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2021 DIGILAW 2429 (DEL)

Morchana Oriental Ltd. v. State of NCT of Delhi

2021-12-24

ANU MALHOTRA

body2021
ORDER Crl.M.A. No.20970/2021 1. Exemption allowed, subject to just exceptions. Crl.M.C. No. 3538/2021 and Crl.M.A. No.20969/2021 2. The petitioner vide the present petition assails the impugned order dated 21.12.2021 of the Court of the learned Additional Sessions Judge-03, Patiala House Courts, New Delhi in CR No. 360/2021. 3. Vide the said order, notice of the revision petition was directed to be issued to the respondent thereto i.e., the present petitioner, on taking of steps within 7 days for 24.1.2022 with it having been directed that the impugned order was stayed till the next date of hearing. The proceedings dated 21.12.2021 before the learned Additional Sessions Judge-03, New Delhi are to the effect: "21.12.2021 Fresh revision petition received by way of assignment. It be checked and registered . Present: Sh. Gaurav Arora and Ms. Yogayta, Ld. Counsels for the revisionist. Heard. Notice of the revision petition be issued to the respondent on filing of PF/RC for 24.01.2022. Steps be taken within seven days. Impugned order is stayed till the next date of hearing. At request a copy of this order be given dasti. A copy of this order be sent to Ld. Trial Court. TCR be summoned two days prior to the next date of hearing." 4. The order apparently as impugned before the learned Additional Sessions Judge-03, New Delhi, is the order dated 18.12.2021 of the Court of the learned ACMM, Patiala House Courts, New Delhi in CC No. 9425/2021 under Section 156(3) of the Cr.P.C., 1973, whereby it was observed inter alia to the effect: "4. I have heard contentions on the pat of complainant and have carefully perused the record as well as gone through judgments relied upon. It is the contention of complainant that they got to know about forged documents on receipt of demand notice on 29.10.2020. As per report of 10, in his complaint, Kapil Gupta had not claimed his signatures to the forged and that said complaint was of civil nature. Copy of complaint is Annexure 'A' with report of 10. Said complaint is undated, however, as per report of 10, said complaint was received on 12.09.2019. Said complaint does not refer to documents, which complainant states to have come to know of on 29.10.2020. Thus, clearly said complaint pre-dates to knowledge of any forged documents and in such scenario, anyone cannot be expected to say anything about facts unknown. Said complaint is undated, however, as per report of 10, said complaint was received on 12.09.2019. Said complaint does not refer to documents, which complainant states to have come to know of on 29.10.2020. Thus, clearly said complaint pre-dates to knowledge of any forged documents and in such scenario, anyone cannot be expected to say anything about facts unknown. Further, it is also reported by 10 that on documents in question, another AR of complainant has accepted that documents were signed by Kapil Gupta. Said second complainant is Annexure-B. The alleged documents are Addendum agreement dated 26.06.2018 and Letter/Agreement dated 31.01.2019. However, said complaint, which is Annexure B of report of 10, does not refers to their two documents. Said complaint refers to consultancy agreement with M/s. TAV whereas as stated by complainant in complaint, along with demand notice, Letter/Agreement is purported is executed by the Galaxies Production. Sum and substance of controversy is that there are allegations of cheating as well as forging the documents and using them. These allegations made in complaint does show commission of cognizable offence. To adjudicate upon 156(3), court is required to see if any field investigation is required. Above discussion shows that documents in question are required to be looked into and probed. For the said probe, analysis of hand-writring is required. One of the parameter to assess requirement of field investigation is whether or not evidence is within reach of complainant. For analysis of documents, original documents are required which are stated to be in custody of alleged. Thus, it cannot be said that entire evidence is within control of complainant. For recovery of such original documents so that they may be analysed to reach at truth in the matter, filed investigation is required. Hence, in view of above discussion, application u/s. 156(3) Cr.PC is disposed of as being allowed. Copy of this order be sent to SHO/In-charge, PS EOW with direction to register FIR under appropriate provisions of law and carry out investigation as per law." 5. Hence, in view of above discussion, application u/s. 156(3) Cr.PC is disposed of as being allowed. Copy of this order be sent to SHO/In-charge, PS EOW with direction to register FIR under appropriate provisions of law and carry out investigation as per law." 5. It has been submitted on behalf of the petitioner vide the present petition as well as vide Crl.M.A. No.20969/2021 vide which an ad interim stay of the operation of the order dated 18.12.2021 has been prayed to the effect that the said order dated 21.12.2021 is wholly unreasoned and wholly silent in relation to the aspect as to why there had been a stay granted of the operation of the impugned order dated 18.12.2021 of the Court of the learned ACMM, Patiala House Courts, New Delhi which was detailed and expressly in compliance with the verdict of the Hon'ble Supreme Court in Lalita Kumari Vs. Government of U.P. , (2014) 2 SCC and the other verdicts relied upon on behalf of the petitioner, namely,: Raisa Begum vs. State , 2015 SCC Del 10078, Abhay Nath Dubey VS. State of Delhi & Ors. , 2002 SCC Del 570 Priya Gupta vs. The State , MANU/DE/7565/2007 6. It has further been prayed on behalf of the petitioner that by the stay of the operation of the order dated 18.12.2021 of the Court of the learned ACMM, New Delhi till the date 24.1.2022 whereby directions to the SHO Incharge Police Station EOW to register the FIR under appropriate provisions of law and to carry out investigation as per law were stayed, essential evidence is likely to be tampered with and destroyed. 7. On behalf of the respondent nos.2 to 4 it is submitted that in the event of any order being presently passed by this Court on the prayer made by the petitioner, the same would have a bearing on the merits or demerits of the CR No. 360/2021 filed by the respondent Nos.2 to 4 prejudicially and would render it infructuous. 8. As regards the contention of the petitioner that the order impugned in the present petition dated 21.12.2021 in CR No. 360/2021, the same is not reasoned is undoubtedly correct. 8. As regards the contention of the petitioner that the order impugned in the present petition dated 21.12.2021 in CR No. 360/2021, the same is not reasoned is undoubtedly correct. However it is apparent that when the impugned order has been passed dated 21.12.2021 staying the operation of the impugned order in the revision petition, it could not have been without any application of mind by the learned Additional Sessions Judge-03, New Delhi. It is however essential to observe that it is well settled law as laid down by the Hon'ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashta and Others , 2021 SCC OnLine SC 315 that reasons have essentially to be given during the decision making process as observed in Kranti Associates (P) Ltd. V. Masood Ahmed , (2010) 9 SCC 496 in paragraph 47 thereof which reads to the effect: "76. While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed , (2010) 9 SCC 496, in paragraph 47, this Court has summarised as under: "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37].) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain , [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford , [2001 EWCA Civ 405], wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"." With observations in para 77 of the said verdict to the effect: "77. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"." With observations in para 77 of the said verdict to the effect: "77. Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of "no coercive steps to be adopted" and the same deserves to be quashed and set aside." with it having been concluded in Neeharika Infrastructure (P) Ltd. (Supra) vide paragraph 80 to the effect: "80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the `rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order . xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied." (emphasis supplied) 9. Thus whatever may be the directions that the Court passes apparently essentially a reasoned order has to be passed and the same is an indispensable component of the judicial decision making process to observe the principles of natural justice to facilitate the consideration of the application of mind at the time of passing any order which may be assailed before a superior Court. This principle of adjudication applies equally at every plank of the judicial dispensation and has to be adhered to by all. 10. In view thereof, presently as held herein above, it was imperative for the learned Additional Sessions Judge-03, New Delhi, seized of CR No. 360/2021, to have passed a reasoned order while staying the operation of the impugned order of the learned ACMM, New Delhi. 11. In the interest of justice, it would suffice in the instant case by directing the learned Additional Sessions Judge-03, New Delhi, seized of the said revision petition to dispose of CR. 11. In the interest of justice, it would suffice in the instant case by directing the learned Additional Sessions Judge-03, New Delhi, seized of the said revision petition to dispose of CR. No. 360/2021 by the date 31.1.2022 with further directions to both the parties to the present petition to ensure that their pleadings are completed in the matter by the date 4.1.2022 with directions to the learned Additional Sessions Judge-03, New Delhi to pre-pone the date of hearing in the revision petition CR No. 360/2021 listed for the date 24.1.2022 to the date 10.1.2022 and to thereby dispose of the petition by the date 31.1.2022. The further extension of the operation of the order of the stay granted vide order dated 21.12.2021 by the learned Additional Sessions Judge, New Delhi from the date 10.1.2022 if directed to be passed shall be passed on its own merits and vide a reasoned order. 12. Nothing stated herein above shall however amount to any expression on the merits or demerits of the CR No. 360/2021 filed by the respondent Nos. 2 to 4 and shall also not amount to expression on the aspect as to whether or not there is to be any further stay to be granted qua the operation of the impugned order impugned in CR No. 360/2021, i.e., the order dated 18.12.2021 of the learned ACMM, New Delhi in CC No. 9425/2021. 13. The petition is disposed of.