Delhi District Court
Cri. Rev. No.157/14 vs M/S Orion Infrastructure Ltd on 26 September, 2015
Cri. Rev. no.157/14
Smt. Neeta Sarda v. M/s Orion Infrastructure Ltd.
26.09.2015
Pre: Ld. APP for the State.
Clerk of the revisionist.
File perused, vide separate detailed order placed along side in
the file, in the pursuits and objects of justice and to meet the legitimate
expectations, the impugned order dated 13.10.2014 is set aside with the
direction to pass afresh order taking into consideration the citation Lalita
Kumari v. Govt. of UP & Ors. IX (2013) SLT 1. Accordingly, revision
petition stands disposed of accordingly. Trial Court record, if any be sent
back with a copy of the order.
Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS, NEW DELHI
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (03) , PATIALA HOUSE COURT, NEW DELHI
Criminal Rev. No.157/14
IN THE MATTER OF :
Smt. Neeta Sarda
w/o Ghanshyam Sarda
r/o 243-244, West End Marg,
Kohinoor Marg, Saiduljab, New Delhi.
..............revisionist
Versus
1.M/s Orion Infrastructure Ltd.
having its office at 70 Gold Links,
2nd Floor, New Delhi.
2.Mr. Govind Sarda s/o Lt.Shiwlal Sarda,
3.Mr. Aditya Sarda s/o Sh. Govind Sarda
4.Smt. Shanta Sarda w/o Govind Sarda
5.Sh. Amit Sarda s/o Govind Sarda
6.Manish Kumar Aggarwal,
Company Secy.
7.Bibha Nand Jha s/o Nitya Nand Jha
8.Dinesh Sarda, CA.
9.Mr. Gopal Dwarkani
10.M/s R K Solutions Pvt. Ltd.
................Respondents
26.09.2015
ORDER
1. This revision petition is directed against the order dated 13.10.2014 passed by ld. Trial Court (hereafter referred as impugned order) whereby ld. trial court dismissed the application of the revisionist moved u/s 156 (3) Cr. PC and fixed the case for pre-summoning evidence. Ld. Trial Court also kept pending application of the respondent, which was moved u/s 340 Cr. PC against the revisionist.
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2. Briefly the factual matrix of the case is that revisionist and her husband were Directors in M/s Orion Infrastructure Ltd. On or about 27.04.2009, the respondents in collusion have forged the Digital Signature Certificate (DSC) of the Complainant thus removed her and her husband from the Board of Directors. The stake of the revisionist, in the Company, was reduced. new Directors were appointed and majority shareholding of the Company was increased.
3. In the background of the above facts, Complaints to the Registrar of Companies were made. She also made a Complaint dt. 04.08.2009 to DCP Crime Branch with copy to the SHO, PS Tughlak Road, New Delhi. In the said Complaint, no allegation against M/s R.K.Solutions Pvt.Ltd was levelled. The revisionist / complainant again made Complaints dt. 19.11.2013 and 25.03.2014 to the SHO, PS Tughlak Road. Interestingly, again no allegation has been leveled against M/s. R. K. Solutions Pvt. Ltd in these Complaints. Thereafter, revisionist / complainant then filed an application dt. 27.05.2014 u/s 156(3) Cr.P.C. before the Ld. C.M.M. Patiala House. The said application was assigned to the court of Shri Dhiraj Mittal, Ld M.M. Patiala House.
4. The Ld. Trial Court vide order dt. 13.10.2014 dismissed the application moved u/s 156 (3) Cr. PC and posted the matter for pre-summoning 3 evidence on 23.12.2014. Feeling aggrieved with the impugned order dated 13.10.2014 ld. Counsel filed the revision petition.
5. Arguments were heard. During the course of arguments ld. counsel for the revisionist submitted that revisionist had filed a Complaint under Section 177/406/420/465/469/471/ r/w sections 34 & 120-B of IPC with the Tuglak Road Police Station, showing cognizable offences of serious nature committed by the named accused persons in complaint alongwith Complaint few of the documents were filed, which as per the Police are necessary to be filed to consider the offences as cognizable offences. He further argued and submitted that revisionist's / Complainant's signatures have been forged on many documents. A forged digital signature of the Complainant has been manufactured by the respondents and have been used to make wrongful gains, which admittedly is with respondent. Remaining documents are also still with the respondents as per the ATR dated 04.06.2014. In spite of requisition of Police, the respondent did not deliver the forged digital signature to I.O. but removed the evidence from the Jurisdiction of this Hon'ble Court to Gujarat. He further argued and submitted that revisionist then filed a petition under Section 156(3) of Cr. P. C. before the Ld. M.M. who by relying upon a judgment reported in Subharkarah Luharka Vs. State DoD 09-07-2010 delivered in Crl. 6122/2005, passed by single judge of Delhi High court in the year 2010, dismissed the petition under Section 156(3) of Cr. P. C. The Revisionist filed Revision 4 Petition before this Hon'ble Court on the following grounds that the Judgment of "Lalita Kumari" will prevail & should have been considered by the court below than the judgment reported in 'Subharkarah Luharka. In Lalita Kumari Vs. Government of Uttar Pradesh & Ors.' reported in MANU/SC/1166/2013, the Hon'ble Supreme Court of India has inter alia held that :
"......
111. In view of the aforesaid discussion, we hold:
111.1. 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.
111.2. 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.
111.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry 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. 111.4. 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. 111.5. 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.
......."
6. Ld. counsel for the revisionist again submitted that the Digital Signature forged & fabricated without knowledge, consent and/or permission of Complainant is still in possession of the accused. The original documents which are required by the Complainant to prove the case, are not and cannot be with the Complainant and the same are admittedly in possession of the respondents and respondents are not providing & will not provide the same, and it is the police only which can search & seize 5 such evidence & file in the court. The revisionist / Complainant do not possess sufficient documents to the prosecution consisting of serious offences and in lack of evidence the case would suffer. Admittedly when the Police asked to produce the original record of documents with regard to the revisionist / complaint i.e. application form along with its enclosures (address and identity proof) submitted for issuing duplicate DSC of the Complainant., the accused no.10 informed that they have sent the same to Gujarat outside the jurisdiction of this Hon'ble Court and inspite of demand by the Police, the Accused no.10 did not provide to the Police, can be evident from the ATR dated 04.06.2014. Such evidence are required to be digged out by search and seizure by the Police, and if accused won't cooperate, by interrogation only.
7. Ld. counsel for the revisionist again submitted that the revisionist could anyhow collect photocopies of 5 or 6 documents (i.e. Annexure- A-1 (Colly) to Annexure-A4), but those documents are not sufficient to prove the complainant's case. This would be wrong approach by the court that merely because the Complainant produced few documents, the matter became liable to be referred for Trial on evidence. Revisionist / Complainant anyhow manage to get few documents that don't mean that FIR would not be registered at all and the Magistrate mechanically relegate the matter for Trial on evidence.
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8. Ld. counsel for the revisionist again argued and submitted that it is important to note here that M/s R K Solutions Pvt Ltd / Respondent No. 10 during the arguments submitted that since 2007 they have issued the DSC under Class-II and Class-III DSC and for Clause-III Digital Signature, the person whose digital signatures are being made is required to personally come to the office while for Class-II Digital Signature, the person whose digital signature are being made is not required to come personally to the office and the same being issued to the Applicant's representative merely by submitting the required documents such as VAT Return, Income-Tax Return, ROC filing, Tenders etc. and the case of the Applicant is proved that accused persons applied the digital signatures without permission, knowledge and/or consent with the office of Resp. No.10 and Resp. No.10 in a collusion and conspiracy with other accused persons and without verification of the genuinety of the Application form had provide and create the forged and manufactured the Digital Signature.
9. Ld. counsel for the revisionist again submitted that allegations & counter allegations against each other of forgery & fabrication of document already registration of one FIR by the same Police Station on the basis of a complaint of one of the accused on similar allegations are sufficient grounds for the Police to investigate, since such case cannot be prove by a party by their own evidence and when already registered FIR of one of the contesting party.
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10.Ld. counsel for the revisionist again submitted that admission by M/s R. K. Solutions Pvt. Ltd. (respondent no.10) at page 63 "that they would revoke the certificate" is ground for investigation as to who got the revisionist / complainant's signature prepared, & then who used it & where and in what manner the same has been used. Why the accused no.10, who is the agent (LRA) of M/s. (N) Code Solutions- A Division of Gujarat Narmada Valley Fertilizers Company Ltd., which is a licensed certifying authority under the IT Act for issuance of digital signatures to various clients, corporate and individuals. The Resp. No.10 has done inaction on the part of who submitted the application form for obtaining of duplicate digital signature in the name of the Complainant alongwith required enclosures who are forged, fabricated and/or manufactured and who got applied the same in the office of Resp. No.10 and who paid the fees of applying digital certificate in the name of the Complainant and to whom Resp. No. 10 handed-over the duplicate digital signature. The documents at page 62 to 67 warrants investigation by Police as to who are these people involved in fabricating & forging documents & signature and procuring & misusing the same resulting illegal acts.
11.Ld. ld. counsel for the revisionist further elaborating his arguments submitted that the Police is also required to investigate the following evidences:-
a. Who prepared the Form-32 and using the DSC obtained through fraud in the name of the Complainant without 8 permission, Knowledge and/or consent.
b. Who upload the certain forms using duplicate DSC on ROC website for appointment and removal of the Directors of Resp. No.1 Company.
c. On what basis, Company Secretary and Chartered Accountant certified the forged and fabricated DSC of the Complainant.
d. Which File Transfer Protocol (FTP) were used for uploading of said Form-32 and transmission of Form 32 to ROC server. e. To trace out the accused persons responsible for illegal filing of the said form no. 32 using a particular Internet Protocol (IP) address assigned to every internet user and computer system used for uploading the same to Ministry of Corporate Affairs since IP address is assigned to every computer participating on the internet to uploading a particular file/data and information. It is possible to trace these address backward to expose the individual behind the Computer to fulfill their illegal objective and gain wrongfully and cause wrongful loss to the complainant.
12.Ld. counsel for the revisionist again argued and submitted that pendency of any litigation between the parties at Company Law Board do not mean that Criminal case will not continue or investigation will not be made in respect of serious criminal offences of forgery, fabrication of documents etc. (K.G. Premshanker Vs. Inspector of Police and Anr, reported in (2002) 8 SCC 87 & P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu reported in (2008) 5 SCC 765). On these grounds, ld. counsel for the revisionist submitted that it is a fit case where this Hon'ble Court may be pleased to direct for Registration of F.I.R. by setting aside the impugned order dated 13.10.2014.
13.Contrary to it, ld. counsel for the respondent no.1 to 9 submitted that this Revision Petition filed by the revisionist is not maintainable as the order impugned dismissing the Application U/s 156(3) of Cr.P.C is 9 an Interlocutory Order. Ld. counsel for the respondents again submitted that revisionist with ulterior motives, dishonest reasons and as an afterthought has filed a frivolous and concocted Complaint U/s 200 Cr.P.C. alongwith an application U/s 156(3). The complaint has been lodged as a Counter blast to the Complaint dated 09.03.2009 lodged by Respondent No. 1 against the revisionist , her husband and others who conspired with her. Police has registered an F.I.R No. 55 of 2014 U/s 420,468/471/120B of the Indian Penal Code, PS-Tughlak Road.
14.Ld. counsel for the respondents again submitted that Judgment of Lalita Kumari Vs Govt. of U.P. & Ors. is not applicable to the facts of the present case. In the said case the Hon'ble Supreme Court was dealing with the provisions of Section 154 of Cr.P.C which contains the mandatory word "shall" whereas the language of Section 156(3) contains the word "may". The language of the Section clearly implies that the magistrate is not bound to give directions u/s 156(3). The Power of the magistrate to give directions U/s 156(3) is discretionary. Once all the Evidence is well within the reach of the complainant, then in view of the judgment of Subharkarah Luharka Vs. State and M/s Skipper Beverages it is deemed appropriate to direct the Complainant to proceed U/s 200 of the Cr.P.C. Ld. counsel for the respondents again submitted that revisionist again has not been able to show any infirmity in the Order impugned whether legal or factual. It is a settled law that when the complainant is in possession of the entire evidence then the 10 court may direct the complaint to be registered Under Section 200 Cr.P.C. As per the judgement in Subharkarah Luharka Vs. State it has been held by the Hon'ble High Court that:
"if the evidence is within the reach of the complainant and no investigation by the Police is required, the magistrate should ask the complainant to lead the evidence rather than giving directions to the Police for registering the F.I.R U/s 156(3) Cr.P.C. The directions to the police to register an FIR have serious consequences as it gives the power to the police to arrest the accused."
15. Ld. counsel for the respondents again argued and submitted that the revisionist in the present case is in possession of the alleged evidence and documents. These documents have been filed before this Hon'ble Court. Hence the Court below is legally correct in directing the revisionist to proceed U/s 200 of the Cr.P.C. In support his contentions ld. counsel for the respondent no.1 to 9 relied upon the judgment of Hon'ble Delhi High Court in the case of M/s Skipper Beverages while deciding the aforesaid proposition has held as follows:-
Para 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".
16.Ld. counsel for the respondent no.1 to 9 further argued and submitted that revisionist has falsely alleged that he fears further misuse the 11 Digital Signature Certificate (DSC). However on the contrary vide letter dated 24.07.2009 the DSC's has been cancelled by the revisionist and hence there is no fear the same being misused. The revisionist has falsely alleged in his complaint that the ID of the person whose phone number has been given has to be ascertained. On the contrary vide letter dated 04.08.2009 revisionist states that the said phone number belongs to one Sh. Gopal Das Dwarkani who is Respondent No. 9. The revisionist along with her husband and other persons has committed an act of forgery and fabrication. This complaint has been lodged just to create an Alibi.
17.Ld. counsel for the respondent no. 1 to 9 again submitted that the present Complaint has been filed after inordinate delay of more than 4 years and no explanation whatsoever has been given by the Complainant. The ATR dated 4th June 2014 sums up the entire dispute. This is a completely frivolous litigation which is being pursued to create undue pressure on the respondent. Ld. counsel for the respondents again submitted that the revisionist is an outsider and she has filed the complaint against the Company who is the Respondent No.1 in the Revision Petition. On the contrary the FIR No. 55 dated 10.05.2014 has been got registered by the company against the revisionist . This establishes that the revisionist has adverse interest towards the company and wants to malign the image and status of the Company and its prominent members. On these grounds, ld. counsel for the 12 respondent no.1 to 9 submitted that Criminal Revision filed by the revisionist is liable to be dismissed.
18.Ld. Counsel for the respondent no.10 submitted that u/s 156(3) Cr.P.C. the Magistrate is empowered to direct the police to investigate the offence. The word `may' is used in the said Section by the legislature means that it is the discretion of the Ld. Magistrate either to direct the police to investigate or to take the cognizance of the offence. Justifiable in the above matter, the Ld. Magistrate took the cognizance and posted the matter for pre-summoning evidence relying upon the judgment of Hon'ble Delhi High Court in a case titled as "Subharkarah Luharka vs. State" . The Ld. Magistrate has also referred to S.202 Cr.P.C. stating that if required investigation can also be directed later on u/s 202 Cr.P.C. Ld. counsel for the revisionist again submitted that u/s 397/399 Cr.P.C. the Session Court has the power to entertain a Revision Petition to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of any proceedings of such inferior court. Ld. counsel for the respondent no.10 submitted that the Magistrate can give direction for investigation u/s 156(3) Cr.P.C. Since it is not mandatory on part of the Magistrate that he must give direction for registration of FIR / Investigation, hence, the order passed by Ld. M.M. is legally correct. 13
19.Ld. counsel for the respondent no.10 further elaborating his arguments submitted that in the Revision Petition u/s 397/399 Cr.P.C. the Revisional Court is to see the correctness, legality or propriety of the impugned order. The Revisionist/ Complainant has not explained in the Petition that how the impugned order is illegal, incorrect and improper. In the Revision Petition, the Revisional Court is to examine the order to ascertain its legal validity. The Revisional Court shall not examine the facts but is to examine the legality of the Order.
20.He further argued and submitted that u/s 154 Cr.P.C. the Complaint of a cognizable offence is required to be made to the Officer in-Charge of Police Station. If, the SHO does not register an FIR, then the aggrieved person (Complainant) may send the Complaint in writing to the Superintendent of Police (DCP). It is interesting to note that in the present case, the Complainant though made Complaints to SHO, PS Tughlak Road on 19.11.2013 and 25.03.2014 but when SHO did not register the FIR, the Complainant failed to approach the DCP. Thus, the mandatory steps required u/s 154 Cr.P.C. has not been completed by the Complainant. Though four years back i.e. on 04.08.2009, Complainant made a Complaint to DCP with copy to SHO but thereafter the Complainant took no steps further in these many years to get an FIR Registered. This itself reflects that the requirement of the FIR was not needed in the present case.
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21.Ld. counsel for the respondent no. 10 again submitted that the Complaint dt. 19.11.13 to SHO Tughlak Road also mentions that with respect to the same issue, the husband of the Complainant has opted for a civil remedy by filing a suit for partition. The Hon'ble Delhi High Court in the under mentioned Judgments has said that where the civil suit is filed first then FIR registered on the same facts, the proceedings in the FIR be stayed till the decision in the civil suit.
22.Ld. counsel for the respondent no.10 again submitted that in '55 (1994) DLT 404' it has been observed that --- Civil Suit pending - Complaint u/s 420/468/471/474 IPC - issues also involved in the civil suit - Complaint premature and improper - Whether Complaints filed amounts to abuse of process of the court ? - (Yes). In another case '20 (1981) DLT 114' - Criminal Trial - Dispute Primarily of civil nature - Dispute not to be made the subject matter of criminal prosecution. In 1996 RLR 116 (Delhi) - If civil suit is filed first then FIR is got recorded on the same facts, Crimiinal Proceedings may be stayed till the decision of the civil suit as the decision in latter may have effect on the former.
23.Ld. counsel for the respondent no.10 further argued and submitted that the Status Report dt. 04.06.2014 filed by SI Yogendra Kumar, Police Station Tughlak Road states that the matter is pending with Company Law Board, New Delhi. Here it is interesting to note that on the same facts a civil suit and proceedings before Company Law Board 15 are pending. Now the Complainant opted the pressurizing tactics to get an FIR registered on the same facts thereby intending to convert civil remedy into a criminal one.
24.Further, ld. counsel for the respondent no.10 submitted that the Revisionist wrote letter dt. 21.07.2009 to Shri Tarun Batra of M/s. R.K.Solutions Pvt.Ltd. requiring information within 7 days, failing which the Revisionist shall assume that M/s. R.K.Solutions Pvt.Ltd is in connivance with other accused persons who are involved in such illegal activities. The M/s R.K.Solutions vide reply dt. 24.07.2009 enclosed the copy of documents submitted to them to make DSC alongwith copy of delivery challan with phone number. Vide this reply, M/s R.K.Solutions has expressed their surprise about the Revisionist's signatures to be forged and asked the Revisionist, that if she requires, the certificate can be revoked so that it cannot be used any further. M/s. R.K.Solutions Pvt.Ltd, has also expressed their desire to cooperate with the Revisionist in all respects.
25.Ld. counsel for the respondent no.10 i.e. M/s. R.K.Solutions Pvt.Ltd submitted that respondent no.10 is the agent (LRA) of M/s.(N) Code Solutions - A Division of Gujarat Narmada Valley Fertilizers Company Ltd, which is a licensed certifying authority under IT Act for issuance of digital signatures to various clients, corporates and individuals. M/s. N Code Solutions has appointed Respondent No.10 as their agent vide a 16 written agreement. M/s. N Code Solutions has its office at Ahmedabad. The Respondent No.10 is into this business since 2007. Respondent No.10 issues Clause-II and III Digital Signature Certificate. For Clause- III Digital Signature, the person whose digital signatures are being made is required to personally come to the office of Respondent No.10. For Clause-II Digital Signature, the person whose digital signatures are being made is not required to come personally to the office of Respondent No.10 but the application form alongwith documents are only sent to the office of Respondent No.10 for issusance of digital signatures certificate. The digital signatures are required for various purposes such as VAT Return, Income-Tax Return, ROC Filing, Tenders etc.
26.Ld. counsel for respondent no.10 again submitted that so far as the present matter is concerned, the staff of Respondent No.10 has received the application form with documents for issuance of Digital Signatures of Neeta Sarda (Complainant). On the basis of the said application and documents, Respondent No.10 made digital signatures of Neeta Sarda and handed over the same to the said staff of Neeta Sarda who has brought the application and documents. The Respondent No.10 has charged his fee of Rs.1,850/- only for making the digital signatures. He further submitted that when revisionist / Complainant wrote letter dt. 21.07.2009 to Respondent No.10 asking for documents, Respondent No.10 gave reply with all documents. Had Respondent No.10 been 17 guilty, why would he give reply and documents? Such conduct of Respondent No.10 shows him not guilty. Further more, Respondent No.10 did not made any wrongful gain by making the above digital signatures. He only followed the procedure by issuing Class - II digital signature.
27.Ld. counsel for the respondent no.10 again argued and submitted that by no stretch of imagination, Respondent No.10 can be said to be in criminal conspiracy with other Respondents to get the Complainant and her husband removed from the Board of Directors. The Respondent No.10 has nothing to do with M/s.Orion Infrastructure or its Directors. How could Respondent No.10 knows the intention of the Directors of M/s.Orion Infrastructure in getting made the digital signatures. On these grounds, ld. counsel for the respondent no.10 submitted that Revision Petition of the revisionist be dismissed with cost and Direct the deletion of Respondent No.10 from the array of Respondents.
28.I have also gone through the judgment Lalita Kumari v. Govt. of UP & Ors. IX (2013) SLT 1, wherein it has also been observed that:-
"39) Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a 18 cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 'Shall' :
40) The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence.
41) In Khub Chand (supra), this Court observed as under:
"7...The term "shall" in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations..."
42) It is relevant to mention that the object of using the word "shall" in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law.
43) Investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.
44) Therefore, the context in which the word "shall"
appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word "shall" used in Section 154(1) needs to be given its ordinary meaning of being of "mandatory" character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction."
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29.I have given careful consideration to the submissions of ld. counsel for the revisionist and ld. counsel for the respondents no.1 to 10. I have also perused the impugned order dated 13.10.2014. For the sake of brevity and convenience let the relevant portion of impugned order be re-produced verbatim, which is as follows:-
".........
Even in the judgment relied upon by the Ld. Counsel for the complainant, there is no such observations of the Apex Court that the Magistrate is bound to give directions to the police for registration of FIR, when an application u/s 156 (3) Cr. PC is moved. .......... .............. ..............
In view of this discussion, the application u/s 156 (3) Cr. PC is dismissed and the complainant is granted an opportunity to lead pre summoning evidence to substantiate the allegations made in the complaint.
The complainant will lead the pre summoning evidence on the next date of hearing.
There is an application moved by M/s Orien Infrastructure Ltd. u/s 340 Cr. P.C. for taking action against the complainant. The application moved u/s 340 Cr. PC is kept pending and as per the settled law, the same will be considered on conclusion of the proceedings of the present complaint case.
Put up on 23.12.2014 at 10:00 AM for pre summoning evidence."
30.The main argument of ld. counsel for the respondents is that the impugned order is an interlocutory order, is not sustainable precisely for the reasons that the process with regard to the application filed u/s156 (3)Cr.PC is complete, therefore to my view it is not an interlocutory order but it is intermediate order. As regards, the observations of ld. MM that the application filed u/s 156(3)Cr.PC does not disclose any cognizable offence and coupled with the facts that the evidence is within the reach 20 of the complainant and the same can be produced during the course of pre-summoning evidence, is also not sustainable precisely for the reasons that it has been observed in the judgment 'Lalita Kumari v. Govt. of UP & Ors' that the FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty. It has also been observed that investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. The determination of the fact is exclusive domain of the original court of jurisdiction yet this court has limited jurisdiction to enter the area of discretion of Ld. M.M. on the ground of propriety and correctness. It is evident from the record that the digital signature of the revisionist allegedly have been used to file the form no. 32 using a particular Internet Protocol (IP) address assigned to every internet user and computer system used for uploading the same to Ministry of Corporate Affairs since IP address is assigned to 21 every computer participating on the internet to uploading a particular file/data and information. It is possible to trace these address backward to expose the individual behind the Computer to fulfill their illegal objective and gain wrongfully and cause wrongful loss to the complainant. Therefore, taking note of this fact and having gone through the judgment Lalita Kumari v. Govt. of UP & Ors. discussed [supra], and in the pursuits and objects of justice and to meet the legitimate expectations, the impugned order dated 13.10.2014 is set aside with the direction to pass afresh order taking into consideration the citation Lalita Kumari v. Govt. of UP & Ors. IX (2013) SLT 1. Accordingly, revision petition stands disposed of accordingly. Trial Court record, if any be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 26.09.2015 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS, NEW DELHI 22