IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH CRIMINAL REVISION NO.

of 2012 IN CRIMINAL REVISION PETITION NO. 26 OF 2012 IN COMPLAINT CASE NO. OF 2012 (Arising out of impugned ex-parte stay orders dated 25.02.2012 & 15.03.2012 passed by Additional Sessions Judge, Gurgaon in complaint case titled Matadata Jagrookta Manch v. Sukhbir Kataria etc) Matadata Jagrookta Manch, Gurgaon through its office bearer and General Secretary Om Parkash son of Ram Parsad, 8 Biswa Mouji Wala Road, Village Gurgaon, Tehsil and district Gurgaon ..Applicant/ Resp. No. 1/Complainant Versus Sukhbir Kataria son of late Shri Bhim Singh, resident of House No. 1, Khera Dewat Road, Village Gurgaon, Tehsil and District Gurgaon ..Respondent/ Revisionist/Accused No. 18 CRIMINAL REVISION APPEAL UNDER CrPC SECTION 482 IN RE SERIES OF ALLEGED MANIFESTLY ILLEGAL EX-PARTE PERMANENT STAY ORDERS GROSSLY EXCEEDING LIMITED SCOPE OF REVISION BY SESSIONS COURT AT THE STAGE OF SUMMONS ISSUED FOR 20.03.2012 BY COURT OF ORIGINAL JURISDICTION ON PRIVATE COMPLAINT TO THE HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HONBLE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. THE HUMBLE PETITION OF THE PETITONER ABOVE NAMED MOST RESPECTFULLY SHOWETH:

1.

This is a case of gross judicial overreach and perceived bias, granting permanent ex-parte stay, completely outside the scope of revison at intermediate stage, by learned Additional Sessions Judge, Gurgaon, wherein the appeal court has second guessed the learned trial court which was formally mandated by Parliament to hold original jurisdiction, by illegally reappreciating the evidence tendered before trial court by complainant at intermediate stage of proceedings (summoning) which throughout remained within the four corners of law. As held by 7 judges Constitution Bench, The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior Court and appeal court could only question validity of the order which implies errors of procedure and/ or jurisdiction may only be corrected in revision. On 25.11.2011, while reversing the judgment dated 20.04.2010 of the Punjab & Haryana High Court, the Apex Court, in State of Haryana v. Rajmal & Anr 2011 STPL (Web) 1012 SC held that "revisional jurisdiction ... is to be exercised, only in an exceptional case, when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting in a flagrant miscarriage of justice"

2.

The appeal court has, to all purposes and intent, effectively taken over original jurisdiction of trial court. This is patently illegal and without jurisdiction. The learned trial court alone held the guided discretion to prima facie determine offences, sans any legal necessity to give reasoned order, and to issue

summons in its considered wisdom, in this case, falling under CrPC Sections 190(1)(a) (Cognizance of offences), 200 (Examination of complaint), 202 (Postponement of issue of process) and Section 204 (Summoning). Shocking as it may appear, yet another permanent ex-parte stay order has been issued in this matter on 02.03.2012 to benefit another nine accused, namely accused nos. 5, 7 to 11 and 13 to 15.
3.

The complainant asserts that this alleged manifestly illegal revision has been done due influence and power of the sitting Haryana Minister Sh. Sukhbir Kataria, accused no. 18 who allegedly having conspired in custodial death, on 12.01.2010, of brother of Sh. Om Parkash Kataria has recently allegedly conspired in attack on manager and employees of Sh. Om Parkash Kataria on 09.02.2012, soon after the learned trial court issued summons vide Order dated 08.02.2012. These are all matters of wide public knowledge extensively reported in English and vernacular print and TV media, and CrPC Section 197 sanction under consideration/ filed unrebutted since 12.06.2011 by the Chief Minister of Haryana and the then Acting Chief Justice (on the administrative side) of this Honble High Court.

4.

The voluminous records which go to the history and extent of this case, includes writ petitions, election petitions and criminal and civil cases, which it is not possible to attach with this criminal revision/ appeal in the short time frame of two working days before the deadline of 20.03.2012, when

irreparable harm to the image of the judiciary in this country shall have culminated by virtue of illegal permanent ex-parte stay granted on 25.02.2012 and on some other date(s) in this and connected cases thus halting the wheels of justice in a corrupt manner on 20.03.2012. Under the emergent conditions herein, it is requested that complainant may be permitted to produce these records in the court at the hearing.
5.

A separate application seeking kind permission of this Honble Court is also made along with this revision petition. The complainant, most respectfully, requests, in the interests of justice, that this Honble Court be pleased to hear and decide this case in its wisdom on 19.03.2012 or at the latest on 20.03.2012 to avoid this impending murder of justice on 20.03.2012.

6.

The complainant also asserts, most respectfully, that the transfer application, noticed for 26.03.2012, by learned District & Sessions Judge, Gurgaon does not provide a sufficient and effective remedy for this impending murder of justice set to take place on 20.03.2012, when the powerful Haryana Minister will, otherwise, succeed in his nefarious design to halt the wheels of justice set in motion by Ms. Kavita Kamboj, learned JMIC, Gurgaon vide Order dated 08.02.2012 summoning the Minister and other 17 accused, for answering and/ or rebutting the offences prima facie found against them, for trial to commence on 20.03.2012. This will further embolden his alleged co-conspirators to physically threaten/

attack the person and family/ friends/ supporters of the members of the complainant NGO.
7.

The powerful Haryana Minister and accused no. 18 has questioned the locus standi of the complainant. Locus standi in this case is well established as shown by this passage in Civil Appeal No. 1193 of 2012 arising out of SLP(C) No. 27535 of 2010 Dr Subramaniam Swamy v. Dr Manmohan Singh decided by the Constitution Bench headed by the Chief Justice of India on 31 January 2012 it was held: 17...It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315: It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society,

right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi
8.

Any delay of even a day in correcting this gross judicial overreach by learned Additional Sessions Judge, Gurgaon, can result in injury or worse to the person and family/ friends/ supporters of the members of the complainant NGO as has been held by the Apex Court in Punjab and Haryana High Court Bar Assn v. State of Punjab AIR 1994 SC 1023, 1994 (1) SCC 616 the Apex Court held: "...........The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution. After giving our thoughtful consideration to the facts and circumstances of this case, we are of the view that the least the High Court could have done in this case was to have directed an independent investigation/inquiry....."

9.

That a 7 judge Constitution Bench in A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 held: This Court, to be plain, did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is

legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal. See in this connection the observations in M.L. Sethi v. R.P. Kapur (supra) in which Justice Mathew considered Anisminic, [1969] 2 AC 147 and also see Halsburys Laws of England, 4th Edn. Vol. 10 page 327 at para 720 onwards and also Amnon Rubinstein Jurisdiction and Illegality (1965 Edn. pages 16-50). Reference may also be made to Raja Soap Factory v. S. P. Shantaraj, [1965] 2 SCR 800. The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior Court and that, in practice, no decision can be impeached collaterally by any inferior Court. But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinsteins Jurisdiction and Illegality (supra).
10.

That justice delayed is justice denied combined with a horrific disregard for protection to whistleblowers in India aptly describes the conspectus of this case that covers within its fold the makings of a real life thriller where an alleged child rapist and serial forger of election related documents gradually rose to become a municipal councilor and then a powerful

Haryana Minister who, in early 2010, allegedly conspired to threaten the members of the complainant in the alleged conspiracy by the powerful Haryana Minister leading to the death in unclear circumstances after illegal bail cancellation (by learned JMIC, Gurgaon, Sh. Pawan Kumar, JMIC, Gurgaon) & illegal-police custody (by off duty Constable Angrej Singh) followed by jail custody on 11.01.2010 and death on 12.01.2010, as ascertained in CrPC Section 176 inquiry by Sh. Mukesh Rao, JMIC Gurgaon which prima facie was unduly delayed and the crucial witness, an off duty policeman who reportedly took the deceased to Bhondsi Jail without authority, was examined after a delay of 11 months (from 14.05.2010 to 25.03.2011), hence deliberately facilitated by JMIC to feign forgetfulness and ignorance of the circumstances. The then learned District & Sessions Judge, Gurgaon, Sh. RS Virk allegedly sent the Section 176 inquiry dated 02.04.2011 by (a now dismissed) member of our judiciary, Sh. Mukesh Rao, JMIC Gurgaon, which had recommended independent (CBI?) probe, for review by none other than one of the accused, Jail Superintendent, Bhondsi, which is violation of Article 141 law and the separation of powers mandated in the Constitution of India, which is clear from this passage in Civil Appeal No. 1193 of 2012 arising out of SLP(C) No. 27535 of 2010 Dr Subramaniam Swamy v. Dr Manmohan Singh decided by the Constitution Bench

headed by the Chief Justice of India on 31 January 2012 wherein it was held: 18....A similar argument was negatived by the

Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500. .....The Court then referred to Section 5A of the 1947 Act, the provisions of the 1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150, State of M.P. v. Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh Chandra AIR 1957 M.B. 43 and held: "......There is no warrant for such an approach. Astounding as it appeared to us, in all solemnity it was submitted that investigation of an offence by a superior police officer affords a more solid safeguard compared to a court. Myopic as this is, it would topsy turvy the fundamental belief that to a person accused of an offence there is no better safeguard than a court. And the very fact that power is conferred on a Presidency Magistrate or Magistrate of the first class to permit police officers of lower rank to investigate these offences would speak for the mind of the Legislature that the court is a more reliable safeguard than even superior police

officers. (emphasis supplied).

11.

That the present criminal revision petition is preferred under CrPC Section 482 against the series of permanent ex-

parte stay orders dated 25.02.2012, 02.03.212, 15.03.2012 etc grossly exceeding the judicially limited scope of a criminal revision at intemediate stage allegedly illegally passed by Sh. Vikram Aggarwal Additional Sessions Judge, Gurgaon in regard to valid and legal summoning orders (under legal presumption of validity unless the contrary is proved) issued by trial court of Ms. Kavita Kamboj, JMIC, Gurgaon, upon a private complaint vide Order dated 08.02.2012 wherein it was ordered, after prima facie satisfaction (Gurdeep Kaur v. Balbir Singh & Others 2005(2) RCR(Cr) 205), that accused no. 1 to 17 be summoned for offence of criminal conspiracy, impersonation, cheating, forgery and under section 31 of Representative Peoples Acts 1950 and accused no. 18. be summoned for criminal conspiracy cheating, forgery and section 31 of Representative Peoples Acts 1950 for 20.03.2012.
12.

The scope of revision powers exercised by learned Additional Sessions Judge is not to appreciate or re-appreciate the evidence, but is only to correct errors of jurisdiction / procedure. This power, it has been held by the 3 judge Bench in Madhu Limaye v. The State of Maharashtra AIR 1978 SC 47 must be exercised ..very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. This has been later approved by the 4 judge

bench of the Apex Court in V.C. Shukla v. State through C.B.I. AIR 1980 SC 962.
13.

The Order dated 08.02.2012 of the trial court itself states, 3. In its preliminary evidence, complainant through its General Secretary, Sh. Om Parkash stepped into the witness box and deposed as CW 1. Thereafter, complainant closed preliminary evidence vide his separate statement. Counsel for complainant placed on record annexures 2, 3, 3A, 3B, 3C, ..18, 18A to 18AH, 19.Therefore, a prima facie case is made out. It is therefore amply clear that trial court has recorded the statement of complainant under oath and applied its mind to the numerous documents obtained legally from government records so as to determine whether or not prima facie offence is disclosed by the evidence available at this stage. The standard of proof of evidence at this stage is not the standard for conviction but the standard sufficient for determining prima facie offences.

14.

At stage of issuing summons only prima facie satisfaction of trial court is needed. (Kanti Bhadra Shah v. The State of West Bengal AIR 2000 SC 522) Apex Court has also held in Jagdish Ram v State of Rajasthan AIR 2004 SC 1734 that reasons need not be recorded in an order issuing summons. Hence so long as trial court has applied its mind to the facts and circumstances of the case and determined that summons be issued for certain specific offences, reasoning process being

subjective cannot be second guessed as it lies outside the scope of revision at the stage of summoning.
15.

In Civil Appeal No. 1193 of 2012 Dr Subramaniam Swamy v. Dr Manmohan Singh decided on 31 January 2012 by a Constitution Bench headed by the Chief Justice of India it was held: 26. Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint ... It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process.. it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. Thus, it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out.

16.

The learned Additional Sessions Judge has proceeded to stay the summoning order dated 08.02.2012 on the finding, as appears from an analysis of the stay order dated 25.02.2012, that there has been some miscarriage of justice by the trial court on

three major counts, firstly that the complainant should have given a statement on oath, secondly that impugned order also does not disclose as to for what offences the petitioner has been summoned and thirdly that court has relied upon mere photostat copies of documents.
17.

The complainants General Secretary, Sh. Om Parkash Kataria had given statement on oath. As regards the second issue, the Order dated 08.02.2012 shows clearly the offences prima facie found to be determined for purposes of summoning order in line with standards laid down in Civil Appeal No. 1193 of 2012 Dr Subramaniam Swamy v. Dr Manmohan Singh decided on 31 January 2012 by a Constitution Bench headed by the Chief Justice of India. It is a requirement of law that the offences be reasonably recognizable for the purposes of raising a defence to the case in which cognizance has been taken of the offences alleged, hence the revisionist-petitioners second complaint is completely baseless as it has been mandated in CrPC Section 211(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. This has been complied with in the trial court order.

18.

As regards the third issue that court has relied upon mere photostat copies of documents the matter is well settled in view of Ashok Dulichand vs Madahavlal Dube & Another AIR 1975 SC 1748, 1976 SCR (1) 246, 1975 (4) SCC 664, Smt. Raj Kumari vs Shri Lal Chand (1994) 106 PLR 190, Smt. Sobha

Rani And Ors. vs Ravi Kumar And Ors. AIR 1999 P&H 21, (1998) 120 PLR 563, Monica Bedi v. State of AP 2011 (1) SCC 284. It will be most useful to refer provisions of Section 63 (1) & (2), Section 65(e) and Section 74 of Indian Evidence Act, 1872 as regards presumption of legal validity in production of secondary evidence of the duly certified official/ government records before the courts of law.
19.

This case is almost entirely based upon the public documents as mentioned in Section 74 of the Indian Evidence Act, 1872, that is photostat copies produced before the trial court of certified official record of this court as also certified official record of State of Haryana, of which the accused No. 18 is a powerful sitting Minister. The original certified copies of this record are in the possession of the complainant and were

examined personally by trial magistrate in court, before reserving her summoning order dated 08.02.2012. Because the original documents are in the possession of Superintendent District & Sessions Court, Gurgaon and/ or Election Tehsildar, Gurgaon and/ or District Food & Supplies Officer, Gurgaon, the complainant is not at all required to produce the originals in terms of Indian Evidence Act Section 63 (1) & (2), Section 65 (e) and Section 74. The admissibility of photostat documents which are properly admissible in terms of Indian Evidence Act, 1872 has been upheld by the Apex Court in Monica Bedi v. State of AP 2011 (1) SCC 284.

20.

In Civil Appeal No. 1193 of 2012 Dr Subramaniam Swamy v. Dr Manmohan Singh decided on 31 January 2012 by a Constitution Bench headed by the Chief Justice of India it was held: 28. In Vineet Narains case....(1996) 2 SCC 199, the Court referred to the allegations made in the writ petition that Government agencies like the CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they did not investigate into the .... nexus between several important politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, and proceeded to observe: The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: Be you ever so high, the law is above you. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public

confidence in the impartial working of the government agencies. 29. After examining various facets of the matter in detail, the three Judge Bench in its final order reported in (1998) 1 SCC 226 observed : These principles of public life are of general application in every democracy ..... It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law...
21.

In Crown Prosecution Service v F [2011] EWCA Crim 1844 a 5 judge bench headed by the Lord Chief Justice of England and Wales held: "24. In R v Stephen Paul S [2006] EWCA Crim 756 in this court Rose LJ, returned to these issues. In the context of a submission that the well known passages in the judgment in Attorney-General's Reference No 1 of 1990 were no longer authoritative, the court concluded that none of the decisions since Attorney-General's Reference No 1 of 1990 represented any departure from the approach adopted in that case. In particular he referred to AttorneyGeneral's Reference No 2 of 2001 [2001] EWCA Crim 1668, Hooper, Bell, and Smolinski. Trial judges faced with applications for stay ...were asked to bear in mind the following principles: "(i) ... a permanent stay should be the exception rather than the rule;

xxxxxxx (iii) no stay should be granted in the absence of serious prejudice to the defence... 25. ...This approach is entirely consistent with AttorneyGeneral's Reference No 1 of 1990 and Galbraith... xxxxxxxx 36. The authority of Galbraith...is undiminished. .... xxxxxxxxx 48. We draw together the headlines to our principal conclusions. ... 49. (i) An application to stay for abuse of process and a submission of 'no case to answer' are two distinct matters.... xxxxxxxxx (iii) An application to stop the case on the grounds that there is no case to answer must be determined in accordance with R v Galbraith...... xxxxxxxxx (v) An application to stay for abuse of process ought ordinarily to be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage. ..."
22.

In Attorney General's Reference No 2 of 2001 [2003] UKHL 68 it was held by the House of Lords: "13. It is accepted as "axiomatic" "that a person charged with having committed a criminal offence should receive a

fair trial ......": R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68. In such a case the court must stay the proceedings. But this will not be the appropriate course if the apprehended unfairness can be cured by exercise of the trial judge's discretion within the trial process: Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630. .... If it is established, after the event, that a trial was unfair, any resulting conviction will be quashed: Mohammed v The State [1999] 2 AC 111, 124; R v Togher [2001] 3 All ER 463, 472; R v Forbes [2001] 1 AC 473, 487, para 24; Mills v HM Advocate [2002] 3 WLR 1597, 1603, para 12. This is what domestic law requires, and what the Convention requires. 14. If the domestic court appreciates, before an impending trial, that the tribunal by which the case is due to be heard lacks independence or impartiality, it will of course take steps to ensure that the trial tribunal does not lack those essential qualities. If it learns after the event that the trial tribunal lacked either of those qualities, any resulting conviction will be quashed: Millar v Dickson [2001] UKPC D4; [2002] 1 WLR 1615; Porter v Magill [2002] 2 AC 357; Mills v HM Advocate [2002] 3 WLR 1597, 1603, para 12."
23.

In The Queen v Alfredo Rodriguez decided on 25.05.2011 by the High Court at Saint Lucia (Eastern Caribbean Supreme Court) it was held by the single judge:

"[5]. The guiding principles for the treatment of submissions of no case to answer are set out in R v Galbraith [1981] 73 Cr. App. Rep. P. 124 at p. 127: " (1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty -the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury" (per Lord Lane C.J. at p. 127). The principles were distilled by the Privy Council in Taibo (Ellis) vs R. (1996) 48 WIR 74 where it was stated that test for the judge is whether there is evidence on which a jury could, without irrationality, be satisfied of guilt and if such evidence is available, the judge must allow the case to be decided by the jury. Rawlins CJ

in Malcolm Maduro v R. Criminal Appeal No. 4 of 2007 (8VI) helpfully restated the position specific to

circumstantial evidence, as in the present case. His Lordship said (at paragraph 21) "Where the case involves circumstantial evidence the only concern of the judge is whether a reasonable jury could reach a conclusion of guilt on the evidence by drawing reasonable inferences from the evidence that is given at the trial. The question, then, is whether a reasonable jury may on one view of the evidence convict the accused. If so, even if another view of the circumstances thrown up on the evidence may be consistent with innocence, the judge should not withdraw the case from the jury."
24.

In the North Ireland case of Chief Constable of Northern Ireland v LO (2006) NI 261, Kerr LCJ, as he then was, observed that: The proper approach of a judge or magistrate sitting without a jury does not, therefore, involve the application of a different test from that of the second limb in R v. Galbraith. The exercise that the judge must engage in is the same, suitably adjusted to reflect the fact that he is the tribunal of fact. It is important to note that the judge should not ask himself the question, at the close of the prosecution case, do I have a reasonable doubt? The question that he should ask is whether he is convinced that there are no circumstances in which he could properly convict. Where

evidence of the offence charged has been given, the judge could only reach that conclusion where the evidence was so weak or so discredited that it could not conceivably support a guilty verdict.
25.

In a nutshell , therefore, in granting stay by way of revision, the correct approach is for the judge to bear in mind the following; 1. A permanent stay is the exception rather than the rule, even where delay is justifiable; 2. Where there is no fault on the part of the prosecution such a stay will be rare; 3. No stay should be granted in the absence of serious prejudice so that no fair trial can be held; 4. When assessing prejudice the judge should bear in mind his powers to regulate the admissibility of evidence; and if 5. Having considered these factors, if a Judge's assessment is that a fair trial will be possible, a stay should not be granted.

26.

The accused persons have not alleged any malafide, bias or lack of jurisdiction of the trial court, and they are at liberty to appear before the trial court to dispute the evidence submitted by and on behalf of complainant and quickly bring the proceedings to a satisfactory conclusion in accordance with law. By dilatory tactics, as adopted now, it appears that they wish to remain as category of accused persons for longer period of time without rebutting the offences determined prima facie by trial court, which alone has original jurisdiction in the matter, unless transfer application is preferred, which also has not been done. This is most certainly not in the interests of the criminal justice

system as adopted in India and will only bring a bad name to the institutions responsible for upholding the Rule of Law in regard to cases concerning Ministers, Judges, Police and Jail officials who are all very influential, and are perceived to be able to get away from the criminal justice system with ease and confidence as noted by the Apex Court in a host of cases commencing from Vineet Narain v. Union of India 1996 (2) SCC 199 and Vineet Narain v. Union of India AIR 1998 SC 889, 1998 (1) SCC 226 to Civil Appeal No. 1193 of 2012 arising out of SLP(C) No. 27535 of 2010 Dr Subramaniam Swamy v. Dr Manmohan Singh decided on 31.01.2012 by a Constitution Bench headed by the Chief Justice of India. At present this case is at interlocutory stage or at best at intermediate/ interim stage, determination of which stage is not settled law, in view of the question of law left open by a 3 judge bench of the Apex Court in Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674, 2004 (7) SCC 338. In Adalat Prasad (supra) it was held: Having heard the learned counsel for the parties and having considered the judgment of this Court in the case of Mathew (K.M. Mathew v. State of Kerala & Anr. 1992 (1) SCC 217) we are unable to agree with the law laid down by this Court in the said case. If we analyse the reasons given by this Court in the said case of Mathew then we notice that the said view is based on the following facts :

(a) The jurisdiction of the Magistrate to issue process arises only if the complaint contains the allegations involving the commission of a crime; (b) If the process is issued without there being an allegation in the complaint involving the accused in the commission of a crime it is open to the summoned accused to approach the court issuing summons and convince the court that there is no such allegation in the complaint which requires his summoning; (c) For so recalling the order of summons no specific provision of law is required; (d) The order of issuing process is an interim order and not a judgment hence it can be varied or recalled. We will examine the above findings of this Court in the background of the scheme of the Code which provides for consideration of complaints by Magistrates and

commencement of proceedings before the Magistrate which is found in Chapters XV and XVI of the Code; Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under section 203 if he comes to the conclusion that the complaint, the statement of the complainant and

the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage has materials to proceed, he can proceed to issue process under Section 204 of the Code. Section 202 contemplates: postponement of issue of process : It provides that if the Magistrate on receipt of a complaint if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under section 203 of the Code. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination

of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the

accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law. In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not.
27.

That this view of the Apex Court has now found substantive support in CBI v Keshub Mahindra 2011 (6) SCC 216 where the Constitution Bench referring specifically to CrPC and IPC as the Code emphatically held:

No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code.
28.

That the Additional Sessions Judge, by granting ex-parte stay of the summoning Order dated 08.02.2012, has pre-judged the lis, which, it is most respectfully submitted, is not open to him to assume in view of the settled legal position stated by the 3 judge Bench of the Apex Court in Madhu Limaye v. The State of Maharashtra AIR 1978 SC 47 approved by a 4 judge Bench of the Apex Court in V.C. Shukla v. State through C.B.I. AIR 1980 SC 962, 1980 Supp. SCC 92 where it was held in Madhu Limaye (supra): The point which falls for determination in this appeal is squarely covered by a decision of this Court to which one of us (Untwalia was a party in Amar Nath and Others v. State of Haryana & Anr. (AIR 1977 SC 2185) But on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this Court in Amar Nath's case but in a somewhat modified and modulated form...... The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. ...

At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the

ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
29.

That the very grant of ex-parte order staying the summoning order of learned trial court dated 08.02.2012 exhibits bias and disregard for well settled judicial ethics. Such unabashed disregard for the orders of a brother judge is clear breach of judicial ethics laid down at paragraph 16 of Punjab High Court Semi-official Letter No. 11733-E/IX-A 16, dated the 15th December, 1949 as also paragraph 17 in view of the operation of Doctrine of Merger whereby the Order dated 25.02.2012 merges with the trial court Order dated 08.02.2012. Paragraphs 16 and 17 of the Punjab High Court Semi-official Letter No. 11733E/IX-A 16, dated the 15th December, 1949 provide: 16. Ex parte applications- He should discourage ex parte hearings of applications for injunctions and receiverships where the orders may work detriment to absent parties; he

should act upon such ex parte application only where the necessity for quick action is clearly shown; if this be demonstrated, then he should endeavour to counteract the effect of the absence of opposing counsel by a scrupulous cross-examination and investigation as to the facts and the principles of law on which the investigation as to the facts and the principles of law on which the application is based, granting relief only when fully satisfied that the law permits it and the emergency demands it. He should remember that an injunction is a limitation upon the freedom of action of defendants and should not be granted lightly or inadvisedly. One applying for such relief must sustain the burden of showing clearly its necessity and this burden is increased in the absence of the party whose freedom of action is sought to be restrained even though only temporarily. 17. Ex parte Communications- He should not permit private interview, arguments or communications designed to influence his judicial action except in cases where

provision is made by law for ex parte application. He should not permit the contents of written arguments presented to him to be concealed from opposing counsel. Ordinarily all communications of counsel to the Judge intended or calculated to influence action should be made known to opposing counsel.

30.

To all intents and purposes, therefore, and in view of the high authority of the Honble Supreme Court and our High Court the Order dated 25.02.2012 is manifestly unjust and suffers the vice of perceived bias if not proven or actual bias amounting to perception of miscarriage of justice among the lay public who have seen how a powerful minister has kept the local police at bay from 20.11.2010, date of filing unactioned report / complaint to local police in this matter, till the Order dated 08.02.2012 summoning the accused in a private complaint under CrPC Sections 156(3) & 190(1(a). Bias is inherently difficult to prove or to disprove as it is well settled that every order would always have certain element of bias of the individual traits of the judge who after all is human. What hardship would have been caused if matter of grant of stay itself had also been listed for consideration on 15.03.2012 is very difficult to digest, given the fact that summoning was scheduled only for 20.03.2012 vide the trial court Order dated 08.02.2912, and even the Supreme Court has a policy for grant of ex-parte stay only upon depositing costs and then also only if delay caused by notice would entail serious hardshipOrder VIII Rule2 of the Supreme Court Rules, 1966 runs as follows: Order VIII Rule 2 Where the delay caused by notice would or might entail serious hardship, the applicant may pray for an ad-interim ex-parte order in the notice of motion, and the Court, if satisfied upon affidavit or otherwise that the delay caused

by notice would entail serious hardship may make an order ex-parte upon such terms as to costs or otherwise, and subject to such undertaking being given, if any, as the Court may think just, pending orders on the motion after notice to the parties affected thereby.
31.

The learned Additional Sessions Judge has not commented upon the revisionist-petitioners complaint in paragraph 9 that there is no list of witnesses attached with the complaint, and rightly so, as there is no such legal requirement in CrPC which categorically mandates 202..(1)..(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. and a 3 judge bench of the Apex Court in Adalat Prasad (supra) has also held: Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence

adduced at that stage has materials to proceed, he can proceed to issue process under Section 204 of the Code. 32. The offences for which summoning order has now issued were complained of by the Matadata Jagrookta Manch to the Election Commission of India and the local police on 20.11.2010 but to no avail as Haryana Minister Sukhbir Kataria suppressed the complaint. A day after issue of summoning order dated 08.02.2012 the alleged supporters of Haryana Minister Sukhbir Kataria attacked the manager and employees of Sh. Om Parkash on 09.02.2012. 33. Even earlier the brother of Sh. Om Parkash, Sh. Krishan Kumar, expired on 12.01.2010 in suspicious circumstances, with suspected involvement of at least two judges of the District Court, doctors of the Civil Hospital, staff of three police stations and Bhondsi Jail. He was allegedly murdered with alleged complicity of Haryana Minister Sukhbir Kataria and others, as held by then learned JMIC, Gurgaon, Sh. Mukesh Rao, because Sh. Om Parkash had dared to collect detailed and

incontrovertible information of bogus votes prepared and cast by him and others to win municipal and assembly elections by allegedly unfair methods. Sanction under Section 197 CrPC was separately sought by the wife of the deceased from the High Court as also from the Chief Minister of Haryana on 12.06.2011 but there is neither refusal nor grant of sanction so far, although RTI correspondence with the High Court is ongoing.

34.

That under the peculiar facts and circumstances of this case, delay in delivery of justice caused by grant of permanent exparte stay has stalled the trial by allegedly illegal staying of summons issued for 20.03.2012 by trial court, and this delay provides ample opportunity to the powerful Haryana Minister Sukhbir Kataria who even has his relative, accused no. 1 Devender s/o Sh. Harpal working in this High Court as Assistant Advocate General, Haryana, to plan attack or arrange for attack upon the complainants members. The excessive delay caused by delay tactics adopted by the accused, not only delay justice, but also embolden the conspirators, who see no risk to themselves of being caught, intensify the grave risk to life and limb of the complainants members and other persons assisting them.

35.

The custodial death, on 12.01.2010, of brother of Sh. Om Parkash was allegedly related to cases of alleged electoral fraud, complained of in CWP 22303 of 2010 and CWP 7780 of 2011 both titled Matadata Jagrookta Manch v. State of Haryana in this High Court as also Election Petition Nos 9 of 2009 and 10 of 2009 in both of which Haryana Minister, Sukhbir Kataria is Respondent No. 1, and in his report u/s 176 CrPC the inquiry magistrate opined: On 13.1.2010 Shri Om Parkash Kataria, brother of deceased Krishan@Kanwaria also produced application annexed as Annexure-B alongwith voter list showing fabricated votes got prepared by Shri Sukhbir Singh

Kataria, Minister of Haryana Government and on which they raised objection and disclosed that the reason of death in custody was the handy work of the Minister as aforesaid in collusion with police officers/officials and others......Report is submitted accordingly with the opinion that the matter needs thorough investigation from some independent/impartial agency as there seems to be indulgence of senior political boss, superior police officers, jail authorities, doctors and others.
36.

That the petitioners have been left with no other effective statutory remedy even by way of an appeal or revision except to invoke the extraordinary criminal revision jurisdiction of this Hon'ble Court under CrPC Section 482.

37.

It is certified that the applicants have not filed any other such or similar petition earlier in this Hon'ble Court or in the Hon'ble Supreme Court of India. No such or similar petition is pending adjudication before any competent court of law.

38.

Applicants undertake to make up any shortfall of stamp duty/ court fees in accordance with law and rules before the case is to be finally listed before the Honble Court as may be intimated/ directed by the Registrar of this Honble Court. PRAYER It is, therefore, respectfully prayed that Your Lordships may graciously be pleased to:
(a)

Review the order dated 25.02.2012 passed by Additional Sessions Judge, Gurgaon, and

(b)

Review the order dated 15.03.2012 passed by Additional Sessions Judge, Gurgaon, and

(c)

Restore the operation of the Order dated 08.02.2012 of the learned trial court summoning all the 18 acccused for trial on 20.03.2012 or on such other early date to be directed in the interests of justice by this Honble Court, and

(d)

Order independent CBI or other inquiry to carry out detailed investigation into the controversy to get to the root of this case, and

(e)

Pass such other or further order as this Honble Court may deem fit in the peculiar circumstances of the present case in the interest of justice.

Date: 19.03.2012

Sh. Om Parkash Kataria (for Applicant) s/o Sh. Ram Parshad, H. No. 402, Sector 12A, Gurgaon, Haryana. Through Counsel