The Hon’ble court of Shri Dharmesh Sharma Additional Session Judge (ASJ) in Patiala House New Delhi, vide its order dated 6th January, 2014 has allowed the revision petition filed by state government against the order dated 13.09.2013 of learned CMM and deleted / expunged all the adverse observations / findings with direction to the Trial court to decide the issue of cognizance and summoning of the accused persons on report being filed by the police afresh without being influenced in any manner by the observations / findings given in said order dated 13.09.2013 of Shri Amit Bansal.
While allowing said revision petition, the Session Court held that revisional jurisdiction is exercisable to check any patent illegality, impropriety or erroneous exercise of judicial power by the Trial Court and bare perusal of the impugned order in Toto demonstrates that the Ld. CMM exceeded the jurisdiction vested with him at the stage of considering the police report/charge sheet filed under Section 173 (2) CrPC by venturing to decide the case on merits in a halfhearted and lopsided manner, thereby arriving at a finding on law and facts without considering the entire material on record.
It has been further held that direct fall out of the observations made by the Ld. CMM is to wipe out or totally efface the outcome of the investigation conducted so far rendering the entire police report nugatory thereby causing an irreparable prejudice to the case of prosecution. Observation on the applicability of penal provisions at the stage in question without notice to the complainant cannot be sustained in law. Needless to state that further evidence into the aspect of voice sample whether it comes forth or not shall be by all means ancillary or secondary to the other material on the record. Therefore to hold an opinion that lack of such evidence is huge lacuna in the case of prosecution is absolutely fallacious and legally unfathomable.
Plea by counsel of the accused that an incomplete charge sheet has been filed appears to be fallacious since a meaningful perusal of the contents and documents relied upon would invite no inference that investigation has been split or done piecemeal. Merely because prosecution itself states in the charge sheet that it is conducting further investigation into certain aspects did not preclude CMM from proceeding to take cognizance of offenses based on the other material on record. Ld. CMM, while directing further investigation, manifestly failed in his duties to find out if the material collected so far during investigation were sufficient enough to take cognizance. However, I am refraining from encroaching upon the domain vested with the Ld. CMM in this regard in this revision petition.
Upshot of above discussion is that the magistrate has no power to wipe out the report or its effects or disturb status of accused pending investigation. As and when supplementary charge sheet is filed, the magistrate shall have to consider the cumulative effect of the present charge sheet as well as supplementary charge sheet on completion of further investigation. If the view expressed by CMM is allowed to remain on judicial file, the effect would be that this charge sheet would hardly be of any value to the prosecution.
Accordingly revision is allowed and impugned order dated 13.09.2013 set aside or rather modified to the effect that the state may conduct or embark on further investigation through a police officer not below the rank of an ACP and file final police report as expeditiously as possible and the observations made by the Ld. CMM on the applicability or otherwise on ingredients of the penal provisions shall have no effect and as when final police report is filed, the court concerned shall consider the police report as per law un-swayed by any observations on merits in the impugned order dated 13.09.2013.
The court of learned CMM Amit Bansal in its impugned order dated 13.09.2013had held that no offense under section 384/511, 420/511 and 201 IPC has been made out, offenses under section 384/511, 420/511 are mutually exclusive and cannot be simultaneously invoked against the accused persons and non-availability of voice sample of the accused persons is a very material lacuna.
