Delhi District Court
Supreme Court In The Case Of Priyanka ... vs . State Of on 6 July, 2015
IN THE COURT OF MS. SUGANDHA AGGARWAL:
CHIEF METROPOLITAN MAGISTRATE (WEST) : DELHI.
Shakti Vahini ... Complainant
Versus
Kritish Verma & Ors. ... Respondents
CC No. 10/1 PS Crime Branch (West) ORDER [06.07.2015]
1. This order shall decide the application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') filed by the complainant.
2. The factual matrix relevant for disposal of the present application, as alleged by the complainant in the complaint, is that on 05.10.2012 at the instance of the complainant, a girl Mainu was recovered from a house at Punjabi Bagh where she was allegedly employed as domestic servant. FIR No.327/2012 under Sections 376, 374, 406 of of Indian Penal Code (hereinafter referred to as 'IPC'), Sections 23, 24 and 26 of CC No. 10/1 Page No.1 of 21 Juvenile Justice (Protection) Act and Section 14 of Child Labour Act was registered at PS Punjabi Bagh against her employer Rajan Sahni. It is further contended that her age certificate was not available and her Bone Ossification Test was conducted on 13.10.2012. According to the report, she was 18 years old on 13.10.2012. Thus, concluding that she was minor at the time of offence.
3. It is further contended that subsequently on 23.10.2012, a letter was sent to DCP by one S. Khan, Advocate alongwith a School Leaving Certificate of the rescued girl Mainu. In the said certificate, her date of birth was mentioned as 03.06.1992. The said certificate was forwarded to SHO, PS Punjabi Bagh who assigned the same to Respondent No.2 SI Manohar Lal for verification. As per the averments of the complainant, on 01.11.2012, Respondent No.2 SI Manohar Lal went to Kokrajhar in Assam for verification of the said School Leaving Certificate. The respondent No.2 in collusion with the accused changed her CC No. 10/1 Page No.2 of 21 address and name of her mother on the certificate which was correctly recorded by the said minor girl in her first statement to CWC on 05.11.2012. It is further contended that respondent No.2 SI Manohar Lal did not check the records of the school as per the procedure laid down to find out the genuineness of School Leaving Certificate. He also provided the mobile phone number and address of Rajan Sahni who was accused in FIR No. 327/2012 PS Punjabi Bagh to the parents of the minor girl Mainu. It is further contended that respondent No.2 SI Manohar Lal also gave a notice under Section 160 Cr.P.C. to the mother of the minor girl to appear before PS Punjabi Bagh on 17.11.2012. The said notice was against the provisions of Cr.P.C. Complainant has also contended that respondent No.2 has travelled by air with respondent no.1 who is brother in law of Rajan Sahni. But he has showed his arrival in PS Punjabi Bagh on 03.11.2012. He neither claimed travel allowances from the Department. The investigation conducted by Vigilance CC No. 10/1 Page No.3 of 21 Department reflected that both the tickets of respondent No.1 and 2 were booked by same agent. The said forged certificate was used by the respondent No.2 in investigation of case FIR No. 327/2012 and was also placed before the Court for trial. On 05.11.2012, CWC has fixed the age of the minor girl and has also ordered for recovery of the unpaid wages and compensation of Rs.1,94,083/ for loss of childhood against respondent No.4 Mangla Sahni. The said Mangla Sahni preferred an appeal against the said order. In the said appeal, Mangla Sahni placed reliance on the School Leaving Certificate which was verified by respondent No.2 SI Manohar Lal. The Court of Ld. ASJ relying on the said certificate declared girl Mainu as Major and stated that she is not entitled for wages and any compensation for loss of childhood. Respondent No.2 instead of placing the age determination report of CWC, placed the said school leaving certificate before the Ld. ASJ which was later on found to be forged and fabricated. The said certificate also has been CC No. 10/1 Page No.4 of 21 considered by the Ld. ASJ while considering the bail application of accused Rajan Sahni.
4. It is further contended that the said girl Mainu turned hostile during trial before the Court of Ld. ASJ in FIR No. 327/2009. Because of the said reasons, the Court of Ld. ASJ while acquitting the accused ordered investigation against the complainant. The investigation was completed and a Final Report was filed by the Crime Branch.
5. Complainant has further contended that it has filed a Writ Petition (Crl.) No. 1833/2014 before the Hon'ble High Court of Delhi relating to the matter of forgery of School Leaving Certificate, illegal gratification and criminal conspiracy by respondent No.2. It is stated by the complainant that in the said writ petition, vigilance report was filed on 10.03.2014 and an FIR was registered against the School Teacher at Assam who had issued the said School Leaving Certificate and thereafter the said Writ Petition was disposed off as withdrawn. CC No. 10/1 Page No.5 of 21
6. In the backdrop of above discussed facts, a written complaint was made to Joint Commissioner of Police (Crime). However, as no action was taken on the said complaint, the complainant has filed the present application under Section 156 (3) Cr.PC seeking registration of FIR against the respondents.
7. For disposing off the application under Section 156 (3) Cr.PC, it is pertinent to refer to the recent decision of the Hon'ble Supreme Court in the case of Priyanka Srivastava Vs. State of U.P. & Others Crl. Appeal No.781/2012 decided on 19.03.2015 wherein the Hon'ble Supreme Court held that the applications under Section 156 (3) Cr.PC should not be mechanically allowed and Magistrate must exercise greater caution, and may also verify the allegation before allowing such an application. The observations are extracted below : "Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that CC No. 10/1 Page No.6 of 21 sending the matter would be conducive to justice and then he may pass the requisite order.
xxx xxx xxx That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and can also verify the veracity of the allegations.
xxx xxx xxx A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges, who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156 (3) Cr.P.C."
8. In Priyanka Srivastava's case (supra), the Hon'ble Supreme Court was dealing with a case in which an FIR was got registered by a loan defaulter against bank officials, who in discharge of their official duties, got the mortgaged property auctioned. Although the complaint did disclose cognizable offences. The Hon'ble Supreme Court took exception to the fact that the FIR was patently a vindictive measure and an arm twisting tactic in order to pressurize the bank to settle the loan account. Quashing the order, the Hon'ble Supreme Court CC No. 10/1 Page No.7 of 21 lamented, that :
"The present appeal projects and frescoes a scenario which is not only disturbing but also has the potentiality to create a stir compelling one to ponder in perturbed state how some unscrupulous, unprincipled and deviant litigants can ingeniously and innovatively design in a nonchalant manner to knock at the doors of the Court, as if, it is a laboratory where multifarious experiments can take place and such skillful persons can adroitly abuse the process of Court at their own will and desire by painting a canvas of agony by assiduous assertions made in the application though the real intention is to harass the statutory authorities, without any remote remorse, with the inventive design primarily to create a mental pressure on the said officials as individuals, for they would not like to be dragged to a Court of law to face in criminal cases, and further pressurize in such a fashion so that financial institution which they represent would ultimately be constrained to accept the request for "onetime settlement" with the fond hope that the obstinate defaulters who had borrowed money from it would withdraw the cases instituted against them."
9. In view of the above observations of the Hon'ble Supreme Court, it is pertinent to observe that in the present case also, the complainant through its President Mr. Ravi Kant who has filed the present complaint case is already in the dock. As per the CC No. 10/1 Page No.8 of 21 facts disclosed by the complainant himself there are scathing observations made by Ms.Nivedita Anil Sharma, Ld. ASJ while acquitting the accused Rajan Sahni in case FIR No. 327/2012 in which a finding has been given that the NGO Shakti Vahini and its President Ravi Kant have manipulated the proceedings and abetted the fabrication of evidence. Orders were also passed by the Ld. ASJ for registration of FIR against Mr. Ravi Kant. The matter was investigated and chargesheet has already been filed against Mr. Ravi Kant. Now he is trying to question the correctness of the documents which were collected during investigation and which led to acquittal of accused Rajan Sahni in case FIR No. 327/2009.
10.Further time and again, the higher Courts have directed the Magistrates not to get the FIR registered in a mechanical manner. It has been laid down in number of judgments by the higher Courts that mere disclosure of cognizable offence shall not be sufficient for a Magistrate to order for registration of FIR. CC No. 10/1 Page No.9 of 21 The facts which shall be considered by the Magistrate while ordering registration of FIR under Section 156 (3) Cr.PC have been discussed by the higher Courts in numerous judgments.
In Mohd. Salim Vs. State Crl. M.C. No.3601/2009 decided on 10.03.2010, the Hon'ble High Court held :
"The use of the expression "may" in Subsection (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can CC No. 10/1 Page No.10 of 21 straightaway proceed further in the matter, instead of passing the buck to the police under Section 156 (3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the police".
In Subhkaran Luharuka and Shree Ram Mills Ltd. Vs. State (Govt. of NCT of Delhi) and Utility Premises Pvt. Ltd. 170 (2010) DLT 516 Crl. M.C. No.612223/2005 and Crl. M.C. No. 613334/2005, the Hon'ble High Court held :
"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 :
(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 CC No. 10/1 Page No.11 of 21 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 from 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.
xxx xxx xxx"
11. Now the facts of the present case are to be considering keeping in view the guidelines laid down by the higher courts as discussed above. After considering the same, it is to be seen whether this is a fit case for registration of FIR under Section 156 (3) Cr. P.C. or not. In the present case, though there are four respondents arrayed in the memo of parties but the thrust of allegations of the complainant are against respondent No.2. The CC No. 10/1 Page No.12 of 21 allegations of the complainant is with respect to two different acts. Firstly, the complainant has alleged forgery of School Leaving Certificate of minor girl Mainu which has been abetted by respondent No.2 in connivance with other respondents. Secondly, the complainant has alleged the offence of corruption and bribery against respondent No.2. It is for the abovestated offences that complainant has sought registration of FIR in the present case.
12.As per the averments made in the complaint, the School Leaving Certificate which was sent by post and received by DCP on 23.10.2012 was found to be forged and fabricated. At the very threshold, it is relevant to note that as per the vigilance report submitted by Crime Branch which is filed by the complainant himself as AnnexureG, on the basis of alleged forgery, which is alleged to have been carried out by respondents No.1, 3 & 4 and abetted by respondent No.2, an FIR has already been registered and investigation is underway. The CC No. 10/1 Page No.13 of 21 said fact has been admitted by the complainant also. Now as to whether the said documents were forged, if so by whom and who has abetted the said act would be the obvious subject matter of investigation in the said FIR. Second FIR for the same allegation is neither proper nor legally sustainable as held in the case of Amit Bhai Anil Chandra Shah Vs. CBI W.P. (Crl.) No. 149/2012 dated 08.04.2013, wherein it was observed as follows: "This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impressible but it violates Article 21 of the Constitution."
13.Here as per the contentions raised by the counsel for complainant, a separate FIR can be registered in Delhi for abetment of forgery of the documents. In this regard, counsel for complainant has referred to the judgment of Hon'ble Supreme Court passed in the case of Surender Kaushik & Ors. Vs. State of Uttar Pradesh & Ors. 2013 Crl. L.J. 1570 wherein it has been held that there is no prohibition of law for filing a counter FIR. In the said case, successive FIRs were lodged by the members of CC No. 10/1 Page No.14 of 21 the Society making allegations of forgery and fabricating signatures of the members of society. It is in this regard that the Hon'ble Supreme Court has held that all the FIRs have different spectrum. However, the facts of the present case are different from the facts in the said case. Firstly, in the present case, it is not that the complainant is seeking registration of a counter FIR and it is not that the respondents herein have separately forged any document. As per the contentions of the complainant itself, the respondent No.1, 3 and 4 have conspired with each other and the Principal at Assam have fabricated the School Leaving Certificate which has been abeted by respondent No.2. Hence there is no separate act which can be attributed to each of the respondents and which is independent of each other so as to register a separate FIR. Thereafter, the counsel for complainant has relied upon the judgment of Kari Choudhary Vs. Most.Sita Devi & Ors. 2002 Crl. L.J. 923. In the said case, the first FIR for murder was filed by the mother in law of deceased for which a CC No. 10/1 Page No.15 of 21 chargesheet was filed and same was quashed by the High Court. Subsequently, it was found that mother in law had also conspired in the crime and for which second FIR was sought to be registered. In this background, the Hon'ble Supreme Court has held that when an information has been received leading to new discoveries made by the police during investigation and persons who were real culprits are not named in the earlier FIR then registration of second FIR shall not be barred. Again the facts of the present case are different from the facts of the said case. It is not that the abetment of the forgery by respondent no. 2 was not discovered at the time of registration of first FIR. It is very much in the knowledge of complainant. If the said facts are not investigated in the FIR already registered then the complainant is always at liberty to avail his remedy with the concerned Court dealing with the FIR No. 18/2014 at Assam. Counsel for complainant has also relied upon Anju Chaudhary Vs. State of U.P. & Anr. In the said case, the Hon'ble Supreme CC No. 10/1 Page No.16 of 21 Court has observed as follows: "The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR is liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible."
14. In fact in the said case, the Hon'ble Supreme Court has barred the registration of second FIR with respect to the same incident or with respect to two or more parts of same transaction. In the present case also, fabrication of School Leaving Certificate is one crime which has been committed, as per the allegations of the complainant itself, by respondents No.1, 3 and 4 in connivance with each other and has been abeted by respondent No.2. Hence in view of above discussion, the judgments relied upon by the complainant are not applicable to the facts of the present case. It has been held in Amit Bhai Anil Chandra Shah's case (Supra) that registration of second FIR shall not be CC No. 10/1 Page No.17 of 21 permissible for the same offence. Therefore as the FIR is already registered and is pending investigation in Assam for fabrication of School Leaving Certificate, the same cannot be ordered to be registered separately at Delhi.
15.Furthermore, it is also important to note that as per the averments of the complainant himself made in Para 31 of his complaint a Writ Petition (Crl.) No. 1833/2013 was filed before the Hon'ble High Court of Delhi. The prayer for registration of FIR and police investigation which is made before this Court was earlier canvassed before the Hon'ble High Court of Delhi by the same complainant. The said petition was dismissed as withdrawn when the Hon'ble High Court took note of the fact that an FIR has already been registered. Copy of said order is also placed on record as AnnexureU by the complainant. Liberty to approach this Court for the same relief was neither prayed for, nor granted. Complainant has mentioned the same facts as had been pleaded before Hon'ble High Court and there CC No. 10/1 Page No.18 of 21 is no change in circumstances. Hence in view of the above discussion, there cannot be any order for registration of FIR against the respondents for fabrication of School Leaving Certificate or abetment of the same.
16. Besides this, allegations have been made for bribery and illegal gratification by respondent No.2. A Vigilance report has also been filed in this regard. However, the said allegations pertains to the provisions of Prevention of Corruption Act. This Court is not competent to deal with the offences falling under the Prevention of Corruption Act and therefore is not empowered for ordering registration of FIR. In the case of Anil Kumar Vs. M.K. Aiyappa & Anr. Crl. Appeal No. 15901591/2013, the Hon'ble Supreme Court held as under : "A Special Judge is deemed to be a Magistrate under Section 5 (4) of the PC Act and, therefore, clothed with all the magestrial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking CC No. 10/1 Page No.19 of 21 cognizance under Section 190, may direct an investigation under Section 156 (3) Cr. P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156 (3) Cr. P.C."
17. Even if the facts alleged by the complainant are considered in light of the observations and guidelines laid down by the higher Courts as discussed above is to be considered while deciding the application for registration of FIR under Section 156 (3) Cr.P.C. then also, this is not a fit case for registration of FIR, for the following reasons :
a) Complainant has sought registration of FIR for offences under Sections 193, 196, 198, 218, 166 and 471 read with Section 120B IPC. Out of the said alleged offences, all are noncognizable offences except offences under Section 218 and 471 IPC.
b) Admittedly all the evidence is in possession of the complainant.
c) Identity of all the accused is known to the complainant.
d) Custodial interrogation of accused persons is not required. CC No. 10/1 Page No.20 of 21
e) There is no fact to be unearthed, investigated or to be collected for which police aid is required.
18.In view of the above discussion, I find no merit in the application under Section 156 (3) Cr.P.C. Accordingly, the same is hereby dismissed.
(Sugandha Aggarwal) CMM (West) Delhi Announced in open Court on this 6th day of July, 2015 CC No. 10/1 Page No.21 of 21