Delhi High Court
V.M. Singh vs State on 1 October, 1997
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT Devinder Gupta, J.
1. The grievance of the petitioner is that on his complaints dated 25.9.1996 and 7.10.1996 (Annexures-A.4 and A.7 respectively) F.I.R. has not been registered by the respondents. Consequently, direction is sought against the respondents to register F.I.R. on the basis of two complaints, to direct investigation by Special Task Force or any other independent Investigating Agency and to take action against respondents 2 and 3 for inaction in not registering the F.I.R.
2.The petitioner claims to be owner in possession of agricultural land situated at Village Punjab Khor, Delhi, by virtue of a family settlement and decree passed on 24.8.1993 and it is stated that on 25.9.1996 at about 9.30 a.m. he was informed by Umed Singh, the Manager of his agricultural land that Mrs. Amteshwar Anand along with couple of other persons had come to the land, physically man handled Umed Singh and other servants on the farm, snatched the key of the Kothi from Chowkidar, Shri Sheesh Pal. The persons accompanying through the servants out of the farm as well as furniture of the Kothi and with the help of tractor destroyed Jawar crop. On receiving report, the petitioner got the information conveyed to the police on phone and also rang up the concerned D.C.P. At about 10.30 a.m. the petitioner arrived at the agricultural land and found that Mrs. Anand had gained access to the property and was sitting outside. One Col. Bansal was also sitting there. For this act of criminal trespass, a complaint in writing was lodged at about 11.30 a.m. on 25.9.1996 for taking action against Mrs. Anand, Col. Bansal, Narinder Nath, Ex-Pradhan; Budh Ram, driver and others. As F.I.R. was not registered on this complaint, the petitioner on 4.10.1996 submitted another complaint (Annexure-A.6), which was followed by another complaint (Annexure-A.7) in which prayer had been made by the petitioner to register an F.I.R. against Smt. Kirpal Kaur and Km. Guneeta along with Mrs. Anand for cheating, conniving and playing fraud. Despite subsequent complaints dated 22.10.1996 and 26.2.1997 (Annexures-A.8 and A.9), F.I.R. had not been registered and it is alleged. that the conduct of S.H.O. appeared to be somewhat partisan because of the fact Mrs. Anand happens to be the mother of Mrs. Menka Gandhi. Due to in action on the part of the police, the petitioner was left with no other alternative except to approach the Court.
3. After show cause notice was issued, reply has been filed by Inspector Inder Singh Dhaiya, S.H.O., Police Station Khanjhawala, Delhi, wherein it is stated that on 25.9.1996 at about 11.05 a.m. an information was received that a quarrel was going on at the petitioner's farm house. This information was recorded in the daily diary vide D.D.No.13-A on 25.9.1996. The same was marked and sent to A.S.I. Dharam Singh through constable Ram Karan, since A.S.I. was already in Village Punjab Khor. On another call, the S.H.O. and A.C.P. also reached the spot. S.H.O. version of the incident on his return was recorded in D.D.No.18A on 25.9.1996 at about 7.15 p.m. It is stated that apparently there was no quarrel but there was exchange of words between the petitioner on the one side and Smt. Ameteshwar Anand on the other side. Statements of persons present on both sides were also recorded. Both the parties claimed to be the owner of the land and produced their respective documents. There was no sign of any mischief by damaging the crop etc. at the spot. Parties also informed that civil dispute regarding the land was already pending in the High Court. The S.H.O. took possession of the documents produced by the parties, who were directed to maintain peace and not to enter into quarrel. It is also submitted that the petitioner gave a complaint in writing to the S.H.O. at the spot but no case was registered from the facts and circumstances, which were brought to the notice of the S.H.O. and A.C.P. at the spot. All papers were thereafter sent by S.H.O. regarding the alleged trespass for legal opinion because of civil dispute pending in the High Court and for necessary action to be taken thereupon. The papers were examined by the Chief Prosecutor, North West District on 27.9.1996, who gave his opinion on 3.10.1996 as under:
"At the most, if there is a dispute regarding the possession of the land and there is law and order problem, then the land in question can be sealed by the S.D.M. On the request of the S.H.O. No case of criminal trespass is made out against any party as the matter is subjudice in Delhi High Court. Since the matter is pending in Delhi High Court, the police should avoid any action in this matter unless there is a law and order problem."
The affidavit further states that in view of the opinion of the Chief Public Prosecutor, North West, no action of trespass was taken by the police on the petitioner's complaint.
4. We have heard learned Counsel for the parties and been taken through the entire record.
5. The petitioner's complaint dated 25.9.1996, which as per the affidavit of respondent No. 3 was handed over to S.H.O. on the spot reads:
"To The SHO Khanjawala, ACP 25.9.1996 Delhi Camp Punjab Khor Sir, One Mrs. Amteshwar Anand mother of Mrs. Maneka Gandhi has forcibly come to my farm, claiming the land to be hers. She has forcibly got my Jawar crop cut and got the tractor ploughed destroying my Jawar on plot Nos. next to the Village near 1115, 1116 etc. One man who calls himself Col. Bansal of the Army escorted her and he along with Mrs. Anand, tractor and driver of Mrs. Menka Gandhi's Gaushala, Bawana (Eicher Tractor) along with a few Gonads and Narender Nath, Ex. Pradhan and his son tried to forcibly get into my house along with three hired men/Goondas. Please take action as Mrs. Menaka Gandhi and her mother do not take law in their own hands and the said land is being fraudulently being claimed by them violating the decree of the Hon'ble High Court dated 26.8.1993 which is in force even today. Please ensure action against them is taken against Mrs. Anand, Col. Bansal, Narender Singh, Budh Ram, Driver (Driver of Mrs. Menka Gandhi) Bowana and others in accordance with law under Sections 447, 504, 506 etc. as well as for destroying the standing crop and other relevant sections of law. Sd/-
V.M.Singh, V & P.O. Punjab Khore, Delhi-81 25.9.1996."
6. The complaint on the face of it suggest that as per the petitioner, Mrs. Ameteshwar Anand, claiming the land to be hers forcibly entered on the farm accompanying with Col. Bansal, Shri Narender Nath, Ex. Pradhan and Budh Ram, driver and others. Alongwith this complaint, the petitioner is tated to have handed over a copy of family settlement, order of the High Court dated 26.8.1993 and report of Local Commissioner stated to have been appointed by the High Court on 4.5.1992. At this stage it may be mentioned that there has been dispute with respect to this property along with other properties, which was subject matter of Suits No.63/1975 and 1498/89. The petitioner was defendant No.7 in Suit No.1495/89 and one of the legal representative of plaintiff Maninder Singh in Suit No.63/75. Smt. Kirpal Kaur and Smt. Amteshwar Anand are sisters whereas Km. Guneeta is the daughter of Kirpal Kaur. Both the suits were decreed in terms of compromise pursuant to family settlement. The compromise and family settlement formed part of decree. According to the petitioner, as per terms of decree Smt. Kirpal Kaur and Km. Guneeta relinquished their rights, title and interest in the land in his favour and the petitioner has to pay a sum of Rs.50,00,000/- in the manner stated in the family settlement and compromise. Full amount admittedly has not been paid to Smt. Kirpal Kaur and Km.Guneeta and it is also stated that they had moved I.A.7928/95 and 8623/95 praying for setting aside the settlement in which on 9.11.1995, it is stated that an order was passed by learned Single Judge directing both of them to appear in Court and the requisite power of attorney in petitioner's favour, who was asked to hand over post dated cheque for a sum of Rs.30,00,000/-. It appears that the matter is still pending adjudication before the Civil Court.
7. When F.I.R. was not registered on the petitioner's complaint dated 25.9.1996, he gave reminder dated 4.10.1996 or 5.10.1996. Simultaneously, on 7.10.1996 another complaint (Annexure-A.7) was submitted by him to S.H.O. Thana Khanjawala stating that there was a dispute regarding property situated at Village Punjab Khor left behind by Sir Datar Singh, who died in the year 1973, for which suit for partition is pending adjudication in High Court since 1975. Compromise was arrived at in 1993. Smt. Kirpal Kaur and Km. Guneeta with intention of cheating and defrauding him had intentionally executed a power of attorney in favour of Mrs. Amteshwar Anand, which power of attorney was registered in the office of Sub-Registrar on 13.2.1996. Though Smt. Kirpal Kaur and Km. Guneeta had already received a sum of Rs. 20,00,000/- out of Rs. 50,00,000/-, the balance was payable to them on their complying with other formalities of giving power of attorney in petitioner's favour as per the terms of settlement and the very fact that Smt. Kirpal Kaur and Km. Guneeta, who were to give power of attorney to the petitioner to look after and enjoy the property including the land at Village Punjab Khor gave General Power of Attorney to Mrs. Amteshwar Anand to look after the property by her, who happens to be the sister of Smt. Kirpal Kaur and maternal aunt of Km. Guneeta. The petitioner had been cheated and defrauded, for which it was prayed that action be taken against Smt. Kirpal Kaur and Km. Guneeta and also against Mrs. Amteshwar Anand, who had full knowledge of the decree.
8. The petitioner has also stated that on 24.8.1996 Mrs. Amteshwar Anand acting as attorney of Smt. Kirpal Kaur and Km. Guneeta had made a complaint against him to the S.H.O., P.S. Khanjawala alleging that illegal cultivation was going on in the land of Km. Guneeta and Smt. Kirpal Kaur and the encroacher should be evicted from the land and on the basis of the said complaint, the S.H.O. had called Umed Singh, the manager of the petitioner to vacate the agricultural land in which Mrs. Anand had an interest.
9. In the back ground of the aforementioned facts, it was contended on behalf of the petitioner that the information conveyed to the police through complaints (Annexures-A.4 and A.5) dated 25.9.1996 and 7.10.1996 was with respect to commission of cognizable offence for which police had no option but to register case and proceed with the investigation of a case under the provisions of Chapter XII of Cr.P.C. The police had not discharged its obligation, it was necessary to issue necessary direction for registration of a case and for its investigation in accordance with law and since there was sufficient material on record to show that there was connivance of police with Smt. Amteshwar Anand, who happens to be the mother of Mrs. Maneka Gandhi, investigation deserves to be directed to be handed over to an independent agency.
10. Having considered submissions, we find no force in the complaint. On receipt of the information as per the version of respondent No. 3, preliminary investigation was conducted on the spot in the presence of S.H.O. and A.C.P. concerned, no cognizable offence was found to have been committed. Learned Counsel for the petitioner contended that there was no provisions in Cr.P.C. permitting police authorities to start preliminary investigation before registering an F.l.R., for which reliance was placed on a Division Bench Judgment of this Court in Kuldip Singh Vs. State, II (1994) CCR 1005.
11. Wherein information itself does not disclose commission of cognizable offence no duty is cast upon the police to register the case. In Kuldip Singh's case (supra) it was observed that if the information is vague, the police will be within its right to say that information does not disclose commission of offence and thus may refuse to register a case or withheld of the registration of a case and in the meantime a preliminary enquiry may be held to find out about the commission of a cognizable of an offence. The approach of starting preliminary investigation before registration of a case is not prohibited under the Cr.P.C. In State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, , Justice Mudholkar while agreeing with the conclusion of the majority with the question whether there was any prohibition in Cr.P.C. against starting a preliminary investigation before registering an F.I.R. Observed:
"In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it."
12. In P. Sirajuddin Vs. State of Madras, , it was held that there must be some suitable preliminary investigation as to the allegation by a responsible officer, before a public servant, whatever be his status, is publicly charged with an act of dishonesty, which amount to serious misdemeanor or misconduct and before a first information is lodged against him. Otherwise such a report would do incalculable harm not only to the office in particular but to the department he belonged to, if an FIR is straightaway registered.
13. In State of Haryana Vs. Bhajan Lal, 1992 Supp. (1) S.C.C. 355, Ratnavel Padian, J. while referring to the observation of Justice Mudholkar in Bhagwat Kishore Joshi's case (supra) and those of Justice Mitter in P. Sirajuddin's case (supra) held:
"We are in agreement with the views expressed by Mitter, J. and Mudholkar, J. in the above two decisions."
14. A Division Bench of this Court in Madhuresh Vs. CBI and Others, 66 (1997) D.L.T. 805 held that registration of an F.l.R. is not a condition precedent for conducting a preliminary investigation as distinct from a regular investigation.
15. In the instant case, as noticed above, as a result of the preliminary investigation carried out on the spot and in the light of the material, which was placed before the police an opinion was formed not to register an F.l.R. since no cognizable case has been made out, filing of petition under Article 226 of the Constitution would not be an appropriate remedy inasmuch as the petitioner has got alternate adequate and efficacious remedy available in accordance with law for redressal of his grievances. The question of ownership cannot be said to be yet finally concluded since the matter is still subjudice in Civil Court in which Smt. Kirpal Kaur and Km. Guneeta are stated to have filed an application for setting aside the settlement and instead of executing power of attorney in favour of the petitioner, power of attorney to manage their property has already been given to Smt. Amteshwar Anand.
16. We do not find it to be a fit case for issuing any direction since conditions which are sine qua non for recording of an F.I.R. are that there must be an opinion and that opinion must disclose the commission of a cognizable offence. Consequently, the petition is dismissed with liberty reserved to the petitioner to have redressal of his grievances in accordance with law.