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Delhi District Court -498/406 Discharge against Husband for not having any evidence to prosecute him

Delhi District Court
Rizwana Khan vs . on 29 April, 2017
 Rizwana Khan
Vs.
Mohd. Abbas & The State
CR No: 440191/2016

IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I DWARKA COURTS; NEW DELHI

Rizwana Khan
W/o Sh. Mohd. Abbas
D/o Late Mr. Mohd Usman Khan
R/o 2/7 A, Jangpura-A,
New Delhi- 110014

………….revisionist
VERSUS
1. Mohd. Abbas
Zakaria Shahid Industries,
Shahidabad Near Ganga Bridge,
Sambhal Road, Moradabad
Uttar Pardesh

2. The State ( NCT of Delhi)

……..Respondents
CR No. 440191/2016
Date of Institution 14.01.2016
Police Station Nanakpura
Reserved for orders on 19.04.2017
Judgment announced on 29.04.2017

JUDGMENT

1. This revision petition under Section 397 Cr.P.C.

is directed against the impugned order dated 12.10.2015 passed by Ld. MM-01, Mahila Court, South West, Dwarka Courts, New Delhi by which Ld. MM was pleased to discharge the accused Mohd. Abbas (respondent no. 1 herein) for offences under Section 498A/406 IPC.

2. Briefly stated facts relevant for the disposal of the revision petitions are as under:

3. The revisionist had made a complaint dated 22.08.2013 to the Commissioner of Police stating therein that she got married with Mohd. Abbas (respondent no. 1 herein) on 14.07.2011 in Delhi and at the time of marriage, Respondent no. 1 had forced her not to tell anyone in her family and his family that she (revisionist herein) is his second wife and the revisionist did not inform anyone but she (revisionist herein) told her family members about the marriage and someone from the side of respondent no.1 informed his family and friends by email and after that incident, she has been mentally tortured and harassed by respondent no. 1 and his family and respondent no. 1 is not picking her calls most of the times and did not reply to her email and SMS etc. and hardly visiting her and whenever respondent no. 1 talks with revisionist, he (respondent no. 1) used very harsh words. It is further stated by the revisionist in the complaint dated 22.08.2013 that on being asked about the reason for indifference, Respondent no. 1 used to say that his first wife Noore Sahar @ baby and kids are forcing for all this and his first wife is blackmailing him that she will consume sleeping pills and his kids are threatening to kill her (revisionist herein). The revisionist further stated in the complaint dated 22.08.2013 that she is mentally depressed and the family members of respondent no. 1 are making nasty calls to her and respondent no. 1 comes at her house in Delhi hardly and whenever he comes he fights with her. It is stated by the revisionist in her complaint dated 22.08.2013 that her mother gifted her house No. 2/7, Ground Floor, Jangpura, Delhi where she is residing. She further stated that Respondent no. 1 is taking her for granted, disrespects her and keeping her away from all rights and she has been victimized and is being humiliated and mentally harassed.

4. On the basis of complaint dated 22.08.2013 of the revisionist, case vide FIR no. 198/2013 under Section 498A/34 IPC was registered at PS Crime(Women) Cell and final report under Section 173 Cr.P.C. for offences under Section 498A/406/34 IPC against respondent No. 1 was submitted in the court of Ld. MM. Vide impugned order dated 12.10.2015, Ld. MM was pleased to discharge the accused (respondent no. 1 herein) for offences under Section 498A/406 IPC.

5. The revisionist has filed the revision petition stating therein that the impugned order suffers from illegality and impropriety and is incorrect and the same has ignored the statement on record of the complainant and other documents and material facts. It is stated that at the stage of framing of charge, the court has only to see whether there is sufficient material on record to frame the charge and Ld. Trial Court has ignored the important material on record by recording a finding without giving any opportunity to the complainant and the State to prove the allegation in FIR and statement under Section 161 Cr.P.C. . It is stated that impugned order is based on surmises and conjectures. It is stated that impugned order dated 12.10.2015 is liable to be set aside.

6. I have heard Ld. Counsel for the parties and carefully perused the records.

7. The contention of Ld. Counsel for the revisionist is that the contents of the FIR clearly reveal that the revisionist(complainant) had made allegations regarding the torture and harassment inflicted upon her and also subjecting her to disrespect and denial of all rights to the complainant (revisionist) to which she is entitled as a wife.

8. It is further contended by Ld. Counsel for the revisionist that during the course of investigation, statement under Section 161 Cr.P.C. of revisionist was recorded on 08.01.2014 wherein she has made clear cut allegations that she was also being subjected to physical torture and the revisionist was presented with three diamond sets as gift by her mother and 11 gold coins were gifted by her mother to respondent no. 1 and respondent no. 1 had demanded the said three diamond sets from the revisionist and on refusal by the revisionist, the revisionist was given beating by respondent no. 1 and the said three diamond sets were forcibly taken by the respondent no. 1 and despite demand, the same have not been returned by respondent no. 1. It is further contended on behalf of revisionist that in her statement under Section 161 Cr.P.C., the revisionist has specifically stated that respondent no. 1 pressurized the revisionist to transfer her house in the name of respondent no. 1 to which she did not agree and on that she was given beatings by respondent no. 1.

9. Ld. Counsel for the revisionist has contended that in the statement under Section 161 Cr.P.C., the revisionist has specifically stated that respondent no. 1 forcibly made physical contact with her and she was subjected to rape and also to unnatural sex. Ld. Counsel for the revisionist has contended that on the basis of allegations as made in the statement under Section 161 Cr.P.C. dated 08.01.2014, charge for offence under Section 498A IPC is made out against the accused ( respondent no. 1 herein ).

10. Ld. Counsel for respondent no. 1 has contended that the conduct of the revisionist would show that she has been making improvements in her version after taking legal advise although no offence of criminal misappropriation or cruelty of any nature has been committed on the revisionist. Ld. Counsel for respondent no. 1 has further contended that initially the revisionist had filed one complaint dated 04.07.2013 to one Non Governmental Organization (NGO) namely Jagori and in the said complaint she has not stated that she was subjected to any kind of physical torture or demand of dowry by respondent no. 1 and thereafter she made complaint dated 22.08.2013 to Commissioner of Police on the basis of which present FIR was registered and in the complaint dated 22.08.2013 also, the revisionist has not stated that she was subjected to any kind of physical torture by the respondent no. 1 and in the statement recorded under Section 161 Cr.P.C. on 08.01.2014, the revisionist has for the first time made allegations of physical torture and the same would show that the said allegations are after thought and have been made on the basis of legal advise received by her. Ld. Counsel for respondent no. 1 has contended that the investigation regarding medical bills has failed to substantiate that she was subjected to any kind of physical torture.

11. Ld. Counsel for respondent no. 1 has further contended that the impugned order dated 12.10.2015 does not suffer from illegality or impropriety. Ld. Counsel for the respondent no. 1 has contended that in the revisional jurisdiction under Section 397 Cr.P.C, the court shall not re-appreciate and re-apprise the evidence and findings recorded by the trial Court.

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12. Ld. Addl. PP for the State/R2 has contended that the State has not challenged the impugned order dated 12.10.2015 by preferring any revision petition. Ld. Addl. PP for the State has contended that although State has not challenged the impugned order, however, as per allegations as made in the statement under Section 161 Cr.P.C., a prima facie case under Section 498A/406 IPC is made out against accused ( respondent no. 1 herein).

13. The contention of Ld. Counsel for respondent no. 1 is that the revisionist has made improvements in her statement under Section 161 Cr.P.C. over the previous complaint dated 04.07.2013 which was made to NGO, Jagori and complaint dated 22.08.2013 made to the Commissioner of Police on the basis of which present FIR was registered and the allegations of physical cruelty and sexual abuse are after thought.

14. As per record, there is one letter dated 04.07.2013 sent by the revisionist to Ms. Sunita Thakur Ji of Jagori(NGO) wherein she has stated about the factum of her marriage with respondent no. 1 and has stated about the neglect suffered on account of conduct of respondent no. 1 and has solicited guidance for securing her rights. Perusal of letter dated 04.07.2013 which is addressed to NGO, Jagori, it cannot be said that the same is in the form of complaint or can be treated as first information, as by way of said letter, the revisionist has sought guidance and advise for redressal of her problems.

Moreover, when the revisionist was trying to find ways of redressal of her problem, it cannot be expected that she will make public all the affairs of private life in the letter dated 04.07.2013 which was addressed to Jagori, NGO.

15. The first complaint which was made by the revisionist to the police is dated 22.08.2013 on the basis of which FIR bearing no. 198/2013 under Section 498A/34 IPC was registered. In the complaint dated 22.08.2013, the complainant(revisionist herein) has stated about the mental harassment to which she was subjected. In the subject of complaint dated 22.08.2013 addressed to Commissioner of Police, the complainant (revisionist herein) has stated “Mental Harassment(domestic violence)” and in the concluding part of the said complaint, the revisionist has stated that she is being victimized and is being humiliated and mentally depressed and this is domestic violence against her.

16. At this stage it is appropriate to refer to relevant provisions of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter called DV Act). Section 3 of the DV Act defines domestic violence as :

Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause(b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person Explanation I.- For the purposes of this section,-

(i) “physical abuse’ means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) ” economic abuse” includes –

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved peson has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) Prohibition or restriction to condinued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II – For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes ” domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

17. Ld. Counsel for the revisionist has contended that in the impugned order, Ld. MM has observed that “offence under Section 406 IPC is not made out ” as there are allegations that diamond sets were taken away by the accused(respondent no. 1) forcibly and there is no evidence of diamond sets being in possession of complainant and of being forcibly taken by the accused (respondent no. 1) and although on the basis of statement under Section 161 Cr.P.C. dated 08.01.2014, the offence under Section 406 IPC is not made out but there are clear cut allegations in the statement under Section 161 Cr.P.C. to the effect that complainant(revisionist herein) was subjected to physical torture and sexual abuse and offence under Section 498A IPC was attracted against the accused(respondent no. 1).

18. In the statement under Section 161 Cr.P.C dated 08.01.2014, the complainant(revisionist herein) for the first time has stated about receipt of three diamond sets as gift from her mother and forcibly taking away of the sets by the accused (respondent no.1 herein).

19. In the impugned order dated 12.10.2015, Ld. MM has been pleased to observe that the complainant has failed to provide any proof that said diamond sets existed and she does not have the purchase bills and she does not have the photograph of the same.

20. As per evidence conducted by the Investigating Agency, no evidence has been collected to the effect that complainant(revisionist herein) was in possession of diamond sets and same were forcibly taken from her possession by the accused(respondent no. 1 herein).

21. The contention of Ld. Counsel for the revisionist is that on the basis of statement under Section 161 Cr.P.C., offence under Section 498A IPC was attracted.

22. Section 498A IPC reads as :

Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

23. In the complaint dated 22.08.2013 addressed to Commissioner of Police, the revisionist has not stated about being subjected to physical and sexual abuse and these allegations have been made by the complainant for the first time in the statement under Section 161 Cr.P.C. dated 08.01.2014.

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24. Section 240 Cr.P.C. reads as :

Framing of charge.- (1) if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, an he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

25. In Union of India V. Prafula Kumar Samal AIR 1979 Supreme Court 366, Hon’ble Supreme Court was pleased to hold:

10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

 (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basis infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

26. In State of M.P. V. S.B. Johari, AIR 2000 Supreme Court 665, Hon’ble Supreme Court was pleased to hold:

4. ——————–

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It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilty of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya etc., reported in ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 : 1990 Cri LJ 1869), after considering the provisions of Ss 227 and 228, Cr. P.C. Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged.

 The Court may pursue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar V. Ramesh Singh ( 1977) 4 SCC 39: ( AIR 1977 SC 2018 : 1977 Cri LJ 1606), Union of India V. Prafulla Kumar Samal ( 1979) 3 SCC 4: ( AIR 1979 SC 366: 1979 Cri LJ 154) and Supdt. of Remembencer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 : ( AIR 1980 SC 52 : 1979 Cri LJ 1390), and held thus :-

“From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.’

27. In State of M.P. v. Mohan Lal Soni, AIR 2000 Supreme Court 2583, Hon’ble Supreme Court was pleased to hold:

7. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.

9. Yet in another decision of this Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 : 1990 Cri LJ 1869) it is held that at the time of framing charges having regard to Sections 227and 228 of Cr.P.C. the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case.

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28. In State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 Supreme Court 2041, Hon’ble Supreme Court was pleased to hold:

8. The law on the subject is now well- settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya, ( 1990) 4 SCC 76 : ( AIR 1990 SC 1962 ), that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.

The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore , at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

29. In CBI Vs. K. Narayana Rao, Criminal Appeal No. 1460/2012( Arising out of S.L.P. (Crl.) No. 6975 of 2011), Hon’ble Supreme Court was pleased to hold:

12. While considering the very same provisions i.e. framing of charge and discharge of accused, again in Sajjan Kumar ( supra), this Court held thus:

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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima face case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

30. In the statement under Section 161 Cr.P.C. dated 08.01.2014, the complainant/revisionist has stated that when she insisted for return of diamond sets, she was beaten by accused(respondent no.1 herein) and has further stated that she was forcibly subjected to physical relationship, rape and unnatural sex by respondent no. 1.

31. The investigating Agency has filed one verification report dated 24.07.2014 issued by Phoenix hospital as per which the complainant(revisionist herein) had undergone treatment for “Cervical Polyp for polypectomy, Diagnostic D & C” and there was no harassment involved in the said treatment and there is no medico legal involvement in this case. The allegations of physical and sexual abuse as made by the complainant(revisionist herein) are not supported by any medical evidence.

32. In the impugned order dated 12.10.2015, Ld. MM has been pleased to observe:

Complainant has not alleged any act of cruelty that is of such a nature as is likely to drive her commit suicide or cause grave injury or danger to life etc. Even though complainant has suggested that he was mentally harassed on account of the negligence of accused Abbas but she admits that she knew she was his second wife. Thus there is nothing to presume that she was likely to be driven to commit suicide due to such conduct of accused. Complainant had provided details of her medical treatment with Phonex Hospital which was verified by the IO and it was revealed that the same pertains to gynecological problem. Her documents pertaining to psychiatry dept. of Dr. Sanjay Hospital were unverified.

Complainant has not alleged any demand made by the accused in her complaint to CAW cell dated 22.08.2013. This complaint was type written and was also forwarded to an NGO. However, for the first time in her statement under Section 161 Cr.P.C. dated 08.01.2014 she alleges that accused demanded her house and on refusal she was beaten up. This allegation apart from being highly belated does not inspire confidence also for the reason that it is not in tune with the initial complaint. The initial complaint narrates in detail how the complainant is desperate for her rights as a wife and how she is being deserted and neglected by her husband.

This complaint was not written in spur of a moment but appears to be well thought of since the same was forwarded to CAW cell and to one NGO also. The allegation of demand of house appears to be an improvement in case and cannot be relied on.

33. As per decision in CBI Vs. K. Narayana Rao ( Supra) if two view are are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

34. The statement of complainant under Section 161 Cr.P.C. dated 08.01.2014 may give rise only to suspicion as distinguished from grave suspicion.

35. In view of aforesaid discussions, I find no infirmity in the impugned order dated 12.10.2015. The revision petition is devoid of merits and the same is dismissed.

36. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned to record room.

Announced in the open ( HARISH DUDANI) Court on 29.04.2017 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.

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