Delhi District Court
Sayyed Sahal @ Syed Shahid Ali vs State Of Delhi on 19 January, 2023
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE03, SOUTH EAST
SAKET COURTS, NEW DELHI
Criminal Revision No. 74/2021
CNR No. DLSE010026172021
1. SAYYED SAHAL @ SYED SHAHID ALI
S/o S.M. (Syed Mazhar) Hussain
R/o D219, Abul Fazal Enclave, PartI,
Jamia Nagar, Okhla,
New Delhi 110025
.... Petitioner
VERSUS
1. STATE OF DELHI
2. BHAGAT SINGH
3. SAMAY SINGH
4. JAGAT SINGH
All sons of Late Parmal Singh
R/o 237, Churiya Mohalla,
Madanpur Khadar,
New Delhi110076.
.... Respondents
CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....1 of 32
Date of institution : 15.03.2021
Date of reserving the order : 15.10.2022
Date of pronouncement : 19.01.2023
JUDGMENT
1. This is criminal revision u/s 397 of the Code of Criminal Procedure preferred by petitioner against impugned order dated 09.02.2021 passed by Court of Ms. Swati Sharma, Ld. MM10, South East, Delhi in Criminal Complaint CT No. 12131/2018 in case titled as Bhagat Singh & Ors. Vs. The State & Ors. whereby Ld. Trial Court was pleased to order for registration of FIR and to get the matter investigated as per law.
2. It is stated in revision petition that in December 2018, respondents No. 2 to 4 / complainants filed a complaint case under section 200 Cr.P.C. pertaining to Sections 406/420/467/468/34 IPC alongwith application u/s 156 (3) Cr.P.C. seeking issuance of directions to concerned SHO for CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....2 of 32 registering FIR against accused persons.
3. It is stated that allegations leveled by respondents No. 2 to 4, supported with their affidavits, interalia pertain to following effect: i. That respondents No. 2 to 4 / complainants are having share in the property situated at Khasra number 792, Madanpur Khadar, PS Jaitpur, New Delhi as their ancestral property; ii. That accused persons have made and used false GPA dated 7th January 2004 having forged initials of complainants; iii. That respondents No. 2 to 4 have further alleged that their property has been illegally disposed off and registered in the name of Tarbia Education Foundation, in year 2013; iv. That respondents No.2 to 4 have made complaints to Police officials dated 18.07.2016 and 11.10.2018, interalia, stating that their old property at Khasra 792, Madanpur Khadar, New Delhi has been sold by accused persons to Tarbia Education Foundation and registered in 2013 and that in this manner said CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....3 of 32 accused persons have committed cheating and forgery (Dhoka aur Jaalsaaji) with the complainants;
v. That alongwith their complaint to police dated 18.07.2016, respondents No. 2 to 4 enclosed copies of Fard / Khatoni of their said land thus claiming that they were owners of said land, even in 2016.
4. It is stated that as regards averments made by respondents No. 2 to 4 pertaining to the said GPA, it is submitted that a bare perusal of the same shows that the said GPA bears the date / was executed on 07.01.2004. Respondents No. 2 to 4 have not disclosed from where they received copy of said GPA and are silent about the manner, mode and as to who had used said GPA. Further, the GPA shows that it has been executed in favour of only one person namely "Vinod Kumar", son of Bhuley Ram and thus said GPA also does not indicate any alleged role having been played by any of the other alleged accused persons, including petitioner, in committing any crime. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....4 of 32
5. It is stated that as regards averments of respondents No.2 to 4 that their said land was illegally disposed off / registered in the name of "Tarbia Education Foundation" only in the year 2013, it is submitted that neither have said respondents filed any such document nor given any details of alleged sale documents etc. and thus from the entire complaint case / police complaints made by said respondents, there is no indication, whatsoever, regarding even any prima facie role having being played by any of the alleged accused persons including petitioner herein, in committing any offence. It is stated that since the alleged execution of GPA in year 2004 up till the alleged sale of property in favour of Tarbia Education Foundation in 2013, there is nothing on record of the case to even remotely suggest or even prima facie indicate to any common intention or any conspiracy having hatched on the part of the alleged accused persons, in furtherance of any alleged offences. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....5 of 32
6. It is stated that there are no averments, either in the complaint case or in the application u/s 156(3) Cr.P.C. or even in the police complaints, pertaining to the role played by any of the alleged accused persons, the manner and mode of any alleged breach of trust, cheating, forgery, threats, having been committed /given by any of the accused persons, including petitioner.
7. It is stated that for sake of arguments, even if the averments made in the entire complaint case as well as in the application u/s 156(3) Cr.P.C. filed by respondents No. 2 to 4 before Ld. Trial Court are taken on their face value to be correct, then also no offence is made out against any of the alleged accused persons, including petitioner.
8. It is stated that after having sold their said property on 14.11.2008, respondents No. 2 to 4 have devised this novel procedure / idea of filing a criminal complaint alongwith application u/s 156 (3) Cr.P.C., primarily with an ulterior CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....6 of 32 motive in order to put in motion the judicial mechanism / Process, for using it as a tool to harass, wreak some sort of vengeance, grudge, either private or personal and to put undue and illegal pressure on the alleged accused persons. The provisions of section 156(3) Cr.P.C. have been highly misused by respondents No. 2 to 4 despite a complaint case having been filed by them, resulting in serious miscarriage of justice.
9. It is stated that thus, it would be trite to state that except bald, general, omnibus and vague averments, there is neither an iota of evidence / allegations nor there is any role ascribed to petitioner or to any of the alleged accused persons, as regards any alleged offence.
10. It is stated that police had initially filed two status reports dated 11.03.2019 and 01.10.2019 before Ld. Trial court categorically stating therein: i. That complainant has informed that a civil matter titled as Kuldeep Vs. Tarbia Education Foundation is already pending CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....7 of 32 regarding the same matter and also for cancellation of the said registry in the name of Tarbia Education Foundation. ii. That FIR No. 887/2015 u/s 420/467/468/471/120B IPC already stands registered at police station Jaitpur regarding the same alleged forged registry on the complaint of one Chaudhary Ganga Singh;
iii. That a Criminal case already stands registered regarding the same land in question and that a civil matter is pending in Saket Courts; and iv. That no further legal action was required on the part of the local police.
11. It is stated that subsequently Ld. Trial Court vide order dated 04.09.2020 sought clarification from the IO of the already registered FIR 887 /2015, PS Jaitpur as to whether respondents No. 2 to 4 (complainants) are made witnesses in the said FIR.
12. It is stated that in furtherance to the said order, Inspector Vipin Yadav filed report dated 17.11.2020 before Ld. Trial CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....8 of 32 Court wherein it is mentioned as below: i. That respondents No. 2 to 4 / complainants have in fact sold their property in question i.e. their respective shares in the above said land, way back on 14.11.2008 to one Mr. Narender Chaudhary vide sale documents namely Agreement to Sell, Affidavit, Possession Letter, General Power of Attorney, Will etc.;
ii. That respondents No. 2 to 4 are witnesses in FIR 887/ 2015 u/s 420/467/468/471/120B IPC, PS Jaitpur and their statements u/s 161 Cr.P.C. have already been recorded.
13. It is stated that this clearly indicates that when respondents No. 2 to 4 filed complaints with the police in 2016 and 2018 and at the time when they filed their complaint case / application u/s 156(3) Cr.P.C before Ld. Trial Court, they were no longer having any right, title or interest in the said alleged land. Respondents No. 2 to 4 have thus falsely and maliciously stated in their complaint case that they were owners of the said CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....9 of 32 land, "having share" in the land. Further, if said respondents had already sold their land way back in 2008, then they cannot be said to have been cheated of the same very land in 2016 or 2018 at the time they had filed their complaints with police and also before Ld. Trial Court.
14. It is stated that even though no offence is made out against any of the accused persons including petitioner as reflected from the status report dated 17.11.2020, action had already been taken by police in pursuance to the earlier FIR 887/ 2015 and thus, there was no need for Ld. Trial Court to issue fresh directions.
15. It is stated that respondents No. 2 to 4 in fact neither disclosed in their complaint case nor in their application under section 156(3) Cr.P.C. that they had already sold their property in 2008 and there was no question of respondents No. 2 to 4 being cheated, defrauded etc. by anyone, at the alleged time, or in any alleged manner, whatsoever. Further, there are no CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....10 of 32 averments regarding any loss or damage having caused to respondents No. 2 to 4 by any accused persons including petitioner herein, in any manner whatsoever.
16. It is stated that criminal proceedings filed by respondents No. 2 to 4 are manifestly attended with malafide and they have been maliciously instituted with ulterior motives, against alleged accused persons including petitioner.
17. It is stated that both the FIRs (887/2015 and 93/2021) relate to the same GPA, they both allegedly relate to the same offence / same incident forming part of the same transaction of alleged forgery of signatures in the same GPA, both the FIR's also relate to the same allegations of sale of land in favour of same "Tarbia Education Foundation" and they both refer to same connected accused persons. The subsequent FIR bearing 93/2021 registered with police station Jaitpur is founded on the same cause of action as set out in the earlier FIR 887/2015. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....11 of 32
18. It is stated that Ld. Trial Court ought not to have issued any directions for registration of a second / successive FIR as all information given after recording of and after initiation of investigation consequent to the registration of earlier FIR i.e. FIR 887/2015, either orally or in writing including the complaint case / application in question, pertaining to the same facts mentioned in the earlier FIR, will be statements falling under section 162 Cr.P.C. and thus barred.
19. It is stated that it is the duty of the IO not merely to investigate cognizable offence in a FIR but also to investigate connected offences found to have been committed, if any, in the course of the same transaction. Impugned order, is thus beyond purview of sections 154 and 156 Cr.P.C. Hon'ble Supreme Court of India as well as Hon'ble High Courts have held that in the event police officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences, such information cannot CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....12 of 32 properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of Cr.P.C. Hon'ble Apex Court has also observed that sweeping powers of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs.
20. It is stated that Ld. Trial Court has failed to act in a wise manner and also failed to apply its mind to the facts and circumstances of this case as well as to the status reports filed by the police, further, even impugned order does not reflect that Ld. Trial Court has applied her mind or acted wisely. As already submitted, averments made in the complaint case / application u/s 156(3) Cr.P.C., do not disclose commission of cognizable offence by the alleged accused persons including petitioner. Impugned order suffers from serious as well as manifest illegality and deserves to be set aside. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....13 of 32
21. It is stated that Ld. Trial Court has also overlooked the fact that in view of the above mentioned facts and circumstances, matter did not call for that investigation be conducted by a State agency. Ld. Trial Court has even not set out any cogent reasons for passing an order under Chapter XII instead of Chapter XV Cr.P.C.
22. It is stated that Ld. Trial Court has proceeded in the most mechanical manner, has not followed the mandatory propositions of law, while passing the impugned order, leading to serious miscarriage of justice.
23. It is stated that there was thus no need for Ld. Trial Court to issue directions to the police to register another FIR and to undertake investigation all over again. For this reason as well, directions for registration of second / successive FIR are blatantly illegal, not permissible in law and liable to be set aside.
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24. Following grounds have been taken by petitioner to challenge impugned order:
a) Because, except bald, general, omnibus and vague averments, there is neither an iota of evidence / allegations nor there is any role ascribed to petitioner or to any of the alleged accused persons, as regards any alleged offence.
b) Because Ld. Trial Court failed to consider that a bare perusal of GPA shows that it bears the date / was executed on 07.01.2004 and respondents No. 2 to 4 do not disclose from where they received copy of said GPA and are silent about the manner, mode and as to who had used said GPA.
c). Because, the GPA shows that it has been executed in favour of only one person namely "Vinod Kumar" and said GPA also does not indicate any alleged role having been played by any of other alleged accused persons, including petitioner, in committing any crime.
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d). Because facts of this case clearly reveal that no offences of alleged cheating, forgery or conspiracy etc., are made out against petitioner in any manner, whatsoever.
e). Because Ld. Trial Court failed to appreciate that respondents No. 2 to 4 have not filed any document nor given any details of alleged Sale documents etc. and thus from the entire complaint case / police complaints made by said respondents, there is no indication, whatsoever, regarding even any prima facie role having being played by any of the alleged accused persons including petitioner herein in committing any offence.
f). Because Ld. Trial Court failed to consider that there is nothing on record of the case to even remotely suggest or even prima facie indicate any common intention or any conspiracy having hatched on the part of the alleged accused persons, in furtherance to any alleged offences.
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g). Because, there are no averments, either in complaint case or in the application u/s 156(3) Cr.P.C. or even in the police complaints pertaining to the role played by any of alleged accused persons, manner and mode of any alleged breach of trust, cheating, forgery, threats having been committed by any of the accused persons, including petitioner.
h). Because even for the sake of arguments, if the averments made in the entire complaint case as well as in the application u/s 156(3) Cr.P.C. filed by respondents No. 2 to 4 are taken on their face value to be correct, then also no offence is made out against any of the alleged accused persons, including petitioner.
i) Because respondents No. 2 to 4 have devised this novel procedure / idea of filing a criminal complaint alongwith application u/s 156(3) Cr.P.C. primarily with an ulterior motive in order to put in motion the judicial mechanism / process, for using it as a tool to harass, wreak some sort of vengeance, grudge, either private or personal and to put undue and illegal CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....17 of 32 pressure on the alleged accused persons.
j) Because, provisions of Section 156(3) Cr.P.C., have been highly misused by respondents 2 to 4 despite a complaint case having being filed by them resulting in serious miscarriage of justice.
k) Because Ld. Trial Court totally overlooked two status reports dated 11.03.2019 and 01.10.2019, which clearly stated that a civil matter titled as Kuldeep Vs. Tarbia Education Foundation is already pending regarding the same matter and also for cancellation of the said registry in the name of Tarbia Education Foundation.
l) Because Ld. Trial Court failed to consider that police in its said two reports had categorically stated that an FIR 887/ 2015 u/s 420/467/468/471/120B IPC already stands registered at police station Jaitpur regarding the same alleged forged registry on complaint of one Chaudhary Ganga Singh. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....18 of 32
m) Because Ld. Trial Court erred in not considering that in the said two reports, police had also stated that a criminal case already stands registered regarding the same land in question and that a civil matter is pending in Saket Courts and that no further legal action was required on the part of the Local Police.
n) Because Ld. Trial Court totally failed to take into consideration the import of the report dated 17.11.2020 filed by police clearly stating therein that respondents No. 2 to 4 / complaints have in fact sold their property in question i.e. their respective share in the above said land, way back on 14.11.2008 to one Mr. Narender Chaudhary vide sale documents viz Agreement to Sell, Affidavit, Possession Letter, General Power of Attorney, Will etc.
o) Because Ld. Trial Court also totally failed to appreciate that in the said report dated 17.11.2020, police had categorically mentioned that respondents No. 2 to 4 have been made witnesses in the earlier FIR No. 887/2015 u/s CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....19 of 32 420/467/468/471/120B IPC, PS Jaitpur and their statements u/s 161 Cr.P.C. have already been recorded.
p) Because Ld. Trial Court failed to take into consideration that at the time respondents 2 to 4 had filed complaints with police in 2016 and 2018 and the time when they filed their complaint case / application u/s 156(3) Cr.P.C. before Ld. Trial Court, they were no longer having any right, title or interest in the said alleged land.
q) Because respondents 2 to 4 have thus falsely and maliciously stated in their complaint case that they were the owners of the said land, "having share" in the land as they had already sold their land in year 2008 and thus, cannot be said to have been cheated in any manner.
r) Because, police in its status report dated 17.11.2020 police categorically stated that it had already taken action in pursuance of the earlier FIR 887/ 2015 and thus no further action was required to be undertaken by the local police. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....20 of 32
s) Because, there are no averments on the record of the case regarding any loss or damage having caused to respondents No. 2 to 4 by any accused persons including petitioner herein, in any manner, whatsoever.
t) Because Ld. Trial Court totally overlooked the fact that both the FIRs (887/2015 and 93/2021) relate to the same GPA, they both allegedly relate to the same offence /same incident forming part of the same transaction of alleged forgery of signatures in the same GPA, both the FIR's also relate to the same allegations of sale of land in favour of same "Tarbia Education Foundation" and they both refer to the same connected accused persons.
u). Because it is the duty of the IO not merely to investigate cognizable offence in a FIR but also to investigate connected offences found to have been committed, if any, in the course of the same transaction.
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v) Because Hon'ble Supreme Court of India as well as the Hon'ble High Courts have held that in the event police officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences, such information can not properly be treated as FIR as it would, in effect but be a second FIR and the same is not in conformity with the scheme of Cr.P.C.
w) Because sweeping powers of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs.
x) Because Ld. Trial Court has failed to act in a wise manner and also failed to apply its mind to the facts and circumstances of this case as well as to the status reports filed by the police.
CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....22 of 32 y) Because, Ld. Trial Court has even not set out any cogent reason for passing an order under Chapter XII instead of Chapter XV Cr.P.C.
25. It is prayed to call TCR, set aside impugned order dated 09.02.2021, no coercive steps be taken by police in furtherance to the registration of second successive FIR No. 93/2021 PS Kalindi Kunj and stay operation of impugned order and to pass any other order which this Court deems fit and proper in the facts and circumstances of the case.
26. I have heard arguments addressed by respective counsels and perused record including trial court record and have gone through judgments filed on behalf of petitioner and respondents No. 2 to 4 and written submissions filed on behalf of respondents No. 2 to 4.
27. Perusal of impugned order dated 09.02.2021 shows that Ld. Trial Court has discussed ATRs/status reports filed on behalf of Police. It is mentioned in impugned order that as per CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....23 of 32 ATR, all the complainants are witnesses in FIR No. 887/2015 u/s 420/467/468/471/120B IPC, PS Jaitpur and they have been examined u/s 161 Cr.P.C. by IO therein and they stated that they alongwith their brothers had sold their share 1/24 i.e. 414 sq. yards in land bearing Khasra No. 792, Khatoni 227/237, village Madanpur Khadar, Delhi on 14.11.2008 vide GPA, Agreement to Sell, Affidavit, Possession Letter, Deed of Will to Mr. Narender Chaudhary, S/o Mr. Rampat Singh R/o Churiya Mohalla, Madanpur Khadar, Delhi. Impugned order further record that as per ATR, during course of inquiry, complainant was called who stated that a civil matter is already pending in the above said matter in name of Kuldeep Vs. Tarbia Education Foundation for cancellation of the registry. It further mentions that during course of inquiry, it is found that on 21.12.2015, a case vide FIR No. 887/2015 u/s 420/468/471/34 IPC has already been lodged at PS Jaitpur regarding same forged registry on complaint of Chaudhary Ganga Singh. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....24 of 32
28. Despite aforesaid facts in knowledge of Ld. Trial Court, Ld. Trial Court in impugned order observed that be this case, the allegations are to the effect that accused persons forged signatures of several people and sold above mentioned property to Tarbia Education Foundation. It further observed that it discloses commission of cognizable offence. Complainant can not be expected to find out as to when and to how the property was sold. Hence, matter requires detailed investigation for establishing chain of documents.
29. On Trial Court record, there are three Status Reports / Action Taken Reports available given by Inspector Vipin Yadav dated 17.11.2020 (copy only), SI Ajay Katewa dated 01.10.2019 and SI Prateek Saxena dated 11.03.2019.
30. In Status Reports/ATRs, it is mentioned that criminal case bearing FIR No. 887/2015 u/s 420/468/471/34 IPC PS Jaitpur has already been lodged regarding the same forged registry on complaint of Chaudhary Ganga Singh. It is further CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....25 of 32 mentioned that civil matter is also pending in the matter in name of Kuldeep Vs. Tarbia Education Foundation for cancellation of the said registry. In Status Report filed by Inspector Vipin Yadav, it is mentioned that all the complainants of present case i.e. Respondents No. 2 to 4 are witnesses in FIR No. 887/2015 u/s 420/467/468/471/120B IPC PS Jaitpur and they have been examined u/s 161 Cr.P.C. by him wherein they stated that they alongwith their brothers had sold their share 1/24 i.e. 414 sq. yards in land bearing Khasra No. 792, Khatoni
- 227/237, Village Madanpur Khadar, Delhi vide GPA, Agreement to Sell, Affidavit, Possession Letter, Deed of Will to Mr. Narender Chaudhary S/o Rampat Singh R/o Churiya Mohalla, Madanpur Khadar, Delhi.
31. Factual position as emerges from Status reports / ATRs filed by various police officials is that complainants at the time of making complaints to police in the year 2016 and 2018 were left with no right in land in Khasra No. 792, Madanpur Khadar, CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....26 of 32 Delhi having already sold by them to Mr. Narender Chaudhary. Despite this, complainants / respondents No. 2 to 4 in their complaint filed before Ld. Trial Court have stated that they are having share in the aforesaid land which is factually incorrect / false in view of status report of Inspector Vipin Yadav who is IO in FIR No. 887/2015 PS Jaitpur.
32. Though it is well settled that criminal law can be set into motion by anyone but it goes without saying that the person making complaint should come before authorities with clean hands which does not seem to be in present case. In actual, if land in question was already sold by complainants to Mr. Narender Chaudhary, he should have filed complaint against persons allegedly involved.
33. It has already come on record that FIR No. 887/2015 PS Jaitpur has been lodged with regard to alleged forged registry in favour of Tarbia Education Foundation and complainants / respondents No. 2 to 4 are already witnesses in the said FIR CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....27 of 32 wherein their statements u/s 161 Cr.P.C. have already been recorded. Civil matter regarding cancellation of alleged forged registry is also stated to be pending before Court.
34. In view of above mentioned circumstances, contentions of complainants / respondents No. 2 to 4 with regard to forgery of their signatures over GPA by accused persons including petitioner herein could have been taken care of in FIR No. 887/2015 PS Jaitpur and there was no requirement of registration of fresh FIR for the same as it will amount to double jeopardy which is not permissible in law. Further, no specific role of accused persons including petitioner herein has been described by respondents No. 2 to 4 in their complaint filed before Ld. Trial Court (Judgment in case titled as Thermax Ltd. and Ors. Vs. K.M. Johny and Ors.
MANU/SC/1129/2011 filed by petitioner in this regard).
35. Further, perusal of application filed by respondents No. 2 to 4 u/s 156(3) Cr.P.C. before Ld. Trial Court shows that it has CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....28 of 32 not been mentioned in the same that contents of complaint u/s 200 Cr.P.C. be read as part and parcel of the same. So, affidavits of respondents No. 2 to 4 in these circumstances appended with their application u/s 156(3) Cr.P.C. are not in consonance with law laid down by Hon'ble Supreme Court of India in case titled as "Priyanka Srivastava and Anr. Vs. State of Uttar Pradesh and Ors. MANU/SC/0344/2015" which is a must before passing any order U/sec 156 (3) Cr. P. C. Further, perusal of TCR shows that complaint filed by respondents No. 2 to 4 is not supported with any affidavit of respondents No. 2 to
4. Petitioner filed judgment in case titled as Babu Venkatesh and Ors. Vs. State of Karnataka and Ors.
MANU/SC/0214/2022 wherein it was held that in any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application Under Section 156(3) of the Code of Criminal Procedure. CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....29 of 32
36. Respondents No. 2 to 4 in the written submissions have contended that order of Ld. Trial Court has already attained finality on registration of FIR No. 93/2021 PS Kalindi Kunj and present revision petition virtually seeks setting aside of FIR which is not within purview of revisional power of Court of Sessions and it may amount to exercising inherent powers of Hon'ble High Court. Respondents No. 2 to 4 further filed judgment in case titled as Srinivas Gundluri & Ors. Vs. M/S. Sepco Electric Power Const. decided on 30.07.2010 wherein Hon'ble Supreme Court of India held that whatever may be, we are not here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, conduct investigation on the facts mentioned in the complaint and after completion of the investigation submit a report in the Court.
37. I am of the view that judgment relied upon by respondents No. 2 to 4 is not applicable in facts and CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....30 of 32 circumstances of present case as contentions / averments of respondents could have been taken care of in investigation in FIR No. 887/2015 PS Jaitpur and allowing impugned order to stand will amount to double jeopardy which is impermissible as per Constitution of India and settled law. Further, respondents No. 2 to 4 have not come with clean hands as observed in this judgment and have failed to comply with directions of Hon'ble Apex Court in case of Priyanka Srivastava (Supra).
38. Petitioner qua contentions of respondents No. 2 to 4 has filed judgment in case titled as Gautam R. Patel & Ors. Vs. Government of N.C.T. of Delhi & Ors. 2007 (1) JCC 448 wherein Hon'ble High Court of Delhi laid down as below: "This is a petition filed by the petitioner for quashing of FIR registered against him on the directions of the Magistrate Under Section 156(3) Cr.P.C. The appropriate remedy for the petitioner was to file a revision Under Section 397 Cr.P.C. against the order of the Magistrate directing registration of CR No. 74/2021 Sayyed Sahal @ Syed Shahid Ali Vs. State & Ors Page no....31 of 32 FIR, in case he has any grievance against the said order."
39. The observation made by Hon'ble High Court of Delhi in Gautam R. Patel's case (Supra) takes care of contentions of respondents No. 2 to 4 as raised in their written submissions.
40. In view of my above made discussion, I am of the view that impugned order dated 09.02.2021 passed by Ld. Trial Court is not in accordance with law and deserves to be set aside and is accordingly set aside.
41. SHO concerned can deal with FIR No. 93/2021 PS Kalindi Kunj in accordance with law in view of present order. Respondents No. 2 to 4 can pursue their complaint case in accordance with law. Copy of this order be sent to concerned SHO for necessary information.
42. Let copy of this judgment be sent to Ld. Trial Court alongwith TCR.
Dictated and Announced (Sonu Agnihotri)
in the open court ASJ03 (SouthEast),
on 19.01.2023 Saket Courts, Delhi
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