K.S.Meena & Ors. vs Nct Of Delhi & Anr.
2015 Latest Caselaw 634 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(Crl.) No.481/2007
                                      Decided on : 22nd January, 2015

    K.S.MEENA & ORS.                                        ..... Appellant
                       Through:     Mr.Vineet Malhotra, Adv.

                       versus

    NCT OF DELHI & ANR.                                    ..... Respondent

                       Through:     Ms.Ritu Kumar, Adv.for R-2.

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI
    V.K. SHALI, J. (ORAL)

Crl.M.A. No.13331/2012

1. This is an application filed by the respondent No.2 seeking

recall of order dated 21.05.2012 under Section 151 CPC read with

Section 482 Cr.P.C. though this is a criminal writ petition.

2. By virtue of the order dated 21.05.2012, the writ petition of the

petitioners was dismissed as withdrawn on account of a statement and

a representation having been sent by the respondent No.2 from the

Jail addressed to the Registrar General of this court to the effect that

he does not want to pursue his criminal complaint against the present petitioners. The respondent No.2 by virtue of the present application

is seeking to withdraw the said statement and consequently seeking

revival/restitution of the present writ petition. Before dealing with the

submission made by the respondent No.2/applicant, it will be

pertinent here to give a brief background of the case.

3. The present petitioners are employees of the Tihar Jail, New

Delhi who were summoned as accused persons on the basis of a

complaint having been made by the respondent No.2. The summoning

was for offences under Sections 323, 384 read with Section 511 IPC.

The summoning order was passed by the ACMM after recording the

preliminary evidence. The order of summoning was challenged by the

petitioners before this court and further proceedings in the complaint

filed by the respondent No.2/applicant were stayed by this court vide

order dated 23.04.2007. During the pendency of this writ petition in

the year 2012, the respondent No.2 was produced before this court on

17.05.2012 in judicial custody and he expressed his desire to

withdraw the complaint which had filed and on the basis of which the

petitioners were summoned by the ACMM. The matter was

adjourned to 21.05.2012. However, on the said date, the respondent No.2 was not present in the court. It was brought to the notice of the

court that the respondent No.2 was in judicial custody and since there

were no production warrants issued against him for 21.05.2012,

consequently, he could not be produced from the Central Jail, Tihar.

However, the Registrar General had received a letter from the

respondent No.2 which was placed before the court wherein it was

stated that the respondent No.2 is not interested in prosecuting the

complaint which he had filed against the petitioners. On the basis of

the fact that the respondent No.2/applicant had appeared in person on

17.05.2012 and had expressed his desire not to pursue the criminal

complaint filed by him coupled with the fact that a letter was sent by

him to the Registrar General confirming the said fact, the petitioners

did not press their writ petition and the same was accordingly

dismissed as withdrawn.

4. Subsequent thereto on 03.08.2012, the present application, filed

by the respondent No.2, was taken up wherein it was stated that he

had not given his consent for withdrawal of the complaint against the

petitioners of his own free will and the order dated 21.05.2012 had

recorded the facts incorrectly. Notices were issued on the application to the petitioners.

5. The learned counsel for the respondent No.2/applicant has

contended that the respondent No.2 never intended to withdraw his

complaint against the present petitioners and at the time when he is

purported to have made a statement in this regard before this court

seeking withdrawal of his complaint, he was confined in judicial

custody for almost 7-8 years and, therefore, he was being coerced by

the petitioners and the other jail officials not to prosecute the matter.

It has been stated that the apex court has also observed in Sunil Batra

v. Delhi Administration; 1980 AIR 1579 that where the rights of a

prisoner, either under the Constitution or under other law, are

violated, the writ power of the court can and should run to his rescue.

Accordingly, in the instant case, the learned counsel for the

respondent No.2/applicant has contended that the statement attributed

to him seeking withdrawal of his complaint against the present

petitioners or the letter purported to have been written by him to the

Registrar General intimating that he is not interested in prosecuting

the matter against the petitioners have not been made voluntarily and

thus cannot be acted upon. Accordingly, the learned counsel for the respondent No.2/applicant has prayed for

revocation/modification/recall of the order dated 21.05.2012 by virtue

of which the present writ petition was dismissed as withdrawn.

6. This fact has been refuted by the learned counsel for the

petitioners. He has contended that not only the respondent No.2 had

appeared and made a statement seeking withdrawal of the complaint

made by him against the petitioners, but he had by his conduct also

shown that he is not interested in prosecuting the said complaint. In

this regard, he has drawn the attention of the court to the letter written

by the respondent No.2 to the Registrar General of this court as well

as the statement made by him before the learned CMM, New Delhi on

04.06.2013 when he got his statement recorded in CC No.18/1/07

titled Christopher James v. V.K.S.Meena & Ors. The said statement

reads as under:

"I voluntarily and without any force or coercion want to make a statement that the present complaint case may be dismissed as withdrawn. I have fully understood import and consequences of my statement. I pray that the present complaint case may be dismissed as withdrawn."

7. Accordingly, it has been contended that since the respondent

No.2 had also made a statement before the CMM, Delhi, therefore, he cannot be permitted to now contend, after the lapse of a

considerable period of time, that the statement which is attributed to

him by virtue of which the criminal complaint filed by him against the

present petitioners was sought to be withdrawn, had not been made

voluntarily and accordingly, the application filed by the respondent

No.2/applicant is an afterthought and deserves to be dismissed.

8. I have considered the rival contentions and gone through the

record. As per Section 80 of the Indian Evidence Act, 1872 the

presumption of correctness is attached to the judicial proceedings.

The proceedings recorded on 21.05.2012 clearly record that the

respondent No.2 had appeared before the court on 17.05.2012 and had

expressed his desire not to prosecute his criminal complaint which

was followed up by him sending a letter to the Registrar General of

this Court in this regard. It is also recorded in the order sheet that the

purpose of adjourning the matter from 17.05.2012 to 21.05.2012 was

to ensure that the respondent No.2 had sufficient time available to him

so as to make up his mind as to whether he would like to prosecute

his complaint or not. On 21.05.2012, he was not produced in the

court as his production warrants had not been issued. But, nevertheless, he had shown his intention of not prosecuting his

criminal complaint by writing a letter to the Registrar General of this

court. The present application seeking withdrawal of the order dated

21.05.2012 was filed on 17.07.2012 after a gap of nearly two months.

In addition to this, the respondent No.2 had also made a statement

before the CMM, Delhi on 04.06.2013 that he does not want to

prosecute his criminal complaint. Curiously, at the time when he

made a statement before the learned CMM, he had been produced in

custody from Phulwari Jail, Patna and not from Tihar Jail. Therefore,

it could not be assumed that while he was in the custody of jail

officials of Phulwari Jail, Patna, the influence of jail officials of Tihar

Jail, Delhi was on him. On the contrary, the respondent

No.2/applicant while getting his statement recorded on 04.06.2013

also stated that he is making the statement voluntarily and without

any force or coercion. That being the state of affairs, now it is too

late for the respondent No.2/applicant to turn around and contend that

the order of this court dated 21.05.2012 be recalled. If this is

permitted to be done, then there will be no end to litigation. The

respondent No.2 is taking vacillating stands depending on the situation. The court is not aware of the reasons why he is doing so.

It seems that the present application filed by the respondent

No.2/applicant is actuated by some ulterior motives which are best

known to the respondent No.2 himself. So far as the present

application is concerned, it cannot be revived only on the ground that

the statement which is purported to have been made by the respondent

No.2 before this court as well as before the CMM was under force or

coercion. The respondent No.2 had to show to the court as to who

was the person who had put the respondent No.2 under duress and

what was the duress to which he was subjected to.

9. I find that the present application is based on totally flimsy

grounds and is an afterthought. The same is accordingly dismissed.

V.K. SHALI, J JANUARY 22, 2015/dm