Delhi District Court
Sukhbir Singh Choudhary vs Rajinder Parkash Choudhary on 16 December, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 691/2022
CNR No.: DLCT01-016779-2022
Sukhbir Singh Choudhary
S/o Late Ch. Mir Singh
R/o C-10/3, Vasant Vihar
New Delhi-110057
..... Petitioner
VERSUS
1. Rajinder Parkash Choudhary
S/o Late Ch. Mir Singh
R/o H. No. 16, Sector 14
Gurugram-122 007, Haryana
2. Joginder Singh Choudhary
S/o Late Ch. Mir Singh
R/o H. No. 86, Sector 23
Gurugram, Haryana
3. State of NCT of Delhi
..... Respondents
Date of Institution : 08.12.2022
Date of Arguments : 08.12.2022
Date of Judgment : 16.12.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against order dated 05.09.2022 (In short 'the impugned order') in complaint case vide CIS No. 13723/2019 titled as 'Sukhbir Singh Choudhary vs. Rajender Prakash Choudhary & Ors.' whereby Ld. MM-07, Central, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed an application under Section 156(3) Cr.P.C. seeking direction to SHO, PS Kashmere Gate to register FIR against the respondent No. 1 and 2 and investigate the case.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 1 of 15 BRIEF FACTS:
2. The petitioner filed a complaint under Section 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 1 and 2 alleging commission of offences under Section 420/467/ 468/471/406/120B of 'The Indian Penal Code, 1860' (In short 'IPC').
3. According to the petitioner, Mr. Mir Singh had inherited and acquired several properties. Mr. Mir Singh expired intestate on 12.04.1984. He was survived by the petitioner, the respondent No. 1, the respondent No. 2 and Ms. Anita Choudhary. Ms. Anita Choudhary died issueless on 19.07.1990. The respondent No. 1 and 2 filed a civil suit against the petitioner for partition of the property No. C-10/3, Vasant Vihar, New Delhi vide CS (OS) No. 406/2018 before Hon'ble High Court of Delhi. In the said suit, the petitioner pleaded, in written statement, that partial partition cannot be sought qua only one property and contended that all the properties jointly inherited by them should be partitioned.
4. The case of the petitioner is that the respondent No. 1 and 2 stated, in the replication, that property mentioned at Sl. No. 18 of Schedule-A to the written statement i.e. property No. 302, Khasra No. 536/152 and 537/152, Bagh Kare Khan, Kishan Ganj, Delhi-110007 (Hereinafter referred to as 'the said property') was sold by them, without written permission, knowledge or authority of the petitioner.
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5. The case of the petitioner is that after death of their father, the said property was owned by Mr. Bhim Singh, Mr. Daya Nand, Mr. Harvinder Singh, the petitioner and the respondent No. 1 and 2 jointly. The petitioner obtained certified copy of sale deed of the said property. The petitioner was shocked to find that the respondent No. 1 and 2 fraudulently sold the said property vide sale deed dated 28.02.2000. The respondent No. 1 and 2 concealed that Mr. Mir Singh had a third legal heir i.e. the petitioner. The respondent No. 1 and 2 misrepresented in the said sale deed that Mr. Mir Singh had only two sons i.e. the respondent No. 1 and 2. The respondent No. 1 mentioned his wrong name as 'Rajinder Parshad' instead of 'Rajinder Parkash'. The vendors of the said sale deed are family members of the petitioner and they had knowledge that the petitioner was also one of the co-owners of the said property. However, Bhim Singh and Daya Nand have since expired. The vendees of the said property, namely, Shyam Lal and Ramesh Sharma are residents of Village Kishan Ganj and they were also aware that the petitioner was also one of the co- owners of the said property. The said vendees neither obtained consent of the petitioner nor made payment of the sale consideration to the petitioner. The said vendees were also party to criminal conspiracy against the petitioner. The petitioner lodged a complaint with PS Kashmere Gate on 22.08.2019. However, local police did not take any action. Therefore, the petitioner filed the said application under Section 156 (3) Cr.P.C.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 3 of 15 ACTION TAKEN REPORT:
6. On being directed, SI Satish Kumar, PS Kashmere Gate submitted action taken report. Operative part of the said report is, verbatim, as under:
"During the course of enquiry, alleged was asked to join enquiry but due to COVID-19 pandemic he did not joined enquiry personally but sent his written reply on the official mail of SHO / Kashmere Gate wherein both the alleged stated that complainant Sukhbir Singh Choudhary along with Late Sh. Kanwar Singh S/o Lal Singh had on difference occasions openly, freely and out of their own volition orally relinquished their shares in the property in question, much prior to the registration of the sale deed dated 28.02.2000. It is reiterated that, in an around the year 1978-79, the complainant during the life time of his father Late Sh. Mir Singh had himself openly, freely and out of his own volition orally relinquished his share in the property in question, as the complainant was in need of monetary support and asked his father Late Sh. Mir Singh to give him his share of property in question. They further stated that the value of the property in question situated at Kishan Ganj at the time was not much, thus late Sh. Mir Singh was able to give the complainant his eventual share, which was thus a mitigating factor for the complainant to accept the monetary amount and freely relinquish his share in the said property. Moreover, the entire proceeds of the rent of the another ancestral property situated in Mahipalpur, Delhi bearing number 85, Mir Singh Building, Mahipal Pur, Delhi were at the said time period being taken by the complainant (because he was unemployed) and thus the complainant himself openly, freely without coercion and out of his volition orally relinquished his eventual share in the property much before the execution of sale deed of the property in the year 2000. They further stated that in pursuance of open and publically acknowledge relinquishment of their shares by Late Sh. Kanwar Singh and the complainant, the remaining heirs sold the said property in question to Sh. Shyam Lal and Sh. Ramesh Sharma vide a sale deed dated 28.02.2000.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 4 of 15 All the said parties (both vendors and vendees) to the sale deed dated 28.02.2000 were known to the complainant Sukhbir Singh Choudhary, who very well knew that such a sale deed was being executed and he had acknowledge the facts that he had relinquished his share from the said property along with Late Sh. Kanwar Singh S/o Late Sh. Lal Singh. It is further pertinent to state that the act of relinquishment of the complainants rights in the property in question is further substantiated by the fact that the complainant and alleged entered into a partition deed dated 22.10.2000 after the execution of the above said sale deed dated 28.02.2000 wherein the remaining 10 properties of the Late Sh. Mir Singh was divided as per mutual agreement between the complainant and alleged. It is stated that the property in question purposely doesn't find mention in the said partition deed as it was common knowledge available with the complainant that the same has already been sold and he had much prior in time relinquished his share / rights in the same out of his own volition and without coercion. They further stated that complainant has approached the judicial authorities after period of approximately 20 years of the execution of sale deed and the preliminary decree passed by the Hon'ble High Court proves that this is a malicious litigation foisted with a vexatious motive of delaying the judicious process and intimidating the alleged senior citizens into forgoing their legal rights in the residential property situated at Vasant Vihar by creating a dispute out of thin air and further giving it a criminal colour to further their illegal designs. They further stated that complainant is misusing the judicial process to file false, fabricated and malicious complaints before various forms as counter blasts to the FIR bearing No. 140/2019, PS Crime Branch U/s 420/467/468/472/34/120-B IPC filed by the alleged against the complainant and his son Ruby Singh Sehrawat @ Praveen Choudhary and are now trying to file baseless complaints to intimidate the alleged to forgo their rightful shares in the residential property situated at Vasant Vihar. (Copy of reply of alleged persons attached).
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 5 of 15 In view of above mentioned facts, as per contents of the complaint and enquiry conducted so far, the matter is found to be dispute of ancestral property between the brothers (both parties). The allegation levelled by the complainant herein could not be substantiated, as no incriminating prima facie evidence has come on record during enquiry. However, any order / directions passed by the Hon'ble Court shall be abide by the undersigned."
IMPUGNED ORDER:
7. The relevant part of the impugned order is as under:
"7. Considering the complaint, affidavit, documents available on record and the arguments of Ld. Counsel for complainant, no cognizable offence is made out. Firstly, it is alleged by the complainant that alleged persons (his brothers) sold one property bearing No. 302, Khasra Nos. 536/152 and 537/152, Bagh Kare Khan, Kishan Ganj, Delhi (hereinafter called as plot in question) vide sale deed dated 28.02.2000 without his knowledge and consent by playing fraud. However, during the inquiry it is revealed that in the year 1978- 79 during the lifetime of his father, the complainant himself openly, freely without coercion and out of his own volition orally relinquished his share in the plot much before the sale deed executed by alleged persons on 28.02.2000. There is also a partition deed on record dated 22.10.2000 wherein the plot in question is not mentioned in the list of properties. However, the complainant has also brought on record another partition deed which stated that earlier partition deed dated 28.02.2000 is null and void and in the list of properties the plot in question is mentioned at para 9.
8. The present matter appears to be one relating to partition of ancestral properties between the family members. The complainant is unnecessarily trying to give it criminal colour. All the evidence is within the reach of the complainant hence this Court is of view that no police investigation is necessary in this case.
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9. In the light of the facts and circumstances of the present complaint, there is no need to invoke section 156(3) Cr.P.C. for issuing direction to register FIR against the respondents as:
I. The identity of alleged accused persons is ascertained.
II. No facts are needed to be unearthed as the same are well within the knowledge of the complainant.
III. Custodial interrogation of alleged accused is not necessary.
IV. The evidence is well within the reach of complainant & no assistance of police is required to gather the same.
V. The facts of the case is not such that would warrant a detailed and complex investigations to be carried out by the State Agency.
10. Hence, there is no need for investigation by the Police u/s. 156(3) Cr.P.C. in this case. Application is hereby dismissed.
11. However, the cognizance on the complaint is taken. Complainant is at liberty to lead pre- summoning evidence. In case any requirement of investigation arises at later stage qua some disputed facts the provision of section 202 Cr.P.C. could be resorted to.
Be put up for PSE on 26.11.2022."
CRIMINAL REVISION PETITION:
8. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred criminal revision petition.
APPEARANCE:
9. I have heard Mr. Deepak Kumar Sharma, Advocate for the petitioner and examined trial Court record.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 7 of 15 CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
10. Ld. Counsel for the petitioner contended that there is prima facie material disclosing commission of offences of cheating and forgery. He contended that the respondent No. 1 & 2 executed sale deed dated 28.02.2000 without disclosing that the petitioner is one of the co-owners of the said property.
He contended that the respondent No. 1 and 2 mentioned in the said sale deed that they are only legal heirs of Late Ch. Mir Singh. He contended that there is no provision in law that a right in an immovable property can be relinquished by orally. He contended that even if, it is accepted that the petitioner orally relinquished his right in the said property, there is no mention of such relinquishment in the said sale deed. He contended that the respondent No. 1 stated his wrong name in the said sale deed as 'Rajinder Parshad' instead of his real name as 'Rajinder Parkash Choudhary'. He contended that there is need of police investigation as to ascertain role of the respondent No. 1 and 2 and other persons in forgery of the said sale deed as well as recovery of sale consideration thereof. He contended that the said property is mentioned in para No. 9 of the partition deed dated 31.11.2000 executed between the petitioner, his mother and the respondent No. 1 and 2. He contended that the allegations made in the complaint, prima facie, disclosed commission of cognizable offences and there was no need of any preliminary enquiry in view of judgment in Lalita Kumari's case. He prayed for setting aside of the impugned order.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 8 of 15 ANALYSIS AND DISCUSSION:
11. Section 156 Cr.P.C. is as under:
"156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
POINTS FOR CONSIDERATION:
(a) Whether preliminary enquiry is required to be conducted in family disputes?
12. The petitioner and the respondent No. 1 and 2 are real brothers. The subject matter of FIR is an ancestral property. The case of the petitioner is that he acquired knowledge of sale of the said property from replication filed to his written statement in the civil suit instituted by the respondent No. 1 and 2 before Hon'ble High Court of Delhi, vide CS (OS) No. 406 of 2018.
13. The present case is squarely covered under clause (a) of para No. 120.6 of the judgment in Lalita Kumari vs. Govt. of U.P. & Ors., (2014) 2 SCC 1, as under:
"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 9 of 15 The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes / family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay / laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
14. Therefore, preliminary enquiry was rightly conducted in this case.
(b) Whether the allegations made in the complaint disclosed commission of cognizable offences?
15. As already noted, the petitioner and the respondent No. 1 and 2 are real brothers. The case of the petitioner is that the respondent No. 1 and 2 sold the said property without disclosing that he was one of the co-owners of the said property. The said sale deed was executed on 28.02.2000. Enquiry Officer furnished partition deed dated 22.10.2000 between the petitioner and the respondent No. 1 and 2 wherein the said property is not mentioned. On the other hand, the petitioner is relying upon partition deed dated 31.11.2000 wherein the said property is mentioned at Sl. No. 9. The respondent No. 1 and 2 already filed a civil suit for partition of the properties of Ch. Mir Singh, vide CS (OS) No. 406/2018.
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16. The dispute is essentially pertaining to division of ancestral properties acquired and inherited by Ch. Mir Singh. Primarily, the nature of dispute is purely civil in nature. The allegations made in the complaint does not disclose commission of any cognizable offence.
(c) Whether the jurisdictional Magistrate is mandated to direct registration of FIR on filing of an application under Section 156(3) Cr.P.C. seeking registration of FIR?
17. The trial Court has jurisdiction to apply its judicial mind to facts and circumstances of the case while dealing with an application seeking registration of FIR.
18. In Ramdev Food Products (P) Ltd. vs. State of Gujarat, (2015) 6 SCC 439, Hon'ble Supreme Court of India held, as under:
"20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, it was observed: (SCC p. 711, para 11)
11. "The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge / Magistrate cannot refer the matter under Section 156 (3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order.
Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 11 of 15 The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.....
22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued."
19. In Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287, Hon'ble Supreme Court of India held, as under:
"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."
20. Therefore, the Magistrate cannot issue direction for registration of case mechanically without applying its judicial mind to the averments made in the complaint and accompanying documents.
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(d) What should be the procedure when the Magistrate is yet to determine existence of sufficient grounds to proceed in the case?
21. Where there is no material disclosing commission of any cognizable offence and the Magistrate has yet to determine, "existence of sufficient ground to proceed", the Magistrate must take cognizance and postpone issue of process.
22. In Ramdev Food Products (P) Ltd. vs. State of Gujarat (supra), Hon'ble Supreme Court of India held, as under:
"22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed".
23. Therefore, the Magistrate rightly taken cognizance of the case and provided opportunity to the petitioner to lead pre-summoning evidence to bring prima facie material on record disclosing commission of any offence for issuance of process against the respondent No. 1 and 2. CONCLUSION:
24. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside.
25. Accordingly, the criminal revision petition filed by the petitioner is dismissed.
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26. A copy of judgment be sent to trial Court.
27. The criminal revision file be consigned to record room.
Announced in the open Court SANJAY SHARMA-II on this 16th December, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 691/2022 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. Page No. 14 of 15 Sukhbir Singh Choudhary vs. Rajinder Parkash Choudhary & Ors. CNR No.: DLCT010167792022 Crl. Revision No. 691/2022 16.12.2022 Proceedings convened through Video Conferencing. Present : Mr. Deepak Kumar Sharma, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 16.12.2022
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