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2006 DIGILAW 1543 (DEL)

AVTAR SINGH v. STATE

2006-09-01

A.K.SIKRI

body2006
JUDGMENT A.K. Sikri, J. (Oral)- The brief factual matrix runs as follows: Respondent No.2, Sh. Anil Kumar Dua, is the complainant, who has tiled a complaint under Sections 420/426/447/463/464/471/506/120B, IPC. This was filed on 15.5.2001 in the Court of Metropolitan Magistrate. On the directions of the Magistrate, an FIR No. 264/200 I was registered at Police Station Lajpat Nagar. The police carried out the investigation, on the basis of which it tiled final/ cancellation report before the learned Metropolitan Magistrate. On receipt of this report, the learned Metropolitan Magistrate issued notice to the complainant. Since the complainant was not satisfied with this report, his statement was recorded and thereafter, order dated 15.1.2005 has been passed by the learned Metropolitan Magistrate, fixing the matter for complainants evidence. This short order, which is challenged in the present petition, runs as under- "Present: Shri V.K. Dua complain-ant. I.O. Sanjay Tyagi reportedly out of India. It has been reported by the complainant that he is not at all satisfied with the investigation even the documents placed by him were not considered during investigation and moreover accused persons forged the documents and submitted it to MCD. The complainant states that he is not at all satisfied with the investigation. He wants to lead the evidence. Case is fixed for C.E. for 26.4.2005." 2. Needless to mention that petitioner is accused in the said complaint tiled by the respondent No.2 herein. The case of the petitioner is that the complainant was an employee of the petitioner along with his three brothers for approximately 20 years and these four brothers conspired together, forged and fabricated documents and committed forgery and cheating to the tune of approximately Rs. 200 crores. When petitioner came to know of the same. he lodged FIR No. 25/2000 against the respondent No.2 (complainant in this case) and his three brothers under Sections 193,384,385,408,409,420,468,471,477 A read with Section 120B, IPC registered with Police Station Desh Bandhu Gutpa Road, Karol Bagh, New Delhi. The investigation of the same was later on transferred to the Economic Offences Wing of Crime Branch. After investigation, a detailed charge-sheet has been tiled before the learned Chief Metropolitan Magistrate, Delhi. The learned CMM, thereafter, has taken cognizance thereof and respondents No.2 and three brothers have been summoned. Trial is going on in the Court of learned ACMM. The investigation of the same was later on transferred to the Economic Offences Wing of Crime Branch. After investigation, a detailed charge-sheet has been tiled before the learned Chief Metropolitan Magistrate, Delhi. The learned CMM, thereafter, has taken cognizance thereof and respondents No.2 and three brothers have been summoned. Trial is going on in the Court of learned ACMM. According to the_ petitioner, as a counter-blast, the aforesaid complaint was tiled by the respondent No.2 herein in the year 2001. After investigation, the police did not find any substance therein because of which it filed cancellation report. Notice was issued to the complainant, who was given opportunity to file the objections to the final report submitted by the police. However, in spite of various opportunities, complainant, on one pretext or the other, had not filed objections. On 24.11.2004, the learned Metropolitan Magistrate issued notice to the complainant as to why the cancellation report be not accepted and the matter was adjourned for 15.1.2005. However, on 15.1.2005, only on the basis of complainants statement that he was not satisfied with the investigation and wanted to lead evidence, the Court has fixed the case for complainants evidence. 3. In the aforesaid circumstances, submission of learned Counsel for the petitioner is that on the ipse dixit of the complainant, the Court should not have accepted his plea and listed the matter for his evidence. Rather the learned Trial Court should have applied its own mind to the cancellation report before taking any decision thereof. 4. The submission of the learned Counsel for the respondent No.2, on the other hand, is that the petitioner has no locus standi to challenge the said order dated 15.1.2005 at this stage as no summons have yet been issued to him. The learned Metropolitan Magistrate has the power to issue notice to the complainant and adopt the aforesaid course adopted by him namely, to record evidence of the complainant and he is not required to record reasons at different stages of trial. The learned Metropolitan Magistrate has the power to issue notice to the complainant and adopt the aforesaid course adopted by him namely, to record evidence of the complainant and he is not required to record reasons at different stages of trial. It was also submitted that once the Magistrate has exercised his discretion of issuing process, It Is not for the high Court or even the Supreme Court to substitute Its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegation in the complaint, if proved, would ultimately end in conviction of the accused, In support of the aforesaid submission, the learned Counsel for the respondent relied on various judgment, Following judgment were referred to on the question of locus standi of the petitioner : (a) Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another, 1963, Current Law Journal (SC) Vol. III 93. (b) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others, AIR 1976 SC 1947 . (c) Tilak Ram Pandoh v. Jagan Nath, II (2005) CCR 473. 5. On the submission that learned Magistrate has power to issue notice to the complainant and record a statement, reliance is placed on the following judgments: (a) Tula Ram and Others v. Kishore Singh, AIR 1977 SC 2401 . (b) M/s. India Carat Pvt. Ltd. v. State of Karnataka and Another, 1989 SCC (Cri.) 306. (c) B.S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 . 6. On the proposition that at this stage no detailed reasons are required, learned Counsel referred to these judgments: (a) Kanti Bhadra Shah and Anr. v. State of West Bengal, 1 (2000) SLT 133=1 (2000) CCR 72 (SC)=2000 SCC (Cri) 303. (b) Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Others, II (2003) SLT 640=11 (2003) CCR 11 (SC)= (2003) 4 SCC 139 . (c) U.P. Pollution Control Boardv. Mohan Meakins Ltd., 111 (2000) SLT 162=1 (2000) CCR 348 (SC)= AIR 2000 SC 1456 . 7. On the exercise of the discretion by the Magistrate which should not be interfered with by this Court reliance is placed on the judgment of Supreme Court in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (supra). 8. Mohan Meakins Ltd., 111 (2000) SLT 162=1 (2000) CCR 348 (SC)= AIR 2000 SC 1456 . 7. On the exercise of the discretion by the Magistrate which should not be interfered with by this Court reliance is placed on the judgment of Supreme Court in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (supra). 8. Learned Counsel for the petitioner, on the other hand, submitted that when the final report was placed before the learned Metropolitan Magistrate by the police, it was incumbent upon the Magistrate to deal with the conclusions of the report instead of dismissing the same brusquely as held by this Court in Ajay Khandelwal v. State & Anr., 106 (2003) DLT 195=2003 VI AD (Delhi) 485, and Manoj Raghuvanshi v. State & Anr., 110 (2004) DLT 154 = 2004 II AD (Delhi) 626, 9. As to what procedure is to be followed after receiving the report, the Counsel relied upon the following judgment: (a) Bharat Ram v. Surinder Kumar and Others, (2004) 11 SCC 622 . (b) Poplar Muthiah v. State of Tamil Nadu, III (2006) CCR 101 (SC)=V (2006) SLT 282=2006 (3) Crimes 23 (SC). (c) M/s. India Carat Pvt. Ltd. v. State of Karnataka and Another, AIR 1989 SC 885 . (d) Abhinandan Jha and Other. v. Dinesh Mishra, AIR 1968 SC 117 . (e) Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. VI (2004) SLT 68=IV (2004) CCR 149 (SC)= AIR 2004 SC 4753 . 10. Having regard to the issue involved, it is not necessary to discuss in detail the various judgments cited by Counsel on either side. Position in law stating the power of the Magistrate to deal with such reports filed by the police after investigation is not in dispute and Counsel for both the parties were in agreement with the same. This position is stated by the Honble Supreme Court in the case of Tula Ram and Others v. Kishore Singh (supra) in the following manner- "The legal propositions that emerge in this regard are- 1. This position is stated by the Honble Supreme Court in the case of Tula Ram and Others v. Kishore Singh (supra) in the following manner- "The legal propositions that emerge in this regard are- 1. A Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a-Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Sec. 202 he can order an investigation by the police which would be in the nature of an inquiry as contemplated by Section 202 of the Code. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives- (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straitaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an inquiry by himself. (c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police. 3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the inquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report any discharge the accused or straightaway Issue process against the accused or apply his mind to the complaint med before him and take action under Section 190 of the Code.” 11. It is this legal position which hall been reiterated time and again by the Apex Court In various judgments, which are cited by the learned Counsel for the parties before me as well and taken note of above. It is this legal position which hall been reiterated time and again by the Apex Court In various judgments, which are cited by the learned Counsel for the parties before me as well and taken note of above. It Is, thus, clear that when a Magistrate receives a complaint, he can pass an order directing the complainant to lead his evidence and after recording the evidence, he can decide as to whether cognizance is to be taken and accused persons are to be summoned or not. Instead of adopting this course, Magistrate is also empowered to order investigation under Section 156(3), Cr.P.C. at the pre-cognizance stage. In case inquiry is ordered under Section 156(3), Cr.P.C. and after investigation closure report is submitted, there is no obligation on the Magistrate to accept the report, if he does not agree with the opinion formed by the police. The learned Metropolitan Magistrate has power to take cognizance, notwithstanding the formation of the opinion by the police. In fact three courses are open to the learned Metropolitan Magistrate at that stage which are as follows: 1. He may accept the report and drop the proceedings; 2. He may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or 3. He may direct further investigation to be made by the police under Section 156(3), Cr.P.C. 12. While there is no quarrel about the legal position summerised above, the question that falls for consideration in the present case is, however, slightly different. The learned Metropolitan Magistrate has not adopted any of the aforesaid courses. He has not agreed to accept the report and drop the proceedings at the stage. He has neither disagreed with the report and taken cognizance of the offence nor has he ordered further investigation by the police under Section 156(3), Cr.P.C. On the other hand, he has fixed the case for the evidence of the complainant. It also cannot be doubted that the learned Metropolitan Magistrate has the power to postpone the issue of the process and direct an inquiry by himself. Therefore, he can, in law, direct the complainant to lead evidence. so that he can enquire into the matter himself. It also cannot be doubted that the learned Metropolitan Magistrate has the power to postpone the issue of the process and direct an inquiry by himself. Therefore, he can, in law, direct the complainant to lead evidence. so that he can enquire into the matter himself. However, the question is as to whether such a course of action could be adopted merely on the ipse dixit of the complainant, who is not satisfied with the investigation, or was the Magistrate required to apply his own mind into the investigation report and come to the conclusion that further inquiry was required by the learned Magistrate himself for which he wanted to record the evidence of the complainant. My answer obviously is that the learned Metropolitan Magistrate should have applied his own mind into the cancellation report before ordering the complainants evidence. 13. When the cancellation report is tiled, the complainant is given opportunity to submit his objection to the said report. On receipt of the objections find hearing the complainant the Magistrate is required to apply his own mind and consider as to whether the report is to be accepted or not. However, In the present case, as is clear from the order dated 15.1.2005, learned Metropolitan Magistrate has simply recorded that it is the complainant who is not satisfied with the investigation and complainant wants to lead evidence. Therefore, he has fixed the case for complainants evidence. This clearly shows non-application of mind by the learned Metropolitan Magistrate. 14. In case of Ajay Khandelwal v. State & Anr. (supra); on a complaint of the complainant, order for police investigation under Section 156(3), Cr.P.C. was passed. The police in that case also submitted the cancellation report. After receiving the cancellation report learned Magistrate passed the order summoning the accused. The Court set aside the order holding that, "once having been equipped with the final report, it was incumbent upon the learned MM to deal with the conclusion of the report instead of dismissing the same brusquely." 15. In Manoj Raghuvanshi v. State & And. After receiving the cancellation report learned Magistrate passed the order summoning the accused. The Court set aside the order holding that, "once having been equipped with the final report, it was incumbent upon the learned MM to deal with the conclusion of the report instead of dismissing the same brusquely." 15. In Manoj Raghuvanshi v. State & And. (supra), after receiving the report, the learned Magistrate passed an order for further inquiry by himself the said order was set aside with the following observations: “Having heard Counsel and having gone through the material placed on( record, I am of the view that the Magistrate could not examine material himself by way of further inquiry after opting to proceed with the case under Section 15b(3), Cr.P.C. The, only option now was to go forward under Section 173, Cr.P.C. Even otherwise, the case sought to be made out by the complainant is of a civil nature. A case of recovery of amount cannot be proceeded with by way of a criminal complaint." 16.ln view of the aforesaid position in law, I am of the opinion that impugned order dated 15.1.2005 was passed without application of mind as the learned Metropolitan Magistrate has simply gone on the basis of statement of the complain• ant to the effect that the complainant was not satisfied with the investigation without recording his own observations after considering the cancellation report as to whether there was satisfactory investigation or not and/or whether any further investigation was required. Such an order cannot stand judicial scrutiny and, therefore, set aside. Since the impugned order is grossly illegal and not in consonance with law, it is not necessary for me to examine the question of locus standi of the petitioner. The matter is remitted back to the learned Metropolitan Magistrate with directions to apply his own mind and decide as to whether the report filed by the police is to be accepted or not and pass appropriate orders thereon In accordance with law. Ordered accordingly.