VIJAY KUMAR AGARWAL vs THE STATE (GOVT. OF NCT OF DELHI) AND ANR.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 07.11.2023
% Pronounced on : 21.02.2024
+ CRL.M.C. 3027/2023 & Crl. M.A.30416/2023 (stay)
VIJAY KUMAR AGARWAL ….. Petitioner
Through: Petitioner in person (through VC)
versus
THE STATE (GOVT. OF NCT OF DELHI) AND ANR.
….. Respondents
Through: Mr. Raghuinder Verma, APP for the State with SI Habib Khan, P.S. ER-I, Crime Branch.
CORAM:
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. By the way of this petition petitioner is seeking quashing/setting aside of the impugned Order dated 23.1.2023 passed by Shri Arun Sukhija, Additional Sessions Judge, Karkardooma Courts, Delhi, dismissing Criminal Revision Petition No. 56 of 2018, titled Vijay Kumar Agarwal v State.
2. In brief the facts of the case are that on 26.12.2002 the complaint were lodged by the tenant of petitioner and FIR nearing no. 524/2002 under Section 457/380/341 I.P.C. was lodged at PS Pandav Nagar. Petitioner filed Writ Petition (Crl.) No. 768 of 2003, titled Vijay Kumar v State and others, praying for quashing of the said FIR No. 524/2002 and for registration of a proper FIR in accordance with law against the opposite party, was dismissed by the co-ordinate bench of this Honble Court, on the ground of availability of alternative remedy under the Cr.P.C.
3. Order on Charge was passed against the petitioner in the said F.I. R. by the learned ACMM Karkardooma Courts, Delhi, vide order dated 11.12.2012. The petitioner preferred the Criminal Revision Petition, challenging the impugned order dated 11.12.2012, whereby, the application of the Revisionist/Accused/Petitioner for supply of deficit/deficient documents was dismissed and the Ld. Trial Court has framed the charges under sections 448/457/380/341 IPC against the petitioner. The petitioner diligently challenged the said Order on Charge dated 11.12.2012 through Criminal Revision Petition No. 76 of 2013 on the grounds that the same has evaded, defeated and simulated Section 240 of the Cr.P.C. The said Criminal Revision Petition No. 76 of 2013, titled Vijay Kumar Agarwal v State, was dismissed by the learned ASJ vide order dated 07.10.2013 considering that this conduct of the accused has led to the wastage of precious time of the courts.
4. The petitioner submitted that the impugned Order dated 23.1.2023 is completely erroneous inasmuch as it has not considered the submission of the petitioner that the Order dated 11.12.2012 has incorrectly recorded that arguments were heard on the point of charge. It is further submitted that the impugned Order dated 23.1.2023 is completely erroneous inasmuch as it is in the teeth of the settled law that an act of the court shall not cause prejudice to any person, vide the legal maxim actus curiae neminem gravabit. As held in State of Orissa v Mamata Mohanty, decided by the Honble Supreme Court on 9.2.2011:
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..it becomes the solemn duty of the Court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court inHotel Balaji v State of Andhra Pradesh, AIR 1993 SC 1048 observed as under:
..To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v Delameter (A.M.Y. at page 18): a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead and courageous enough to acknowledge his error.
5. Learned APP for the State has vehemently opposed the contentions raised by the petitioner. He submitted that there is no infirmity in the impugned order. He further submitted that the petitioner was given due opportunity to argue the case which is evident from order dated 11.12.2012 and 23.01.2023.
6. For the purpose of completeness, it would be appropriate to mention the relevant portions of the orders dated 11.12.2012 and 23.01.2023. Order dated 11.12.2022 read as follows:
11.12.2012
Pr: Ld. APP for the State.
Accused is present on bail.
It is submitted by him that he will not engage any lawyer as he does not require the same and will defend the case on his own.
Accused is advised and informed that if he require, a lawyer at the state expenses from Legal Aid can be provided to him as per rules but he insist that he does not require the services of a lawyer.
He moved an application u/s 207 Cr.P.C.
Arguments heard. Record perused.
As per record, vide order dt. 19.04.2004, cognizance of offence u/s 457/380/341/448 IPC was taken and accused was summoned. Subsequently an application dt. 23.09.2009 was moved for supply of copies. Vide order dt. 15.02.2012, it was observed by Ld. Predecessor that no further documents remained to be supplied. Vide order dt. 20.09.2012, the aforesaid application dt. 23.09.2009 was dismissed. Today again, the accused moved the application u/s 207 Cr.P.C for the same relief. In view of the earlier orders, there is no merit in the application under consideration and the same is dismissed.
Arguments on the point of charge heard. Prima facie offence u/s 448/457/380/341 IPC is made out against the accused. Charge u/s 448/457/380/341 IPC is, accordingly, framed against him to which he pleaded not guilty and claimed trial. Now list the case for PE on 08.03.2013.
Complainant be summoned for the NDOH.
The relevant portion of the order dated 23.01.2023 has been reproduced hereinbelow:
V. In nutshell, the case of the prosecution against the accused/petitioner is inter alia as under:-
..Pinaki Ghosh and Dheeraj Sharma were the tenants H. No. C-8C, 2nd Floor, Pandav Nagar, Delhi since June, 2002 on a monthly rent of Rs. 1800/-. They have deposited Rs. 1800/- as Security money with him. The nature of the Petitioner/accused was very irritating and fussy. On 28.11.2002, Pinaki Ghosh had gone at his native place as his father had expired and on 21.12.2002, when Dheeraj Sharma had gone to inform the landlord that the tenants will vacate the room/premises on 01.01.2003 due to some personal reasons, on which, petitioner/accused stated that he will not return the security deposit amount of Rs. 1800/-back to them and stated that they have informed one month in advance and he has also misbehaved and given warning to Dheeraj Sharma that he is an IAS Officer and he can get them arrested. The accused had also made a call to PCR and local police and on arrival of police officials and involvement of police and local residents the matter was compromised with Dheeraj Sharma on the ground that he will vacate the room on 01.01.2003 without asking for return of any security amount. On this, Dheeraj Sharma after locking the room alongwith the household articles left the room and went to his relatives house on next morning i.e. 22.12.2002 and during the said period Pinaki Ghosh was at his native place. On 25.12.2002, when Pinaki Ghosh returned back, he saw that the lock which was put by the tenants (Dheeraj Sharma and Pinaki Ghosh) was missing and another lock was put on the said room. On inquiry, accused submitted that the police had locked and police will arrest them. It is also informed by accused that Dheeraj Sharma had kept the room lights, heater/emersion rod, fan (s) on. Thereafter, Dheeraj Sharma came there and they discussed the matter with the accused/petitioner on which he stated that if they want to compromise the matter and to avoid arrest, they had to pay Rs. 2000/- to him and also to vacate room immediately. When they had shown their inability to pay the money in addition to Rs. 1800/-, on which Vijay Kumar stated that he will inform the police and put them behind bars and he again introduced himself as an IAS Officer.
The tenants went to Pandav Nagar PS on inquire about that whether police officials locked the room on the door of the said premises on which police officials stated that they had not put any lock on the door nor there was any case for arresting the tenants. Thereafter, the tenants asked the accused to open the main door to enter into their rooms but he did not open it due to which they stay outside the above said premises for the whole night.
Police visited several times and tried to get open the lock but could not open the lock. At about 3am, police officials again came but the accused was not present and attendant/servant of the accused opened the main door of the premises and they went upstairs and meanwhile police officials left the spot. When the tenants reached at 2nd floor, they found that main door of the room was missing and it was apparently found that someone had scattered the belongings of the room. After checking the tenants found that total cash of Rs. 4800/-, one Aiwa Walkman, two computer speakers, one Philips two in one and one Timex wrist watch were found missing. The bathroom was also found locked and they were also having their belongings still inside. Due to harassment and cold weather, they collected their belongings and went to a friends place after informing the police namely Sanjay Bhatt of PS Pandav Nagar…
VI. The tenants made the complaint to the P.S. regarding the aforesaid facts. After detailed investigation, the police filed the charge sheet under Section 173 of CrPC. The complainants have given their complaint and statement. The IO has also recorded the statement of nearby shopkeeper.
VII. Vide impugned order dated 11.12.2012, the Ld. Trial Court, after perusing the record, came to the conclusion that prima facie offences under Sections 448/457/380/341 IPC are made out against the accused.
VIII. The perusal of the record reveals that the accused/petitioner hasnt left any stone unturned to delay the matter on one ground or the other. At all times, the petitioner has tried to glorify his picture being an IAS officer. He is also ordinary citizen like any other citizen of India but being an IAS officer, he has tried to show the other citizens that he is above law and not bound by law and he can do whatever he feels with impunity. In the Memo of parties of the Revision petition also, he has mentioned himself as an Ex lAS Officer, which is not at all the requirement of law but it appears that he wanted to glorify his picture before the Court of law also.
IX. This Court is of the considered opinion that the Ld. Trial Court has rightly considered the entire material on record in its correct perspective and framed the charges in accordance with law. There is sufficient material on the record, which shows that the prima facie case is made out against the accused/petitioner. No doubt, the Ld. Trial Court has not, in so many words, mentioned in the order that what is the case against the accused but in the charges, which were framed against the accused/petitioner, sufficiently shown that the Ld. Trial Court has considered the entire material on the record before framing the charges against him. The Ld. Trial Court has also heard the petitioner/accused and thereafter, framed the charges against him. The charges clearly show the signature of the accused/petitioner below RO&AC.
X. At the cost of repetition, there was sufficient material on the record, including the complaint/statement of the tenants, for framing the charges against the accused/petitioner and the Ld. Trial Court has rightly framed the charges against him. The Judgments, as relied upon by the accused/petitioner, are of no help to the petitioner/accused.
XI. The perusal of the Trial Court record reveals that the Ld. Trial Court has already examined seven witnesses, which included the tenants/star witnesses and now, mostly the formal witnesses with IO are left to be examined. This is an FIR, which was lodged in the year 2002 and already 20 years have already been elapsed.
FINAL ORDER:
XII. In view of the above observations, this Court is passing the following final order:-
ORDER
(a) The present revision petition is hereby dismissed and accordingly, the impugned order dated 11.12.2012 qua framing of the charge is hereby upheld. However, anything observed in this order shall have no bearings/expressions on the merits of the case.
7. I have perused the order dated 11.12.2012 and 23.01.2023 passed by the courts below. A perusal of the same reveals that the petitioner was duly heard by both the courts. I have also gone through the FIR and the evidence collected during the investigation which shows that prima facie case is made out against the petitioner. Furthermore, in Central Bureau of Investigation vs. Aryan Singh, the Honble Supreme Court has observed that High Court cannot conduct a mini-trial while using its power under Section 482 of the Code of Criminal Procedure, 1973 and further held that at the stage of discharge, the Court has a very limited jurisdiction and is required to consider whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not. Moreover, as per the order dated 23.01.2023, seven prosecution witnesses have already been examined.
8. In the light of the aforesaid, I find no infirmity in the impugned order which clearly shows that prima facie case is made out against the petitioner. The present petition is, accordingly, dismissed along with pending application.
9. Needless to state that nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case.
RAJNISH BHATNAGAR, J
FEBRUARY 21, 2024
CRL.M.C. 3027/2023 Page 7 of 7