Delhi District Court
Nanda Kishore Mallik vs State Of Nct on 8 December, 2020
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL SESSIONS
JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 655 of 2018
IN THE MATTER OF:
Nanda Kishore Mallik,
S/o late Sh. Ram Chandra Mallik,
R/o DLA 19, VSS Nagar,
Bhubaneswar, Odisha
.......Revisionist
Versus
1. State of NCT
2. SHO, PS Kalkaji, New Delhi
3. Sh R K Arora (MD)
M/s Supertech Pvt Ltd.
1114, 11th Floor, Hemkund Chamber,
89, Nehru Place, New Delhi
4. Sh Gurmeet Singh Sodhi,
GMCRM of M/s Supertech Ltd.
House No. B2829, Sector 59, Noida, UP
5. Sh Sanjay Singh,
GM of M/s Lead India Services Pvt Ltd.
OCM Complex, Sector 18, Noida, UP
........Respondent
Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 1 of 14
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2020.12.08
13:11:03 +0530
Instituted on : 05.09.2018.
Reserved on : 01.12.2020
Pronounced on : 08.12.2020
JUDGMENT
1. By way of the instant judgment, I propose to dispose of revision petition filed on behalf of revisionist Nanda Kishore Mallik impugning the order dated 16.04.2018 whereby his application moved u/s 156(3) Cr.P.C in CC No. 181/1/17 titled as Nanda Kishore Malik, has been dismissed by Ld. MM06, South East District, Saket Court, New Delhi. For the sake of convenience, parties shall be referred as per their respective status before concerned court of Ld MM.
2. Brief facts may be taken note of : The complainant booked a flat in the joint name of his wife and himself in Eco Village 2, Greater Noida, UP with M/s Supertech Pvt Ltd i.e. the company of accused no. 3 to 5 and made a payment of Rs.1,50,000/ by way of two cheques and an agreement dated 14.10.2010 was also executed between the parties. It is alleged that accused persons had resiled from contract while discriminating against the complainant and alloting the flat to some other person and he filed a complaint before State Consumer Forum wherein reply came to be filed by said accused. From the said reply, it came to the notice of complainant that accused had previously booked said flat in the name of Mr Rakesh Devi and thereafter fraudulently transferred the same in his name. As per complainant, the flat was directly purchased from the company and the factum of previous booking and its cancellation was never disclosed to Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 2 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:11:13 +0530 complainant. On these allegations, complainant alleges offences under section 406/402/467/468/471 IPC.
3. Status report was filed by concerned Inquiry Officer, PS Kalkaji before concerned Court wherein it was mentioned that the land (for development of the project) was allotted to M/s Supertech Pvt Ltd by concerned Authorities after land acquisation proceedings, however since the acquisition proceedings got quashed by concerned Hon'ble High Court / Apex Court, therefore the project could not be developed and the company is ready to refund the amount of complainant alongwith interest. No cognizable offence was reported to have been made out in the instant case.
4. Vide impugned order, the said application stood dismissed by concerned court. The relevant observations of Ld MM is follow : "7. As per the submissions, identity of accused is known to the complainant. Further, all relevant documents are in the possession of the complainant. The complainant has brought nothing on record to suggest as to what evidence is required to be collected through police investigation. Therefore, the offence committed if any, may be proved by leading evidence by the complainant. No active or passive assistance is required from the state machinery for investigation. If any further evidence would be required, the same can be summoned by the court at the required stage. The complainant cannot ask for police investigation as a matter of right.
8. In this view of the above stated, the court does not find any merit in the application of the complainant hence the application of the complainant under section 156(3) of Cr.P.C. is hereby dismissed. Complainant is Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 3 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:11:22 +0530 directed to lead his presummoning evidence.
5. Ld. counsel for the revisionist has forcefully argued that the impugned order is not sustainable in the eyes of law as Ld MM was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
6. In support of his submissions, Ld. counsel has placed reliance upon the judgment of Hon'ble Apex Court in Lalita Kumar Vs Government of UP & Ors, (2008) 14 SCC 337.
7. On the contrary, it is vehemently argued by Ld counsel for respondent no. 3 & 4 that the present revision petition is not maintainable as the impugned order is purely interlocutory in nature. It is further submitted that no offence much less any cognizable offence is made out in the instant matter. It is argued that the project could not be developed due to cancellation of allotment and the company is ready to refund the amount of complainant with interest. It is argued that Ld MM has rightly dismissed the application of the revisionist.
8. I have heard and considered the submissions made by Ld. Counsel for revisionist/accused and also Ld. Counsel for respondent and also gone through the material available on record.
9. Before deciding the present revision petition, it would be Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 4 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2020.12.08 13:11:29 +0530 relevant to reproduce the relevant provisions of law which are as under
:
Section 397 : Calling for records to exercise powers of revision :--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub section and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
10. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
11. The contention of the learned counsel for the respondent was that since the order passed by the Metropolitan Magistrate under Section 156(3) is an interlocutory order, no revision petition against the same was permissible. What is an 'interlocutory order' has been Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 5 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:11:36 +0530 discussed by the Apex Court in the decision reported as (1977) 4 SCC 137 Amar Nath v. State of Haryana:
"6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub section (2) of Section 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in subsection (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that 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 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 formed the basis for insertion of this particular provision in Section 397 of the 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 proceeding, may no doubt amount to Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 6 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:11:42 +0530 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 or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
12. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held: "58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under subsection (2) of Section
397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 7 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:11:51 +0530 investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
13. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 : "13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 8 of 14
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2020.12.08
13:11:58 +0530
14. In Raghu Raj Singh Rosh Vs. Shivam Sundram Promotors Pvt. Ltd. & Anr. (2009) 2 SCC 363 while dealing with the right of an accused to be heard in a criminal revision petition, it was observed that indisputably if the learned Magistrate had taken cognizance of the offence and merely issuance of summons upon the accused had been postponed, the accused was entitled to be heard before the High Court in a criminal revision petition filed on behalf of the complainant. It was further held that since the Magistrate refused to exercise his jurisdiction under Section 156(3) Cr.P.C. and came to the conclusion that the dispute was a private dispute in relation to an immovable property, Police investigation was not necessary and directed examination of the complainant, having taken cognizance of the offence even though the accused had not been summoned, he had a right to be heard in the revision petition. Thus, the Supreme Court recognized the right of an accused to be heard in a revision petition once cognizance of the offence was taken even though the accused had not been summoned.
15. Thus, in light of the aforesaid legal position it cannot be contended that the instant revision petition is not maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
16. After going through the records of the complaint/ATR and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that all the relevant documents is within the possession of complainant and complainant has brought nothing on record to suggest Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 9 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:12:06 +0530 that as to what evidence is required to be collected through police investigation. Even, the identity of accused persons is known to complainant as righly observed by Ld Magistrate. If required the assistance of police can be availed by resorting to provisions of Section 202 Cr.P.C. by Ld Trial Court.
17. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, 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 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".
18. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that : ''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 10 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2020.12.08 13:12:14 +0530 police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
19. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in presummoning 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 the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon the judgment of Hon'ble Apex Court in a case titled Kishan Rao v. Shankargouda (2018) 8 SCC 165 wherein it has been observed as under :
"12. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri , 1999 (2) SCC 452, while considering the scope of the revisional jurisdiction of the High Court this Court has laid Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 11 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2020.12.08 13:12:22 +0530 down the following:
"5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....."
13. Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14:
Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 12 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:12:29 +0530
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration 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."
20. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate.
21. During course of arguments, Ld counsel for revisionist vehemently argued that accused has committed a forgery by falsely Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 13 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:12:37 +0530 claiming before concerned Consumer Forum that the flat was booked from a third person and not directly from the company. However, in my considered view, the manner of booking whether directly through company or through a third person, is not a bone of contention in the instant case and even, accused persons have not disputed that a flat in the project Eco Village 2, Greater Noida, UP got booked by complainant. Therefore, the contentions of Ld counsel for revisionist are liable to be rejected.
22. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 16.04.2018. The revision petition is accordingly dismissed.
23. TCR be sent back to the Ld. Trial court along with copy of this order.
24. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2020.12.08 13:12:45 +0530 Announced in the open (ANUJ AGRAWAL) Court on 8th December'2020 Additional Sessions Judge05, South East, Saket Courts, New Delhi Crl Rev. No. 655 of 2018 Nanda Kishore Malik Vs State & Ors Page No. 14 of 14