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Delhi District Court

Sushil Goel vs Narender Goel on 7 September, 2010

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       IN THE COURT OF MS. SANTOSH SNEHI MANN
         ADDITIONAL SESSIONS JUDGE (CENTRAL)
                TIS HAZARI COURTS, DELHI

Criminal Revision No. : 47/2010

Sushil Goel
S/o Late Sh. V.P Goel
R/o C-67, Ahinsa Vihar,
Sector-9, Rohini,
New Delhi - 110085.                         ........Petitioner/Revisionist

                                Versus
1. Narender Goel
   S/o Late Sh. V.P Goel,
   R/o 177, Nimri Colony Old,
   Phase-I, Delhi-110052.

2. Mr. A.K Garg,
   The Commissioner of Income Tax,
   Range No. VII, Ward No. 19(2),
   Room No. 108-D, Vikas Bhawan,
   Income Tax Department, I.T.O,
   I.P Estate, New Delhi.

3. Unknown persons
   who are involved in committing the offence of theft
   whose list of names would be filed before framing of charges

4. The State
   (Govt. of NCT of Delhi)
                                                  .........Respondents
Date of filing of Criminal Revision           : 05.04.2010
Date of conclusion of arguments               : 07.09.2010
Date of Order                                 : 07.09.2010

          Criminal Revision Petition under section 399 of the
          Code of Criminal Procedure, 1973, against the
          order dated 25.02.2010, passed by Sh. Deepak
          Dabas, M.M, Delhi, in complaint case no. 25/1, titled
          as "Shri Shushil Goel Vs. Narender Goel & Ors",
          filed by and on behalf of the revisionist.



Criminal Revision No. 47/2010          Sushil Goel Vs. Narender Goel & Ors.
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ORDER :

Petitioner is aggrieved by the order of the Trial Court dated 25.02.2010 passed in the criminal complaint under section 379 of the Indian Penal Code, registered vide no. 25/1, titled "Sushil Goel Vs. Narender Goel & Ors." whereby his application under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C) for direction to SHO PS I.P Estate to register FIR and to investigate has been declined and the petitioner has been asked to lead pre-summoning evidence.

2. I have heard Mr. Puneet Goel, Ld. Counsel for the petitioner and Mr. Rajiv Mohan, Ld. Addl. PP for the State/respondent no. 4. Notice was not issued to other respondents as they have not been summoned by the Trial Court as yet.

3. The brief facts stated in the complaint before the Trial Court are that in a civil suit filed by the petitioner against the respondent no. 1, registered vide no. 01/05, titled "Sushil Goel Vs. Narender Goel" pending in the court of Sh. Vinod Kumar, ADJ, Delhi, record has not been produced by the officials of Income Tax authority despite repeated direction of the Court. It is alleged that the Income Tax officials are hand-in-glove with the respondent and they are not providing the record in order to benefit the respondent because in the said record respondent had admitted his liability to the petitioner with respect to a loan. It is further contended in the complaint that respondent no. 2, a government officer, declined to deliver the certified copies of Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.

those documents to the petitioner. It is further contended that the petitioner lodged a complaint dated 02.05.2009 with the SHO I.P Estate, police station, New Delhi for registration of FIR, despite which the case has not been registered. Petitioner also approached Income Tax (Vigilance) department, but no action has been taken by the said authority either. In these circumstances that a criminal complaint dated 08.01.2010 was filed by the petitioner before the Trial Court accompanied with an application under section 156(3) of the Cr.P.C for direction to SHO PS I.P Estate for registration of FIR and to investigate the matter.

4. Vide impugned order dated 25.02.2010, application of the petitioner under section 156(3) Cr. P. C, seeking direction to SHO for registration of FIR and police investigation has been declined on the grounds that complaint is already in possession of all the material required by him to prove his case and that no custodial interrogation of the accused or any person is called for. However the Trial Court has given the opportunity to the petitioner to lead pre-summoning evidence.

5. Before passing the impugned order the Trial Court called the status report/action taken report from the SHO. In pursuant to this direction status report was filed by SI Sushil Kumar duly forwarded by SHO stating therein that as per the official procedure and the norms, if any document is found missing from the Government office/department, an internal enquiry is conducted to find out the missing document and if the document is not traced, efforts are made to reconstruct the Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.

file and further that if it is found the document has been removed mischievously by someone, departmental action is initiated against the said person. It is further submitted in the report that, if the department feels that in a particular case report is required to be lodged with the police, only then a report is lodged. In the instant case since no complaint has been lodged by the Income Tax Department, no case has been registered by the police.

6. It is submitted by the Ld. Counsel for the petitioner that in view of the peculiar facts and circumstances of the matter, where the Government authorities are hand-in-glove with the respondent, thorough police investigation is required to go to the root of the matter, which is not possible without custodial interrogation. Besides, the impugned order is challenged on the grounds of irregularity and illegality. Ld. Counsel has referred the following judgments in support of his arguments.

           i)      Lallan Chaudhary V/s State, 2006
                   Rajdhani Law Reporter (NSC) 80;
           ii)    Sakiri Vasu v/s State 2008(1) JCC 113
                  (Supreme Court);

iii) Acharya Arun Dev v/s State & Anr. 2005 (2) JCC 897;

           iv)    Mahabir      Singh     v/s    Police
                  Commissioner, 2006 RLR 368;
           v)     A.R Antulay v/s R. S. Nair AIR 1984 SC
                  183 and
           vi)    Cogent Silver Fiber (P) Ltd v/s State
                  (2007 (2) JC 1363).

7. The legal position which emerges from the decisions referred by the Ld. Counsel for the petitioner is that a revision Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.

petition is maintainable against dismissal of application under section 156(3) of the Cr. P. C and that any person can set the criminal law in motion. Similarly it is a settled legal position that a Court of Metropolitan Magistrate can order for registration of FIR and police investigation on a complaint and the Court of Metropolitan Magistrate can also monitor the police investigation. Further it is a statutory and well settled legal preposition that police is bound to register FIR whenever there is a complaint or information about the commission of a cognizable offence. All the judgments referred by the Ld. Counsel for the petitioner are on these aspects which is a settled position of law.

8. In the present case the petitioner is challenging the impugned order whereby the Ld. Trial Court declined to direct SHO to register FIR and instead has chosen to act on the complaint under Chapter XV of the Cr. P.C. The Issue before this Court in the present petition is whether a Metropolitan Magistrate in a criminal complaint can decline the prayer for direction to SHO to register FIR and investigate and instead proceed with the complaint. This issue came up for consideration before the Apex Court in "Raghu Raj Singh Rousha V/s Shivam Sundaram Promoters Private Limited & Another; (2009) 2 Supreme Court Cases 363". The observation made by the Hon'ble Court in this regard is as follows

9. "A person intending to set the criminal law in motion inter alia may file an application under Section 156(3) of the Code. When a first Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.

information report is lodged, a police officer has the requisite jurisdiction to investigate into the cognizable offence in terms of section 156(1) of the Code. Where, however, a Magistrate is entitled to take cognizance of the offence under section 190 of the Code, he may also direct that such investigation be carried out in terms thereof.

10. When a complaint petition is filed under Chapter XV of the Code, the Magistrate has a few options in regard to exercise of his jurisdiction. He may take cognizance of the offence and issue summons. He may also postpone the issue of process so as to satisfy himself that the allegations made in the complaint petition are prima facie correct and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding as to whether or not there is sufficient ground for proceeding. By reason of the aforementioned order dated 07.02.2008, the learned Magistrate intended to inquire into the case himself. It is for the said purpose he directed examination of the Complainant and his witnesses.

22. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the Complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code.

9. In the present case the Ld. Trial Court has declined to direct the SHO to register FIR and to investigation, on the ground that in the facts and circumstances of the case it was not required. The trial court, which is a Court of Metropolitan Magistrate is within its power to hold an inquiry and proceed under Chapter XV of the C r. P. C on a criminal complaint. The Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.

Magistrate is not bound to direct the SHO to register the FIR. (Reference to decision of the High Court of Delhi in the Criminal Revision Petition No. 337/2008 titled as "Smt. Mithlesh Vs. The State of N.C.T of Delhi & Ors.).

10. In view of the settled legal position as discussed above, this Court does not find any irregularity or illegality in the impugned order dated 25.02.2010. The revision petition is hence dismissed.

11. The Trial Court record be sent back alongwith the copy of this order.

12. Petitioner/revisionist to appear before the Trial Court on 20.09.2010.

13. Revision petition be consigned to the record room.

Announced in the open Court (Santosh Snehi Mann) on 07.09.2010 Addl. Sessions Judge (Central) Tis Hazari Courts, Delhi Criminal Revision No. 47/2010 Sushil Goel Vs. Narender Goel & Ors.