Delhi District Court
Surinder Kumar Madan vs The State on 22 October, 2016
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. Revision no. 17/2015
Unique Case No. 14/2016
Surinder Kumar Madan
R/o A-82, Defence Colony,
New Delhi. .... Revisionist
Versus
The State
(Govt. of N.C.T. of Delhi).
New Delhi. .... Respondent
Date of Institution : 13.08.2015
Date of Arguments : 01.10.2016
Date of Order : 22.10.2016
ORDER
1. This revision petition is preferred against the order dated 06.04.2015 (herein after referred as impugned order) passed by Sh. Sunil Beniwal, Ld. ACMM, Shahdara whereby he took cognizance of Kalandra u/s.182/211 IPC. It is important to note that Sh. Jatinder Kumar Madan filed an application for impleading him as a respondent in the present revision petition, however, he was allowed to assist the State during the arguments on this petition and was also permitted to make oral submissions at the time of final arguments by Ld. Predecessor vide order dated 15.03.2016.
C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 1/92. Arguments have been advanced by Sh. D. Goverdhan and Sh. Vivek Jaiswal, Ld. counsel for revisionist/petitioner and also by Sh. Sanjay Kumar, Ld. Addl. PP for State assisted by Sh. L.K. Jha, ld. counsel for Sh. Jatinder Kumar Madan (herein after shall be called as applicant). I have also perused the trial court record.
3. In brief, the facts as emerging from the record are as under:-
I) Sh. Surinder Kumar Madan i.e. revisionist and Sh.
Jitender Kumar Madan (applicant) are step brothers who have worked together since long and admittedly civil and criminal proceedings are pending between them. II) That on 18.09.2008 revisionist herein had lodged a complaint for lost of the documents of properties vide NCR No.2455/08, wherein he had stated that his polybag containing some documents lost at Patparganj area and later on he got published a notice about the missing of documents in the "Statesman" newspaper on 20.10.2008.
III) In the year 2010, applicant filed a suit for partition as CS (OS) No.182/2010 in the Hon'ble High Court of Delhi whereby he asserted that original documents including conveyance deed of H.No. C-434, Nirman Vihar, Delhi, the allotment letter and possession slip in respect of plot no.1428, first floor in Pocket B & C, Sector-A, Vasant Kunj, Delhi are in his possession.
IV) Although revisionist came to know through above mentioned suit for partition in 2010 that documents of certain properties are in possession of his step brother i.e. applicant C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 2/9` but he again got published a notice about the missing of documents in newspaper in the year 2012 and thereafter got re-issued the property documents from the concerned authority and sold it on 25.05.2012.
V) On 14.02.2014 revisionist made a complaint to SHO PS-Anand Vihar that he did not believe the assertions made by applicant in the suit for partition and alleged that applicant had intentionally removed the said plastic bag on 18.09.2008 without his consent and knowledge and therefore requested that a case be registered against the applicant Jitender Kumar Madan for theft and misappropriation and for falsely claiming ownership of the properties on the basis of stolen documents.
VI) Applicant filed a complaint under Section 200 Cr.P.C for registration of FIR against the revisionist requesting to take action against the revisionist for filing false complaint which caused harassment, mental agony and defamation to complainant and wasted the time of a public officer. It is further submitted by the applicant that the copy of the report dated 25.03.2014 submitted by IO regarding complaint dated 15.02.2014 clearly reveals that after the inquiry conducted so far revisionist was aware about the facts that the documents of property are in possession of the applicant and revisionist has filed the complaint dated 15.02.2014 as a counter to FIR no.496 dated 17.12.2013 as registered against the revisionist in PS-Preet Vihar under Section 420/467/468/471/120-B IPC VII) On filing of above mentioned complaint case No.711/13 by the applicant, Ld. ACMM vide order dated 10.11.2014 called the status report from concerned SHO and C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 3/9 on 09.01.2015, IO SI Anand Pratap submitted a report before the Ld. ACMM that an inquiry was made with respect to the complaint and after inquiry, the police officials came to the conclusion that the revisionist had filed false complaint to counter the case filed against him by applicant and now action as per law will be taken. Thereupon a kalandra u/s.182/211 IPC along with a complaint u/s.195 Cr.P.C dated 17.03.2015 by Inspector Arjun Singh was filed before the Ld. ACMM.
VIII) Ld. ACMM vide order dated 06.04.2015 after hearing the IO SI Anand Pratap and counsel for applicant took the cognizance of kalandra u/s.182/211 IPC, which is under challenge in this petition.
4. Ld. counsel for the revisionist has assailed the order of Ld. Trial Court on the ground that Section 182/211 IPC are mutually exclusive and both cannot be charged together; there is no material, no witness, no evidence on the record to show that the petitioner can be even summoned or charge and can be convicted for the said offence; impugned order does not disclose any reason as to what prevailed in the mind of Hon'ble Court to issue summons as reasons are mandatory; impugned order suffers from the manifest illegality as the purported complaint i.e. DD no.26A dated 27.12.2014 by the police has been made with the collusion with the private persons; petitioner was never called by the police; no cognizance could have been taken on this complaint as the police on 17.03.2014 had closed the case; private person who is the brother of the petitioner in order to grab the properties using the criminal court as tool; there C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 4/9` is no witnesses or any material for summoning and no other case or kalandra has been filed u/s.182/211 IPC in the said police station.
5. Ld. counsel for the revisionist argued that summoning order dated 06.04.2015 is not a speaking order and Ld. ACMM has not mentioned the grounds or reasons for summoning the revisionist. Ld. counsel for revisionist argued that no cognizance of offence u/s.182/211 IPC could have been taken in view of bar as provided under section 195 Cr.P.C. It was further argued that two police reports were identical, therefore, kalandra was issued by police on extraneous grounds.
6. On the other hand, ld. counsel for applicant argued that there was no bar of Section 195(b) Cr.P.C. as argued by ld. counsel for revisionist as knowingly false complaint was filed by revisionist before the police and not in any judicial proceedings. Ld. counsel for the applicant argued that there was no need to change or convert the contents of the report as only action was to be taken for giving false information by the revisionist to the police to cause annoyance to the applicant and thus no further inquiry was required.
7. Ld. counsel for revisionist has relied upon the judgments in cases of I) Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate & Others, (1998) 5 Supreme Court Case 749; (2) M. Narayandas Vs. State of Karnataka & Others (2003) 11 Supreme Court Cases 251; Jokhi Mian Vs. Mahmud Dafadar & Others, 30 Crl.L.J.1929; State of Punjab Vs. Raj Singh and Another, (1998) 2 Supreme Court Cases 391; Kishan Lal Vs. Union of India and another (1998) 2 Supreme Court Cases 392; In re Vasudeo C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 5/9 Ramchandra Joshi, Bombay Law Reporter Vol. XXIV; Harish Chandra Pathak Vs. Anil Vats & Anr. 2008 Crl.L.J. 2965; Din Mohammad Vs. Emperor, AIR 1927 Allahabad 107; Jia Lal & Ors. Vs. Emperor, AIR 1927 Allahabad 108; Murugappa Chettyar Vs. KPRM Ram Chettyar, AIR 1935 Rangoon 485; U Tha Zan Vs. U Pyant, AIR 1935 Rangon 487; Nandi Manjhi Vs. Dwarka Nath Dubey, AIR 1927 Patna 402; Tenhu Dhanuk Vs. Emperor AIR 1927 Patna 402; Lakho Tewari Vs. Lalit Koeri & Ors. AIR 1927 Patna 403; Santokh Singh Vs. Izhar Hussain and another, 1973 Supreme Court Cases (Crl) 828; Thakorlal D. Vadgama Vs. State of Gujarat, 1973 Supreme Court Cases (Crl) 835; V. Dhanalakshmi and another Vs. C.L. Dilshitula and another, 1983 Crl.L.J. 560; Bachu Singh Vs.Tribeni Sah, AIR 1939 Patna 178; Kamlapati Trivedi Vs. State of West Bengal, (1980) 2 Supreme Court Cases 91; Din Mohammad Vs. Emperor, 27 Cr.L.J 1926; Mukti Narayan Gir Vs. Emperor AIR 1940 Patna 97; Hassan Mirza Vs. Emperor, AIR 1914 Calcutta 349; Shah Mohammad Vs. Emperor, AIR 1941 Lahore 210; Akshoy Kumar Chakraburty Vs. Emperor, 28 Crl.L.J.1925; M.L. Sethi Vs. R.P. Kapur & Anr. (1967) 1 SCR.
8. On the other hand, Ld. counsel for applicant has relied upon Bhushan Kumar and Another Vs. State (NCT of Delhi) and Another (2012) 5 Supreme Court Cases 424.
9. Section 195(1) Cr.P.C. says that no Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (Both inclusive) of the Indian Penal Code (45 of 1860) or
(ii) of any abetment of, attempt to commit, such offence, or C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 6/9`
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199,200,205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy in writing to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (I) or sub-clause (ii), (except on the complaint in writing of that Court or by officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate).
10. The main thrust of arguments of Ld. counsel for revisionist was that there is a bar of Section 195(b) Cr.P.C for taking cognizance by the court in respect of offence punishable under Section 182/211 IPC. My attention was drawn in respect of number of authorities as mentioned above. It is not in dispute that the complaint dated 14.02.2014 against the applicant was made by C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 7/9 revisionist to the SHO, PS-Anand Vihar for taking action against the applicant for theft and misappropriation and for falsely claiming ownership of property on the basis of stolen documents. The said complaint was not filed by revisionist during pending judicial proceedings before any Court of Law.
11. Therefore, when knowingly alleged false complaint was made to SHO, PS-Anand Vihar, there was no question for filing any complaint by court for offence punishable u/s.182/211 IPC as provided u/s.195(b) of Cr.P.C as the offence alleged to have been committed was not in respect of proceedings pending before any Court of Law. Therefore, I do not find any force in the contention of ld. counsel for the revisionist that cognizance of offence punishable u/s.182/211 IPC was bad in view of bar u/s.195(b) Cr.P.C, when the case falls under section195(1) Cr.P.C. for which a complaint u/s.195 Cr.P.C is filed by SHO, PS-Anand Vihar. The authorities as relied upon by the counsel for the revisionist are in respect of bar as provided u/s.195(b) Cr.P.C and therefore are not helpful in the facts and circumstances of the present case.
12. As far as the contention of Ld. counsel for revisionist that Ld. ACMM had not passed speaking order, suffice it to say that Ld. ACMM after hearing the IO took cognizance and there was no need for mentioning the detailed reasons for taking the cognizance which were itself mentioned and perused by the Court in the kalandra u/s.182/211 IPC as well as complaint of SHO u/s.195 Cr.P.C.
C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 8/9`
13. Now coming to next contention of Ld. counsel for revisionist that police closed the case with approval of SHO & ACP on 17.03.2014, in this regard the findings of inquiry by concerned SI Anand Pratap was that complaint has been made by revisionist against his brother Jitendra Madan to counter him as a case has already been registered against the revisionist in police station Preet Vihar but he did not propose any criminal action, as soon as applicant filed a complaint before the court for direction to the police for taking action it was reported vide report dated 09.01.2015 that now action as per law will be taken. The report of police dated 17.03.2014 was not filed before the court of Competent jurisdiction. Therefore, subsequent report of police recommending legal action before the court perse does not vitiate the proceedings in respect of alleged offence. I do not find any illegality or material irregularity in the impugned order whereby revisionist was summoned for offence punishable under section 182/211 IPC. Accordingly revision petition stands dismissed. Both the parties are directed to appear before the Ld. Trial Court on 16.11.2016.
14. Copy of the order be sent to Ld. Trial Court alongwith record. Revision file be consigned to record room.
Announced in the open court (Sanjeev Kumar Malhotra)
on 22.10.2016 ASJ/FTC/E-COURT
Shahdara/KKD/Delhi.
C.R.No. 17/15 Surinder Kumar Madan Vs. State Page 9/9