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Anil Narang vs State & Ors. on 25 November, 2019

$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 25.11.2019

+ CRL.M.C. 5872/2019 CRL.M.A. 40600/2019
ANIL NARANG ….. Petitioner
Through Mr. Siddharth Aggarwal with Mr.
Nitin Mehta, Mr. Siddharth Satija,
Mr. Harish Kumar Gupta, Mr. Gaurav
Gupta and Mr. Arpit Rawat, Advs.

versus

STATE ORS. ….. Respondents
Through Mr.Panna Lal Sharma, APP for State.
Insp. Narender Singh, Complaint
Branch, North West District
Dr. M. K. Gahlaut, Adv. for R-23

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks directions as under:-

(i) To set aside the order dated 15.11.2019 passed by the Ld. Add.,

District Session Judge, North West District, Rohini Courts,

Delhi and order dated 14.11.2019 passed by Ms. Preeti

Aggarwal Gupta, Ld. ASJ, Spl. FTC, Rohini Courts, in case

FIR no. 985/2015, Police Station Shalimar Bagh;

CRL.M.C. 5872/2019 Page 1 of 14

(ii) Direct the trial to be conducted by the Ld. ASJ, Special Fast

Track Court, North-West, Rohini.

(iii) Direct the trial court to expedite the trial in terms of the order

of the Hon’ble Supreme Court.

2. The present petition is preferred due to allocation the matter to some

other court on the application of the respondent no.2 3 (complainant and

her father) on the basis that she does not have any faith upon the court. It

was consequently directed to transfer the case file for adjudication to the

court of, Ld. ASJ (electricity), North-West, Rohini.

3. Vide the present petition, the petitioner seeks direction qua

adjudication and disposal of the case only by the trial court i.e the court Ld.

ASJ, (Fast Track Court), North-West, Rohini.

4. Heard, learned counsel for the parties.

5. FIR No. 985/2015 was registered at Police Station Shalimar Bagh at

the instance of respondent no.2 against the petitioner and his parents

punishable under Section 498A/Section406/Section506/Section377/Section307/Section34 IPC.

6. It is not in dispute that in the month of July, 2017, chargesheet was

filed and the charges were framed on 12.10.2018.

7. Vide order dated 11.02.2019, the Hon’ble Supreme Court directed the

CRL.M.C. 5872/2019 Page 2 of 14
trial Court to expedite the hearing of the trial in this matter and disposed of

within one year from that date.

8. Thus, the trial Court has to complete the trial on or before 10.02.2020.

9. Ordersheet produced by the petitioner reveals that on 20.12.2018, the

present case was listed for prosecution evidence. However, on the said date,

PW3/complainant filed an application for exemption and the same was

granted. On 07.02.2019, the statement of PW3 was partly recorded.

Thereafter, on 05.03.2019, PW3 did not appear despite service and took the

ground that she was out of station. On 29.03.2019, PW3 was not present and

her counsel sought adjournment stating that she was unwell. On 03.04.2019,

she was further examined in chief, deferred as it was 04:00 pm. On

05.04.2019, PW3 was further examined in chief, deferred as it was 04:30

pm. On 9.04.2019, the same happened. On 16.04.2019, PW3 was not

present. On 25.04.2019, she was further examined in chief, however,

deferred as it was 04:00 pm. On 27.04.2019 also examined and deferred at

04:00 pm.

10. It is pertinent to mention here that on 29.04.2019, adjournment was

sought on behalf of PW3 stating that she is having tooth ache and she will

not be able to speak. Learned trial Court recorded on the said date that

CRL.M.C. 5872/2019 Page 3 of 14
statement of PW3 was recorded on 6 separate dates but her statements are

not coming to an end and every day the statements are recorded for about 2

hours.

11. It is further mentioned by the trial Court that it was decided on the last

date of hearing that on next date (29.04.2019) whole day would be devoted

for completing the record of the evidence of this witness, but witness has

come up with the aforementioned plea. Further, PW3 examined in chief on

14.08.2019, however, deferred, at the request of the complainant. On

20.08.2019, further examination in chief was deferred at the request of the

complainant as she was not feeling well. On 27.08.2019, she was partly

examined in chief and further examination in chief is deferred at her request.

On 29.08.2019, the said witness was partly examined in chief and further

examination in chief was deferred at her request. On 03.09.2019, she sent

request for deferment of the examination on the ground that he was not well

on that day. On 05.09.2019, PW3 was bound down but did not appear nor

any request was received by the Court. Accordingly, bailable warrants were

issued against PW3. On 11.09.2019, she was partly examined and her

examination in chief was deferred for want of passing an appropriate order

with respect of jewellery articles which were given to her by her in-laws at

CRL.M.C. 5872/2019 Page 4 of 14
the shagun ceremony on 02.07.2017.

12. It is further pertinent to mention here that on 14.11.2019, PW3 made

request before the trial Court for deferring the recording of her examination

in chief due to bad throat. The Court tried to persuade her for cooperating

but she expressed her unwillingness. On said date, PW48 (Pradeep Juneja)

father of PW3/complainant expressed inability to depose after lunch as he

was having chronic back pain and requested for adjournment.

13. It is pertinent to mention here that on the said date i.e. on 14.11.2019,

an application for transfer was filed by the complainant by stating that she

was not even allowed to make any remarks or to make her submission and

was constantly forced to sign on her evidence. The process of recording was

not legal according to her and the court itself was not allowing her to record

her statement and she was not even allowed to herself to use words such as

‘demand’, ‘dowry’ etc, which had also been used previously in her and her

father’s statement. It is further alleged that the court had constantly

interpreted herself being a Judge and did not allow deposing her statement

freely. The court was showing undue favour towards the accused persons by

not allowing her to depose her evidence freely and in a fair manner.

Moreover, the court also taunted the father of the complainant and regarding

CRL.M.C. 5872/2019 Page 5 of 14
her case bearing FIR No.985/2015. It is further alleged that on the said

allegations, the learned Trial Court observed that, “you have taken transfer

from a previous court, now only my court is left and you have no other

choice left.” The court even talked rudely to the witnesses that came on that

day. Accordingly, the complainant submitted that it is the prerogative of the

witness that what evidence has to be deposed in court and under which

manner, but if the court is deciding the length and width (of her statement)

then she, as a witness has no faith and trust in the court proceedings. Under

huge pressure the complainant and his father cannot depose freely and in a

fair manner before the court and has no trust on this court. To this effect, the

complainant and her father informed to the learned Prosecutor that the Court

was regularly creating hindrance in her evidence.

14. It is also not in dispute that on 15.11.2019, the complainant made an

application before learned District and Session Judge, North-West District,

Rohini, to transfer the matter from the court of learned ASJ, North-West

District, Rohini to some other court and the said application has been

allowed vide order dated 16.11.2019 in T.P. (CRL.M.A.) No. 34/2019 and

parties were directed to appear before the learned ASJ (Electricity), N/W

Rohini, Delhi.

CRL.M.C. 5872/2019 Page 6 of 14

15. Learned counsel for respondent No.2 and 3 submits that initially the

matter was posted before the Court of M.R. Sethi, ASJ, who was transferred

from the court on Administrative Order and the matter was posted before

Harish Kumar, learned ASJ. The complainant made an application to

transfer her case from the said court and due to intervention of this Court,

the case was transferred from Harish Kumar, ASJ to Ms. Raj Rani, ASJ.

Thereafter, the said Judge was also transferred on Administrative Order and

posted to POCSO Court which was created at that time. Thereafter, the

matter was posted before Deepak Garg, ASJ, who recused twice to hear the

matter on his personal reasons.

16. Finally, the matter was posted before Ms. Preeti Aggarwal Gupta,

learned ASJ, North-West Rohini on 30.10.2019. Learned counsel for

respondent No.2 and 3 has admitted that the chief of father of the

complainant was examined, which is well in the half way and the said court

never recorded the statement of the complainant.

17. Counsel for respondent No.2 and 3 also submitted that since the court

of Ms. Preeti Aggarwal Gupta, ASJ was not properly recording the

statement, therefore, the complainant and her father (respondent No.2 and 3)

moved an application to the District Judge for transfer by alleging against

CRL.M.C. 5872/2019 Page 7 of 14
ASJ as noted above. Thus, the complainant and respondent No.2 personally

submitted that they do not want their case to be tried by Ms. Preeti Aggarwal

Gupta, ASJ.

18. The present case is listed for prosecution evidence on 20.12.2018. The

Hon’ble Supreme Court vide order dated 11.02.2019 directed to expedite the

hearing and dispose of the matter within one year. Thereafter, vide order

dated 08.03.2019, again the same order was passed. Thereafter on

02.07.2019 directed to comply with the order dated 11.02.2019 and dispose

of the matter within one year and report the compliance of the same.

19. It is submitted by counsel for the petitioner that fourth accused

namely Astha Narang was discharged from all the offences by the Trial

Court and the same was challenged by the State before this court. This court

had set aside the order. Being aggrieved, the said accused challenged the

same before the Hon’ble Supreme Court and the Court has directed the Trial

Court not to take coercive steps and matter is pending in SLP No. 5231/2019

for adjudication.

20. Counsel for respondent No.2 and 3 informed this court that another

co-accused Anil Narang was also discharged from the offence punishable

CRL.M.C. 5872/2019 Page 8 of 14
under Section 406 IPC and 498-A, 377 and 307 SectionIPC. However, the State had

filed the revision challenging the discharge of said accused for the offence

punishable under Section 406 IPC and the same has been allowed by this

court. Being aggrieved, the said accused filed SLP vide No. 5231/2019

wherein the Hon’ble Supreme Court has directed the Trial Court not to take

coercive steps and pending before adjudication.

21. It is not disputed by counsel for respondent No.2 and 3 that

respondent No.2, who is complainant, moved an application for deferring

the remaining examination and cross-examination of the complainant. The

same has been dismissed vide order dated 14.08.2019 by recording that

since there is a direction of the Supreme Court to dispose of the matter

within one year and about 5 months have already been elapsed on the said

date.

22. Be that as it may, the respondent No.2 complainant on earlier

occasion moved an application to transfer her case from the Court of Mr.

Harish Kumar, learned ASJ and same was allowed by this court. Thereafter,

finally the matter was posted before Ms. Preeti Aggarwal Gupta, ASJ, who

is in mid of recording the examination in chief of respondent No.3/ father of

the complainant. At no occasion, as is admitted by respondent No.2 that the

CRL.M.C. 5872/2019 Page 9 of 14
said Judge ever examined respondent No.2 – PW-3 complainant. Therefore,

there was no occasion to make allegation against the said Judge by

respondent No.2 complainant.

23. I note in order dated 14.11.2019, Ms. Preeti Aggarwal Gupta, ASJ has

observed in its order that she had earnestly made sincere efforts to expedite

progress of the trial despite the unprecedented current situation before the

court, where neither the lawyers, nor police officers were appearing or

cooperating with the judicial process. She further observed that the matter

has been crystallised for regulating and conclusion of trial. The prosecution

witnesses have already been admitted/dropped by the prosecution with

special effort of the court. On said date of hearing (on 14.11.2019) the court

made an effort to continue with the trial by way of recording further chief

examination of the complainant, who expressed her inability owing to

sworn. No objection has been offered by the accused persons for recording

of chief examination of the complainant and her father, by learned APP for

the State under strict guidance of the court. However, in view of the request

made by the complainant she was accommodated on the said date.

24. Learned Judge further recorded that the available witness PW-48

namely Pradeep Juneja, who is father of the complainant (respondent No.3

CRL.M.C. 5872/2019 Page 10 of 14
herein) has been further examined at length before lunch. The court tried to

continue with recording of further chief examination of the deposing witness

PW-48, who then expressed his inability to depose further, owing to a

chronic back ache.

25. It has also been observed by the court that the complainant and her

father made an application jointly to express lack of faith and trust in the

court proceedings, stating that the court is creating hindrance to their

deposition which is not possible for the applicant to depose before this court

as they have no faith and trust in this court and the case shall not be taken up

in a fair manner.

26. Accordingly, her (Ld. Judge) judicious conscious was pricked and the

complainant and his father (the respondent No.2 and 3) did not allow the

Court to proceed with the matter further in an impartial and unbiased

manner. Accordingly, she referred the matter to the District and Session

Judge with a request for allocation of the matter to some other court.

27. In case of Harsh Mandar versus Union of India and Others, the

Hon’ble Supreme Court vide order dated 2nd May 2019, in Writ Petition (C)

No. 1045/2018 has held as under:-

CRL.M.C. 5872/2019 Page 11 of 14

“Shri Harsh Mander, who has filed Civil Writ Petition
No. 1045 of 2018, by this application has sought recusal
of the Chief Justice from the Bench hearing the matter on
the grounds stated in his application.

Having perused the said grounds, we would like to say
that a litigant should not be permitted and allowed to
question a Judge on perceived bias especially after
hearing has commenced and orders on different dates
have been passed. Normally, this should be left to the
Judge himself who is bound by the oath of office to
administer justice to all persons alike without fear,
favour and prejudice. The litigant, without any firm
basis, cannot be permitted to raise such objection on the
basis of the court hearing. To do so, would encourage
parties to ask for change of the Judge in the hope that
someone else is more likely to agree with them and not
take a contrary view. Choosing judges in such a manner
during the course of hearing would directly interfere
with the administration of justice. The grounds stated by
Shri Harsh Mander in his application for recusal of the
Chief Justice from the Bench therefore have the potential
of causing damage, harm and stall judicial adjudication.
We would also observe that judicial functions,
sometimes, involve performance of unpleasant and
difficult tasks, which require asking questions and
soliciting answers to arrive at a just and fair decision. If
the assertions of bias as stated are to be accepted, it
would become impossible for the Judge to seek
clarifications and answers. {see observation of Kurian
Joseph, J. in Supreme Court SectionAdvocates-on-Record
Association v. Union of India (Recusal Matter), (2016) 5
SCC 808}. Therefore, it would be in the institutional
interest for the present Bench to hear the matter which
we propose to do on the next date fixed. We dismiss the
recusal petition on the above-stated grounds. The
application for permission to appear and argue as
petitioner in person also stands disposed of.

CRL.M.C. 5872/2019 Page 12 of 14

Further, while keeping Civil Writ Petition No. 1045 of
2018 pending, we direct the Registry to strike off the
name of Shri Harsh Mander as the petitioner and
substitute Supreme Court Legal Services Committee as
the petitioner instead.”

28. It is not in dispute that no litigant has option to have his case to be

tried by a particular court. Making allegation without any basis is also not

acceptable. Rather, such types of allegations amount to contempt of courts.

The respondent nos. 2 3 have made allegations against two courts below,

but I hereby refrain from taking any legal action against the said respondents

with caution that no witness shall be allowed to create hindrance in justice

dispensation system failing which legal action, available under the law, shall

be taken.

29. Accordingly, in view of the facts and circumstances, and the legal

position of the law, I hereby set aside the order dated 14.11.2019 passed by

Ms. Preeti Aggarwal Gupta, ASJ to the extent request made for transfer the

case and the order dated 15.11.2019 passed by the learned District and

Sessions Judge, North West Delhi.

30. Accordingly, the parties are directed to appear before the court of Ms.

Preeti Aggarwal Gupta, ASJ on 30.11.2019 for further proceedings.

CRL.M.C. 5872/2019 Page 13 of 14

31. I hereby direct the Trial Court to hear the matter on day to day basis

and no adjournment for whatsoever reasons shall be granted to any of the

witnesses, including respondent No.2 and 3.

32. In view of the above, the petition is allowed and disposed of.

33. Pending application also stands disposed of.

34. A copy of this order be given dasti under signatures of the Court

Master.

(SURESH KUMAR KAIT)
JUDGE
NOVEMBER 25, 2019/ms/pkb

CRL.M.C. 5872/2019 Page 14 of 14

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