Delhi District Court
-: 1 :- Satish Kumar vs . P. Anand Rao on 29 November, 2018
-: 1 :- Satish Kumar Vs. P. Anand Rao
CR No: 536/2017
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI)-1
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :-
CR No. : 536/2017
Satish Kumar
S/o Sh. Bhoop Singh
R/o B-1/3, Tara Nagar
Kakrola, Dwarka, Delhi.
......... Revisionist
VERSUS
1. Sh. P. Anand Rao
R/o Quarter No. 1, Type-IV
Asha Kiran Complex, Avantika Rohini
Delhi- 110085.
2. Sh. Naveen Kumar Chikara
S/o Sh. Surajbhan Chikara
R/o RZ-40/1, Dharampura
Najafgarh, New Delhi.
3. Sh. Krishna Kumar
S/o Sh. Parasram
R/o H. No. 521, Jarodakala
New Delhi.
4. Sh. Sehdev Poddar
S/o Sh. Gauri Lal Poddar
R/o J-4, J.J. Colony, Sector-16
Dwarka, Delhi.
5. Sh. Amardeep
S/o Sh. Mahabir Singh
CR No: 536/2017 Page No.1 of 32 DOJ 29.11.2018
-: 2 :- Satish Kumar Vs. P. Anand Rao
CR No: 536/2017
R/o H. No. 836,
Village & Post - Dhikonala
Najafgarh, Delhi-110043.
6. Sh. Rajesh
S/o Sh. Rampal Singh
R/o Village Kherisaad,
Distt. Rohtak, Haryana
7. Sh. Satender
S/o Sh. Prem Singh
R/o Village & Post Dichaukala
Delhi.
8. Sh. Omveer
S/o Sh. Jai Singh
R/o Village & Post Dichaukala
Delhi.
9. Sh. P.R. Prema Chandran
Prop. Anchal R-43/14A
Amritapuri, Ranhola,
Nilothi Road, Nangloi,
Delhi- 110041.
10. Sh. Manoj Kumar
S/o Sh. Karan Singh
R/o Samaapur Khalsa
New Delhi.
.........Respondents
CR No. 536/2017
Date of Institution 28.11.2017
Reserved for orders on 27.11.2018
Judgment announced on 29.11.2018
CR No: 536/2017 Page No.2 of 32 DOJ 29.11.2018
-: 3 :- Satish Kumar Vs. P. Anand Rao
CR No: 536/2017
JUDGMENT
1. This revision petition under section 397 Cr.PC is directed against the order dated 09.10.2017 passed by Ld. MM-07, Dwarka Courts, New Delhi whereby the Ld. MM has been pleased to dismiss the complaint under Section 200 Cr.P.C. of the complainant (revisionist herein) Briefly stated relevant facts for disposal of the revision petition are as under :-
2. The present revision petition arises out of complaint case under Section 200 Cr.P.C. bearing no. 1828/2017, titled as Satish Kumar Vs. P. Anand Rao & ors. filed by the complainant (revisionist herein) against the accused persons (respondents herein) for the offence punishable under sections 420/468/471/427/506/34 IPC.
3. In the complaint, the complainant (revisionist herein) has stated that on 23.06.2012, he purchased a plot bearing no. 152, area measuring 150 sq yards out of khasra no. 34/23 situated in the revenue estate of village Haibat Pura, New Delhi from accused no. 2 namely Naveen Chikara through GPA, Agreement to Sell, Affidavit, Receipt, Possession letter and Will and since then he is in possession of the said plot. It is stated in the complaint that complainant also received the previous chain of title documents. It is stated that CR No: 536/2017 Page No.3 of 32 DOJ 29.11.2018
-: 4 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 accused Sh. Naveen Kumar Chikara had purchased the said property from accused no. 5 Sh. Amardeep and accused no. 5 had purchased the property from accused no. 6 Rajesh and accused no. 6 Rajesh had purchased the property from Sh. P.R. Prema Chandran on 22.04.2001 through GPA, Agreement to Sell, Affidavit, Receipt, possession letter and Will. It is stated in the complaint that at the time of purchasing the said property in question, one room was constructed in the said property and there was a boundary wall upto the height about more than 5 feet and electricity meter was installed in the said property in the name of accused no. 6 namely Rajesh and after purchasing the said property, electricity connection was got transferred in the name of the complainant and on 04.10.2016 the charges of electricity bill were deposited by the complainant. It is stated that on 30.09.2016, one Mr. Kundu Pradhan informed the complainant that electricity connection of the complainant has been removed and on enquiry complainant came to know that electricity meter has been removed under the pressure of accused no. 1 P. Anand Rao. It is further stated in the complaint that on 02.10.2016 on visiting the property in question, the complainant and his wife found accused no. 1 along with his associates with a JCB Machine and they damaged the constructed room and furniture and CR No: 536/2017 Page No.4 of 32 DOJ 29.11.2018
-: 5 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 boundary wall of the said property and when complainant and his wife raised objection then accused no. 1 and his associates extended threat to kill them with the JCB Machine and accused no. 1 has stated that he is the owner of the suit property. It is stated that thereafter complainant made a call at 100 number but police did not take any action. It is stated that on 02.10.2016 a written complaint was made to SHO, PS Baba Haridas Nagar, Najafgarh and thereafter on 03.10.2016 to the concerned ACP and on 04.10.2016 to the DCP South District but police did not take any action against accused persons. It is stated that thereafter on 27.10.2016 complainant filed a civil suit titled as Satish Kumar Vs. P. Anand Rao & ors. against P. Anand Rao, Kundu Pradhan, DGM BSES and SHO, PS Haridas Colony, Najafgarh and a notice was issued to the accused persons in the said suit and they were ordered to maintain status quo till the next date of hearing. It is stated in the complaint that all the accused persons in collusion with each other got prepared the false documents and cheated the complainant. It is stated that thereafter complainant also made a written complaint to the DCP concerned on 23.12.2016 but no action has been taken by the police.
4. Along with the complaint under Section 200 Cr.P.C. the complainant filed an application under Section CR No: 536/2017 Page No.5 of 32 DOJ 29.11.2018
-: 6 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 156(3) Cr.P.C. for directing the SHO, PS Dwarka to register the FIR against the accused persons.
5. As per order dated 04.02.2017 Ld. Trial Court was pleased to direct for calling the action taken report and after calling for the action taken report from the police station concerned and after going through the entire material on record, Ld. MM was pleased to dismiss the application under Section 156(3) Cr.P.C. vide order dated 09.03.2017 and Ld. Trial Court was pleased to take cognizance of the offence and case was fixed for pre summoning evidence.
6. In the pre- summoning evidence, the complainant examined himself as CW1 and his wife Smt. Sunita Devi as CW2. In the pre-summoning evidence, the complainant/CW1 has stated that he had purchased the property situated at plot no. 152 Aradhna Enclave, Surkhpur Road, Najafgarh measuring 150 Sq. yards from one Mr. Naveen Chikara on 23.06.2012 for a sum of Rs. 20 lacs vide GPA. The complainant has further deposed that electricity meter was already installed in the said property and same was in the name of Mr. Rajesh(first owner of the property) and that meter was got transferred by him in his name in the year 2013 and he continued to pay all the dues thereof regularly and he used to visit the said property regularly, once every CR No: 536/2017 Page No.6 of 32 DOJ 29.11.2018
-: 7 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 month. He further deposed that on 30.09.2016, he received a call from one Mr. Kundu, RWA President who informed him that the meter has been removed and he asked him to come to see and on the next day he along with his wife visited the spot and Mr. P. Anand Rao along with 3-4 other persons namely Rajesh(resident of village Khair), Rajbir Singh(resident of village Khair) met them there and he does not know the names of other persons. Complainant further deposed that they asked them as to how they were present there on which they were told that the plot belongs to them and he informed them that the plot was with them since last about four and a half years but they refused to believe his version and insisted that it was their plot. CW1 further deposed that they requested them not to do any alteration /damage to the plot for two days so that they can call the person from whom they have purchased the said plot and they returned from there. CW1 further deposed that he called the property dealer namely Sahdev Poddar and he told him that he was out of Delhi and next day they received a call from one of their neighbours who informed him that the construction on the plot has been raised by way of using JCB Machine and they immediately rushed there.
CW1 further deposed that they made a call at 100number and police officials came at the spot and they were taken to the PS. He further deposed that he gave a CR No: 536/2017 Page No.7 of 32 DOJ 29.11.2018
-: 8 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 written application and he was assured that action shall be taken. He proved his written complaint dated 02.10.2016 as Mark Ex.CW1/1 and one complaint which was given to DGM BSES Mark CW1/2.
7. CW2 Smt. Sunita is the wife of complainant/CW1 and has reiterated the same version as of CW1
8. Thereafter pre-summoning evidence was closed vide order dated 23.05.2017.
9. After going through the complaint of complainant and pre summoning evidence , the Ld. Trial Court vide impugned order dated 09.10.2017 has been pleased to dismiss the complaint under Section 200 Cr.P.C. of the complainant for the offences punishable under sections 420/468/471/427/506/34 IPC.
10. Feeling aggrieved by the impugned order dated 09.10.2017, the revisionist has filed the present revision petition stating therein that the impugned order has been passed without appreciating the facts and the law. It is stated in the revision petition that all the accused persons in collusion with each other cheated the complainant/revisionist. It is stated in the revision petition that Ld. Trial Court failed to appreciate that the documents in respect of the title of the land in dispute could be exhibited at the stage of pre-charge evidence. It CR No: 536/2017 Page No.8 of 32 DOJ 29.11.2018
-: 9 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 is stated in the revision petition that Ld. Trial Court has presumed the existence of parallel sets of the title documents which is beyond the judicial file. It is stated in the revision petition that Ld. Trial Court failed to appreciate that there was a clear threat to kill the complainant and his wife and to forcibly grab the property of the complainant. It is stated in the revision petition that evidence of the previous owners of the property in question could be recorded on their summoning only as they are the accused no. 2, 5 and 6 in the complaint. It is stated that impugned order dated 09.10.2017 is liable to be set aside.
11. I have heard the Ld. Counsel for the revisionist and carefully perused the record.
12. The contention of Ld. Counsel for the revisionist is that the property in question was purchased by the revisionist from Sh. Naveen Kumar Chikara ( respondent no. 2 herein) on 23.06.2012 through GPA, Agreement to Sell, Affidavit, Receipt and possession letter etc. and the complainant was in possession of the property in question and the accused persons in connivance with each other got the electricity meter installed in the said property removed from BSES. Ld. Counsel for the revisionist has contended that complainant(revisionist herein) was manhandled and CR No: 536/2017 Page No.9 of 32 DOJ 29.11.2018
-: 10 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 threatened in the police station and police has failed to take any action against the accused persons. Ld. Counsel for the complainant/revisionist has further contended that the complainant has also filed a civil suit which is pending in the court of Ld. Civil Judge, Dwarka Courts wherein contempt proceedings have also been initiated . Ld. Counsel for the revisionist has contended that the Ld. Trial Court has not appreciated that the complainant had approached the court with grievances which were criminal in nature and regarding civil dispute, civil suit has already been filed.
13. Ld. Counsel for the complainant/revisionist has raised a plea that previous owners of the property in question were not examined as have been impleaded as respondents. The complainant has initiated the proceedings on the premise that he was the owner of the property in question having purchased the same from respondent no. 2 on 23.06.2012 through GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will and Sh. Naveen Kumar Chikara (respondent No. 2 herein) had purchased the said property from accused no. 5 Sh. Amardeep (respondent no. 5 herein) through GPA, Agreement to Sell, Affidavit, Receipt and possession letter etc. and accused no. 5 had purchased the property from accused no. 6 Rajesh (respondent no. 6 herein) through GPA, Agreement to Sell, Affidavit, Receipt and CR No: 536/2017 Page No.10 of 32 DOJ 29.11.2018
-: 11 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 possession letter etc. who (accused no. 6 Rajesh) had purchased the property from Sh. P.R. Prema Chandran through GPA, Agreement to Sell, Affidavit, Receipt and possession letter etc.
14. Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers to investigate the offences. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police.
15. Section 156 reads as:
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-
CR No: 536/2017 Page No.11 of 32 DOJ 29.11.2018
-: 12 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 mentioned.
16. In Lalita Kumari v. Govt. of UP & Ors. (2014) 2 SCC 1, Hon'ble Supreme Court of India has been pleased to observe that:
(91) In Madhu Bala (supra), this court held:
6. ...............
9. ..............
10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to register a case makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable case and the Rules framed under the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of a CR No: 536/2017 Page No.12 of 32 DOJ 29.11.2018
-: 13 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the first information report and investigate into the same.
.................................... .................................... ....................................
111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry CR No: 536/2017 Page No.13 of 32 DOJ 29.11.2018
-: 14 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches CR No: 536/2017 Page No.14 of 32 DOJ 29.11.2018
-: 15 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
17. In Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 Supreme Court Cases CR No: 536/2017 Page No.15 of 32 DOJ 29.11.2018
-: 16 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 439, Hon'ble Supreme Court was pleased to hold:
12. It is further submitted that in the present case, the civil proceedings are pending between the parties where the question of genuineness or otherwise of the partnership deed is an issue. The process of criminal law cannot be used when a dispute is primarily of civil nature. Simultaneously initiation of criminal proceedings may be permitted where an offence is shown to have been committed. Thus, the Magistrate was entitled to satisfy himself as to whether any cognizable offence had been committed before proceeding further. The Magistrate was not satisfied from the material available that any cognizable offence had been committed and he rightly decided to conduct further enquiry under Section 202. Having regard to the limited nature of inquiry under Section 202 which option had been rightly chosen by the Magistrate, direction to the police to investigate and give a report was limited by the very purpose for which the limited inquiry was to be held, as against procedure for investigation in cases not covered under Section 202 of the Code. The purpose was to enable the Magistrate to decide whether there was ground to proceed further. The Magistrate having taken cognizance of the offence and the police having not CR No: 536/2017 Page No.16 of 32 DOJ 29.11.2018
-: 17 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 registered a criminal case nor the Magistrate having directed registration of criminal case, procedure and power of the police in the matter are different and in such a situation police did not have the power to arrest without permission of the Magistrate as was the view of the Gujarat and other High Courts.
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20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, it was observed: (SCC p.711 para 11) "11. The scope of Section 156 (3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the CR No: 536/2017 Page No.17 of 32 DOJ 29.11.2018
-: 18 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient . After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC , should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which , in our view, has stated no reasons for ordering investigation." The above observations apply to category of cases mentioned in para 120.6 in Lalilta Kumari. Xxxxxxxxxx xxxxxxxxxxx
22. Thus, we answer the first question by holding that:
22.1. 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 the issuance 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 CR No: 536/2017 Page No.18 of 32 DOJ 29.11.2018
-: 19 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2 The 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 para 120.6 in Lalita Kumari may fall under Section
202. 22.3 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.
Xxxxxxxxxxxxxx xxxxxxxxxxxxxx
32. We now come to the last question whether in the present case the Magistrate ought to have proceeded under Section 156(3) instead of Section 202. Our answer is in the negative. The Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate CR No: 536/2017 Page No.19 of 32 DOJ 29.11.2018
-: 20 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction. This Court has cautioned against such abuse.
33. In Indian Oil Corpn v. NEPC India Ltd., it was observed: ( SCC pp. 748-49,para 13) "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and CR No: 536/2017 Page No.20 of 32 DOJ 29.11.2018
-: 21 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 discouraged. In G. Sagar Suri v. State of UP this Court observed: ( SCC p. 643, para 8) '8. ......It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
34. In Pepsi Foods Ltd. v. Judicial Magistrate, it was observed: ( SCC p. 760, para 28) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature CR No: 536/2017 Page No.21 of 32 DOJ 29.11.2018
-: 22 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
18. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted.
19. Even though Section 156 (3) Cr.P.C. empowers the Magistrate to issue directions to the police to register the FIR but this provision cannot be permitted to be misused by the complainant and the Magistrate is to apply his mind to the fact of each case before passing orders under Section 156 (3) Cr.P.C. and not to act in a CR No: 536/2017 Page No.22 of 32 DOJ 29.11.2018
-: 23 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 mechanical manner.
20. In M/s Skipper Beverages Pvt. Ltd., Vs. State, 2001 IV AD Delhi 625, Hon'ble High Court of Delhi was pleased to hold:
7. 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 interests of justice demand that the police should step in to held the complainant.
The police assistance can be taken by a Magistrate even 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 20001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya CR No: 536/2017 Page No.23 of 32 DOJ 29.11.2018
-: 24 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 Pradesh & Ors."
8. In case Arvindbhai Rajivbhai Patel Vs. Dhirubhai Sambhubhai reported in 1998(1) Crimes 351, an Hon'ble Judge of 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 accusations.
9. In the case in hand the allegations in regard to the theft of the cheque could be proved by oral or other evidence. The allegations regarding the forging of the cheque by typing out certain portions therein could also be proved by summoning the original cheque from the bankers and leading required evidence. Therefore, it was not at all a case where the police assistance was required for breaking the case and discovering some evidence which the complainant was unable to collect of his own. This Court, therefore, is of the considered view that learned Trial Judge was justified in declining the request CR No: 536/2017 Page No.24 of 32 DOJ 29.11.2018
-: 25 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 of the complainant to issue directions to Police under Section 156(3) of the code as prayed.
21. The complainant/revisionist has raised the plea that previous owners were not examined as they have been impleaded as respondents. Ld. Trial Court has observed in the impugned order that no witnesses were examined to fortify the genuineness of the title documents which have not been exhibited or marked in the pre-summoning evidence by the complainant.
22. Section 91 of the Evidence Act provides:
when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
23. Section 92 of the Indian Evidence Act provides:
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been CR No: 536/2017 Page No.25 of 32 DOJ 29.11.2018
-: 26 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 proved according to the Section 91 of the Indian Evidence Act, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
24. Although the complainant has pleaded that he is the owner of the property in question having purchased the same from Sh. Naveen Kumar Chikara (respondent no. 2) but the complainant has only adduced oral testimony in order to claim his ownership on the property in question and he has not proved the documents of his title in accordance with law
25. Ld. Counsel for the revisionist has raised the plea that in the criminal case Ld. Trial Court was not to look at the title of the property but was to consider that the cheating has been committed on the revisionist. It is to be noted that for proving the contents of cheating also, it was incumbent upon the revisionist to prove the documents which were allegedly executed in his favour by the alleged seller of the property thereby transferring the title of the property in favour of the revisionist. The revisionist was further required to prove that the said documents did not actually confer any title on him as the said documents were sham and the wrongful loss has been caused to him and wrongful gain to the alleged CR No: 536/2017 Page No.26 of 32 DOJ 29.11.2018
-: 27 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 seller of the property. But the revisionist has not adduced evidence in accordance with law in order to corroborate the contention of having wrongful loss been caused to him and wrongful gain to the alleged seller of the property in question.
26. In the impugned order dated 09.10.2017, Ld. Trial Court has been pleased to observe :
It is noteworthy that complainant did not mark or exhibit any title document in his entire pre summoning evidence. It is further noteworthy that an FIR no. 70/17, PS BHD Nagar is already pending against the complainant in respect of which status report was called by Ld. Predecessor of this court, in which it was mentioned by the IO that accused no. 1 is the complainant in the said FIR and the complainant of the present case has been released on anticipatory bail in the aforesaid FIR which implies that a criminal case in respect of the aforesaid plot is already pending against the complainant. The complainant did not examine any previous owner as mentioned in the chain of title documents in his evidence in the present case nor examined any independent witness to fortify the genuineness of the title documents which have not been exhibited or marked in the pre- summoning evidence by the complainant. The entire issue appears to be of the dispute regarding the ownership and title of the plot in question which tantamounts to a dispute of civil CR No: 536/2017 Page No.27 of 32 DOJ 29.11.2018
-: 28 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 nature.
Here, I would like to refer Mohd. Ibrahim and Ors. Vs. State of Bihar and Ors. ( Crl. Appeal no. 1695 of 2009, Supreme Court) wherein the Hon'ble Apex Court observed that there is a growing tendency of the complaints attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously, either to apply pressure on the accused or out of enmity towards the accused or to subject the accused to harassment. It was further observed that the criminal courts should ensure that proceedings before it are not used for settling the scores or to pressurize parties to settle civil disputes.
Hence, after scanning the entire record, there is no iota of cogent evidence on record to suggest any offence of cheating or forgery by the accused persons against the complainant and since it is a case where there are parallel set of title documents existing in favour of accused no. 1 also, therefore, it cannot be said that the accused persons trespassed or committed mischief in the aforesaid plot and thus, the present complaint does not inspire any confidence and is devoid of any merits so as to constitute any prima facie case for summoning of the accused, hence, the present complaint case stands dismissed.
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-: 29 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017
27. The scope of exercise of revisional jurisdiction has been considered by Hon'ble Supreme Court in Chandra Babu alias Moses v. State and others (2015) 8 SCC 774 and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC
123.
28. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774, the Hon'ble Supreme Court of India has been pleased to observe that:
11. First, we shall dwell upon the issue whether the High Court, in exercise of the revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation. In fact, he has noted certain facts and deduced certain conclusions, which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, CR No: 536/2017 Page No.29 of 32 DOJ 29.11.2018
-: 30 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 the power is required to be exercised so that justice is done and there is no abuse of power by the Court. [see Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460].
29. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the Hon'ble Supreme Court of India has been pleased to observe that:
14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-
consideration 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. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is CR No: 536/2017 Page No.30 of 32 DOJ 29.11.2018
-: 31 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 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.
30. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774 and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the Hon'ble Supreme Court has been pleased to hold that revisional jurisdiction should be exercised cautiously and normally, a revisional jurisdiction should be exercised on a question of law and the finding of the court is not to be interfered unless the same 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.
31. Looking at the nature of allegations as made in the complaint filed before Ld. Trial Court, I am of the view that judicial discretion has been exercised by Ld. Trial Court properly and in accordance with provisions of law. I find no infirmity in the impugned order dated 09.10.2017. The revision petition is devoid of merits and same is CR No: 536/2017 Page No.31 of 32 DOJ 29.11.2018
-: 32 :- Satish Kumar Vs. P. Anand Rao CR No: 536/2017 dismissed.
32. TCR be sent back to the court concerned along with copy of this judgment. Revision file be consigned to record room.
Announced in the open (HARISH DUDANI) Court today on 29.11.2018 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed HARISH by HARISH
DUDANI
DUDANI Date: 2018.11.29
14:52:52 +0530
CR No: 536/2017 Page No.32 of 32 DOJ 29.11.2018