Smt. Mithlesh vs The State Of N.C.T. Of Delhi & Ors.
2009 Latest Caselaw 3124 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Rev. P. No. 337/2008

                                         Reserved on : 29.07.2009
                                       Date of Decision : 12.8.2009

Smt. Mithlesh                                       ......Petitioner
                                 Through:   Mr.    Sushant Mukund,
                                            Adv.

                                  Versus

The State of N.C.T. of Delhi & Ors.                ...... Respondents
                           Through:         Mr. Pawan Bahl, APP
                                            Mr. Jagdish Chandra,
                                            Adv. for Respondents no.
                                            2 & 3.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers can be
        allowed to see the judgment?                   YES
2.      To be referred to the Reporter or not ?        YES
3.      Whether the judgment should be reported
        in the Digest ?                                YES

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the

order dated 5th May, 2008 passed by the learned Metropolitan

Magistrate, by virtue of which he had rejected the prayer of the

petitioner for giving a direction under Section 156 (3) Code of

Criminal Procedure, 1973 to the local police to register an FIR

and investigate the matter.

2. That briefly stated the facts of the case are that the

petitioner is claiming herself to be the actual owner of the

property bearing No.E-643, Harijan Basti, Ashok Nagar, Near

DDA Flats, Shahadara, Delhi-110093. She filed a civil suit

bearing no. 254/2000 titled Smt. Mithlesh Vs. Shiv Lal & Ors.

against the respondents no. 2 and 3 which is stated to be

pending in the Court of Sh. M.P. Singh, the learned Civil Judge,

Karkardooma Courts, Delhi. It is alleged in the petition that the

respondents have fraudulently used forged documents and got a

decree in their favour where the petitioner was not even a party.

It was alleged that in the said suit forged documents like General

Power of Attorney, Agreement to Sell and receipt were alleged to

have been filed. All these documents were executed on dated

15th May, 1985. The petitioner's case is that she checked the

record of the Sub Registrar-IV, Seelampur, Delhi and learnt that

the documents in question were actually registered in favour of

one Smt. Kela Devi and not the respondents no. 2 and 3. The

petitioner is purported to have obtained a certificate dated 3rd

May, 2006 in this regard also. The petitioner filed a complaint

with the Commissioner of Police on 27th July, 2006 complaining

about the said forged documents and prayed for registration of

an FIR against the respondents no. 2 and 3 for an offence under

Section 420/468/471 IPC. It is alleged that despite the opinion

of the Director (Prosecution), Government of NCT of Delhi the FIR

was not registered which constrained the petitioner to file the

writ petition bearing no.2999/2006 seeking a direction to the

local police for registration of an FIR. The said prayer of the

petitioner for registration of an FIR was disallowed by the learned

Single Judge.

3. An appeal against the said order of the learned Single

Judge was filed which was also dismissed by the Division Bench

on 2nd February, 2007. However, the Division Bench observed

that it is open to the petitioner to file an appropriate application

under Section 340 Cr.P.C. if so advised.

4. It is alleged that the petitioner filed an application under

Section 340 Cr.P.C. before the learned Civil Judge where the civil

dispute is pending adjudication between the petitioner and the

respondents. The grievance of the petitioner is that after

dismissal of the appeal by the Division Bench, he filed a criminal

complaint before the Elaka Magistrate under Section 156(3) read

with section 200 Cr.P.C. praying for a direction to the local police

to register an FIR and investigate into the matter. However, the

said prayer of the petitioner was dismissed by the learned

Magistrate vide order dated 15th May, 2008 and the case was

adjourned for recording of pre-summoning evidence.

5. The petitioner feeling aggrieved by the aforesaid order has

chosen to file the present criminal revision petition.

6. I have heard the learned counsel for the petitioner as well

as the learned counsel for the respondent apart from learned

APP.

7. The main contention of the learned counsel for the

petitioner is that a perusal of the impugned order would show

that the learned magistrate has dismissed the prayer of the

petitioner for direction to the local police to register an FIR and

investigate into the matter under Section 156 (3) Cr.P.C.

primarily on the ground that the appeal of the appellant was

dismissed by the Division Bench while giving the liberty to the

complainant to move appropriate application under Section 340

Cr.P.C. It was contended by the learned counsel for the

petitioner that Section 340 Cr.P.C. would be applicable to a

situation only when the judicial proceedings are going on and not

to a forgery or manufacturing of a document prior to the

pendency of the judicial proceedings. To elaborate this

submission further the contention of the learned counsel for the

petitioner was that the documents like GPA, receipt, Will etc.

were forged by the respondents no 2 and 3 before the filing of the

documents and accordingly, Section 340 Cr.P.C. would not be

applicable. The learned counsel for the petitioner has placed

reliance on the case titled Iqbal Singh Marwah & Anr. Vs.

Meenakshi Marwah & Anr. (2005) 4 SCC 370.

8. The second contention of the learned counsel for the

petitioner was that merely on account of the fact that the writ

petition and the appeal of the petitioner were dismissed, it did

not preclude the petitioner from filing the complaint under

Section 200 read with section 156 (3) Cr.P.C. for a direction to

the local police to register an FIR and then investigate the matter

as a serious cognizable offence as reported by the complainant

disclosing forgery and fabrication of documents in respect of a

property which were being used as genuine documents. It was

also contended that the petitioner was ill advised earlier to rush

to the High Court for the purpose of seeking a Mandamus to the

local police for registration of an FIR which actually should not

come into the way of the petitioner seeking the remedy under

Section 156 (3) Cr. P.C. Reliance in this regard was placed on

the case titled Sakiri Vasu Vs. State of U.P. & Ors. 2008 (1)

JCC 113 wherein the Hon'ble Supreme Court has observed that

it is open to an aggrieved person in the event of refusal by the

local police to register an FIR to approach to the Superintendent

of Police under Section 154 (3) Cr. P.C. or the Magistrate who

may direct the registration of an FIR and also give a direction for

proper investigation into the matter.

9. The learned APP has refuted the arguments of the learned

counsel for the petitioner by urging that since the petitioner has

already failed in getting a direction to the local police to register

an FIR, therefore, the learned Magistrate was well within its

power to refuse to give a direction to the local police to register

an FIR under Section 156(3) Cr.P.C. and investigate the matter.

However, the learned Magistrate has rightly not thrown out the

complaint of the petitioner and has directed the complainant,

namely, the petitioner to adduce his evidence. As regards the

Iqbal Singh Marwah's case (supra) there is no dispute that

Section 340 Cr.P.C. does not come into way in the instant case

because the documents are alleged to have been prepared by the

petitioner and thereafter filed in the Court.

10. I have carefully considered the submissions of the learned

counsel for the parties and perused the record.

11. I fully agree with the contention of the learned counsel for

the petitioner in terms of the pronouncement of the Apex Court

in case titled Iqbal Singh Marwah's case (supra) that there is a

fine distinction regarding the applicability of provision under

Section 340 Cr.P.C. Iqbal Singh Marwah's case (supra) clearly

enumerates that if there is a commission of an offence of forgery

during the course of Trial then there is a bar under Section

195(1)(b)(ii) in as much as no Court shall take cognizance of any

such offence except on the complaint in writing by the Court

concerned. This is on account of the fact that this is treated as

an offence against the Court or against the administration of

justice, and therefore, the condition has been put that the

criminal justice machinery should not be put into operation

without the permission or the complaint being made by the

complainant which happens to be the Court itself or an officer of

the Court.

12. This is in contradiction where the offence itself has not

taken place during the course of judicial proceedings but prior to

that. In the instant case admittedly the allegation made by the

complainant petitioner is that the respondent no. 2 has filed the

documents like GPA, Receipt, WILL etc. and thereafter obtained a

decree against the petitioner. Thus, prima facie the petitioner is

right in urging that Section 340 Cr. P.C. is not attracted in the

case of the petitioner. If that be so nothing precludes the

petitioner from filing the complaint as he does not require the

permission of the Court. The complaint which may be initiated

by the petitioner will not be thrown out on account of the locus

standi because Iqbal Singh Marwah's case (supra). Curiously

enough in the instant case the petitioner of his own admission

has already filed an application under Section 340 Cr.P.C. in the

civil case pursued by him, therefore, the ground which has been

set up by the learned counsel for the petitioner that the learned

Magistrate has failed to appreciate the fact that there is a

distinction between the documents which were forged outside the

Court and then filed in Court or the documents which were

fabricated or tampered with during the judicial proceedings does

not have any bearing so far as the case of the petitioner is

concerned. This ground does not result in any impropriety,

illegality or incorrectness in the order passed by the learned

Magistrate and accordingly this submission is without any merit.

13. The second ground which has been raised by the learned

counsel for the petitioner that in terms of Sakiri Vasu's case

(supra) the petitioner was well within his right to have filed a

criminal complaint under Section 156(3) read with section 200

Cr.P.C. and the learned Magistrate ought to have given a

direction to the local police to register an FIR, and then

investigate the matter. I am of the view that the learned

Magistrate was perfectly right in not giving such a direction to

the local police to register an FIR and investigate into the matter.

This is on account of two reasons. Firstly, the petitioner having

exhausted his remedy in the High Court by filing the Writ in this

regard and then filing an appeal and failing on both fronts had

chosen to have a second go by filing the criminal complaint

under Section 153 (3) read with section 200 Cr.P.C. Therefore,

petitioner cannot be permitted to circumvent the law and take

different recourse for the same purpose. This is in fact a gross

abuse of the processes of the law. Secondly, the learned

Magistrate has not dismissed the complaint of the petitioner

though it has refused to direct the registration of an FIR and the

investigation into the matter. It has adjourned the matter and

given the direction to the petitioner/complainant to get the

statement of the complainant recorded and adduce such other

evidence as the petitioner may like to examine in support of its

complaint. Section 190 Cr.P.C. clearly lays down that the

cognizance of a matter can be taken on the basis of the local

police report or on the basis of the complaint or on the basis of

the police report or by the Court suo moto. In the instant case,

the petitioner has put the criminal justice machinery into motion

by a private complaint. Having chosen to do so it is not

incumbent in each and every case that the Magistrate must

direct registration of an FIR and the consequent investigation by

the local police. The Magistrate can take an inquiry under

Section 200 Cr.P.C. by examining the complainant and the other

witnesses which are produced and then proceed to deal with the

complaint under Sections 202 to 204 Cr.P.C. It seems that the

petitioner wants to bring bare pressure on the other side by

registration of an FIR. This is so on account of the fact that

once an FIR is registered other side namely the accused persons

would be on the run because they will face an imminent threat of

arrest and secondly it becomes convenient for the complainant as

well because it becomes a State case where the presence of the

complainant is not required on every date of hearing. That is the

modus operandi which is invariably adopted and aimed at by

every petitioner. This cannot be permitted to be done more so in

a case of a present nature where the petitioner is in litigation

with the accused persons/respondents. Therefore, I am of the

considered view that the learned Magistrate was well within its

right in refusing to give directions to the local police to register

an FIR and investigate into the matter. There is no merit in the

two submissions made by the learned counsel for the petitioner

finding fault in the order passed by the learned Magistrate.

There is no illegality, impropriety or incorrectness in the order

dated 5th May, 2008 passed by the learned Magistrate and

accordingly the present petition is totally misconceived and the

same is dismissed.

V.K. SHALI, J.

August 12, 2009 KP