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IN THE COURT OF DISTRICT & SESSIONS JUDGE; GAUTAMBUDH NAGAR, NOIDA
CRL.
REVISION PETITION No. _____ OF 2017.
IN THE MATTER OF :-
___________ : REVISIONIST
__________ : RESPONDENT
FIR
No. __________
U/S:
379 IPC
P.S.: Sector-20,
Noida
I N D E X
S.No. PARTICULARS PAGES
1. MEMO OF PARTIES.
2. CRIMINAL
REVISION PETITION UNDER SECTION 397 OF CR.P.C. ALONGWITH AFFIDAVIT.
2. ANNEXXURE
P-1
COPY OF ORDER DATED ……….. PASSED BY
LD. TRIAL COURT.
7. ANNEXXURE P-2
COPY OF FIR NO.__________ U/S 379 IPC
P.S. SECTOR-20, NOIDA.
8. ANNEXXURE P-3
COPY OF F.D.R.
9. ANNEXXURE P-4
COPY OF RC No.DL3CAK6775
10. ANNEXXURE P-5
COPY OF SUPERDARI APPLICATION FILED
BEFORE THE LD. TRIAL COURT.
11. ANNEXXURE P-6
COPY OF ORDER DATED 24.02.2015 PASSED
BY THE LD. TRIAL COURT ON SUPERDARI APPLICATION.
12. ANNEXXURE P-7
COPY OF APPLICATION UNDER SECTION 451
CR.P.C. FOR TAKING PERMISSION TO SELLING THE CAR FILED BY THE PETITIONER.
13. VAKALTNAMA.
---------------------------------------------------------------------------------
DELHI REVISIONIST
DATED
__________
ADVOCATES
Off.: __________,
New
Delhi-110013.
IN THE COURT OF DISTRICT & SESSIONS JUDGE; GAUTAMBUDH NAGAR, NOIDA
CRL.
REVISION PETITION No. _____ OF 2017.
IN THE MATTER OF :-
__________ :
REVISIONIST
__________ :
RESPONDENT
FIR
No. __________
U/S:
379 IPC
P.S.: Sector-20, Noida
MEMO OF PARTIES
MR. __________
S/o Sh.
R/o
Delhi. :
REVISIONIST
VERSUS
__________OF UP : RESPONDENT
---------------------------------------------------------------------------------
DELHI FILED BY
DATED
__________
ADVOCATES
Off.: __________,
New
Delhi-110013.
Matter is
pending before the Ld. Trial Court of Sh. ……….. Ld. Chief Judicial Magistrate, Gautambudh
Nagar, Noida, in FIR No. __________ under Section 379 of IPC registered with
Police Station Sector-20, Noida in case titled as State Vs. Unknown, which is
fixed for …………….
IN THE COURT OF DISTRICT & SESSIONS JUDGE; GAUTAMBUDH NAGAR, NOIDA
CRL.
REVISION PETITION No. _____ OF 2017.
IN THE MATTER OF :-
MR. __________
S/o Sh.
R/o
Delhi. :
REVISIONIST
VERSUS
__________OF UP : RESPONDENT
FIR
No. __________
U/S:
379 IPC
P.S.:
Sector-20, Noida
REVISION PETITION UNDER SECTION
397/399/401 OF CRIMINAL PROCEDURE CODE AGAINST THE IMPUGNED ORDER DATED ……….2017
PASSED BY THE LD. TRIAL COURT OF SH……………….., LD. CHIEF JUDICIAL MAGISTRATE, GAUTAMBUDH
NAGAR, NOIDA WHEREBY THE LD. TRIAL COURT PLEASED TO DISMISSED THE APPLICATION
UNDER SECTION 451 CR.P.C. FILED BY THE PETITIONER.
MOST
RESPECTFULLY SHOWETH :-
1. That the revisionist is law abiding
citizen and has full faith in the administration of justice. That the
revisionist has sought to invoke the Extraordinary Jurisdiction of this Hon'ble
Court under Section 482 of the Code of Criminal Procedure.
2. That the revisionist has been constrained
to file present revision petition seeking setting aside of order dated ……..2017
passed by the Ld. Trial Court of Sh. ………..
Ld. Chief Judicial Magistrate, Gautambudh Nagar, Noida, in FIR No. __________
under Section 379 of IPC registered with Police Station Sector-20, Noida in
case titled as State Vs. Unknown, whereby
Ld. Trial Court was pleased to dismissed the application under Section 451
Cr.P.C. filed by the petitioner for seeking permission for selling the car,
hence the said order is impugned in this petition.
3. That
the question of law arises in the present revision petition is that whether the
Ld. Trial Court failed to appreciate that revisionist should have been
discharged in view of the contradictory statements given by the complainant in
FIR No. __________, further the allegations leveled by the complainant does not
attract the commission of the offences for which the revisionist is being
charged.
4. That the present revision has been filed by revisionist and the brief
facts of the case necessary of the disposal of the present revision may be
summoned up as under: -
A. It has been
stated that
1. That the
captioned FIR bearing number __________ of 2015 was registered at the instance
of applicant / owner with the Police Station Sector-20, Noida under Section 379
of IPC on __________in relation to the theft of the Honda Civic Car bearing No.__________.
2. That
during the course of investigation, officials of Police Station, ______, Noida
recovered the said car and resulting thereon the applicant moved an application
before this Hon’ble Court for release of the aforesaid car on superdari and
this Hon’ble Court vide order dated _________ allowed the application.
3. In
pursuance thereof the applicant furnished all relevant documents and surety for
an amount of Rs.__________/- for relapsing the car on superdarias per the
satisfaction of this Hon’ble Court while taking the said car on superdari.
4. It is
most humbly submitted that said car bearing number __________ is almost ten
years old and it requires lot of repeated maintenance/repair and its market
value is fast depreciating.
5. That the
captioned matter is still at a preliminary stage and it will take a lot of time
for conclusion of the same. In view thereof the applicant, who is owner of the
said car, would suffer immensely on account of the said delay. Pertinently all
the requirements for release of the said car on superdari have been completed
to the satisfaction of this Hon’ble Court and if the permission to sell the
said car is given to the applicant, it would not cause any prejudice to the
prosecution.
6. Furthermore
in view of the judgment in SunderbhaiAmbala Desai Vs. State of Gujrat, AIR 2003
Supreme Court 638, it is submitted that the vehicle can be allowed to be sold
without any condition of superdari. The Hon’ble Supreme Court in the said case
has further held that the photographs of the vehicle can be used as secondary
evidence during trial and there is no requirement of physical production of the
vehicle.
7. That the
applicant is willing to place photographs of the said car so that it can be
used in evidence instead of production of the said car before the Hon’ble Court
during the trial.
8. It is
submitted that with the age of the car said vehicle has lost its roadworthiness
and if the permission to sell the said car is not given then applicant would
suffer grave loss as the car would have to be kept in a stationary condition.
9. In view of the aforesaid facts and circumstance coupled with the
judgment as passed by Hon’ble Supreme Court of India, the car can be released
to rightful owner (applicant) and at the time of release photographs of the
said vehicles may be taken so that during the course of trial the actual
production of the vehicles should not be insisted upon and Photographs should
suffice for the purposes of evidence during the stage of evidence.
B. That it has been
further stated by the complainant that
C. That
thereafter after hearing arguments, Ld. Trial Court pleased to frame the charge
against the revisionist under Section 302 of I.P.C. and accordingly charge was
framed on ……….2016 and order of framing of charge against the revisionist is
impugned in this Petition.
5. That the order of the Ld. Trial Court is
wrong to frame the charge against the Revisionist as the Ld. Trial Court did
not consider the fact that there is no legally admissible evidence against the
Revisionist to connect him with the commission of the alleged offence even
prima facie, besides this complaint has been filed in order to exert pressure
upon the Revisionist.
6. That the Ld. Trial Court erred to frame
the charge against the Revisionist as the Ld. Trial Court did not consider the
facts that there are catena of judgments passed by the Hon'ble Supreme Court of
India and various other High Courts whereby it has been categorically held that
before a man can held liable for acts done there should be some material
against it.
7. That aggrieved
by the aforesaid order on the charge framed by the Ld. Trial Court the
Revisionist prefer to file the present revision petition on the following
amongst other grounds :-
- : G R O U N D S : -
I. That Ld. Trial
Court has not considered the contentions of the Revisionist that at the stage
of framing of charge the court has to apply its judicial mind to determine
whether or not there is a ground for presuming commission of offences by
accused and since framing of charge affects a person’s liberty need for proper
consideration of material warranting such order cannot be over emphasized. It
is difficult to discern on element of deception in the entire case.
II. That the Ld. Trial
Court has erred in framing the charge against the Revisionist as the Ld. Trial
Court did not appreciate the facts involved in the said case and did not apply
his judicial mind while framing the charge against the Revisionist. The Ld.
Trial Court is required to evaluate the material and find out of ingredients of
offences charged are made out.
III. That the Ld.
Trial Court has erred in framing the charge against the Revisionist as the Ld.
Trial Court did not appreciate the facts in view of the decisions as pronounced
by the Hon’ble Supreme Court in the cases which has been instituted malafidely
in order to harass the revisionist without even substantiating the same,
Hon’ble Supreme Court has quash the FIR and case of the petitioner is well
covered by those case law. However same is reproduce herein under :-
“The Supreme Court in the case of State
of Bihar and Anr. etc. v. Shri P.P. Sharma and Anr. etc. . Mr. Mathur drew our
attentions to the guidelines laid down by the Supreme Court for quashing the FIR
in the case of State
of Haryana and Ors. v. Chaudhary Bhajan Lal and Ors. Paragraph 107
of the said judgment itemise guidelines as follows:-
1. Where the allegations made in the
First Information Report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima-facie constitute any offence
or make out a case against the accused.
2. Where the allegations in the First
Information Report and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
3. Where the uncontroverter allegations
made in the FIR or complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case against the
accused.
4. Where, the allegations in the FIR do
not constitute a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR
or complaint are so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of the aggrieved
party.
7. Where a criminal proceeding is
manifestly attended with malafide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.
In the present case guidelines Nos. 5 and
7 are material for the purpose of discharging the Revisionists.
IV. That
the Ld. Trial Court has erred in framing the charge against the Revisionist as
the Ld. Trial Court did not appreciate the facts it is not a spontaneous
complaint. Long drawn complaint can't be but deliberated, calculated and
fabricated, no action on the same can be taken and same has been held by the
Hon’ble Supreme Court in the cases of Datar Singh v. __________of Punjab as well as Kans
Raj v. State of Punjab and Ors.”
V. That the Ld.
Trial Court has erred in framing the charges as the Ld. Trial Court did not
appreciate that there is no prima facie case against the present Revisionist
and the prosecution had miserably failed to place on record any incriminating
evidence against the Revisionist which would be held sufficient to rope the
Revisionist within the four corners of Sections 302 of IPC. The Ld. Trial Court
should not have accepted all the prosecution states as gospel’s truth in the
facts and circumstances of this case.
VI. That the Ld.
Trial Court has erred in framing the charge against the Revisionist as the Ld.
Trial Court did not appreciate that the prosecution has miserably failed to
place on record any evidence that case under Section 302 of IPC is being made
out against the Revisionist and the Revisionist is entitled for discharge on
the stage of framing of the charge itself.
VII. That it is
respectfully submitted that there is no specific allegations against the
Revisionist and no case under Section 302 of IPC has been made out against him even
if these allegations are taken to be true in verbatim.
VIII. That as such in
the absence of the allegations which are essential ingredients of the offences
under the aforesaid section, the accused cannot be charged in the aforesaid
offences.
IX. That in facts and
circumstances of this case there are no prospects of conviction of the
revisionist in the circumstances the Ld. Trial Court has erred in framing the
charge against the Revisionist. The Ld. Trial Court did not appreciate the fact
that the evidence collected by the prosecution is not such that, if gone
unrebutted, the same can result into the conviction of the Revisionist and thus
also the Revisionist was entitled for discharge. It was held in case reported
as JT 1996 (7) SC, in Satish Mehra Vs. Delhi that of the court in almost
certain that there is no prospect of case ending in conviction. It is advisable
to truncate or snip the proceedings at the stage of Section 227 of Cr.P.C.
X. That it
will be against the fundamental principles of legal systems if an innocent
person be implicated in false case in this manner. Evidence can be sifted and
weighed for limited purpose of considering the matter of charge. The impugned
order does not even indicate that such an approach was followed.
XI. That the outcome of the investigation casts
doubt over the veracity of the complainant as such aforesaid charge framed
against the Revisionist is liable to be quashed. After scrutiny even the basic
allegations making out a case there under are not contained in the FIR. In such
a situation continuing criminal proceedings against the revisionist will be an
abuse of process of the court.
XII. That it
is in the interest of justice if the allegation leveled by the complainant does
not constitute any offence of Section 302 of IPC as such charge is liable to be dismissed on this ground alone.
XIII. That the
Ld. Trial Court failed to appreciate that the case of the Revisionist is well
covered in view of the law settled by Hon'ble High Court of Delhi in a case
titled as State Versus Someshwar, that onus is upon the prosecution to prove
the charges and in the absence of the any evidence, Revisionist without
admitting anything submits that in view of the settled law as submitted above,
the impugned order is liable to be quashed.
XIV. That the
Revisionist has no other alternate remedy but to approach this Hon’ble Court
through present petition.
XV. That the Ld. Trial
Court committed serious illegality in framing the charge against the
Revisionist under Section 302 of IPC, as there was not a single whisper of
allegations against the Revisionist attracting Section 302 of IPC.
XVI. That the Ld. Trial
Court failed to appreciate that Revisionist has been named with malafide
intentions by the prosecution.
XVI. That the Ld. Trial
Court committed serious illegality in framing charge against the Revisionist on
the vague and general allegations made by the prosecution in respect of the present
Revisionist.
XVII. That the outcome of
the investigation has casts doubt over the veracity of the complainant as such
aforesaid charge framed against the Revisionist is liable to be quashed.
8. That the legal
position is well settled that the process of court cannot be utilized for any
oblique purpose and where in the opinion of the court the chances of an
ultimate conviction are bleak and therefore no useful purpose is likely to be
served by allowing a criminal prosecution to continue, the court may discharge
the revisionists, although the same may be at a preliminary stage.
9. That there is
nothing in the record to connect the present Revisionist with commission of the
alleged offences. The allegations made are blatantly absurd, inherently improbable
that no prudent person can reach a conclusion that there is sufficient ground
for proceeding against the Revisionist.
10. That the criminal
proceeding is manifestly intended with malafide and the same has been
instituted with an ulterior motive for wreaking vengeance upon her and with a
view to spite her due to private and personal grudge.
11. That where the allegation made in the First
Information Report or the complaint, even if they are taken at their face value
and accepted in their entirely do not prima facie constitute any offences or make out a case against the
accused, this law had been laid down by the Hon'ble High Courts and Hon'ble
Apex Court. And in this case no allegations constitute any offences under
aforesaid Sections of Indian Penal Code.
12. That in this case
criminal proceedings are manifestly attended with malafide and / or the
proceedings is maliciously instituted with an ulterior motive for wreaking
vengeance on the Revisionist and with a view to spite he due to private and personal
grudge.
13. That the Revisionist has no other alternative remedy but to
approach this Hon'ble Court under its Extra Ordinary Jurisdiction.
14. That
the aforesaid case has been registered failing within the territorial a
supervisory jurisdiction of this Hon'ble Court and as such the present revision
is maintainable in its present form.
15. That the Revisionist craves the leave of this
Hon’ble Court to raise such other or further ground that may be available to
them at the time of hearing of the present petition.
16. That
revisionist has not filed any similar Criminal Revision petition in the above
noted matter either before this Hon’ble Court or any other Court or Hon’ble
Supreme Court of India against order dated ……….2016 passed by Ld. Trial Court.
P R A Y E
R
It is, therefore, respectfully prayed
that the order passed by the Ld. Trial Court of Sh. Sanjay Sharma, Ld. Special
Judge/NDPS/ASJ/NE, Karkardooma, Delhi dated …….2016 whereby the Ld. Trial Court
was pleased to frame the charge against the Revisionist for the offence 302 of
Indian Penal Code in in FIR No. __________ under Section 302 of IPC registered
with Police Station Karawal Nagar, Delhi in case titled as State Vs. Ankit
Saxena, may kindly be quashed and the Revisionist may kindly be discharged from
the above noted case in the facts and circumstances as narrated herein above,
in the interest of justice.
Such
other or further orders as this Hon'ble Court may deems fit and proper in the
facts and circumstances, in the interest of justice.
It is
prayed accordingly.
DELHI REVISIONIST
DATED
__________
ADVOCATES
Off.: __________,
New
Delhi-110013.
IN THE COURT OF DISTRICT & SESSIONS JUDGE; GAUTAMBUDH NAGAR, NOIDA
CRL.
REVISION PETITION No. _____ OF 2017.
IN THE MATTER OF :-
__________ :
REVISIONIST
__________ :
RESPONDENT
AFFIDAVIT
Affidavit
of Mr. __________, aged about ___ years S/o Sh……………….. R/o ……………………….., do
hereby solemnly affirm and declare as under :-
1. That I am the
revisionist in the above mentioned case and as such I am conversant with the
facts and circumstances of the case, and hence competent to swear this
Affidavit.
2. That the contents
of the accompanying Revision Petition under Section 397 of Cr.P.C. have been
read over and explained to me in vernacular language and having understood the
same I say that the facts stated therein are true to the best of my knowledge
and belief and nothing material has been concealed therefrom.
VERIFICATION :-
Verified
at Delhi on this ___ day of March, 2017. That the contents of the above
Affidavit are true and correct to my knowledge, no part of it is false and
nothing material has been concealed therefrom.
DEPONENT
