Delhi District Court
State vs . Ch. Jamshed Alam on 4 January, 2010
State vs. Ch. Jamshed Alam
IN THE COURT OF SH. SANJIV JAIN: SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution: 09.12.2009
Judgment reserved on : 04.01.2010
Date of pronouncement : 04.01.2010
C.R. No. 65/09
ID No. 02403R0409342009
1. Addl. Commissioner of Police,
New Delhi District
Delhi Police
2. State .... Petitioner
Vs.
Ch. Jamshed Alam s/o Quasim
R/O C12/160, Yamuna Vihar
Delhi 110 053 ..... Respondent
ORDER
4.1.2010
1. This criminal revision u/s. 397 / 399 of the Code of Criminal Procedure is preferred against the order of Ld ACMM I, 1 State vs. Ch. Jamshed Alam New Delhi Dt. 7.11.2009 whereby Ld ACMM has directed to register a FIR against the police officials of PS Parliament Street and to conduct investigation by the Crime Branch, Delhi Police.
2. The facts relevant for disposal of the present petition are that the respondent had moved an application for release of vehicle DL 2CF GA 0086 before the Ld ACMM alleging therein that his two vehicles bearing no. DL 2F GJ 0086 and DL 2F GA 0086 were impounded by the police of PS Parliament street ; that he had moved two separate applications for their release which were disposed of vide order dt. 26.10.2009. Thereafter application for release of vehicles was moved before the ACP Parliament Street, who released the vehicle DL 2 FGJ 0086 but did not release the other vehicle. It was stated in the application that there were Rs. 8,00,000/ in cash and documents in the vehicle DL 2F GA 0086. 2 State vs. Ch. Jamshed Alam
3. In response to that application, it was submitted by SI Raj Kumar that the applicant was using the name of the Government of India on the rear and front number plate of the said vehicle which was found abandoned near Malvankar Hall, Vithal Bhai Patel House on 22.10.2009 and was deposited in the malkhana u/s. 66 of DP Act having no other article in it. It was stated that the vehicle was not released because the applicant had improperly used the name of Government of India and it was seized in the case FIR 161/09 dt. 23.10.2009 u/s. 171/468/471 IPC and Section 3 Emblem and Names Act, PS Parliament Street being the case property. It was stated that the allegations that there were Rs. 8,00,000/ in the vehicle are afterthought.
4. During arguments it was noticed by the Ld ACMM that the applications for release of the vehicle were filed before him on 3 State vs. Ch. Jamshed Alam 23.10.2009 on which separate replies were submitted on 24.10.2009 which came up for hearing on 26.10.2009 which were disposed of, with liberty to the applicant / respondent to move the appropriate application before the concerned authorities for their release since the vehicles were seized u/s. 66 of Delhi Police Act.
5. It was submitted by Ld APP that in the applications moved on 23.10.2009 it was not mentioned that the cash was lying in either of the vehicles, the list was submitted by the respondent on 24.10.2009.
6. Ld ACMM after considering the averments made found that at present there are allegations that the vehicle was containing Rs. 8,00,000/ and other documents. There are some unanswered questions which may require investigation eg. the FIR was 4 State vs. Ch. Jamshed Alam allegedly registered on 23.10.2009 and in the reply filed on 24.10.2009 there was no mention that the vehicle was booked under some offence other than u/s. 66 DP Act. Two seizure memos of the vehicle were prepared one u/s. 66 DP Act the other in case FIR no. 161/09 for which no explanation was given when the applicant was informed about the seizure of his vehicle in another case. It remained unexplained how the car was opened and from where the keys of the car were received to open when the same was lying unattended on the road. The applicant had alleged that when his car was taken, his driver Gurmeet Singh was there in the car. It was held that there are grounds to investigate into the alleged misappropriation and / or criminal breach of trust regarding the alleged property belonging to the applicant Jamshed Alam.
5 State vs. Ch. Jamshed Alam
7. This order is assailed on the ground that the impugned order was passed without calling any report from the DCP (Crime) whereas section 156(3)CrPC is crystal clear that Ld ACMM has power to direct the concerned SHO in this regard ; that the order regarding direction for registration of FIR is in complete violation of provision of Section 154 CrPC which provides that a person after being aggrieved by the nonaction of SHO will have to approach even through registered post to the SP / DCP and an order for registration of FIR u/s. 156(3) CrPC can only be done subsequent to exhausting the provision of Section 154 CrPC ; that the impugned order has been passed on an application moved for release of vehicle seized u/s. 66 DP Act thus Ld ACMM reviewed his own order dt. 26.10.2009 whereby he had already disposed of the applications and that the Court of Ld ACMM is not the appellate Court ; that Ld ACMM did not consider the facts of the 6 State vs. Ch. Jamshed Alam case pending against the respondent involving serious allegations rather the said order would discourage the moral of the police and give undue advantage to the respondent .
8. Notice of the petition was given to the respondent / applicant Jamshed Alam.
9. I have heard the arguments advanced by Ld Spl PP Sh.
Atul Kumar Srivastava and Ld counsel Sh. R.P. Khatana for the respondent / applicant Jamshed Alam. The respondent has also filed an application us 340 CrPC alleging that the Addl. Commissioner of Police in the revision petition has filed a wrong affidavit that no application for release of vehicle was moved before the ACP Parliament Street which is factually incorrect. 7 State vs. Ch. Jamshed Alam
10. In the instant case, the applications for release of vehicle DL 2FGA 0086 and DL 2F GJ 0086 were moved by the respondent on 23.10.2009 which were seized by the police officials of PS Parliament Street wherein it was not stated that the said vehicle had Rs. 8,00,000/ in cash and some documents. The report was given by the HC Dharamvir Singh of PS Parliament Street that the vehicles were impounded u/s. 66 DP Act and ACP is empowered to release the vehicles, further the antecedents of the owner of the vehicles have to be verified. On 24.10.2009 the respondent had filed a list of articles / documents lying in the vehicles which included briefcase, cash Rs. 8,00,000/, diary, original documents, clothes etc. Ld ACMM vide order dt. 26.10.2009 disposed of both the applications with the order that the vehicles were taken by the police u/s. 66 DP Act and the respondent may move appropriate application before the concerned authorities for release of the said 8 State vs. Ch. Jamshed Alam vehicles. The respondent then moved an application for release of vehicle DL 2F GJ 0086 on 28.10.2009 but did not mention the fact that the vehicle had cash and documents. Again on 3.11.2009 an application was moved for release of vehicle DL 2F GA 0086 before the ACMM stating that vehicle DL 2F GJ 0086 has been released by the ACP but the other vehicle has not been released rather it was refused without assigning any reason. It was alleged that in the said vehicle Rs. 8,00,000/ in cash and original documents were lying and no purpose would be served by keeping the vehicle and the goods lying in the vehicle.
11. The fact of the matter is that the FIR was registered qua this vehicle on 23.10.2009 at PS Parliament Street. After giving notice to the SHO, the impugned order was passed on 7.11.2009. Here the question is, under what provisions the second application 9 State vs. Ch. Jamshed Alam for release of vehicle was moved when Ld ACMM vide order dt. 26.10.2009 had already disposed of the applications that the vehicle were taken by the police u/s. 66 DP Act and the respondent may move appropriate application before the concerned authorities for release of the vehicle. The court of ACMM is not the Appellate Court to entertain the second application. The impugned order finds mention that the respondent has alleged that the car was taken away from Malwankar hall when it was duly attended by its driver Sh. Gurmeet Singh who was also taken to the police station alongwith the car. So why in the first application moved on 23.10.2009 or the application moved before the ACP on 28.10.2009 this fact was not mentioned that the vehicles had cash Rs. 8,00,000/ and some documents. The amount in question was not a petty amount. Why the complaint was not lodged with the authorities that the vehicle 10 State vs. Ch. Jamshed Alam had Rs. 8,00,000/ in cash and some documents, only a list was given to the court on 24.10.2009 about the articles / documents lying in the vehicle without any prayer. This fact was not highlighted by the respondent when the order dt. 26.10.2009 was passed. Even before 3.11.2009 no report was lodged that there were Rs. 8,00,000/ and some original documents in the car. When the driver had accompanied with the vehicle, he at the time of seizure of the vehicle could have told the police that this vehicle had a bag and documents. When the respondent has himself admitted that his driver was attending that vehicle so it was incumbent upon him to have intimated the police that the bag and the documents are in the vehicle. Except filing the application on dt. 3.11.2009 that too for release of the vehicle no action was taken by the respondent either by lodging the report with the police officials or filing a complaint before the Court. 11 State vs. Ch. Jamshed Alam
12. The facts and circumstances show that an enquiry was initiated against the respondent by the DCP (Special Cell). During enquiry it was found that the applicant had used the logo of Government of India, his office address as that of Shastri Bhawan. On verification it was found that the respondent was given identity card for a period of one year however, the photocopy forwarded by the police showed its validity upto 2009. The applicant had produced another identity card showing its validity upto March 2010 which on verification was found false. The applicant had used the words Government of India on the number plates whereas he was not the government officer in any capacity.
13. It is no doubt true that ACMM has power to direct investigation u/s.156 (3) CrPC. Since the allegations were against 12 State vs. Ch. Jamshed Alam the officials of PS Parliament Street, so he was not wrong in directing the investigation to be conducted by Crime Branch, however, in the instant case there was no complaint before the ACMM that the police officials had misappropriated the cash and documents. The application was simply for release of vehicle. I agree with the contention of Ld Spl PP that the respondent should have approached SHO / DCP first before invoking the provisions u/s. 156(3) CrPC. The Supreme Court in the case Sakiri Vasu Vs. State of UP Reported in 2008 (1) JCC 113 (Supreme Court) held that the forum under 156(3) CrPC can be invoked only after exhausting the forum u/s. 154(1) and 154(3) CrPC which has also been reiterated in the case Pawan Verma Vs. SHO PS Model Town and Ors 2009, Volume II AD (Criminal), DHC, Page 298. Further it is not clear why the second application was entertained that too for release of the vehicle when Ld ACMM had already 13 State vs. Ch. Jamshed Alam disposed of the application since the court of Ld ACMM is not the Appellate Court of ACP. It is not the case of the respondent that the said application was moved in the case FIR no. 161/2009 which fact was already in the notice of the respondent as apparent from the record as on 28.10.2009 he was directed to join investigation with the IO on 31.10.2009 by the Addl Sessions Judge while considering his application for anticipatory bail which fact was suppressed by the respondent in the second application for release of the vehicle since he did not even mention the particulars of the case. It has been observed in the case S Palani Velayutham & Ors Vs. District Collector, Tirunelveli, Tamil Nadu & Ors (2009) 12 SCR 1215 that the power to order a prosecution has to be used sparingly and in exceptional circumstances either to maintain the majesty of law or to ensure that clearly established offences relating to fraud / forgery with 14 State vs. Ch. Jamshed Alam referred to court proceedings do not go unprosecuted or unpunished. It was also held in the case M/s. Skipper Beverages P. Ltd Vs. State 2002 Crl LJ NOC 333 (DELHI) that Section 156(3) CrPC empowers the Magistrate to direct police to register case and initiate investigation but this power has to be exercised judicially and not in arbitrary manner.
14. In the light of above discussions I am of the opinion that the respondent could have invoked the provisions of 154 of the Code of Criminal Procedure before knocking the forum of the Court requesting investigation u/s. 156(3) CrPC. He could have approached the senior officers including DCP in case of non action of SHO which remedy has not been exhausted by the respondent. 15 State vs. Ch. Jamshed Alam
15. Viewed thereof, I allow the revision petition with liberty to the applicant / respondent to approach the police authorities first and in case he does not get any relief knock the door of the Court for appropriate action.
16. In the instant case the respondent had moved an application u/s. 340 CrPC for initiating action against the Additional Commissioner of Police and others alleging therein that in the revision petition in para 9, Addl C.P had solemnly affirmed that no application for release of Ambassador car bearing no. DL 2F GA 0086 was moved before the ACP, Parliament Street which is factually wrong. It is stated that the assertion made in the petition amounts to giving false information which is an offence u/s. 193 IPC.
16 State vs. Ch. Jamshed Alam
17. I have perused the revision petition including para 9. It was stated in the above para that the another vehicle no DL 2F GA 0086 was not released on superdari as the respondent did not ask for its release as apparent in the application. The respondent did not apply for release of ambassador car as it was seized in FIR no 161/09 dt. 23.10.09 PS Parliament Street. On its careful perusal I find that the Additional Commissioner did not mention the wrong facts. He has only stated that the respondent did not ask for its release on superdari as it was seized in the case FIR 161/09. He did not state that the respondent did not move an application for its release which was seized u/s. 66 DP Act. In the case Santokh Singh Vs Izhar Hussain AIR 1973 SC 2190 it was held that it is only in glaring cases of deliberate falsehood (amounting to an offence under sections 193 and 195) where conviction is highly likely then the Court should direct prosecution. The court has to 17 State vs. Ch. Jamshed Alam exercise judicial discretion in the light of all the relevant circumstances to determine the question of expediency and order prosecution in the larger interest of the administration of justice and not to gratify feeling of personal revenge or vindictiveness or to serve the ends of a private party. In Chajoo Ram V Radhey Shyam AIR 1971 SC 1367 it was held that the Court must be satisfied that there is a prima facie case of deliberate falsehood on a matter of substance and there is a reasonable foundation for the charge and also it is expedient in the interests of justice to file a complaint.
18. For the reasons stated above I do not find any merit in the application, same is also dismissed with no orders as to cost.
File be consigned to record room.
Announced in open court on Sanjiv Jain
th
this 04 day of January, 2010. Special Judge NDPS : New Delhi 18