Delhi District Court
Masihi Sahitya Sanstha vs Paul Samuel on 31 October, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
Crl. Revision No.16/11
Masihi Sahitya Sanstha
Through its Secretary
....Revisionist
Vs.
1. Paul Samuel
2. C.S.R Gier
3. Prakash V Mall
4. Rajnath Khosla
...... Respondent
ORDER
The present revision petition u/s 397 r/w 401 Cr.PC has been preferred for setting aside the order dated 05.05.2011 passed by Sh. Sudesh Kumar Ld.MM in CC no. 09/11 whereby an application u/s 156(3) Cr.PC for registration of F.I.R against the respondents was dismissed.
2. Briefly stated the facts for giving rise to this revision petition are that the revisionist had filed criminal complaint u/s 200 Cr.PC with an application u/s 156(3) of Cr.PC for getting a case registered against the respondents before the Ld. Trial court. It has been alleged in the complaint that the revisionist had purchased a flat no.42 Khan Market Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.1 of 14 New Delhi from its erstwhile owner ex.Capt. Anant Singh vide Sale Deed dated 26.03.1974 which was duly registered document. The society entered into an agreement to sell in respect of the said flat while keeping the roof rights of the said flat with them with Sh. Rajnath Khosla vide agreement to sell dated 16.03.1988. After execution of the above said agreement to sell dated 16.3.88, Sh Rajnath Khosla in connivance with Sh. Paul Samuel and Sh. Prakash V. Mall forged, fabricated, manufactured another agreement to sell in his favour on the stamp paper of the value of Rs.50,500/ whereas the original agreement to sell was written on a stamp paper of value of Rs.2/ wherein the authorized signatory of the complainant society were Sh SK Bose the then General Managercum Secretary and Sh Paul Samuel, the then Chairman of the society. It is averred that subsequent agreement to sell was executed by the accused persons in connivance with and in favour of Sh Rajnath Khosla without having any authorization, permission and knowledge of the complainant society. The complainant came to know about the said forged agreement to sell when the copy of the same was produced by Sh. Rajnath Khosla before the court of Sh. A.S.Aggarwal, Ld. Senior Civil Judge, Patiala House Courts, New Delhi in a civil suit filed by the complainant. Sh Rajnath Khosla in connivance with the members of the governing body had fabricated and manufactured different agreement to sell without any resolution, knowledge and intimation to the governing body of the society with sole motive to gain unlawful benefit and for causing unlawful losses Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.2 of 14 to the society. Fabricated agreement reveals that the stamp papers were purchased in December 2001 whereas the date of the execution of this forged agreement reveals that the same was written on 16th March 1988. In the year 2003, the sale deed was executed by the members of governing body in favour of Rajnath Khosla. It has been alleged that neither in agreement to sell dated 16.3.88 nor in the sale deed dated 22.7.03 the society has sold out and transferred or permitted to use in any manner the roof rights of the said property to Rajnath Khosla. On 4th March 2004, the accused P.V.Mall and Rev.CSR Gier were neither the members of governing Body or complainant society and they, without knowledge of complainant society executed rectification Deed, wherein also there was no mentioning that roof rights have been transferred to accused no.4. It is further alleged that in Jan. 2010, Sh Rajnath Khosla gathered building material on the site for construction of roof which was objected by the complainant to which the accused did not pay any heed and thereafter complainant made complaint to the police and when no action was taken, the complainant filed the suit for Permanent Injunction which is pending disposal before the Hon'ble Court of Sh. Jay Thareja. It has been alleged that the accused persons under the deep rooted conspiracy hatched a nefarious plan with sole motive to usurp the property of the complainant and fabricated the agreement to sell dated 16.3.88 on stamp papers of Dec. 2001 and subsequently forged the sale dee dated 22.7.03 and rectification deed dated 4.3.2004 without permission, authorization and knowledge of Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.3 of 14 the complainant society to gain unlawful monetary benefits. On 8.9.2010 the complainant made complainant to PS and to Economic Offence Wing on 29.10.2010 which was marked as no. 2762/10 but police took no action as accused no.4 is influential person and with his might he succeeded in manipulating the report in his favour. On 22.12.2010 accused no.4 produced statement of accused no.1&2 before the court of Sh Jay Thareja, Civil Judge which was given during the course of investigation. It is strange that police officials refused to give any information to the complainant and gave investigation proceedings to accused no.4 which reflect how much the police is under the influence of accused no.4. It has been further alleged that the complaint of the complainant was handed over to ASI Vishamber Dayal for investigation but despite of making inquiry from accused persons he deliberately neither registered the case nor took any action in the matter. To the utter shock of the complainant, despite the court case and complaint to the police, accused no.4 has succeeded in completing the construction in the First floor as well as Barsati of the property in dispute while flouting the building bylaws. This clearly shows that IO is hand in glove with the accused persons. The complainant has filed application u/s 156(3) Cr.PC to initiate criminal proceedings against the accused persons. It has been prayed that the accused persons may kindly be summoned for committing the offence u/s 406/409/420/468/471/120B IPC. In the application u/s 156(3) it has been prayed that SHO of PS Tuqhlak road be directed to register the case FIR Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.4 of 14 against accused persons and investigate the matter in accordance with law. SHO of PS Tuglak road filed the status report on 18.02.2011. Ld. MM heard the arguments on the application u/s 156(3) Cr.PC for issuance of direction to SHO for registration of FIR and thereafter vide order dated 05.05.2011 dismissed the application u/s 156(3) Cr.PC. Feeling aggrieved by the said order, the present revisionist has preferred the present revision petition.
3. Trial court record was summoned which was received on 11.7.2011 Thereafter, I have heard the arguments on this revision petition from the Ld. Counsel for the revisionist.
4. During the course of arguments it has been submitted by the Ld. Counsel for the revisionist that the order passed by the Ld. Trial court is without any basis and it has not been passed with care and caution. The impugned order has been passed in mechanical manner without application of mind. Ld. Trial court has not considered the documents which was placed on record at the time of dictating the order because perusal of the document clearly makes out a case of cheating by forging the documents. The observation of the Ld. Trial court are most outrageous and against the very fabric of criminal jurisprudence. It has been submitted that the IO has neither conducted the inquiry nor filed appropriate status report stating the outcome of the inquiry despite several opportunities. Ld. Counsel has drawn the attention on the status report Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.5 of 14 dated 18.2.2011 and stated that it has been mentioned by the IO that the problem is with the then members of the society who are R1 to R3 and not with the R4, so, the Hon'ble Court is requested that the complaint may please be filed or pass such order which may deemed fit in the interest of justice whereas the IO has recorded the statement of R1 and 2 and closed matter on their statement submitting that there is no problem with member of society. It has been submitted that the ld. Trial court wrongly came to the conclusion that the sale documents were already in possession of appellant. Ld. Trial court has not considered and looked at, the case laws filed on record by petitioner which supported the case of appellant. Ld. Counsel has relied upon case Law Md.Yusuf Vs. Afag Jahan & Anrs Puran Mal Gupta Vs. State and Ors., G.C.Nautiyal Vs. State & Ors. It has further been argued that the Ld. Trial court has not given any justification for dismissing the application of petitioner u/s 156(3) Cr.P.C though bare perusal of documents shows manipulated and fabricated execution of agreement to sell and no cogent reason has been mentioned by the Ld. Trial court in this respect. It has been prayed by the Ld. Counsel that the impugned order dated 05.05.2011 passed by the Ld. Trial court may kindly be set aside and necessary directions may kindly be issued to the police for registration of the case against the accused u/s 156(3) Cr.PC as prayed for.
5. In consideration of the arguments advanced by the Ld. Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.6 of 14 Counsel for the revisionist, I have also perused the trial court file and case laws relied by the Ld. Counsel during the course of arguments and the provisions contained in sec. 156(3) Cr.PC.
156. Police Officer's Power to investigate cognizable case (1) Any officer in charge of a police station may, without the order of the Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not not empowered under this section to investigate.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
The words `as abovementioned' obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
6. Section 156 (3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr .P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.7 of 14 case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
7. The power of the Magistrate to order further investigation under Section 156 ( 3 ) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna AIR 1980 SC 326.
8. In my opinion Section 156 ( 3 ) Cr .P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 ( 3 ) Cr .P.C., though briefly worded, in my opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
9. It is wellsettled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.8 of 14 jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
10. Section 190. Congnizance of offences by Magistrate (1) Subject to the provisions of this chapter, any magistrate of the first class, and any magistrate of the second class specially empowered in this behalf under sub section (2), may take cognizance of any offence: a. upon receiving a complaint of facts which constitute such offence; b. upon a police report of such facts;
c. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take congnizance under sub section (1) of such offences as are within his competence to inquire into or try.
11. In case law Ashok Vs. State of U.P., 1994 Cr.LJ 2132 (All) it has been observed that : 'The Magistrate has the power to take congnizance u/s 190(i) (b), if he is satisfied that there is sufficient material to make out a prima facie case against the accused irrespective of the police report to the contrary but straightway he cannot take cognizance on the basis of the protest petition, duly supported by the affidavits of the witnesses, without following the procedure prescribed under Chapter XV for a complaint case and since in the instant case Magistrate has not recorded the statements of the complainant and the witnesses before passing the orders, taking cognizance on protest petition, the said order is liable to be set aside. Thus, whenever a protest petition is filed it is to be treated as a complaint and the Magistrate will have to Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.9 of 14 proceed in accordance with the procedure laid down in sec.200, 202 and 204 Cr.PC'.
12. The information under section 154 of Cr.P.C is generally known as F.I.R. It is pertinent to see that the word '' first'' is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who has a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under subsection 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C.
13. Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not. That too, an aggrieved person has right to claim that the Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.10 of 14 offence he alleges be investigated properly. However, The Hon'ble Supreme Court held in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency.
14. In consideration of above discussions and now reverting back to the facts of the present revision petition it is revealed that the revisionist had approached the court of Ld. Magistrate for registering the FIR against the respondents as Respondent no.4 had encroached upon the roof of the flat no. 42, Khan Market, New Delhi. The revisionist had kept the roof rights of the flat in question with itself and entered into an agreement to sell dated 16.03.1988 with respondent no.4. It has been alleged that subsequent agreement to sell was executed by the respondents in connivance with R1 and R3. It has also been alleged about purchase of stamp papers and date of execution of the subsequent agreement. I have perused the detailed status report dated 28.3.2011 and dated 18.02.2011 filed by the SHO PS Tughlak Road, New Delhi wherein it has mentioned that as per enquiry the allegations of breach of trust and cheating were not sustained because the agreement to sell dated 16.03.1988 was made as same again in 2001 on the stamp papers of the value of Rs.50,500/ by both the parties as required. R1,2&3 did the signatures of agreement to sell and sale deed.
15. I have considered the case law relied upon by the Ld. Counsel for Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.11 of 14 the revisionist i.e. (2006) 1 Supreme court Cases 627 titled Mohd. Yousuf Vs. Afaq Jahan (Smt) & Anr., 97(2002) DLT 542 titled G.C.Nautiyal Vs. State and 2008(106) DRJ 192 titled Puran Mal Gupta Vs. State. Considering the facts and circumstances mentioned in the revision and in view of the civil suit filed by the revisionist, I am of the view that these case law are not applicable to the present facts and circumstances of the case.
16. In case Law 2008(1) R.C.R.(Criminal) 520 : 2008 Cri.L.J. 472 titled Sukhwasi Versus State of U.P. It is observed: 'Police not registering FIR Application under Section 156 ( 3 ) Cr .P.C. making a request to Magistrate to direct the Police to register FIR Magistrate not giving any such direction Magistrate has discretion to treat the application as complaint A. Criminal Procedure Code, Section 156 ( 3 ) Power of Magistrate to direct police to register FIR Following question was referred to DB : Whether the Magistrate is bound to pass an order on each and every application under Section 156 ( 3 ) Cr .P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, primafacie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as `complaint' or to reject it in suitable cases Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.12 of 14 DB answered as under : It is not incumbent upon a Magistrate to allow an application under Section 156 ( 3 ) Cr .P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156 ( 3 ) Cr .P.C. as a complaint.
B. Criminal Procedure Code, Section 156 ( 3 ) Criminal Procedure Code, Sections 190 and 200 Police not registering FIR Application under Section 156 ( 3 ) Cr .P.C. making a request to Magistrate to direct the Police to register FIR Magistrate not giving any such direction Magistrate has discretion to treat the application as complaint.
17. It is well settled law that in revision only the illegality in the order passed is to be seen. So, I have perused the order dated 05.05.2011 passed by the Ld. MM and I am of the view that the Ld. MM has rightly held that it is clear that all the documents pertaining to the transactions were already in possession of the complainant who was hence in possession of entire evidence which can be led to prove the allegations for which the civil suit were already filed by the complainant and same was pending for disposal. Ld. MM has also given liberty to revisionist in his order to lead pre summoning evidence. In view of my above discussions and case laws mentioned above, I am of the view that Ld. MM has passed Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.13 of 14 the order after considering each and every fact and argument made by the Ld. Counsel for the Complainant/Revisionist. I find no illegality, infirmity or impropriety in the said order passed by the Ld.MM. I feel that there is no need to interfere in the said order passed by the Ld. MM. The order passed by the Ld. MM has no legal infirmity and the same is maintained. Resultantly, the revision filed by the revisionist has no merit and the same is hereby dismissed. Parties to appear before the Ld. Trial court on the date fixed before the Ld. Trial court. Trial court record be sent back with the copy of this order and revision file be consigned to record room. Announced in the Open Court on 31.10.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI Masihi Sahitya Sanstha Vs. Paul Samuel etc. Crl.Rev. no.16/2011 Page No.14 of 14