Delhi High Court
Gajraj Singh vs State on 12 January, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 768/2008
GAJRAJ SINGH ..... Appellant
Through Mr. K.K. Sud, Sr. Adv.
Mr. Jayant, Sr. Adv.
Mr. Alok Rai, Adv.
versus
STATE ..... Respondent
Through
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 12.01.2009
1. We do not think the present appeal is maintainable under
Clause 10 of the Letters Patent Charter.
2. The appellant had filed a criminal complaint before a
Metropolitan Magistrate with a prayer under Section 156(3) of the
Code of Criminal Procedure, 1973, for registration of an FIR against
the accused persons. Learned Metropolitan Magistrate by judgment
dated 2nd July, 2008 declined and dismissed the said complaint.
3. This order of dismissal was made subject matter of challenge in
the writ petition Crl.No.940/08, in which the impugned order dated
31st July, 2008 was passed. The prayers made in the writ petition
read as under:-
"It is, therefore, most respectfully prayed
that this Hon'ble Court may be pleased to:-
I. Call for the trial court records and
II. Set aside the impugned order dated
02.07.2008 passed by Hon'ble Shri Parveen
Singh the Learned M.M. dismissing the
application of the Petitioner for directions U/s
156(3) Cr.P.C. to register an FIR against the
accused persons for commission of offences u/s
420, 467, 468, 471, 506 R/w 120 B of the IPC
vide its order dated 02.07.2008 and or
III. Further pleased to order the registration of
the FIR and investigate into the same as per law
expeditiously in exercise of its inherent and
supervisory powers and/or
IV. Direct the Learned Magistrate to issue
appropriate directions u/s 156(3) for registration of
FIR in accordance with law.
V. To pass any order or further orders which
this Hon'ble court may deem fit in the facts and
circumstances of the present case."
4. Prayers made and the facts stated above indicate that the writ
petition was filed under Article 227 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, 1973. In the
cause title or in the pleadings Article 226 of the Constitution of India
may have been mentioned but reference was incidental. In
substance, power and jurisdiction under Article 227 of the Constitution
of India and Section 482 of the Code of Criminal Procedure, 1973 had
been invoked. The order passed is also under the said provisions and
not under article 226 of the Constitution of India. It is obvious that order /
judgment of the Metropolitan Magistrate cannot be challenged in a writ
petition under Article 226 of the Constitution of India.
5. Mr. K.K. Sood, Sr. Advocate appearing for the appellant
submitted that a writ petition for registration of an FIR is not
maintainable in view of the decision of the Supreme Court in Sakaria
Vasu Vs. State of Uttar Pradesh, reported in (2008) 2 SCC 409 and
other cases and, therefore, the present writ petition is maintainable.
Admittedly in the present case, the appellant had filed the criminal
complaint before a Metropolitan Magistrate under Section 156(3) of
the Code of Criminal Procedure and had not invoked writ jurisdiction
under Article 226 of the Constitution of India. The complaint has
been dismissed. The appellant cannot now invoke writ jurisdiction.
6. In view of the above, it is clear that impugned order was passed
while exercising jurisdiction under Article 227 of the Constitution of
India and Section 482 of the Code of Criminal Procedure, 1973. Intra
Court appeal, therefore, is not maintainable against the impugned
order dated 31st July, 2008.
7. In these circumstances, we are not inclined to go into the merits
of the impugned order. Appeal is dismissed as not maintainable.
CHIEF JUSTICE
SANJIV KHANNA, J.
JANUARY 12, 2009
NA/VKR
