Delhi District Court
Sandeep Grover vs . Vivek Batra & Ors on 28 October, 2013
Sandeep Grover Vs. Vivek Batra & Ors
CR No. 125/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
1. Sandeep Grover S/o Late Sh. R.K. Grover,
R/o GH2/9A, Orchid Gardens, Suncity,
Sector 54, Gurgaon, Haryana 122002.
......... Revisionist /petitioner
VERSUS
1. Vivek Batra
R/o B22, Income Tax Colony,
Pedder Road, Mumbai and other unknown involved
persons.
2. State
.... ...... Respondents
CR No. 125/13
Date of Institution: 22.2.2013
Reserved for orders on: 19.10.2013
Order announced on: 28.10.2013
CR No.125/13 -:1:- 28.10.2013
Sandeep Grover Vs. Vivek Batra & Ors
CR No. 125/13
ORDER
1. Vide this order I shall dispose of the revision petition filed by the petitioner/ applicant against impugned order dt. 19.07.2013 whereby application u/s 156 (3) Cr.P.C of the petitioner was dismissed.
2. Stating briefly, that the respondent /accused Vivek Batra had managed to file a false suit No. 274/05 in the name of his wife Priyanka Batra at Tis Hazari against the petitioner regarding agricultural land in dispute at Behror ( Rajasthan). He is further alleged that accused / respondent himself started pursuing and prosecuting the same on behalf of his wife, on the basis of power of attorney. It is further alleged that the said suit was dismissed vide order dt. 18.1.2012 . It is further alleged that an appeal was preferred against the said order of dismissal dt. 18.1.2012 by the respondent in the court of Sh. Vikas Dhull, ld. SCJ, Dwarka bearing No. RCA No.7/12. It is further alleged that the said appeal was also accompanied with a application U/O 39 R 1 & 2 read with section 151 CPC seeking restrain the petitioner from selling/ transferring/ alienating / creating any third party interest etc in his land.
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3. It is further alleged that the petitioner filed application U/O 7 Rule 10 CPC on the point of jurisdiction of appeal which was allowed and appeal was ordered to be returned by Sh. Navin Arora, ld. SCJ ( Sosuth West) Dwarka, New Delhi .
4. It is further alleged that on 30.3.2013 , the petitioner also noticed that appeal bearing no. RCA 7/12 was bearing forged signatures of appellant Priyanka Batra and suspected that the said appeal and documents can be signed by none other than the accused / respondent Vivek Batra and also suspected that though the accused Vivek Batra appeared to be instrumental in filing the appeal under forged signatures of the appellant/Priyanka Batra and some other persons besides him were also involved in the process.
5. It is further alleged that petitioner made a written complaint dt. 30.3.2013 with the police post, Dwarka Courts against the respondent/ accused complaining the said offence but police did not take any action on his complaint. It is further alleged that when police did not take any action on his complaint, he filed a complaint u/s CR No.125/13 -:3:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 190 Cr.PC against accused /respondent Vivek Batra and other involved persons before the court of concerned magistrate for the offences u/s 465/471/120B IPC. It is further alleged that with the said complaint, he had also filed an application u/s 156 (3) Cr.PC seeking direction to the concerned SHO to register the case according to law.
6. It is further alleged that the petitioner has mentioned in the application that accused Vivek Batra was suspected to be prime accused and some other persons also appeared to be involved in the conspiracy and to trace them and prove their identity and role in commission of the offences , police investigation is required for custodial interrogation of the involved persons.
7. It is further contended that he has also stated in the application that the case from its very nature required examination/ interrogation of a large number of persons, taking their specimen handwriting for comparison by a Government laboratory, taking into custody records of the Notary public purported signatures of the appellant on the affidavits filed with the appeal and applications in the Civil Courts.
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Sandeep Grover Vs. Vivek Batra & Ors
CR No. 125/13
8. It is further alleged that ATR was called by the ld. MM on
the complaint and Incharge of PP Dwarka filed his report dt. 11.7.2013 and admitted that signatures of the appellant appeared to be different from her purported signatures on the appeal documents filed in Civil Court but no action was taken against the respondent as the matter pertains to civil court.
9. It is further contended that after considering the ATR , ld.
MM dismissed the application u/s 156 (3) Cr.P.C vide order dt.19.7.2013 and proceeded to try the case despite the fact that the police had clearly opined that signatures of appellant appears different from the appeal and admitted signatures and listed the matter for pre summoning evidence.
10. Feeling aggrieved by the impugned order, the petitioner has filed the present revision petition.
11. The petitioner has contended that the impugned order passed by the ld. trial court is against the law and facts on record and is based on surmises and conjunctures . It is further contended that the order passed by the ld. MM is mechanical in nature and same has been passed without CR No.125/13 -:5:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 proper application of judicial mind.
12. It is further contended that the application of the petitioner u/s 156 (3) Cr.PC was dismissed by the ld. trial court in a routine manner without understanding the intricacies involved in proving of his complaint by the petitioner without the aid of police investigation.
13. It is further contended that ld. trial court has gravely erred in law while dismissing the application of the petitioner ignoring the fact that it was virtually impossible for the petitioner to prove his case without aid of police investigation. Ld. trial court has also failed to consider and appreciate that the offences in question were serious offences affecting administration of justice and fraud has been committed by the respondent/ accused not upon the petitioner but also upon the court of law and, therefore, it was essential to book and punish the offenders.
14. It is further contended that Ld. Magistrate reached a satisfaction that the complaint disclosed commission of cognizance offences, therefore , it was essential to direct the police to investigate the matter and register the case in accordance with law to unearth the conspiracy and find CR No.125/13 -:6:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 out actual offenders.
15. It is further contended that Ld. trial court has failed to consider and appreciate the fact that the police had already opined in the ATR/ Status report that appellant's signatures on the appeal documents filed in the civil court by the respondent in the name of his wife, appeareed to be different from her admitted signatures and therefore, it was a fit case for issuance of directions to the police to investigate and register the case against the actual offenders.
16. It is further contended that Ld. Magistrate has palpably erred in law while holding that field investigation is not required and that the petitioner could lead his evidence in the case without considering that it is not possible for the petitioner either to prove the conspiracy or to bring the offenders to light without field investigation by police requiring custodial interrogation of the involved persons, seizure of Notary public's record and other record taking specimen handwriting of the involved persons and getting the same compared in a Govt. Lab and passed the impugned order. In this regard, Ld. counsel for the petitioner also relied upon judgment of our own Hon'ble CR No.125/13 -:7:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 High court passed in Mr. Amit Khera Vs. Govt. of NCT of Delhi & Ors Crl. No.804 of 2008.
17. On the other hand, Counsel for the respondent has contended that the ld. trial court has rightly passed the order and impugned order suffers from no illegality, otherwise also, there is no need to get the matter investigated from police as all the evidence is already in the possession of the petitioner. Therefore, this petition deserves to be dismissed.
18. I have heard both the parties and gone through the record.
19. Law is settled so far as directions for registration of FIR under section 156(3) Cr.PC are concerned which has been laid down in Subhkaran Luharuka & State (Govt. of NCT of Delhi) & Anr. 2010(3) JCC 1972 and is reproduced here under:
52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under: CR No.125/13 -:8:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13
(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.Upon a preliminary satisfaction, CR No.125/13 -:9:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is CR No.125/13 -:10:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.
20. The main contention of the counsel of the petitioner is that the Ld. Trial Court has failed to appreciate the fact that some other persons also appeared to be involved in the conspiracy and it was not possible for the petitioner to trace the identity of the accused persons and dismissed the application vide impugned order dt. 19.7.2013 and listed the matter for leading pre summoning evidence, the ld. trial court has observed that the forged signatures which appears on the documents can be proved by the petitioner himself by leading pre summoning evidence for which police machinery is not required. He also observed that in case, it required then the court can conduct an inquiry u/s 202 Cr.PC at the appropriate stage and thus, the said application was dismissed. It is relevant to mention here that as per the mandate of Subhakaran (supra), no direction is required to register the FIR against the accused/respondent as no police assistance is required to collect the evidence as all documents are already in possession of the petitioner. So CR No.125/13 -:11:- 28.10.2013 Sandeep Grover Vs. Vivek Batra & Ors CR No. 125/13 far as ratio of Amit (supra) is concerned. It may be relevant to observe that in that case, the complainant was only having the mobile phone number of accused/caller and police assistance was required to collect the evidence but the present case is distinguishable to the facts of Amit case and not applicable to the facts of the present case.
21. From the above discussion, I am of the opinion that this petition is devoid of merits and is hereby dismissed.
22. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
23.TCR and copy of the order be sent to the Ld. Trial Court for information.
24. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 28th of October, 2013 ASJ/ Dwarka Courts
New Delhi
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