Delhi District Court
Through Her Constituted Attorney vs The State on 10 May, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE (NDPS): WEST/DELHI
PRESIDED BY : MS. PINKI
CRIMINAL REVISION NO. 65/13
IN THE MATTER OF
GARIMA ANAND
W/O LATE DR. VIKRAMJEET ANAND
R/O A1/35, JANAK PURI,
NEW DELHI58.
THROUGH HER CONSTITUTED ATTORNEY
SH. OM PRAKASH BHOLA. REVISIONIST
VERSUS
THE STATE RESPONDENT
DATE OF INSTITUTION : 15.04.2013
DATE OF RESERVING THE ORDER : 30.04.2014
DATE OF DECISION : 10.05.2014
O R D E R
1. The present revision petition has been filed on 12.04.2013 by the revisionists impugning the order dated 14.01.2013 passed by learned Trial Court.
2. The record as well as trial court record have been carefully and thoroughly perused. Submissions of Sh. Gagan Minocha, Advocate learned counsel for revisionist, Sh. Ajit Kumar Srivastava, learned Additional Public Prosecutor for State/ CR NO.65/13 Garima Anand vs. State 1/13 respondent and Sh. Kuldeep Gola, Advocate learned counsel for respondents no.1 to 5 in Complaint Case No.628/1/13 have been heard. Respective submissions of either side have been considered. Authorities relied upon by learned counsel for revisionists as well as respondent no. 1 to 5 (in complaint case) have also been perused.
3. Learned counsel for revisionist has relied on the following authorities:
(i). Madhu Bala vs. Suresh Kumar AIR 1997 SC 3104
(ii). Daulat Radhu Bhatija vs. State of Delhi 1994 II AD DELHI 725.
(iii). Dharmeshbhai Vasudevbhai Vs. State of Gujarat (2009) 3 Supreme Court Cases (Cri) 76
(iv). GrowOn Exports India Limited vs. J.K. Roel 95 (2002) DLT 333.
(v). V.C. Shukla vs. State AIR 1980 SC 962 (vi). Tula Ram vs. Kishore Singh AIR 1977 SC 2401 (vii). Subhkaran Luharuka V/s State & Anr. 2010 (3) JCC 1972 (viii). Shariff Ahmed vs. State AIR 2009 SC 2691 (ix). Hithin vs. State of Kerala
WP(C) No.17828 of 2009, decided on 13th August 2009 (Kerala) CR NO.65/13 Garima Anand vs. State 2/13
4. Learned counsel for respondent no. 1 to 5 has relied on the following authorities:
(i). Om Prakash & Ors. vs. State & Anr.
187 (2012) DLT 274.
(ii). Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd.
AIR 2001 (3) SC 3625.
(iii). Haryana Land Reclamation & Development Corporation Ltd. vs. State of Haryana (1990) 3 SCC 588.
5. The short question in controversy is, whether the learned Trial Court has the power to direct the SHO concerned to register an FIR under particular Section of law while disposing off the application under section 156(3) Cr.P.C, filed by the complainant (revisionist herein) Ms. Garima Anand, vide the impugned order dated 14.01.2013?
6. A perusal of record shows that a complaint for offence punishable under section 120B/457/454/380/403 IPC was filed on 06.06.2012. Vide order dated 02.07.2012, Status Report was called from the SHO. Status Report was filed and thereafter the impugned order has been passed.
7. Learned counsel for the revisionist has submitted that learned Trial Court has no power to direct the police for registration of FIR under particular Section of law. Learned CR NO.65/13 Garima Anand vs. State 3/13 Trial Court launched the investigation but cannot direct for registration of FIR for particular offence and when the order on the application under section 156(3) CrPC was passed, it is the order where cognizance has not been taken. It has further been submitted that till date the Protest Petition has not been filed and there are specific allegations by the complainant against respondent no. 1 to 5 in complaint case.
8. (a) Per contra, learned counsel for respondents no.1 to 5 (in complaint case) has submitted that the revision petition is not maintainable as the impugned order is an interlocutory order and learned Trial Court has every power to mention the Section of law.
(b) It has further been submitted that the civil suit for possession, injunction qua the suit property was filed prior to the complaint. It has further been submitted that the complainant Ms. Garima Anand is the step mother of respondent no.2 & 5 Abhimanyu Vikram Anand and Ms. Aprajita and respondent no.1, 3 & 4 Vijay Anand, Sanjeev Anand and Shammi Anand are the brothersinlaw (DEVAR) of the complainant.
(c) It has further been submitted that the dispute is in respect of property bearing No.28/1, Road No.1, East Punjabi Bagh, New Delhi. Sh. Baldev Raj Anand, uncle (CHACHA) of husband of the complainant and Sh. Diwan Chand, deceased fatherinlaw of the complainant were the cosharer of the said property. However, late Sh. Diwan Chand Anand had bequeathed his share in the said property in favour CR NO.65/13 Garima Anand vs. State 4/13 of late Sh. Vikramjeet Anand, husband of the complainant and Sh. Vijay Anand, respondent no.1/ brotherinlaw (DEVAR) of the complainant. The above said civil suit was decreed vide judgment dated 22.11.2005 passed by Sh. D.C. Anand, the then learned Additional District Judge. Sh. Baldev Raj Anand preferred appeal which is pending before the Hon'ble High Court. The property has yet not been partitioned.
(d) It has further been submitted that six uncles (CHACHAS) and father of husband of the complainant are the cosharer of the said property. Husband of the complainant executed registered Will in favour of respondent no.2 & 5 and gave possession to respondent no.2 & 5. Husband of the complainant died on 10.11.2011 who executed a registered Will dated 25.02.2011 in favour of respondent no.2 & 5.
(e) It has further been submitted that the husband of the complainant was running a Surgical Clinic in the name and style of "Indraprastha Health Care" from the rear portion of the above said suit property. He stopped visiting the said clinic from April 2011 and in October 2011, the said clinic had to be closed. Both the children i.e. respondent no.2 & 5 being permanently residing abroad, handed over the possession to respondent no.1. In February 2012, father of the complainant in connivance with the complainant tried to take forcible possession on the basis of forged Will. A suit was filed by the respondents wherein father of the complainant Sh. O.P. Bhola gave statement not to dispossess without due process of law.
(f) It has further been submitted that learned Trial Court has nowhere mentioned that the matter be investigated CR NO.65/13 Garima Anand vs. State 5/13 only under section 448 IPC. The application under section 156(3) CrPC was partly allowed and the same is not a final order.
9. A perusal of the record shows that in the authoritative pronouncement by Hon'ble Supreme Court in Madhu Bala vs. Suresh Kumar (supra), the Hon'ble Supreme Court has observed that, whenever a Magistrate directs an investigation on a 'complaint', the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of law to be an order for investigation under section 156(3) CrPC is to be made, the proper direction to the police would be 'to register a case at the police station treating the complaint as the First Information Report and investigate into the same'. It has also been observed that power under section 156(3) CrPC for investigation directed thereunder can only be in the complaint filed before the Magistrate on which a case is to be formally registered in the police station treating the same as the FIR.
10. In Dharmeshbhai Vasudevbhai (supra), the Hon'ble Supreme Court has reiterated that the order under section 156(3) CrPC is in the nature of peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1) CrPC. Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 CrPC and ends with a report or chargesheet under section 173 CrPC.
CR NO.65/13 Garima Anand vs. State 6/13
11. In Tula Ram (supra), it has been observed that where the Magistrate before taking cognizance of the case himself chooses to order a pure and simple investigation under section 156(3) CrPC, he is debarred from proceeding with the complaint according to the provisions of sections 190, 200 & 204 CrPC after receipt of filing of report by the police. There is no bar to such course being adopted by the Magistrate. Hon'ble Supreme Court has referred to judgment titled Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy AIR 1976 SC 1672 that the power to order police investigation under section 156 (3) is different from the power to direct investigation conferred by Section 202 (1) CrPC. The two operate in distinct sphere at different stages. The first is exercisable at the precognizance stage, the second at the postcognizance stage, when the Magistrate is in seisin of the case that is the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the precognizance stage and avail of Section 156(3) and in the said case while ordering investigation, the Magistrate had not taken cognizance. In Daulat Radhu Bhatija vs. State of Delhi (supra) also Hon'ble High Court of Delhi has relied upon Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy (supra).
12. Regarding argument for maintainability of the revision petition, learned counsel for the revisionist has rightly relied CR NO.65/13 Garima Anand vs. State 7/13 on the judgment titled V.C. Shukla (supra) wherein it has been observed that an interlocutory order or judgment is one made or given during the progress of an action but which does not finally dispose of the rights of the parties. An interlocutory order is an order which does not terminate the proceedings or finally decide the rights of the parties. In ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial which does not, however, conclude the trial at all.
13. Vide para 52A of Subhkaran Luharuka (supra), guidelines to subordinate courts have been given by the Hon'ble High Court in respect of registration of FIR in a complaint case.
14. In Shariff Ahmed (supra), Hon'ble Supreme Court has decided the question as to whether the court can direct that the Investigating Agency has to focus on any particular offence and do the investigation accordingly. It was a case where learned Metropolitan Magistrate had directed the Investigating Officer to add Section 307 and investigate the matter properly. Referring to S.M. Sharma vs. Bipen Kumar Tiwari (1970) 3 SCR 946, it was observed that it is the statutory duty of the Investigating Agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It has also been CR NO.65/13 Garima Anand vs. State 8/13 observed that investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged and bring the offender to book. Once, it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once, that is completed the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under section 190 of the Code of Criminal Procedure, its duty comes to an end. It has also been observed that, in appropriate cases, to give directions for prompt investigation etc, the High Court cannot direct the Investigating Agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the Investigating Agency.
15. In Hithin vs. State of Kerala (supra), the learned Metropolitan Magistrate directed the Investigating Officer to incorporate the provisions of SC/ST (Prevention of Atrocities) Act and investigate the case. Referring to Sakiri Vasu Vs. State of Uttar Pradesh & Ors. AIR 2008 SC 907, judgment pronounced by Hon'ble Supreme Court, wherein it was declared that under section 156(3) CrPC, the concerned Magistrate has jurisdiction to give necessary direction for investigation as well as to monitor the investigation, it was observed that by the said decision, powers CR NO.65/13 Garima Anand vs. State 9/13 of Magistrate available under Code of Criminal Procedure is not widened. After investigation and submission of final report under section 173(2) CrPC, while considering the question whether cognizance under section 190 of the CrPC is to be taken or not, Magistrate can only direct a further investigation under section 156(3) CrPC and cannot compel the officer in charge of the police to submit a report under section 170 CrPC for a particular offence. If at that stage, Magistrate is not competent to direct the investigating officer to incorporate any particular offence and submit a final report, Magistrate cannot give such a direction even at the investigation stage. If the Magistrate is of the view that the investigation is not proper, on consideration of the final report, he can only direct a further investigation under section 156(3) CrPC. If on such further investigation and submission of a final report under section 173(2) CrPC, the Magistrate is not satisfied with the finding with regard to the commission of the offence in the final report and the materials available in the final report disclose commission of an offence or an additional offence or offence than what is stated in the final report, Magistrate is empowered to take cognizance of the offence or other offences on the said final report. but Magistrate cannot direct the Investigating Officer to file further final report under section 170 CrPC, showing commission of a particular offence. It has also been observed that power will not extend to empowering the Magistrate to direct the investigating officer to incorporate a particular offence and to investigate it. It is to be borne in mind as CR NO.65/13 Garima Anand vs. State 10/13 observed in King Emperor vs. Khwaja Nazir Ahmad 1944 LR IA 203, that the function of the judiciary and the police though complementary are not overlapping and investigation is within the exclusive province of the police. Under the CrPC, Magistrate cannot exercise his jurisdiction with regard to the investigation at that stage, except to the limited extent of supervising or monitoring the investigation as declared in Sakiri Vasu's case (supra).
After observing all this, it was held that the Magistrate was not justified in directing the Investigating Agency to incorporate an offence and investigate that offence. It is not for the Magistrate at this stage to decide what all offences are made out.
16. On the other hand, learned counsel for respondents no.1 to 5 in complaint case has relied on Om Prakash & Ors. vs. State & Anr. (supra) and has submitted that there is no infirmity in the impugned order. Referring to para 17 of this judgment, it has been submitted that the Magistrate is duty bound to mention provisions of law. In the said case, learned Metropolitan Magistrate had passed the order for registration of FIR under section 156(3) CrPC without calling for the Status Report from the police or getting conducted preliminary enquiry. With due respect the facts are differentiable from the facts of the present case, in the instant case after calling Status Report, order has been passed.
CR NO.65/13 Garima Anand vs. State 11/13
17. Relying on the judgment titled Bhaskar Industries (supra) and Haryana Land Reclamation (supra), it has been argued on behalf of the respondents that the revision is not maintainable as the impugned order is interlocutory order in nature. With due respect it is pertinent to mention that valuable right of revisionist is effected by the impugned order, therefore, the impugned order is not interlocutory in nature, in view of the judgment of V.C. Shukla (supra), relied upon by the revisionist.
18. Considering the facts & circumstances of this case and in view of the authoritative pronouncement of Hon'ble Supreme Court and Hon'ble High Court of Delhi, this Court is of the opinion that the learned Metropolitan Magistrate has erred in mentioning the Section of law i.e. Section 448 of IPC while ordering for registration of FIR. The only course for the learned Metropolitan Magistrate was to order for registration of FIR giving liberty to the Investigating Agency to investigate the matter as per law on the basis of the complaint and other material available with the Investigating Agency. It is pertinent to mention that in the instant case, the FIR No.24/13 Police Station Punjabi Bagh under section 448 IPC has already been registered on 20.01.2013. Since, FIR has already been registered under particular section, therefore, the impugned order is not quashed because that will affect the registration of the FIR. However, it is clarified to the Investigating Agency that it is at liberty to investigate the matter as per law and as per material available and not to CR NO.65/13 Garima Anand vs. State 12/13 confine its investigation only to Section 448 IPC which has been mentioned in the impugned order.
19. A perusal of record further shows that the cancellation report has been filed on 22.02.2013 which is also pending and the complainant/ revisionist has yet to file Protest Petition in this regard. It is further clarified that the complainant is at liberty to file Protest Petition as per law in case she so wishes.
20. However, keeping in view the order passed today, the Investigating Agency is at liberty to further investigate the matter keeping in view the averments made in the complaint as well as the material available on record and to proceed as per law. With these observations, the revision petition is disposed off accordingly.
Copy of this order be sent along with TCR.
Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON : 10th May, 2014 (PINKI) ADDITIONAL SESSIONS JUDGE SPECIAL JUDGE (NDPS) (WEST) DELHI / TIS HAZARI COURTS CR NO.65/13 Garima Anand vs. State 13/13 Garima Anand vs. State CR No.65/13 08.05.2014 Present: Proxy counsel for respective parties.
Sh. Ajit Srivastava, Ld. Addl. Public Prosecutor for the State/ Respondent.
Smt. Lovleen Sharma, Steno is on CCL from 10.02.2014 to 11.05.2014.
Order not ready.
Put up for orders on 10.05.2014.
(PINKI)
Additional Sessions Judge
Special Judge (NDPS)
(West) Delhi / 08.05.2014
CR NO.65/13 Garima Anand vs. State 14/13
Garima Anand vs. State
CR No.65/13
10.05.2014
Present: Proxy counsel for respective parties.
Sh. Ajit Srivastava, Ld. Addl. Public Prosecutor for the State/ Respondent.
Smt. Lovleen Sharma, Steno is on CCL from 10.02.2014 to 11.05.2014.
Vide separate order announced in the open Court today, the revision petition filed by the revisionist is disposed off.
Copy of this order be sent along with TCR.
Revision file be consigned to Record Room.
(PINKI)
Additional Sessions Judge
Special Judge (NDPS)
(West) Delhi / 10.05.2014
CR NO.65/13 Garima Anand vs. State 15/13