Delhi District Court
Sanjay Kumar Pandey vs . State & Others on 9 November, 2012
Sanjay Kumar Pandey Vs. State & Others
CR No. 96/12
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
1. Sanjay Kumar Pandey
S/o Sh. Nageshwar Pandey
R/o EC4, Inderpuri
New Delhi110012. ...Petitioner
VERSUS
1. State
(NCT of Delhi)
2. Karan Madaan
S/o Sh. Rajpal Madaan
R/o C81, Inderpuri
New Delhi110012 ... Respondents
CR No. 96/12
Date of Institution: 20.07.2012
Reserved for orders on: 20.10.2012
Judgment announced on: 09.11.2012
JUDGMENT
1. Vide this order, I shall dispose off the revision petition filed by the petitioner against the impugned order dated 19.07.2012.
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2. Brief facts of the case are that petitioner is a resident of property bearing No. EC5, Inderpuri, New Delhi for the last more than 30 years and the said house is owned by the father of the petitioner namely Sh. Nageshwar Pandey. It is further stated that Sh. Dhananjay Pandey has borrowed some money from respondent No.2 and and other family members who happened to be property dealers. It is further stated that the said amount was returned by the father of the petitioner by way of executing a sale deed in favour of respondent No. 2 and others. It is further stated that the said entire amount borrowed by brother of the petitioner was returned. It is further stated that respondent No. 2 and other also executed a receipt and agreement for cancellation of document executed in their favour and for execution of the fresh sale deed in favour of the father of the petitioner, but respondent No.2 has become greedy and trying to grab the said property. It is further stated that respondent No.2 has hatched a conspiracy alongwith other persons and when the petitioner alongwith his family members was sleeping in their respective rooms, respondent No. 2 alongwith other family members and other gunda elements came on 29.04.2012 at 3:30 pm at his residence and abused and slapped the guards and, therefore, forcibly tress passed the above said house belonging to the petitioner. The petitioner approached the SHO but the SHO crossed the all limits and tress CR No.96/12 -:2:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 passed alongwith other persons including respondent No.2 without any directions from the higher officials in the said property and the petitioner as well as other family members were shocked to see all these incidents.
3. It is further stated that the petitioner summoned the President of Delhi High Court and with the intervention of respectable persons of the locality, the said persons vacated the house after four hours but the said persons come to take forcible possession of the property. It is further stated that respondent No.2 has snatched diamond chain of the mother of the petitioner worth Rs. 8 lacs and she received injuries and getting treatment in Ganga Ram Hospital and respondents have also abused security guard of the petitioner who is a scheduled caste and complaint in this regard was also made. It is further stated that in the meantime, the respondent No. 2 has filed a complaint under section 200 Cr.PC against the petitioner and two others for commission of alleged offences under section 406/415/420/120B/323/354/390/ 392/394/452/506/511/34 IPC with the false and frivolous allegations. It is further stated that respondent No. 2 has alleged in his complaint that he alongwith Tanuj Dhawan and Mrs Rajender Kumar Dhawan had also paid entire amount to Nageshwar Pandey who failed to give the physical vacant possession of the property to respondent No.2 CR No.96/12 -:3:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 and others. It is further stated that respondent No. 2 has alleged in his complaint that when respondent No. 2 was shifting certain household articles and a Grah Parvesh (House warming) was scheduled to be performed on 29.04.2012, the accused persons including the petitioner alongwith several musclemen illegally tress passed the property allegedly purchased by the respondent No.2 and started throwing his house hold articles and the petitioner started beating respondent No.2 mercilessly and accused No.1 pulled out a pistol and threatened that, in case, any hue and cry is raised, they will be done to death.
4. It is further stated that as per the allegations of the respondents, accused No. 1 started misbehaving with the wife of respondent No.2 and started pushing and touching her at misappropriate places and made fun of her. Accused No. 2 and 3 also alleged to have molested the wife of respondent No. 2 including other members and respondent No.2 was compelled to lock all the ladies in one room. It is further the allegation of the respondent No. 2 that jewellery including one ring of his wife was taken away by accused/petitioner. On these allegations, the respondent/complainant moved the complaint for issuance of direction under section 156(3) Cr.PC to lodge the FIR against the petitioner. It is further stated that knowing this CR No.96/12 -:4:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 fact, the petitioner immediately moved the transfer application of the case from the Ld. Trial Court to some other court but said application was dismissed and thereafter the petitioner moved application under section 210(1) for stay as investigation is under progress but vide impugned order, Ld. Trial Court has dismissed the application moved by the petitioner and issued directions which have been impugned by way of present petition.
5. It is further contended that the impugned order passed by the trial court is based on conjuncture and surmises and admitted principles of law, in as much as the present complaint is misuse of the process of law and the respondent No. 2 has concealed the material facts and concocted a false story in order to implicate the petitioner. It is further contended that respondent No. 2 has filed a civil suit before Hon'ble High Court of Delhi titled as Karan Madan Vs. Nageshwar Pandey bearing No. 1633/2012 wherein interim order of injunction has been passed. It is further submitted that the Ld. Trial Court has not considered the material fact that respondent No. 2 concealed the material facts from the knowledge of the court in as much as vigilance enquiry has been ordered by the DCP and same has been initiated on the complaint of respondent No.2 himself and respondent No. 2 has further concealed the fact that CR No.96/12 -:5:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 he had already made a complaint to the police station vide DD No. 52B dated 30.04.2012 and he has further concealed the fact that Shiv Charan Manjhi has made a complaint under SC/ST Act against respondent No.2 and his associates and the erring police officials to the CP and it has thus contended that concealment of facts by the complainant/respondent tantamount to the misuse of the court of law; and amounts to fraud as he has deliberately caused a deception with the design of securing something by taking unfair advantage of petitioner and as such it is a deception in order to gain from another's loss, and as such the said fraud committed by respondent interfere with administration of justice, as well as contempt of court and on this count the impugned order is liable to be set aside. In this regard, counsel for the petitioner has relied upon: Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors JT 2005(7) SC 530, Chandra Shashi Vs. Anil Kumar Verma 1995 SCC (Cri) 239, R.v. Weisz and another Ex parte Hector MacDONALD Ltd All England Law Reporter (July 26, 1951) page 408, K.K.Dahiya & Ors Vs. Ramanand & Ors 2011 (1) JCC 75, R.P.Malik Vs. Anil Sharma & Ors 154 (2008) DLT 647 (DB), Sadhana Sharma Vs. MCD & Ors 157 (2009) DLT 462 (DB) and S.P.Chengalvaraya Naidy (dead) by LR Vs. Jagannath (dead) by LR 1993(4) SCALE
277.
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6. It is further submitted that Ld. Trial Court has not appreciated that as per the status report submitted by SHO PS Inderpuri, the allegations of complaint filed by respondent No. 2 were found false and after that SHO has submitted in the report that either respondent No. 2 or his family members including his wife did not make any such allegations on the date of incident and Ld. Trial Court has not considered the said report submitted by the SHO. It is further submitted that before filing of present complaint, the complainant has filed a suit before Hon'ble High Court where the allegations are contrary to the present complaint and ld. Trial Court has ignored the fact that when civil cases are pending between the parties and allegations of which are, prima facie, civil in nature so the trial court should have been refrained from passing the directions under section 156(3) Cr.PC as the allegations are purely of civil nature and superior courts have also deprecated going on of criminal proceedings simultaneously with that of civil proceedings. In this regard, counsel for the petitioner has relied upon: M/s indian Oil Corporation v. M/s. NEPC India Ltd. & Ors. AIR 2006 SC 2780, ESCORTS YAMAHA MOTORS LTD v. STATE AND ANOTHER 76(1998) DLT 662 (DB), Wolfgang Reim & Ors Vs. State & Anr. 2012 VI AD (Delhi) 568, Alpic Finance Ltd. v. P Sadasivan and another (2001) 3 SCC 513, Trilok Singh and others v. Satya Deo Tripathi AIR 1979 SC 850, Dalip Kaur and CR No.96/12 -:7:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 others v. Jagnar Singh and another (2009) 14 SCC 696, Suneet Gupta v. Anil Triloknath Sharma & Ors 2008(7) SCALE 110, V.P. Shrivastava v. Indian Explosives Ltd & Ors 2010 (10) SCALE 177, Mohammed Ibrahim and others v. State of Bihar and another (2009) 8 SCC 751, Murari Lal Gupta Vs. Gopi Singh (2006) 2 SCC (Cri) 430 and Nageshwar Prasad Sinjgh @ Sinha v. Narayan Singh and another AIR 1999 SC 1480.
7. It is further submitted that power under Section 156(3) Cr.P.C are to be used sparingly in the cases where police investigation is necessary to make recoveries from the accused persons but in the present case, all the documents are already on record and there was no need to issue any direction for registration of FIR as all the documents already in possession of the complainant which are alleged to be forged by the accused persons. In this regard, Ld. Counsel for the petitioner has relied upon "M/s Skipper Beverages Pvt. Ltd. Vs. State, Crl. M.(M) No. 579/2001".
8. It is further contended that Ld. Trial Court should have exercised the judicial discretion in a judicious manner and no directions should have been issued to register an FIR and at the most evidence should have been allowed to be led by the complainant in the said complaint. In this regard, Ld. Counsel CR No.96/12 -:8:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 for the petitioner has relied upon "M.M. Rai Khanna and Anr. Vs. The State & Anr. Crl. Misc. No. 1053 of 2007 passed by Hon'ble High Court of Delhi."
9. It has been further contended that order passed by Ld. Trial Court by issuing directions to register an FIR is not an inter locoutery order and hence the same is revisable. In this regard, Ld. Counsel for the petitioner has relied upon "Sabir Vs. Jaswant & Ors. Crl.Misc. W.P. No. 6302 of 2002" and "Ajai Malviya Vs. State of U.P. & Ors. Crl. Misc. Writ Petition no. 2715 of 2000 passed by High Court of Allahabad". In this regard, Ld. Counsel for the petitioner has relied upon the judgment Gautam R.Patel v. State 2007(1) JCC 448 and M.C.Abrahim Vs. State of Maharashtra 2003(2) SCC 649 passed by the Hon'ble High Court of Delhi. It is further contended that the order passed under section 156(3) Cr.PC by the Ld. Magistrate is not an interlocutory order as such revision against the impugned order is maintainable. In this regard, he had relied upon Mohd Salim Vs. State 175(2010) DLT 473.
10. Ld. Counsel for the petitioner has contended that Ld. Trial Court has not applied his judicial mind to the facts and circumstances of the present case and the impugned order has CR No.96/12 -:9:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 been passed in mechanical manner as no provision of IPC is attracted to the facts and circumstances of the case as disclosed in the complaint and I.O. has filed the status report and on the basis of said report the Ld. Trial Court has issued directions for registration of FIR by way of impugned order in a summary fashion without examining as to which of the cognizable offence is made out and while investigation is in progress court cannot direct the investigating agency to submit a report in accordance with the court's on view. As such, the impugned order deserves to be set aside. In this regard, Ld. Counsel for the petitioner has relied upon the judgment M.C.Abraham v. State of Mahrashtra (2003) 2 SCC 649.
11. Per contra, Ld. Counsel for the respondent has contended that, in case, from the documents on record, cognizable offence is made out from the bare perusal of the complaint, Ld. Magistrate is left with two options namely either to take cognizance under Section 190 Cr.P.C. or issue directions under Section 156(3) Cr.P.C. for issuance of directions to the police authorities to lodge FIR. But if once Ld. Magistrate has taken cognizance and undertaken upon the procedure of chapter XV of the Cr.P.C., is not competent to set back the process to precharge stage and avail of Section 156(3) Cr.P.C.
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12. It has been further contended that the SHO gets an information, disclosing commission of cognizable offence, is left with no option except to register the FIR. The police authority is bound to lodge FIR and information is sina qua non for recording an FIR is that there will be information and that information must disclose a cognizable offence. In this regard, Ld. Counsel for the respondent has relied upon the following judgments:
i. Ramesh Kumar Vs. State NCT of Delhi & Ors., Supreme Court of India, Crl. Appl no. 1229 of 2001;
ii. Surendra Singh Vs. State of Bihar, Supreme Court of India, Crl. Appeal No. 179 of 2005 (arising out of SLP (Crl.) No. 875 of 2004);
iii.Shanti Devi & Anr. Vs. State, 97 (2002) Delhi Law Times 410 (DB);
iv. Aleque Padamsee & Ors. Vs. Union of India & Ors., Supreme Court of India, Crl. W.P. No. 1115 of 2003, D/d 18.07.2007;
v. State Bank of Punjab Vs. Baldeep Singh, Crl. Appeal No. 503SB of 1994, D/d 09.05.2007;
vi. Satish Kumar Goel Vs. State &Ors., 84 (2000) DLT 199 (DB);
vii.Rajender Singh Katoch Vs. Chandigarh Administration & Ors., 2008(1) JCC 246;
CR No.96/12 -:11:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 viii. Lallan Chaudhary & Ors. Vs. State of Bihar & Anr. 2006 (3) JCC 1731;
ix. State of Bihar & Anr. Vs. Ranchi Zila Samta Party & Anr., (1996)3 Supreme Court Cases 682;
x. Gayatri Laxmi Bapurao Nagpure Vs. State of Maharashtra & Ors. (1996) 3 Supreme Court Cases 685;
xi. Krishan Lal Vs. Dharmendra Bafna & Anr. 2009 Crl.L.J. 3721;
xii.Kirender Sarkar & Ors. Vs. State of Assam, 2009 Cri. L.J. 3727;
xiii.Yogesh Gupta Vs. Secretary (Home) NCT of Delhi & Ors. 161(2009) Delhi Law Times 380;
xiv.Kanan Bakshi Vs. Atul Bali & Anr. 161(2009) Delhi Law Times 397 (DB);
xv.Priya Gupta Vs. State 2007 V AD (Delhi) 707; and xvi. Radha Vs. State, 179 (2011) Delhi Law Times 810;
13. It has been further contended by the Ld. Counsel for the respondent that this petition is not maintainable as issuance of direction under Section 156(3) Cr.P.C. is an inter locoutery order and as such this revision petition is not maintainable. In CR No.96/12 -:12:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 this regard he has relied upon Father Thomas v. State of UP 2010 INDLAW All 1692 and judgment passed by Hon'ble High Court of Delhi in Crl.M.C. 1588/2011 titled Vishal Kumar Sharma v.State wherein the name of Father Thomas was upheld and Vanshu v. State of UP 2007 Cr.LJ 4677 and Ramesham V. Rakesh Kumar AIR 2009 SC 2459.
14. It is further submitted that the accused/petitioner have committed cognizance offence as depicted from the bare perusal of the complaint and prima facie offence against the accused is made out and the direction has been rightly issued by the Ld. Trial Court. In this regard, counsel for the respondent has relied upon Aman Ullah Khan v. State and ors CRL MC No. 2488/2011 passed by Delhi High Court.
15. It is further submitted that even in the dispute pertained to immovable property the incident which took place on the fateful day with a well hatched conspiracy and directions issued vide impugned order is legal and sustainable in the eyes of law. In this regard, Counsel for the petitioner has relied upon Sidharth Dhingra Vs. State & Ors W.P (CRL) 184/08 passed by the Hon'ble High Court of Delhi.
16. It is further submitted that Ld. Trial Court is not CR No.96/12 -:13:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 supposed to give detailed order and reasons for making order by issuing directions under section 156(3) Cr.PC but if cognizance offence is, prima facie, appears to have been committed by the accused persons such directions can be issued. In this regard, counsel for the respondent has relied upon: Anupam Bharteeya & State & Ors 2005(2) JCC 1113.
17. I have heard Ld. Counsel for the parties and perused the record.
18. It is a settled law that pre requisites to be followed by a complainant before approaching the Magistrate under Section 156(3) and consideration to be taken into account before proceeding to pass order under the Section 156(3) Cr.P.C. The magistrate is required to exercise his mind while doing so. He should pass order only, if he is satisfied that the information reveals commission of cognizable offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is thus not necessary that in every case where a complaint has been filed under Section 200 of the Code the Magistrate should direct the Police to investigate the crime merely because an application has also been filed under Section 156(3) of the Code even CR No.96/12 -:14:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the Court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored.
19. The preliminary question has been raised by the Ld. Counsel for the respondent that this petition is maintainable as the impugned order is an in interlocutory order.
20. In this regard, I would like to reproduce the observation made by Hon'ble Supreme Court so far as meaning of interlocutory order is concerned. The Hon'ble Supreme Court in "Madhu Limaye Vs. The State of Maharashtra (1977) 4 SCC 551" has held as under:
"13.... if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in on way, will finally dispose of the matter in dispute but, if given in the order,will allow the action to go on, then I think it is not final, but CR No.96/12 -:15:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 interlocutory.
"13..... if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined."....
21. The Hon'ble Supreme Court in "Amar Nath & Ors. VS. State of Haryana & Anr. (1977) 4SCC 137" has also held as under : " 6... the main question which falls for determination in this appeal is as to what is the connotation of the term "inter locoutery order" as appearing in subsection (2) of Section 397 which bars any revision of such an order by the High court. The term "interlocutory order" is an term of a well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New Worlds Dictionary "inter locoutery" has CR No.96/12 -:16:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 been defined as an order other than final decision. Decided cases have laid down that interlocoutery orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect . It seems to us that the term "interlocoutery order" in Section 397 (2) of the 1973 Code has been used ina restricted sense and not in any broad or artistic sense. It merely denotes orders of a touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an inter locoutery order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code."
22. The feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on such objections would CR No.96/12 -:17:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 not be merely interlocutory in nature as envisaged in 397(2) of the code.
23. Whether issuance of directions under Section 156(3) Cr.P.C. is an interlocutory order or not the Full Bench of Hon'ble Allahabad High Court in Father Thomas Vs. State of U.P. & Anr. Crl. Rev. No. 2011 Cril. L.J. 2278" has observed as under: "Even when a complaint is filed under Section 190(1)(a) and the Court decides to take cognizance and to adopt the procedure provided for inquiry under Ss. 200 and 202 Cr.P.C., the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defence, untill the order issuing summons is passed. The right of hearing of a prospective accused at the precognizance stage, when only a direction for investigation by the police is issued by the Magistrate under Section 156(3) Cr.P.C. can only be placed at a lower pedestal. It is only during the course of trial that the accused has been conferred rights at different stages to raise his defence. In the absence of any statutory right to hearing to the CR No.96/12 -:18:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 prospective accused at the precognizance stage, when direction to investigate has only been issued by the Magistrate under Section 156(3), the accused cannot be conferred with any right of hearing even under any principle of audi alterm partem.
Even after submission of a final report, either when police decides to order further investigation under Section 173(8) or before accepting or rejection the report, only the informant is required to be heard. The accused is not entitled to be heard even at that stage. Therefore, it would be unrealistic to confer a right of hearing when only an innocuous direction for investigation is passed by the Magistrate in a case disclosing a cognizable offence, especially when the allied order regarding the decision of a police officer to investigate in exercise of power under Section 156(1) is not vulnerable to challenge in the criminal revision. Also when objections to maintainability of a case are raised on the ground of limitation under Section 468 or under Section 195 Cr.P.C., the CR No.96/12 -:19:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 appropriate stage for raising these objections is at the time of cognizance or at the time of framing of charges, and not when a Magistrate issues a direction for investigation under Section 156(3) Cr.P.C.
Thus, the prospective accused has no locus standi to challange a direction for investigation of a cognizable case under Section 156(3) in revision before cognizance or issuance of process against the accused.
24. Even our own Hon'ble High Court in Subhkaran Luharuka & Anr. Vs. State (Govt. of NCT of Delhi) & Anr. 2010 (3) JCC 1972 as under:
Para 86 .......
18. In Vanshu v. State of U.P., 2007 Crl.L.J. 4677, Allahabad High court held that the order passed by the Magistrate, directing registration of FIR and investigation of the case, being an inter locoutery order, is not amenable to revisional jurisdiction of the High Court. In the case before Allahabad High Court, the order passed by the CR No.96/12 -:20:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 Magistrate under Section 156(3) of the Code of Criminal Procedure was challenged by the accused persons by filing a revision petition before the Sessions Judge, who setaside the order passed by the Magistrate. The order passed by the Magistrate was then challenged before the High Court on the ground that the order being a precognizance order, Session Judge has no jurisdiction to entertain the revision filed by the accused.
The High Court felt that while passing order Section 156(3) of the Code of Criminal Procedure, the Magistrate had not applied his mind against anybody and since the accused does not have right to appear before the Magistrate at precognizance stage, he canot challenged an inter locoutery order passed in such a proceedings. The High Court observed that the order passed by the Magistrate was only a preemptory reminder or intimation to the police to exercise their plenary power of the investigation. The petition before this Court being under Section 482 of the Code of Criminal CR No.96/12 -:21:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 Procedure , the decision of Allahabad High Court taking view that the order passed by the Magistrate being an inter locoutery order, could not be challenged under Section 397(2) of the Code does not apply to this petition. Even an inter locoutery order can definitely be challenged by way of a petition under Section 482 of the Code of Criminal Procedure, as noted earlier.
25. There is no dispute about the ratio of the case laws laid down in the abovesaid judgments as described in para 9 of this order. I have gone through the judgments relied upon by the Ld. Counsel for the petitioner as none of these judgments lays down the proposition of law that issuance of direction under section 156(3) Cr.PC by Ld. Trial Court is not interlocutory order. The same are not applicable to the facts and circumstances of the case of the petitioner. The ratio of judgment passed in Gautam R. Patel (supra) relied upon by the Ld. Counsel for the petitioner is not to the effect that issuance of directions under Section 156(3) Cr.P.C. is an inter locutory order or not. Whereas in Father Thomas (Supra) it has been held that issuance of directions under Section 156(3) Cr.P.C. is inter locutory order and not revisable.
CR No.96/12 -:22:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 26 In Professor Ram Vs. State of UP 2008 CriLJ 1515 it has been observed in para 9 as under:
"It seems to us clear from the entire scheme of Ch.XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on but since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can be examine any witnesses at CR No.96/12 -:23:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 the instance of such a person of course, the Magistrate himself is free to put such questions to the witness produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No.1 that the very object of the provisions of ch. XVI of the 'Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made."
27. So far as contentions of the counsel for the petitioner that revision is maintainable against the impugned order vide which the directions have been issued for registration of FIR against the petitioner by relying upon Mohd. Salim case is devoid of merits as it has been observed in para 8 in Mohd. Salim's case which is reproduced as under:
The first question which comes up for consideration is as to whether an order passed under section 156(3) of the code of CR No.96/12 -:24:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 Criminal Procedure can be challenged by way of a petition under section 482 of the Code of Criminal Procedure. It has been contended by the learned counsel for the complainant/respondent that since registration of FIR, on receipt of information of commission of a cognizable offence, is mandatory as provided under section 154 of the Code of Criminal Procedure, the order passed by the Magistrate under section 156(3) is in the nature of a reminder to the SHO and an administrative, order which cannot be subject matter of challenge before a superior court. On the other hand, the contention of the learned counsel for the petitioner is that the order passed under section 156(3) being a judicial order, it is open to the petitioner to challenge it in appropriate proceedings. This was also his submission that if the court comes to a conclusion that a petition under section 482 of the Criminal Procedure Code is not maintainable, the petition filed by him may be treated as a writ petition under Articles CR No.96/12 -:25:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 226/227 of the Constitution.
So it is not the ratio of Mohd Salim case that revision is maintainable before sessions court under section 397 Cr.PC, as such directions issued under section 156(3) Cr.PC vide impugned order is interlocutory order and revision is not maintainable.
28 Even Hon'ble High Court of Delhi in Vishal Kumar Sharma (supra) has observed in para 11 as under:
"No doubt, there is a Full Bench judgment of Allahabad High Court to the effect that an order directing investigation section 156(3) Cr.PC is not a revisable order but this judgment has to be shown to the Revisionist Court instead of assailing the order of the learned Sessions Judge in a petition under section 482 Cr.PC. The learned sessions Judge has only issued notice in the impugned order dated 10.03.2011. The operation of the order of the Trial Court has also been stayed till next date of hearing. The petition does not show as to whether on CR No.96/12 -:26:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 the subsequent date thereto, the petitioners have put in appearance in response to the notice or not. Simply on account of notice having been issued, it could not be assumed that the learned Sessions Judge has disposed of the Revision Petition in favour of the petitioners in the said Revision Petition. Therefore, in my considered opinion, the proper remedy for the present petitioners is to approach the learned ASJ and apprise him about the judgment of the Full Bench of the Allahabad High Court and make necessary submissions before the said court."
29. Even the Hon'ble High Court of Orissa in Ganga Dhar Behera and Anr. Vs. State of Orissa and Anr. 2008 CriLJ839 has observed in para 6 as under:
From the bare reading of the above two provisions, it is crystal clear that the power under section 156(3) can be invoked by a Magistrate before he takes cognizance. But if he takes such cognizance, he is not CR No.96/12 -:27:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 competent to switch back to the pre cognizance stage as provided under section 156(3). The order made under Subsection (3) of Section 156 is in the nature of intimation to the police to exercise their plenary powers of investigation under section 156(3). Such an investigation embraces the entire process which begins with the collection of evidence under section 156 and ends with a report under Section 173, Cr.PC. That means, the Magistrate has not applied his mind nor as he collected any evidence from any source. Rather, he has directed the police to exercise their plenary power under section 156(1) to cause investigation on the allegations made and furnish a report under section 173, Cr.PC.
The report may be either by way of charge sheet or final report. After receiving the same, the Magistrate can apply his judicial mind. That apart, the impugned order is definitely before taking cognizance and is not in nature of final order. It is the settled principle of law that no revision will lie CR No.96/12 -:28:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 against an interlocutory order. Since it is not a final order, the criminal revision is not maintainable.
In Vanhu's case (supra), it has been observed:
In this respect, I may make it clear that the two judgments of this court referred to by the session's judge in his impugned order completely ignored section 397 Cr.PC in full and observed that revision is maintainable against an order under section 156(3). Neither in the two decisions of Ajai Malviya and Sabir (both supra) section 397 cr.PC was taken note of specially section 397(2) Cr.PC which puts a complete bar for exercise of revisional power against interlocutory orders. This aspect of the matter has been dealt exhaustively in the case of Rakesh Puri and anr. v. State of UP and Anr. 2007(i) ALJ
169. after going through various decisions by the Apex Court and looking into the decision of Ajai Malviya it was held in that decision that Ajai Malviya's case is per CR No.96/12 -:29:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 incurium as it ignored statutory provision of 397(2) Cr.PC which prohibits revision against interlocutory orders, and which deals with revisional power of this court as well as lower revisional court. It was further noted in the said decision Rakesh Puri (supra) as to what is the scope of power of Central Bureau of Investigation through its S.P.Jaipur v. State of Rajasthan 2001 SCC (Cr) 524 it was held in the said decision as follows:
It is preposterous even to cogitate that o.person has a right to appear before the Magistrate to oppose an application seeking a direction from him for ....registration and investigation of the offence when he has no right to participate in the said exparte proceeding. If permitted this will amount to killing of foetus of investigation in the womb when it was not there at all. Such a power has not been confened under the law on the prospective accused.
30. In the cases of Madhu Limaye (Supra) and Amar CR No.96/12 -:30:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 Nath (Supra), Hon'ble Supreme Court has laid down the principle defining the term 'inter locutory order' and in view of the law laid down therein, the impugned order cannot be held to be intermediate order as such the impugned order is an inter locutory order and not revisable.
31 There is no dispute about the ratio of the case law relied upon as detailed in para 5,6 and 7 of the order but these judgments are distinguishable to the facts and circumstances of the present case in as much as in the present case the directions have been issued by the Ld. Trial Court by way of impugned order in respect of the incident in which the petitioner/accused are stated to have committed cognizance offence against the respondent No.2 as well as his family and such dispute cannot be termed as involving dispute of civil nature. It is observed in para No. 15 of the impugned order and directions have been issued to look into the matter and even if for the sake of arguments, it is presumed that the complainant has not disclosed the pendency of civil suit between the parties the same does not tantamount to concealment of a fact which may be termed as fraud because the incident pertaining to tress passing and misbehaving with the complainant and his family and further ill treatment and the Ld. Trial Court has rightly observed that no investigation is pending as to warrant stay in CR No.96/12 -:31:- 09.11.12 Sanjay Kumar Pandey Vs. State & Others CR No. 96/12 further proceedings under section 210 Cr.PC.
32 From the above discussion, I am of the opinion that it is settled law that order under section 156(3) is matter of discretion and though the same is also required to be done judicially but in the present matter it cannot be said that the Ld. Trial Court has not exercised the said discretion judicially and, therefore, no fault can be found in the impugned order passed by Ld. Trial Court based upon the material on record. As such, the impugned order neither suffers from any illegality or infirmity. The same is, therefore, upheld and the present petition is hereby dismissed.
33 TCR and copy of the order be sent to the Ld. Trial Court for information and compliance.
34 File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 9th Day of November 2012 ASJ/ Dwarka Courts
New Delhi/09/11/2012
CR No.96/12 -:32:- 09.11.12