Delhi District Court
Tanpreet Singh vs Sh. Jarnail Singh Thukral on 18 December, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 251 of 2021
CNR No. DLSE01-010853-2021
IN THE MATTER OF:
Tanpreet Singh
S/o Sh. Jagjit Singh
R/o A-116, First Floor,
Lajpat Nagar Part-I, New Delhi-110024
(Trustee of Gurudwara Sri Guru Singh Sabha
Charitable Dispensary)
Back side of Gurudwara, Krishna Market,
Lajpat Nagar Part-I, New Delhi.
.......Revisionist
Versus
1. Sh. Jarnail Singh Thukral
Chairman, Gurudwara Sri Guru Singh Sabha
Charitable Dispensary,
R/o C-198, Ground Floor,
Lajpat Nagar Part-I, New Delhi.
2. Sh. Harvinder Singh Sahni
Incharge, Gurudwara Sri Guru Singh Sabha
Charitable Dispensary,
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Digitally signed
by ANUJ
ANUJ AGRAWAL
AGRAWAL Date: 2021.12.18
14:41:28 +0530
R/o A-86-87, Ground Floor,
Lajpat Nagar Part-I, New Delhi.
3. Sh. Hardeep Singh Suri
Manager, Gurudwara Sri Guru Singh Sabha
Charitable Dispensary,
R/o A-115, 3rd Floor,
Lajpat Nagar Part-I, New Delhi.
4. Sh. Bhupinder Singh Suri
S/o Sh. Hardeep Singh Suri
R/o A-115, 3rd Floor,
Lajpat Nagar Part-I, New Delhi.
5. Sh. Manoj Kumar
(M. No. 7011527826, 9540727971)
6. Sh. Gagan Suri
S/o late Sh. Trilochan Singh
R/o A-102, Ground Floor,
Lajpat Nagar Part-I, New Delhi.
(M. No. 9810668839)
........Respondents
Instituted on : 04.12.2021
Reserved on : Not reserved
Pronounced on : 18.12.2021
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Digitally signed
by ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.12.18
14:41:34 +0530
JUDGMENT
1. By way of the instant revision, revisionist takes exception to the order dated 07.09.2021, whereby his application under section 156(3) Cr.PC in case bearing CT case No. 875/2021 titled as Tanpreet Singh vs. Jarnail Singh Thukral, stood dismissed by Ld. Metropolitan Magistrate-01, South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld. Trial Court in the impugned order are not in dispute and the same are being reproduced for the sake of convenience:-
"As per complaint and allegations, complainant is the trustee of Gurudwara Sri Guru Singh Sabha Charitable Dispensary, Back Side of Gurudwara, Krishna Market, Lajpat Nagar-I, New Delhi. It is averred that one Chemist shop was opened in Gurudwara Sri Guru Singh Sabha Charitable Dispensary on 16.07.2020 and it was decided that the chemist shop will be taken over by Gurudwara Sri Guru Sing Babha Charitable Dispensary. It is further alleged that in September, 2020, a theft of Rs.10,000/- took place in the chemist shop and when the matter was reported to the office bearer of Gurudwara Sri Guru Singh Sabha Charitable Dispensary, it was suggested by Sh. Harvinder Singh Sahni to adjust the amount of theft of Rs.10,000/- in the expenses and not to report the matter to the police.
It is also alleged that on 02.10.2020 a meeting took place and it was decided to renovate the dispensary and renovation work of dispensary was done by Sh. Hardeep Singh Suri and a sum of Rs.7-8 lacs was given to him for renovation work and the renovation work of the dispensary was completed in November 2020 but Sh. Hardeep Singh Suri failed to submit the statement of expenses done in renovation work.
It is also alleged that in November 2020, audit of account of chemist shop was done but its report was never submitted despite repeated requests. Further, in February 2021, complainant checked the CCTV footage of chemist shop and found that Sh. Bhupinder Singh Suri was committing theft by taking out cash from the cash counter and putting it in his pocket. However, on the request of Sh. Harvinder Singh Sahni, the matter was not reported to the police.
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It is further alleged that in April, 2021, one Sh. Manoj Kumar was given responsibility to audit the account of chemist shop from 10.04.2021 to 13.04.2021. He sent his report to the complainant and as per the report, there was misappropriation of Rs.21,000,000/- apart from which a sum of Rs.7,22,000/- was shown adjusted in Stock Adjourtment Report. However when complainant requested Sh. Manoj Kumar to handover the attested hardcopy of the audit report, Manoj Kumar refused. It is further alleged that on 01.07.2021, Gagan Soni who is nephew of the accused Sh. Harvinder Singh Sahni came to the house of the complainant and started extending threats to the complainant, his parents, wife and daughter and accused Gagan Soni also snatched the gold chain of the wife of the complainant and threatened the complainant that in case the complainant failed to take back his complaint, he will kill the complainant. Thereafter Gagan Soni beat the complainant, his parents and wife, and obstructed their way so that they cannot go out of their house to take any help.
The complainant lodged a complaint to this effect with the SHO PS: Lajpat Nagar on 23.06.2021 and 01.07.2021. The complainant also sent a complaint to the ACP, Lajpat Nagar on 29.06.2021 and 01.07.2021 and to the DCP, South East District, Sarita Vihar, Delhi on 29.06.2021 and 01.07.2021 but police authorities have failed to take any action in this regard."
3. Action Taken Report was filed by concerned Inquiry Officer, PS Lajpat Nagar before concerned Court, wherein it was mentioned that on 04.08.2021, a preliminary enquiry was conducted qua all the aforementioned allegations and no cognizable offence was reported to have been committed in the instant case.
4. Vide impugned order, the application under section 156(3) stood dismissed by concerned court. The relevant observations of Ld MM is follow :-
"After going through the complaint and hearing the arguments, it is observed that the identity of the accused persons is known to the complainant and the entire evidence is either in possession of the complainant or the complainant can get the same summoned Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 4 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:41:47 +0530 through the process of this Court. No case is made out for custodial interrogation of the accused and the assistance of the police agency is not required in the present case. Besides, if after examination of the complainant, any police assistance is required, the Court is within its power to avail the same u/s 202 Cr.P.C. Accordingly, considering the facts and circumstances, there is no ground for this court to exercise jurisdiction u/s 156(3) Cr. P.C. Hence, the application under Section 156(3) Cr.P.C. made by the complainant is hereby dismissed.
Put up for pre summoning evidence on complaint u/s 200 Cr.PC on 12.01.2022."
5. Revisionist is aggrieved with the said order and has assailed the impugned order on various grounds which are summarized as under :-
i) That Ld. Trial Court has passed the impugned order without considering the material available on record and same is liable to be set-aside;
ii) That Ld Trial Court failed to appreciate that various complaints were lodged by the revisionist against the respondents with the police which itself were sufficient to proceed against them;
iii) That Ld Trial Court failed to appreciate that respondents are involved in illegal activities and there was misappropriation of Rs.
21 lacs which they have used for their own personal use and gain;
iv) That Ld Trial Court failed to appreciate the fact that respondents extended threats to the revisionist of dire consequences;
v) That Ld Trial Court failed to appreciate the fact that when revisionist stood against illegal activities of the respondents, they illegally terminated the revisionist from the post of Secretary of Gurudwara without any prior notice to him;
vi) That Ld Trial Court failed to appreciate the fact that respondents have caused grave financial hardship and crises and have also caused grave mental torture and agony to the revisionist;
vii) That Ld Trial court erred in holding that no case is made out for custodial interrogation of the respondents.
6. Ld. counsel for the revisionist addressed arguments on the Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 5 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:41:54 +0530 line of grounds as taken in the instant revision petition. He forcefully argued that the impugned order is not sustainable in the eyes of law as Ld. MM was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is argued that respondents are involved in illegal activities and have misappropriating the funds of Charitable Dispensary. It is further argued that respondents are evading to clarify the misappropriation of funds and rather started extending threats. It is submitted that the police investigation would be required for recovery of the stolen/ embezzled amount and for retrieval of the CCTV footage, which is in possession of the respondents. It is urged that impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case. Ld. Counsel has relied upon judgments of Lalita Kumar vs. State of UP & Ors., AIR 2014 SC 187, Bhajan Lal vs. State of Haryana, AIR 1992 SC 604, M. Narayandas vs. State of Karnataka, 2003 (11) SCC 251, Rajesh Bajaj vs. State of NCT of Delhi & Ors., (1993) 3 SCC 259, Mohindro vs. State of Punjab & Ors. (2001) 9 SCC 581 and Abhay Nath Dubey vs. State of Delhi & Ors. 99 (2002) DLT 114 (DB) in support of his contentions.
7. I have heard contentions of Ld counsel for revisionist and perused the record.
8. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under :
Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 6 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:01 +0530 "Section 397 : Calling for records to exercise powers of revision :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
9. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
10. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 7 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:08 +0530 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
11. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
12. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
13. After going through the records and hearing the arguments, Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 8 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:15 +0530 I am of the view that Ld Magistrate has rightly observed that the identity of accused persons is known to the revisionist. Though, revisionist has attempted to set up a case that entire evidence is not within his possession and assistance of police would be required, however in my view, if so, then same can be had by resorting to provisions of section 202 Cr.PC by the Ld Magistrate. The matter appears to be a dispute between warring factions regarding trusteeship of the dispensary and appears to have been given a criminal colour in view of the following facts:-
(i) that the first incident of alleged theft took place in September 2020;
(ii) that the revisionist was removed from the trusteeship on 16.06.2021 by the respondents who are the other trustee/ office bearers of the dispensary;
(iii) that the complaint to the police was for the first time made by the revisionist on 23.06.2021 i.e. after his removal as a trustee and not at any point of time when he was holding the said office as trustee.
14. In Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
" Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
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15. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
16. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 10 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:26 +0530 "9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
17. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
18. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 11 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:32 +0530 powers vested in the Ld Magistrate.
19. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 07.09.2021. The revision petition stands accordingly dismissed. The judgments relied upon by Ld. Counsel for revisionist are distinguishable in the facts and circumstances of the present case.
20. Copy of this judgment be sent to Ld Trial Court.
21. Revision file be consigned to Record Room after due Digitally signed compliance. ANUJ by ANUJ AGRAWAL AGRAWAL Date: 2021.12.18 14:42:38 +0530 Announced in the open (ANUJ AGRAWAL) Court on 18th December, 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 251 of 2021 Tanpreet Singh vs. Jarnail Singh Thukral & Ors Page No. 12 of 12