Delhi District Court
Nigam Chaudhary vs The State (Govt Of Nct Of Delhi) on 13 July, 2017
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Revision No. : 8287/16
CC No. : 62/1
In the matter of :
Nigam Chaudhary
S/o Sh. Sattan Chaudhary
R/o F109, School Road
Khanpur Village, New Delhi
...... Petitioner
VERSUS
1. The State (Govt Of NCT of Delhi)
2. Narayan Kumar
S/o Late Sh. Bhagwan Dass
R/o 6/108, DDA Flats
Madangir, New Delhi
....... Respondent
Date of Filing : 20.05.2016
Date of Arguments : 07.07.2017
Date of Order : 13.07.2017
O R D E R
1. This is revision petition filed by petitioner aggrieved by the order of Ld. Trial court dated 19.3.2016 whereby the petitioner was directed to be CR No. 8287/16 1/6 summoned as an accused for the offence u/s 211 IPC.
2. Respondent no.2/complainant had filed a complaint before Ld. Trial court on the allegations that petitioner herein had lodged a false FIR number 286/13, P.S. Ambedkar Nagar against the complainant/respondent no.2. Complainant had entered into an agreement to purchase the property bearing no. 6/108, DDA Flats, Madangir, New Delhi with one Mr. Manik Ahuja vide agreement dated 8.5.2016 . Later on, suit for specific performance was filed by the complainant against said Sh. Manik Ahuja which is subjudice before the court concerned.
3. As alleged in the complaint, petitioner herein got registered false FIR bearing no. 286/2013 against the complainant u/s 420 IPC alleging that he has forged his signatures on the agreement to purchase, and thereby, complainant had cheated him. As further alleged, this allegation made by the accused/petitioner was false, therefore complainant filed the complaint and sought summoning of the accused/petitioner u/s 211 IPC on the said allegations of filing of false complaint against him.
4. Ld. Trial court while placing reliance upon M.L. Sethi Vs. R.P. Kapoor & Ors. AIR 1967 SC 528 and noting that the investigation of the said matter has not been conducted and no proceeding with regard to said FIR was pending in the court, therefore bar of section 195 (1) (b) Cr.P.C. had not come into operation and thereby issued directions for summoning of the petitioner/accused for offence u/s 211 IPC.
5. It is submitted by Ld. Counsel for petitioner/accused that respondent no.2/complainant has concealed the material fact from Ld. Trial court that he CR No. 8287/16 2/6 has also filed a writ petition before Hon'ble High Court seeking quashing of said FIR no. 286/2013 which writ petition was dismissed. It was also submitted that the complaint u/s 211 IPC is not maintainable as the final verdict of the said FIR has not come from the court.
6. Per contra, Ld. Counsel for complainant stated that conclusion from the investigation or from the civil court is not required for summoning of the accused u/s 211 IPC. He replaced reliance upon AIR 1967 Supreme Court 528 M.L. Sethi Vs. R.P. Kapur & Anr. and drew attention of this court to para 32 of the judgment (supra) wherein it was observed that " the last submission made on behalf of the appellant was that a very anomalous position can arise if a private person is allowed to file a complaint that the report to the police against him is false before investigation is completed. It was urged that there can be cases where a report may be lodged against a person for commission of a serious offence like murder, and while investigation is going on, the accused may file a complaint against the person, who lodged the report u/s 211 IPC for making a false report. Subsequently, when the police prosecute that accused, there would, simultaneously, be two trials in one of which the person accused of murder would be under trial, while in the other case, the person, who lodged the FIR, would appear as accused. It was suggested that a person accused of a serious crime should not be given the advantage of putting his complainant in jeopardy by instituting a case against him for the offence u/s 211 IPC. We are unable to hold that it is necessary to interpret the law in such a way as to necessarily avoid such a situation. There appears to be no difficulty in both cases being tried together in the same court or one after the other by different CR No. 8287/16 3/6 courts. In fact, even if we were to accept the submission made on behalf of the appellant, a similar situation can still arise. There may be a case where the police may report to the magistrate that the First information report was false, and in such a case, according to the submissions made by Ld. Counsel for the appellant, the Magistrate receiving the report u/s 173 Cr.P.C. would be competent to file a complaint against the information for the offences u/s 211 IPC, in exercise of his power u/s 195(1) (b), Cr.P.C. At the same time, there would be no bar to that informant for filing a complaint direct in the court of the Magistrate on the basis of his FIR, so that, again, there can be two trials in the court in one of which the informant would be the accused, and in the other, the person charged in the first information report would be the accused. The situation, will not, therefore, differ whether we accept the submission made on behalf of the appellant, or do not do so, this aspect is, therefore, not at all helpful in interpreting the scope of section 195 (1) (b) Cr.P.C.. We consequently, hold that in this case, the complaint, which was filed by the respondent was competent and the judicial magistrate, in taking cognizance of the offence, only exercised jurisdiction rightly vested in him. He was not barred from taking cognizance of the complaint by the provisions of section 195 (1) (b) Cr.P.C. ".
7. It is correct that so far investigation pertaining to FIR bearing no. 286/2013 is still pending, and there is no conclusion by the investigating authority regarding the falsity of contents of FIR nor there is any finding from the civil court where the suit for specific performance filed by complainant is pending. Hon'ble High Court in W.P. (Crl.) 806/2014 wherein complainant CR No. 8287/16 4/6 sought quashing of the FIR observed that " the offence alleged against the complainant was still inchoate. The civil proceedings instituted have not been concluded and in case any document preferred/filed by the petitioner is found to be forged and fabricated, the law will take its own course".
8. Apparently, the plea taken by complainant regarding the falsity of the allegations in FIR is premature without any such conclusion by investigating agency or findings by the civil court. If the investigation agency after conclusion of the investigation comes to the conclusion regarding falsity of the report, investigating agency/court is not precluded from taking action nor the complainant is precluded from approaching the court at the appropriate stage. But it may be noted that at the stage when matter is still subjudice before Ld. Civil court as well as investigation of FIR no. 286/2013 is also pending, parallel proceedings cannot be drawn at his instance, as was observed by Hon'ble Apex Court in Abdul Rehman & Ors. Vs. K.M. AneesUl Haq 2012 (1) JCC 94 wherein charge sheet had already been filed against the respondent by CAW cell before the competent court. As noted, the respondent had right to move the said court for filing of the complaint against the appellant for an offence punishable under section 211 IPC or any other offences committed in or in relation to the said proceedings at the appropriate stage. It was noted that " it goes without saying that if an application is indeed made by the respondent to the court concerned, it is expected to pass appropriate orders on the same having regard to the provisions of section 340 of the code. So long as the said proceedings are pending before the competent court, it would neither be just nor CR No. 8287/16 5/6 proper nor even legally permissible to allow parallel proceedings for prosecution of the appellants for the alleged commission of offence".
9. Applying the ratio of the authority (supra) to the facts of the instant case, as the matter is already subjudice before Ld. Civil court as well as investigation pertaining to FIR is also pending, drawing of the parallel proceedings for prosecution on the allegations of filing false FIR by accused/petitioner, neither is warranted at this stage nor is legally permissible.
10. Having discussed as above, instant revision petition is allowed . Impugned order dated 19.3.2016 passed by Ld. Trial court is set aside. TCR alongwith copy of this order be sent back to the trial court. Revision file be consigned to record room.
Announced in the Open Court (Savita Rao)
Today on 13.07.2017 Spl. Judge (PC Act), CBI01(South)
Saket Courts/ New Delhi
CR No. 8287/16 6/6