Prem Nath Sharma vs Smt. Darshana & Others
2011 Latest Caselaw 3308 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment delivered on: July 13, 2011

+      CRL.M.C. NO. 3224/2009

       PREM NATH SHARMA                         ....PETITIONER
               Through: Petitioner  in    person      with  Mr.
                        R.K.Bhardwaj, Advocate.


                         Versus

       SMT. DARSHANA & OTHERS               ....RESPONDENTS

Through: Mr. Ajay Verma, Advocate for respondents No. 1 & 2.

Mr. Sachin Sharma, Advocate for respondent No. 3.

Respondent No. 4 in person.

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.(ORAL)

1. Prem Nath Sharma, vide this petition, seeks to challenge the

order of learned ACMM dated 14th May, 2009 in complaint case titled

"Prem Nath Sharma Vs. Diwan Chand & Ors." whereby the complaint

filed by the petitioner was dismissed as withdrawn and accused

persons were acquitted.

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

that the petitioner filed above noted complaint under Sections

147/148/307/217/269/270/34 IPC read with Section 120B IPC against

the respondents and others on 08th January, 1990. The preliminary

enquiry into the complaint went on till 25th March, 2000 when the

learned ACMM, after examining as many as 17 witnesses,

summoned respondents No. 1 to 4 and Diwan Chand (since expired)

& Shaheen Das (since expired) for the offences punishable under

Sections 147/148/323 IPC. Learned ACMM also summoned

respondent No. 4 Head Constable Prem Singh and Surjeet Lal,

Inspector (since expired) under Sections 217 read with Section 34

IPC. On 25th January, 2008, learned Magistrate partly examined the

complainant and recorded the statement of PW2 Shanti Swaroop

Sharma.

3. On 14th May, 2009 the petitioner sought to withdraw his

complaint claiming that he has compromised the matter with the

respondents. Learned ACMM recorded his statement in this regard,

which was duly signed by the petitioner. In view of the said

statement, learned ACMM allowed the withdrawal of complaint

under Section 257 Cr.P.C and acquitted the respondents.

4. Feeling aggrieved by the impugned order dated 14 th May,

2009, the petitioner has approached this court claiming that the

withdrawal of the complaint is the result of his counsel Mohd.

Saleem colluding with the accused persons and he, because of his

old age, could not comprehend the import of his statement recorded

by the learned ACMM on 14th May, 2009, which led to the impugned

order acquitting the respondents and others because of withdrawal

of the complaint.

5. I have heard learned counsel for the petitioner. Petitioner has

also filed written submissions in support of his petition. The plea of

the petitioner is that he was never ready and willing to withdraw the

complaint on 14th May, 2009 and he was pushed into making the

statement for withdrawal of complaint on 14 th May, 2009 by his

counsel Mohd. Saleem, who colluded with the accused persons. It is

submitted that the petitioner, on 14 th May, 2009 was aged about 75

years and because of his old age, he was misled into making the

statement before the court. It is also submitted that the complaint

was filed under various sections of the I.P.C including Section 307.

Thus warrant trial case procedure was applicable in this case and

Section 257 Cr.P.C, which relates to summons trial cases, was not

attracted. Thus, petitioner has urged for setting aside of impugned

order.

6. Learned counsels appearing for the respondents submit that

there is no infirmity in the order of the learned ACMM dated 14 th

May, 2009 for the reason that the learned ACMM was cautious

enough to record the statement of the petitioner and obtained his

signatures on the same. It is submitted that the present petition is

nothing but an abuse of process of law to harass the respondents.

7. In order to appreciate the contention of the parties, it would be

appropriate to reproduce the relevant portion of the impugned order

of learned ACMM dated 14th May, 2009:

"The matter in dispute has been amicable resolved out of the court with the assistance of their respective counsel. Statement of complainant recorded separately. Considered. Perusal of record shows that the present case dates back to the year 1990. The matter is at the stage of pre-charge evidence. Charge is yet to be framed by the court. Keeping view the statement made by the complainant, amicable settlement of dispute between the parties out of the court and considering entirety of the facts and circumstances of the case, complaint filed by the complainant is dismissed as withdrawn. Accused persons are acquitted of the offences alleged to be committed by them. Their bail bond stands discharged. Surety bond cancelled. Original documents be returned to the parties, if any, after cancellation of endorsement on the documents. File be consigned to RR".

8. From the record, it also transpires that before passing the

impugned order, the learned ACMM recorded the statement of the

petitioner Prem Nath Sharma, which reads thus:

"I am the complainant in the present case. I have amicably settled my dispute with the accused persons. The accused persons have apologized for their mistake and tendered unconditional apology to me. Accused Kalo @ Poonam Sharma and Shani were my neighbours and we had good relations with each other .The matter

has been sorted out with the able assistance of my counsel and the advocate for the opposite parties out of the court. I do not want to litigate with the accused persons. I am 76 years old and want to live peacefully and maintain harmonious relationship with the accused persons. I may kindly be permitted to withdraw my complaint dated 8/1/90 for the offences alleged to be committed by the accused persons as mentioned in the complaint."

9. On perusal of the above, it is obvious that withdrawal of the

complaint was permitted on the basis of statement made by the

petitioner Prem Nath Sharma, which was duly signed by him. One

cannot lose sight of the fact that the petitioner Prem Nath Sharma is

a retired police officer as such, he is expected to know criminal law.

Section 257 of the Code of Criminal Procedure provides, if the

complainant, at any time before the final order is passed in a

complaint case pertaining to an offence triable as a summons trial,

satisfies the Magistrate that there are sufficient grounds for

permitting him to withdraw his complaint against one or more

accused, the Magistrate may permit him to withdraw the same and

in that eventuality, the Magistrate shall acquit the accused person/s

against whom the complaint is so withdrawn. From the summoning

order dated 25th March, 2000, it is apparent that one set of accused

persons were summoned under Sections 147/148/323 IPC and other

set of accused persons have been summoned under Section 217

read with Section 34 IPC. The above offences are triable in

accordance with the summons trial procedure, therefore, Section

257 CrPC is squarely applicable to this case. From the statement of

the petitioner, it is obvious that he voluntarily sought to withdraw

his complaint on the ground of amicable settlement with the parties.

Therefore, the impugned order of learned ACMM cannot be faulted.

10. The other contention of the petitioner is that since he had been

pursuing the complaint diligently for almost two decades, it is not

possible that he would have withdrawn the complaint suddenly on

14th May, 2009.

11. I am not convinced with the above submission for the reason

that the petitioner, in his statement made to the court on 14 th May,

2009 clearly stated that he had arrived at a settlement with the

respondents. Once the settlement was arrived at, the petitioner,

under the natural course of events, was expected to withdraw the

complaint. Thus, the previous delay in the proceedings cannot be

made a ground to permit the petitioner to get out of the statement

made to the court.

12. Petitioner, in his written submissions has tried to canvass that

he was persuaded and compelled by the learned ACMM to withdraw

the aforesaid complaint. This allegation of the petitioner runs

counter to his other plea that his counsel colluded with the

respondents and did not explain to him as to what was happening in

the court and as a result, he was misled into making a statement for

withdrawal of the complaint.

13. In view of the discussion above, I do not find any merit in the

petition under Section 482 CrPC. Otherwise also, the offence is

alleged to have been committed as early in November, 1989.

Therefore, after almost 22 years of alleged offence, it would not be

appropriate to reopen the criminal proceedings against the

respondents for a minor offence under Section 323 IPC.

14. Petition is accordingly dismissed.

(AJIT BHARIHOKE) JUDGE JULY 13, 2011 akb