Delhi District Court
S. Jitender Singh Shunty vs S. Balbir Singh on 4 March, 2023
IN THE COURT OF SHRI ARVIND BANSAL
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Revision No. 190/2022
Police Station: Vivek Vihar
S. Jitender Singh Shunty
s/o Late Sardar Pritpal Singh
r/o A-55, Top Floor, Vivek Vihar, Phase-02
Delhi-110095.
Also at: 85, Pratap Khand,
Vishwakarma Nagar, Shahdara
Delhi- 110095.
....... Revisionist
Vs.
1. S. Balbir Singh
Chairman, M/s Dashmesh Education Society
Near Gurudwara Sri Guru Singh Sabha
C-Block, Vivek Vihar, Delhi - 110095.
2. Sarita Saxena @ S. Saxena @ Prabhpreet Kaur
d/o Late Shri R. P. Saxena
r/o A-167, Vivek Vihar, Phase-I, Delhi - 110095.
3. Richa Kaur @ Tashmin Kaur @ Tashmeen Kaur
d/o Late Shri Manbir Singh
daughter-in-law of S. Balbir Ssingh
C-145, Vivek Vihar, Phase-I, Delhi - 110095.
4. State of NCT of Delhi.
...... Respondents
Date of institution : 22.12.2022
Date of reserving order : 28.02.2023
Date of order : 04.03.2023
ORDER
1. Vide this order, the Court shall decide one revision petition filed by revisionist/complainant, challenging order dated 16.09.2022 passed by Court of Ld. CMM, Shahdara, S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 1 of 16 Karkardooma Courts, Delhi, whereby an application u/s 156(3) Cr.P.C moved by the complainant seeking directions to SHO, PS Vivek Vihar to register an FIR against the respondents was dismissed.
2. The facts leading to the filing of application under Section 156(3) Cr.P.C as noted in the order of Ld. CMM, Shahdara as follows:-
2.A It is the case of applicant/complainant that proposed accused no.2 prepared two identity cards with two different names i.e. Sarita & Prabhjeet Kaur and that proposed accused no.2 had acted as the Principal of three schools (Dashmesh Public School situated at three places i.e. Vivek Vihar, New Delhi, Vasundhara Enclave, East Delhi and Shalimar Garden, UP) which is illegal.
2.B It is averred that proposed accused no.2 in connivance with proposed accused no.1, working as the Principal of the schools, even after the age of superannuation and regarding the same Government of NCT of Delhi has already issued Show Cause Notice to the school for removing her. Proposed accused no.2 has been shown as the Director of Dashmesh Education Society/Dashmesh Public School. It is further averred that as per the preliminary inquiry report conducted in the month of March, 2017 by Dy. Director of Education, D-Block, District East Anand Vihar, Delhi, proposed accused no.2 has apparently changed her religion from Hindu S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 2 of 16 to Sikh and accordingly, proposed accused no.2 claimed that on 12.12.2001 she had participated in the process of conversion from Hinduism to Sikhism in DSGMC and after that her name was changed to Ms. Prabhpreet Kaur from Ms. Sarita Saxena but the records subsequent to 12.12.2001 show that she has continued to represent herself with both the names even after 12.12.2001. It is also averred that the certificate dated 13.04.2018 given by DSGMC shows that there was no change in her primary name (Sarita) by them and thus, it is clear that she has been illegally impersonating herself.
2.C It is also the case of the applicant/complainant that proposed accused no.1 and proposed accused no.2 in collusion with each other grabbed the lands of DDA by forging three letters under the Letter Head of "Shri Guru Singh Sabha, Vivek Vihar" and one letter on the Letter Head of "Vivek Vihar Residents Association" for giving false declaration to effect that the lands of DDA were donated by "Shri Guru Singh Sabha, Vivek Vihar" and Vihar Residents Association" to "Dashmesh Public School Vivek Vihar" whereas the letter dated 23.04.2018 signed by all the seven members of Shri Guru Singh Sabha, Vivek Vihar shows that no land was ever donated by them to the school as alleged in the letters given by proposed accused no.1 and thus, it is clear that the letters showing the alleged donation of lands are fabricated documents.
S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 3 of 16
2.D That, the facts that the madam has written letter dated 02.05.2018 to DDA for seeking regularization of the "adjoining land" shows that the land of the school is an encroached land and that the said land has been encroached with the help of three forged letters created by proposed accused no.1 and accused no.2 and that the said fact regarding the grabbing of land have been widely published in the newspaper. It is also case of the applicant/complainant that aforesaid "Mam" has been drawing the hefty salary of Rs. 1,79,017/- per months as Principal of Dashmesh Public School, Vasundhra Enclave, Delhi and that a salary of Rs. 36,619/- is being paid to the daughter-in-law of Balbir Singh who was put under the Pseudo name of "Richa Kaur (proposed accused no.3)" whereas her actual name is "Tashmene Kaur".
3. Ld. Trial Court called for an ATR from SHO concerned wherein it was reported that the allegations against respondents are false and fabricated and revisionist/complainant and respondent no.1 are real brothers and some family disputes are going on between both of them and that revisionist/complainant wants to put respondent no.1 under pressure through present complaint. Inquiry was also undertaken regarding the question of two different identities of respondent no. 2, the allegation of drawing salary as principal of three different schools and the question of encroachment of DDA land by the school.
S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 4 of 16
4. Further, vide order dated 16.09.2022, while dismissing the application U/s 156(3) Cr.P.C, Ld. Trial Court opined that:
"At the outset, the judgment titled as 'Lalita Kumari vs. State of UP & Ors' W.P (Crl) No. 68/2018 (decided on 12.11.2013) relied upon by learned counsel for applicant/complainant is of no assistance as the same pertains to duty of police to register FIR and is not applicable to application u/s 156(3) Cr.P.C. In the present case, identity of proposed accused persons is known to the applicant/complainant as proposed accused no. 1 is brother of applicant/complainant and other proposed accused persons also known to him;
custodial interrogation of alleged proposed accused persons is not warranted/required and the evidence is well within the reach of applicant/complainant. Thus, the facts of the case do not warrant investigation to be carried out by the State agency to prove the allegations. In any eventuality, recourse of inquiry by police is also available u/s 202 Cr.P.C.
7. Hence, this Court finds no ground for directing investigation by the police u/s 156(3) Cr.P.C in this case. Accordingly, application at hand is hereby dismissed."
5. At the outset, it is observed that a revision petition challenging the order of learned Trial Court deciding an application moved under Section 156(3) Cr.P.C. is maintainable. Hon'ble Delhi High Court in Simret Katyal v. The State Govt of NCT of Delhi (decided on 11.09.2015), and Nishu Wadhwa vs Siddharth Wadhwa (decided on 10.01.17) decided the issue of maintainability of revision petition challenging an order under Section 156 (3) Cr.P.C. On the basis of said authorities, it is no more res integra and unambiguously clear that the present S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 5 of 16 revision petition challenging the order of the Trial Court deciding the application u/s 156(3) Cr.P.C is maintainable.
6. Learned counsel for revisionist argued that learned Trial Court dismissed the application without considering the complaint of revisionist filed with SHO PS Vivek Vihar and without appreciating the detailed complaint u/s 200 Cr.P.C r/w Sec. 156(3) Cr.P.C. It is argued that one, the issue of identity of respondent no. 2 after her conversion to Sikhism and the false use of two Voter IDs as well as continuing with pre-conversion name in the school records; two, the issue of drawing salary as principal of three different schools by respondent no. 2 even after her age of superannuation; three, the issue of encroachment upon the DDA land by Dashmesh Education society on the basis of forged documents; and four, the issue of respondent no. 3 using different identities and drawing salary from Dashmesh Public School, required thorough investigation in the form of collection of documents from different institutions. It is submitted that allegations in the complaint disclosed commission of a cognizable offence and in terms of judgment of Hon'ble Supreme Court in Lalita Kumari Vs. State of UP, SHO was bound to register the FIR. It is argued that the order of learned Trial Court is mechanical in nature without considering the pronouncements of Hon'ble Superior Court and therefore, be set aside. It is also the argument that the use of word 'may' in Sec. 156(3) Cr.P.C should be read as 'shall' and as such, Ld. Magistrate is bound to order investigation where the case discloses commission of a cognizable offence. In this regard, Ld. Counsel for revisionist relied upon the judgment of Lalita Kumari (supra) as well as S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 6 of 16 judgment titled 'XYZ vs. State of Madhya Pradesh', 2022 LiveLaw (SC) 676.
7. Notice of the present revision petition was served upon Respondents and they appeared through their counsel. Reply to the present revision petition was filed on behalf of respondents. Copy thereof was supplied to revisionist. Ld. Counsel for respondents argued that Ld. Trial Court has correctly dismissed the application seeking registration of FIR as the case is based on surmises and conjunctures. It is argued that during an inquiry conducted by Directorate of Education, the allegations against respondent no. 2 for drawing multiple salaries was found false. It is also argued that there is no encroachment as alleged by revisionist and even respondent no. 3 is working legally in the school without there being any criminality involved in her manner of employment. Ld. Counsel for respondents relied upon the judgment of Honble Supreme Court in case titled 'New Indian Assurance Company vs. Krishna Kumar Pandey' (06.12.2019) to argue that revisional jurisdiction of this Court is limited and therefore, the impugned order cannot be set aside in exercise of the said jurisdiction.
8. For deciding the legal issue raised by Ld. Counsel for revisionist that Ld. Magistrate is bound to order investigation on filing of an application u/s 156(3) Cr.P.C disclosing commission of a cognizable offence, and for deciding the present revision petition, this Court stands guided by the precedent laid down by Hon'ble Delhi High Court in Subhkaran Luharuka v.
S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 7 of 16 State, Crl.M.C. No. 6122-23/2005 dated 09.07.10, wherein it was held that:
"52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency.
The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
9. In the opinion of this Court, the term 'may' used in Sec. 156(3) Cr.P.C is certainly in contradistinction to term 'shall' used in Sec. 154(1) Cr.P.C. It is, therefore, that direction and obligation impressed upon the concerned SHO by Hon'ble Supreme Court in Lalita Kumari (supra) cannot be read 'ejusdem generis' while interpreting Sec. 156(3) Cr.P.C. Further, Sec. 156(3) Cr.P.C requires the Ld. Magistrate to satisfy himself on the twin requirements of offence being cognizable and the 'necessity' of intervention of investigating agency, for exercising S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 8 of 16 jurisdiction to order investigation in a matter. In case, the term 'may' is read as 'shall', the same shall defeat the salutary purpose for which Sec. 156(3) Cr.P.C has been introduced in the Code. Further, it shall shift the entire control (of checks and balances) over the State machinery in the hands of unscrupulous litigants which shall create a situation of 'statutory chaos'. It is neither the purpose of the Code nor the interpretation expected out of the Courts. In fact, such an interpretation would also make Sec. 200 Cr.P.C and the related provisions of chapter XIX & XX nugatory. In fact, judgment of XYZ (supra) relied upon by learned counsel for revisionist cannot be relied upon in support of the issue at hand as the said judgment also directs the Ld. Magistrate to find out the necessity of investigation before deciding application u/s 156(3) Cr.P.C. As such, the argument of Ld. Counsel cannot be accepted and is rejected.
10. Considering the overall facts and circumstances of the case and submissions of learned counsel for revisionist as also the averments made in application u/s 156(3) Cr.P.C and after careful perusal of the grounds for revision, this Court is of the view firstly, that revisionist has unreasonably attached the allegation of impersonation and false identity of respondent no. 2 with the issue of alleged encroachment of land by Dashmesh Public School; secondly, that revisionist has raised the ground of dual identity of respondent no. 3 without any connection of the said issue with the aforesaid issue of alleged encroachment. In the opinion of this Court, all the three issues raised in the application u/s 156(3) Cr.P.C are distinct from each other and S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 9 of 16 therefore, one single application seeking investigation into three different issues was not maintainable at the first instance.
It is further observed that all the allegations are of such a nature that revisionist is substantially required to produce documentary material in support of his allegations. The allegations of complainant/revisionist, even if considered true and genuine, the same may be prima facie proved by him before learned Trial Court through oral and documentary evidence at the Pre-Summoning stage. The offence(s) alleged does not appear to be of such a nature requiring custodial interrogation of the respondents. Furthermore, this Court while exercising its revisional jurisdiction cannot order registration of FIR merely because the contents of complaint 'may' disclose commission of a cognizable offence. While, Hon'ble Supreme Court in Lalita Kumari case (Supra) has made it incumbent on the part of SHO to register FIR in case the complaint discloses commission of a cognizable offence, learned Magistrate is empowered to exercise judicial discretion in this regard. In the opinion of this Court, learned Magistrate has rightly relied upon the judgment of Hon'ble Delhi High Court in Devender Kumar vs. State, Crl.M.C No. 2116/2013 to conclude that no reason to direct the concerned SHO for registration of FIR is made out.
11. At this stage, it would be apposite to refer to the case titled Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, wherein Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 10 of 16 and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
12. In the thoughtful consideration of this Court, once an application under section 156(3) Cr.P.C is moved before a Magistrate, he has two options. One, Magistrate can send the case for investigation to concerned Police Station; Second, the Magistrate may take cognizance of offence on the complaint, may proceed to record the testimony of complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this Court, while exercising its revisional jurisdiction, cannot substitute its own opinion with the opinion of the Learned Magistrate unless a patent error or illegality is found in the impugned order.
In this regard, it would be significant to rely upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, wherein Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 11 of 16 upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
On the same issue, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
Similarly, Hon'ble Apex Court in New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey, 2019 SCC Online SC 1786, made the following observations :
"8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or propriety of any finding, sentence S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 12 of 16 or order passed by an inferior Court. The revisional Court is entitled to look into the regularity of any proceeding before an inferior Court. As reiterated by this Court in a number of cases, the purpose of this revisionsal power is to set right a patent defect or an error of jurisdiction or law."
In fact, Hon'ble High Court in Rajender Singh Thakur Vs State, decided on 22.03.2022 made the similar observations as made by Hon'ble Apex Court in the aforesaid judgments.
13. Revisionist/complainant has filed hundreds of documents before Ld. Trial Court, and both the parties have filed a large number of documents even before this Court. It is a settled law that this Court cannot get into the appreciation of the documents filed by the parties at this stage of the proceedings, and in fact it is not permissible while excessing revisional jurisdiction. This Court, however, has glanced through the available documents to make a prima facie opinion about the issues involved in the present case.
Firstly, the issue of respondent no. 2 drawing salary from three branches of Dashmesh Public School was taken up and enquired into by Dy. Director of Education, East District in compliance of the direction of Hon'ble Delhi High Court in a petition filed by revisionist/complainant. The inspection report in this regard was prepared on 31.08.2018 and filed before Hon'ble High Court of Delhi. This issue has been categorically covered and considered in the said report. In the opinion of this Court, the issue of respondent no. 2 holding position of principal in different schools of Dashmesh Education Society as well as drawing salary, prima facie appears to be an issue of irregularity, S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 13 of 16 if any in the internal management of the society and schools. The intervention of State machinery in the form of police authority is not warranted in the facts of the present case. Secondly, the issue of respondent no. 3 holding a particular position in Dashmesh Public School and drawing salary therefor is similar to the aforesaid issue, requiring no investigation. Thirdly, the allegation of holding two different Voter IDs by respondent no. 2 after her conversion to Sikhism 'may' not amount to impersonation. Further, revisionist has not alleged misuse of the said identity by respondent no. 2 which may amount to commission of an offence requiring police investigation.
Lastly, as regards the allegations of encroachment of DDA land by Dashmesh Public School, Vivek Vihar by using forged documents of Guru Singh Sabha Society, it is observed that revisionist/complainant has himself relied upon a complaint dated 30.08.2022 filed by the said society against respondent no. 1 with SHO, PS Vivek Vihar for appropriate legal action for alleged forgery of documents of the society. Further, revisionist has himself relied upon a DDA letter dated 20.10.2022 to Insp. Parvesh Kasana of PS Vivek Vihar claiming the land to have been illegally encroached. It has also been argued that DDA alloted another piece of land to the school in lieu of the land at Vivek Vihar with directions to the school to vacate the land at Vivek Vihar.
14. In the light of such facts and circumstances, Court is of the opinion that the institution (Sri Guru Singh Sabha) whose letter pads were alleged forged to stake claim over the DDA property has already set criminal law into motion by approaching S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 14 of 16 the police authorities. Further, the issue of encroachment, if any has already been brought to the notice of DDA which is the legal custodian of the property. An inspection of the land has already been carried out by DDA on 15.11.2022. In such circumstances, it is for DDA to first conclude whether any encroachment over its land has actually taken place before asking the police to investigate the matter. The same would amount to putting the cart before the horse.
15. Learned Trial Court has already fixed the matter for consideration on complaint u/s 200 Cr.P.C. Further, Learned Trial Court may also exercise its discretion u/s 202 Cr.P.C. at the appropriate stage, in case the same is warranted in facts and circumstances of the case.
16. In the opinion of this Court, order of registration of FIR cannot be made merely to pressurize the opposite party to come to terms. Further, the facts and circumstances of the present matter, as discussed above, do not call for any interference with the order dated 16.09.2022 of learned CMM in exercise of revisional jurisdiction by this Court as there is no patent error in the impugned order.
17. In view of the discussion in preceding paragraphs, this Court does not find any incorrectness, illegality or impropriety in the order of learned Trial Court dated 16.09.2022. The same appears to have been passed after due consideration of the facts and circumstances of the case. Accordingly, the present revision petition is dismissed.
S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 15 of 16 Revision file be consigned to Record Room. Copy of this order be sent to Learned Trial Court for necessary intimation.
Dictated & announced in the open Court on 04.03.2023.
(ARVIND BANSAL) Addl. Sessions Judge-05 (Shahdara) Karkardooma Courts, Delhi S. Jitender Singh Shunty vs. S. Balbir Singh & Ors Page 16 of 16