.C., the Magistrate has to find out as to whether

prima facie the case has been disclosed against the accused or not

based on the allegations made in the complaint and the evidence

led by the complainant in support of such allegations or after the

enquiry conducted by the Magistrate with the help of the police or

otherwise. The Magistrate thus has been conferred a wide

discretion in the matter but such a discretion has to be exercised by

the Magistrate very carefully based on sound judicial principles and

not in a mechanical and ritualistic manner. Thus responsibility of

the Magistrate at the stage of summoning is very heavy and

onerous. The Magistrate is required to carefully examine as to

whether in the face of allegations in the complaint and the evidence

led in support thereof, wherever prima facie case is made out

against the accused and if allegations made in the complaint

appear to be patently absurd and inherently improbable then the

Magistrate has to remind himself that unwarranted summoning of

a person certainly labels him as an accused tarnishing his image in

the society and therefore, the Magistrate may dismiss the

complaint under Section 203 Cr.P.C. after briefly recording the

reasons for the same. It would be appropriate to refer the

guidelines laid down by the Apex Court in Smt. Nagawwa Vs.

Veeranna Shivalinagappa Konjalgi (Supra).

"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in suppor the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Sections 202 of the CrPC which culminates into an order under Sections 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint dos not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The case mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.

10. Based on the above legal position, let me now examine

as to whether learned Metropolitan Magistrate in the facts of the

present case has exercised his jurisdiction legally and correctly and

also as to whether the revisional court also correctly appreciated

the dictum of law.

11. On both sides are the government officials. The

respondent complainant is a Lecturer (Maths) in Pusa Polytechnic,

New Delhi and is a well educated person while on the other hand

the petitioners respondents are also Government officers posted on

responsible positions. The respondent complainant was also

entrusted with the additional responsibility to discharge duties on

the post of Chief Security Officer at ITI Pusa Campus and in that

capacity she was authorized to take action against any

unauthorized construction/encroachment if carried out by any of

the resident of ITI Pusa Campus. As per the complaint filed by the

respondent, the present petitioners were found to have raised

illegal construction in their respective premises as per the joint

survey carried out by the nodal officer of the PUSA Polytechnic and

PWD, and notice dated 8.3.2007 was served upon the petitioners

before taking any action of demolition/removal of unauthorized

constructions/encroachment existing in their respective premises.

As per the said complaint, all the three petitioners had threatened

the respondent complainant for her life and property if she would

take any action of demolition pursuant to the said notice dated

8.3.2007. In the backdrop of the said tussle on the intervening

night of 10 and 11 March, 2007, the Maruti Car of the respondent

complainant which was parked in front of her house caught fire

which led the respondent to call the PCR and the Fire Brigade. Both

the PCR and the Fire Brigade reached at the site. As per the

respondent complainant she gave statement to the police official

Mr. Jaipal of P.S. Inderpuri. Delhi Fire Service also gave their report

about the cause of the said incident. The respondent complainant

in the said complaint also stated that in the evening of 11th March,

2007 one Mr. Bhairo Dutt, resident of F-33, ITI Pusa Campus forcibly

took the signature of respondent complainant on a letter wherein it

was stated that the respondent complainant had not seen anyone

at the site of the incident and she raised no doubt on any one who

could be held responsible for the said incident.

12. As per the counsel for the petitioners, by this letter

alone it would be evident that the respondent complainant has

wrongly and falsely implicated the present petitioners in the said

complaint and on the other hand as per the counsel for the

respondent the said letter was got signed by Bhairo Dutt and the

petitioner Mr. R.K. Mishra by the use of force and pressure upon

her.

13. Before reaching to any final conclusion with regard to

the genuineness and truthfulness of the facts as discussed in the

complaint it would be relevant to reproduce the various stands

taken by the respondent complainant and the witnesses adduced

by her. The first statement of respondent complainant Dr. Kiran

Kushwah made before the police official is as under:

"My daughter woke me up and told me that the car has caught fire. I woke up and went to the balcony from where I saw that the car had caught fire. I immediately called up Mrs. Bhatti as well as my daughter called the PCR and the fire brigade and the PCR reached which extinguished the fire and you recorded my statement. I am sure about involvement of 1)Sh. Vimal Dhimri, 2) R.N. Sharma,

3)R.K. Mishra in the incident as they have encroached upon the govt. land which is inside the Pusa and I being the Chief Security Officer following my duties have ordered for removal of the encroachment and had given a notice for the same on 12.03.07. And to take the revenge of this illegal construction these aforesaid persons have put fire on my car."

14. Letter dated 11.3.2007 addressed by respondent Dr. Kiran

Kushwaha to the SHO, P.S. Inderpuri, New Delhi (letter alleged to

have been signed by the respondent under coercion) is reproduced

as under:

"It is informed that I have not seen any one at the site of above incidence and it is further informed that I have no doubt on anyone who can be held responsible for the above incidence.

In view of the above, it is requested to lodge an FIR to investigate the above matter."

15. Para 8 of the complaint is reproduced as under:

"That further on the intervening night of 10th and 11th March, 2007, all the three persons namely 1. Mr. R.K. Mishra r/o E-12. Sh. Vimal Dimri r/o E-11 and 3. Sh. R.N. Sharma r/o E-17 put fire in the petrol pipe of the car valued (Rs.3,06,000/-) of the Complainant make Maruti Alto vide Regn. No. Dl-9C-N-0742, which was parked in front of the house of the complainant in a planned way in the presence of the complainant and her 12 years old daughter. The complainant and her daughter raised alarm, shouted while they threatened with dire consequences that the next target could be the complainant and her daughter if she still does not stop her action of removal encroachment in their possession premises."

13. Relevant portions of depositions of CW1, CW2 and CW3

are reproduced as under:

CW-1 Dr. Kiran Kushwaha Afterwards on the intervening night of 10/11.3.1997 my daughter Kr. Divya informed me at about 11.30 p.m. that my car is engloved with fire. She also told me that Mr. Vimal Dimiri had struck the fire to the car on hearing this I had come in the balcony with my daughter where I saw that my car was burning and Mr. Vimal Dimri. R.K. Mishra and R.N. Sharma were standing near the burning car. We started called for help but nobody turned out. My Car was parked at a distance of about 30-40 feet opposite the road side. We could not make it out from such a distance whether either of the accused persons were having anything in their hands or not. AT that time nobody else except these three persons were present near the burning car. I have not noticed anybody else at that time. Subsequently on hearing our noice the locality people started putting their lights on and thereafter, all the three persons had ran away from the spot. We also made a call to police at 100 number and also called fire brigade. Besides me and my daughter nobody has seen aforesaid three persons.

CW-2 Kumari Divya In the intervening night of 10-11/3/97 I had seen from the window of my room that my car was burning and Mr. R.K. Mishra, Vimal Dimri and R. N. Sharma were standing near the burning car and they all were laughing. The incident occurred at around 11.30-12 O'clock. I immediately informed my mother. We came to the balcony. We started making noice. We have also asked all the three persons to help us in putting off the fire of our car to which Mr. Vimal Dimri stated that they will not help at all. He also stated that he had put the fire to our car. Thereafter, on making noise the other locality people also gathered at the spot and all the three aforesaid persons had run away from the spot. All the three aforesaid persons abused my mother in my presence.

CW-3 Mr. G. Danniel I had come out of my house after hearing the voice of Dr. Kiran Kushwa and then I notice that a car was burning. I have not seen any person putting fire to the car of Dr. Kiran. Many persons have gathered on the spot. I had seen Mr. Vimal Dimri quarrelling with Dr. Kiran at that moment.

14. A bare look at the aforesaid statements made by

respondent No. 2, her daughter and the witness Mr. G. Danniel

would demonstrate the inconsistent and fledgling stand of the

above material witnesses with regard to the exact facts leading to

the incident of fire. In the very first statement of respondent No. 2

made to the police she only raised suspicion about the involvement

of the present petitioners in the said incident. Nowhere in the said

statement of the complainant/respondent No. 2 it was alleged by

her that all the said three petitioners were seen putting fire to the

car, but taking a complete somersault in para 8 of the complaint all

the said three petitioners were imputed with the act of putting fire

in the petrol pipe of the car in the presence of the complainant and

her 12 years old daughter. Slipping from her stand again in her

deposition before the Court the complainant mentioned about the

presence of these three petitioners near the burning car and not

that the car was burnt by them. Her daughter CW 2 Kumari Divya

also deposed towing the line of her mother except the fact that Mr.

Vimal Dimri was alleged to have pronounced his admission of

putting fire to the said car to CW 2. CW 3 Mr. Danniel, who was

immediately called by the petitioner also did not personally see the

persons putting fire to the car.

15. In the face of such inconsistent stands taken by the

complainant, her daughter and the said witness, could the

Magistrate direct summoning of the petitioners as accused persons.

As already discussed above, the order of Magistrate summoning

the accused must reflect that he has applied his mind to the facts

of the case and has not acted in a careless and cavalier fashion to

direct summoning of the accused. Undoubtedly, the Magistrate at

the stage of issuing process must not enter into a detailed

discussion of the merits or demerits of the case nor at that stage

the Court is to meticulously examine as to whether the evidence

placed by the complainant is adequate for ultimate conviction of

the accused. However, at the same time the Magistrate at that

stage has to satisfy himself as to whether a prima facie case is

made out against the accused persons or not. Necessarily to arrive

at such a conclusion the Magistrate has to consider the material

placed on record by the complainant and the evidence produced on

record through the investigation/inquiry if directed by the

Magistrate. The words "sufficient ground" used in Section 202 of

the Cr.P.C. have to be construed to mean that the Magistrate has

satisfied himself that a prima facie case is made out against the

accused to summon him in the case. However, if after taking into

consideration the allegations made in the complaint, evidence

adduced by the complainant and enquiry if any, conducted by the

police, the Magistrate prima facie finds that no offence is made out

or the allegations based on such material the Magistrate finds that

there are inherent contradictions and improbabilities, then in a such

like case, process if issued would be illegal, unjust and capricious.

16. Besides the above contradictions another noteworthy

feature is that CW1 stated before the Court that mother-daughter

duo could not make out from the distance of 30-40 feet from the

balcony i.e. where they were standing and the place where the car

was parked, as to whether either of the petitioners had anything in

their hands or not. Had the petitioners ignited the fire to the petrol

pipe after cutting the petrol pipe then there must be some tools in

their hand. The relevant portion of the statement of CW1 in this

regard is as under:

My Car was parked at a distance of about 30-40 feet opposite the road side. We could not make it out from such a distance whether either of the accused persons were having anything in their hands or not.

17. It is also noticeable that the Magistrate did not feel

satisfied to issue the process based on the allegations made in the

complaint and evidence led by the respondent/complainant and,

therefore, directed the concerned SHO to investigate the case of

the complainant, but surprisingly the process was issued against

the petitioners even after the police found the complaint to be false

and motivated against the present petitioners. The learned

Magistrate also ignored the report of the fire department, who in

their report clearly observed the cause of fire to be because of

„short circuit‟.

18. The aforesaid factual background of the case would

clearly show that the allegations leveled by the complainant

against the present petitioners are more based on assumptions

besides being patently absurd and improbable. It appears that the

respondent/complainant haunted by her action of removal of the

illegal encroachment in the premises of these petitioners, perceived

and presumed that the car could be only burnt by these very

petitioners. No doubt these officers also must be nursing a grudge

against the complainant for the upright actions of the respondent

complainant, but to attribute them with such a grave act of putting

the vehicle of the complainant to fire would be totally far fetched

and not expected of such Government officials in the absence of

any direct or corroborative evidence to this effect.

19. In view of the above discussion, the present petition is

allowed and the summoning order dated 19.07.2007 and order of

revision dated 22/11/2007 are hereby quashed.

August 17,2009                                 KAILASH GAMBHIR, J.