Delhi District Court
Daya Ram Yadav S/O Bhup Singh Yadav vs Sohan Lal Gupta S/O Brij Lal Gupta on 30 July, 2012
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , THC DELHI.
Criminal Rev. No. 186/2/11
IN THE MATTER OF :
Daya Ram Yadav s/o Bhup Singh Yadav,
R/o H. No.286, Hastsal Village,
Uttam Nagar, New Delhi - 59.
..............Revisionist
Versus
1. Sohan Lal Gupta s/o Brij Lal Gupta
2. Yogesh Kumar Gupta s/o Sohan lal Gupta
both R/o Village Ranhola, Nangloi,
Najafgarh Road,
Delhi.
Present Add:
House No.1, Near Vikas Shopping Complex,
Vikas Nagar, Uttam Nagar,
New Delhi - 59
3. Subhash Chand s/o Ranjeet
R/o A3, Vikas Nagar, New Delhi
4. Dharambir Yadav (now dead)
5. Krishan Lal Sharma (now dead)
6. Smt. Urmila Tyagi W/o Ashok Kumar Tyagi
(Stamp Vendor Licence no.404)
WZ183A, Opp. Mini Bus Stand
Main Najafgarh Road,
Uttam Nagar, New Delhi.
7. State (NCT of Delhi)
FIR No.771/04
PS Uttam Nagar (EOW, Crime Branch)
u/s 420/ 379/ 468/ 471/ 120B IPC
................Respondents
1
30.07.2012
ORDER
1. This revision petition is directed against the order dated 25.06.2011 passed by ld. ACMM (hereafter referred as impugned order) whereby ld. trial court dismissed the complaint dated 09.11.06 of the revisionist on the basis of Untrace Report.
2. Briefly the factual matrix of the case is that in case FIR No.771/04, PS Uttam Nagar (EOW, Crime Branch), u/s 420/ 379/ 468/ 471/ 120B IPC Untrace Report was filed by EOW, Crime Branch before ld. Trial Court and the same was objected by revisionist Daya Ram Yadav by filing Protest Petition.
3. Revisionist stated to be the owner of land admeasuring 5 Bighas 10 Biswas in Khasra no.11/14/2 (34) and 11/15/2 (26) situated in Village Hastsaal. Revisionist, in the year 1995, sold approximately 2500 sq. yards out of the land to one Sushil Mehta. Later a passage of 18 ft. wide in the middle of the said land was carved out throughout its length and now the remaining land happens to be about 2380 sq. yards on which revisionist/ complainant has constructed 18 high Pillars in order to install a big gate at the entrance besides constructing a boundary wall towards three sides to secure his crops and fruit bearing trees. 2 On 10.09.96, respondent no.4 approached the complainant for purchase of complainant's land. Accordingly, an agreement to Sell was entred into between the complainant and respondent no.1, 3, 4 and 5 and at that time, accused persons obtained signatures of complainant on certain blank papers including some non judicial stamp papers. Later on account of failure of accused persons to arrange the amount of sale consideration, complainant was orally made to understand about such Agreement having cancellation effect. Complainant demanded his blank papers and his two photographs on which respondents told that same were lost and were not traceable. Instead respondent no.4 (deceased) vide an affidavit dated 18.01.97 admitted that two photographs and documents were lost by his partner/ respondent no. 5 (deceased). Complainant did not smell any ill will or mischievous intention of accused person at that time. In the year 2000, respondent along with their associates got a false FIR no.606/00 dated 05.09.00 registered against the revisionist. All the respondents have misused the said blank documents and claimed their ownership as a result of which a case FIR no.771/04 PS Uttam Nagar was registered on the complaint of the revisionist.
4. In the protest petition, revisionist raised various objections. It is contended that IO has given undue support to criminals for undue 3 considerations. It has also been contended that the complaint dated 10.06.2002 of revisionist to Crime branch shows that revisionist did not deny his signatures on the questioned documents. The allegations of revisionist also find corroboration with Report from Nasik. It has also been stated that there are several gangs of property dealers, stamp vendors and Notary Public operating in Delhi who used to purchase the Non Judicial Stamp papers in bulk quantity without any entry in Stamps Register and whenever they found any prospective buyer/seller, they used to utilize the same later and then get it notarized from the Notary of their gang, sometimes in back dates also. The ld. Trial court after giving careful consideration to the various objections of revisionist passed the impugned order dated 25.06.2011.
5. Feeling aggrieved with the impugned order dt. 25.06.2011 ld. counsel filed this revision petition. Arguments on revision petition were heard at length. During the course of arguments, Ld. Counsel for revisionist submitted that proceedings for the offences against which the FIR was registered and the Protest petition are two separate proceedings and these are to be dealt with two separate adequate procedures as prescribed in the Cr. PC. Ld. Counsel for the revisionist again submitted that consequent upon the filing of untrace report vide dt. 06.03.2007 by the IO, EOW Cell, Protest petition was filed on account 4 of nontraceability of the accused persons and no offence was made out during the course of investigation. Having felt aggrieved with the Untrace report, the revisionist filed a complaint vide dt. 09.11.2006, before ld. ACMM. However, Ld. ACMM accepted the Untrace report and consequently, dismissed the complaint, vide order dt. 25.06.2011. Having felt aggrieved with the impugned order of Ld. ACMM for the dismissal of the complaint, Ld. Counsel for the revisionist filed this revision petition on the grounds that the mandatory inquiry was not conducted under section 200 Cr.P.C. In support of his contentions, Ld. Counsel for revisionist relied upon the judgment titled as Pal @ Palla Vs State of U.P. VII (2010) SLT 44. On these grounds, he submitted that the order of Ld. ACMM, vide which complaint of the revisionist was dismissed, is liable to be set aside and seeks directions to Ld. ACMM that opportunity to lead evidence be given to the revisionist.
6. Contrary to it, Ld. Counsel for respondents submitted that consequent upon the filing of Untrace report, the Magistrate held the inquiry which is clear from the factum of filing of Protest petition against the Untrace report by the revisionist in the court of Ld. ACMM. Therefore, the inquiry was conducted within the meaning of section 200 Cr.P.C. and 210 Cr.P.C. In support of his contentions, he has relied upon citations 5 Gangadhar Janardan Mahtre Vs State of Maharashtra & Ors. 114 (2004) DLT 193 (SC) and Mukesh Aggarwal & ors. Vs M.R. Jindal & ors. 2009 (2) JCC 1056. On the strength of the aforesaid citations, he submitted that the revision petition is liable to be dismissed. Arguments of Ld. APP for the State were also heard. During the course of arguments, Ld. APP drew the attention of this court that a complaint was moved by the revisionist on 09.11.2006 to the Ld. MM. But the proceedings under that complaint were suspended on account of the fact that already a case was registered for the offence under section 420/379/467/468/471/120B IPC, vide FIR No. 771/04, PS Uttam Nagar.
7. I have perused the case file and gone through the submissions of ld. counsel for the revisionist and ld. counsel for the respondents. I have also gone through the impugned order dated 25.06.2011 and the Trial Court Record. The main arguments of the ld. Counsel for the revisionist are not sustainable that the investigation was conducted at the instance of ld. MM after recording FIR no.771/04 for the offences u/s 420/ 379/ 468/ 471/ 120B IPC but proceedings of which resulted into Untrace report. Before the report of untrace was accepted the revisionist filed a Protest Petition which was also dealt with by the court 6 concerned and it was dismissed with the observations that : "15.In all probability, the alleged blank papers allegedly got signed from complainant and then misused by accused persons can not be these 13 documents which are signed by complainant in the year 1997. If these are so, then complainant has failed to explain how could be sign them in the year 1996 when these stamp papers were sold in the year 1997 as the Report of Collector's Stamps Govt. of NCT of Delhi also supports the fact. In view thereof, the allegations of complainant in his original complaint before police station as well as in Protest petition are completely unfounded, unsubstantiated and are uncalled for.
16. Having observed so, I am of the considered view that all the objections raised against the Untrace Report are absolutely unsupported and baseless. These do not warrant any further action justifying the consideration of matter for summoning the accused persons. This court is also told that during investigation, it was found that complainant did not make any payment of electricity bill in respect of connection installed at his land since 1992. the said fact was got verified during investigation and it raises a clear suspicion over the legal authenticity of complainant's lawful possession over disputed land.
17. Having considered the conclusions arrived at by the IO in Untrace Report and going through the entire factual matrix in detail, I find the allegations and the contentions are not well founded. In such circumstances, the complaint filed by the complainant on 09.11.06 does not disclose the commission of offences alleged. It deserves dismissal. The final Report in the form of Untrace Report filed by police stands accepted. The Objection Petition of objector Daya Ram Yadav hereby stands dismissed. File be consigned to Record Room."
8. Under these facts and circumstances having felt aggrieved with the dismissal of the Protest Petition and acceptance of Untrace Report, the revisionist has come before this court arguing that the proceedings for the offences against which the FIR was registered and the Protest petition are two separate proceedings and these are to be dealt with by two separate adequate procedures as prescribed in the Cr. PC. Ld. Counsel for the respondent has controverted the contentions of ld. Counsel for the revisionist stating that proceedings under investigation 7 and the protest petition are the composite proceedings and it does not in any manner can be accepted as two separate proceedings i.e. one complaint procedure and another of investigation procedure. In support of his contentions he has relied upon the following citations wherein it was observed that: 'Gangadhar Janardan Mahtre Vs State of Maharashtra & Ors.' 114 (2004) DLT 193 (SC); wherein it has been held that:
6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commissioner of Police and Anr. stressed on thedesirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows:
"....There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report..."
7. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report.
9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct 8 further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to be effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. ................ Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.
11. As decided by this Court in Bhagwant Singh's case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows: "....the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report..."
13. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the 9 Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and Ors. (1997 Supreme Court Cases (Crl.) 303). It was specifically observed that a writ petition in such cases is not to be entertained.
Mukesh Aggarwal & Ors. Vs M.R. Jindal & ors. 2009 (2) JCC 1056, wherein it has been held that: "Three courses of action are open to the ld. MM. He might drop the proceedings by accepting the cancellation report. He might take cognizance of the offence under section 190 (1) (b) Cr. PC on the basis of the police report and issue process without being bound by the conclusion contained in the police report (i.e. by disagreeing with the cancellation report). A third option is that he might take cognizance under Sec. 190 (1) (a) on the basis of the original complaint and proceed to examine the complainant and his witnesses on oath under Sec.200 Cr. PC. It was explained that if the third alternative is adopted, the learned MM could hold or direct an inquiry under Sec.202 Cr. PC if he thought fit."
9. ld. counsel for the revisionist opposed the contentions of ld. Counsel for the respondent and relied upon the citation Pal @ Palla Vs State of U.P. VII (2010) SLT 44, wherein it has been observed that : "22. Section 210 Cr.P.C. provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. SubSection (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject 10 matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation. SubSection (2) provides that if a report is made by the Investigating Officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. SubSection (3) provides that if the police report does not relate to any accused in the complaint case, or if the Magistrate does not take cognizance of any offence on a police report, he shall proceed with the inquiry or trial which was stayed by him, in accordance with the provisions of the Code."
10.I have given careful consideration to the submissions of ld. Counsel for the respondent and ld. Counsel for the revisionist. It has come on record that the report u/s 173 Cr. PC was filed by the I.O. as untraceable against the FIR no.771/04 and thereafter a protest petition was filed by the revisionist which was dismissed by the ld. Trial court observing that all the objections raised against the Untrace Report are absolutely unsupported and baseless. These do not warrant any further action justifying the consideration of matter for summoning the accused persons. Allegations and the contentions are not well founded. In such circumstances, the complaint filed by the complainant on 09.11.06 was dismissed. The final Report in the form of Untrace Report filed by police was accepted. T o my view , citation relied upon 11 by the revisionist is not applicable in the present case precisely for the reasons that Protest Petition can neither be treated as complaint case procedure nor the investigation procedure but it appears to be sub species of the inquiry/ investigation procedure. To this effect cogent reasons for the acceptance of Untrace Report and dismissal of Protest Petition have been given by the ld. ACMM in the impugned order dated 25.06.2011. In the present case an untrace report was filed by the Economic Offence Wing u/s 173 (2) Cr. PC. The phrase 'untrace report' to my view either can be filed when the offence is committed but the committer of offence is not traceable. The another phrase 'cancellation of report', to my view it refers to the circumstances when no offence is made out during the course of investigation, therefore, the cancellation report is filed. In the present case keeping in view these facts and circumstances of the case and the submissions of revisionist and respondent and also perusal of the citations Pal @ Palla Vs State of U.P. VII (2010) SLT 44 relied by ld. Counsel for revisionist and judgments Gangadhar Janardan Mahtre Vs State of Maharashtra & Ors. 114 (2004) DLT 193 (SC) and Mukesh Aggarwal & ors. Vs M.R. Jindal & ors. 2009 (2) JCC 1056 - relied by ld. Counsel for respondents , discussed supra, I am of the view that protest petition of the revisionist has been dismissed after giving an opportunity of 12 hearing vide observations made by ld. MM as discussed in para '7' of this order. So long as the arguments of ld. Counsel for revisionist that opportunity on the protest petition must be treated u/s 210 Cr. PC, is not sustainable precisely for the reasons that if the same is allowed it may lead to the gross abuse of process of law. In view of these observations of ld. ACMM in her order that "in all probability, the alleged blank papers allegedly got signed from complainant and then misused by accused persons can not be these 13 documents which are signed by complainant in the year 1997. If these are so, then complainant has failed to explain how could be sign them in the year 1996 when these stamp papers were sold in the year 1997 as the Report of Collector's Stamps Govt. of NCT of Delhi also supports the fact. In view thereof, the allegations of complainant in his original complaint before police station as well as in Protest petition are completely unfounded, unsubstantiated and are uncalled for." Apart from this, on the point of the proceedings of investigation and on protest petition, this court is of the view that these are composite proceedings and not separable as the opportunity of hearing on protest petition does not confer a statutory right upon the revisionist but is the culmination of common law. In light of these facts and circumstances of the case, the judgments/ citations relied upon by the ld. Counsel for revisionist is not applicable in the case in hand. Hence, I agree with the observations made in the impugned order passed by ld. ACMM and in no case it can be accepted as cogent 13 arguments that the revisionist was denied to lead evidence u/s 210 Cr. PC within the meaning of section 200 Cr. PC to 210 Cr. PC. Therefore, in these facts and circumstances of the case I do not find it expedient to interfere with the order of ld. ACMM at this stage and also I do not find any infirmity/ illegality/ impropriety in the order dt. 25.06.2011 passed by ld. Trial court. Hence, the revision petition is dismissed. 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 30.07.02012 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 14