Binay Kumar & Others vs State & Another
2009 Latest Caselaw 825 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

              CRL.M.C. 4170-73/2006 & Crl M 7072/2006, 14566/06

                                      Judgment reserved on: 20th February 2009
                                          Date of decision : 16th March 2009

       BINAY KUMAR & ORS                       ..... Petitioners
                   Through Mr.Manoj K.Singh with
                   Mr.Rupesh K.Gupta, Advocate

                       versus

       STATE & ANR                                          ..... Respondents
                                Through Mr. Pawan K. Behl, APP for State.
                                Respondent No.2 in person.

              CRL.M.C. 4221-25/2006 & Crl M 7193/2006, 12936/07

       RANJEEV KUMAR & ORS                     ..... Petitioners
                   Through Mr.Manoj K.Singh with
                   Mr.Rupesh K.Gupta, Advocate

                       versus

       STATE & ANR                                          ..... Respondents
                                Through Mr. Pawan K. Behl, APP for State.
                                Respondent No.2 in person.

              CRL.M.C. 1262/2007 & Crl M A 4434/07, 9026/07

       UMESH SHARMA                                           ..... Petitioner
                                                                    in person.

              versus

       STATE & ANR.                                    ..... Respondents
                                Through Mr. Sanjeev Kumar, Respondent
                                No.2 in person.
                                Mr. Pawan K. Behl, APP for State.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
          allowed to see the judgment?                        No
       2. To be referred to the Reporter or not?              Yes
       3. Whether the judgment should be reported in Digest? Yes


Crl.M.C.Nos.4221-25, 4170-73/06 & 1262/07                          Page 1 of 13
                                JUDGMENT

16.03.2009

1. These three petitions under Section 482 of the Code of Criminal

Procedure, 1973 (CrPC) arise out of the common set of facts and are

accordingly disposed of by this common judgment.

2. Criminal Misc. (C) No.4170-73 of 2006 is by Binay Kumar Chaudhary,

the President of the Container Corporation of India Employees Union

(CCIEU), R.N. Mishra, Executive Member, CCIEU, K.K. Prashad, Office

Secretary, CCIEU and Ranjeev Kumar, General Secretary, CCIEU. The

prayer in the petition is for quashing of Criminal Complaint Case No.

1212/1 dated 5th July 2005 titled "Sanjeev Kumar v. Binay Kumar" and

the proceedings consequent thereto. By an order dated 28th March 2006,

Metropolitan Magistrate (MM), New Delhi summoned the accused persons

(including the petitioners here) for the offences under Section

199/200/419/34 IPC and under Section 3(1)(ix) and Section 3(2)(vii) of the

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act [SC

and ST Act] and 34 IPC. The complainant Mr. Sanjeev Kumar has been

arrayed as Respondent No.2 in the petition. In the said petition, Criminal

Misc. (C) No.4170-73 of 2006, notice was issued by this Court on 21st July

2006 and further proceedings before the trial court were stayed.

3. The second petition Crl. M.C. No. 4221-25 of 2006 has been filed by

Ranjeev Kumar, Samresh Kumar, Binay Kumar, V. Gangadhar and O.

Sairam seeking the quashing of seeking the quashing of C.C. No.1062/1

dated 28th May 2005, filed on the same facts by Respondent No.2 Sanjeev

Kumar against them. By an order dated 24 th March 2006 the learned MM

summoned the petitioners for the offences under Sections 199,200,419/34

IPC and Section3 (1) (ix) and 3 (2) (vii) of the SC and ST Act. On 25th July

2006 while directing notice to issue in the said petition, Crl. M.C. No.

4221-25 of 2006, this Court stayed the further proceedings before the trial

court and directed the petition be listed along with Crl. M.C. No. 4170-

73/2006.

4. The third petition being Crl. M.C. No. 1262 of 2007 is by Umesh Sharma

who is also an accused in Criminal Complaint No. 1212/1 and who was

also summoned by the same order dated 24th March 2006 passed by the

learned MM. Umesh Sharma is a lawyer who has been appearing on behalf

of the CCIEU for more than ten years. In the said petition, Crl. M.C. No.

1262 of 2007, by an order dated 26th April 2007 this Court directed notice

to issue and stayed the trial court proceedings.

5. In the aforementioned criminal complaints filed on filed on 28th May/9th

June and 5th July 2005 respectively, the complainant (Respondent No.2)

claimed to be one of the active members of the CCIEU and that he had been

elected several times as office bearer of its Executive Committee. He

claimed in the complaint that he was "presently elected in the election held

in February 2004 on the post of Vice President for the period of two years

as provided in the Constitution of the Union registered with the Registrar of

Trade Unions, Delhi". He stated that he had filed several complaints against

the management of Container Corporation of India Ltd. (CCIL) regarding

commission of unfair labour practices as well against the non-payment of

eligible dues to the complainant. He gave details of 5 such complaints filed

by him which were pending in the office of the Deputy Labour

Commissioner (South) [DLC], Labour Department, Government of the

National Capital Territory of Delhi (GNCTD). These complaints concerned

alleged non-payment of medical reimbursement, ex-gratia benefits,

subsistence allowance and arrears of wages.

6. It is stated that in each of the complaints 19th April 2005 was the date of

hearing before the Assistant Labour Commissioner (South) [ALC]. The

management of CCIL had been directed to pay to the complainant Rs.

48,233/- on that date. For some reason the complainant could not appear

before the ALC on that date. Later it transpired that a statement was made

before the ALC giving a false certificate of satisfaction of the claims as a

result of which the complaints stood withdrawn. The complainant accused

the aforementioned petitioners with furnishing false information and

statement to a public servant, i.e. the ALC, thus attracting the offences

under Sections 181 and 182 IPC. It was further alleged that a forged

certificate dated 19th April 2005 signed by accused Nos. 1 and 6 was

produced before the ALC thus attracting the offences under Sections 193,

196, 197, 198, 199, 200, 468, 470 and 471 IPC. The complainant further

alleged that the accused persons had "impersonated to be the members of

the executive committee of the union" and had withdrawn the complaints

and thereby causing injury to the complainant and that this attracted the

offences under Sections 418, 419 and 420 IPC.

7. The further allegation was that the accused persons had intentionally

given false information to the ALC, a public servant who had relied upon

such false information and the closed the complaints. This had caused

injury and annoyance to the complainant who was a member of a

Scheduled Caste and therefore the provisions of Section 3(1) (ix) and 3(2)

(vii) of the SC and ST Act also stood attracted.

8. The complainant listed as the Complainant's witnesses himself, one

Suresh Kumar Ranga, the concerned Officer from the office of the DLC

(South) and "any other witnesses." The complainant examined himself as

CW-1 and Suresh Kumar Ranga as CW-2. Suresh Kumar Ranga deposed

that he was the General Secretary of CCIEU and that he had not authorized

anyone to withdraw the complaints.

9. The case of the petitioners is that they have been working in the CCIL, a

public sector undertaking and that they are the office bearers and members

of the CCIEU holding the designations as indicated in the petition.

According to the petitioners, they became office bearers of the CCIEU

having been elected in the elections held in 2005-06. They informed the

Labour Commissioner and the DLC of their being elected by a letter dated

7th April 2005. According to the petitioners the complainant Sanjeev

Kumar, and Suresh Kumar Ranga are both dismissed/removed employees

of the CCIL. They lost the elections to the CCIEU held on 7 th April 2005.

They became inimical to the petitioners and started threatening them that

they would be falsely implicated in some criminal cases. Counsel

representing the CCIEU was also threatened. They filed the first criminal

complaint 1062/1 on 28th May 2005. On 13th June 2005 the CCIEU lodged

a protest with the ALC in regard to the threats received by its office bearers.

It is stated that shortly thereafter the second complaint 1212/1 was filed on

5th July 2005.

10. It is pointed out by the petitioners that soon after being defeated in the

elections Suresh Kumar Ranga filed Suit No. 30 of 2005 in the Tis Hazari

Courts, Delhi against the office bearers of the CCIEU seeking permanent

injunction against them. In the said suit he represented himself to be the

General Secretary of CCIEU. The fact that both Sanjeev Kumar,

complainant and Suresh Kumar Ranga had lost the elections for the year

2005-06 was not disclosed in the said suit. By a detailed order dated 25 th

April 2005, the learned Civil Judge, Delhi dismissed the application filed

by Suresh Kumar Ranga under Order 39 Rule 1 and 2 CPC seeking a

temporary injunction. The operative portion of the said order reads as

under:

"The prayer in the injunction application seemed to be vague. The plaintiff prays to direct the defendants not to represent as officer bearers of the plaintiff before any authority. The plaintiff further prays that the defendants be restrained from doing any act in the name of the plaintiff. The Ld. Counsel of the plaintiff was asked during arguments on what exact damage would be caused to plaintiff by the defendants. The Ld. Counsel for the plaintiff revealed that defendants are trying to withdraw certain legal proceedings for compensation etc., filed by the workers through the plaintiff union, before the labour commissioner and other authorities. The Ld. Counsel further submitted that these proceedings are withdrawn, it would be against the interest of the workers and also

cause damage to the reputation of the plaintiff. In my opinion for the reason above no injunction can be issued against the defendants. It is for the workers to see whether withdrawal of proceedings would be in their interest. Further, defendants must have been having authority to withdraw the same. The withdrawal of proceeding would cause no harm or damage to the plaintiff. The application has no merits and the same is hereby dismissed."

11. What is significant is that the fact of the filing of the above suit and the

passing of the above order was not disclosed in either of the two complaints

filed on 28th May and 5th July 2005 respectively by the complainant Sanjeev

Kumar in which he named Suresh Kumar Ranga as a witness. Further

Suresh Kumar Ranga also did not disclose this fact in his pre-summoning

evidence recorded before the learned MM on 7th October 2005.

12. Aggrieved by the dismissal of the application under Order 39 Rule 1 &

2 CPC, Suresh Kumar Ranga filed an appeal being MCA 73/2005 in the

Court of the Senior Civil Judge, Delhi. By a judgment dated 18th August

2005 the said appeal was dismissed. It was pointed out by the learned

Senior Civil Judge that after the respondents in the application (petitioners

herein) had stated that an election had already been taken place and that

since the new executive members had taken charge of their respective

offices in the CCIEU for the year 2005-06, the suit had necessarily to be

amended to seek a declaration with respect to the new members of the

elected union. It was also noticed that the issue as to who constituted the

real union was pending before the High Court.

13. The petitioners state that although by the stage of recording of the pre-

summoning evidence of the complainant's witnesses the aforementioned

appeal was dismissed, neither the complainant Sanjeev Kumar (Respondent

No.2) nor the other witness Suresh Kumar Ranga mentioned this in their

respective depositions before the learned MM during the recording of the

pre-summoning evidence or even during the course of arguments preceding

the summoning order dated 24th March 2006.

14. The one of the grounds on which the quashing of the complaints is

sought that by deliberately concealing the above facts, the complainant has

abused the process of law and should be denied relief on that ground alone.

15. In reply, it is submitted by Respondent No.2 who appears in person, that

he himself was not a party to the civil suit and therefore he cannot be

faulted with concealing in the criminal complaint the fact concerning the

order dated 25th April 2005 passed by the learned Civil Judge.

16. The above submissions have been considered by this Court. The

petitioners are right in their contention that learned MM was not informed

by respondent No.2 complainant or by Suresh Kumar Ranga of the civil

litigation and the orders passed therein rejecting their plea for a temporary

injunction. This concealment is indeed material as the order dated 25 th April

2005 shows that the plaintiff Suresh Kumar Ranga did raise a point about

the authority of the newly elected office bearers (i.e the petitioners herein)

to withdraw the complaints before the ALC. The Civil Judge declined to

pass and order restraining the latter in that regard. The explanation offered

by Respondent No.2 in his written submissions that he was not a party to

the suit and therefore "need not have had to mention it in his complaint" is

too simplistic and incredible. There can be no manner of doubt that the

Respondent No.2 was fully in the know of the developments surrounding

the elections to the CCIEU held on 7th April 2005. He and Suresh Kumar

Ranga had, according to the petitioners, lost those elections. That was why

the civil suit was filed seeking a permanent injunction against the

petitioners. Suresh Kumar Ranga was himself the complainant's witness

and he deposed as such before the learned MM in October 2005. Even if

one were to accept the above explanation by complainant Sanjeev Kumar

about not disclosing the above facts in the criminal complaint, there is no

justification whatsoever in not bringing the facts to the notice of the learned

MM either in writing subsequently or even during the recording of the pre-

summoning evidence. Both these persons were by then fully aware of the

above facts and deliberately chose not to reveal them to the learned MM.

The said facts had a direct bearing on the question whether the petitioners

had acted without the authority of law in withdrawing the complaints

pending before the ALC. In the circumstances, this Court finds the conduct

of the Respondent No.2 in suppressing material facts before the learned

MM to be a gross abuse of the process of law and fatal to the complaints.

Both complaints deserve to be quashed on this ground alone.

17. It is next submitted by the petitioners that the order dated 25th April

2005 passed by the Civil Judge in the suit by Suresh Kumar Ranga rejected

the contention that the petitioners herein should be restrained from doing

any act in the name of the CCIEU as it would be prejudicial to the plaintiff

(Suresh Kumar Ranga). In response to the submission made on behalf of

the Suresh Kumar Ranga that "defendants are trying to withdraw certain

legal proceedings for compensation etc., filed by the workers through the

plaintiff union, before the labour commissioner and other authorities", the

learned Civil Judge observed that "it is for the workers to see whether

withdrawal of proceedings would be in their interest". It was held that the

"withdrawal of proceedings would cause no harm or damage to the

plaintiff". It is submitted that the aforementioned order was affirmed by the

learned Senior Civil Judge on 18th May 2005 attained finality even before

the filing of the first criminal complaint i.e.1062/1 on 28 th May 2005. In

effect the allegation in the criminal complaint that the withdrawal of the

complaints before the ALC by the petitioners acting on behalf of the

CCIEU was without the authority of the law was untenable in law.

18. The reply by Respondent No.2 to this submission is that it raises

disputed questions of fact which ought not to be examined by this Court in

exercise of its powers under Section 482 CrPC. According to him this can

only be examined at a full-fledged trial. Reliance is placed by respondent

No.2 on the decisions in State of Bihar v. P.P.Sharma AIR 1991 SC 1260,

M.Narayandas v. State of Karnataka JT 2003 (Supp 1) SC 412 and State

of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 and a large number of

other decisions. Reliance is placed on a letter dated 27th October 2005

purportedly issued by the ALC observing that it is Suresh Ranga who is the

Secretary of the CCIEU and reviving the complaint which had been

withdrawn by the order dated 19th April 2005.

19. In the considered view of this Court on the facts of the present case, the

above decisions are not helpful to the Respondent No.2 since the facts are

not in dispute. They are discernible from the record itself. The proceedings

before the ALC on 19th April 2005 in complaint No. CO.III/COMPT/04/SD

records that the union filed a letter dated 19th April 2005 stating that it did

not support the complaint and was withdrawing it. A similar statement was

recorded as regards the complaint made by the complainant for ex-gratia

benefits, i.e., No. Compt.110/3/SA/III and complaint No. Compt./02/IV and

complaint No. 97/ALC/ND/SD30/04. The learned ALC accepted this

submission. The ALC was bound to take note of the stand of the present

office bearers of the CCIEU and act accordingly. No fault can be found

with the learned ALC for doing so. It is further noticed that the issue of the

validity of the elections was itself pending before this Court and there was

no order by the civil court restraining the petitioners herein from

discharging their function as elected office bearers of the CCIEU.

20. The Respondent No.2 who appeared in person sought to contend that

the complaint could not have possibly been withdrawn by the union as they

were concerned with payments of dues to the complainant. However, it was

not disputed by the Respondent No.2 that these complaints had in fact been

counter-signed by the union which was espousing the cause of the

Respondent No.2. The question regarding the authority of the newly

elected office bearers to withdraw the case which was specifically urged

before the learned Civil Judge and rejected by him by the order dated 25 th

April 2005. As already noticed, the said order has been upheld by the

learned Senior Civil Judge by the order dated 18th May 2005. In the

circumstances, the submission of the petitioners before the ALC on 19th

April 2005 and the order passed by the latter on that day on the basis of

such statement cannot be faulted with. This Court finds no basis

whatsoever for the allegation made in the two complaints that the

withdrawal of the suit by the newly elected office bearers acting on behalf

of the CCIEU was without the authority of the law.

21. The fact that the complaints have subsequently been revived by the

ALC as alleged by the complainant was also concealed before the learned

MM. In any event if indeed they have been revived then no prejudice has in

effect been caused to the complainant. Viewed from any angle, there

appears not even a prima facie case made out for proceeding against any of

the petitioners for the offences for which they have been summoned. As far

as Umesh Sharma is concerned, he was only acting as a lawyer for the

CCIEU and in the facts and circumstances, there was no justification

whatsoever for summoning him for any of the offences.

22. This Court is of the considered view that when the complaints are read

as a whole not even a prima facie case is made out for taking cognizance of

any of the offences and summoning the petitioners.

23. Accordingly, the Complaint Case No. 1062/1 dated 28th May 2005 titled

"Sanjeev Kumar v. Ranjeev Kumar & Others" and Complaint Case No.

1212/1 dated 5th July 2005 titled "Sanjeev Kumar v. Binay Kumar &

Others" and all proceedings consequent thereto including the summoning

order dated 24th March 2006 passed by the learned MM, Patiala House

Courts, New Delhi shall stand quashed.

24. The petitions and applications accordingly stand disposed of. A copy of

this order be sent to the learned MM concerned forthwith.

S. MURALIDHAR, J MARCH 16, 2009 ak