Anand Jain & Ors vs State
2012 Latest Caselaw 2761 Del

$~27
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 27th April, 2012

+     Crl.M.A.No.4893/2012 in CRL.A. 64/2012

      ANAND JAIN & ORS             .... Appellant/non-applicant.
                    Through: Nemo.

                      versus

      STATE                                     ..... Respondent/applicant
                               Through : Mr.Naveen Sharma, APP for State.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Instant application has been moved on behalf of the State under Section 482 Cr. P.C. for correction of error of fact and for recording the submission made by the State in the order dated 31.01.2012 in the above mentioned appeal.

2. In para Nos.3 to 9 of the instant application it is submitted as under:-

"3.That vide order dated 31.01.2012, this Hon'ble Court had been pleased to set aside the judgment and order on sentence dated 22.09.2011 and 27.09.2011 passed by the learned Additional Sessions Judge and the FIR No.137/2010 under Section 324/427 IPC Police Station Maurya Enclave stood compounded, thereby allowing the Criminal Appeal No.64/2012. While disposing off the said appeal, this Court had noted in paragraph No.19 as under:-

....Though, the ld. Trial judge could have proceeded with the matter in the absence of any stay granted by any superior Court, however, in my considered opinion, the judicial proprietary demands either to allow compounding at her level or wait for the outcome of the case filed before the superior Court. In the present case, since the offences were under Sections 323/427 Indian Penal Code, 1860, of compoundable nature without permission of the Court, as per Section 320 Cr.PC, therefore, the learned judge was bound to compound the same or should have waited till the outcome of the order of this Court."

4. That the trial court record had been called and perusal of the same revealed as under:-

(a) That no order of this Court dated 19.09.2011 passed in the quashing petition was present on the trial court record.

(b) That there is no document present on the judicial record to show that either of the parties had communicated to the learned Additional Sessions Judge regarding the pendency of the quashing petition before this Hon'ble Court.

(c) That the proceeding sheets of the learned Trial Court show that the parties had not brought to the notice of the learned Trial Court at any stage regarding the pendency of the quashing petition in the High Court.

(d) That on 21.09.2011, when the matter was committed to the Sessions Court, the parties also did not bring to the notice of the Ld.Metropolitan Magistrate Sh.Neeraj Gaur or the learned District Judge Sh.S.K.Sarvaria that the quashing petition is pending in the High Court.

(e) That the statement of parties including the appellants before this Court recorded under Section 313 Code of Criminal Procedure or their counsel in the Trial Court do not reflect the parties having informed the learned Trial Judge about the pendency of the quashing petition before the Delhi High Court.

(f) That the reports of the Probation Officer also reveal that none of the appellants had informed the Probation Officer regarding the pendency of the quashing petition before this Hon'ble Court and the only information given b y them was regarding the compromise having been entered between the litigating parties.

5. That during the course of hearing of the present petition, it had been pointed out by the prosecution that there was nothing on record to show that the learned Trial Judge had been apprised of the pendency of the quashing petition before this Court, a fact which had also been appreciated by this Hon'ble Court in the open Court while perusing the record and during the course of arguments of the prosecution and confronted the defence counsel with the same.

6. Despite the facts enumerated above, this Court in para No.19 of the judgment made specific observation imputing knowledge of the pendency of the quashing petition before this Court, which is

not born out from the judicial record of the Trial Court. The observations made by this Court in para No.19 are as under:-

"....Though, the learned Trial Judge could have proceeded with the matter in the absence of any stay granted by any superior Court, the judicial proprietary demands either to allow compounding at her level or wait for the outcome of the case filed before the superior Court ......"

7. That the above mentioned observations made by this Hon'ble Court are not reflected from the Trial Court record and are extraneous in nature. Even otherwise, it is the judicial record, which would prevail over any submissions made to the contrary, [Ref.: Section 114(e) of the Indian Evidence Act, 1872] in view of which the subsequent remarks in para 26 & 27 become redundant.

8. That the submissions so made by the prosecution during the course of arguments regarding the Trial Court not being made aware of the pendency of the quashing petition before this Court, though appreciated in the Court, but escaped the attention of this Court, while recording the submissions in the impugned order.

9. That the observations made in the impugned judgment are contrary to the records and has put the prosecution submissions in a dim and being an Officer of the Court, it is incumbent upon the prosecution to assist this Hon'ble Court, in putting the records straight in order to prevent abuse of process of law and held in advancing the cause of

justice."

3. It is pertinent to mention here that in para No.10 of the application it is stated that this Court can review its order as per provision of Section 482 Cr. P.C. which provides that 'nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.' This error of facts, has gravely eroded the credibility of the judicial institutions.

4. Further, in para No.11 of the said application, it is averred that the prosecution has not filed any appeal or revision before any other Court and this is the first of its kind.

5. Mr.Naveen Sharma, learned APP has submitted that the impugned judgment dated 31.01.2012 may be reviewed in the interest of judicial institutions.

6. Again at the cost of repetition, I have no hesitation to record here that in para Nos.8 to 10 of the judgment dated 31.01.2012, this Court observed as under:-

"8. It is further submitted that admittedly, the charges were framed under Sections 323/427 IPC read with Section 34 IPC against the appellants. The trial court though recorded the statements of the complainant PW1/Mahender Jain that they had compromised the matter with the accused persons with due intervention of the respectable members of the locality and their own Samaj and they do not want to proceed further.

9. PW2/Padam Jain in his cross-examination had deposed that they have compromised the matter with the appellants/accused persons with due intervention of the Mohalla people and respectable of their Samaj and they do not want to pursue the case further.

10. Despite the above mentioned statements, learned Additional Sessions Judge convicted the appellants though the benefit of probation was given to them."

7. Both the petitioners filed their respective petitions before this Court vide Crl.M.C.Nos.3120/2011 and 3121/2011 on 14.09.2011, recording a mutual compromise and based thereupon sought quashing of the two cross FIRs bearing Nos.136 and 137 of the year 2010.

8. Learned Trial Judge had recorded that PW1 Mahender Jain; PW2 Padam Jain and PW3 Anil Jain, admitted in their cross-examinations that they had compromised the matter with the accused persons with due intervention of the Mohalla people and respectable persons of their Samaj and they do not want to pursue further in the present case.

9. If the witnesses have disclosed these facts, before the learned Trial Judge, in that eventuality, I cannot believe that witnesses and learned counsel appearing on behalf of accused persons would not disclose the fact that they had filed petitions under Section 482 Cr. P.C. for quashing of the FIRs, as mentioned above. Whereas, the petitions for quashing were filed on 14.09.2011 and this Court had issued notices vide order dated 19.09.2011. Whereas, the case assigned to learned Trial Judge on 21.09.2011 and impugned judgment passed on 22.09.2011, after the notices were issued by

this Court in the above mentioned two petitions.

10. It is pertinent to mention that the charge-sheet in FIR No.1137/2010 was filed before learned Metropolitan Magistrate on 27.08.2010 on which date, cognizance was taken by learned Magistrate and directed to issue the summons to accused and notices to sureties for 05.04.2011.

11. On 05.04.2010, copies were supplied to accused persons and matter was adjourned for SD (scrutiny of documents)/ consideration on charge for 14.10.2011. In the interregnum, on 21.09.2011 an application moved by Inspector Parveen Kumar, SHO, Maurya Enclave for transfer of the case on the ground that connected cross case between the same parties vide FIR No.136/2010 was listed for trial on that date itself, in the Court of Dr.Kamini Lau, learned Additional Sessions Judge; and it is further submitted that all the parties were present in the Court of learned Judge, aforementioned. Thus, this case ought to have been committed with the connected cross case; but the fact of pendency of any cross case could not be brought to the knowledge of learned Magistrate by the concerned IO.

12. The said application was allowed and learned Magistrate directed to place the case file before the learned District Judge forthwith for passing appropriate orders of sending the file to the Court of Dr.Kamini Lau. Accordingly, Shri S.K.Sarvaria, District Judge/Incharge North-West, Rohini Courts, Delhi directed the file be placed before learned Transferee Court on that date itself i.e. 21.09.2011.

13. Accordingly, matter was taken up by learned Additional Sessions Judge on 21.09.2011 itself. Learned Judge framed the charges under for the

offences punishable under Sections 323/427 read with Section 34 Indian Penal Code, 1860, against all the four accused persons. To which all accused persons pleaded not guilty and claimed trial. Since accused Ankur was exempted through counsel, the charges framed against him was signed by learned counsel appearing on his behalf.

14. I note from the Trial Court Record that on the same date, i.e. 21.09.2011 PW1 Mahender Jain, PW2 Padam Jain, and PW3 Anil Jain were examined. Since, PW1 Mahender Jain and PW3 Anil Jain resiled from their earlier statements recorded under Section 161 Cr. P.C., learned Public Prosecutor cross-examined them. PW2 Padam Jain was also examined and cross-examined by learned defence counsel.

15. I further note that on 21.09.2011 itself statement of accused persons on oath was recorded, wherein they have deposed as under:-

"We are the accused in this case. We are not disputing the MLCs of the complainant and injured which are Ex.PX1, Ex.PX2, and Ex.PX3. We also do not dispute our arrest memos which are Ex.P4 to Ex.PX7 respectively. We have no objection if the concerned doctors, the police witnesses pertaining to our arrest and the investigating officer are not examined as witness since we are admitting the proceedings."

16. Initially, vide order dated 27.08.2010 after taking cognizance leaned Magistrate directed for issuance of summons to accused, for 05.04.2011. Vide order dated 05.04.2011 on appearance of accused persons, copies were supplied to them and learned Magistrate posted the matter for SD/ consideration on charge for 14.10.2011. But due the application moved by

the SHO of police station Maurya Enclave, matter reached to learned Additional Sessions Judge on 21.09.2011 and concluded the proceedings qua framing of charge, recording prosecution evidence on 21.09.2011 and posted the matter for recording of statement of accused persons for 22.09.2011.

17. On 22.09.2011, statement of all four accused persons under Section 313 Cr. P.C. were recorded separately. All the four accused namely Mohit Jain, Anand Jain, Ankur Jain and Himanshu Jain in answer to last question i.e. Question No.11 "Do you wish to say anything else?" deposed as under:-

Mohit Jain : The present case against me is a counter blast of the case which was registered against them under FIR No.136/10. Besides this, the complainant Mahender Jain and the injured are our next door neighbours. We belong to the same community (Jain Samaj) and with the intervention of the respectables of the community we have settled all our disputes with the complainant / injured. I am a student of B Com (Hons) from Delhi University and also doing my CA course. I therefore pray that a lenient view be taken against me keeping my further in mind.

Anand Jain : The present case against me is a counter blast of the case which was registered against them under FIR No.136/10. Besides this, the complainant Mahender Jain and the injured are our next door neighbours. We belong to the same community (Jain Samaj) and with the intervention of the respectables of the community we have settled all our disputes with the complainant / injured. I pray that a lenient view be taken against me.

Ankur Jain: The present case against me is a counter blast of the case which was registered against them under FIR No.136/10. Besides this, the complainant Mahender Jain and the injured are our next door neighbours. We belong to the same community (Jain Samaj) and with the intervention of the respectables of the community we have settled all our disputes with the complainant / injured. I have just completed my graduation and now I am in search of a job or settle in business. I therefore pray that a lenient view be taken against me keeping my further in mind.

Himanshu Jain : The present case against me is a counter blast of the case which was registered against them under FIR No.136/10. Besides this, the complainant Mahender Jain and the injured are our next door neighbours. We belong to the same community (Jain Samaj) and with the intervention of the respectables of the community we have settled all our disputes with the complainant / injured. I have just completed my B. Tech (Electronics and Communication) and now I am preparing for CAT Examination to get admission in MBA. I therefore pray that a lenient view be taken against me keeping my further in mind."

18. The interesting point which emerged from perusal of Trial Court Record is that learned Trial Judge conducted the entire trial on 21.09.2011, does not make any observations on the scrutiny of documents etc as before assignment/transfer, the matter was fixed for same purpose. I failed to understand for what purpose, on receipt of case, on 21.09.2011 itself learned Trial Judge framed the charges and concluded prosecution evidence. It is true that speedy justice is demand of the hour, but at the same time,

procedural steps should not be brushed aside and it should not be allowed to come in the way of imparting justice. If this course of action is adopted by learned Trail Judge in routine, then such practice may crept in due to heavy work load or haste. Else, the observations made by this Court in the judgment dated 31.01.2012 regarding counselling of learned Trial Judge is imperative to safeguard the public at large, so that proper justice can be imparted to them.

19. Therefore, firstly, the instant application is not maintainable as there is no provision of review under Criminal Procedure Code 1973. Secondly, if the Trial Judge has specifically not recorded factum of pendency of quashing petitions before this Court, rather recorded in the statement of witnesses that itself was sufficient to record in the case.

20. Accordingly, instant application is dismissed.

21. No order as to costs.

SURESH KAIT, J APRIL 27, 2012 Mk