Delhi District Court
Anil Kumar Garg vs State ( Nct Of Delhi) on 23 March, 2023
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI, DELHI
Crl. Revision no. 15/2023 ( DLNT01-000325-2023)
Anil Kumar Garg
S/o Atma Ram Garg
R/o S-8, Suraj Nagar, Azadpur
Delhi-110033 .......... Revisionist/Petitioner.
Versus
1. State ( NCT of Delhi)
2. Ram Kanwar Sharma
S/o Sh. Solu Ram
R/o 24, Suraj Nagar, Azadpur
Delhi-110033
3. Inspector Anil Malik
SHO PS Adarsh Nagar Delhi
4. ASI Mahabir Singh
PS Adarsh Nagar, Delhi ..... Respondents.
Date of Institution : 11.01.2023
Date of Reserving the Order : 22.02.2023
Order Pronounced on : 23.03.2023.
O R D E R:
1. This is the revision petition preferred by the petitioner herein (the complainant/applicant before the Ld. MM) against the impugned order dated 05.11.2022 passed by the court of Ld.MM-06 in Complaint case no.4887/2019 titled as 'Anil Kumar Garg V Ram Kanwar Sharma & Ors', thereby dismissing the application u/s 156(3) and compliant u/s 200 of Cr.P.C of the petitioner.
2. The facts in brief are that the petitioner was called at police station Adarsh Nagar on 10.05.2018 by respondent no.4 on the Page 1/12 complaint of respondent no.2 where he reached there alongwith neighbourers. It was alleged there that petitioner/revisionist abused respondent no.2 publicly opposite Durga Mandir Dharamshala, Suraj Nagar. The petitioner herein rebutted the said allegations, but the SHO concerned ordered his arrest without examining the CCTV footage. The petitioner was arrested under Section 107/151 Cr.P.C vide Kalandra vide DD No. 51-A dated 10.05.2018 wherein the place of arrest was shown as spot of alleged quarrel whereas the arrest was made at Police Station Adarsh Nagar. The respondent no.2 retracted from his statement before the Ld. Special Executive Magistrate and the petitioner herein was discharged by Ld. SEM on 10.11.2018.
2.1 It is further pleaded that petitioner is a practicing lawyer and a witness in criminal case in FIR No. 171/2014 PS Adarsh Nagar under Section 354/354-B/323/506/34 IPC pending before the Ld. MM Mahila Court-02 . He has been persistently threatened by the respondents in collusion with accused person in the said case to compromise the matter. The petitioner/revisionist has made several written complaints in this regard to superior police officials, but no action was taken. He then approached the Ld. MM by filing application under Section 156 (3) Cr.P.C in this regard seeking registration of FIR against the accused who instituted false Kalandra against him on the false complaint .
2.3 Vide the impugned order dated 05.11.2022, the application under Section 156(3) Cr.P.C as well as the complaint of the revisionist was dismissed by the Ld. MM.
3. That feeling aggrieved by the said impugned order, the Page 2/12 petitioner/complaint has challenged the same on the following grounds :
a. That Ld. MM has committed gross negligence and irregularity in passing the impugned order .
b. That Ld. MM has failed to appreciate the fact that the footage of living room conclusively proves the presence of petitioner inside his house on 10.05.2018 at 5-6 p.m which is the alleged date and time of alleged quarrel by respondent no.2 & 3.
c. That Ld. MM has also failed to appreciate the fact that petitioner is a public witness pertaining to FiR No.171/2014 P.S Adarsh Nagar and has been pressurized by the respondents to enter into compromise with the accused persons.
d. That Ld. MM failed to consider the material contradiction pertaining to time gap between the time of making PCR call by respondent no.2 and as per statement of respondent no.4. Ld. MM also failed to consider that there is material contradiction between the statement of respondents herein pertaining to time, location of alleged place of quarrel given before Ld SEM .
e. That Ld. MM also failed to appreciate written statement of President of Sri Durga Mandir Trust which can prove the innocence of Page 3/12 revisionist.
f. Ld. MM also failed to consider judgment case titled Rahul Yadav V. State & Anr. And State of Punjab V. Raj Singh & Anr, (1998) 2 SCC 391 qua Section 195 -A IPC.
4. The Ld. Counsel for the petitioner, in support of the said grounds, further argued that the case of petitioner is squarely covered by the judgment of Hon'ble Supreme Court in Constitutional Bench Judgment viz;Lalita Kumari V. State of U.P, W.P (Criminal) No. 68/2008 dated 12.11.2013. The FIR has not been ordered despite the disclosure of cognizable offence . Therefore, the police investigation in the present matter is warranted. Further the bar u/s 195 CrPC is not attracted for ordering the police investigation.
4.1 In support of his arguments, Ld. Counsel for the petitioner has relied upon the following judgments:
(I) State of Punjab V. Raj Singh & Anr (1998) 2 SCC 391 (II) M. Narayandas V. State of Karnataka & Ors Appeal (crl) 1197 of 2003.
(III) Rahul Yadav V State & Anr. W.P (Crl.) 1120/2017 of Hon'ble High Court of Delhi.
5. Per contra, Addl. PP for the State argued that there is no legal infirmity in the impugned order and the same has been passed after appreciating all the facts as well as legal proposition of law. The bar u/s 195 CrPC is attracted in the matter as the allegations are of Page 4/12 giving false evidence in judicial proceedings . Therefore, no interference is warranted in the impugned order.
6. Heard and considered the rival contentions as well as material on record.
7. The petitioner herein has challenged the impugned order dated 05.11.2022 which is a cumulative order whereby the applications of the petitioner under Section 156 (3) Cr.P.C as well as his complaint under Section 200 Cr.P.C has been dismissed. The first issue is legality of the dismissal of the application under Section 156 (3) Cr.P.C and the grounds thereof.
8. The Ld. Counsel for the petitioner argued that the judgment of M/s Skipper Beverages Pvt Ltd. V. State 2001 IV AD Delhi 625 is no longer applicable in light of the latest law laid down by the constitutional bench judgment of the Hon'ble Supreme Court in case of Lalita Kumari Vs. Govt. of U.P. & Ors CWP no. 68/2008 dated 12.11.2013. The said issue on the issue of registration of FIR is also to be seen in light of one another landmark judgment of Hon'ble SC in Ramdev Food Products Private Limited Vs State of Gujarat in Criminal Appeal no. 600/2007 decided on 16.03.2015. The issue herein is as to whether the proposition of law as laid down by the Hon'ble Supreme Court in judgment of Lalita Kumari Vs. Govt. of U.P. & Ors (supra) also governs the power with respect to the exercise of discretionary power to the Ld. MM for ordering the investigation under section 156 (3) Cr. PC or not. The said issue Page 5/12 becomes apparent from the very question framed by Hon'ble Constitutional Bench in the above noted case. It was concerning the scope of Section 154 Cr. PC and the duty of police qua registration of FIR. The relevant portion of question framed is reproduced herein :
"The important issue which arises for consideration in the referred matter is whether "a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of cognizable offence under Section 154 of Code of Criminal Procedure, 1973 or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same ?".
9. The judgment of Hon'ble SC in Ramdev Food Products Private Limited Vs State of Gujrat (supra) discusses the said issue concerning the principles governing the exercise of powers under section 156 (3) Cr. PC by the Magistrate. The relevant para no. 22 is reproduced herein :
"22. Thus, we answer the first question by holding that the direction under Section 156 (3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under Page 6/12 Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."
10. It is thus apparent from the said proposition of law that the Magistrate is under no obligation to allow the application under section 156 (3) Cr. PC only because it discloses the cognizable offence. The said order has to be passed only after application of mind by taking into account the credibility of information available or weighing the interest of justice. Therefore, the proposition of law laid down by the Hon'ble Delhi High Court way back in the year 2001 in M/s Skipper Beverages (supra) still holds the field and guides the Magistrate as to the exercise of the discretionary power under section 156 (3) Cr. PC. The relevant extract is reproduced herein :
"It is true that Section 156 (3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised Judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156 (3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interest of justice demand that the police should step in to help the complainant. The police assistance can be taken by a Magistrate even Page 7/12 Under Section 202 (1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs State of Madhya Pradesh & Ors."
11. Now coming to the factual matrix of the present case. It is the case of the petitioner that a false complaint was lodged by proposed accused Ram Kanwar Sharma against him. It was alleged in the said complaint that on 09.05.2018, the petitioner abused him publicly outside Durga Mandir Dharmshala, Suraj Nagar and thereafter on the next day, his name was raised on the foundation stone of Shri Durga Mandir Dharamshala Suraj Nagar, Azad Pur. Thereupon, the petitioner, it is alleged, went to the house of Ram Kanwar Sharma at about 5-6 p.m and misbehaved as well as abused him. The said complaint led to the filling of the Kalandra under Section 107/151 Cr.P.C vide DD No.51-A dated 10.05.2018, Police Station Adarsh Nagar against the petitioner. The said Kalandra was instituted by the SHO PS Adarsh Nagar before the court of Ld SEM, North-West Jahangir Puri, on the basis of false allegations of said Ram Kanwar Sharma. It is further the case of the petitioner that during inquiry before the court of Ld. SEM, a complete U-turn was taken by said Ram Kanwar Sharma regarding the said incident of 9 th and 10th May 2018 which led to his discharge by the Court of Ld. SEM. Hence, he has moved the present complaint alongwith application for filing of the said false complaint by Ram Kanwar Sharma and misuse of the legal authority by the police official who Page 8/12 instituted the kalandra. False evidence too has been led by the respondent no. 2.
12. It is apparent from the allegations itself that the grievance of the petitioner is concerning the lodging of the kalandra DD No.51 A dated 10.05.2018 and the basis of the said Kalandra is complaint of Ram Kanwar Sharma. So, admittedly, as per the allegations itself, the entire case is based upon the oral version of complaint. As far as the documentary evidence is concerned, no scientific police investigation is warranted so as to recover any material evidence. Therefore, there is no legal infirmity in the order of Ld. MM in not ordering the police investigation under Section 156 (3) Cr.P.C when the entire evidence is either in the possession or under the control of petitioner herein.
12.1 The judgments relied upon by Ld. Counsel for petitioner in case titled State of Punjab (supra) case, M. Narayandas (supra) case and Rahul Yadav (supra) case are not applicable in the present case being distinguishable on facts.
13. Now, coming second part of the order concerning his complaint u/s 200 CrPC regarding lodging of the said false complaint and consequently the Kalandra against him in the court of Ld. SEM.
14. Before discussing the merits of the claim of the petitioner qua said false allegations levelled by Ram Kanwar Sharma and subsequently the Kalandra, the proceedings of the said Kalandra relied upon by the petitioner himself needs to be considered. The petitioner has filed on record the purported discharge order which as Page 9/12 per him exonerates him from the allegations levelled by said Ram Kanwar Sharma. For the sake of clarity and convenience, the said discharge order is reproduced hereunder:
"Respondent Anil Present in the Court. IO/PW is absent despite several opportunities. Proceeding has completed the period of six months which was reported on 11.05.2018. Hence, the proceeding is dropped under Section 116.6 Cr.P.C. Respondents discharged. Surety bonds stands cancelled. Fie be consigned to record.
SEM/NW 10.11.18."
15. So, it is apparent from the said order itself that it is not the final order passed on merits, but rather on the technical grounds i.e under Section 116(6) of Cr.P.C. There is no finding in favour of the petitioner herein or against said Ram Kanwar Sharma or the police officials as regards to the truthfulness of the allegations or the veracity of the evidence led by the prosecution. If indeed, the petitioner had reasons to believe that the said Kalandra was lodged on the false allegations, he should have challenged the said order of Ld. SEM of disposing off the Kalandra on technical ground and requested for its disposal of merits. But, no such action was taken by the petitioner .He straightway approached the Court of Ld. MM on the premise that the said complaint lodged by Ram Kanwar Sharma which led to the registration of the Kalandra has been found to be a false complaint and the object of the said false complaint was to pressurise him against giving evidence in one FIR bearing No. 171/2014 PS Adarsh Nagar.
15.1 As far as the aspect of said motive as alleged is concerned, the Trial Court Record itself reflects that neither the said Ram Page 10/12 Kanwar Sharma is the said case pending trial nor any of the accused seems to be having any remote connection with it.
16. The other legal ground taken by Ld. MM while dismissing the complaint under Section 200 Cr.P.C is the statutory bar under Section 195 (i) (a) (I) & (b) (i) of Cr.P.C. As far as the said legal aspect is concerned, there is no iota of doubt that the said complaint lodged by Ram Kanwar Sharma before the police authorities which led to the registration of Kalandra DD No.51A falls within the four corners of the provisions referred herein above. Apart from that the false evidence , if any , given before the court of Ld. SEM, either by the said Ram Kanwar Sharma or other police officials too falls within the scope of Section 195 (i) (b) (i) of Cr.P.C. The judgment of Hon'ble Supreme Court in Perumal V. Janaki Crl. Appeal No. 169 of 2014 dated 20.11.2014 relied upon by the petitioner rather goes against the petitioner and clarifies the said issue that mandatorily the complaint has to come from the said court where the false evidence was led or its superior court . The petitioner herein has not done so and straightway approached the court of Ld. MM whose power of taking cognizance is barred in view of the legal bar created under Section 195 Cr.P.C.
17. The trial court record also reflects that after the filing of the said complaint before the Ld. Trial Court, the petitioner herein seems to have also moved the application under Section 195 read with Section 340 Cr.P.C before the Court of Ld. SEM on 21.12.2020. It thus appears that the petitioner seems to be seeking redressal of his grievance at a same time before two different forums without awaiting the outcome of the said petition moved Page 11/12 before the Ld. SEM .
18. In view of the above said discussed well settled proposition of law and in view of the legal bar of taking cognizance under Section 195 Cr.P.C, the Ld. MM had no jurisdiction to cognizance upon with the said complaint preferred by the petitioner under Section 200 Cr.P.C for the offences alleged under Section 182/191/192/193/195-A/211/120B/34 IPC without the complaint u/s 195 CrPC .
19. In view of the above-discussed reasons and observations, I am of the considered opinion that there is no legal infirmity in the impugned order which needs any interference. The revision petition is hereby dismissed. There is no order as to cost.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room Announced in the Open Court (GAGANDEEP SINGH) on 23.03.2023. Addl. Sessions Judge/ Spl. Judge (NDPS), North District, Rohini Courts, Delhi.
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