Delhi District Court
State vs Ashok Bahl S/O Sh Vikramjit Bahl on 15 March, 2011
1
IN THE COURT OF SHRI AJAY KUMAR JAIN: ASJ03: SE: SAKET COURT
COMPLEX: NEW DELHI
State
Through Addl. Public Prosecutor
....Revisionist
Versus
Ashok Bahl S/o Sh Vikramjit Bahl
R/o 3390, Western Road Apptt., 209,
North York on M9M2X3 City,
Toronto, Canada.
....Respondent
CR No. 65/11
ORDER:
1. By way of present revision, state/ revisionist has challenged the impugned order dated 24.12.2010 of Ld. Metropolitan Magistrate passing directions U/s. 156 (3) Cr.P.C. for registration of FIR against accused persons.
2. Ld. counsel for the respondent submits that the present revision petition is not maintainable as the impugned order passed by the trial court u/s 156 (3) Cr.P.C is an interlocutory order and revision against this order is barred u/s 397 (2) Cr.P.C. In this regard Ld. Counsel for the revisionist relied upon case titled as 'Nathan Vs. Vaithinathan 1975 Crl. Law journal 994' in which Madras High Court has observed that the order of Magistrate forwarding a complaint for an offence u/s 307 IPC to police for investigation and report u/s 156 (3) is interlocutory order to which bar of section 397 (2) Cr.P.C. will apply. Ld. Counsel for the respondent further relied upon , 'Suryakant Dubey & Ors. Vs. State of UP, 2008 Crl. Law journal 2556' wherein Allahabad High Court had observed that revision at 2 the instance of prospective accused against order allowing application u/s 156(3) Cr.P.C. is not legally maintainable. Ld. Counsel for the respondent further submits that Allahabad High Court in case titled as 'Professor Ram Naresh Choudhary and Another Vs. State of UP and Ors, 2008 Criminal Law Journal 1515, observed that proposed accused has no right to stop registration of FIR and revision filed by him against order allowing the application u/s 156 (3) Cr.P.C is not legally maintainable and order passed u/s 156 (3) Cr.P.C at precognizance stage though a judicial order is administrative in nature and such order cannot be challenged by the proposed accused by means of revision or moving an application u/s 482 Cr.P.C since no accused can stop the registration of FIR against him. Further it is incomprehensible that when accused cannot challenge the registration of FIR by the police directly then how can he challenge the order made by the Magistrate for registration of the same with the same consequences. Ld. counsel for the respondent further relied upon , 'Vanshu Vs. State of UP, 2007 Crl. Law journal, 4677', and submitted that Allahabad High Court observed that the order of Magistrate directing registration of FIR and investigation of case is an interlocutory order and therefore, not amenable to revisional jurisdiction of High court, further once accused cannot be heard on the question of registration of FIR of cognizable offence against him, he cannot be heard on that question in the revisionable forum also.
3. Ld. Addl. PP with the assistance of the counsels have submitted that the revision against the order u/s 156 (3) Cr.P.C is maintainable before this court. Ld. Addl. PP submits that the order u/s 156(3) Cr.P.C from the perspective of the accused persons cannot be treated as interlocutory order. Ld. Addl. PP relied upon, Parmeshwari Devi Vs. The State and Another, (1977) 1 Supreme court cases 169', for the proposition whether the order is final or interlocutory must be 3 judged from the point of view of the person seeking revision. If the order is directed against a person who is not party to inquiry or trial then he had no opportunity to challenge it after final order, therefore, for such a person that order cannot be termed as interlocutory and revision is maintainable. Ld. Addl. PP submitted in the present case the impugned order u/s 156 (3) Cr.P.C was passed in absence of the proposed accused, therefore the revision against the impugned order is maintainable. Ld. Addl. PP submits that apex court in "Amar Nath and Others Vs. State of Haryana, AIR 1997 Supreme Court 2185', had observed that the orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory order, therefore, the order summoning the accused is not an interlocutory one and revision against that order is maintainable. Ld. Addl. PP further submitted that the Delhi High Court in "Gautam R. Patel & Ors. Vs. Government of NCT of Delhi & Ors., have observed that appropriate remedy for challenging the orders passed u/s 156 (3) is to file the revision petition u/s 397 Cr.P.C. Ld. Addl. PP has further relied upon , "Mithlesh Vs. State of NCT of Delhi and Ors., 2009 INDLAW DEL 2398', and Dr. V.P. Sharma Vs. The State, Crl. Revision petition no. 573/2009 of Delhi High Court for the purposes that the revision petitions against the orders U/s 156 (3) Cr.P.C are entertained by the Delhi High Court. Ld. Addl. PP therefore submits that the revision petition against the order u/s 156(3) Cr.P.C. is maintainable.
4. Heard the arguments of both the parties on the maintainability of the present petition. The powers of revision to this court is envisaged u/s 397 Cr.P.C. Section 397 Cr.P.C is reproduced as below:
"397: Calling for records to exercise powers of revision:
(1) The High Court or any Sessions Judge may call for and examine the record 4 of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as 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. (2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.
(3)..... XXX"
5. The bare reading of this section shows that the High court or any Session Judge may call and examine the records of any proceedings before any inferior criminal court for the purpose of satisfying itself or himself as to the correctness legality or proprietary of any finding. Though as per sub section (2) such power shall not be exercised in relation to any interlocutory order passed by the inferior criminal court.
6. Now the first question arises for consideration whether the 5 impugned order is interlocutory or not. The impugned order u/s 156 (3) Cr.P.C passed by the Ld. Metropolitan Magistrate in judicial proceedings, therefore, the order genetically judicial in nature and in consequence to the said order on FIR regarding a cognizable offence will be registered against the accused persons. Therefore, the order as far as that stage is concerned is final. And if an order is final for the purpose of particular stage then in terms of law as enunciated by the Apex court in, 'Parmeshwari Devi and Amar Nath (Supra)' cannot be said to be interlocutory order.
7. Another interesting question raised by the Ld. Counsel for the respondent that when the accused had no right to present himself before passing of the order by Ld. Metropolitan Magistrate then how he can challenge the same by filing the revision before this court.
8. There is no dispute to the proposition that the orders u/s 156(3) Cr.P.C are to be passed at pre cognizance stage and the accused persons had no right to present themselves before the court at that stage. The rational behind this proposition is that at that stage the court do not weigh the allegations or decide the merits of the allegations and only has to see whether prima facie, a cognizable offence is made out or not.
9. Only by passing an order for registration of FIR against the accused persons the Ld. Metropolitan Magistrate had exercised his discretion on the basis of material placed on record that a cognizable offence is made out against the accused persons. Then, this court in exercise of power of revision has jurisdiction to see whether on the basis of material on record, the trial court had rightly concluded that a cognizable offence is made out against the accused persons or not. By mere filing of the present revision petition, the accused are not driving any power to challenge the said order on the basis merits of 6 the allegations or to look at their defence. The filing of the revision before this court is just applying for the jurisdiction of this court to look whether from the material on record any cognizable offence is made out or not. Filing of the revision petition by the accused persons is only enabling the court to see the correctness of the said order, therefore, the same in strict sense do not mean the participation of the accused in the proceedings as they have no right to challenge the merits of allegations or to show their defence.
10. Though the judgments of Allahabad High Court cited by the counsel for the respondent held that the revision against the order u/s 156 (3) Cr.P.C do not lie but Delhi High Court in, 'Gautam R. Patel & Ors. (Supra) have clearly held that the appropriate remedy for challenging the order passed u/s 156 (3) Cr.P.C is to file the revision petition. Therefore, in view of above discussion and as the direction of Hon'ble Delhi High Court is binding on this court, the present petition is held maintainable and this court has power to entertain the present revision petition filed against the impugned order u/s 156(3) Cr.P.C.
11. On merits: Ld. Addl. PP while arguing has submitted that he is challenging only one part of the impugned order that is the direction of registration of FIR against the accused SHO Joginder Singh and HC Bharat Lal u/s 218 /34 IPC. Ld. Addl. PP submits that the impugned order was passed on the back of SHO Joginder Singh and HC Bharat Lal as they are not parties to the proceedings. Order passed by the Ld. Trial court is contrary to the record. The basic facts of the case is that in March 2008 a DD no.15 A was received at police station regarding a quarrel at about 3.20 pm and the same DD was handed over to SI Soban Singh and the injured persons were taken to hospital for medical examination and when returned back the injured party stated that they will settle the matter amicably on 7 10.02.2008 therefore, because of their written statement the said DD entry was kept pending and on 10.02.2008, the respondent had not come to the police station and on the basis of the complaint of one Satish Nair FIR no. 74/08 was registered on 11.02.2008 against the respondent and other persons. On 10.02.2008 respondents due to their own fault have absconded from India to Canada on 10.02.2008. Ld. Addl. PP further submitted that any misconduct by police officials while performing duties is to be dealt in accordance with Delhi Police Act. He further submitted that the SHO had not framed any incorrect record or writing to save persons from punishment or property from forfeiture therefore, no offence u/s 218/34 IPC is made out and request for setting aside one part of the impugned order i.e., direction for registration of FIR u/s 156 (3) Cr.P.C against SHO Joginder Singh and HC Bharat Lal.
12. Ld. Counsel for the respondent vehemently opposed the same and stated that the respondent/ complainant has to flee the country because of the threats given by the SHO Joginder Singh. And therefore, immediately on reaching USA on 14.02.2008 they have sent a complaint to police commissioner for taking action against Joginder Singh. It is very ironical that the said complaint was inquired by the SHO Joginder Singh himself. And this in itself smacks malafide on the part of SHO Joginder Singh. Further in the said inquiry he has conveniently concealed the injuries caused to the complainants in the said incident and somehow by filing RTI the complainant got the copies of MLC of the complainant Rakesh Bahl and Ashok Bahl. Both the MLC's shows that they were taken for the said medical examination by HC Bharat Lal and HC Ashok Kumar. This fact is very much in the knowledge of SHO Joginder Singh who was also investigating officer in FIR no. 74/08 and these constables were made witnesses in the said case. Ld. Counsel for the respondent submits that the Ld. Trial court had committed no error 8 by directing the order of registration of the FIR against SHO Joginder Singh and HC Bharat Lal u/s 218/34 IPC.
13. Brief facts as per the complaint filed before the Ld. Metropolitan Magistrate are that the complainant and his brother Rakesh Bahl are residents of Canada and daughters of accused no.1 Satish were married in the family of the complainant and the divorce had taken place with their husbands in the year December 2007, June 2008 and because of this fact the accused no. 1 was nurturing drudge against them. And further accused no. 1 being a property dealer had an evil eye on the property of the complainant located in Delhi. The complainant and his brother had to visit India in the month of February 2008 and in view of the past threats of accused no. 1 they wrote a letter to DCP, Hauz Khas expressing their apprehensions and copy of the same is sent to SHO PS Kalkaji and on coming to India on 08.02.08 they made a written request to accused no. 5 SHO Joginder expressing their apprehension and for police protection but of no avail. And further during the day when the complainant alongwith his brother reached at A471, Kalkaji, accused no.1 alongwith accused no. 2 to 4 encircled them and attacked them with slim rod on the head and hit them with fists on face, abdomen. Thereafter, the public persons gathered and accused no. 1 threatened to see them next time and police of Kalkaji took them to the PS thereafter, AIIMS and their MLC was prepared in presence of HC Bharat Lal.
14. It is further alleged in the said complaint that accused no. 5 instead of taking action against accused no. 1 and other accomplices threatened the complainant and his brother to compromise the matter otherwise, they will be put behind the bars for assaulting accused no.1 and his men. Thus, being frustrated and apprehensive of their false implication, the complainant with his brother left for 9 Canada on 10.02.2008. Lateron, they came to know that FIR 74/08 was registered against the complainant and his brothers and other two relatives i.e., Sh Pramjit Chopra and Sh Ajay Kumar though they were not present at the spot, by concealing the material facts of receiving the injuries by the complainant on 8.2.08 which are described in detail in the MLC's conducted at AIIMS in presence of HC Bharat Lal. Therefore, immediately on reaching Canada he sent a complaint dated 14.02.08 to Commissioner of Police complaining against the accused persons.
15. The complainant further alleged that he alongwith his brother and other relatives were falsely implicated in FIR no. 74/08 by police of PS Kalkaji and they had also opened the LOC proceedings against the complainant. In order to come to India to surrender in court and for cancellation of LOC proceedings, the complainant had obtained the copies of MLC's conducted at AIIMS of himself and his brother on 08.02.2008 and further action taken report on his complaint dt. 14.02.2008 through RTI and by which he came to know that inquiry as per action taken report was conducted by the SHO accused no. 5 who himself was the culprit and holded his complaint to be false and baseless. Therefore, finding no other alternative filed the present complaint.
16. Ld. Metropolitan Magistrate on the perusal of MLC's of complainant and his brother, which were conducted in the presence of HC Bharat Lal and HC Ashok Kumar and further on consideration of action taken report arrived at conclusion that in case filed on investigation of FIR no. 74/08 u/s 323/341/34 IPC PS Kalkaji reflects no MLC of the complainant and his brother Rakesh Bahl on record though HC Bharat Lal in whose presence the medical examination was conducted has been cited as a witness. Joginder Kumar SHO, Investigating officer has filed the chargesheet by concealing these 10 material facts, therefore, ordered for direction to register FIR against accused no. 5 Joginder kumar SHO and HC Bharat Lal u/s 218/34 IPC.
17. So far as the allegations against the accused Joginder Singh SHO and HC Bharat Lal appeared from record is the factum of of concealing of MLC's of the complainant and his brother in chargesheet of FIR no. 74/08 and further concealing of the same in the action taken report on inquiry of complaint dated 14.02.2008 filed by the complainant. Bare perusal of the action taken report as inquired by SHO Joginder Singh shows no mentioning of the medical examinations of the complainant and his brother though both were taken to AIIMS by HC Bharat Lal and HC Ashok Kumar.
18. Being a public servant SHO Joginder Singh is obliged to investigate the cases or the inquiries marked to him fairly and in unbiased manner. The SHO Joginder Singh being the investigating officer in FIR No. 74/08 had deliberately concealed the material fact of receiving of injuries by the complainant and his brother in the said incident. Further, he omitted to mention the said medical examination in his inquiry over the complaint of complainant dated 14.02.2008 and hurriedly found it false and baseless. From these omissions it can clearly be inferred that the SHO Joginder Singh wants to save the other accused persons from punishment, therefore, a prima facie case is disclosed against the accused Joginder Singh u/s 218 IPC.
19. As far as HC Bharat Lal is concerned, his role is limited to taking the complainant and his brother for medical examination and further being cited as a prosecution witness in case FIR no. 74/08. He has no control over the SHO Joginder Singh neither over the investigation or the inquiry conducted by the SHO Joginder Singh.
11Therefore, he cannot be made liable for the acts and omissions of SHO Joginder Singh. Hence, no offence even prima facie u/s 218 IPC or otherwise is made out against HC Bharat Lal.
20. During arguments Ld. Addl. PP has challenged only one part of the impugned order i.e, order of registration of FIR u/s 218 IPC against SHO Joginder Singh and HC Bharat Lal and the other part of registration of FIR u/s 323/341/34 IPC against other accused persons were not under challenge. Therefore, it is not necessary to comment on said part of the order.
21. In view of the above discussion, as no offence is disclosed against HC Bharat Lal, the impugned order is modified and an FIR U/s. 218 IPC is to be registered only against accused SHO Joginder Singh for investigation. It is clarified that investigation to be conducted being uninfluenced of any observation of this court. TCR alongwith copy of this order be sent back to trial court. The revision petition disposed off accordingly. File be consigned to Record Room.
Announced in Open Court (Ajay Kumar Jain) on 15.03.2011 ASJ03: SE: NEW DELHI