Delhi District Court
In Re vs State on 20 August, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No. 120/2022
CNR No. DLND010030052022
In re:
Mukesh Kumar
S/o Sh. Rameshwar Dayal
R/o Flat No. 74, Servhit Apartment,
PocketA, Sector 17, Dwarka, New Delhi
(Presently posted as
I/C Narcotics Cell and Anti Snatching Cell
South West Distt.) ..........Revisionist
Versus
1. State
2. Aakash Jain
S/o Late Shri Ramesh Jain
R/o House No. A15, Rama Road,
Delhi 110033 ........ Respondents
Date of Institution : 07.04.2022
Date of hearing arguments : 16.08.2022
Date of order : 20.08.2022
Appearances:
Sh. Vikas Arora, Advocate for the petitioner /revisionist.
Sh. Ravinder Khandelwal, Ld. Addl. PP for the State/R1.
Sh. Jaspal Singh, Advocate for the respondent No. 2.
ORDER:
1. The petitioner / revisionist is assailing an order dated 05.04.2022 passed by Ms. Manu Shree, Ld. MM, Patiala House Court, Page 1 of 8 New Delhi District in Criminal Revision petition under Section 397 of the Code of Criminal Procedure Code, 1973 whereby the Ld. MM directed the SHO PS Sagarpur, Delhi to register an FIR and file a compliance report thereupon on 12.04.2022.
BRIEF FACTS:
2. Briefly stated, a criminal complaint was filed by the respondent no. 2 Aakash Jain (hereinafter referred as the complainant) on 20.11.2021 alleging that he was arrested on 04.05.2021 at about 5:30p.m by the revisionist police official along with 56 other police officials of the Special Staff, Delhi Police; and that thereafter on 05.05.2021 he was beaten up at the Police Station Special Staff by ACP Sh. Jain with leather belt and blow besides fists on the pretext of demanding money to let him off; and that on refusal to pay the bribe, a false FIR bearing no. 219/2021 PS Sagarpur under Section 51 of the Disaster Management Act r/w Section 3 of the Epidemic Disease Act besides Section 420/188/120B /34 IPC was registered. It was alleged by the complainant that he made several complaints to the police officers including the Commissioner of Delhi Police, but no action was taken, and therefore, he filed a complaint along with the application under Section 156 (3) Cr.P.C.
3. On the direction of Ld. MM, ATR dated NIL was filed by SI Metha Lal Meena at PS Sagarpur, Delhi on 03.01.2022 and the Ld. MM after hearing the parties, passed the impugned order dated 05.04.2022, the operative portion of which reads as under:
"The main purpose of the investigation under Chapter XII Page 2 of 8 Cr.P.C is to collect the materials and evidences against the accused. Complainant has alleged that he had been detained by the officials of PS Special Staff, Vasant Vihar on 04.05.2021 and kept in illegal custody for one day and money was demanded from him by the ACP and other officials in lieu of letting him go and for not bringing a false prosecution against the complainant and it is also stated that complainant was beaten up to force him to part with money and on his failure to do so, FIR no. 219/2021 was registered against him. Since the allegations against the police officials are serious, in the opinion of this Court, FIR should be registered and investigation handed over by the DCP to an official of high integrity, as per his wisdom, who shall carry out the investigation in an unbiased manner and he shall make sufficient endeavours to trace out the location of the complainant and the accused make sufficient endeavours to trace out the location of the complainant and the accused police officials on 04.05.2021 amongst other things and make it a part of the final report.
Compliance report be filed by the DCP on 12.04.2022. Copy of this order be conveyed to DCP through SHO and SHO to file a report within 24 hours. "
GROUNDS OF CHALLENGE:
4. The impugned order dated 05.04.2022 is assailed by the revisionist in the present revision petition inter alia on the ground that the complaint is based on false and concocted facts, and rather the complainant was illegally selling Remdesivir Injection which was being prescribed for treatment of Covid19 and that respondent no. 2 was selling injection to one Kamal Aatri for Rs.45,000/ whereas the MRP printing on the packing of the injection was Rs.5400/; and it is stated that during the course of investigation, at the instance of the complainant another accused Deepak Narang was arrested and that investigation revealed that Rs.20,000/ had been credited in his account as advance Page 3 of 8 money from Kamal Aatri; and that the call details of the complaint were also examined and it was found that the medicines that were sold by the complainant was spurious since its had stopped since 2017 by the manufacturing company. Further, objections were taken that Ld. MM completely overlooked, the fact that allegations of bribery had been levelled by the complainant and in such eventuality the Ld. MM was not competent to pass any direction under Section 156 (3) of Cr.PC in view of Section 5, 7 and 19 of the Prevention of Corruption Act besides Section 140 of the Delhi Police Act.
PROCEEDINGS BEFORE THIS COURT:
5. Notice of the present revision petition was served upon the respondent no. 2 and a detailed reply has been filed and inter alia it is urged that the impugned order dated 05.04.2022 passed by the Ld. MM is at the precognizance stage and it is an "interlocutory order", and therefore, revision petition is not maintainable. A heavy reliance was placed on decisions in Father Thomas v. State of U.P & Anr. in Criminal Revision no. 1640/2001 decided by the Hon'ble Judges of the Allahabad High Court dated 22.12.2010 besides HDFC Securities Limited & Ors. v. State of Maharashtra & Anr., Criminal Appeal No. 1213 of 2016 decided by the Hon'ble Supreme Court of India dated 9 th December, 2016; Romesh Lal Jain v. Naginder Singh Rana, Criminal Appeal no. 691 of 2003 by Hon'ble Supreme Court of India dated 28 th October, 2005 and Nishu Wadhwa v. Siddharth Wadhwa & Anr.
2017 SCC Online Delhi 6444.
Page 4 of 86. On the other hand, Ld. Counsel for the petitioner / revisionist has placed reliance on decisions in Anil Kumar & Ors. v. M. K. Aiyappa & Anr., (2013) 10 SCC 705 and Ashish Kumar Aggarwal v. Vakil Ahmed & Ors., Crl. MC No. 4226 of 2016 by Hon'ble Judge of High Court of Delhi dated 30.08.2018 and earlier decision by the Hon'ble Judge of the High Court of Delhi in WP (Crl.) No. 464/2013 titled Satish Chand Gupta v. State dated 18.11.2013. DECISION:
7. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the rival parties and on perusal of record, at the outset I find that the impugned order dated 05.04.2022 cannot be sustained in law. First thing first, a direction passed under Section 156 (3) Cr.P.C for registration of FIR is not an "interlocutory order" and the decision to such effect in Father Thomas v State (Supra) was not accepted by the Hon'ble Judges of the High Court in the cited case titled Nishu Wadhwa v. Siddharth Wadhwa & Anr. (Supra). It is suffice to take note that in the above cited case Nishu Wadhwa v. Siddharth Wadhwa & Anr. (Supra), a catena of earlier decisions were discussed and it was categorically held that that an order dismissing or allowing an application under Section 156 (3) Cr.PC is not an interlocutory order and a revision petition against the same is not maintainable.
8. Secondly, what clearly stares on the face of record is that the complainant was produced in the FIR No. 219/21 before the Ld. MM Page 5 of 8 and he made no grievance about any kind of physical abuse or torture, nor any such plea was taken in the bail application. Ld counsel for the revisionist referred to the bail application no. 2887/2021 filed by the complainant in case titled Aakash Jain v. State decided by Hon'ble Justice Yogesh Khanna, Judge High Court of Delhi dated 06.08.2021, in which no grievance was espoused that the applicant/complainant was beaten up by the police and rather it was conceded by the Ld. Counsel for the complainant that he was selling Remdesivir injection with a profit margin of Rs.10,000/ as he used to purchase the injection from the co accused Deepak Narang who used to sell the same to the needy persons.
9. It is manifest from the record that the complainant was released on bail on 10.08.2021 and only thereafter he elected to level allegations of acts of physical abuse and torture at the hands of the police officials. Incidentally, as rightly pointed out by the Ld. Counsel for the revisionist, this complaint has been filed without any memo of parties and it is merely referring to the revisionist as well other police officials without specifically naming each one of them in the alleged incident.
10. Be that as it may, as rightly urged by Ld. Addl. PP for the State, once an application was made that the complainant was beaten up and falsely implicated on refusal to pay illegal gratification, Ld. MM failed to appreciate that such allegations were within the scope and ambit of Section 7 of POC Act and Ld. MM had no jurisdiction to pass order under Section 156 (3) of Cr.P.C for registration of FIR and investigation without sanction for prosecution to be obtained under Section 197 of Page 6 of 8 Cr.P.C r/w Section 140 of the Delhi Police Act.
11. Avoiding long academic discourse, in the cited case titled Ashish Kumar Aggarwal v. Vakil Ahmed & Ors. (Supra), it was categorically held that the jurisdiction to deal with the offences under the Prevention of Corruption Act 1988 as amended vests in the Court of Special Judge under Section 5 of the PC Act, which is a special law, and thus the Ld MM has no jurisdiction to inquire into or trying the offences under the provisions of law; and thus as necessary corollary, the Ld. MM has no jurisdiction to direct the registration of the FIR under Section 156 (3) of the Cr.P.C. The same ratio was earlier propounded in the case of Satish Chand Gupta v. State (Supra) and also in the case of Simrat Katyal v. GNCTD by Hon'ble Judge, High Court of Delhi,Crl.MC. 3729/2015 Dated 11th September, 2015. Lastly, the plea by Ld. Counsel for the complainant that in case of police torture, no sanction for prosecution is required does not cut much ice as it would all depend on the facts and circumstances of the case and in the instant case there is no material to suggest or raise an inference that the respondent/complainant was tortured in any manner at the hands of the officials of the Special Staff.
12. In view of the foregoing discussion, the impugned order suffers from patent illegality, incorrect approach and impropriety, and therefore the same is hereby set aside. The Trial Court record be sent back along with a copy of this order. In view of the observations made in this order, the Ld. MM is directed to proceed with the matter as per law Page 7 of 8 and the complainant shall appear before the Ld. MM on 02.09.2022 for further proceedings. File of revision petition be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2022.08.22 10:49:05 +0530 Announced in the open Court (DHARMESH SHARMA) th on 20 August, 2022 Principal District & Sessions Judge (NDD) Patiala House Courts, New Delhi Page 8 of 8