IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.939 of 2010 Date of decision : 29.4.2010 State of Haryana …. Petitioner Versus Renuka Kalyan ….. Respondent Present : Mr. B.R. Rana, Addl. A.G., Haryana. Mr. Ranbir Singh, Advocate for the complainant. *** S.S. SARON, J. This revision petition has been filed by the State of Haryana against the order dated 13.2.2010 passed by the learned Additional Sessions Judge, Karnal whereby the revision petition filed by the respondent Renuka Kalyan against the order dated 6.10.2009 passed by the learned Judicial Magistrate Ist Class, Karnal has been allowed. The learned Judicial Magistrate Ist Class, Karnal vide order dated 6.10.2009 stayed the proceedings in the complaint case titled Renuka Kalyan v. Ram Kumar Kalyan etc. in terms of Section 210 (1) of the Code Criminal Procedure (“CrPC” – for short). The learned Additional Sessions Judge, Karnal has set aside the said order and directed the learned Judicial Magistrate Ist Class, Karnal to reconsider the application under Section 210 (1) CrPC after crossing the stage of Section 203/204 CrPC. Crl. Revision No.939 of 2010 [2] Case FIR No.182 dated 23.4.2008 was registered at Police Station Civil Lines, Karnal on the statement of Ram Kumar Kalyan who is father-in-law of the respondent Renuka Kalyan. It is alleged by Ram Kumar Kalyan that on 22.4.2008 in the evening, his daughter-in-law Renuka Kalyan (respondent) and her brother Shramveer son of Ranbir Singh, Advocate resident of Baldi came to his house and left his sister Renuka Kalyan (respondent) in their house. At that time Ram Kumar Kalyan was not at home. He came back and started playing with his grand-daughter. After sometime, Shramveer returned and fired shots from his fire arm on Nabhit Kalyan son of Ram Kumar Kalyan (husband of Renuka Kalyan) and also hit Renuka Kalyan. Thereafter, Shramveer, killed himself by firing a shot at himself with his pistol. Nabhit Kalyan and Shramveer died on the way to the hospital while Renuka Kalyan was admitted in the hospital. FIR was registered on 23.4.2008 on the statement of Ram Kumar Kalyan. Investigations in the case were started by the SHO, Police Station Civil Lines, Karnal. During investigation, Renuka Kalyan (respondent) on 16.3.2009 submitted a complaint to the Director General of Police, Haryana against her father-in-law namely Ram Kumar Kalyan and mother-in-law Om Lata Kalyan. The matter was then assigned to DIG Crimes (I) for formation of a Special Investigation Team to investigate the matter. Statements of Ranbir Singh, Renuka Kalyan, Ram Kumar Kalyan, Om Lata Kalyan and Ravinder Singh, Advocate were recorded by the Special Investigation Team under Section 161 CrPC. The place where the incident had Crl. Revision No.939 of 2010 [3] occurred was also examined by the experts from the Forensic Science Laboratory, Madhuban, Karnal. Thereafter, on 9.5.2009, Renuka Kalyan (respondent) filed a criminal complaint No.28 of 2009 in the Court of learned Judicial Magistrate Ist Class, Karnal alleging the commission of offences under Sections 302, 307 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act, 1959. The complainant Renuka Kalyan (respondent) alleged that she was harassed and ill-treated from the date of her marriage and was left at her parents’ home on 23.3.2008. On 22.4.2008 at about 8.30 P.M. her husband Nabhit Kalyan forcibly took away her minor daughter Ananya from her parents’ house. She along with her brother Shramveer Singh went to her matrimonial home to bring the child back where she was taunted and humiliated. Besides, her husband Nabhit Kalyan started beating her. He pressed her neck and stated that he would kill her. The accused Ram Kumar Kalyan and Om Lata Kalyan it is alleged supported the act of Nabhit. Apprehending danger to the life of the complainant Renuka, Shramveer Singh, it is alleged took out a pistol from his pocket and fired two shots at Nabhit Kalyan but the bullet hit the complainant as she tried to save her husband. Thereafter, Shramveer fired two shots at Nabhit Kalyan which hit him and he fell down. Shramveer then fired a shot at himself on his chest and he fell down. The pistol was picked up by Ram Kumar Kalyan and at the instigation of Om Lata Kalyan, he (Ram Kumar Kalyan) fired a shot at Shramveer on his neck from a very close range and he then fired at the complainant. In the preliminary evidence, the complainant examined twelve witnesses. Crl. Revision No.939 of 2010 [4] The complaint was pending for arguments before the learned Judicial Magistrate Ist Class, Karnal when the petitioner-State of Haryana filed an application under Section 210 CrPC. The learned Judicial Magistrate Ist Class, Karnal vide order dated 6.10.2009 ordered the stay of the proceedings in terms of Sections 210(1) CrPC. It was observed that in the present case, the occurrence was of 22.4.2008 and enough time had elapsed since the date of occurrence. Accordingly, the investigating agency was directed to make every possible effort to conduct the investigation of the incident and complete the same at the earliest and thereafter, submit its report in terms of Section 173 CrPC. It was also directed that in case the investigation was not completed within a period of three months from the date of the order, the investigating agency shall file a detailed status report of the investigations and the reasons for not concluding the same. Aggrieved against the said order dated 6.10.2009 passed by the learned Judicial Magistrate Ist Class, Karnal, the respondent Renuka Kalyan filed a revision petition in the Court of learned Sessions Judge, Karnal. The learned Additional Sessions Judge, Karnal to whom the case was assigned vide order dated 13.2.2010 has allowed the same. A peculiar feature that was noticed by the learned Additional Sessions Judge, Karnal in her impugned order is that in the private complaint filed by the revisionist (now respondent), the State Agency, it was observed, had showed undue interest. It was further observed that the application under Section 210 CrPC was also filed by the investigating agency. The records revealed that even Crl. Revision No.939 of 2010 [5] though the learned trial Magistrate directed the investigating agency to make every effort to complete the investigation at the earliest and submit its report in terms of Section 173 CrPC, the investigation was not completed within the time allowed. Status report was filed in the case not before 6.1.2010 and again on 6.2.2010. It was observed that though the case was registered on 22.4.2008 and almost two years had passed but the investigation in the case was moving slowly. It is in the said circumstances that the learned Additional Sessions Judge ordered that the appropriate course for the learned trial Magistrate was to have crossed the stage of Section 203/204 CrPC in the private complaint before considering the application under Section 210 CrPC. Therefore, the order of the learned trial Magistrate, it was observed, cannot be sustained and deserved to be set aside. The revisionist (now respondent) was directed to appear before the learned trial Magistrate on the date fixed and the learned trial Magistrate was ordered to hear and reconsider the application under Section 210 CrPC after taking cognizance of the offence against the accused in the complaint case in case he is of the opinion that there is sufficient ground for proceeding against them. Aggrieved against the said order, the present petition has been filed. Sh. B.R. Rana, learned Additional Advocate General, Haryana appearing for the State has submitted that the learned Additional Sessions Judge, Karnal has gravely erred in ordering the reconsideration of the application under Section 210 CrPC after crossing the stage of Section 203/204 CrPC. It is submitted that Section 210(1) CrPC is mandatory in nature and in respect of a Crl. Revision No.939 of 2010 [6] complaint case where police investigation is in progress, the Magistrate is to stay proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. Therefore, it is submitted that the order passed by the learned Additional Sessions Judge, Karnal is liable to be set aside and the Police is liable to be allowed to complete its investigation in the matter. According to the learned counsel, in view of the wording of Section 210 CrPC, the word cognizance is to be read in relation to the basic ingredient of Section 210 CrPC and the most important ingredient is regarding a complaint which is pending inquiry or trial for the offence is which the investigation is already in progress. It is submitted that the stage of taking cognizance in fact had already reached when the Magistrate had directed the evidence to be recorded in terms of Section 200 CrPC and reaching the stage of Section 204 CrPC is not necessary. After giving my thoughtful consideration to the matter, it may be noticed that the case has two aspects. One is the version that is given by Ram Kumar Kalyan in the FIR which is recorded on his statement. According to Ram Kumar Kalyan, his elder son Nabhit Kalyan was married to Renuka daughter of Ranbir Singh, Advocate resident of Baldi about two years earlier to the registration of the FIR. It is alleged that Renuka was compelling Nabhit to live separately from them. She used to say either she be sent to America or she be settled at Gurgaon or Delhi. On this account, there was tension in their house. They in order to get rid of the problem took a two rooms set on rent in Sector-9, Karnal. They put the entire dowry articles of Crl. Revision No.939 of 2010 [7] Renuka and articles of daily needs after purchasing them from the market in the house that was taken and they shifted Nabhit and Renuka to the said house. It is alleged that the parents of Renuka did not like the house and said that by making them stay separately in the same town, they were wanting to humiliate them. They forcibly took their daughter Renuka to their home at Baldi. It is alleged that Ram Kumar Kalyan repeatedly informed the parents of Renuka that their entire work was in the town i.e. in Karnal and his son Nabhit Kalyan was managing all the work. As such to settle them out of Karnal would take sometime. The complainant Ram Kumar’s son, however, wanted to stay with the complainant and his family. Despite the complainant Ram Kumar Kalyan repeatedly explaining this to Renuka and her parents, they stuck to their stand. They on this account threatened the complainant and scared him that he had kept the dowry. Despite asking for more time, they did not agree for time. On 22.4.2008 at about 11 p.m. Renuka the daughter-in-law of Ram Kumar Kalyan and her brother Shramveer came to their house in a Maruti Car. Shramveer left his sister Renuka at their house and went away. The complainant was not at home at that time. He (Ram Kumar Kalyan) came back at about 11.15 p.m and took his grand- daughter and started playing with her, then a telephone call was received from Ranbir Singh, Advocate from his phone number at the phone number of Ram Kumar and he asked whether everything was alright at home. The complainant said that everything was alright. After some time, somebody knocked at the door and Ram Kumar Kalyan opened the door and asked as to who was there. On this Crl. Revision No.939 of 2010 [8] Shramveer said that he was at the door and he had called out for opening the door. As the door was opened Shramveer entered the house and he was very angry. He asked his brother-in-law to come to the side and that they should settle their score on that day. As Nabhit, the son of Raj Kumar Kalyan went in front of him then Shramveer started firing with his pistol at Nabhit which hit Nabhit on his neck and below his right eye. Nabhit on being hit with the shots at once fell on the floor. Then the grand-daughter of Ram Kumar Kalyan namely Ananya aged about one year was fired at which, however, did not hit her but she fell on the floor. Then Shramveer fired at his sister Renuka who after being hit with a shot also fell on the floor. As Ram Kumar tried to go out of the room, then Shramveer fired at him but he was saved by his skin. He locked the latch from inside of his room. In the meanwhile the wife of Ram Kumar Kalyan namely Om Lata called out that Shramveer after finishing the family, had shot himself, and it was his intention to finish the entire family. It also appeared that the family of Shramveer was aware that he had gone for this work. Ram Kumar Kalyan informed the police about this occurrence. Nabhit, the son of the complainant and Shramveer died on the way to the hospital. The daughter-in-law of the complainant namely Renuka was referred to the Apollo Hospital at Delhi. It is further stated that on account of the grave incident, he could not give his statement at night and on 23.4.2008 he had got his statement recorded which after reading it he affirmed it as correct. The statement of Ram Kumar was attested by Harbans Lal SHO Police Station Civil Lines, Karnal and police conducted its proceedings. Crl. Revision No.939 of 2010 [9] The other version is that of the complainant Renuka Kalyan (respondent). It is alleged by her that on 22.4.2008 at about 8.30 p.m. her husband Nabhit Kalyan came to her parents’ house and forcibly took away her minor daughter Ananya. The complainant along with her brother Shramveer went to her matrimonial home to bring her minor daughter back. There she was taunted and humiliated. Her husband Nabhit started to beat her and pressed her neck; besides, said that he would kill her. In this act her parents’-in- law supported their son Nabhit. Seeing their behaviour, her brother Shramveer left their house. He came back at about 11.45 p.m. on the call of Nabhit. At that time Ram Kumar Kalyan had also returned home. Shramveer requested Ram Kumar Kalyan and Om Lata Kalyan that his sister (Renuka) be kept properly. However, Nabhit started beating Renuka. He dragged her and pressed her neck. When Shramveer intervened, Nabhit threatened to kill Renuka. Ram Kumar Kalyan and Om Lata Kalyan supported their son. Shramveer then took out a pistol from his pant pocket and fired at Nabhit, but the shot hit Renuka who tried to save her husband. Shramveer then fired two shots at Nabhit who fell down and then he shot himself. Ram Kumar Kalyan it is alleged by the complainant Renuka picked up his pistol and at the instigation of Om Lata Kalyan fired at Shramveer and also on the complainant. Shramveer died, but the complainant Renuka was saved due to timely medical aid. Even though the aforesaid incident is of 22.4.2008, the police has not completed the investigation in the case. Crl. Revision No.939 of 2010 [10] According to the learned State counsel, the case was delayed by almost one year as Renuka Kalyan (respondent) did not come to give her statement. Shri Ranbir Singh, Advocate who has on his own put in appearance on behalf of the complainant Renuka Kalyan (respondent) has submitted that efforts were made to compromise the matter but the mediation proceedings failed. In any case after lapse of one year also no substantial steps have been taken by the Special Investigation Team to conclude the investigation in the case. In terms of the order of the learned Judicial Magistrate Ist Class, Karnal while staying the proceedings in the complaint case under Section 210 (1) CrPC, the investigating agency was directed to make every possible effort to conduct the investigation of the case and complete the same at the earliest and thereafter, submit its report in terms of Section 173 CrPC. In case the investigation was not completed within a period of three months from the date of order, the investigating agency, it was directed, shall file a detailed status report and reasons for not concluding the investigation. The learned Additional Sessions Judge in her impugned order has observed that status report was not filed in the case before 6.1.2010 and again on 6.2.2010. The final report in terms of Section 173 CrPC has not been filed. The learned Additional Advocate General has submitted that in fact the case is being delayed as the Directorate of Forensic Authority, Gujarat State, Gandhi Nagar is not giving time for conducting the narco and brain maping test. Crl. Revision No.939 of 2010 [11] In terms of order dated 23.10.2009 passed by the learned Judicial Magistrate Ist Class, Karnal it has been observed that Ranbir Singh, Advocate and Renuka Kalyan were ready to take Polygraph test only if Ram Kumar Kalyan and Om Lata Kalyan were ready to get polygraph test conducted. Vide separate reply, Ram Kumar Kalyan and Om Lata Kalyan had already refused to get the polygraph test conducted. As such it was observed that it can safely inferred that none of the accused was ready to get the polygraph test conducted and that the prosecution can proceed for getting polygraph test conducted as per law. It is after the passing of the order dated 13.2.2010 by the learned Additional Sessions Judge, Karnal that some steps have been taken by the police to further investigate the matter. A letter dated 30.3.2010 was addressed by the Superintendent of Crime, State Crime Branch (H), Madhuban, Haryana to the Medical Superintendent, All India Institute of Medical Sciences (AIIMS), New Delhi. In terms of reply dated 2.4.2010 of AIIMS it has been observed that after considering the documents/clinical records pertaining to the case, it was felt necessary to discuss the facts pertaining to the case with the investigating officer. It was requested to depute the investigating officer investigating the case to meet the Professor and Head of the Department of Forensic Medicines and Toxicology, AIIMS, New Delhi. Besides, a letter was also written to the Directorate of Forensic Authority, Gujarat State, Gandhi Nagar on 31.3.2010; in response to which it has been stated by the Assistant Director, Forensic Narco Analysis Division, DFS, Gandhi Nagar that it has Crl. Revision No.939 of 2010 [12] allotted 28.5.2010 for the test. The Investigating Officer has also been requested to submit photostat copy of permission, English translation of FIR, statements of suspects, witnesses, panchnamas, investigating reports and concerned case related documents by post. Besides, the copies of the case file have been submitted on 26.4.2010 and it has been stated by the Assistant Director, Forensic Narco Division, Directorate of Forensic Science, Gujarat State that the date of visiting the crime scene would be communicated after discussing the case with the University faculty. Therefore, it is only after the passing of the order by the learned Additional Sessions Judge, Karnal that some steps are being taken towards the investigation of the case. Otherwise, the case was lying quite dormant. In any case, the learned Additional Advocate General, Haryana has not been able to specify any period of time when the investigation would be completed. At the most, it is stated that after receipt of the report from the Forensic Narco Division, Directorate of Forensic Sciences, Gujarat State, the investigation would be completed within three months thereafter. However, no dates by the Forensic Narco Division, Directorate of Forensic Sciences, Gujarat State for visiting Karnal have been given. The investigation in the case was unduly delayed during the period it was stayed by the learned Judicial Magistrate Ist Class. The investigation had in fact remained dormant. The contention of the learned Additional Advocate General that the cognizance of the offence is to be read in relation to be read in relation to the basic ingredient of Section 210 CrPC is not tenable. The complaint was filed on 9.5.2009 and on the same day, Crl. Revision No.939 of 2010 [13] the learned Chief Judicial Magistrate, Karnal passed an order to the effect that the complaint under Sections 302, 307 read with Section 34 IPC and Section 25 of the Arms Act has been presented. It be checked and considered. It is further mentioned that to come up on 9.6.2009 for preliminary evidence of the complainant. This does not, in any manner, amount to taking of cognizance. Section 210 CrPC provides for procedure to be followed when there is a complaint case and police investigation in respect of the same offence. In terms of Clause- (I) when in a case instituted otherwise than on a police report i.e. in a complaint case, it is made to appear to the Magistrate, during the course of inquiry or trial held by him, that an investigation by the police is in progress in relation to the same offence which is the subject matter of inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. In Sankaran Moitra vs. Sadhna Dass, 2006 (2) RCR (Crl.), the Hon’ble Supreme Court delineated the object of Section 210 CrPC i.e. i) it is intended to ensure that private complaints do not interfere with the course of justice, (ii) it prevents harassment to the accused twice and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once. It was held that before Section 210 CrPC can be invoked the following conditions must have satisfied:- (i) There must be a complaint pending for inquiry or trial; (ii) Investigation by the police must be in progress in relation to the same offence. Crl. Revision No.939 of 2010 [14] (iii) A report must have been made by the police office under Section 173; and (iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case. In Narayandas, Bhagwandas, Madhavdass v. State of West Bengal, AIR 1959 SC 1118 it was held as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for the purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceedings under Section 200 and subsequent sections of Chapter XVI of the CrPC or under Section 204 CrPC of Chapter XVII of the CrPC that it can positively be stated that he had applied his mind and therefore had taken cognizance. Therefore, evidently it is the application of mind on the basis of which cognizance is taken and in the order dated 9.5.2009 as is passed by the learned Chief Judicial Magistrate a reference to which has been made, it has merely been mentioned that the complaint has been presented and that it be checked and registered. Besides, it is to come up on the adjourned date of the preliminary evidence of the complainant. It would normally be when a process in the case is issued or some stage where actual of application of mind is there that cognizance of the offence can be said to have been taken. It is not mere pendency of an inquiry Crl. Revision No.939 of 2010 [15] or trial for the offence in which an investigation is also in progress which is one of the condition for the invocation of Section 210 CrPC that it can be said that cognizance of the offence is to be construed in relation to the said ingredient of Section 210 CrPC. Condition (IV) in Sankaran Moitra’s case (Supra) envisages that the magistrate must have taken cognizance