Rajinder Singh vs State (Nct Of Delhi) & Anr.
2010 Latest Caselaw 3509 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: July 20, 2010
                            Judgment delivered on: July 28, 2010


+      CRL.M.C.NO.2978/2009

       RAJINDER SINGH                        ....PETITIONER
               Through:      Mr. Rajesh Mahajan, Advocate with
                             Ms. Satsheel Sheokand, Advocate,
                             Mr. Ajay Raghav, Advocate & Mr. Mohit
                             Mathur, Advocate.

                        Versus

       STATE (NCT OF DELHI) & ANR.        .....RESPONDENTS
               Through: Mr. Pawan K. Bahl, APP for the
                        State/respondent No.1.
                        Mr. R.S. Juneja, Advocate for respondent
                        No.2.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Rajinder Singh, the petitioner herein, vide instant petition under

Section 482 of the Code of Criminal Procedure (for short "Code") has

prayed for quashing of the order dated 21.10.2008 passed by learned

ACMM, Karkardooma Courts in Complaint Case No.686/2004 whereby

the petitioner has been summoned to undergo trial for the offences

punishable under Section 406 and 420 IPC. Petitioner has also prayed

for quashing of the order of the learned Additional Sessions Judge III

(East), Karkardooma Courts in Criminal Revision No.10/2009 filed

against the above referred order of the learned ACMM whereby he

added Sections 468 and 471 to the summoning order passed by the

learned ACMM.

2. Briefly stated, facts relevant for the disposal of this petition are

that respondent No.2 filed a criminal complaint against the petitioner

and three others being CC No.686/2004 under Sections 420, 465, 467,

468, 469, 471 and Section 120B IPC in the court of learned ACMM,

Karkardooma Courts. On conclusion of preliminary inquiry, learned

ACMM summoned the petitioner only for standing trial for the offences

punishable under Section 406 and 420 IPC. Learned ACMM, however,

was of the view that no case for summoning of other three accused

was made out.

3. Feeling aggrieved by non-summoning of other three accused

persons, respondent No.2 preferred a revision petition against the

impugned order dated 21.10.2008 of learned ACMM. Revision petition

was filed by making State as respondent and the petitioner was not

arrayed as a respondent in the petition. Learned Additional Sessions

Judge also did not bother to direct respondent No.2 to implead the

petitioner and three others as respondents in his revision petition.

Learned Additional Sessions Judge vide his impugned order dated

20.03.2009 declined to interfere with the order of learned ACMM so far

as non-summoning of other three persons arrayed as accused in the

complaint is concerned. He, however, took the view that the complaint

and material on record also disclosed commission of offences

punishable under Section 468 and 471 IPC by the petitioner, as such he

revised the order of the learned ACMM by adding Section 468 and 471

to the summoning order.

4. The impugned order of learned ACMM dated 21.10.2008 is

challenged on the ground that the allegations made in the complaint as

well as the evidence and material produced during preliminary inquiry

do not disclose the commission of the offence under Section 406 or

420 IPC. The order of revisional court dated 20.03.2009 is challenged

on the ground that it is bad in law because the said adverse order has

been passed by the learned Additional Sessions Judge ex parte against

the petitioner without impleading him as a party to the revision petition

and without affording him any opportunity to make his submissions

against the proposed addition of the aforesaid offences of forgery and

using a forged document as genuine. He, however, submitted that

even the commission of the said two offences under Section 468 and

471 IPC is also not made out.

5. Learned counsel for respondent No.2, at the very outset, raised a

preliminary objection to the maintainability of the petition under

Section 482 of the Code of Criminal Procedure so far as the prayer for

quashing of the summoning order dated 21.10.2008 of ACMM is

concerned. He submitted that if at all the petitioner is aggrieved by

the aforesaid summoning order, he could easily have filed a revision

petition against his summoning in the court of Sessions and since he

has not availed of the aforesaid equally efficacious remedy, his prayer

for quashing of the order of learned ACMM is not maintainable. In view

of this preliminary objection, learned counsel for the petitioner seeks to

withdraw his prayer for quashing of the order of the learned ACMM

dated 21.10.2008 with liberty to file a revision petition against the said

order.

6. Thus, in view of above, the prayer of the petitioner for quashing

of order dated 21.10.2008 of learned ACMM is dismissed as withdrawn

with liberty to the petitioner to file revision petition against the said

order in the court of Sessions, if he so desires.

7. As regards the order of the learned Additional Sessions Judge

dated 20.03.2009, it is pertinent to note that the summoning order was

passed by the learned ACMM on a private complaint filed by

respondent No.2 Pritam Singh against the petitioner. He, however,

filed the revision petition against the summoning order by making

State as respondent instead of petitioner. The learned Additional

Sessions Judge failed to notice this infirmity and did not bother to

implead petitioner Rajinder Singh as a respondent in the revision

petition and went on to hear the revision petition ex parte against the

petitioner and added Section 468 and 471 IPC to the summoning order,

which addition of offences to the summoning order, obviously, is

adverse to the petitioner. The question which thus arises for

consideration, is whether the learned Additional Sessions Judge was

justified in passing an order on revision petition in the absence of the

petitioner (accused) in exercise of its jurisdiction under Section 397 of

the Code of Criminal Procedure.

8. Section 397 of the Code empowers the High Court as well as the

Sessions Court to call for the records of the court below to exercise its

power of revision in order to satisfy itself as regards the correctness,

legality or propriety of any finding, sentence or order, recorded or

passed, and as to the regularity of any proceedings of such inferior

court, subject to Sub-Section (2) of Section 397 of the Code, which

prohibits exercise of such power in relation to any interlocutory order

passed in any proceedings.

9. Section 399 of the Code deals with the Sessions Judge's power of

revision and Section 401 of the Code deals with the powers of High

Court in revision. Sub-Section (2) of Section 401 of the Code reads

thus:

"401. High Court's powers of revision.- ....

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity

of being heard either personally or by pleader in his own defence."

10. Sub-Section (2) of Section 399 reads thus:

"399. Sessions Judge's powers of revision.- .....

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceedings and references in the said subsections to the High Court shall be construed as references to the Sessions Judge."

11. From the reading of Sub-Section (2) of Section 399, it is clear that

the provisions of Sub-Section (2), (3), (4) and (5) of Section 401 shall

apply to the proceedings by way of revision before a Sessions Judge

also.

12. Sub-Section (2) of Section 401 provides that no order under this

Section shall be made to the prejudice of the accused or other person

unless he has had an opportunity of being heard. In the instant case,

admittedly learned Additional Sessions Judge in revision has added

Section 468 and 471 to the order of summoning despite of the fact that

the petitioner was not arrayed as a respondent in the revision petition

and without issuing notice to him or affording him an opportunity of

being heard against the proposed addition of said two offences in the

summoning order. Therefore, I am of the view that the impugned order

of the learned Additional Sessions Judge dated 20.03.2009 cannot be

sustained.

13. Otherwise also, it would be seen from the impugned order dated

20.03.2009 that the reason given by the learned Additional Sessions

Judge for adding Section 468 and 471 IPC is that the evidence led by

the complainant at pre-summoning stage reveals that the accused

(petitioner) prima facie forged certain documents and used them as

genuine. The impugned order does not give description of the

documents which were purportedly forged and used as genuine.

Neither the complaint nor the pre-summoning evidence spell out which

document has been forged and used by the petitioner as genuine.

Therefore, prima facie there is no justification for adding Sections 468

and 471 IPC to the summoning order.

14. In view of the discussion above, I am of the opinion that the order

of the learned Additional Sessions Judge dated 20.03.2009 cannot be

sustained. It is accordingly set aside.

15. Petition is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE

JULY 28, 2010 pst