Delhi District Court
Amit Kumar vs Nirmala Devi And Anr on 14 December, 2023
Amit Kumar Vs. Nirmala Devi & Ors.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.:- 408/2019
CNR NO.:- DLWT01-008978-2019
IN THE MATTER OF :-
Amit Kumar
S/o Sh. Surender Pal Verma
R/o RZ-114, Vishnu Garden,
New Delhi-110018 .... Revisionist
VERSUS
1. Nirmala Devi
W/o Vinod Kumar
2. Vinod Kumar
S/o Sh. Chatter Singh
Both R/o H.No. RZF-71, Nihal Vihar,
Nangloi, New Delhi-110041
3. State .... Respondents
Date of institution of the revision petition : 04/11/2019
Date on which judgment was reserved : 05/12/2023
Date of judgment : 14/12/2023
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.12.14
16:10:44
+0530
CR No. 408/2019 Page No.1 of 34
Amit Kumar Vs. Nirmala Devi & Ors.
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under section 397/399/400 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the order dated 02/08/2019 ('hereinafter referred to as 'impugned order') passed by Sh. Pankaj Arora, Ld. MM-03, West District, Tis Hazari Courts, Delhi, in complaint case No. 1962/2018, PS Nihal Vihar, titled as "Amit Kumar Vs. Nirmala Devi & Anr." thereby application u/s. 156 (3) Cr.P.C. of the complainant (revisionist herein) was dismissed.
In the present revision petition, the revisionist has prayed to set aside the impugned order dated 02/08/2019 passed by the Ld. Trial Court and to give direction to lodge the FIR against the respondents.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that the revisionist was the owner of property bearing no. 34/20, measuring 100 sq. yards situated at Q- Block, Nihal Vihar, Nangloi, New Delhi and said plot was purchased by the revisionist on 23/05/2008 from Sh. Tara Chand Goyal through title documents i.e. GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Deed of Will. On 29/09/2012, an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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agreement was executed between the revisionist and respondent no.1 and as per agreement, the total consideration amount of the aforesaid property was settled at Rs.61,50,000/- and on the same day, the respondent no.2 had given a sum of Rs.6,00,000/- as Bayana to the revisionist and remaining amount of Rs.55,50,000/- was promised to be paid to the revisionist within 70 days. On 08/12/2012, the respondent no.2 had given a sum of Rs.25,00,000/- and on the same day, the respondent no.1 had also given Rs.5,00,000/- as part payment to the revisionist. On 10/12/2012, an amount of Rs.6,50,000/- was also paid by the respondent no.2 to the revisionist as part payment. Respondents have not paid the remaining amount of Rs.19,00,000/- to the revisionist till today. On the request of respondent no.2, the revisionist had sold the half portion i.e. 50 sq. yards out of 100 sq. yards of the aforesaid property to the wife of respondent no.2 i.e. respondent no.1 on 09/02/2013 and title documents i.e. GPA, Agreement to Sell, Affidavit, Possession Letter, Receipt and Will were executed in favour of the respondent no.1. On 26/12/2016, 03/01/2017, 08/01/2017 and 09/01/2017, respondent no.2 alongwith Goonda elements tried to dispossess the revisionist from the remaining half portion of the property forcibly and without due process of law. On 19/01/2017, the revisionist had filed a civil suit bearing no. 69/2017 for permanent injunction titled as "Amit Kumar Vs. Vinod Kumar" and same is pending before the Ld. Civil Judge, Tis Hazari Courts, Delhi. On 24/05/2017, the respondent no.2 had filed his written statement Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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and also filed false and fabricated title documents dated 09/02/2013 of the property of the revisionist and the aforesaid documents do not bear the signature of any witness nor signature of any purchaser. The revisionist never sold his remaining half portion of the property to the respondent no.2 and Surender Pal Verma at any point of time. The respondent no.2 had prepared the aforesaid false, fabricated and forged documents to grab the property of the revisionist. The respondent no.2 in his written statement had admitted that complainant sold his half portion of the property to the respondent no.1 and executed all relevant documents in favour of the respondent no.1. On 06/09/2017, the respondent no.2 again tried to dispossess the revisionist from his remaining half portion of the aforesaid property and the revisionist had lodged a written complaint bearing DD No. 98 dated 06/09/2017 against the respondent no.2. On 21/03/2011, respondent no.1 had also prepared forged, fabricated and false documents of the property of the revisionist measuring 50 sq. yards. The revisionist never sold any part of his property on 21/03/2011 to respondent no.1.
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition.
Grounds of revision- The impugned order is bad, arbitrary and same has been passed in a mechanical manner without applying the judicial mind. Ld. Trial Court has failed to appreciate the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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material facts of the case. Ld. Trial Court has failed to appreciate that the offence is cognizable, hence, the impugned order is liable to be set aside. Ld. Trial Court has failed to consider that in the present case, the police investigation is required as all the original forged and fabricated documents dated 11/02/2013 are lying in the custody of the respondents which needs to be taken from the custody of the respondents by the police and it is the duty of the police to check/compare the signature as well as thumb impression on the aforesaid documents. Forged signature and thumb impression on the aforesaid documents can only be verified by sending the same to CFSL. It is the fit case for giving the direction to the police to register the FIR and investigate the matter. Ld. Trial Court has failed to consider that from the complaint which was given to the police, a cognizable offence is made out. The revisionist shall suffer irreparable loss and injury, if the impugned order is not set-aside.
4. This Court already heard the arguments on the present revision petition advanced by Ld. Counsel for the parties. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set-aside on the grounds, as mentioned in the present revision petition. On the other hand, it was submitted by Ld. Counsel for Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the respondent no.1 & 2 that the present revision petition is not maintainable as the Ld. Trial Court has passed the impugned order in accordance with law and there is no merits in the present revision petition and the same is liable to be dismissed. It was submitted by the Ld. Addl. PP for the State/respondent no.3 that Court may pass the judgment in accordance with law.
5. By way of present revision petition, the revisionist has challenged the order dated 02/08/2019 passed by the Ld. Trial Court. The impugned order is reproduced as under:-
"02.08.2019 Present: Complainant with Ld. Counsel.
At 4.00pm ORDER Brief facts of the present case as stated by the complainant are that the complainant was the owner of the property bearing No. 34/20, measuring 100 sq. yards size 30'x30' situated at Q-Block, Nihal Vihar, Nangloi, New Delhi and said plot was purchased by the complainant on dated 23.05.2008 from Sh. Tara Chand Goyal son of Sh. Ram Lal Goyal, R/o WZ-283/29, Maddi Wali Gali, Vishnu Garden, New Delhi through title documents ie GPA, Agreement to Sell, Affidavit, receipt, possession letter, Deed of Will, all dated 23.05.2008.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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On 29.09.2012 an agreement was executed between the complainant and accused no.1 and as per agreement the total consideration amount of the above said property was settled of Rs.61,50,000/- and on the same day accused no.2 given a sum of Rs 6,00,000/- as bayana to the complainant and remaining amount for a sum of Rs. 55,50,000/- was promised to pay to the complainant within 70 days and the same terms and conditions is also mentioned on the agreement dated 29.09.2012. But accused no.2 given a sum of Rs. 25,00,000/- on dated 08.12.2012 in the morning hours and on the same day in evening hours, the accused no.1 also given Rs. 5,00,000/- as part payment to the complainant of the said settlement amount and accused no.2 also paid a sum of Rs.
6,50,000/- to the complainant on 10.12.2012 as part payment of the said consideration amount and the amount of Rs. 19,00,000/- to the complainant till today. On the request of the accused no.2, the complainant sold the half portion of the said property mentioned above to the wife of the accused no.2 ie accused no.1 on 09.02.2013 and executed all title document ie. GPA, Agreement to sell, Affidavit, Possession Letter, receipt and Will in favour of accused no.1.
On 26.12.2016, 03.01.2017 and 08.01.2017, accused no.2 along with his goonda elements tried to dispossess the complainant from the remaining half portion forcibly and without due process of law. On 09.01.2017, accused no.2 also tried to dispossess the complainant from his remaining half portion of the property and given threats Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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for dire consequences. Thereafter on 19.01.2017, the complainant filed a Civil Suit for Permanent Injunction bearing No. 69/2017 titled as "Amit Kumar vs. Vinod Kumar" and the same is pending before the Hon'ble Court of Sh. Sachin Sangwan, Civil Judge. On 24.05.2017, accused no.2 filed his written statement before the Court and also filed false and fabricated title documents of the complainant property ie GPA, Agreement to sell, Affidavit, Possession Letter, receipt and Will all dated 11.02.2013 and the stamp paper of same documents prepared by accused no.1 does not bear the signature of any witness not bear the signature of any purchaser. The complainant never sold his remaining half portion of the property to accused no.2 and Surender Pal Verma. Accused no.2 prepared the said false, fabricated and forged documents in order to grab the property of complainant. Whereas, on 09.02.2013, the accused no.2 admitted in his WS that complainant sold his half portion of the property to accused no.1 and execute all relevant document in favour of accused no.1.
After filing the Civil Suit by the complainant against the accused no.1. Accused no.2 on 06.09.2017 again tried to dispossess the complainant from his remaining half portion of the property and in this regard the complainant also lodged a written complaint against the accused no.2 bearing DD No. 98, dated 06.9.0217.
As per the ATR filed by the IO, it is stated that one FIR No. 651/17 has already been registered against the complainant and complainant has failed to produce the original Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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documents in his favour despite service of notice u/s 91 Cr.PC.
This court has heard arguments and perused the record.
Here it is relevant to look into the judgment of Hon'ble Delhi High Court in the mater of Sh. Subhkaran Luharuka Vs. State Cr.M.L NOS. 6122-23/2005 and 6133- 34/2005, the Hon'ble High Court of Delhi circulated the following guidelines for the Magistrate dealing with the application under Section 156 (3) Cr.P.C.
1. Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under Section 154(3) of the Code.
2. The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
3. The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused.
In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
4. Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Digitally police signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reason as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.
As a matter of fact it has been stressed by law Courts and more particularly in the recent decisions by the Hon'ble Apex Court in L. Sakiri Vasu Vs. State of U.P. & Ors, CRL appeal No. 1605/07 arisen out of SLP No. 6404/07 that there is nothing illegal for a magistrate to direct police to register a FIR as after all registration of a FIR involves only a process of entering a substance of the notion relating to the commission to the cognizable offence in a book kept by the officer in-charge of the police station as indicated in section 154 Cr.P.C.
This Court has heard the arguments & perused the record. It is observed that all the documents and evidence are in custody of the complainant and nothing is out of reach of the complainant which requires special investigation through Police. This court is also of the considered view that the complainant is well within the power and in possession of the documents/material/ evidence required to prove her case by adducing evidence.
Accordingly, the application of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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complainant under Section 156(3) Cr.P.C is accordingly dismissed. The complainant is given opportunity to prove his case by adducing C.E. Put up for CE on 19.11.2019.
(PANKAJ ARORA) M.M:03/THC (WEST), Delhi/02.08.2019 "
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under:-
Section 397:- Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation- All Magistrates, whether Executive or Judicial, and whether Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
7. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section. Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by sub-section (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a Court can pass- final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction- that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr.", {(1977) 4 SCC 137} that:-
"The main question which falls for determination Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of 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 World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory 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 "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or 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 interlocutory order so as to bar a revision to the High Court against that order, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I", (AIR 1980 SC 962] that:-
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order.
In other words, if an order is not a final order, it would be an interlocutory order;
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(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru", {(2004) 13 SCC 269} that:-
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"Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus: "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."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, 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 but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laid-down by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation", {(2017) 14 SCC 809} and it was held that, "15. While the text of sub-section (1) of Section 397 Cr.P.C. appears to confer very wide powers Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind - an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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as for Section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising the extraordinary discretionary power available under Section 397 Cr.P.C."
It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors.", {(2016) 229 DLT (CN) 29} that:-
"........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order."
9. By way of present revision petition, the revisionist has challenged the impugned order dated 02/08/2019 passed by the Ld. Trial Court thereby application u/s. 156 (3) Cr.P.C. of the revisionist/ complainant was dismissed.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
It was held by Hon'ble High Court of Delhi in case titled as "Nishu Wadhwa Vs. Siddharth Wadhwa & Anr.", {WP (CRL 1253/2016 and Crl. MA No.6591/2016 decided on 10/01/2017} that "therefore, an order dismissing or allowing an application u/s. 156 (3) Cr.P.C. is not an interlocutory order and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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a revision petition against the same is maintainable".
Hence, the present revision petition qua the dismissal of the application u/s. 156 (3) Cr.P.C. is maintainable.
10. Now this Court shall proceed to decide the present revision petition on merits.
By way of present revision petition, the revisionist has challenged the impugned order dated 02/08/2019 passed by the Ld. Trial Court thereby application u/s. 156 (3) Cr.P.C. of the revisionist/ complainant was dismissed.
Before proceeding further, it is relevant to discuss law relating to Section 156 (3) Cr.P.C.
The scheme of Cr.P.C. is such that an officer incharge of a Police Station has to initiate investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on receiving the information of the commission of a cognizable offence. From the plain reading of Section 154 (1) Cr.P.C., it is manifestly clear that if any information disclosing a cognizable offence is made before an officer incharge 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 to register a case on the basis of information pertaining to cognizable offence. But when the police officers do not register a case disclosing commission of a cognizable offence and complaint Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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in this regard is made to the Magistrate, then under Section 156 (3) Cr.P.C., the Magistrate empowered under Section 190 Cr.P.C. ' may ' order investigation. The expression used herein is ' may ' and not ' shall ' or ' must '. The expression ' shall ' or ' must' implies that the provision is mandatory and expression ' may ' gives discretion to the Magistrate. In this regard, it was held by Hon'ble Supreme Court in the case titled as "Devarapalli Lakshinarayana Reddy Vs. V. Narayana Reddy & Ors." {AIR 1976 SC 1672} that:-
"It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words " may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance".
The word " may " gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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offence, himself.
This raises the incidental question:
What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence".
It was held by Hon'ble Delhi High Court in case titled as M/s. Skipper Beverages Pvt. Ltd. Vs. State {2001 IV AD (DELHI) 625} that :-
"A Magistrate must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.'' It was held by Hon'ble Allahabad High Court in case titled as Gulab Chand Upadhyaya V. State of U.P. {2002 (3) RCR (Crl.) 514} that :-
"The scheme of Cr. P. C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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police should be exercised. Where some "investigation" is required which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example:-
1 Where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or 2 Where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or 3 Where for the purpose of launching a successful prosecution of the accused, evidence is required to be collected and preserved. To illustrate by example, cases may be visualized where for production before court at the trial (a) Sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or (b) recovery of case property is to be made and kept sealed, or (c) recovery under Section 27 of the Evidence Act, or
(d) preparation of inquest report, or
(e) witnesses are not known and have to be found out or discovered through the process of investigation".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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It was held by Hon'ble Delhi High Court in case titled as "Pawan Verma Vs. SHO, PS Model Town & Ors." {2009(2) JCC 1000 Delhi}, that:-
"It is not that in every case merely on the asking of the petitioner the Court must direct registration of an FIR unless the Court is satisfied with the preliminary evidence which is to be submitted by the complainant with an FIR must be registered..........".
It was held by Hon'ble Delhi High Court in case titled as Mohd Salim Vs. State {175(2010) DLT 473} that :-
"The use of the expression may in Sub- section (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the police under section 156(3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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application seeking investigation by the Police".
It was held by Hon'ble High Court of Delhi in case titled as Mohd. Yusuf Khan Vs. State & Anr. {2014 (3) JCC 1665} that :-
"The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set into motion on the mere asking of a party.....'' It was held by Hon'ble High Court of Delhi in case titled as Kusum Lata Vs. State of NCT of Delhi & Ors. {Crl. MC No.1880/2020 decided on 19/04/2021 by the Hon'ble High Court of Delhi} that :-
"it is clear from the scheme of section 156, where the police fail in its duty to register and investigate a cognizable offence, the aggrieved person may file a complaint before the concerned Magistrate. Where the Magistrate receives a complaint the word 'may' give a discretion to the Magistrate in the matter. Two courses are open to the Court; either take cognizance under Section 190 or may forward the complaint to the police under Section Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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156 (3) Cr.P.C. for investigation. Likewise, in the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200, 202 of Cr.P.C. and if there is no substance in the prima facie evidence adduced by the complainant, the complaint may be dismissed under section 203 Cr.P.C. In view of above facts, observation made by the courts below and the law discussed, the material facts of the present case are well within the knowledge of the petitioner including the identity of the accused persons. Hence, she can establish her case while leading evidence before the trial court under section 200 of Cr.P.C. Therefore, I find no illegality or perversity in the orders passed by the Trial Court and Appellant Court".
11. In the present revision petition, it is mentioned that on 19/01/2017, the revisionist had filed a civil suit bearing no. 69/2017 for permanent injunction titled as "Amit Kumar Vs. Vinod Kumar" and same is pending before the Ld. Civil Judge, Tis Hazari Courts, Delhi. In the ATR filed by ASI Padam Singh before the Ld. Trial Court, it is mentioned that there is a dispute between the parties in respect of the property in question and an FIR no. 651/2017 u/s 420/468/471/120-B IPC, PS Nihal Vihar was got registered by the respondent no.2 Vinod Kumar against Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the revisionist/complainant Amit Kumar and investigation is pending and revisionist/complainant had not provided registry and its chain related to the property.
In the complaint case before the Ld. Trial Court, the revisionist/complainant had filed the copies of GPA, Agreement to Sell & Purchase, Affidavit, Receipt, Possession Slip, Deed of Will, Bayana Receipt, copy of plaint of Suit for Permanent Injunction, copy of Written Statement, copies of GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will, copy of order dated 07/11/2017 passed by Ld. Civil Judge and copy of FIR no. 651/2017, PS Nihal Vihar. Filing of copies of the aforesaid documents shows that all the documentary evidence are within the reach and knowledge of the revisionist/complainant and nothing is to be collected for which the assistance of the police is required.
In view of the above, it is clear that the parties are ascertained. The facts are within the exclusive knowledge of the revisionist/complainant. There is nothing for which the police assistance is additionally necessary to be called for. The revisionist/ complainant is in a position to lead evidence in the matter. The evidence is within the reach of revisionist/complainant and no custodial interrogation of accused is necessary for recovery of article or discovery of fact.
12. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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routine manner.
Applying priori and posteriori reasonings and the aforesaid case laws, this Court is held that there is no illegality, impropriety and infirmity in the impugned order passed by the Ld. Trial Court. Accordingly, the present revision petition of the revisionist is dismissed. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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