Rajinder Singh Ahuja v. State of NCT of Delhi

ORDER

(i) The order dated 15 November, 2016 passed by the learned Judicial Magistrate, First Class, 3 Court, Baramati is set aside and RCC No. 645 of 2014 stands dismissed;

(ii) Consequentially, the First Information Report bearing C.R. No. 375 of 2016 registered with Wadgaon Nimbalkar Police Station on 19 November, 2016 is quashed and set aside;

(iii) We make it clear that we have made no adjudication on the merits of the pending case and merits of the allegations made by the second respondent as regards commission of the offence punishable under Section 302 read with Section 34 of the Penal Code, 1860;

(iv) Rule is made absolute on above terms with no order as to costs."

9.1 With due respect, again ratio of this judgment is not applicable to the facts of the present case as there is no application under Section 156(3) Cr.P.C. surviving and there is no concealment of facts. Rather, the entire complaint of the respondent No. 2 is based upon the facts and circumstances disclosed in the charge-sheet filed by the State.

¶10Reliance is also placed on Vanitabai & Ors. v. State of Maharashtra & Anr. reported as III (2017) DMC 642 (DB) (Bom.), especially on para 16, which is reproduced hereunder:-

¶16We find that when the learned Magistrate has taken cognizance of the allegations of respondent No. 2 in complaint R.C.C. No. 366/2016 against accused Nos. 1 to 6 and has

discharged accused No. 7, they cannot be again compelled to face ordeal of trial on the same facts. It amounts to abuse of the process of the Court. Hence, we hold that F.I.R. is not maintainable and pass the following order:

ORDER

(i) Criminal Application is allowed. The F.I.R. registered against the applicants at C.R. No. 38 of 2017 at Begumpura Police Station, Aurangabad now transferred to Vaijapur for offence punishable under Section 498-A, 323, 504, 506 read with Section 34 of Indian Penal code, is hereby quashed.

(ii) We clarify that the observation made herein are made only for deciding the present application filed by the present applicants and these observations shall not be used elsewhere in any other trial against the present applicants or anybody else."

10.1 In the above case, same accused were again facing another trial on the same facts. It is not the case of the respondent No. 2 here. As on date, there is no case registered against the present petitioners and only a complaint is pending before Ld. M.M., hence ratio of this judgment is not applicable.

¶11It is also submitted that testimony in another case is not to be relied upon as was held in the case of Shadab Siddique @ Aman Vs. State of West Bengal & Anr. reported as 2017 SCC Online Cal 102. Relevant is para No. 9, which is reproduced hereunder:- "9. Finally, the learned Counsel for the petitioner sought for production of the documents like seizure list and/or deposition recorded in the course of trial in the aforesaid case relating to possession of fire arms where the petitioner had been convicted. It is settled law that evidence of one case cannot be used in another case until and unless the witness has been confronted with his deposition in the other case. No such effort has been made by the defence in the course of trial of the instant case. Hence, I am constrained also to disallow the prayer of the petitioner to produce/rely on the documents exhibited and/or evidence adduced in the aforesaid case under the provisions of the Arms Act."

11.1 With due respect, again ratio of this judgment has not application to the present case as there is no order of the Ld. M.M. on merits of the

complaint. Witnesses are yet to be recorded as ordered by Ld. ASJ and the outcome of consideration of merits of evidence to be led by complainant cannot be discussed at this stage.

11.2 It is also submitted that respondent No. 2 never requested to examine any further witnesses and the Court on its own cannot grant the said opportunity. The complainant's case cannot be treated as a cross-case. In my view, in the interest of justice, Ld. ASJ has the power to order examination of any further witness(s), if the complainant wishes, so as to uncover the truth and to set the controversy to finally rest and with a view to give a broader view to the Ld. Magistrate to decide the complaint on merits.

¶12On the other hand, respondent No. 2 has relied upon the State of M.P. v. Mishrilal (Dead) and Ors. reported as (2003) 9 SCC 426. In para 7 and 8 of this judgment, it is mentioned that when there were two versions of the same incident and a complaint has been filed on the basis of the version as propounded by the complainant, duly supported by forensic evidence, so the case is to be decided on its own merit. Hence, the learned ASJ was right in giving a chance to the complainant/respondent No. 2 to lead further evidence to prove the contents of the complaint at pre-summoning stage.

¶13It is also the submission of the respondent No. 2 that the petitioners have moved this Court at a premature stage as there is no finding against them, which may prejudice the present petitioners. Rather the learned ASJ, vide impugned judgment, has only remanded the matter back with a fixed time frame and has given opportunity to complainant/respondent No. 2 to examine further witnesses, if required, and if after crossing the said stage, the learned MM passes any adverse order against the interest of the petitioners, they have every right to challenge the same. This Court agrees

with this submission. Recording of pre-summoning evidence is essentially at the instance of the complainant and proposed accused persons cannot object to the same. As and when, if at all, they are summoned, at that stage the present petitioners will have a right to challenge their summoning.

¶14The revision petition is without any merit and the same is hereby dismissed.

TALWANT SINGH (JUDGE) MAY 29, 2023/nk/mr

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment pronounced on : 29.05.2023 + CRL.REV.P. 210/2021 & Crl.M.A. 10122/2021 RAJINDER SINGH AHUJA & ORS. ..... Petitioners Through: Mr. Hrishikesh Baruah, Mr. Joy Banerjee & Mr. Kumar Kshitij, Advs. versus STATE OF NCT OF DELHI & ANR. ..... Respondents Through: Mr. Tanmaya Mehta & Mr. Lalit Valecha, Advs. for Complainant. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. Petitioners have preferred the present revision petition against an impugned order dated 25.06.2021 passed by learned Additional Sessions Judge-04 (hereinafter referred to as 'ASJ'), District South-East, Saket Courts, New Delhi in Criminal Revision Petition No. 892/2019. Vide the afore-said order, the learned ASJ had partly allowed the criminal revision petition against the order impugned therein dated 11.11.2019, passed by Shri Gagandeep Jindal, learned Metropolitan Magistrate (hereinafter referred to as MM), Saket Courts in CC No. 5661/2018, by which the complaint filed by the present respondent No.2 was dismissed under Section 203 of the Code of Criminal Procedure (Cr.P.C.). 1.1 Learned ASJ had directed the parties to appear before the learned MM, who was ordered to permit further examination of any other witness(s), if sought for by the complainant, and thereafter pass a reasoned order in view of the observation made in the order dated 25.06.2021 passed by the learned ASJ. 1.2 Feeling aggrieved, the present petitioners have filed this criminal revision petition. 1.3 The case, in nutshell, of the petitioners is that the daughter of the petitioner No.1, namely Ms. Pavni Ahuja, got married to the son of respondent No.2, namely Mr. Amrinder Singh Sodhi, on 24.04.2011. Certain disputes arose between petitioners no.1's daughter and respondent no.2's son and Ms. Pavni Ahuja left her matrimonial home and started living at her parental home, where she died on 25.02.2015. It is a case of an unnatural death. 1.4 Petitioner No.1 reported the matter to the police and FIR No. 94/2015, Police Station: Greater Kailash under Section 498A, 304-B, 354A, 34 of Indian Penal Code (IPC) was registered and during investigation respondent No.1, his wife and son were arrested and they remained in judicial custody for a long time. On 18.08.2015, they were granted regular bail by the District Court. The charges were framed against accused persons on 03.12.2015 under Sections 304B,498A & 34 of Indian Penal Code, 1860 (hereinafter referred to as IPC). 1.5 Respondent No.2 filed a revision petition challenging the order framing charge and the said petition was numbered as Criminal Revision Petition No. 248/2016. The other co-accused persons filed similar petitions. Later on the revision petition No.248/2016 was dismissed as withdrawn. In the criminal case from 2016 to 2020, about 18 witnesses were examined and cross-examined. 1.6 It is further stated that in the meantime on 27.06.2018, respondent No.2 filed a criminal complaint along with an application under Section 156 (3) of Code of Criminal Procedure before the learned M.M. claiming therein that he was earlier not aware about the circumstances leading to the death of Ms. Pavni Ahuja and certain lapses in investigation were pin-pointed. The present revision petitioners were arrayed as respondents/proposed accused. The said complaint was filed under Section 302, 201, 465, 467, 469, 471, 120 B and 34 IPC. This complaint was dismissed on 15.10.2018 along with an application under Section 156(3) Cr.P.C. 1.7 Being aggrieved, the present respondent No.2 filed Criminal Revision Petition No. 77/2018 before the Sessions Court and vide order dated 18.04.2019, the Sessions Court held that the complaint cannot be dismissed without undergoing the procedure of recording the complainant's evidence and therefore, the matter was remanded back to the Court of learned M.M. for recording of the same. Respondent No.2 examined himself as CW-1; Mr. Sunil Kumar-Ahlmad of the Court of Shri Sandeep Ya