Jai Kishan Sharma vs State
2009 Latest Caselaw 1517 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI
14
               Crl M C No. 5649/2006 & Crl M A 9620/2006

         JAI KISHAN SHARMA                          ..... Petitioners
                       Through: Mr. Narender Sharma, Advocate

                        versus

         STATE & ORS                                    ..... Respondents
                                 Through: MR. Pawan K. Behl, APP
                                 Mr. M.K. Sharma with Mr. Suryakant Singla and
                                 Mr. Shanto Mukherjee, Advocates for R-2.

         CORAM:
         HON'BLE DR. JUSTICE S.MURALIDHAR

         1. Whether Reporters of local papers may be
           allowed to see the judgment?                             No
         2. To be referred to the Reporter or not?                  Yes
         3. Whether the judgment should be reported in Digest?      Yes

                                  ORDER

20.04.2009

1. The prayer in this petition under Section 482 of the Code of Criminal

Procedure 1973 („CrPC‟) is for the quashing of FIR No. 92 of 2003 under

Sections 420/468/471/448/452 of Indian Penal Code („IPC‟) registered at

Police Station Nangloi, Delhi and all proceedings consequent thereto

pending in the court of the learned Metropolitan Magistrate („MM‟), New

Delhi.

2. The aforementioned FIR was registered at the instance of Jai Prakash

Sharma (Respondent No.2) who happens to be a younger brother of the

Petitioner Jai Kishan Sharma who is named as accused No.1 in the

aforementioned complaint. The allegation inter alia in the FIR was that the

complainant Jai Prakash Sharma had handed over a Maruti Car to the

Petitioner by remitting the first cash down payment for the same to the

dealer. He continued to pay the instalments to the Bank and in between he

also gave cash payment to his brother i.e. the Petitioner here. Earlier the

complainant had deposited a sum of Rs.1,80,000/- with the Petitioner and

when asked about it, the petitioner had shown a plot measuring about

150/200 sq.yards and the petitioner had advised the complainant to

construct a house thereon. Later it transpired that there was a dispute over

the land. When asked about the complete documentation, the Petitioner

avoided the question. It is stated that the disputes arose between the

brothers and later on the Petitioner started showing the property to other

parties and asked the complainant to vacate the house constructed by him.

It is further stated that on 18th January 2003 the Petitioner along with other

brother Mahavir Sharma got the complainant forcibly vacated from the

premises.

3. It is stated in the FIR that the Sub Inspector Sudesh Ranga entertained the

complaint of the complainant. On 7th February 2003 he got the case

registered and started investigation. He prepared the site plan and sized a

General Power of Attorney from the complainant and seized some other

documents as well.

4. In the final report filed in the matter it was indicated that the police

arrested Jai Kishan Sharma, Petitioner and the other accused and as per the

orders of the Assistant Commissioner of Police („ACP‟). The investigation

was entrusted to Inspector N.R. Naryan and later to Raj Kumar Sharma. In

the cancellation report it is stated that Sudesh Ranga had arrested the

accused persons by illegal methods and that no forgery has been committed

as alleged by the complainant. It was concluded that the complainant had

with malafide intention taken revenge against his brother Jai Prakash

Sharma and got some documents prepared in his own name whereas the

property was still in the possession of the Petitioner. It was also contended

that the complainant had failed to produce any evidence from which it

could be inferred that he gave any money to his brother Jai Kishan Sharma.

As regards the car it was stated that it had already been recovered for the

complainant by Sub Inspector Sudesh Ranga as it was registered in the

name of the complainant.

5. The learned MM considered the protest petition as well as untraced

report filed by the police. It was held that "careful perusal of complaint and

report under Section 173 CrPC reveals that whole investigation is

conducted to investigate the genuineness of ownership documents of both

the parties. However perusal of the complaint reveals that complainant

nowhere alleged the fabrication and production of any documents by the

accused. Complainant himself stated that no documents were prepared by

the accused nor any documents of the said plot were handed over to the

complainant by the accused. It appears that while conducting the

investigation, IO fails to look into the complaint of the complainant. It is

pertinent to mention that investigation should be conducted, keeping in

view complaint of the complainant and the offence disclosed by the

complainant in the complaint. Therefore in the present case investigation

should be conducted as per the complaint dated 18th January 2003 of the

complainant."

6. Accordingly the learned MM gave a direction rejecting the untraced

report and directing the matter to be reinvestigated through any competent

officer not below the rank of ACP in his direct supervision.

7. This petition was listed for hearing on 11th September 2006. While

notice was directing to issue to Respondents the impugned order was

stayed. A very detailed reply was filed by the Respondent No.2 to the

petition where it was pointed out that the learned MM had not taken

cognizance of the offence against the Petitioners. He had only rejected the

final report and directed investigation which he was competent to do. A

reference was made to the judgment of the Supreme Court in Hemant

Dhasmana v. CBI 2001 SCC (Crl) 1280. Reliance is also made to the

judgment in Minu Kumari v. The State of Bihar 2006 (2) JCC 769 and the

judgment of this Court in Laxmi Narayan Gupta v. Commissioner of

Police 2006 (2) JCC 1058.

8. As regards the maintainability of the petition at the instance of the

Petitioner, who has not yet been summoned by the learned MM, learned

counsel for the Petitioner was unable to satisfy this Court about the locus of

the Petitioner to challenge such order. It requires to be noticed that the case

is still at the pre-cognizance stage and the Petitioner is yet to be summoned.

The question of their being aggrieved by the order of the learned MM

rejecting the untraced report of the police and directing the investigation

does not arise.

9. It is accordingly held that the petition at the instance of Jai Kishan

Sharma who is yet to be summoned in FIR No. 92 of 2003, is not

maintainable as such. It is then submitted that the prayer in this petition for

quashing of the FIR itself. In order to appreciate the plea it has to been seen

whether on reading of the FIR as a whole it can be said that not even a

prima facie case is made out for proceeding against the Petitioner for the

aforementioned offence. This Court is unable to come to such a conclusion

on reading the FIR as a whole. Further the points raised by the Petitioner in

support of the prayer for quashing the FIR which cannot be entertained by

this Court in the proceeding under Section 482 CrPC. As already pointed

out the petition itself is premature since the Petitioner is yet to be

summoned in the aforesaid FIR.

10. Consequently while leaving it open to the Petitioner to raise all points

urged in this petition at the appropriate stage before the trial court as and

when the Petitioner is summoned in accordance with law, this petition is

dismissed. The interim order dated 11th September 2006 stands vacated.

The application also stands dismissed.

Crl M A No. 4177/09 (u/s 340 CrPC)

11. As far as this application under Section 340 CrPC filed by the Petitioner

is concerned, the same is not entertained as such since in any event the

decision of this Court has not been passed on the documents produced by

Respondent No.2 herein.

12. The trial court record be sent back immediately along with a certified

copy of this order to the concerned trial court.

S.MURALIDHAR, J APRIL 20, 2009 rk