Delhi District Court
Si Pawan Kumar vs The State (Nct Of Delhi) on 25 August, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL
SESSIONS JUDGE01, NORTH, DELHI
Crl. Revision No. : 16/2011
CC No. : 101/1
P.S. : Timarpur
Case ID No. : 02401R0109292011
IN THE MATTER OF :
SI Pawan Kumar
No. D4098, Nanu Ram, P.S. Timarpur, Delhi
.................Petitioner
Vs.
1. The State (NCT of Delhi)
2. Vishal Kumar Sharma
S/o Sh. S.K. Sharma
R/o Kamal Kuteer, Gali no. 5, Village Wazirabad, Delhi.
3.Nirmal Kumar
S/o Sh. Braham Prakash
R/o 1/1513, Kashmere Gate, Delhi 06
.............Respondent
Date of Institution : 26.03.2011
Date of Arguments : 11.04.2012 & 23.8.2012
Date of Order : 25.8.2012
ORDER
1. This is a revision petition filed on behalf of petitioner Crl. Revision No. : 16/2011 1/13 aggrieved by the order of Ld. Trial court dated 28.2.2011 whereby Ld. Trial court directed for registration of FIR against the petitioner u/s 218/220/341/342/34 IPC on the application of complainant u/s 156 (3) Cr.P.C.
2. The complaint was filed on the allegations that a civil suit was pending between the complainant and his father in law with respect to the property situated at Wazirabad which was bequeathed in his favour by his mother in law, but after the death of his mother in law, accused persons in collusion with police officials tried to encroach upon the said property by breaking open the locks despite the order of court. On 6.3.2009 his father in law started breaking open the locks upon which the police was informed but they left after conducting preliminary inquiry, subsequent to which a call was received by the complainant no.1 asking him to reach at police station Timarpur and when they reached at the police station, both the complainants were implicated in Kalandara u/s 107/151 Cr.P.C. Due to this false implication, a complaint was lodged by them to DCP Civil Lines and a vigilance inquiry was conducted by PG Cell, North in which report it was concluded that the petitioner alongwith the other police officials had fabricated the story and arrested the complainants by calling them to police station who were subsequently discharged by Ld. SEM in the Kalandara filed against them. After the receipt of the status report on record , Ld. Trial court observed that the prima facie case showed the involvement of petitioner with respect to fabrication of the record and Crl. Revision No. : 16/2011 2/13 false implication of the complainant at the instance of other accused persons and accordingly the directions for registration of FIR were issued vide impugned order which has been assailed by way of instant revision petition.
3. The first objection taken on behalf of respondent is with respect to the maintainability of the revision petition. It is submitted on behalf of respondent that the impugned order dated 28.2.2011 directing for registration of FIR is purely interlocutory in nature and in view of the statutory bar contained in section 397 (2) of the Code, the said order is not revisable. For the abovesaid, reliance was placed upon Crl. Rev. No. 1640 of 2001 titled as Father Thomas Vs. State of U.P. & Ors. decided on 12.11.2010 by Hon'ble Allahabad High Court wherein it was observed that " the order made u/s 156 (3) Cr.P.C. is an interlocutory order and remedy of revision against such order is barred subsection (2) of section 397 of the Code of Criminal Procedure " . The order of this court in criminal revision petition no. 173/11 titled as Kotak Mahindra Vs. Ashu Khan was also placed on record to submit that this court has already taken the view while relying upon the above judgment of Father Thomas Vs. State of U.P. & Ors., that the order u/s 156 (3) Cr.P.C. is an interlocutory order and is not amenable to revision. The copy of orders of many other ASJs have also been placed on record whereby some of the ASJs have entertained the revision petition against the order passed u/s 156 (3) Cr.P.C. by the Magistrate and at the same time, some ASJs Crl. Revision No. : 16/2011 3/13 declined to entertain the revision petition being not amenable to revisional jurisdiction u/s 397 (2) Cr.P.C. Seemingly much confusion still persist on the abovesaid point with respect to order u/s 156 (3) Cr.P.C. being interlocutory or intermediary order which may be amenable to the revisional jurisdiction. Though it is correct that the reference was made to the above referred judgment of " Father Thomas Vs. State of U.P. & Ors." in the said order dated 3.3.2012 of this court , however it is a matter of record that the said revision petition despite passing reference to the said judgment was actually decided on merits of the case. Subsequently also this court passed the order in case titled as Inspector Shiv Dayal Vs. State wherein though the objection with respect to maintainability of the revision petition was never taken by the opposite party, however this court took the view with respect to the revision petition being maintainable and accordingly entertained the petition and disposed off the same on merits. The observation of Justice Mr. Homes is worth quoting here " Judges do not make laws and in interpreting them, judges should not be oblivious to the felt necessities of the times. The dynamics of law has never been so eloquently described than by the Brihadarnay Kopanashid that " the law is the King of Kings, far more powerful and rigid then they. Nothing can be mightier than the law by whose aid as by that of the highest monarch. Even the weak may prevail over the strong ". The judge who makes no mistakes is yet to be born . Wise judges are fully conscious of their fallibility. Whether right or wrong in administering Crl. Revision No. : 16/2011 4/13 justice, the judge must constantly endeavour with the assistance of the bar to sustain the rule of law in the country ".
4. Ld. Counsel for respondent has also placed reliance upon III (2010) DLT (Crl.) 388 titled as Mohd. Salim Vs. State to strengthen his submission that in view of the aforesaid judgment and Judgment of Hon'ble Delhi High Court, also, present revision petition is not maintainable and is liable to be dismissed without realizing that the crux of the observations of Hon'ble High Court actually goes against the interpretation of the respondent wherein also the judgment of Allahbad High Court and Orissa High Court was referred but Hon'ble High Court of Delhi observed that these judgments were of no help to the case of complainant since the proceedings before Hon'ble High Court had been instituted u/s 482 of the Code of Criminal Procedure and there was also the request to treat it as petition under article 226/227 of the constitution. Many other judgments were also referred before Hon'ble High Court and it was observed that " these judgments were based on their individual facts. None of them lays down a binding preposition of law to the effect that on no ground whatsoever can the order passed by the Magistrate u/s 156 (3) of the Code of Criminal Procedure be challenged before the High Court either by filing a revision petition or by way of a petition u/s 482 of the Code of Criminal Procedure or under Article 226/227 of the Constitution. Rather the reference was also made to judgment titled as Anupam Bhartia & Anr. Vs. State & Ors. 2005 (2) JCC 1113 wherein Crl. Revision No. : 16/2011 5/13 while considering the petition against the order passed by Magistrate U/s 156 (3) of the Code, the court took the view that the matter before the magistrate was a complicated matter requiring expert handling to collect the evidence. The Ld. Judge was of the view that the order passed by the Magistrate did not suffer from any illegality, impropriety or jurisdictional error resulting into failure of justice. While dismissing the petition, the court was of the view that the Magistrate could not refer matter u/s 156 (3) of the Code of Criminal Procedure mechanically, though he was not required to give a detailed order and reasons. It was observed that " Thus this judgment also recognizes that the discretion exercised by a Magistrate u/s 156 (3) of the Code is a judicial discretion, which cannot be exercised arbitrary. Even while passing an order u/s 156 (3) of the code, the Magistrate necessarily needs to apply his mind to the facts and circumstances of the case in order to take a prima faice view as to whether the complaint made before him discloses commission of a cognizable offence or not and further to decide whether the case before him needs to be investigated by the police or it was a simple case which the complainant himself could prove by leading evidence before the Magistrate without aid and state machinery and, therefore the order passed by him is a judicial order. Once it is held that the discretion exercised by the magistrate is a judicial discretion and the order passed by him is a judicial order, it is difficult to accept that the order passed by him is not capable of being challenged in any judicial proceedings on any Crl. Revision No. : 16/2011 6/13 ground whatsoever ". The observation of Hon'ble High Court that none of the other judgments cited laid down the binding proposition of law to the effect that on no ground whatsoever can the order passed by the Magistrate u/s 156 (3) Cr.P.C. be challenged either by filing of the revision petition or by way of petition u/s 482 of the code of criminal procedure or under article 226/227 of the constitution, if it is interpreted that the order would be amenable to revision before Hon'ble High court, the same would also be amenable to revision before ASJs since jurisdiction u/s 397 to entertain the revision petition is concurrent with the ASJs and Hon'ble High Court. Many other judgments including the judgments of Writ Petition Criminal 804 of 2008 titled as Amit Khera Vs. Govt of NCT of Delhi and K.K. Patel & Anr. Vs. State of Gujrat AIR 2000 SC 3346 are on record wherein no fault was found in entertaining the revision petition against the order passed by Ld. Trial court. It was observed in K.K Patel & Anr Vs. State of Gujrat that " the feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code " . Reliance is also placed upon AIR 2009 SC 2459 Rameshan Vs. Rakesh Kumar Yadav where the revision petition filed against the order passed u/s 156 (3) Cr.P.C. was entertained by Ld. ASJ and disposed off accordingly but subsequently Hon'ble High Court held that " the revision petition against the said order was not Crl. Revision No. : 16/2011 7/13 maintanable. In the appeal before Hon'ble Apex Court it was opined that High Court ought to have given a notice to the appellant to show that the revision was maintainable and the plea of the respondent that at the cognizance stage no notice was required to be given to the accused was not accepted as the order was passed in favour of the appellant and it was observed that the same ought not to have been set aside without issuance of notice to them ". A judicial order can be of three types. It may be a final order, an intermediate order or an interlocutory order. If an order finally disposes of a matter in dispute, it is termed as a final order. As held by the Hon'ble Supreme Court in Amar Nath Vs. State of Haryana and Anr. (1977) 4 SCC 137, the term " interlocutory Order" in section 397 (2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights 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 formed the basis for insertion of this particular provision in section 397. Thus, for instance, orders summoning witnesses, adjourning case, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/s 397 (2). but orders which are matters of moment and which affect or Crl. Revision No. : 16/2011 8/13 adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be outside the purview of the revisional jurisdiction of the High Court " . Therefore test to determine substantial order or an interlocutory order is that whether the proceedings would be terminated if the objections of the petitioner are upheld. In the instant matter if the objections of the petitioner are upheld it would lead to setting aside the order of registration of FIR and thereby will terminate the complaint itself against him . Further in 2007 (1) JCC 448 case titled as Gautam R Patel Vs. Govt. of NCT of Delhi, a petition was filed by the petitioner for quashing of FIR registered against him and it was observed that " the appropriate remedy with the petitioner was to file the revision u/s 397 Cr.P.C. against the order of Magistrate directing for registration of FIR, in case he had any grievance against the said order " . The above observation of Hon'ble High Court squarely covers the proposition that the order of Magistrate u/s 156 (3) Cr.P.C. not being interlocutory order, revision petition is maintainable u/s 397 Cr.P.C. against the same. It may be noted that the order passed in Gautam R. Patel is by Hon'ble High Court of Delhi whereas the judgment relied upon by Ld. Counsel for respondent i.e. Father Thomas Vs. State of U.P. & Ors. has been passed by Allahbad High Court and as per the established norms, the judgments passed by other High Courts shall have persuasive value with respect to the disposal of the cases but where the contrary views have been taken by the other High Courts and Delhi High Court, it is the judgment of our Crl. Revision No. : 16/2011 9/13 own High Court which shall have the binding effect. After the direct observation of Hon'ble High Court in the above referred judgment , no further discussion is required on this aspect with respect to the maintainability of the instant revision petition u/s 397 Cr.P.C.
5. Coming to the merits of the case, it was argued on behalf of petitioner that the impugned order passed by Ld. Trial court is non speaking order which does not state about the facts and circumstances upon which the order has been based. It has also not been discussed by Ld. Trial court as to whether the custodial interrogation of the petitioner is required or whether any other evidence is required to be collected by the police, besides the fact that entertaining the complaint of complainant was also barred by provisions of section 140 of Delhi Police Act.
6. Perusal of the impugned order reveals that Ld. Trial court has narrated about all the fact based upon which the complaint had been filed and also based his observations on the inquiry report of PG Cell and thereafter opined that prima facie case showed the involvement of the petitioner in false implication of the complainant. Therefore, it cannot be said that Ld. Trial court while passing the impugned order has not applied its mind or the order passed by Ld. Trial court is not the speaking order. Perusal of the record particularly the Kalandara made u/s 107/151 Cr.P.C., the PG Cell Report as well as the order passed on Kalandra sufficiently point out towards the false implication of the complainant.
7. The objection of Ld. Counsel for petitioner that for want of Crl. Revision No. : 16/2011 10/13 sanction u/s 140 of D.P. Act, the complaint would not have been entertained is also not available and applicable in the case of petitioner. The alleged false implication of complainant or the preparation of false documents which are the instances of glaring misdeed can never be considered part of the duty of police officers/officials. Hence, the protection of section 140 of D.P. Act also cannot be said to be available to the petitioner. For the abovesaid reliance is placed upon 123 (2005) DLT 592 CBI Vs. Dharampal Singh and AIR 2009 SC 1404 Chaudhary Parveen Sultana Vs. State of West Bengal and 2000 (1) JCC Delhi 102 Inspector Bal Kishan Vs. State of Delhi wherein interalia it was observed that " the provisions u/s 140 D.P. Act is for protection of police officials from unnecessary harassments for acts done on duty but the abuse of power or flagrant violation of procedure established by law which cannot be sanctified as mere aberration in call of duty does not attract the shelter of section of sec. 140 of Delhi Police Act " .
8. Further it is the own submission of Ld. Counsel for petitioner that the PG Cell has not done any local inquiry nor recorded any statement of the public but at the same time submitted that Ld. Trial court has not observed if any further evidence is to be collected by the police, whereas his first contention is answer to the second contention that the further inquiry/investigation is still required in the matter which can be conducted with the help of state machinery only.
9. It was also submitted on behalf of petitioner that the Crl. Revision No. : 16/2011 11/13 investigation of the kalandra in question was done by ASI Shiv Kumar and the petitioner had not given any statement nor his statement was ever recorded by the IO of the case. The only role of the petitioner was that he had been directed to go at the spot and ask the complainant to come to the police station and therefore no fault can be found on the part of petitioner in the alleged crime. So far as the fabrication of any document or wrongful confinement or restrain of the complainant is concerned, it is not attributable to the present petitioner as the entire investigation had been conducted by the IO of the case. The present petitioner was just a PSI and was not empowered to use his discretion and was just complying with the directions issued by the IO. However the material on record also reveal the calls having been made from the mobile phone of petitioner as well as he is a witness to the documents of arrest and preparation of kalandara, though those documents were never prepared at the spot, therefore at this stage, he also cannot be absolved of his joint responsibility alongwith IO of the case. The order u/s 156 (3) Cr.P.C. is a matter of discretion and though the same is also required to be done judiciously, but in the instant matter, it cannot be said that Ld. Trial court has not exercised the said discretion judiciously and therefore no fault can be found in the order of Ld. Trial court in issuance of directions for registration of FIR u/s 156 (3) Cr.P.C. based upon the material on record nor impugned order suffers from any illegality or infirmity. Same is therefore upheld and present revision petition filed by the petitioner is dismissed. TCR alongwith copy Crl. Revision No. : 16/2011 12/13 of this order be sent back to the trial court. Revision file be consigned to Record Room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 25.08.2012 Crl. Revision No. : 16/2011 13/13