Final Order 8

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF MR. SANJAY GARGI
PRINCIPAL DISTRICT & SESSIONS JUDGE
NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Crl. Revision No. 01/2023
(CNR No. DLND010114382022)
Mrs. Vandana Singh
W/o. Late Sh. Dharmendra Prasad Singh
R/o. Balrampur House, Annexe,
16, Tilak Marg,
New Delhi 110001 …..Petitioner
Versus
1. State (performa respondent)
2. Dr.Girish Chandra
S/o Late Sh. Baijnath Prasad
R/o. 10, Harley St.,
London, Win. 1AA.
TO BE SERVED THROUGH
Sh. Subhash C. Jindal, Advocate
Office at
128, Antriksh Bhawan
22, K.G. Marg,
New Delhi110001 …... Respondents
Date of institution : 02.01.2023
Date of hearing arguments : 03.11.2023
Date of order : 03.11.2023
Appearances:
Sh. Manish Sangwan, Ld. Counsel for petitioner.
Sh. Subhash Jindal, Ld. Counsel for respondent No.2.
ORDER:
1. The impugned order is dated 27.10.2022 vide which CW-1 and
CW-2 were allowed to adopt their pre-summoning evidence in pre-charge
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evidence and case was fixed for pre-charge evidence.
BACKGROUND OF THE CASE
2. The brief conspectus of the case is that respondent No.2 had
filed a complaint U/s. 420/406 IPC read with Section 156(3) Cr.P.C. against
the petitioner and one Dharmendra Prashad Singh requesting that both the
petitioners as well as Dharmendra Prashad Singh have committed an offence
under Section 420 IPC. They be summoned for this offence and put to trial.
In this case, the Ld. Trial court dismissed 156(3) Cr.P.C. application of
respondent No.2/complainant on 17.03.2015 and posted the matter for pre-
summoning evidence. Thereafter, vide impugned order, statements of CW-1
and CW-2 recorded at the stage of pre-summoning evidence was allowed to
be taken as pre-charge evidence.
3. Ld. Counsel for the petitioner submits that in complaint related
to warrant case, complainant is supposed to examine himself thrice in the
court. Firstly, at the time of pre-summoning evidence, secondly at the stage of
pre-charge evidence and thirdly after framing of the charge. He submits that
section 273 Cr.P.C. specifically provides that evidence is required to be taken
into the presence of the accused. Ld. Counsel further submits that as per the
scheme of Cr.P.C., Section 296 provides that evidence of formal character can
be taken on affidavit. He submits that in NI Act matters evidence is taken on
affidavit as there is specific provisions U/s. 145 NI Act providing that
evidence has to be recorded in NI Act matters on affidavit notwithstanding
anything contained in Cr.P.C. In support of his submissions, Ld. Counsel has
relied upon the judgment of the Hon’ble Apex Court in Sunil Mehta and
Another Vs. State of Gujarat and Another, (2013) 9 Supreme Court Cases
209.
4. Per contra, Ld. Counsel for the respondent submits that there is
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no illegality or impropriety in the impugned order. He submits that the
complainant is residing in London and he is aged 84 years and unable to
come to India to depose by presenting himself physically before the court. He
submits that this was the reason that the Ld. Trial court considering all these
circumstances, allowed respondent No.2/complainant to treat pre-summoning
evidence as pre-charge evidence. He submits that no prejudice is being
caused to the petitioner/accused by doing all this. In support of his
submissions, he has relied upon S.P. Garg Vs. State & Another in Crl. M.C.
No.984/2015 and Crl. M.A. No.3684/2015 decided by the Hon’ble High
Court of Delhi on 19.07.2016.
5. Before adverting to the submissions made by both the parties, let
us understand the scheme of the Code regarding the evidence of the
witnesses. Section 273 Cr.P.C. provides that evidence to be taken in presence
of the accused. It has carved out an exception i.e. “except as otherwise
expressly provided”. Ld. Counsel for the petitioner has urged that evidence
in NI Act matters is recorded by affidavit and there is no specific provision in
Cr.P.C. regarding that. Bare reading of Section 145 NI Act provides that
notwithstanding anything contained in Cr.P.C., evidence of the complainant
may be given by him on affidavit and may subject to just exceptions be read
with evidence in any inquiry trial for other proceedings under the said Code.
6. Ld. counsel for the petitioner has stated that pre-summoning
evidence was recorded in the absence of the petitioner/accused and pre-
charge evidence should be recorded in the presence of the accused.
Ld. Counsel submits that if accused is present in the court only then he can
object to the documents regarding relevancy, which complainant intends to
exhibit in his testimony. Ld. Counsel for the petitioner has drawn the
attention of this court to the observation made by the Hon’ble Apex Court in
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para 18 of the case titled as Sunil Mehta and Another Vs. State of Gujarat
and Another, wherein the court has observed that the whole object
underlying recording of evidence under Section 244 after the accused has
appeared is to ensure that not only does the accused has the opportunity
whether the evidence adduced against him but also to defend himself by
cross-examining the witnesses with a view to showing that the witness is
either unreliable i.e. statement made by him does not have any evidentiary
value or that it does not incriminate him.
7. Ld. Counsel for respondent No.2 has defended the impugned
order stating that respondent No.2 is one of the witness who is settled in
London and aged 84 years and it is highly inconvenient for him to appear
physically and depose afresh and submits that there is no bar in law for
treating pre-summoning evidence as pre-charge evidence. In support of his
submission, Ld. Counsel has relied upon the observations made by Hon’ble
Delhi High Court in S.P. Garg Vs. State & Another (Supra). Perusal of this
judgment reveals that it relates to the right of the accused to cross-examine
the complainant witnesses which was closed by the Ld. Trial court. It does
not deal with the issue which is presently in front of this court in this
petition.
DECISION
8. In view of the aforesaid reasons, I agree with the contentions
raised by Ld. Counsel for the petitioner that pre-summoning evidence can’t
be taken as pre-charge evidence in this case as same is not permissible under
law. The impugned order is thereby set aside. Revision petition is allowed.
Trial court record be sent back along with copy of the order. The file of
Criminal Revision be consigned to the Record Room.
9. Respondent No.2 who is to appear physically will appear
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virtually following the guidelines laid down for recording the statement of the
witnesses through video conferencing by the Hon’ble High Court.
Announced in the open court (Sanjay Garg-I)
on 03rd November, 2023 Principal District & Sessions Judge
New Delhi District
Patiala House Courts/ND/03.11.2023(mc)
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