Allowed

Neelam Aggarwal v. Gulshan Rai

Himachal Pradesh HC1 Nov 2017CRMMO/34/2017

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 CrPC holding that the lower court's order of taking cognizance could not stand as the complainant's statement recorded earlier via power of attorney cannot legally be recorded again. Consequently, the impugned orders were set aside and the matter remanded.

What did the court decide?

The petition is allowed; orders dated 26.08.2016 and 04.10.2016 are set aside; trial court to proceed ignoring the agreement.

Neelam Aggarwal Vs Gulshan Rai — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 34 of 2017.

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Date of decision: 01.11.2017.

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Neelam Aggarwal and another …..Petitioners.

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Versus

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Gulshan Rai ….. Respondent.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No

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For the Petitioners : Mr.Ashok K.Tyagi, Advocate.

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For the Respondent : Mr.N.K.Thakur, Senior Advocate with Mr.Rahul Singh Verma, Advocate.

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Tarlok Singh Chauhan, Judge (Oral).

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This petition under Section 482 of the Code of Criminal Procedure (for short ‘Code’) takes exception to the order passed by the learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, on 4^th October, 2016, whereby it has taken cognizance against the petitioners under Sections 451 and 506(1) read with Section 34 IPC.

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It is not in dispute that the statement of the complainant through his power of attorney Arvind Sardana had initially been recorded on 26.07.2016 and on the same date statements of certain other witnesses were also recorded. However, it appears that thereafter the statement of Arvind Sardana was again recorded on 26.08.2016 wherein he tendered supplementary agreement dated 27.09.2008.

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The learned counsel for the respondent was not in a position to explain or even justify as to how the statement of the complainant through his power of attorney once recorded could have been recorded for the Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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second time. Obviously, there is no procedure in the Code for recording the statement of the complainant in preliminary evidence more than once. Therefore, the statement recorded on 26^th August, 2016 has to be discarded and resultantly the order dated 04.10.2016 wherein the supplementary agreement has also been taken into consideration while taking cognizance against the petitioners cannot withstand judicial scrutiny and, therefore, deserves to be set aside.

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Accordingly, the petition is allowed and the order dated 26.08.2016 and subsequent order dated 04.10.2016 are ordered to be set aside. The learned trial Court shall proceed to decide the matter after ignoring the agreement Ex.P-1 and shall not be influenced by any observations which have been made hereinabove and are solely for the purpose of deciding the instant petition.

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The petition is allowed in the aforesaid terms. Since the order of taking cognizance has been set aside, let the complainant appear before the learned trial Magistrate on 20.11.2017. Interim order dated 20.02.2017 stands vacated. Pending application, if any, also stands disposed of.

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Copy ‘dasti’.

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1^st November, 2017. (Tarlok Singh Chauhan), (krt) Judge.

Neelam Aggarwal v. Gulshan Rai

Case brief

What is this about?

What did the court decide?

Neelam Aggarwal v. Gulshan Rai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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