Delhi District Court
Cr No. 105/12. R.L. Deo vs . State. on 27 March, 2015
CR No. 105/12. R.L. Deo Vs. State.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 105/2012.
R.L. Deo,
Advocate,
Chamber No. 428,
Dwarka Court Complex,
New Delhi. ... Revisionist.
Vs.
State. ... Respondent.
Date of Institution. : 1.9.2012. Date of Arguments. : 12.3.2015. Date of Order. : 27.3.2015. 27.3.2015. Present: None for revisionist
Sh. V.K. Swami, ld. Addl. PP for State/respondent. The present criminal revision petition is fixed for order for today.
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CR No. 105/12. R.L. Deo Vs. State.
Part arguments on the revision petition were addressed by ld. Counsel for revisionist and ld Addl. P.P. For the State on 18.10.2012. Arguments were not addressed on behalf of the revisionist inspite of repeated opportunities and despite the fact that revisionist himself is a lawyer by profession. Accordingly the opportunity for the same was closed vide order dated 12.3.2015. Ld. Addl. PP for State had addressed further arguments on behalf of the State/respondent on that date. However the liberty was granted to both the parties to file brief written submissions any time before the next date given for order i.e. 25.3.2015. But on 25.3.2015 also, no such written submissions were filed although the revisionist had addressed arguments on merits of revision, which were heard. Therefore, the revisionist had filed written submissions on 26.3.2015. In the interest of justice, the same are considered.
Perused the entire record including TCR.
1. The challenge in the present criminal revision petition u/s 397 and 399 CrPC filed by the revisionist, is to the impugned order dated 5.2.2011 passed by Sh. Harun Pratap, the then ld. MM (Traffic3), South West, Dwarka Courts, Delhi, in STA challan no. 77521213 (pertaining to vehicle bearing registration number DL 1RG 1936), whereby the ld. Trial Court Page No. 2. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
observed that the allegations bring out commission of offences u/s 420/468/473 IPC and direction was given to register FIR under relevant provisions of IPC against R.L.Deo (revisionist) and Incharge Police Chowki, Dwarka Courts, was ordered to do the necessary.
2. In the written submissions filed on behalf of the revisionist, the stand of the revisionist is that there was no separate complaint on which FIR could have been registered. It is further the case of the revisionist that as far as putting of date on the challan slip is concerned, the same does constitute any offence and the stamp/seal, which is affixed on the traffic challan slip of accused, is put by the court staff and in this case was not put by the revisionist, as the court stamps/seals are always in the custody of the court staff and not in possession of advocates and in this case the same was not in possession of revisionist. It is further the stand of the revisionist that it is not the case of the complainant that the revisionist had forcibly taken any stamp/seal from any court staff or that he was in possession of any such selfacquired stamp/seal and further that none of the court staff had stated that the revisionist at any point of time, had used the stamp/seal on his own. It is further the case of the revisionist that the complainant never stated Page No. 3. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
that he was cheated to the tune of Rs 100/ in lieu of the date given on the challan slip. It is also the stand of the revisionist that since copy of the original traffic challan in possession of accused of said case (original complainant herein), was not a valuable security, but the same was only an acknowledgment of being challaned for violation of law/rule. It is further the case of the revisionist that the challan slip was given to original accused of traffic challan case (complainant herein) only for the purpose that he can show the same for getting the challan disposed of after the original challan is taken out from the record. It is further mentioned that there is no allegation that any record of the Court was tempered by the revisionist. It is further the stand of the revisionist that if at all there was any offence of putting the court seal on the challan copy of the accused, then the same was committed by the court staff. It is further the case of the revisionist that no separate complaint was given to the police or was filed before the concerned ld. MM on which investigation could have been ordered. It has accordingly been prayed that the impugned order may be set aside. The revisionist relied upon following two judgments regarding maintainability of present revision petition:
(i) Manohar Singh & Another Vs. State & others, Page No. 4. Contd... ... ...
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2013 IV AD (Delhi) 189.
(ii) Ajai Malviya Vs. State of UP & Others, 2001 CRI. L.J. 313.
3. Per contra, ld. Addl. PP for State/respondent had submitted that there is no infirmity or illegality in the impugned order and had prayed that the same may accordingly be upheld and the revision petition may be dismissed.
4. The impugned order dated 5.2.2011 of the ld. Trial Court is reproduced below: "Vehicle No. DL1RG1936 Challan No. 77521213 STA Challan 05.02.2011 Present: Ld. APP for the State.
Accused Satyaprakash in person.
Perusal of the challan reflects that the court date given on it was 20.12.2010. Accused has appeared today with his challan slip bearing the seal of the court and handwritten date in between it as 05/02/2011 on the back side of the slip. Perusal of the same has made the court suspicious and the accused is asked from where he got this date since Page No. 5. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
no dates are given by the court in the manner as reflected in the challan copy of the accused.
On being inquired about this the accused has stated that he had also visited the court on 20.12.2010 to seek a date only in the present case but the same was not given. Thereafter, when he was going out of the Court, a person namely Sh. R.L. Deo caught hold of him and said to him that "Date hum dete hai bete" and asked Rs. 100/ in return of the same. Then the accused gave him his challan copy and Mr. Deo then got the stamp of the Court on the back side of the challan with a date in between it.
Statement of accused be recorded as under: Statement of Satyaprakash S/o Sh. Kalicharana R/o Soniya Vihar, Fifth Pusta, Gali No. 14, New Delhi On S.A. The date alongwith the seal of the court was given on my challan slip by the person present in the court i.e. namely R.L. Deo. He gave the same in return of Rs. 100/. He also gave me his visiting card with a phone number written on the back side of the card.
RO & AC (Harun Pratap) MM (Traffic)03/(SW) Dwarka New Delhi/05.02.2011 The said visiting card produced by the accused in this case and it be taken on record. Page No. 6. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
In view of the above mentioned chain of incidents it becomes apparent that the alleged allegations bring out commission of offence u/s 420 IPC, 468 IPC and 473 IPC. It is hereby directed that the First Information Report be registered under the relevant provisions of IPC against Mr. R.L. Deo. In charge Police Chowki, Dwarka courts to do the necessary.
At this stage, the counsel has interrupted and has threatened that now, he will file a complaint against the Presiding Officer. He has threatened the Presiding Officer in the open Court and has stated that he will file so many RTIs that the same will leave behind everything. He has also threatened that now "you see what I will do of this court". He also says "what you will do, you cant do anything".
At this stage, he has also openly given a call to other Ld. Bar members present in the court to raise their voice in his support and not to sit idle.
The present matter detailing the whoel episode be also brought into the notice of the Ld. ACMM and Ld. District JudgeIX, Dwarka Courts.
(Harun Pratap) MM (Traffic)03/(SW) Dwarka New Delhi/05.02.2011"
5. In view of the aforesaid ratio laid down in the cases cited on behalf of the revisionist, it is clear that the present revision petition is maintainable before this Court.
6. As per Section 154 CrPC every information relating to Page No. 7. Contd... ... ...
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the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced into writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Further as per Section 154 (3) CrPC any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
7. In the present case neither any such complaint in writing was given to the SHO concerned by the original complainant (accused in traffic challan case) nor the same was sent by post to the DCP concerned. Further admittedly no Page No. 8. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
separate complaint u/s 156 (3) CrPC for direction to SHO concerned for registration of FIR was moved by the original accused of traffic challan (complainant herein) before the ld. Trial Court. Also no action taken report on any such complaint was called from SHO concerned by the ld. Trial Court.
8. Chapter XIV Section 190 CrPC deals with cognizance of offence by Magistrate and is reproduced below: "190. Cognizance of offences by Magistrate. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try."
9. In the case of "Md. Yousuf Vs. Smt. Afaq Jahan & Page No. 9. Contd... ... ...
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Another", JT 2006 (1) SC 10, Hon'ble Supreme Court observed that "the clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156 (3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156 (3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
10. In the case of D. Lakshaminarayana v. V. Narayana, (at page 1365 of Crl. LJ), it was observed by Hon'ble Supreme Court of India that ".....Section 156 (3) CrPC occurs in Chapter Page No. 10. Contd... ... ...
CR No. 105/12. R.L. Deo Vs. State.
XII, under the caption : Information to the Police and their powers to investigation; while Section 202 CrPC is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation u/s 156 (3) CrPC is different from the power to direct investigation conferred by Section 202 (1) CrPC. The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the postcognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156 (3) CrPC can be invoked by the Magistrate, before he takes cognizance of the offence u/s 190 (1) (a) CrPC. But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre cognizance stage and avail of Section 156 (3) CrPC. It may be noted further that an order made under Subsection (3) of Section 156 CrPC, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156 (1) CrPC. Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 CrPC and ends with a report or charge sheet u/s 173 CrPC. On the other hand, Section 202 CrPC comes in at a stage when some evidence has been collected by Page No. 11. Contd... ... ...
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the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered u/s 202 CrPC to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation u/s 202 CrPC is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."
11. Thus in the present case, once there was no separate complaint filed by the complainant before the SHO concerned or before the concerned ld. MM and the ld. MM having recorded the statement of accused of traffic challan case (complainant herein) on oath, had taken cognizance for the offence as per Section 190 (1) (a) CrPC. Once the ld. Trial Court had taken the cognizance for the aforesaid offences and had recorded the statement of complainant on oath, there was no power with the ld. Trial Court to go back to pre cognizance stage and direct for registration of FIR u/s 156 (3) CrPC. After examination of the complainant on oath, the only course left to the ld. Trial Court, was to examine any other witness or in case no other witness Page No. 12. Contd... ... ...
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was to be examined, to proceed as per section 203 or 204 Cr.P.C. or to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer as per Section 202 (1) CrPC for the purpose of deciding whether or not there is sufficient ground to proceed further and thereafter only to proceed as per Section 203 or 204 CrPC.
12. In view of the aforesaid discussion, it is clear that after recording of statement on oath of the complainant, there was no power with the concerned ld. MM to order for registration of FIR as per Section 156 (3) CrPC. Accordingly the impugned order is not sustainable and is set aside. However the ld. Trial Court shall proceed further in the matter as per Section 200 CrPC and take evidence of other witnesses in pre summoning evidence, if necessary, and after completion of pre summoning evidence, proceed as per Section 203 or 204 of CrPC or may further inquire into the matter itself or direct investigation to be made by SHO concerned as per section 202 (i) Cr.P.C, for the purpose of deciding whether or not there is sufficient ground for proceeding against the revisionist and thereafter to resort to Section 203 or 204 CrPC. The revision petition is accordingly Page No. 13. Contd... ... ...
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disposed of.
13. A copy of this order alongwith TCR be sent back to the ld. Trial/Successor Court for 6.4.2015 at 2.00 pm, for further proceedings as per law.
14. Revision petition file be consigned to record room. Announced in the open Court on 27.3.2015.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 14. Contd... ... ...