Jag Mohan Malhotra vs State Of U.P. And 5 Ors.
2018 Latest Caselaw 556 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
AFR
 
Court No. - 30
 
Case :- MATTERS UNDER ARTICLE 227 No. - 2180 of 2018
 
Petitioner :- Jag Mohan Malhotra
 
Respondent :- State Of U.P. And 5 Ors.
 
Counsel for Petitioner :- Kshitij Shailendra
 
Counsel for Respondent :- C.S.C.,Aditya Vardhan Singh,Iqbal Ahmad
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Sri Kshitij Shailendra, learned counsel for the petitioner, Sri Iqbal Ahmad alongwith Sri Aditya Vardhan Singh, learned counsel appearing for the respondent no. 6 and the learned Standing Counsel appearing for the State respondents.

2. Present petition has been filed with the following prayer:-

"Kindly set aside the first impugned order dated 24.3.2018 passed by the Civil Judge (Junior Division), Moradabad in Original Suit No. 826 of 2017 (Jag Mohan Malhotra vs. Atul Sharma and others) (Annexure No. 1 to this petition) as well as the second impugned order dated 30.3.2018 passed by the District Judge, Moradabad in Revision No. Nil of 2018 (Jag Mohan Malhotra vs. Atul Sharma and others) (Annexure No. 2 to this petition);

ii) kindly, reject the application (paper no. 120-C moved by the respondent no. 3 in toto;

iii) issue any other suitable direction or pass an order as this Hon'ble Court may deem fit or proper in the facts and circumstance of the case; and

iv) Award costs of the petition to the petitioner."

3. By the impugned order dated 24.3.2018 the court below has allowed the application filed by the Investigating Officer paper no. 129-Ga to the effect that in presence of all the counsels the sealed cover containing memorandum of agreement may be opened and a copy of the same be provided to the Investigating Officer / handwriting expert. Thereafter, the original document be put back in sealed cover. The revision against the same was dismissed by the revisional court on the ground that the order is purely interlocutory in nature and therefore, the revision is not maintainable. In the present petition, both the orders are under challenge.

4. Facts in brief of the case as narrated in the writ petition are that the plaintiff-petitioner instituted Original Suit No. 826 of 2017 against the defendant-respondent nos. 4, 5 and 6 in the court of Civil Judge (Junior Division), Moradabad claiming a decree of specific performance for an agreement for sale dated 17.11.1987, memorandum whereof was written on 19.7.1988, alongwith a decree for permanent prohibitory injunction restraining the defendant-respondent nos. 4 to 6 from alienating the property, mortgaging the same and from causing any interference in the plaintiff's actual and physical possession over the property in dispute. The plaint case is based upon an agreement to sale dated 17.11.1987, which was executed by the predecessor-in-interest of the defendants, namely, Smt. Rajeshwari Sharma and Smt. Sudha Sharma in respect of their 1/20-1/20 shares qua building described in the schedule-Ka. It is further alleged in the plaint that in pursuance of the aforesaid agreement, the actual and physical possession of the aforesaid property had been handed over to the plaintiff's father and insofar as the execution of the sale deed is concerned, it had been agreed that after partition of the respective shares amongst the co-sharers, the sale deed would be executed. A copy of the alleged agreement / memorandum of agreement dated 19.7.1988 was part to the record in original before the trial court. The suit was instituted on 14.11.2017 and one Jai Kumar Mishra (who is not a party to the suit), maternal uncle of the defendant-respondent nos. 4, 5 and 6 lodged a first information report against the plaintiff-petitioner, his three sons and two brothers, which has been registered as Case Crime No. 383 of 2017, under Sections 420, 466, 467, 468, 471 and 120-B IPC.

5. By means of a short counter affidavit certain documents have been placed on record to indicate that the first information report was lodged online to the higher police authorities Inspector General of Police / Deputy Inspector General of Police, Moradabad Division, Moradabad on 8.12.2017 with the allegation that the first information report filed on 27.11.2017 was not registered by the police station Kotwali, Moradabad. Deputy Inspector General of Police, Moradabad Division, Moradabad vide its order dated 9.12.2017 passed an order to register and investigate the offences committed as per the allegations of the first information report. Accordingly, the first information report was registered. Copy of the order dated 9.12.2017 and report of S.P. City dated 24.12.2017 as well as of the Circle Officer concerned has been placed on record collectively as Annexure-1 to the short counter affidavit. This fact is not in dispute. The first information report was lodged on the allegation that the agreement / memorandum is a forged and fabricated document which does not bear the signatures of the executants i.e. Smt. Rajeshwari Sharma and Smt. Sudha Sharma. The plaintiff-petitioner challenged the first information report before this Court by means of Criminal Misc. Writ Petition No. 1734 of 2018 (Jag Mohan Malhotra and others vs. State of U.P.), which was disposed of vide order dated 25.1.2018 granting interim protection to the petitioner for arrest till submission of police report under Section 173(2) Cr.P.C. The aforesaid order dated 25.1.2018 is quoted as under:-

"Heard learned counsel for the petitioners and learned AGA for the State-respondents.

This petition for writ is before us to have a direction to quash the FIR dated 14.12.2017 bearing Case Crime No.383 of 2017, pending investigation at Police Station Kotwali , District Moradabad for the offences punishable under Sections 420, 467, 468, 471, 120B IPC.

Learned counsel for the petitioners submits that no case is made out against the petitioners for the offences referred in the FIR.

We have looked into the FIR that is challenged in this petition for writ. A bare perusal of the contents of the FIR discloses the commission of serious offences which are cognizable. Looking to definite accusation we are at all not inclined to interfere with the same while invoking powers under Article 226 of the Constitution of India.

However, looking to the merits of the case and the surrounding circumstances, we deem it appropriate to direct the Station House Officer, respondent no.3 not to arrest the petitioners in relation to FIR, referred to above, till submission of the police report under the provisions of Section 173 (2) of the Code of Criminal Procedure. The petitioners shall cooperate the investigating agency during the course of investigation.

Petition stands disposed of as above."

6. Admittedly, the investigation is still on. It may also be noticed that Jai Kumar Mishra also moved an impleadment application in the suit filed by the plaintiff-petitioner, which is still pending.

7. The relevant fact for deciding the present controversy is that before the trial court the Investigating Officer moved an application that he may be handed over the agreement / memorandum filed by the plaintiff-petitioner, which has been kept in a sealed cover, for investigation so as to facilitate verification of signatures through an expert. The trial court by the order impugned herein dated 24.3.2018 allowed the application paper no. 129-Ga, however, as already noted the prayer for handing over the document was refused by the trial court but it was directed that in presence of all the counsels the Investigating Officer and the handwriting expert may be permitted to take the copy of the alleged agreement / memorandum and thereafter the same may be put back in sealed cover. The revision filed against the same was rejected as not maintainable being against the interlocutory order.

8. Submission of learned counsel for the petitioner is that under Regulation 104 of the Police Regulations no investigation can be made by the investigating officer in respect of an offence under Section 420 IPC, where a civil litigation is pending and therefore, the application was not maintainable. It is submitted that an application seeking temporary injunction is still pending for disposal and issues have not been framed and as such it was not at all proper for the trial court to invite expert opinion either directly or indirectly. It is further submitted that in the Code of Civil Procedure, 1908 there is no provision where the investigating officer investigating the criminal offence can be permitted to request the civil court to hand over the file to him for any purpose or to seek expert opinion either directly or indirectly. Attention was drawn to the provisions of Order 11 Rule 14, 15 and 16 CPC. Specific attention was drawn to Order 11 Rule 15 CPC and it was submitted that all such provisions are related to the stage of leading evidence and even at that stage a third party has not been permitted to seek opinion of the court for production of the document or calling upon any scientific investigation including the opinion of the handwriting expert. It was further submitted that the opinion of the handwriting expert is covered by Section 45 of the Indian Evidence Act and even this section does not speak of allowing an application moved by a person, who is not a party to the suit proceedings, particularly, when he is an investigating officer, though the proceedings of civil nature or criminal investigation might be in respect of same document. It was further submitted that the criminal law and civil law operates in a different field and under no circumstances one proceeding can be permitted to affect the other proceeding. It was further submitted that it is the settled law that the findings recorded by the criminal jurisdiction is not binding upon the civil court, whereas the findings recorded by the civil court would be binding on the criminal court. Submission, therefore, is that it is only after final decision of the the civil court if the civil court comes to the conclusion that the alleged agreement for sale / memorandum is a forged and fabricated document only thereafter any criminal liability can be fastened upon the accused persons but reserve process is not permissible, therefore, the impugned orders are illegal. It was further submitted that the application was submitted by the investigating officer and not through any counsel including any government advocate / DGC (Civil/Criminal) and the same has been filed in collusion with the informant Jai Kumar Mishra, who is still not a party to the suit and therefore, the application moved by the investigating officer was liable to be rejected.

9. The crux of the argument is that moving such an application by an investigating officer who is investigating in a criminal case in the civil court, is a gross abuse of process of law and under no circumstances the same could have been allowed by the civil court, therefore, the orders impugned are wholly illegal and are liable to be set aside.

10. Per contra, learned counsel appearing for the respondents have submitted that in view of the provisions of Regulation 104 of the Police Regulations an investigation can be conducted by the police, where the offence under Section 420 IPC is involved, with the permission of the Superintendent of Police / or higher authority as the case may be and in the present case, undisputedly, the online first information report was registered after the order of the Deputy Inspector General of Police, Moradabad, whereon the S.P. City and the Circle Officer concerned have given their report, under such circumstances there is a due sanction of proceeding for the investigation. It was further pointed out that earlier the plaintiff-petitioner herein, in rent control proceeding filed against him, called himself to be in adverse possession and ultimately his claim was rejected by this Court dismissing the writ petition filed by him challenging the orders of the court below and this judgment is a reported judgment, namely, Jag Mohan Malhotra vs. Vijay Kumar Mishra and others 2009 (3) ARC 608. Submission, therefore, is that in any case the investigation is on and even this Court in its order dated 25.1.2018 passed in Criminal Misc. Writ Petition No. 1734 of 2018 (which has already been quoted above), has recorded a finding that the FIR discloses the commission of serious offences, which are cognizable and have been directed the petitioners therein including the petitioner herein to cooperate with the investigation agency during the course of investigation. Submission is that it is only for the purpose of investigation copy of the document put in sealed cover has been permitted to be taken by the investigating officer and therefore, there is no illegality in providing the same inasmuch as in case a copy of the document is not provided to the investigating officer it will ultimately create hindrance in the investigation.

11. During the course of argument attention was drawn to various provisions of Cr.P.C. and C.P.C. including Section 94(e), Order 39 Rule 7 (c) C.P.C. and Sections 91 and 195 Cr.P.C. and Regulation 104 of Police Regulations.

12. I have considered the rival submissions and have perused the record.

13. Before proceeding further it would be appropriate to take note of Regulation 104 of the Police Regulations, which is quoted as under:-

"104. When a report of a cognizable offence is received, the officer-in-charge of the station must decide whether an investigation is desirable. In exercising the discretion allowed by Section 157(1)(b) of the Code of Criminal Procedure, he should consider whether the case is for the civil rather than for the criminal Courts and whether action by the police is necessary in the interest of the administration or expedient for the preservation of law and order.

.......

No investigation should be made in the following circumstances, except on the order of the Superintendent of Police, in any particular case, or with the concurrence of the Deputy Inspector General, in respect of any particular class of offence in any particular area :

(1) ......

(2) ......

(3) ......

(4) ......

(5) In cases under Sections 406 and 420 of the Indian Penal Code, when there is prima facie evidence that case is of a civil nature."

(emphasis supplied)

14. A perusal of the aforesaid provision would clearly indicate that even a case involving Section 420 IPC with the order of the Superintendent of Police or with the concurrence of the Deputy Inspector General of Police an investigation can be conducted.

15. In view of the aforesaid provision and also in the light of the observations made by this Court that the cognizance on first information report discloses the commission of serious offences, which are cognizable and also an observation that the petitioner shall cooperate the investigating agency during the course of the investigation it leaves no room of doubt that the investigating officer is proceeding with the authority of law to investigate in the present case.

16. Insofar as the applicability of Order 11 Rule 14, 15 and 16 CPC is concerned, suffice to note that such provisions are applicable with regard to discovery and inspection in a suit at the instance of the parties to the suit. It is not a case where the production of the document is being sought by one party from other party. Further, the document is also not in possession of the party, which, admittedly, is in custody of the court in a sealed cover and inspection thereof or permission to have a copy of the same can only be granted by the court by passing any order in the interest of justice.

17. Insofar as the contention of learned counsel for the petitioner is that Section 45 of the Indian Evidence Act cannot be invoked at this stage as even interim injunction application has not been disposed of and even issues have not been framed, suffice to say that the trial court at this stage is not exercising this power in suit proceedings to decide the dispute between the parties but is only providing copy of a document in custody of the court and thus, the argument is misconceived.

18. The argument that no such application could have been filed by the investigating officer in the suit as he is not a party to the suit is also misconceived inasmuch as the investigating officer is proceeding with authority of law to investigate the allegations of the first information report before submitting his report under Section 173(2) Cr.P.C.

19. Undisputedly, the proceedings that are being undertaken under the provisions of criminal law would take their own course and the civil suit would reach to its logical conclusion in due course after trial. Undisputedly, any finding recorded during investigation or even the result of the investigation would not affect the the jurisdiction of the civil court as the same is not binding on the civil court. Both the laws operate in a different field. The investigating officer is yet to file his report under Section 173(2) Cr.P.C. Even if any expert opinion is taken by the investigating officer, how far it would carry its weight is yet to be seen in due course by the court of competent jurisdiction, whether criminal or civil in their own field and jurisdiction.

20. In the opinion of the court, the court below has rightly observed that regarding the document, copy whereof is supplied, no expert opinion is being sought by the court. Only question is as to whether copy of a document is to be supplied by the civil court in whose custody the document is placed in a sealed cover or not. The refusal of supply of copy of the document, in the opinion of the court, prima facie, would amount to interfering in the investigation of the allegations made in the first information report.

21. For the reasons noted above it is not necessary to refer to the provisions of Section 94(e), Order 39 Rule 7(c) CPC and Sections 91 and 195 Cr.P.C.

22. Under such circumstances, I do not find any legal infirmity or the jurisdictional error in the order impugned herein and I do not find to be a fit case for exercising my powers under Article 227 of the Constitution of India.

23. Present petition is devoid of merits and is accordingly dismissed.

Order Date :- 16.5.2018

Lalit Shukla