Delhi District Court
Late Sh. Ramesh Batra vs ) Smt. Neeru Ahluwalia on 19 June, 2014
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Criminal Revision No.19/14
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 19/14
Unique I.D. No. : 02402R0376822013
In the matter of :-
Late Sh. Ramesh Batra
S/o Sh.Jaidev Batra
R/o 254/B, Gali No. 3
Bhola Nath Nagar, Shahdara
Delhi-110032.
Through his LR : Sh. Jatin Batra
.....Revisionist
VERSUS
1) Smt. Neeru Ahluwalia
W/o Sh. Pramod Ahluwalia
2) Sh. Rohan Ahluwalia
S/o Sh. Pramod Ahluwalia
3) Sh. Pramod Ahluwalia
S/o Not known
All R/o.:22, Chitra Vihar, Delhi-92.
4) Sh. Ravinder Gakkhar @ Ravi
S/o Sh. Prithviraj Gakkhar
R/o 211, Shika Apartments
I.P. Extn., Delhi-92
5) Sh. Kamal Gupta
S/o Not known
6) Smt. Lata Gupta
W/o Sh. Kamal Gupta
Page 1 of 7 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
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Criminal Revision No.19/14
Both R/o.: 261/2-A, Second Floor
Gali No. 3, Bholanath Nagar
Shahdara, Delhi-110032.
.... Respondents
Date of Institution : 20/11/2013
Date of receiving the case in this court : 22/01/2014
Date of reserving order : 20/05/2014
Date of pronouncement : 19/06/2014
Decision : Revision is allowed.
ORDER
This is a criminal revision petition challenging the order dated 26.09.2013, passed by ld. Metropolitan Magistrate, Karkardooma Courts, Delhi in the case titled as Ramesh Batra v. Smt. Neeru Ahluwalia & Ors. in CC No. 192/1/13, PS: Farsh Vihar. Vide impugned order, ld. Metropolitan Magistrate dismissed the application of the revisionist herein, which was filed U/s 156 (3) Cr.P.C for registration of case on the basis of his complaint.
2) Briefly stated the relevant facts of this case are as follows :-
The complainant alleged that he had entered into a collaboration agreement with accused/respondent no. 1 and out of that agreement, he raised construction of four storey building in property bearing no. 261/2-A, Gali No. 3, Bhola Nath Nagar, Shahdara, Delhi, apart from parking place. As per this agreement, two flats were to be retained by the complainant and other two flats were given to accused/respondent no. 1. The complainant was in possession of two flats. However, the respondents had evil eye over the flats of the complainant and they took forcible possession of two flats and trespassed into the same by breaking open the locks of the complainant on 12.10.2012. The accused persons also removed the entire belongings of the complainant and Page 2 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :3: Criminal Revision No.19/14 misappropriated the same. Complainant made complaint to the local police but in vain. Complainant and his son were attacked by the accused persons on 14.10.2012. However, present complaint relates to the allegations of alleged trespass and theft of the articles of the complainant.
3) The trial court while rejecting the application U/s 156 (3) Cr.P.C. observed that the complainant was in possession of entire evidence and the case did not require any police assistance for the purpose of collection of evidence.
4) Arguments were made by both the parties. I have given due attention to the rival contentions and the material placed on the record.
5) Ld. Counsel for the revisionist relied upon the case law cited as Lalita Kumari v. State of U.P. {2013 (8) LRC 1 (SC)} to submit that U/s 154 Cr.P.C., it was a mandatory duty of the police to record FIR on the basis of disclosure of cognizable offence by the complaint. He referred to Madhao & Anr. v. State of Maharashtra & Anr. {2013 (5) LRC 1 (SC)} to submit that Magistrate has a power U/s 156 (3) Cr.P.C. to direct for investigation of the case. He referred to Gopal Dass v. State of Assam {AIR 1961 SC 986} to submit that a Magistrate should send the complaint to the police for investigation, in order to save the time of the Court. He referred to Pradip J. Mehta v. Commissioner of Income Tax {(2008) 14 SCC 283} to submit that the judgments passed by other High Court should also be discussed by the Court while passing the judgment.
6) On the other hand, ld. Counsel for the respondents referred to Rashmi Malhotra v. SHO & Anr. {2002 (3) RCR (Criminal) 712} to submit that Magistrate has the discretion to order for any inquiry or to take cognizance of the offence and a party cannot insist for registration of FIR.
For same purpose, he referred to another case laws cited as Ram Bahadur v. State of Uttrakhand {2013 Crl. L.J. 4393} and Sukhwasi v.
Page 3 of 7 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :4: Criminal Revision No.19/14 State of Uttar Pradesh {2008 Crl. L.J. 472}.
7) Ld. Counsel for the revisionist argued that the possession of the complainant was admitted by accused no. 1 in her complaint made to police on 06.10.2010, which shows that complainant was in possession of the flats. He further argued that the complainant cannot recover his articles, which can be done by the police only and the lock as well as the stolen articles have to be recovered by making an investigation. He further argued that FIR should be registered to save the time of the court. On the other hand, Counsel for the respondents argued that the collaboration agreement relied upon by the complainant is fake and false agreement, which is reflected by the fact that the agreement is shown to be executed in the year 2010, though the stamp papers were sold in the year 2012. He further argued that this revision petition is not maintainable against impugned order and in this respect, he referred to judgment passed in Gangadhar Behera v. State of Orissa {2008 Crl. L.J. 839} and Smt. Gulista & Ors. v. State of U.P. & Anr. {2008 Crl. L.J. 1162}. To counter this argument of the respondents, revisionist relied upon the case law titled as Sabir v. Jaswant {2003 (1) RCR Criminal 479} and Ajay Malviya v. State of U.P. {2001 (1) RCR Criminal 83}, to submit that this revision petition against order of Magistrate passed U/s 156 (3) Cr.P.C. is maintainable.
8) I shall first of all deal with the question of maintainability of this revision petition against the impugned order, which was passed U/s 156 (3) Cr.P.C. This question was dealt with by Delhi High Court in Manohar Singh & Anr. v. State & Ors. {Crl. M.C. No. 1952/2009, decided on 10.04.2013} {indiankanoon.org/doc/103368213}. Delhi High Court, while dealing with this question, referred to a judgment by Supreme Court in Kishan Lal v. Dharmender Bafna & Anr. {2009 (9) SCALE 768}, Page 4 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :5: Criminal Revision No.19/14 wherein following observations were made by the Court :-
"It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the ld. Magistrate unless a jurisdictional error or an error of law is noticed."
Such observations were made by the Supreme Court while dealing with Section 156 (3) Cr.P.C. and the High Court of Delhi in Manohar Singh's case (supra) concluded that the order U/s 156 (3) Cr.P.C. is revisable. In view of such judgment of Delhi High Court, I have no hesitation to say and conclude that this revision petition is maintainable.
9) Coming back to the facts of this case, it is well apparent that the complainant / revisionist made allegations that he was in possession of two flats, however, the accused persons broke open the locks of his flats and took forcible possession of the same. He also alleged that his articles lying in the flats were also removed and misappropriated by the accused persons. The argument of the respondents was directed against the truthfulness of the allegations. However, in my opinion this is not the stage to look into the truthfulness of the allegations. The relevant question is that whether the allegations made by the revisionist disclosed cognizable offences and that whether such information required investigation by the police? There should not be any doubt to say that the allegations made by the complainant disclosed cognizable offences i.e. regarding offence of house trespass with intention to commit offence and the offence of dishonest misappropriation of articles belonging to the complainant. Now the next question is that whether there is any need of investigation by the police? I do find that the dispute between the parties, as involved in this case is not merely limited to the alleged collaboration Page 5 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :6: Criminal Revision No.19/14 agreement. The said collaboration agreement has been referred as introduction of the relevant facts, to plead that the complainant was in physical possession of two flats, in the property in the name of the respondent no. 1. Apart from statement of the present petitioner, there is requirement to examine other persons of the locality to ascertain the truthfulness of alleged possession. Besides that, the argument made by the respondents also make a police investigation necessary because if the collaboration agreement relied upon by the complainant is found to be a fake document, then even complainant should be prosecuted for the same. Any conclusion regarding these facts cannot be reached until and unless a comprehensive investigation is conducted by the police to look into the genuineness of the document; to look into the consequence of complaint made by respondent no. 1 to police on 06.10.2010, thereby acknowledging the physical possession of the complainant and to look for the alleged broken locks as well as stolen articles (if any). All such investigation can be done by expert agency i.e. the investigating agency only. The complainant cannot be expected to bring evidences relating to all these facts, as mentioned herein-above. Moreover, if the articles have been removed and stolen, then complainant/revisionist himself cannot recover the same.
10) In these circumstances, I find that the trial court committed an error by concluding that complainant/revisionist is in possession of entire evidence or that assistance of police is not required for collection of evidence. Therefore, I do find that the trial court has committed a jurisdictional error in rejecting the application U/s 156 (3) Cr.P.C. Accordingly, in view of my aforesaid observations, the impugned order dated 26.09.2013 is set-aside. This revision petition is allowed. SHO of PS- Farsh Bazar is hereby directed to register FIR on the basis of Page 6 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :7: Criminal Revision No.19/14 complaint made by the complainant herein, under relevant provisions and to impartially investigate the same. The trial court shall call for the report of compliance and investigation, in order to see that the investigation is being properly done by the police.
11) Copy of this order be sent to SHO of PS Farsh Bazar for compliance, who shall file the report of compliance before the concerned ld. Metropolitan Magistrate on 02.07.2014.
Trial court record be sent back to the trial court, through ld. CMM, Shahdara, Karkardooma Court, Delhi along with copy of this order.
File of revision be consigned to record room, as per rules.
Announced in the open court today i.e 19/06/2014 (PULASTYA PRAMACHALA) Additional Sessions Judge Shahdara, Karkardooma Court, Delhi Page 7 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi