IN THE HIGH COURT FOR THE STATES OF PUNJAB &

HARYANA AT CHANDIGARH

CRIMINAL REVISION NO. of 2012IN

CRIMINAL REVISION PETITION NO. 26 OF 2012IN

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 complaintcase titled “Matadata Jagrookta Manch v. Sukhbir Kataria etc”)

Matadata Jagrookta Manch, Gurgaon through its office bearer andGeneral Secretary Om Parkash son of Ram Parsad, 8 Biswa Mouji WalaRoad, 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 HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE

HON’BLE 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 re-

appreciating 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

Hon’ble 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

Hon’ble Court is also made along with this revision petition.

The complainant, most respectfully, requests, in the interests

of justice, that this Hon’ble 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

Halsbury’s 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 Rubinstein’s 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 People’s Acts 1950 and accused no. 18. be

summoned for criminal conspiracy cheating, forgery and

section 31 of Representative People’s 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 complainant’s 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-petitioner’s 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 Narain’s 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 Attorney-

General'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 Attorney-

General'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. 11733-

E/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 Hon’ble 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 hardship…”Order 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-petitioner’s 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 ex-

parte 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 complainant’s 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 complainant’s 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 Hon’ble Court as may be intimated/

directed by the Registrar of this Hon’ble 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 Hon’ble 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 Hon’ble Court

may deem fit in the peculiar circumstances of the

present case in the interest of justice.

Date: 19.03.2012Sh. Om Parkash Kataria (for Applicant)

s/o Sh. Ram Parshad, H. No. 402,Sector 12A, Gurgaon, Haryana.

Through Counsel