Ajay Pal Singh vs State Of Nct Of Delhi & Anr.
2021 Latest Caselaw 2509 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 14th September, 2021
        IN THE MATTER OF:
+       CRL.REV.P. 272/2021
        AJAY PAL SINGH                                          ..... Petitioner
                           Through     Mr. Sharad Malhotra, Advocate
                                       (DHCLSC) along with the petitioner -
                                       in person.

                           versus

        STATE OF NCT OF DELHI & ANR               ...... Respondents
                      Through   Ms. Meenakshi Chauhan, APP for the
                                State
        CORAM:
        HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. This revision petition filed under Section 397/401 Cr.P.C is directed against the order dated 14.02.2020, passed by the Additional Session Judge- 03, North West, Rohini Courts, New Delhi in Criminal Appeal No.66/2019 where by the Additional Session Judge has dismissed the appeal filed by the petitioner and has affirmed the order dated 16.03.2019, passed by the Metropolitan Magistrate-02, North West, Rohini Courts, New Delhi. The learned Metropolitan Magistrate vide order dated 16.03.2019 has acquitted the respondents No.2 herein for offences under Section 506 IPC arising out of NCR No.23/2016 dated 02.04.2016, registered at Police Station Shalimar Bagh.

2. It is stated that the petitioner herein is a Senior Citizen and he has filed several FIRs against the respondent No.2 herein. The first FIR being

FIR No.755/2000, was registered by the petitioner against the respondent No.2 for offences under Sections 420/120B IPC. It is stated that pursuant to a settlement arrived at between the parties, the said FIR was quashed. It is stated that after the quashing of the aforesaid FIR, the respondent No.2 failed to pay the settlement amount to the petitioner herein and instead starting threatening the petitioner. It is stated that on 01.06.2015, the petitioner filed an FIR against the respondent No.2 herein, being FIR No.693/2015 dated 01.06.2015, registered at Police Station Shalimar Bagh, for offences under Sections 307/341/506/34 IPC alleging that the respondent No.2 is threatening the petitioner with dire consequences. It is stated that on 02.04.2016, at about 7:15 P.M., when the petitioner was going to the Police Station Shalimar Bagh to enquire about the status of FIR No. 693/2015, the respondent No. 2 met the petitioner outside the Police Station and threatened him with dire consequences and asked him to take back the case. On the complaint of the petitioner NCR No.23/2016 dated 02.04.2016, was registered at Police Station Shalimar Bagh for offence under Section 506 IPC. After investigation charge-sheet has been filed. On being summoned, the accused entered appearance, he pleaded not guilty and claimed trial.

3. Proceedings were initiated against the accused. In order to prove the guilt, prosecution examined 5 witnesses.

i. PW-l (Ajay Pal Singh) is the complainant.

ii. PW-2 is Inspector Surender who was examined to prove the DD entry being DD No.61B.

iii. PW-3 is SI Suresh Pal who deposed that on receiving the DD No.41A he reached the place of the incident and the instant NCR was lodged.

4. The learned Metropolitan Magistrate held that there are glaring contractions in the statements of the prosecution witnesses. He further held that mere utterance of words cannot constitute an offence under Section 506 IPC unless the accused/respondent No.2 herein, at the time when the words were uttered, had the means to carry out that threat into action. The learned Metropolitan Magistrate further held that the words uttered should cause an alarm to the complainant and the testimony of PW-1 does not reveal that he was alarmed by the words uttered or the threat extended by the respondent No.2 herein. The learned Metropolitan Magistrate, therefore, held that even if the allegations levelled by the petitioner herein are taken at face value, then also the case against the respondent No.2 herein for commission of offence under Section 506 IPC is not made out. The learned Metropolitan Magistrate vide order dated 06.03.2019 acquitted the accused.

5. The matter was taken up in appeal by the petitioner herein. The learned Additional Session Judge perused the record and found that the order of acquittal does not require any interference. The learned Additional Session Judge observed that the complainant did not depose with precision as to how the respondent No.2 threatened him. The learned Additional Session Judge held that the complainant disclosed the exact words used by the respondent No.2 only at the time of cross-examination by the learned APP for the State. He held that there are contradictions in the statements of the prosecution witnesses and the allegation of the complainant is only that the accused gave threats to him. He held that there is no mention that the threats caused alarm to the complainant. The Additional Session Judge vide order dated 14.02.2020 dismissed the appeal. It is this order which is under challenge in the instant petition.

6. Heard Mr. Sharad Malhotra, learned counsel appearing for the petitioner, Ms. Meenakshi Chauhan, learned APP appearing for the State and perused the documents.

7. A perusal of the deposition of PW-1, the complainant/petitioner shows that on 02.04.2016, he had visited the Police Station Shalimar Bagh to inquire about the FIR No.693/2015. It is stated that when he reached at the main gate of the Police Station, he saw respondent No.2 there. It is stated that the respondent No.2 threatened the complainant by asking him to take back the case. It is stated that after threatening the petitioner herein, the respondent No.2 walked away from there and the petitioner herein called the PCR. During his cross-examination, the petitioner herein deposed that on 02.04.2016 he visited the Police Station Shalimar Bagh between 7 to 8 P.M. and the Respondent No.2 met him about 20 meters away from the gate of the Police Station and threatened him by saying "main tumhe chodunga nahi, jaan se maar dunga, apna case wapis lelo". He further stated that SI Suresh came out of the Police Station and called the respondent No.2 from the phone of the Police Station and asked him to come back to the Police Station.

8. PW-2 Inspector Surender Kumar has deposed that on 02.04.2016, he was posted at Police Station Shalimar Bagh as Sub-Inspector. He stated that he was the investigating officer of the case in FIR No.693/15 in which respondent No.2 was the accused and he was granted anticipatory bail from High Court of Delhi on 15.03.2016 and the respondent No.2 was called at Police Station Shalimar Bagh to join the investigation on 02.04.2016. PW-2 deposed that after interrogation, respondent No.2 was arrested in the abovesaid FIR formally and all the relevant papers regarding his arrest and

surety were filled up and he was released on bail at about 7:15 PM. He further deposed that after PW-2 left he lodged DD No.61-B. During cross- examination PW-2 stated that the respondent No.2 had arrived at about 06:45 PM and all formalities regarding his arrest and release were carried out by 07:15 PM. He deposed that he had prepared the arrest memo and the surety memo.

9. PW-3, SI Suresh Pal, had deposed that on 02.04.2016 he was posted at Police Station Shalimar Bagh as ASI and DD No. 41A was marked to him at about 07:30 PM. He stated that after receiving the DD he reached the place of incident (Opposite BH-Block, Shalimar Bagh, (near PS)) and met the petitioner herein who gave the statement regarding the present case. He stated that based on the statement of the petitioner one NCR was lodged under Section 506 IPC and permission was taken from the court for investigation. He stated that during investigation CDR details of the respondent No.2 herein were collected and it was found that the respondent No.2 was present near the place of incident at 7:15 PM. On cross- examination, PW-3 admitted that BH Block is opposite to the Police Station and there is a road in between. He further deposed that he could not comment whether a person sitting in the Police Station may also have tower- location in the BH-Block or not. He deposed that BH-Block is a huge area of about 800-1000 meters. PW-3 further deposed that he had left the Police Station at about 07:30 PM, as per DD No.41-A, and returned back at about 08:10PM, vide DD No.43-A. He stated that he had called the respondent No.2 from the landline phone of the Police Station and asked him to join the investigation. He stated that the phone number of the respondent No.2 was provided by the complainant to him at the place of incident which was at a

distance of about half a kilometre from the Police Station. He deposed that he went to the place of incident on foot and it is 5-10 minutes walk on one side. He further stated that he went to the place of incident and carried out investigation there for about 15 minutes and then returned to the Police Station and made the call to the respondent No.2.

10. The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. has been explained in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, the Supreme Court observed as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

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20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section

does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non- compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused." (emphasis supplied)

11. The reasoning given by the Trial Court that as per the testimony of PW-1, the incident occurred at 7:15 PM on 02.04.2016 outside Police Station Shalimar Bagh. However, as per DD No.61-B dated 02.04.2016, the respondent No.2 was there in the Police Station till 7:30 PM. It is surprising that instead of going to the Police Station the petitioner preferred to call the PCR, to get the complaint registered, as the incident occurred at the gate of the Police Station itself. It is also surprising that as per the CDR of the respondent No.2, the IO had called the number of the respondent No.2 from the landline phone of the Police Station at 7:45 PM while PW-3 has deposed that he returned to the Police Station at about 8:10 PM. PW-3 has also deposed that the place of incident was at a distance of half a kilometre from the Police Station while PW-1 deposed that respondent No.2 met him about 20 meters away from the gate of the Police Station and threatened him. The

Appellate Court has found that there are several contradictions in the chief examination and the cross-examination of the prosecution witnesses. The Appellate Court also, after going through the deposition of PW-1, found that the same does not inspire confidence.

12. Reading of the judgments of the Courts below shows that the Trial Court and the first Appellate Court, after perusing the documents and analysing the evidence, have acquitted the accused. It cannot be said that the judgment of the Courts below are perverse and requires interference of this Court.

13. After two courts have acquitted the accused. This Court while exercising its jurisdiction under Section 397/401 Cr.P.C. cannot substitute its own conclusion to the one arrived at by the Courts below. It cannot be said that the view taken by the Courts below is not a plausible view. There is no reason to interfere with the concurrent findings of the acquittal given by two Courts.

14. The judgment dated 14.02.2020, passed by the Additional Session Judge-03, North West, Rohini Courts, New Delhi in Criminal Appeal No.66/2019 is sustained.

15. Accordingly, the petition is dismissed along with the pending application(s), if any.

SUBRAMONIUM PRASAD, J SEPTEMBER 14, 2021 Rahul