Gaurang Kanth vs State (Nct Of Delhi) on 16 January, 2017

[Cites 14, Cited by 0]

Delhi District Court

Gaurang Kanth vs State (Nct Of Delhi) on 16 January, 2017

                                                         1

            IN THE COURT OF SHRI SANJIV JAIN, 
     ADDITIONAL SESSIONS JUDGE  SPECIAL. FAST TRACK 
            COURT : SAKET COURTS: NEW DELHI.

In Crl. Revision No. 204856/2016
1.           Gaurang Kanth
             S/o Sh. Vinod Kumar Kantha
             A9 Nizamuddin East, 
             New Delhi110013.
2.           Mr. Pratyush Kanth
             S/o Vinod Kumar Kanth
             A13 Nizamuddin East, 
             New Delhi110013.                                           ...... Petitioners
                         Versus 
1.           State (NCT of Delhi)
2.           Kulan Rukhsana Amin
             D/o Mohammad Amin, 
             R/o 268, Naseem Bagh, 
             TTI road, Jamia Nagar, 
             Okhla, New Delhi110025.                                    ..... Respondent

In Criminal Revision No. 204878/2016 State NCT of Delhi .... Petitioner Versus

1. Kulan Rukhsana Amin D/o Mohammad Amin, R/o 268, Naseem Bagh, TTI road, Jamia Nagar, Okhla, New Delhi110025.

2. Gaurang Kanth S/o Sh. Vinod Kumar Kantha A9 Nizamuddin East, New Delhi110013.

3. Mr. Pratyush Kanth S/o Vinod Kumar Kanth A13 Nizamuddin East, New Delhi110013. ...... Respondents CR No. 204856/16 & 204878/16 Page No. 1/22 2 ORDER :

1. By this common order, I shall dispose of both the revision petitions which have arisen out of the impugned orders dated 28.09.2016 and 13.10.2016 passed by the Ld. Metropolitan Magistrate(MM), SouthEast, Saket in the complaint Case No. 634280/16 on an application u/s 156(3) CrPC titled 'Kulan Rukhsana Amin Vs. State & Ors' in FIR No. 255/16, P.S Jamia Nagar whereby the IO was directed to seize the original Will and send it alongwith other admitted and disputed documents for comparison to FSL and file detailed status report.

2. The facts giving rise to the present petitions are that the petitioners(Gaurang Kanth and Pratyush Kanth) had purchased the land measuring 360 Sq. Yards in Khasra No. 138 bearing Plot No. 268 situated in Jamia Nagar, Okhla, New Delhi from Late Mohd.

Amin vide registered Sale Deed dated 04.11.1999 for a total sale consideration of Rs.4,75,000/. They also received the physical and vacant possession of the land from late Prof. Mohd. Amin. The said property was demarcated from the rest of the portion of the entire land by separate boundary wall on all four sides of the property, as per the site plan Annexure P4. It was mutated in the name of the petitioners on 28.11.2003. Late Prof. Mohd. Amin expired on 14.12.2014 leaving behind his legal heirs.

3. On 27.03.2015, when Petitioner No.1 (Gaurang Kanth) visited the said property, he found the boundary wall of the property completely demolished. He found respondent No.2(Kulan Rukhsana Amin) with her husband and legal heirs of the deceased who allegedly demolished the boundary wall with an intention to CR No. 204856/16 & 204878/16 Page No. 2/22 3 dispossess the petitioners and to grab the property. The petitioner No.1 filed a complaint which led to the registration of the case vide FIR No. 416/15 at the police station Jamia Nagar against respondent No. 2, her husband and others. On 02.04.2015, petitioners in the presence of the police reconstructed the boundary wall. Hon'ble High Court on the application moved by the husband of respondent No.2 for anticipatory bail directed him to pay compensation of Rs.10 lacs to the petitioners towards the cost of the boundary wall and other losses vide order dated 21.04.2015. He also filed an affidavit giving an undertaking not to disturb the possession of the petitioners in respect of the aforesaid property vide dated 27.04.2015.

4. It is noted that upon the death of Late Professor Mohd. Amin, respondent No.2 with other legal heirs filed a Suit for Partition which was withdrawn. The petitioners then filed a suit for permanent injunction before Hon'ble High Court against respondent No.2 and other legal heirs of Late Prof. Mohd. Amin whereby the respondent no. 2 and other legal heirs were restrained to create any hindrance with respect to the lawful enjoyment of the said property by the petitioners vide order dated 10.07.2015. The investigating officer of the case FIR No. 416/2015 filed a status report dated 18.09.2015 before Hon'ble High Court. The respondent No. 2 and other legal heirs of Late Prof. Mohd. Amin filed a Suit for Declaration for declaring the Sale Deed null and void alleging that it was obtained by cheating and forgery. Hon'ble High Court did not grant them any interim relief. On 14.03.2016, the petitioners filed an application in the aforesaid FIR No. 416/2015 u/s 156(3) CrPC for conducting proper investigation which was disposed of by the Ld. CR No. 204856/16 & 204878/16 Page No. 3/22 4 MM vide order dated 28.07.2016 on the submissions of the Naib Court that the matter has been transferred to EOW Cell ( Annexure P16 and Annexure P17). The respondent No.2 then lodged a complaint against the petitioners on 27.11.2015 and subsequently filed an application u/s 156(3) CrPC on 18.01.2016 which was disposed off on 30.04.2016 on the ground that FIR No. 255/16 has already been lodged on 27.03.2016 against the petitioners at the police station Jamia Nagar. The petitioners then filed a petition for quashing the FIR No. 255/16 whereby Hon'ble High Court vide order dated 26.04.2016 directed the police not to take any coercive action against the petitioners. During the pendency of the quashing petition, the investigation of the case FIR No. 255/16 was transferred from the local police station to Economic Offences Wing, Delhi Police. A status report in this respect was also filed by the investigating agency on 20.09.2016 (EOW Cell) inter alia that the property under dispute has been mutated in the name of the petitioners and the thumb impressions of Late Prof. Mohd. Amin on the original Sale Deed dated 04.11.1999 sent for forensic examination were found to be identical with the admitted documents bearing the thumb impressions of Late Prof. Mohd. Amin. It was submitted that the allegations against the petitioners by the respondent No. 2 qua forgery and cheating could not be substantiated.

5. During the pendency of the quashing petition, the respondent No. 2 filed an application u/s 156(3) CrPC for monitoring the investigation of the case FIR No. 255/16 upon which the order dated 28.09.2016 was passed directing the IO to seize the CR No. 204856/16 & 204878/16 Page No. 4/22 5 original Will and send it to FSL with admitted and disputed documents. The relevant portion of the order is as under :

"...Status report filed.

Copy is supplied to the complainant.

It is argued by the Ld. Counsel for complainant in the present matter. IO has filed the status report in respect to the finger print which was sent for comparison and has not investigated till now in respect to the handwriting of the deceased Mohd. Amin.

IO submits that he shall investigate the matter on the aforesaid aspect and send the documents seized by him (original documents) to the FSL for opinion.

At this stage, Ld counsel for complainant further submits that the Original Will is in the possession of accused persons, as stated by the IO before the Hon'ble High Court and the same shall be seized for the purpose of investigation and comparison with the original sale deed.

Submission heard.

In view of the above submission, IO is directed to seize the original Will and also send the same alongwith other admitted and disputed documents for the purpose of comparison to the FSL and file detail status report on the next date of hearing..."

Against the order dated 28.09.2016, an application was moved by the IO seeking clarification/modification of the order submitting that on 28.09.2016 he did not make any submission seeking handwriting expert opinion. Ld MM after hearing the IO, Ld Addl. PP for the State, the petitioners/accused persons and the complainant/respondents vide order 13.10.2016 held as under:

"....In the present matter, the application u/s 156(3) CrPC was received by the court after the same was marked by Ld. CMM, SouthEast and CR No. 204856/16 & 204878/16 Page No. 5/22 6 therefore, the matter was taken up on 17.08.2016 and a status report was called by the IO. IO filed the same on 28.09.2016. During the court proceedings submissions were recorded on 28.09.2016 in the open court and therefore, the present application moved by the IO stating that the submissions recorded were incorrect is a blatant lie and therefore, I find no error in the order of 28.09.2016 which needs modification. Therefore, the application of IO is not maintainable...."

6. It is noted that the investigation of the case FIR No. 416/15 was already transferred from the police station Jamia Nagar to EOW, Delhi Police. On 28.07.2016, on the submissions of the Naib Court that the matter has already been transferred to EOW Cell, the application was disposed of. The second FIR No. 255/16 registered on 27.03.2016 against the petitioners was also transferred to EOW Cell on 24.06.2016 as per the status report filed by the IO EOW Cell in the Writ Petition No. 1277/16 titled Gaurang Kanth & Ors. Vs State. The status report was also filed by the IO in the Court of Ld. CMM having jurisdiction over the Economic Offences Wing Cell, Delhi Police.

7. The impugned orders are assailed on the ground that the Ld MM passed the orders without having jurisdiction over the cases investigated by EOW which vests with the designated court. It is stated that the application moved by the respondents u/s 156(3) CrPC before the Ld. CMM was marked to the Ld. MM in routine on which the status report was called. The IO of EOW had filed the status report on 28.09.2016. The application was addressed to Ld CMM, SE, Delhi. The IO in the instant case was of EOW Cell, Delhi CR No. 204856/16 & 204878/16 Page No. 6/22 7 Police. After calling the status report, the impugned order dated 28.09.2016 was passed. Since Ld CMM had already seized of the matter, Ld. MM did not have jurisdiction to consider the application and pass the impugned orders and should have referred the application to Ld. CMM for consideration. It is stated that the IO of EOW had moved an application for modification interalia that he did not make such submissions and since opinion regarding the thumb impressions has already been received from the Lab, he does not intend to send the documents for seeking handwriting expert opinion. It is stated that there is neither any pleading nor any prayer in the application u/s 156(3) CrPC filed by the Respondent No. 2 for sending the Will or any other document to the FSL for verification. Ld MM passed the impugned order beyond its power u/s 156(3) CrPC when power to investigate solely vested with the police authority. While passing the impugned orders, Ld MM failed to appreciate the status report dated 28.09.2016 filed by the IO which categorically states that in view of the investigation carried out by the police, the offences of cheating and forgery as alleged by the Respondent No. 2 in the FIR are not substantiated. Ld MM while passing the impugned orders failed to appreciate that the science of examination of thumb impression is the exact science as has been observed by Hon'ble Supreme Court in the case of Jaspal Singh v. State of Punjab reported in (1980) 1 SCC 487.

8. In response to the said petitions, it was submitted on behalf of Respondent No. 2 that the FIR No. 255/2016 came to be registered on 27.03.2016 pursuant to a criminal complaint filed by the respondent No. 2 against the petitioners in relation to cheating CR No. 204856/16 & 204878/16 Page No. 7/22 8 forgery and criminal intimidation. The petitioners illegally, wrongfully claimed title over an unidentified portion of a land measuring 360 Sq. yards (subject property). The petitioner No. 1 is the erstwhile counsel for the late father of respondent No. 2 who represented him in civil litigations pertaining to the entire property. Petitioner No. 2 is the erstwhile politician and journalist. Respondent No. 2 filed an application dated 12.08.2016 u/s 156(3) CrPC seeking the following reliefs:

(1) The concerned court of Ld. MM to inspect the case diary maintained by the investigating agency in relation to the said FIR as per Section 162 CrPC, and (2) The investigating agency to file a status report in relation to the said FIR.

9. It was submitted that the investigation in relation to the said FIR is pending and till date report u/s 173 CrPC has not been filed. The petitioners being the accused persons named in the FIR are yet to be summoned. As such, they have no locus standi in the said proceedings before the Ld. MM. It was submitted that the Ld MM in his order dated 28.09.2016 has directed the Investigating Officer to seize the original will of Mohd. Amin, father of respondent No.2, from the possession of the petitioners and send it alongwith the documents for comparison of the handwriting to the FSL. The Hon'ble High Court in WP (Crl.) No. 1277/2016 while granting protection to the petitioners from any coercive steps did not stay the investigation in relation to the said FIR. It was submitted that any interim direction/order of Ld. MM in exercise of powers u/s 156(3) CrPC directing the police to investigate is not open to revision at the instance of a person against whom neither cognizance has been CR No. 204856/16 & 204878/16 Page No. 8/22 9 taken nor any process has been issued. Moreover it is an interlocutory order and remedy of revision against such order is barred u/s 397(2) CrPC as held by the Hon'ble Supreme Court in catena of judgments. It was alleged that the petitioners and the State are in unison challenging the manner of the investigation being asked for by the complainant. The respondent No. 2 has recently on 08.12.2016 obtained Form 2 from the University showing only a very weak shadow of a thumb print on the photocopy taken from the original by the University. Further, there is no signature of Prof. Amin on this form. The other form in the record of the university does not carry finger prints but it is authenticated by a clear signature of Late Prof. Amin. It is stated that the Will is a registered document bearing multiple signatures and thumb prints of Late Prof Amin for comparison with disputed signatures on the Sale Deed which the Investigating Officer did not seize and he deliberately omitted it though it was an important part of the investigation. Ld MM precisely for the said reason passed the directions on 28.09.2016 to seize the original will and send it alongwith the admitted and disputed documents for comparison to FSL. It was stated that no prejudice would be caused to the petitioners by sending the above documents and it is not an abuse of process of law. The claim of the respondent No. 2 since beginning is that the Sale Deed produced by the petitioners does not bear the signatures of Late Prof Amin, her father. The status report filed by the IO does not state anywhere that no further investigation shall be carried out. Ld MM in the order dated 13.10.2016 did not find any ground for modifying/clarifying the order dated 28.09.2016.

10. I have heard the arguments advanced by Ld Counsel Sh.

CR No. 204856/16 & 204878/16 Page No. 9/22 10

Sidharth Aggarwal for the petitioners( In CR No. 204856/2016), Mohd. Iqrar, Ld. Addl. PP for the State( in CR No. 204878/2016) and Sh. S S Jauhar, Ld counsel for Respondent No. 2.

11. Ld counsel Sh. Sidharth Aggarwal submitted that the Sale Deed is a registered document. The property was mutated in the name of the petitioners on the strength of the sale deed. The respondent No. 2 and her agents demolished the wall of the property for which the petitioners got registered an FIR 416/2015 against the respondent No. 2, her husband and others. On 02.04.2015, the petitioners in the presence of the police reconstructed the boundary wall. Hon'ble High Court also ordered for payment of compensation to the petitioners while granting bail to the husband of respondent No. 2. He also gave an undertaking not to disturb the possession of the petitioners. In the suit filed for permanent injunction by the petitioners, respondent No. 2 and her legal heirs were restrained to create any hindrance with respect to the lawful enjoyment of the property by the petitioners. Respondent No. 2 and other legal heirs filed a suit for permanent injunction for declaring the Sale Deed null and void but the Hon'ble High Court did not grant them any relief. On 14.03.2016, the petitioners filed an application u/s 156(3) CrPC for conducting proper investigation which application was disposed of vide order dated 28.07.2016 that matter has been transfered to EOW. Respondent No. 2 then lodged a complaint and subsequently filed an application u/s 156(3)CrPC stating that FIR No. 255/16 has been lodged against the petitioners. The petitioners then filed a writ petition for quashing of FIR. During the pendency of the quashing CR No. 204856/16 & 204878/16 Page No. 10/22 11 petition, the investigation of the case FIR No. 255/16 was also transferred to EOW. A status report was also filed by the IO on 20.09.2016 (EOW Cell) inter alia that property under dispute has been mutated in the name of the petitioners and the thumb impression of Late. Prof Amin on the original Sale Deed dated 04.11.1999 sent for forensic examination found to be identical with the admitted documents bearing the thumb impressions of Late Prof Amin and the allegations against the petitioners qua forgery and cheating could not be substantiated.

12. Ld counsel submitted that in the application u/s 156(3) CrPC filed by respondent No. 2, the prayer was to direct the investigating agency to provide the case diary in relation to FIR No. 255/2016 and file a Status Report. There was no such prayer for sending the Will for comparison with the Sale Deed to FSL. Since the investigating officer had already got the documents compared from the Finger Prints Bureau and filed the status report, there was no occasion for the investigating officer to make such submissions before the Ld. MM which is reflected in the orders dated 28.09.2016 and 13.10.2016 which was also stated by the IO when he sought clarification/modification of the order dated 28.09.2016. Ld counsel also submitted that since the investigation in the instant case was being done by EOW Cell, only the CMM had jurisdiction to pass such directions but Ld MM exceeded the jurisdiction and passed the impugned order though it was already in the knowledge of the Ld MM that investigation of both the FIRs is with EOW and the status report as to the investigation in both the cases are being filed in the court of Ld. CMM.

CR No. 204856/16 & 204878/16 Page No. 11/22 12

13. As regards the maintainability of the petition, it is submitted by Ld. Counsel that when the order dated 13.10.2016 was passed, the presence of the counsel for the accused/petitioners was recorded by the Ld MM. Ld counsel referred the case of Amarnath & Ors v. State of Haryana & Ors (1977) 4SCC 137 and Manohar Singh & Anr v. State & Ors, Crl. MC No. 1952 and 1959/2009 decided on 10.04.2013 by the Hon'ble High Court of Delhi to contend that the aforesaid orders passed by Ld. MM are the intermediate orders and revision petitions are maintainable. Ld counsel also referred the cases of Murari Lal vs. State of M.P (1980) 1 SCC 704, Sunil Kumar v. State of NCT of Delhi MANU/DE/0916/2010, Parappa & Anr v. Bhimappa and Anr MANU/KA/0059/2008 to contend that science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. Ld counsel submitted that in the instant case, the IO had collected the documents bearing the thumb impression of Late Prof. Amin from the Jama Milia University. He had sent the original Sale Deed and the documents collected from the University bearing the thumb impression of Late Prof. Amin and Finger Print Bureau report clearly shows that the thumb impression on both the documents are identical. Ld counsel stated that handwriting expert opinion is not the exact science but the science of identifying the thumb impression is an exact science and it does not leave any scope of mistake or doubt. When the IO had already obtained the opinion as to the thumb impression on the documents, there was no occasion for him to make submissions to Ld. MM to send the documents for seeking handwriting expert opinion.

CR No. 204856/16 & 204878/16 Page No. 12/22 13

14. Ld counsel Sh. S S Jauhar per contra referred the case of Madhu Limaye v. State of Maharashtra (1977)4 SCC 51 to contend that the revision petitions are not maintainable u/s 397(2) CrPC since the order of Ld MM are only an interlocutory orders. The application u/s 156(3) CrPC was moved by the respondent No. 2 before the Ld. CMM which Ld. CMM marked to the Ld. MM and as such it was rightly held by the Ld. MM that Ld MM has jurisdiction to dispose of the application. Ld counsel also referred the cases of Sakiri Vasu v. State of U.P & Ors. (2008) 2 SCC 409 and Hemant Yashwant Dhage v. State of Maharashtra & anr (2016) 6 SCC 273 to contend that if an application u/s 156(3) CrPC is filed before the MM, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. Ld counsel also reiterated what was stated by the respondent No. 2 in reply to the above petitions.

15. I have considered the arguments and gone through the material placed on record.

16. In Amarnath & Ors supra, it was held that Section 397 (2) CrPC provided that the powers of revision shall not be exercised in relation to any interlocutory order. The paramount object in inserting this new provision was to safeguard the interests of the accused. The term "interlocutory order" in Section 397 (2) of the 1973 code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or CR No. 204856/16 & 204878/16 Page No. 13/22 14 temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which forced the basis for insertion of this particular provision in Section 397 of 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court.

17. In the case of Manohar Singh & Ors supra, the scope of criminal revision was considered in detail. Cases of Father Thomas v. State of U.P & Ors 2011(2) ALJ 217 and Amit Kapoor v. Ramesh Chander & Anr 2012 IX AD (SC) 493 and few other cases were considered and it was held that the basis challenge to the impugned order is on the ground of nonmaintainability of the revision petition of respondentaccused, which stands allowed vide impugned order. Implicit reliance placed by petitioners' counsel upon full bench decision of Allahabad High Court in Father Thomas (supra) to contend that revision petition against an order allowing 156(3) CrPC is not maintainable, is of no avail for the reason that Apex Court in its recent decision in Amit Kapoor supra has authoritatively CR No. 204856/16 & 204878/16 Page No. 14/22 15 ruled that a criminal revision certainly lies against an intermediate order, it was held that the distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some rights and still are not finally rendering the court functus officio of the lis.

18. The Hon'ble Supreme Court in Kishan Lal v.

Dharmendra Bafna & anr 2009(9) Scale 768 has ruled as under :

"It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdictional error or an error of law is noticed".

19. It was held that in view of the authoritative pronouncement of Apex Court in Kishan Lal supra, the order u/s 156(3) CrPC is revisable and the impugned order holding revision petition against it to be maintainable does not suffer from any illegality or perversity.

20. In the case of Madhu Limaye supra, it was held that it is not the intention of the Legislature when it retains the revisional powers of the High Court that only those orders would be revisable which are passed on the final determination of the action but which are not appealable under the Code. The Legislature on the one hand has kept intact the revisional power of the High Court and on the other put a bar on the exercise of that power in relation to an interlocutory order. The real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words " final order". There may be an order passed CR No. 204856/16 & 204878/16 Page No. 15/22 16 during the course of the proceeding which may not be final but yet it may not be an interlocutory order pure and simple. By a rule of harmonious construction of subsection (1) and (2) of Section 397 it must be held that the bar in subsection (2) is not meant to be attracted to such kinds of intermediate orders. It is neither advisable nor possible to make a catalog of orders to demonstrate which kinds of orders would be interlocutory and which would be final and then prepare an exhaustive list of those types of orders which would fall between the two.

21. Now coming to the present case, it is true that the FIR 255/2016 came to be registered on 27.03.2015 pursuant to the criminal complaint filed by Respondent No. 2 against the petitioners in relation to cheating, forgery and criminal intimidation and the investigation in relation to the said FIR is pending and till date, report u/s 173 CrPC has not been filed nor the petitioners have been summoned as an accused in the said FIR but it is to be noted that the petitioners/accused persons had filed a petition for quashing the FIR whereby Hon'ble High Court vide order dated 26.04.2016 directed the police not to take any coercive action against the petitioners. The Status report was also filed by the IO on 20.09.2016 that from the investigation conducted so far and in view of the Finger Print Bureau report, the allegations of the complainant of forgery and cheating are not substantiated. In the application u/s 156(3) CrPC on which the impugned orders were passed, the prayer was to inspect the case diary maintained by the investigating agency and to file the status report. The IO on 28.09.2016 had also filed a status report before Ld. MM on the application u/s 156(3) CrPC CR No. 204856/16 & 204878/16 Page No. 16/22 17 reiterating the status as filed before Hon'ble High Court. The relevant portion of the report is reproduced as under :

" During the course of further investigation, the Original thumb impression of Late Dr. Amin was obtained from the gratuity pension form maintained by the pension department of Jamia Milia Islamia University where Dr. Amin had served as a professor and retired in the year 1998. The original sale deed, dated 04.11.1999 was taken into police possession u/s 91 CrPC as produced by the present petitioner. The said original sale deed alongwith the admitted thumb impressions of Late Dr. Amin obtained from the service record of Jamia Milia Islamia was sent to Finger Print Bureau for comparison. The Finger Print Bureau, Kamla Market, New Delhi has reported that the admitted thumb impression of Dr. Amin is identical with the thumb impression made on the sale deed dated 04.11.1999. It has been categorically opined that the thumb impression on the questioned sale deed and on admitted gratuity form is of the same man i.e thumb impression of Late Mohd Amin S/o Late Mohd. Mujeeb.

From the investigation conducted so far and in view of FPB report, the allegations of the Complainant of forgery and cheating are not substantiated".

22. It was held in the case of Sunil Kumar @ Sonu supra, where the case of Murari Lal v. State of M.P and Jaspal Singh v. State of AIR 1979 1708 were also referred that the science of identification of finger prints being absolutely reliable and almost perfect as compared to imperfect nature of science of the identification of handwriting and signatures. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and CR No. 204856/16 & 204878/16 Page No. 17/22 18 imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of testimony.

23. In the instant case, the IO had seized and collected the original thumb impressions of Late Prof. Amin from the Gratuity Pension Form maintained by the Pension Department of Jamia Milia Islamia University where Late Mohd. Amin had served as a Professor and retired in the year 1998. The disputed thumb impression of Late Mohd. Amin on the original sale deed dated 04.11.1999 alongwith the thumb impressions of Late Mohd. Amin seized from the Pension Department of the University were sent to the Finger Prints Bureau for scientific comparison. The Bureau scientifically examined the disputed and the admitted thumb impressions and vide its report stated that the thumb impression of Late Mohd. Amin on the Gratuity Pension Form is identical with the disputed thumb impression of Late Mohd. Amin on the original sale deed dated 04.11.1999. It is not the case that the thumb impression on the documents collected from the Jamia Milia Islamia University by the IO for comparison were not of Late Prof Amin. There was no CR No. 204856/16 & 204878/16 Page No. 18/22 19 observation from the Finger Print Bureau that the thumb impression of Prof Amin on those documents were bleak or not clear. The report of the Finger Print Bureau is very categorical that the thumb impression on the Sale Deed and that on the documents collected from the university are identical i.e of Late Prof Amin. The IO had also recorded the statement of Ashok Kumar Gupta who was the attesting witness of the sale deed dated 04.11.1999 who has stated that the sale deed was executed by Late Mohd. Amin in his presence at the Sub Registrar's office at Mehrauli.

24. For the aforesaid reasons and in view of the pronouncements in the cases referred as above, there was no reason for the investigating agency to send the sale deed again after seizing the original Will for the purpose of comparison to the FSL when the IO was already having the report as to the thumb impressions on the aforesaid documents which is more authentic and reliable. Further there was no occasion for the Magistrate to direct the investigating agency to send those documents to FSL for seeking handwriting expert opinion merely on the submissions made by the IO( though subsequently denied by the IO) or on the application of the Respondent No. 2 u/s 156(3) CrPC in the garb of proper investigation.

25. When the investigation relating to the above document was already conducted by the investigating officer which report the IO had submitted before Hon'ble High Court, the order passed by the Ld. MM directing to seize the original Will and send it alongwith other admitted and disputed documents for the purpose of comparison to FSL is not warranted and the same cannot be said to CR No. 204856/16 & 204878/16 Page No. 19/22 20 be purely an interlocutory order. It is less than a final order but it determines some right of the accused/petitioners on a particular aspect of the trial and thus it is within the purview of the revisional jurisdiction of this Court. I am of the view that the revision petitions against the impugned orders are maintainable.

26. As regards locus standi of the petitioners, since in the instant case, the petitioners had filed a petition for quashing the FIR and the report of the IO had also come and further, the counsel for the petitioners were present during the hearing on 13.10.2016 and the submissions of the counsels for the petitioners were also recorded and considered, I am of the view that the petitioners and the State have locus standi to file the above revision petitions.

27. As regards the jurisdiction of Ld. MM to entertain the application, in the instant case, the aforesaid application u/s 156(3) CrPC was filed by respondent No. 2 before the Ld. CMM. It was assigned by the Ld. CMM to the Ld. MM who passed the impugned order. There is no such law that only the Ld CMM has the jurisdiction to try the matters being investigated by EOW cell. It is done only for administrative convenience and if any application is marked by Ld. CMM to the Magistrate, he/she gets power or jurisdiction to dispose of this application even though it was in the knowledge of the Ld MM that the case is being investigated by EOW and the Status Report is being filed by the IO in the court of Ld. CMM. Further, as observed in the case of Sakiri Vasu v. State of U.P & Ors and Hemant Yashwant Dhage case supra, the Magistrate has power u/s 156(3) CrPC to monitor the investigation and also direct the police to do the investigation properly. I am of the view that the CR No. 204856/16 & 204878/16 Page No. 20/22 21 Magistrate had power to monitor the investigation. Conclusion

28. For the aforesaid reasons and in view of the authoritative pronouncements as referred above, I am of the opinion that:

(a) the revision petitions u/s 397(2) CrPC against the orders dated 28.09.2016 and 13.10.2016 passed by the Ld. MM are maintainable in this Court.

(b) the petitioners have locus standi to file the above revision petitions against the impugned orders.

( c) Ld MM by virtue of the assignment of the application u/s 156(3) CrPC by Ld CMM had jurisdiction to entertain the application and pass appropriate orders.

(d) The Ld. MM had power u/s 156(3) CrPC to monitor the investigation and direct the police to do the investigation properly.

(e) There was no reason for the investigating agency to send the sale deed again after seizing the original Will for the purpose of comparison to the FSL when the IO was already having the report as to the thumb impressions on the aforesaid documents which is more authentic and reliable. Further there was no occasion for the Ld MM to direct the investigating agency to send those documents to FSL for seeking handwriting expert opinion merely on the submissions made by the IO( though subsequently denied by the IO) or on the application of the Respondent No. 2 u/s 156(3) CrPC in the garb of proper investigation.

29. In the light of what has been stated above, I set aside the orders dated 28.09.2016 and 13.10.2016 passed by the Ld. MM CR No. 204856/16 & 204878/16 Page No. 21/22 22 directing the IO to seize the original Will and also send the same alongwith other admitted and dispute documents for the purpose of comparison to the FSL.

30. Both the aforesaid revision petitions are disposed of accordingly. The files be consigned to the Record Room Announced in the open court (Sanjiv Jain) on 16.01.2017. ASJ(Spl. FTC) South East, Saket Court New Delhi.

CR No. 204856/16 & 204878/16 Page No. 22/22

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Delhi District Court

Gaurang Kanth vs State (Nct Of Delhi) on 16 January, 2017