Surinder K. Vij vs State And Anr.
1996 Latest Caselaw 704 Del

JUDGMENT

N.G. Nandi, J.

(1) In this petition u/Section 482 of the Cr. P.C. (hereinafter referred to as "the Code"), the petitioner (accused) in the complaint filed u/Secs. 193, 199, 209 Ipc, P.S. Subzi Mandi, Delhi prays for quashing the process issued.

(2) The facts leading to the filing of this petition, as suggested from the record, shortly stated, are that a complaint was filed by one Ranvir Malik son of late Shri S.S. Malik against the petitioner alleging offences u/Section 193,199 and 209 Indian Penal Code in the Court of learned Metropolitan Magistrate; that the said complaint, by order dated 30.9.1991, by the Metropolitan Magistrate, Delhi was dismissed on the ground that the Additional Rent Controller was a "Court" within the meaning of Section 175 of the Code and the complaint having not been filed on the complaint of the Additional Rent Controller, was found to be bad in law; that against the said order of dismissal of the complaint respondent No. 2 filed a criminal revision application u/Section 397 of the Code before the Sessions Court; that learned Asj who heard the said criminal revision application decided the same against the petitioner, set aside the order passed by the Metropolitan Magistrate dismissing the complaint vide order dated 14.2.1994. Consequently the matter went back to the Court of Metropolitan Magistrate who by order dated 1.8.1994 issued summons to the petitioner for 29.11.94. It is this order of issue of summons which is assailed and sought to be set aside and quashed in this petition by the petitioner (original accused).

(3) It is submitted by Mr. Malhotra, learned Counsel for the petitioner that the complaint is an abuse of process of law; that Additional Rent Controller is a civil Court; that proceedings are pending before the Rent Controller and the plea taken in written statement in the rent matter by the petitioner would be adjudicated upon and during the pendency of the rent proceedings, respondent No. 2, the land-lord has filed this complaint just to pressurise the petitioner to succumb to his illegal pressure; that when the controversy is pending before the Rent Controller, no criminal complaint could have been filed by respondent No. 2 unless the Rent Controller has given the final order and u/Section 195(l)(b) of the Code unless Court itself has filed a complaint for the offences u/Secs. 193,199,209, Indian Penal Code the cognizance of the complaint could not have been taken by the Magistrate Court. As against this, it is submitted by Mr. Gandhi, learned Counsel for respondent No. 2 that the private complaint is maintainable for the aforesaid offences; that there is no complaint u/Secs. 199,209, IPC; that Section 36 of the Delhi Rent Control Act (hereinafter referred to as Drc Act) is not for Sections 193 and 228, Indian Penal Code only; that Additional Rent Controller is only a Court for the contempt and it is not a Court for the purpose of Section 195 of the Code.

(4) Section 36 of the Drc Act deals with the powers of the controller. Clause (b) of Sub-section (2) thereof provides that "any proceeding before the Controller shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860) and the Controller shall be deemed to be a Civil Court; within the meaning of Section 480 and Section 482 of the Criminal Procedure Code, 1898 (5 of 1898)".

(5) In the case of Manju Gupta v. M.S. Paintal learned Single Judge of this Court, while considering Sections 195(1 )(b) and (3) and Sections 467,471, Indian Penal Code observed that the Rent Controller is not a Court for the purposes of Section 195 of the Code and that the Magistrate can take cognizance of an offence u/Secs. 467/471 without complaint of Controller in proceedings before whom forged documents are used." In the case (supra) the Civil Suit between the parties was pending for recovery of arrears of rent against the accused filed by the complainant-landlord and during the pendency of the civil suit, the complaint alleging the user of the forged documents in the pending civil suit before the Rent Controller was filed and it is in light of this fact that this Court held as above.

(6) On behalf of the petitioner, reliance has been placed on the decision in the case of Chanderpal Singh and Others v. Maharaj Singh & Another . In the case (supra) offence u/Section 193, Indian Penal Code of filing a false affidavit before the Rent Control Officer was alleged and Sections 195(1)(b)(i) and (3), Ipc and Section 34(2) of U.P. Urban Building Acts 1972 came to be considered and it is held that the complaint by a Court is a pre-condition for taking cognizance of such offence by Criminal Court. In para 9 it is observed "Now, Sub-section (2) of Section 34 extracted here in before would show that the expression "District Magistrate" which would include any officer authorised by him to exercise, perform and discharge his powers, functions and duties, shall be deemed to be a Civil Court within the meaning of Sees. 480 and 482 of the Code of Criminal Procedure, 188. Sections 345 and 346 of the Code of Criminal Procedure, 1973, are corresponding to Sees. 480 and 482 of the Cr.P.C., 1898. As a corollary it would follow that the Rent Control Officer shall be deemed to be a Civil Court within the meaning of Sees. 345 and 346 of Cr.P.C., 1973 and in view of Sub-section (2) of S.34 of the Rent Act shall be a Civil Court for the purpose of Section 193, Ipc, Section 195(1), Cr.P.C. provides that the expression "Court' in Section 195(l)(b)(i) will include a Tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of the pre-condition for taking cognizance of an offence under Section 193, Ipc, viz. complaint in writing of the Court. In view of the specific provision made in Sub-section (2) of Section 34 of the Rent Act that for the purposes of Sees. 345 and 346 Cr.P.C., Rent Control Officer, assuming it to be a Tribunal as held by the High Court and not a Court, would be deemed to be a Civil Court and, therefore, for purposes of Sees. 193 and 228, Indian Penal Code a fortiori any proceeding before it would be a judicial proceeding within the meaning of Section 193, Ipc, if therefore, according to the complainant false evidence was given in a judicial proceeding before a Civil Court and the persons giving such false evidence have committed an offence under Section 193 Indian Penal Code in or in relation to a proceeding before a Court, no Court can take cognizance of such offence except on a complaint in writing of that Court. ..........If false evidence in the form of affidavits filed by the appellants was given before Rent Control Officer, a Civil Court for the purpose of Section 193, Indian Penal Code . that being a judicial proceeding Section 195(1 )(b)(i) would be attracted. For the purposes of Section 195(1 )(b)(i) a complaint by the Court is a pre-condition for taking cognizance. Therefore, apart from the two other offences, namely, one under S.199 and another under Section 191, the learned Chief Judicial Magistrate, secunderabad, had no jurisdiction to take cognizance of the offence under Section 193, Indian Penal Code ......." In para 14 it is observed that "'Acceptance or rejection of evidence by itself is not a sufficient yardstrick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. Day in and day out in Courts averments made by one set of witnesses are accepted and the counter averments are rejected. If in all such cases complaints under Section 199, Indian Penal Code are to be filed not only there will open up floodgates of litigation but it would unquestionably be an abuse of the process of the Court."

(7) SUB-SECTION (2) of Section 36 of D.R.C. Act provides that any proceeding before the controller shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code and the Controller shall be deemed to be a Civil Court within the meaning of Section 480 and Section 482 of the Cr.P.C. Thus it will be seen that by virtue of Sub-section (2) of Section 34 of the D.R.C. Act, proceedings before an Additional Rent Controller shall be judicial proceedings within the meaning of Sees. 193 and 228, Indian Penal Code and the Controller shall be the Court within the meaning of Sees. 480 and 482 of the Code. As observed by the Supreme Court, Sections 345 and 346 of the new Code are corresponding to Sections 480 and 482 of the old Code and as a corrollary it would follow that the Rent Control Officer shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of the new Code and consequently, a civil Court within the meaning of Sub-section (2) of Section 36 of the Rent Control Act. As per Sub-section (3) expression "Court" in Section 195(1)(b)(i) will include a Tribunal under a Central or Provincial or State Act, if declared by that Act to be a Court for the purpose of the Section.

(8) In the instant case, the complaint is for the offences u/Secs. 193,199 and 209 IPC. In my opinion, the principle laid down by the Supreme Court in the case (supra) will clinch the issue and the proceedings being an abuse of the process of Court would be liable to be quashed under the inherent powers of this Court/Section 482 of the Code as during the pendency of the civil litigation where the question about the nature and genuineness of document would be adjudicated upon by the Arc and it is only thereafter that the complaint, if any, required to be filed could be filed by the Arc and the complaint during the pendency of the civil suit much less by respondent No. 2, the land-lord could not have been taken cognizance of by the learned Metropolitan Magistrate for the offences u/Secs. 193,199 and 209 Indian Penal Code on the basis of a complaint filed before P.S. Subzi Mandi, Delhi.

(9) The respondent has relied on the decision in the case of P. Jayappan v. S.K. Perumal, First Income-tax Officer, Tuticorin . In the case before the Supereme Court, during the pendency of the reassessment proceed- ings, the I.T. Department instituted prosecution u/Secs. 376-C, 227 and 147 of the I.T.Act and Sections 193 and 196, IPC. The Supreme Court held the prosecution to be maintainable. In my opinion, the principle laid down in this decision would be of no application in the present case as the question involved here is altogether different. The respondent also relied on the decision in the case of M.S. Sheriff and Another v. State of Madras, and Others, . The question before the Supreme Court was one u/Secs. 195(3), 476B of the Code of Criminal Procedure and the appeal from the order of the Division Bench of the High Court. The Supreme Court held that the Court in passing an order under Section 476 should not express any opinion on the guilt or innocence of the accused. In my opinion the principle laid. down in this decision would be-of no application and, therefore, of no assistance to the respondent.

(10) In the result, the petition is allowed and the proceedings/complaint against the petitioner u/Secs. 193,199 and 209, Indian Penal Code before P.S. Subzi Mandi, Delhi filed by respondent No. 2 are quashed as the same is the abuse of the process of the Court within the meaning of Section'482 of the Code. Copy of this Judgment a hall be kept on the file of CrLM.(M) 2451/95.