Punjab-Haryana High Court
Karnail Singh & Ors vs Union Territory Chandigarh & Anr on 7 August, 2018
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-7040 of 2016 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-7040 of 2016
DATE OF DECISION:07.08.2018
Karnail Singh and others ..........Petitioners
Versus
U.T., Chandigarh and another ..........Respondents
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Ramesh Kumar Bamal, Advocate
for the petitioners.
Mr. Sukant Gupta, Addl. P.P., U.T., Chandigarh.
Mr. A.P. Kaushal, Advocate
for respondent No.2.
****
DAYA CHAUDHARY, J.
The petitioners have filed the present petition under Section 482 Cr.P.C. for setting aside impugned orders dated 9.9.2015 (Annexure P-
5) passed by learned Additional Sessions Judge, Chandigarh in Criminal Revision No. 136 of 2015 and dated 3.2.2016 (Annexure P-6) passed in complaint case No. 6754 of 2014 by Judicial Magistrate Ist Class, Chandigarh, whereby, a direction has been issued to SHO concerned to register FIR and investigate into the matter and to register an FIR against the petitioners. A further prayer has also been made for quashing of said FIR No. 24 dated 6.2.2016 registered under Sections 420/120-B IPC at Police Station, Sector 36, Chandigarh and all subsequent proceedings 1 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (2) arising therefrom.
Briefly, the facts of the case as made out in the present petition are that petitioner No.2-Pargan Singh and petitioner No.4-Avtar Singh Saini purchased a residential house No. 77 measuring 200 Sq. Yards situated within the red line/abadi deh of Village Kajehri, U.T., Chandigarh vide sale deed dated 2.7.2014 from one Balwinder Singh. Said land was mortgaged by Balwinder Singh with State Bank of Patiala but at the time of purchasing by petitioner No.2, this fact was not disclosed and a fraud was played with him by said Balwinder Singh. After purchasing of the said property, petitioner No.2 applied for loan from Punjab National Bank, which was sanctioned after mortgaging of the said property. Subsequently the said property was sold to respondent No.2-Mahipal. Petitioner No.2 repaid the loan amount and property became free from all encumbrances regarding the lien of Punjab National Bank. Respondent No.2 filed complaints before the Police Station Sector-34 and Section-19, Chandigarh and both the complaints were filed after investigation. It was found that no fraud was played with respondent No.2. Thereafter respondent No.2 (complainant) filed a complaint before Judicial Magistrate Ist Class, Chandigarh and a report from Police Station Sector 34, Chandigarh was called vide order dated 9.2.2015 by learned Magistrate. The report was submitted and the petitioners were found innocent. The Magistrate after perusal of the documents and report submitted by the Police authority treated the complaint under Section 200 Cr.P.C. and the case was fixed for preliminary evidence of the complainant vide order dated 5.6.2015, which was challenged by respondent No.2 by way of filing revision petition before learned Sessions Judge, Chandigarh. The order passed by the Magistrate 2 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (3) was set aside and case was remitted to learned Magistrate for hearing on merits and to pass order afresh vide order dated 9.9.2015. Thereafter the Magistrate vide its order dated 3.2.2016 ordered for registration of the FIR against the petitioners. Orders dated 9.9.2015 and 3.2.2016 are subject matter of challenge in the present petition.
Learned counsel for the petitioners has challenged the aforesaid orders mainly on two grounds i.e. i) order passed by the Magistrate was interlocutory and no revision was maintainable, ii) petitioners were not issued any notice, whereas before passing of the impugned order, they were not heard and no opportunity of being heard was afforded to them. Learned counsel for the petitioners has also relied upon the judgments of Hon'ble the Apex Court in the cases of Madhao and another Vs. State of Maharashtra and another 2013 (2) RCR (Criminal) 975, Girish Kumar Suneja Vs. CBI 2017 (3) RCR (Criminal) 665, Raghu Raj Singh Rousha Vs. M/s. Shivam Sundaram Promoters (P) L and another 2009 (1) RCR (Criminal) 531, of this Court in the cases of Rohit Uppal Vs. State of Punjab and others 2017 (2) RCR (Criminal) 310, Neelam Vs. State of Haryana and another 2009 (2) RCR (Criminal) 360, of Delhi High Court in the cases of Dr. V.P. Sharma Vs. The State (NCT of Delhi) and others 2010 (6) RCR (Criminal) 2103, Gopal Krishan Dua Vs. State 2009 (3) RCR (Criminal) 102, of Allahabad High Court in the cases of Chandrapal Vs. State of U.P. and others 2010 (6) RCR (Criminal) 460, Smt. Premwati Vs. State of U.P. 2015 (1) RCR (Criminal) 201, Father Thomas Vs. State of U.P. and another 2011 (3) RCR (Criminal) 160 and R.K. Mishra Vs. State of U.P. 2010 (3) Cri.CC 519 in support of his contentions.
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Crl. Misc. No. M-7040 of 2016 (4)
Mr. Sukant Gupta, learned counsel appearing for U.T., Chandigarh submits that impugned order is a final order and not the interlocutory order and revision was maintainable. The petitioners were not accused at that time and no notice was required to be served upon them. He has also relied upon the judgments of Hon'ble the Apex Court in the cases of HDFC Securities Ltd. and others Vs. State of Maharashtra and another 2017 (1) RCR (Criminal) 207, of Allahabad High Court in the cases of Ramwati and others Vs. State of U.P. and another 2008 (3) Cri.CC 952, Jagannath Verma and others Vs. State of U.P. and another 2015 (1) RCR (Criminal) 414, of Delhi High Court in the case of Nishu Wadhwa Vs. Siddharth Wadhwa and another 2017 (1) RCR (Criminal) 704, of Bombay High Court in the cases of State of Goa Vs. Atish Premanand L. Mandrekar 2015 (37) RCR (Criminal) 33, Pradeep Ramchandra Velip Vs. The State of Goa and others 2016 ALL MR (Cri) 4494, Avinash Trimbakrao Dhondage Vs. State of Maharashtra 2016 CRI.L.J. (NOC) 102 (BOM), and of Gauhati High Court in the case of Avtar Singh Vs. Andrew Yule and Company Ltd. and others 2007 CriLJ 3915, in support of his contentions.
Learned counsel for respondent No.2 has reiterated the arguments advanced by learned counsel for U.T., Chandigarh.
Heard the arguments advanced by learned counsel for the parties and have also gone through the impugned orders and other documents available on the file.
The issue for consideration before this Court is as to whether the direction issued by JMIC for registration of the FIR is an interlocutory order or final and also as to whether revision is maintainable against an 4 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (5) interlocutory order or not. It is also the issue to be determined by this Court as to whether the petitioner is required to be heard after issuing notice at the time of issuance of direction for registration of FIR or during hearing of the revision petition.
In order to decide the present controversy, it is necessary to reproduce the provisions of Section 200 and 202 Cr.P.C., which are as under:-
"200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.
202. Postponement of issue of process. (1) Any Magistrate, on
5 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (6) receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
A perusal of Section 200 Cr.P.C. clearly shows that a Magistrate while taking cognizance of an offence on a complaint is to 6 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (7) examine upon oath the complainant and the witnesses present, if any. The proviso to the said Section carves out an exception that in case where a complaint is filed by a public servant acting or purporting to act in the discharge of his official duties or in cases where the Court has made the complaint. In such cases, complainant and witnesses need not to be examined. In such cases, if he is satisfied that there is sufficient ground for proceeding, he can straightway issue process. At this stage, the Magistrate has three options:-
i) to issue process on the basis of complaint, if he is satisfied that there is sufficient ground for proceeding against the accused (Section 204); or
ii) to dismiss the complaint (Section 203); or
iii)to hold an enquiry-
(a) by himself, or
(b) by directing investigation by the Police Officer.
(c) or by other person, for the purpose of deciding whether or not there is sufficient ground for proceeding.
It is only in case the Magistrate decides to hold an inquiry, the proviso to sub-section (2) of Section 202 would come into operation. If the offence is triable exclusively by the Court of Sessions, the Magistrate himself has to hold the inquiry and no direction for investigation by police shall then be made. The inquiry can be held by recording evidence on oath if he thinks fit. Sub-section (2) of Section 202 gives discretion to the Magistrate to record evidence of witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the Court of Session, the Magistrate shall call upon 7 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (8) the complainant to produce all his witnesses and examine them on oath. The next stage after holding an inquiry is of passing of appropriate order of either dismissal of the complaint or issue of process. It is provided under Sections 203 and 204 of the Cr.P.C. On receipt of the complaint, the Magistrate by following the procedure prescribed under Section 200 Cr.P.C. may issue process against the accused or dismiss the complaint. Section 203 specifically provides that after considering the statement on oath, if any, of the complainant and witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and the reasons are necessary to be recorded. In other cases, he has to issue process i.e. either summons or warrants as the case may be as provided under Section 204 Cr.P.C. However, no summon or warrant is to be issued against the accused until a list of the prosecution witnesses has been filed. The question of complying with the proviso to sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry, if he decides to take evidence of witnesses on oath. The object of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.
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The inquiry under Section 202 Cr.P.C. is of limited nature. Firstly, to find out as to whether there is prima facie case in issuing process against the accused of the offence in the complaint and secondly to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose is to find out as to whether there is sufficient grounds for proceeding against the accused or not. The Magistrate is to scrutinize the evidence at the stage of the inquiry. The accused has no right to intervene at the stage of the inquiry under Section 202 Cr.P.C. It is only the Magistrate who is to look after the interest of the accused while making such inquiry.
In the present case, complainant filed an application under Section 156 (3) Cr.P.C. for registration of a case against accused persons for committing an offence of forgery, cheating, breach of trust, misrepresentation and other provisions of Indian Penal Code. Vide order dated 5.6.2015, the learned JMIC came to the conclusion that no ground is made out to send the complaint to the police for registration of the FIR against the accused persons and an equally efficacious remedy is available to the complainant to prove his case by leading of evidence. Accordingly, the application filed by the complainant was treated as complaint under Section 200 Cr.P.C and the case was adjourned for preliminary evidence of the complainant. Aforesaid order dated 5.6.2015 was challenged by the complainant by way of filing Criminal Revision No. 136 of 2015 before learned Additional Sessions Judge, Chandigarh, which was allowed vide order dated 9.9.2015 and the case was remitted back to the trial Magistrate for hearing of arguments of learned counsel for the revisionist afresh by 9 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (10) passing a fresh order. In pursuance of said order dated 9.9.2015, learned JMIC, Chandigarh vide its order dated 4.2.2016 held that it was a fit case to be sent to SHO concerned for registration of the FIR. Accordingly, the complaint in original was sent to SHO concerned with the direction to register FIR and to investigate the matter as per law.
Admittedly, in this case a direction has been issued to register FIR and the petitioners does not become accused at this stage as only the cognizance has been taken. It is to be seen by the learned Magistrate after taking into consideration the material collected during investigation and on presentation of final report. The accused has a right to question the investigation in case the Magistrate comes to the conclusion that sufficient material has been collected to form an opinion that the person against whom FIR has been registered and material has been collected in the investigation on the basis of which it appears to the learned Magistrate that prima facie he is involved in the commission of offence. The Magistrate may take cognizance by considering the contents of the complaint but nowhere it is mentioned that he must take cognizance. The word "may" gives discretion to the Magistrate. If on a reading of the complaint, he finds that the allegations therein disclose the cognizable offence and that 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 inquiring into the matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternate to take cognizance of the offence itself.
In the present case, orders passed in the revision petition as well as by the JMIC to register the FIR against the petitioners is under 10 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (11) challenge. The petitioners have no locus standi to challenge the order vide which a direction has been issued to register FIR and investigate into the matter. In case any prior notice or any opportunity of hearing is given to an accused in every criminal case before taking any action against him, it would frustrate the proceedings and may obstruct taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. The order of registration and investigation is merely a direction to the police to investigate a cognizable offence. The accused person has no right of hearing at the pre-registration stage. It is mandatory duty of the police officer (incharge) of the Police Station to record an information lodged at the Police Station relating to a cognizable offence. A cognizable offence can be investigated by the officer incharge of the Police Station even without order of a Magistrate or in pursuance of an order of Magistrate passed under Section 156 (3) of the Cr.P.C. It has been held in various judgments of this Court as well as of Hon'ble the Apex Court that the field of investigation of a cognizable offence is exclusively within the domain of the investigating agencies. It has also been held by Hon'ble the Apex Court in the case of Union of India Vs. W.N. Chadha 1993 SCC (Cr.) 1171 that under the scheme of Chapter XII of the Cr.P.C., there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is at the stage of investigation by a police officer. It has further been held in the said judgment that "if prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of 11 of 12 ::: Downloaded on - 07-10-2018 03:09:08 ::: Crl. Misc. No. M-7040 of 2016 (12) prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self- defeating.
The order of registration and investigation is only a direction to the police to investigate cognizable offences. The proposed accused have no right to be heard before registration of the FIR or at the stage of investigation.
It has also been held in various judgments that order under Section 156 (3) Cr.P.C. is in the nature of an administrative direction directing the police to exercise their plenary power of investigation of cognizable offence under Chapter XII of the Cr.P.C. relating to the power of police to investigate the cognizable offence. The order passed under Section 156 (3) of the Cr.P.C. is a pre-cognizance order and, therefore, revisional power is not available to the accused person to thwart the registration of FIR of cognizable offence. Moreover, order directing investigation under Section 156 (3) Cr.P.C. cannot be said to be an interlocutory order and remedy of revision was rightly availed.
In view of the above, there is no merit in the arguments advanced by learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed.
August 07, 2018 (DAYA CHAUDHARY)
pooja JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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