S.S. Dalal & ANR. v. Suresh Chhikara
Date of decision: 31st August, 2015 S.S. Dalal and another
Petitioners
Versus
Suresh Chikkara
Respondent ! ! 1.
Whether Reporters of Local Newspapers may be allowed to see the judgment?
2.
Whether to be referred to the Reporters or not? 3.
Whether the judgment should be reported in the Digest?
Present:
Mr. J.S. Bedi, Senior Advocate with Mr. Sonpreet Singh, Advocate for the petitioners.
Mr. Rajesh Lamba, Advocate for the respondent.
!" This is a petition preferred under Section 482 of the Code of Criminal Procedure praying for quashing of a complaint (Annexure P2) and summoning orders dated 31.08.2010 (Annexure P3) as well as order passed in revision dated 20.09.2011 (Annexure P6) along with all subsequent proceedings arising therefrom. The brief facts that necessitates reproduction are that an FIR bearing No.4 dated 03.01.2010 under Section 498A/406/323/304B IPC (Annexure P1) was registered at Police Station Sector 17/18,
Gurgaon, Haryana against S.S. Dalal, his wife Nirmala Dalal, their son Ankit Dalal (husband) and Anika Dalal (husband's sister) on the allegations that they had harassed deceased Neha Chikkara for dowry, who is alleged to have died on 31.12.2009 under mysterious circumstances having fallen from a ship in the area of Bahamas, USA. While investigations were still being carried on, complainant Suresh Chikkara father of the deceased present respondent filed a complaint on 16.07.2010 under Section 408A/406/304B/120B IPC (Annexure P2) against Ankit Dalal husband, Nirmala Dalal and S.S. Dalal parentsAinAlaw and Ms.Anika Dalal sisterA inAlaw of the deceased, on similar facts.
Meanwhile, the police submitted report under Section 173 Cr.P.C. by way of cancellation report against accused persons. The Court of learned Judicial Magistrate 1st Class, Gurgaon through impugned orders dated 31.08.2010 summoned Ankit Dalal, Nirmala Dalal, S.S. Dalal as accused under Section 498A/406/304B/120B IPC, against which order the inAlaws S.S. Dalal and Nirmala Dalal filed revision petition and the Court of learned Additional Sessions Judge, Gurgaon who through impugned orders dated 20.09.2011 (Annexure P6) dismissed the revision petition. It is this very process which has led to this invocation of these powers by the accused petitioners.
Heard Mr. J.S. Bedi, Senior Advocate assisted by Mr.Sonpreet Singh, Advocate representing the petitioners and Mr.Rajesh Lamba, Advocate on behalf of the respondent. It is conceded to by both the sides that at the time when the complainant filed the private complaint, the investigations in the criminal case were still underway. Thus, the moot point that comes forth before this Court is what legal recourse the Magistrate ought to have taken, fully aware of these two proceedings before it. To buttress his arguments, Mr. J.S. Bedi, Senior Advocate assisted by Mr. Sonpreet Singh, Advocate representing the petitioners has heavily placed reliance on #$%&'% !(&)$ * !+%+, %-.%&% %&' %&+$,- /
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@ /!4300 Appreciating the arguments of the two sides, the only bone of contention is whether the embargo laid down in Section 210 Cr.P.C. comes into play or not?
The Hon'ble Supreme Court of India in !%&<%-%&(+-% > 1%>,(ibid) has extensively reAappraised the provisions of Section 210 Cr.P.C. and has held that the purpose of this Section and the motive behind its enactment is intended to ensure that private complaints do not interfere with the course of police investigations as well as to prevent accusation of the accused twice for the same very offence. While considering applicability of Section 210 Cr.P.C., the Court has laid down the following four eventualities:
1.
There must be a complaint pending for inquiry or trial.
2.
Investigation by the police must be in relation to the same offence.
3.
A report must have been made by the police officer under Section 173 and 4.
The Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
A plain reading of Section 210(1) Cr.P.C. ensures, as the wording goes, which is reproduced below to lay emphasis:
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% From the present case, it is explicitly clear that the learned Magistrate in spite of having come to know of the pendency of the criminal complaint as well as the State case proceedings, has miserably failed to call for a report on the matter from the police concerned which was conducting the investigations. It is not disputed that the allegations and the set of accused in both these proceedings are same and similar and since it was necessitated that both cases ought to have been clubbed together before the same Court and should have proceeded parallel as the prosecution version and the complaint case version were akin to each other even after receipt of the report under Section 173 Cr.P.C. for cancellation which apparently has escaped the attention of the trial Court. Since neither the learned Magistrate has called for such
a report nor any such report was submitted and since the Magistrate has taken cognizance of an offence in the complaint case against the accused together with the fact that the police has filed cancellation report in the State case necessitates that the complainant's right for redressal of his grievance by resorting to the provisions of Section 156(3) read with Section 190 Cr.P.C. cannot be subverted by such a mistake of the Court and at this stage it would be preposterous to stay proceeding in the complaint case by the Magistrate as cancellation report has already been filed in the Court. Holding that such a remiss is only a procedural error neither causing any immense prejudice nor could be pointed out by learned counsel for the petitioners. Thus, at this juncture it would not be in the fitness of things and neither for the interests of justice to show indulgence and therefore, none of the reliefs being prayed for needs to be granted. The petition as such stands dismissed.
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