Delhi District Court
Ajay Kumar Vyas vs State on 24 July, 2012
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , DELHI.
Criminal Revision No. 259/2/12
Ajay Kumar Vyas
s/o Late Shri Devki Nandan Shastri
R/o 19/54B, Tilak Nagar,
New Delhi - 110018.
........Revisionist
Versus
State
CC No.383/1
PS Tilak Nagar
........Respondent
24.07.2012
ORDER:
1. By this order I shall dispose of the revision petition filed by the revisionist under section 397 Cr.P.C. against the order dated 20.01.2012 passed by the ld. MM, Delhi whereby the application u/s 156 (3) Cr. PC has again been dismissed in complaint case no.
383/1, PS Tilak Nagar.
2. Briefly facts of the case are that a revisionist had filed a complaint case u/s 200 Cr.PC along with an application under section 156 (3) Cr. PC against four persons namely 1.Suresh Malik, 2.Loknath Luthra, 3.Gulshan Maken and 4. Sita Ram for the offences u/s 468/471/420/ 120B & 34 IPC on the grounds that in the early 1970, the construction of Sanatan Dharam shopping complex was started Page 1 of 24 and in the year 1974, it took its final shape. Late Sh. Devki Nandan Shastri, who was the president of Sanatan Dharam mandir Sabha, was the mentor behind the construction of the shopping complex so as to generate regular income for the Sabha and recognizing his allegiance to the Sabha, a shop bearing no. B21 was alloted to Late Sh. Devki Nandan Shastri, who started paying rent to the Sanatan Dharam Mandir Sabha. After his demise, late Smt. Raj Dulari, wife of late Sh. Devki Nandan Shastri suceeded to the tenancy rights and used to pay rent to Sanatan Dharam Mandir Sabha. During the lifetime of Smt. Raj Dulari, the said shop was partitioned in four parts and only one part was retained by Smt. Raj Dulari. She started running a 'dhaba' with the help of one Lok Nath Luthra at the said shop and used to get the share from the income of 'dhaba' as per their interse arrangements.
3. After demise of Smt. Raj Dulari, the complainant succeeded to the tenancy rights of her mother. The arrangement of sharing profit out of 'dhaba' business continued between the revisionist and Lok Nath Luthra. Finally, the revisionist decided to wrap up the 'dhaba' business, and accordingly asked the tenant to vacate the premises.
However, on or about 3rd week of July 2009, he saw a new electricity Page 2 of 24 meter installed at the shop of his tenant. It raised his eyebrows as there was one electricity meter for all the portions of shop no. B21.
He enquired about the same from the tenant, who told him that the meter had been installed at the instance of Chairman Suresh Malik.
Lateron, it came to know of the revisionist that Suresh Malik had inducted Lok Nath Luthra as the tenant of Sabha by issuing NOC and also by accepting rent from him on behalf of Sabha. It has been alleged that Suresh Malik took huge amount of money in the form of "Pagdi" i.e. advance from Sh. Lok Nath Luthra to accept him as the tenant of Sabha in order to create cloud over the tenancy rights of the revisionist. Having aggrieved due to the act of the chairman namely Suresh Malik, revisionist has filed the complaint u/s 200 Cr. P. C. along with an application u/s 156 (3) Cr.PC before ld. Trial Court.
The Ld. Trial Court after following the due course of law dismissed the application under section 156 (3) Cr.P.C. of the revisionist, vide order dt. 22.09.2011. Feeling aggrieved with this order, revisionist had come before this court. Earlier, the order of ld. Trial court was set aside by this court vide order dated 12.01.2012 with the directions to pass fresh order in light of the judgments relied upon by the ld.
Counsel for the revisionist. Thereafter, ld. Trial court again heard the arguments of ld. Counsel and after going through the judgments Page 3 of 24 as relied upon by the ld. Counsel for the revisionist, again passed the impugned order dated 20.01.2012, and dismissed the application of the revisionist filed u/s 156 (3) Cr. PC again. ld. Trial court has fixed the case for presummoning evidence. Hence, feeling aggrieved with the impugned order dt. 20.01.2012, the revisionist filed the present revision petition for setting aside the impugned order passed by Ld. MM and seeks order to issue directions to concerned SHO for registration of FIR under appropriate provisions of law on the grounds that impugned order passed by Ld. MM is bad both in law and in the facts of the present case and suffer from illegality incorrectness and impropriety. Ld. counsel argued and submitted that a report was called for by the ld. MM from police station and it was revealed in the report dt. 05.09.2011 given by SHO that revisionist's right of tenancy has been violated without due process of law and he reported that certain documents are to be verified. Ld. counsel for the revisionist further argued and submitted that despite this fact ld. trial court dismissed the application filed u/s 156 (3) Cr.
PC. Ld. counsel again submitted that ld. trial court has failed to properly apply the law enunciated by Hon'ble Supreme Court that in the cases the complainant discloses the cognizable offence, the police is under statutory obligation to register the FIR and in case the Page 4 of 24 police refuse to perform its statutory duty, the Magistrate may be well justified in sending the complaint under Section 156 (3) Cr. PC to the police for investigation. Ld. counsel for the revisionist also submitted that ld. trial Court has failed to take note of the fact that the judgment relied by the Magistrate is per in curium in as much as the same does not state the correct law and has not followed the dictum of law laid down by the Hon'ble Supreme Court in several judgments. Ld. counsel for the revisionist also submitted that ld. trial court by not directing the investigation under section 156 (3) Cr. PC gives a long rope to the police to act on its whims and caprices and fosters illegality of inaction by the police in registration of information of cognizable offences. It is not permissible for any Magistrate under the Code to act contrary to the provisions of the Code. Ld. counsel further argued and submitted that ld. trial court completely erred in rejecting prayer under section 156 (3) Cr. PC for investigation and further Magistrate ought not saddle himself with the additional burden by discharging the function of police as crime prevention and crime detection is the primary and foremost duty of the later and so it must be left to it to perform this part of his duty. Ld. counsel again submitted that ld. Magistrate outstepped the confines of his jurisdiction by rejecting the prayer for investigation of the case under Page 5 of 24 section 156 (3) by concluding that the fact of the present case are on the border line of criminal and civil dispute. It is no longer resintegra that investigation is the province of the police and not of Magistrate what cases are to be investigated and what are not to be investigated.
In support of his contentions he has relied upon the following citations:
i) Ramesh Kumari Vs State (NCT of Delhi) & Ors. 2006 I AD (Cr.) SC 505 wherein it has been observed that : "That the Police Officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code are no more res integra. The point of law has been set at rest by this Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors., [1992] Supp. 1 SCC 335. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under:
``31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context). In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence Page 6 of 24 reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who is satisfied that the information forwarded to him discloses a colonizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by subsection (3) of Section 154 of the Code.'' ``32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ``information'' without qualifying the same as in Section 41(1)(a) or
(g) of the Code wherein the expressions, ``reasonable complaint'' and ``credible information'' are used.
Evidently, the nonqualification of the word ``information'' in Section 154(1) unlike in Section 41(1)
(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, `reasonableness' or `credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ``information'' without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that `every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that `every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word `complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word `information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
Finally, this Court in para 33 said :
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid Page 7 of 24 before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, 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.''
ii) Gopal Das Sindhi and Others Vs State of Assam and Another - AIR 1961 SC 986, it has been observed that: "7. When the complaint was received by Mr. Thomas on August 3, 1957, his order which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as abovementioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was,. however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged 'to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must.' The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving Page 8 of 24 cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner [provided by Chapter XVI of the Code, Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by "taking cognizance." It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
were approved by this Court in R.R. Chari v. State of Uttar Pradesh . It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal, 19601 Section . It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it Page 9 of 24 with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr. Thomas conies within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance."
iii)Tula Ram and others Vs Kishore Singh - AIR 1977 SC 2401;
"In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge
1. That a Magistrate can order investigation under section 156(3) only at the precognizance stage, that is to say, before taking cognizance under sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :
(a) He can pursue that complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. The Magistrate can postpone the issue of process and direct an enquiry by himself. 624
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
3.In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is Page 10 of 24 not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police, before taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above. The present case is clearly covered by proposition No. 4 formulated, above."
iv)Madhu Bala Vs Suresh Kumar and others - SC decided on 23.07.1997, in this case it has also been observed that : "In Tula Ram's (supra) the only question that was raised before this Court was whether or not a Magistrate after receiving a complaint and after directing investigation under Section 156(3) of the Code and on receipt of the 'Police report' from the police can issue notice to the complainant, records his statement the statements of other witnesses and then issue process under Section 204 of the Code. From the question it self it is apparent that the said case related to a stage after police report under Section 173(2) of the Code was submitted pursuant to an order under Section 156(3) of the Code and not to the nature of the order that can be passed thereunder [ Section 156(3)]. The cases of the Punjab & Haryana High Court referred to by the learned Judge in the impugned judgement need not be discussed in details for they only lay down the preposition that under Section 156(3) a Magistrate can only direct investigation but cannot direct registration of a case for no such power is given to him under that section. We repeat and reiterate that such a power inheres in Section 156(3), for investigation directed thereunder can only be in the complaint filed before the Magistrate on which a case has to be formally registered in the Police Station treating the same as the F.I.R If the reasoning of the Punjab and Haryana High Court is taken to its logical conclusion it would mean that if a Magistrate issues a direction to submit a report under Section 173(2) of the Code after completion of investigation while passing an order under Section 156(3) it would be equally bad for the said Section only 'directs investigation' and nothing more. Needless to say, such a conclusion would be fallacious, for while with the registration of a case by the police on the complaint, the investigation directed under Section 156(3) commences, with the Page 11 of 24 submission of the 'Police report' under Section 173(2) it culminates.
On the conclusions as above we set aside the impugned judgment and orders of the High Court and direct the concerned Magistrates to proceed with the cases in accordance of law. The appeals are accordingly allowed."
v) State of Haryana and others Vs Ch. Bhajan Lal and others
- AIR 1992 SC 604, in this case it has been observed that: "The condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officerincharge of a police station satisfying the requirements 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."
vi)Superintendent of Police , CBI vs Tapan Kumar Singh - (2003) 6 SCCs 175, in this case it has also been observed that: "It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is Page 12 of 24 only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.
In the instant case the information received by the Superintendent of Police, C.B.I. clearly spells out the offence of criminal misconduct under Section 13 of the Prevention of Corruption Act, 1988, inasmuch as there is a clear allegation that the respondent has demanded and accepted a sum of rupees one lakh by way of illegal gratification. The allegation is not as vague and bald as the High Court makes it out to be. There is a further assertion that the respondent is carrying with him the said sum of rupees one lakh and is to board the Gitanjali Express going to Nagpur. The allegation certainly gives rise to a suspicion that a cognizable offence may have been committed by the respondent, which the Superintendent of Police, C.B.I. was empowered to investigate. Therefore if the Superintendent of Police, C.B.I. proceeded to intercept the respondent and investigate the case, he did only that which he was in law obliged to do. His taking up the investigation, therefore, cannot be faulted."
vii)Emperor Vs Khwaja Nazir Ahmad - AIR (32) 1945 Privy Council 18, in this case it was observed that:
Page 13 of 24"29. In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.
30. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.
31. No doubt if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation, and for this reason Newsam J. may well have decided rightly in Chidambaram Chattiar v. Shanmugham Pillai [1938] A.I.R. Mad. 129. But that is not this case.
32. In the present case the police have under Sections 154 and 156 of the Criminal Procedure Code a, statutory right to investigate a cognizable offence without requiring, the sanction of the Court, and to that extent the case resembles Chhatrapat Singh Dugan v.Page 14 of 24
Kharag Singh Lachmiram (1916) I.L.R. 44 Cal. 535 P.C., in which as the High Court has pointed out their Lordships' Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds.
33. Of course, in the present case, as in the petition brought by Mr. Gauba, no prosecution is possible unless the necessary sanction under Section 197 of the Criminal Procedure Code has first been obtained, But that stage like the stage at which the Court may legitimately intervene has not in their Lordships' opinion yet been reached. The question so far is one of investigation, not prosecution.
34. In accordance with their view, their Lordships will humbly advise His Majesty that the appeal should be allowed, the decree and order of the High Court quashed and the investigation permitted to proceed."
viii)Medichi Chemicals & Pharma P. Ltd. Vs Biological E. Ltd. & Ors. decided on 25.02.2000 SC, in this case it has also been observed that: "8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:
It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.
9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have Page 15 of 24 had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v.Bhajan Lal (Supra).
On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in divers situations. As a matter of fact they are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred . The two types of actions are quite different in content, scope and impart [vide Pratibha Rani v. Suraj Kumar (supra)]. Mr. Mishra, the learned Senior Advocate for the respondents herein being the accused persons, strongly relied upon the decisions of this Court in the case of Dr. Sharma Nursing Home v. Delhi Administration 1998 (8) SCC 745 wherein this Court observed: that findings of Section 420 IPC has been rested only on the reception and did not go into the question whether the complainant and its accompanymen disclosed the essential ingredient of the offence under Section 420 IPC namely, disclosed inducement. Mr. Mishra upon reliance in Dr. Sharmas case (supra) also contended that Section 24 of the I.P.C has defined the word dishonesty to mean a deliberate intent to cause wrongful gain or wrongful loss. It has been the specific case of the complainant that from the beginning of the transaction there was a definite intent on the part of the accused persons to cause wrongful loss to the complainant. This aspect of the matter, however, has not been taken note of by the learned Single Judge. The decision of this Court Page 16 of 24 in Dr. Sharmas case (supra) thus does not lend any assistance to Mr. Mishra in support of quashing of the criminal complaint. Some other decisions have also been cited but we do not feel it inclined to refer to the same except one noted above since they do not advance the case of the respondents in any way whatsoever. Considering the factual aspect of the matter, we unhesitatingly state, however, that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short circuited. We, thus, without expressing any opinion on the merits of the case allow the Appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expectation. Be it clarified however that observations as above in this judgment be not taken as an expression of opinion of ours."
ix)Pratibha Rani Vs Suraj Kumar and another - AIR 1985 SC 628, in this case it has been observed that: "I have extracted above several passages from the Judgment of the learned judges of the Full Bench in Vinod Kumar's case (supra) since I share their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife's complaint in the present case was justified in relying heavily upon that judgment of the Full Bench. In these circumstances, 1 think that in the absence of a separate agreement and specific entrustment by the wife to the husband and of his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s.406 I.P.C. The offense of criminal breach of trust is cognizable and nonbailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife or the husband would have disastrous effects and consequences on Page 17 of 24 the peace and harmony which ought to prevail in matrimonial homes. It is seen from para 45 ofthe judgment in Vinod Kumar's case (supra) that in spite of diligent research no instance of any case of successful prosecution of the husband of wife at the instance of the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to the notice of this Court either in the course of the arguments in this appeal. This would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the daytoday life there must have been numerous instances where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and viceversa. I am anxious that no lighthearted change should be brought about in the position and that the minimum requirement in such cases is a specific separate agreement whereby the property of the wife to husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the complaint, in the present case, I am of the opinion that the learned Single Judge was perfectly justified in following the decision of the Full Bench in Vinod Kumar s case (supra) and quashing the wife's complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal. In view of the majority decision, this appeal is allowed, the judgment of the High Court is set aside and the complaint filed by the appellant is restored. The accused may now be summoned and put on trial in accordance with law. S.R. Appeal allowed."
x) Kamladevi Agarwal Vs State of West Bengal & Ors. - 2001 [2] JCC [SC] 352;
16. In the present case we have noticed that before issuance of the process, the Trial Magistrate had recorded the statement of the witnesses for the complaint, perused the record including the opinion of the expert and his deposition and prima facie found that the respondents were guilty for the offences for which the process was issued against them. The High Court rightly did not refer to any of those circumstances but quashed the proceedings only on the ground:
"Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court should be allowed to Page 18 of 24 continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person i.e., the complainant in the criminal case. In my considered view t would not proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution is being tested in a civil proceeding before this court. Judicial propriety demands that the course adopted by the Hon'ble Supreme Court in the case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in Section 482 of the Code of Criminal Procedure "or otherwise to secure the ends of justice". In both the cases referred to above civil suits were pending, where the validity and genuineness of a document was challenge. It was held by the Hon'ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted."
17. In view of the of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.
18. In the result of appeal is allowed by setting aside the impugned order passed by the High Court and resorting the order of the Magistrate with direction to proceed with the trial of the case in accordance with the provisions of law and decide the same on merits."
xi)Radha Vs. State 2011 X AD (Delhi) 560, in this case it has also been observed that:
14. From an analysis of the aforesaid judgments the clear legal position which emerges is that the officer incharge of a police station has no option or discretion not to register an FIR once the information relating to the commission of Page 19 of 24 cognizable offence is laid before him. The intendment of the legislature in using the expression "shall" in Section 154 of the Code of Criminal Procedure cannot be whittled down so as to read the same as "may" and such an interpretation if taken Crl. M.C. No. 3494/2008 Page 50 of 73 would defeat the very legislative intent behind the spirit of the said Section. Section 154 thus clearly postulates that once any information even if given orally to an officer incharge of the police station relates to the commission of a cognizable offence, then the said officer has no choice or alternative left with him but to register the FIR. The word "relating" in the said Section also denotes that the said expression is a of very wide connotation and had the intention of the Legislature been different then in place of the word "relating" the word "disclosing" could have been used in the said Section. This Court has not come across any judgment where it has been held that even if an information clearly discloses commission of a cognizable offence, then also the police can refuse to register an FIR. The Courts have rather gone to the extent of saying that even if the police officer has reason to suspect, on the basis of the information received that a cognizable offence may have been committed, then he is bound to record the information and conduct an investigation. It is thus not the prerogative, free will or privilege of the police officer to Crl. M.C. No. 3494/2008 Page 51 of 73 whimsically decide that in what cases to register an FIR or not. The provision of Section 154 of the Code is thus mandatory and the concerned police officer is duty bound to register the case on the basis of information disclosing commission of a cognizable offence and police officer cannot refuse to register the FIR simply because he does not like the face of the complainant or the complainant approaching him is a commoner or he is not in a good mood to register the same. There cannot be seen to be any temperamental twists in the approach of the police officer not to register an FIR once information relating to the commission of cognizable office is laid before him. However, the question of preregistration inquiry or preliminary inquiry no doubt can arise in certain cases such as where the concerned I.O. based on the information laid before him seriously doubts the commission of any cognizable offence on its bare perusal or where the complaint lodged is a vague, uncertain or Page 20 of 24 unspecific or exfacie absurd or the complaint appears to be false on the very face of it or the same appears to have been lodged with some Crl. M.C. No. 3494/2008 Page 52 of 73 apparent ulterior motives; but otherwise the concerned police officer is not supposed to transgress the mandate of law as envisaged under Section 154(1) Cr.P.C."
On the strength of the above said citations, ld. counsel for the revisionist prayed for setting aside the impugned order dated 20.01.12 and direct the SHO PS Tilak Nagar to register the FIR and commence the investigation as envisaged under section 156 (3) Cr.PC in pursuance of the complaint preferred by the revisionist qua the accused persons.
4. I have given careful consideration to the submissions of ld. Counsel for the parties and I have also gone through the judgments relied upon by the ld. counsel. Perusal of the case file reveals that earlier the order dated.22.09.2011 on dismissal of application filed, u/s 156 (3) Cr. PC by ld. Trial Court, was set aside by this court vide order dated 12.01.2012 with the observations that : Page 21 of 24 "It is a well settled proposition of law that this court has a limited jurisdiction over the power exercised by ld. MM as determination of the question of facts is his exclusive domain, yet this court simultaneously has the power not only to address the legal questions but the technical aspects are also required to be looked into by the court as the revisionist court has the concurrent jurisdiction, therefore, it can only exercise the power of judicial review in a limited way, since this court is not vested with the power of inherent jurisdiction. Having taken into consideration all these aspects, this court is of the view that the ld. Magistrate fell into an error when he received a report stating therein that the revisionist has been deprived of right of his tenancy without due process of law and it has also been observed in the order of Ld. MM passed on dt. 29.09.2011 that the matter is border line case of criminal and civil dispute. This observation definitely impinges upon the principle of natural justice and scheme of Cr. P.C. which is implicit in every scheme of statue and the procedural law. In light of this fact I set aside the order dt. 22.09.2011 dismissing the application filed U/s 156 (3) Cr. PC and direct the ld. MM to pass a fresh order in light of judgment relied upon by ld. Counsel for the revisionist and also the observations made by this court. Since every citizen has a fundamental right to agitate his grievances before the court and court is also bound to ensure legitimate expectations. So, in the pursuits of objects of justice, I do not find the order of ld. MM dismissing the application filed U/s 156 (3) Cr. PC to the legal test scrutiny. Accordingly, revision petition stands disposed of."
5. Consequent upon this, ld. Counsel again has filed the revision petition on the same matter challenging the impugned order dated 20.01.2012, wherein ld.Trial Court of ld. MM has observed that:
"Reverting back to the facts of the present case, the tenancy rights of the complainant over the shop no.B21/D has been clouded due to issuance of NOC in favour of Lok Nath Luthra by the respondent Suresh Malik, who claimed to be the chairman of Sanatan Dharam Mandir Sabha. This court does not find appropriate to order investigation under Section 156 (3) Cr. PC. Therefore, the application under Section 156 (3) Cr. PC is dismissed. Before parting Page 22 of 24 with the present order, it is relevant to note here that courts are not bound by the status report filed by the concerned IO/SHO. If the concerned SHO was convinced regarding the commission of cognizable offence, then he should have registered the FIR rather to wait for the court order for registration of FIR."
6. Perusal of the case file reveals that specifically it has come on record in the observations of ld. MM that it is the border line case of criminal and civil dispute. Apart from this it has also come on record in the police report/ status report that revisionist was evicted without adopting the procedure as laid down by law vide inquiry/ status report dated 05.09.2011. In light of this to my view though this court has no jurisdiction to enter into the domain of determination of facts by the court of original jurisdiction yet this Court is empowered to intervene on the principles of propriety and correctness. Since, in the present case the Court itself was of the view that it is a border line case between civil and criminal nature and it has also come in the status / inquiry report that he was evicted against the procedure of law.
These two facts sufficiently compels to seek the indulgence under the collective might of the society by which he was forced to evict the premises in question. The subsequent dismissal of application filed u/s 156 (3) Cr. PC by ld. Trial court vide impugned order dated 20.01.2012 observing that 'the tenancy rights of the complainant over the shop no.B21/D has been clouded due to issuance of NOC in favour of Lok Nath Page 23 of 24 Luthra by the respondent Suresh Malik, who claimed to be the chairman of Sanatan Dharam Mandir Sabha. This court does not find appropriate to order investigation under Section 156 (3) Cr. PC. Therefore, the application under Section 156 (3) Cr. PC is dismissed.' impacts the pursuits of object of justice. With these observations, I set aside the impugned order dated 20.01.2012 and remand back the case with the direction to give an opportunity to the revisionist to hear on the matter and decide the application afresh filed u/s 156 (3) Cr. PC in light of the aforesaid opinion of ld. MM, Inquiry report of police and of this court observations made above. Accordingly, revision petition stands disposed of. Parties are directed to appear before Ld. Trial Court on 31.07.2012. 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 24.07.2012 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):DELHI Page 24 of 24