Final Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF Ms. EKTA GAUBA MANN
SPECIAL JUDGE (NDPS-01) (CENTRAL):
TIS HAZARI COURTS: DELHI
Criminal Revision No. 464/2024
CNR No.:-DLCT01-016804-2024
In the matter of:-
Ms. Rashmi Kumar
W/o Sh. Rajeev Kumar
Presently residing at: E-22/4,
DRDO Township, Kanchanbagh,
Bandlaguda, Hydrabad,
Telangana ….......Revisionist
Versus
1. Pankaj Kumar Sharma
R/o P-16, DIAT, DRDO Complex
Girinagar, Pune, Maharastra,
2. Smt. Sangita Sharma
W/o Pankaj Kumar Sharma
R/o P-16, DIAT, DRDO Complex
Girinagar, Pune, Maharastra,
3. Aditya Sharma
S/o Gulab Sharma
R/o Villaage Fulwariya,
Distt-Dewariya, Uttar Pradesh
4. State (NCT of Delhi)
Through SHO PS Timarpur .......Respondents
Date of institution : 23.10.2024
Date of Order : 24.04.2025
Final order : Revision Allowed
24.04.2025
Present: Revisionist through VC.
Sh. Samant Singh and Sh. Sushil Kumar, Counsel
for revisionist through VC.
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Respondent no.1 & 2 through VC.
None for State.
ORDER
1. This order of mine shall dispose off the application seeking
condonation of delay in filing the present revision petition.
2. Ld. Counsel for revisionist contended that revisionist /
applicant petitioner had met with an accident in December 2022
for which she was under continuous medical treatment and she
visited the hospital for a total period of 47 times and she was also
under observation for quite some time. Ld. Counsel for
revisionist also contended that as the revisionist’s husband was
transferred to Hyderabad in the year 2019 so, it was very difficult
for her to travel all the way alone from Hyderabad to Delhi due
to her medical conditions. Ld. Counsel for revisionist contended
that therefore, the revisionist could not approach this court well
within statutory period and so there was delay of 220 days in
filing the present revision petition well within the limitation
period. Ld. Counsel for revisionist sought for condonation of
delay of 220 days in filing the present revision petition as there
was a sufficient cause.
3. On the other hand, Ld. Counsel for respondent no.1 to 3
has filed the reply and contended that there is no sufficient cause
for condoning the delay in filing the present revision petition
because the revisionist was waiting to see the fate of the criminal
case filed against her husband on the complaint of respondent
no.2. Ld. Counsel for respondent no.1 to 3 further contended that
the medical documents produced by the revisionist shows that
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revisionist was admitted for treatment of her injury on
29.12.2022 and discharged on 02.01.2023 and the medical
documents also depict that revisionist was intermittently
hospitalized from 16.05.2023 to 18.05.2023, 15.06.223 to
16.06.2023 and the pain level was mild to moderate pain. Ld.
Counsel for respondent no.1 to 3 further contended that the
illness was not such of a nature which could made her bed-ridden
and extensive arrangements were available for appearance
through VC. Ld. Counsel for respondent no.1 to 3 further
requested for dismissal of the application seeking condonation of
delay.
4. Arguments on application seeking condonation of delay
heard and the application and the reply perused.
5. Keeping in view the fact that there was delay of 220 days
beyond the statutory period in filing the present revision petition.
Also, in view of the fact that applicant / revisionist has attached
the medical documents for her non-appearance as she met with
an accident in December 2022 as a result of which, she was
admitted to the hospital and she has undergone surgery thrice and
the medical documents of her continuous visit to the hospital
have also been attached. Keeping in view the fact that the injuries
of the applicant / revisionist was of moderate to minor pain could
not be clarified by respondent on the perusal of the medical
documents. It is also a settled law laid down by the Hon’ble
Supreme Court of India that delay in filing the revision petition
are to be liberally condoned. In view of the fact that the reason
for delay in filing the present revision petition has been duly
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explained by the applicant / revisionist on her medical ground
and in the interest of justice and in exercise of powers u/s 5 of the
Limitation Act, the delay in filing the present revision petition is
hereby condoned and the application seeking condonation of
delay in filing the revision petition is allowed.
6. Application of the applicant / revisionist seeking
condonation of delay in filing the revision petition is disposed off
accordingly.
7. This order of mine shall dispose off the present revision
petition preferred by revisionist against the impugned order dated
12.12.2023 passed by Ld. MM, Delhi.
8. Ld. Counsel for revisionist contended that vide the
impugned order dated 12.12.2023 passed by Ld. MM, the
complaint case under Section 200 CrPC was dismissed in default
for non-prosecution as well as for non-appearance. Ld. Counsel
for revisionist contended that vide order dated 18.09.2019 passed
by the Ld. MM Court, the application of the revisionist under
Section 156(3) CrPC was dismissed and thereafter, the matter
was proceeded under Section 200 CrPC. Ld. Counsel for
revisionist further contended that on 24.06.2022, pre-summoning
evidence of the complainant was recorded and the complainant
was discharged. Ld. Counsel for revisionist further contended
that thereafter, the Counsel for revisionist before the Ld. MM
Court has sought time for moving the appropriate application to
summon the witnesses whose names were not mentioned in the
list of witnesses and for moving appropriate application in this
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regard. Ld. Counsel for revisionist further contended that
unfortunately, revisionist met with an accident in December 2022
and thereafter, revisionist had undergone operation thrice for the
same firstly in December 2022 and then in May 2023 and
thereafter in June 2023. But, the revisionist was on continuous
medical treatment as well as on regular follow up and therefore,
she could not appear to prosecute the matter further in the court.
Ld. Counsel for revisionist also contended that as the evidence of
the revisionist was already recorded on 24.06.2022 thereafter, on
27.08.2022, 05.11.2022, 15.02.2023, 20.07.2023 & 23.09.2023
the Counsel or the Proxy Counsel for complainant / revisionist
was always present. Although, complainant / revisionist was not
present.
9. Ld. Counsel for revisionist further contended that vide
impugned order dated 12.12.2023 passed by Ld. MM, it was
mentioned that complainant remained absent on 16.11.2019,
22.01.2020, 24.08.2020, 19.09.2020, 18.12.2020, 16.03.2021,
21.08.2021, 09.11.2021, 24.02.2022, 27.08.2022, 05.11.2022,
15.02.2023. 10.04.2023, 20.07.2023, 23.09.2023 and on
12.12.2023. Ld. Counsel for revisionist further contended that
perusal of ordersheet dated 16.11.2019 shows that Counsel for
complainant was present. Even, on 22.01.2020, Ld. Trial Court
was on jail sitting duty and the Counsel for complainant was
present and the matter was fixed for 01.04.2020. It is also alleged
that on 01.04.2020, the matter was not taken up due to Corona
Pandemic. On 24.08.2020, the matter was taken up through VC
as the Courts were closed due to Corona Pandemic. On
19.09.2020, 18.12.2020, 16.03.2021, 21.08.2021, 24.02.2022, the
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Counsel for complainant was present as the Courts were held
virtually due to Corona Pandemic. Ld. Counsel for revisionist
further contended that even on 01.06.2022 and 24.06.2022, the
complainant along with her Counsel was present and evidence of
complainant / revisionist was recorded. Ld. Counsel for
revisionist further contended that vide the impugned order, Ld.
Trial Court has not considered the presence of Counsel for
complainant / revisionist before the Ld. Trial Court and even not
considered the medical ground of the revisionist as well as the
fact that for more than two years there was spread of Corona
Pandemic and as a result, no effective work could be done during
Corona Pandemic.
10. Ld. Counsel for revisionist also contended that in the
complaint case before Ld. Trial Court, the revisionist has
specified the details of the case in which the husband of
revisionist was implicated by respondent no.2 and the same was
clearly mentioned but due to oversight the said fact could not be
specified in the revision petition. Ld. Counsel for revisionist
further contended that there was no intentional concealment of
any fact and therefore, the revisionist should be given fair
opportunity to proceed with her case before the Ld. Trial Court as
the impugned order dated 12.12.2023 is not an order on merits of
the case and principle of natural justice would not be attracted if
the revisionist is not given an opportunity that her matter should
be heard on the merits of the case by the Ld. MM.
11. On the other hand, Ld. Counsel for respondent no.1 to 3
contended that revisionist has filed the present complaint before
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Ld. MM Court as a counter blast to the complaint filed by
respondent no.2 against the husband of the revisionist wherein
FIR No.204/18, PS Timarpur was registered and in the said
matter, husband of the revisionist has been convicted u/s
354/354A/354B/323/506/509 IPC vide order dated 28.08.2024
i.e. before filing the present revision petition. Ld. Counsel for
respondent no.1 to 3 further contended that recently the order on
sentence has been passed against the husband of the revisionist
and this fact has been concealed by the revisionist in her present
revision petition and therefore, revisionist is not entitled to any
relief. Ld. Counsel for respondent no.1 to 3 further contended
that the present revision petition has been preferred only to settle
the score with the respondent no.2 and to create undue pressure
upon the respondent no.2 to settle the case wherein the husband
of the revisionist has been convicted and sentenced. Ld. Counsel
for respondent no.1 to 3 further contended that as per medical
documents, revisionist was not in such an acute pain that she
could not appear or proceed with the prosecution of her
complaint case and therefore, the present revision petition should
be dismissed.
12. Ld. CPP for the State / respondent no.4 has contended that
the present revision petition should not be allowed because the
revisionist is trying to abuse the process of law to settle the score
with the respondent no.2 as the husband of revisionist has been
convicted and sentenced on the complaint of the respondent no.2.
13. Ld. Counsel for revisionist has filed rejoinder to the reply
of respondents and denied all the allegations of the respondents.
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14. Heard and revision petition , reply and rejoinder and TCR
perused.
15. Keeping in view the contention of respondents that
revisionist has not specified in her revision petition the fact
regarding conviction of her husband in a cross case pending
against her husband on the complaint of respondent no.2. But,
this contention has been explained by revisionist on the ground
that in the complaint filed by the revisionist against respondents,
it was clearly mentioned regarding the pendency of said other
case against the husband of the revisionist but due to oversight,
the said fact could not be mentioned in the revision petition. This
fact is clear from perusal of Trial Court Record. Also, revisionist
has specified that vide impugned order dated 12.12.2023, the
complaint case of revisionist was dismissed in default at pre-
summoning stage for non-prosecution but not on the merits of the
case u/s 203 CrPC. Revisionist has also specified that as per the
principle of natural justice, fair opportunity of being heard on
merits should be given to the revisionist. Revisionist has also
relied upon the judgment of the Hon’ble High Court of Delhi in
M/s Bennett Coleman & Co.Ltd. and Ors. Vs. State (NCT of
Delhi) and Ors.decided on 05.12.2023 wherein it has laid down
that
“An order dismissing the complaint for non-prosecution or
in default, which is made the subject matter of the revision,
cannot be equated with “revision petitions” that are filed on
substantive grounds or touch on the merits. Courts have
recognized difference between orders of this nature which are
procedural and substantive orders.”
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16. It is an admitted fact that since 01.04.2020 till February
2022, the Courts were either closed or the matters were heard
virtually due to Corona Pandemic and even on the said dates, the
Counsel for revisionist was present before Ld. MM Court. It is
also an admitted fact that husband of the revisionist has been
transferred to Hyderabad since 2019 and she was coming all the
way to pursue her complaint from Hyderabad. It is also an
admitted fact that the accident of revisionist has taken place in
December 2022 and she has undergone surgery thrice for the
same and the medical documents of her regular follow up were
also placed on record. It is also an admitted fact that the evidence
of revisionist was already recorded on 24.06.2022 and thereafter,
apart from 10.04.23 and 12.12.2023, the Counsel for complainant
or Proxy Counsel for complainant was regularly present i.e. on
27.08.2022, 05.11.2022, 15.02.2023, 20.07.2023 and 23.09.2023.
17. Considering the aforesaid reasons and the contention of the
revisionist that due to accident and her regular medical treatment
she could not appear in person along with her Counsel as she has
to come all the way alone from Hyderabad where her husband
was posted since 2019 and so, her non-appearance was neither
intentional nor deliberate. Even, considering the contention of
revisionist that the impugned order was passed on the procedural
ground only and not on merits of the case u/s 203 CrPC and so, a
fair opportunity of being heard should be given to her for
pursuing her complaint case before the Ld. MM Court. In view of
the said contention of the revisionist and in view of the grounds
mentioned in the revision petition and for providing fair
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opportunity of being heard to the revisionist before the Ld. MM
Court that the complaint case of the revisionist be decided on
merits. Also, in the interest of justice, the present revision
petition of the revisionist is allowed and the impugned order
dated 12.12.2023 is set aside and the complaint case is restored to
its original position and number subject to the condition that
revisionist would appear regularly in future before the Court of
Ld. MM / Ld. JMFC and would not seek unnecessary
adjournments in future before Ld. MM Court. The present matter
be sent to the Court of concerned Ld. MM / Ld. JMFC for
28.04.2025 at 2:00 p.m. for proceeding as per law.
18. Revisionist is directed to appear before the Court of
concerned Ld. JMFC on 28.04.2025 at 2:00 p.m.
19. Revision petition is disposed off accordingly.
20. TCR be sent back to the Ld. Concerned Court.
21. Copy of this order be given dasti.
22. Copy of this order be sent dasti to Ld. Trial Court for
compliance.
Revision file be consigned to record room.
Announced in Open Court
on 24th April , 2025
(Ekta Gauba Mann)
Special Judge, NDPS-01
(Central), THC, Delhi
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