Delhi District Court
Sh. Arun Kumar vs Anti Corruption Forum on 18 May, 2013
1
IN THE COURT OF SH. GULSHAN KUMAR
ADDITIONAL SESSIONS JUDGE 01 (SOUTH)
SAKET COURTS : NEW DELHI
Criminal Revision No. 11/12
ID No. 02406R0307502012
Sh. Arun Kumar, Executive Engineer
South Zone, BuildingII,
South Delhi Municipal Corporation,
Green Park, New Delhi ....REVISIONIST
V e r s u s
1. Anti Corruption Forum
Through its President Sh. Krishan Gopal
R/o 35/B/2, Pul Prahladpur, New Delhi
2. State of Delhi
Through Commissioner of Police,
Police Headquarters, I.P. Estate,
New Delhi ....RESPONDENTS
Date of Institution: 03.11.12
Date of reserving for judgment: 07.05.13
Date of pronouncement: 15.05.13
Crl. Revision No. 11/12 Page 1/12
2
ORDER
The present criminal revision petition questions the legality, correctness and propriety of impugned order dated 31.10.12 passed by Sh. Sandeep Garg, Ld. MM07, Saket Courts, New Delhi in criminal case filed by the complainant.
2 It is stated that the complainant is a nonGovt. Organisation, fighting against the corruption, which is prevailing in govt. offices, through proper channel as settled under the law and highlighting the same time to time. The complainant is empowered to seek remedy by way of complaint filed before Ld. MM for appropriate penal action against the accused persons, so that their malafide intention may be unearth before the public at large and valuable govt. properties may be protected through initiation of prosecution under the law for their criminal actions and offence which they have committed with the sole motive to allow the builder mafia to encroach upon the government land by way of raising builder flats and not performed their statutory and mandatory duties, for preventing the same and in case any complaint is received, to hush up the matter by way of cosmetic demolition or to make false reports in the department file/concerned Crl. Revision No. 11/12 Page 2/12 3 file relating with the unauthorised construction of concerned properties. The accused persons are holding key posts in the department which is made for protection of government land and implementation of law of land and to enforce the directions, orders and guidelines of government and orders of Hon'ble High Court passed time to time.
3 It is further stated that Govt. acquired the area of village Chhatarpur for the well planned Delhi through various awards passed time to time. Accused No. 6, who is the custodian/incharge and administrator of government land acquired for public utility irrespective of land in question handed over to DDA. Accused No. 1 to 5 are the officers incharge of area Village Chhatarpur and their responsibilities and duties are to enforce the provisions of law which prevents unauthorised construction either on government land or in private land. The area of village Chhatarpur/land in question with the active connivance and nexus of accused persons with the builder mafia, became the unauthorised colony, falling under the category of regularisation considered by the government for regularisation and thereby the cost of land in the area becomes very costly. Crl. Revision No. 11/12 Page 3/12 4 4 In the year 2006, the Delhi Laws (Special Provisions) Act was enacted, as per which any unauthorised construction taking place after 08.01.2006 will be liable for Demolition Action and will not be entitled for any protection. This benefit was extended for the constructions, which took place till 08.02.07 by virtue of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011. The rampant unauthorised construction by the builder mafia and inaction on the part of the accused persons led to loss of lives of four minor children in Village Chhatarpur on 26.02.12 when a part of unauthorised building fell and the children got buried under it. The unauthorised construction which was being carried out on the property was very well in the knowledge of the accused persons and despite that no timely action was taken by them due to their malafide intention. The accused persons are also liable to be prosecuted alongwith the owner/builder/contractor of the property in question in terms of order dated 03.11.97 passed by Hon'ble High Court in CWP No. 4771/93 titled as " Common Cause of Human Being V. Union of India and Ors."
5 As per action taken report filed by SHO P.S. Mehrauli, a part of wall of property No. D27 Chhattarpur Extension, New Delhi, Crl. Revision No. 11/12 Page 4/12 5 collapsed on 26.02.12 and four minor children died in the incident. A case FIR No. 79/12 P.S. Mehrauli was registered against the builders and the landlord. The details of the information regarding incident were sent to the civic agencies on 18.01.11, 14.11.11, 15.11.11 and 20.11.11. Restraint order dated 06.01.12 was passed by the SDM, Hauz Khas. Reminder was sent alongwith photographs on 25.02.12. However, despite passing of restraint orders, unauthorised construction continued and therefore, FIRs were got registered by SDM, Hauz Khas.
6 Complainant has placed reliance on circulars dated 28.08.2000, 27.02.12 issued by Urban Development Department, GNCT of Delhi and order dated 30.03.11 passed by Revenue Department, GNCT of Delhi, whereby a Special Task Force was constituted for prevention and removal of unauthorised constructions in Delhi. As per action taken report filed by SHO, P.S. Mehrauli, 483 unauthorised constructions in the year 2008, 715 unauthorised constructions in the year 2009, 447 unauthorised constructions in the year 2010 and 700 unauthorised constructions in the year 2011 were reported within the jurisdiction of P.S. Mehrauli. The figures of unauthorised construction which took place in the year 2007 and 2012 Crl. Revision No. 11/12 Page 5/12 6 are not known. It is further stated that the accused persons were well aware that the unauthorised construction raised by the builder mafia is so dangerous, which may cause lives of any passersby. Accordingly, it is prayed that SHO, P.S. Mehrauli be directed to register FIR against accused persons U/S 120B/34/302/201 IPC r/w Section 7/13 of Prevention of Corruption Act & Environment Protection Act, Delhi Police Act, MCD Act and DDA Act.
7 Ld. MM has directed the SHO, P.S. Mehrauli to register a case U/S 217/218/120B IPC against the accused persons. 8 The revisionist Arun Kumar, Executive Engineer (South Zone), has filed the present revision petition challenging the impugned order dated 31.10.12 passed by Ld. MM. The petitioner is an officer working with MCD, which is a statutory body constituted to look after civic amenities as per the provisions of Delhi Municial Corporation Act. The petitioner being the officer of one of the civic agencies, is governed by the provisions of Delhi Municipal Corporation Act as well as various guidelines/circulars/rules and the directions issued by government authorities time to time. The unauthorised colonies on the public land had been attracting the attention, both of the government as well as courts from time to time. This had led to filing of civil writ Crl. Revision No. 11/12 Page 6/12 7 petition No. 4771/93 in Hon'ble Delhi High Court and same was disposed of vide order dated 03.11.97 directing that till the matter of regularisation of unauthorised colonies is finalised by the appropriate government authorities, no further construction of any nature was to be undertaken in these unauthorised colonies. Thereafter, various circulars were also issued by the various government authorities laying down the guidelines for tackling the said menace of encroachment on public land. The present criminal complaint filed by respondent No. 1 relates to the same matter which was the subject matter of already registered FIR No. 79/12 P.S. Mehrauli U/S 288/304 IPC. The said FIR having been registered against the builder Sandeep Saini S/o Kushal Singh Saini, Mohd. Salim S/o Abdul Manan and Baldev Singh S/o Bachan Singh. The complainant was well aware of the said complaint as well as initiation of proceedings in the said case. It is prayed that the order passed by Ld. MM is violation of Hon'ble Supreme Court direction wherein it has been clearly laid down that no reinvestigation can be directed by the Magistrate and at best further investigation can only be directed.
9 I have heard ld. Counsels for both parties and have perused the record carefully. I have also gone through the judgments filed by Crl. Revision No. 11/12 Page 7/12 8 both parties.
10 It is argued on behalf of counsel for petitioner that FIR No. 79/12 U/S 288/304 IPC P.S. Mehrauli, has already been registered and second FIR is not required.
11 Counsel for respondent has argued that once direction U/S 156 (3) Cr.P.C is given, it cannot be recalled. It is an administrative order and not a judicial order. It is further argued that the order of Magistrate passed U/S 156(3) Cr.P.C, can only be challanged by complainant and not by the person, who is not named in the complaint.
12. Section 156 of the Code of Criminal Procedure, to the extent it is relevant reads as under: "156. Police officer's power to investigate cognizable case (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."
Since, the Magistrate can direct investigation only in respect of a cognizable case, it would be necessary for him before he passes any such order, to examine the allegations made in the application Crl. Revision No. 11/12 Page 8/12 9 made to him and form a prima facie view that commission of a cognizable offence is disclosed from those allegations. If the Magistrate is of the opinion that the allegations made in the complaint do not disclose commission of a cognizable offence, he cannot direct investigation, in exercise of the powers conferred upon him under Section 156 (3) of the Code. In that case, he will have no option but to dismiss the application seeking a direction to the Police to investigate the matter. Obviously, in that case, he will have to pass a speaking order giving reasons for rejecting the application, which necessarily would require application of judicial mind on the part of the Magistrate.
The use of the expression 'may' in Subsection (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations Crl. Revision No. 11/12 Page 9/12 10 made in the complaint are simple,, where the Court can straightaway proceed conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."
13 In the present case, the complainant/respondent No.1 has made vague allegations against the revisionist/petitioner. The complainant/respondent no. 1 has neither named of any officer nor assigned any specific role to them, so far as registration of FIR is concerned. I am supported by the judgment of Hon'ble Supreme Court in "T.T. Antony V. State of Kerala (2001 6 SCC 181) wherein it has been held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. In the recent judgment of "Amit Bhai Anil Chand Shah V. CBI and others (2013 IV AD (SC) 449), wherein it has been held that a second FIR in respect of offences or different offences Crl. Revision No. 11/12 Page 10/12 11 committed in the course of same transaction is not only permissible but it violates Article 21 of the Constitution, so there can be no second FIR. Consequently, there can be no fresh investigation on receipt of every subsequent information in respect of same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.
14 Since the discretion vested in the Magistrate under Section 156(3) of the Code of Criminal Procedure is a judicial discretion which cannot be exercised arbitrarily and on his whims and fancies, but needs to be guided by sound principles of law governing exercise of such a discretion, it cannot be said that discretion exercised by him cannot be subject matter of challenge in appropriate proceedings. 15 In the present case, the revisionist is an Executive Engineer (South Zone). The complainant has made revisionist as accused No. 3. Therefore, the revisionist has right to file the present revision petition. The FIR No. 79/12 has already been registered and the matter is being investigated by the police. In view of above circumstances, the revision petition is allowed and the order dated 31.10.12 is set aside. 16 Trial Court Record be sent back alongwith copy of this order.
Crl. Revision No. 11/12 Page 11/12 12 17 Revision file be consigned to Record Room.
Announced in the open court today
on 18.05.13 (Gulshan Kumar)
Addl. Sessions Judge01(South)
Saket Courts, New Delhi.
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