Delhi High Court
Krishna Devi vs State & Anr. on 4 April, 2013
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% CRL. REV. P. NO.683/2010
+ Date of Decision: 4th April, 2013
# KRISHNA DEVI ....Petitioner
! Through: Mr. Anil Aggarwal & Mr. S.N. Pandey,
Advocates
Versus
$ STATE & ANR. ...Respondents
Through: Mr. M.N. Dudeja, APP for the State
Mr. Ashish S. Kulshreshtha, Advocate
for R-2 alongwith R-2 in person
AND
% CRL. REV. P. NO. 684/2010
# KRISHNA DEVI ....Petitioner
! Through: Mr. Anil Aggarwal & Mr. S.N. Pandey,
Advocates
Versus
$ STATE & ANR. ...Respondents
Through: Mr. M.N. Dudeja, APP for the State
Mr. Naresh C. Sharma, Adv. for R-2
along with R-2 in person.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
CRL. REV. P. Nos. 683-84/2010 Page 1 of 8
ORDER
P.K.BHASIN, J:
These two revision petitions were filed by the petitioner-complainant
under Sections 397 and 401of the Code of Criminal Procedure,1973( „Cr. P.C.‟
in short) against the order dated 6th May, 2010 passed by learned Additional
Sessions Judge in the Criminal Revision Petition Nos. 14 and 15 of 2009 filed
by two accused-police officials, who have been separately impleaded as
respondent no. 2 in these petitions, whereby the order dated 2nd May,2009
passed by the learned Metropolitan Magistrate herein summoning them as
accused for the commission of the offence under Section 325/34 IPC was set
aside.
2. The relevant facts are that the petitioner-complainant had lodged a
report on 1st December,1996 at Najafgarh police station against the then Station
House Officer(SHO) of that police station Inspector Sat Pal Sharma, who is
respondent no. 2 in Criminal Revision Petition No. 684 of 2010, Sub
Inspector Bhagwati Prasad, who is respondent no. 2 in Crl. Revision Petition
No. 683 of 2010, and other unnamed policemen, in respect of the incident
which occurred on 29th November,1996 when these two police officials
alongwith some other policemen had come to her house and severely beaten
her husband and when she had tried to save her husband from the assault of the
policemen she was also slapped and manhandled and the policemen had then
taken her and her husband to the police station. At the police station she was
asked to take off her clothes which she refused to do and then she was slapped
and abused. In that incident the leg of her husband was broken because of the
lathi blows given to him. Since the petitioner‟s complaint was against the SHO
and his subordinates no FIR was registered and that led to the filing of a
criminal writ petition(being Crl.W.P.No.66/1997) by the petitioner herein in
this Court. Only thereafter FIR No. 575/97 under Sections 325/509/323/34 IPC
came to be registered on 3rd September, 1997 pursuant to the directions of this
Court in the said writ petition.
3. The petitioner-complainant‟s grievance is that though this Court had also
directed in the writ petition that the investigation was to be carried out under
the supervision of Additional Commissioner of Police but the police was not
deterred by this Court finding the allegations made against the policemen to
be prima facie good enough for registration of FIR and investigation into those
allegations and that is evident from the fact that the investigation done was
completely an eye-wash and after completing the paper formalities a
closure/cancellation report was submitted in the Court of the concerned
Metropolitan Magistrate on 30th September, 2000 to the effect that no case was
made out for charge sheeting any police man. The Magistrate was, however,
not satisfied with the investigation done and so further investigation was
ordered vide order dated 20th April, 2002. The investigation was done by the
Crime Branch but once again the police submitted a report in Court on 16th
December, 2006 that no case was made out against anyone and that the
complaint of the complainant was motivated and fabricated lodged against the
police officials to avenge the arrest of her son in a case relating to some
incident which took place on 6th November, 1996. This time the learned
Magistrate, however, realized that come what may the police is not going to
prosecute the policemen and accordingly accepted the closure/cancellation
report submitted by the police vide order dated 6th July,2007 instead of once
again directing further investigation. However, simultaneously the learned
Magistrate himself took cognizance also and called upon the petitioner-
complainant to produce whatever evidence she had to substantiate her
allegations against the police officials against whom she had lodged the
complaint.
4. The petitioner-complainant thereafter adduced her evidence by
examining herself and five other witnesses. The learned Magistrate found that
the evidence sufficient to summon the SHO Inspector Sat Pal Sharma and Sub-
Inspector Bhagwati Prasad as accused for the commission of the offence
punishable under Section 325 IPC and so both of them were summoned vide
order dated 2nd May,2009.
5. Feeling aggrieved by the order of the Magistrate summoning them as
accused the SHO as well as the Sub-Inspector filed separate revision petitions
in Sessions Court. Criminal Revision Petition No. 14/09 was of SI Bhagwati
Prasad and Criminal Revision Petition No. 15/09 was of Inspector Sat Pal
Sharma.
6. The learned Additional Sessions Judge vide common order dated 6 th
May,2010 allowed both the revision petitions and set aside the summoning
order passed by the Magistrate.
7. The petitioner-complainant did not accept the revisional court‟s decision
exonerating the two police officials and so she approached this Court by filing
these two petitions challenging the correctness and legality of the decision of
the learned Additional Sessions Judge.
8. The learned Additional Sessions Judge had accepted the plea raised
before her on behalf of the two summoned accused police officials that after
having accepted the closure report submitted by the police the Magistrate was
left with no complaint before him and so the procedure adopted by him by
directing the complainant to adduce her evidence, as prescribed under Section
200 Cr.P.C., was not permissible in law. Same stand has been taken before this
Court also on behalf of the two policemen by their learned counsel as well as
by the learned Additional Public Prosecutor appearing for the State while
supporting the decision of the learned Additional Sessions Judge setting aside
the order of the Magistrate summoning the policemen.
9. The learned counsel for the petitioner-complainant had submitted that
the view taken by the learned Additional Sessions Judge is legally not correct
and is liable to be set aside by this Court.
10. In my view also the view taken by the learned Additional Sessions Judge
that after having accepted the cancellation report submitted by the police the
petitioner-complainant could not be called upon to adduce evidence in support
her allegations leveled against the accused police officials is not the correct
view in law. Similar question had arisen before the Supreme Court way back
in the eighties in the case of "M/s India Carat Pvt.Ltd. vs State of Karnataka
& anr.", (1989) 2 Supreme Court Cases 132 . In that case also the police had
registered an FIR on receipt of a complaint directly from the complainant and
not through any Magistrate under Section 156(3) Cr.P.C., as is the fact situation
in the case in hand also, and after completing the investigation the police had
submitted a closure report, as is also the situation in the present case. The
Supreme Court held that the Magistrate at that stage could either straightway
summon the accused disagreeing with the report of the police or even the
procedure under Section 200 Cr.P.C. could also be adopted by calling upon the
complainant to adduce evidence in support of the complaint even when no
private complaint had been filed in Court and the investigation had not been
carried out by the police pursuant to the direction of the Magistrate under
Section 156(3) Cr.P.C. The relevant observations of the Supreme Court in the
said judgment are reproduced below:
"16. The position is, therefore, now well settled that upon receipt
of a police report under Section 173(2) a Magistrate is entitled to take
cognizance of an offence under Section 190(1)(b) of the Code even if
the police report is to the effect that no case is made out against the
accused. The Magistrate can take into account the statements of the
witnesses examined by the police during the investigation and take
cognizance of the offence complained of and order the issue of process
to the accused. Section 190(1)(b) does not lay down that a Magistrate
can take cognizance of an offence only if the investigating officer gives
an opinion that the investigation has made out a case against the
accused. The Magistrate can ignore the conclusion arrived at by the
investigating officer; and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case, if he
thinks fit, in exercise of his powers under Section 190(1)(b) and direct
the issue of process to the accused. The Magistrate is not bound in
such a situation to follow the procedure laid down in Section 200 and
202 of the Code for taking cognizance of a case under Section
190(1)(b) though it is open to him to act under Section 200 or Section
202 also. The High Court was, therefore, wrong in taking the view that
the Second Additional Chief Metropolitan Magistrate was not entitled
to direct the registration of a case against the second respondent and
order the issue of summons to him.
17. The fact that in this case the investigation had not
originated from a complaint preferred to the Magistrate but had been
made pursuant to a report given to the police would not alter the
situation in any manner. Even if the appellant had preferred a
complaint before the learned Magistrate and the Magistrate had
ordered investigation under Section 156(3), the police would have had
to submit a report under Section 173(2). It has been held in Tufa Ram
& Ors. v. Kishore Singh, [1978] 1 SCR 615 that if the police, after
making an investigation, send a report that no case was made out
against the accused, the Magistrate could ignore the conclusion drawn
by the police and take cognizance of a case under Section 190(1)(b)
and issue process or in the alternative he can take cognizance of the
original complaint and examine the complainant and his witnesses and
thereafter issue process to the accused, if he is of opinion that the case
should be proceeded with."
11. That exactly was done by the Magistrate in the case in hand and in view
of the said decision of the Apex Court there was no fault committed by the
Magistrate justifying interference by the Sessions Court in exercise of the
revisional jurisdiction.
12. These petitions are therefore, allowed and the impugned order of the
learned Sessions Judge reversing the summoning order dated 2nd May,2009 of
the learned Metropolitan Magistrate is set aside and the order of the
Metropolitan Magistrate is restored. The case shall be taken up again now by
the Metropolitan Magistrate on 1st May, 2013 at 2 p.m. and then the matter
shall be proceeded further in accordance with law.
P.K.BHASIN, J
April 4, 2013
