Shri Rajiv Garg vs State
2009 Latest Caselaw 4438 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI


                          W.P.(Crl.) NO. 918/2008



                          Judgment delivered on: November 03,2009



Shri Rajiv Garg                                       .....Petitioner.


                          Through:      Mr. Anil Kumar for the petitioner.


                               versus

State                                           ..... Respondents

                          Through: Ms. Meera Bhatia, ASC for the State.
                                     Mr. S.P. Mehta for the respondent.

CORAM:


HON'BLE MR. JUSTICE KAILASH GAMBHIR,



1. Whether the Reporters of local papers may                      Yes
    be allowed to see the judgment?


2. To be referred to Reporter or not?                              Yes



W.P.(Crl.) No. 918/2009                                          Page 1 of 11
 3. Whether the judgment should be reported                    Yes
     in the Digest?




KAILASH GAMBHIR, J. Oral:
*

By this .petition filed under Articles 226 and 227 the

petitioner seeks following directions:

i). Pass an appropriate writ, order or direction thereby

quashing and setting aside the impugned order dated 18.9.2007

passed by Sh. Sanjay Khanagwal, Metropolitan Magistrate, Rohini,

Delhi in the Criminal Case No. 1732/2007 titled as Sh. Rajiv Garg

Vs. Sh. Pradeep Sharma & Ors. and also the impugned order dated

14.02.2008 passed by Sh. V.P. Vaish, Addl. Sessions Judge, Delhi

and to issue a direction to the respondent No.2 to lodge an FIR

against the respondent Nos. 3 to 7 and to investigate the matter

as per law.

ii) Pass any other order deem fit and proper in the

circumstances of the case in favour of the petitioner and against

the respondents.

The brief facts leading to the present petition are :-

Petitioner had purchased a property bearing No.201

Rajouri Place, situated at J-1/162, Rajouri Garden, New Delhi on

12.07.1999 after paying the small consideration amount of

Rs.2,40,000/- to respondent No.3. Sh. Pradeep Kumar, the

respondent No.3 after receipt of amount from petitioner executed

transfer documents i.e. Agreement to Sell, GPA, Receipt, Will etc.

The petitioner took possession of property on 12.7.1999. The

respondent No.3 made illegal demand of Rs.1,00,000/- and on

refusal by the petitioner the respondent No.3 attempted to take

forcible possession of the property in question. A suit for

permanent injunction against respondent No.3 was filed before the

learned Civil Judge where the court passed order dated 7.8.2001 in

favour of plaintiff thereby protecting possession of a suit property.

Respondent No.4 wife of respondent No.3 was working as Sub

Inspector with Delhi Police. With influence and use of her powers,

she got a FIR No.822/2001 lodged. With the continuing threat of

forcible illegal dis-possession from the suit property, petitioner

filed a Contempt Petition bearing No.98/2003 titled as Sh. Rajiv

Garg Vs. Sh. Pradeep Sharma before the learned Civil Judge. The

learned Civil Judge passed an order dated 3.4.2007 that petitioner

was in possession of suit property and the respondent no 3 forcibly

took the possession of property by getting FIR lodged. The Court

directed the respondent No.3 to hand over possession of property

bearing No.201, Rajouri Place, J-1/162, Rajouri Garden, New Delhi.

Despite the orders of the learned Judge directing the respondent

no. 3 to restore possession, a complaint was lodged for not

restoring back the possession but no action was taken on account

of police officials being involved. A criminal complaint

No.1732/2007 was lodged under Sections 174, 166, 167, 182, 420,

465, 468, 448, 384, 506, 120-B and 34 along with application

under Section 156(3) of Cr.P.C. before Sh. Sanjay Khanagwal, MM,

Rohini. The MM vide order dated 18.9.2007 directed pre-

summoning complainant evidence under Section 200 Cr.PC and

disposed of application under Section 156(3).

Aggrieved by the order of learned Metropolitan

Magistrate, Delhi a revision petition was filed by the petitioner.

The ASJ, Delhi, vide order dated 18.9.2008 upheld the

order of the Trial Court by holding that there is no illegality or

infirmity in the order passed by learned Trial Court.

Aggrieved by the said orders, the petitioner filed the

present writ petition.

Counsel for the petitioner submits that the petitioner

had purchased the property bearing no. 201, Rajouri Palace, J-

1/162 Rajouri Garden, New Delhi after paying consideration

amount of Rs. 2.40 lacs to respondent no.3 Pradeep Sharma.

Counsel further states that respondent no.3 after receiving the

said amount executed agreement to sell & purchase, GPA, will

and receipt in favour of the petitioner on 12.7.1999. It is further

stated that after full and final payment towards the sale price,

possession of the said property was handed over to the

petitioner. It is the case of the petitioner that he was in peaceful

possession of the said property but on 28.8.2001 an attempt was

made by the respondent no.3 to forcibly dispossess the petitioner

from his lawful possession. It is further submitted that the

employee of the petitioner was present at the site and at the time

of the said attempt the said employee of the petitioner lodged a

complaint with the police and simultaneously informed the

petitioner about such threats having been extended by the

respondents 3 and 4. Counsel submits that since respondent no.4

was a police officer, therefore, acting on behalf of all the

respondents, false case was registered against the said employee

vide FIR No.822/2001 dated 28.8.2001 under Sections 380/448/34

IPC. Counsel submits that no action was taken by the police on the

complaint lodged by the complainant and his employee. Counsel

for the petitioner has also placed reliance on the report of the

vigilance enquiry where the Vigilance Department has clearly

castigated the police officials who were found to be hand in glove

with Mr. Pradeep Sharma and his wife. The contention of the

counsel for the petitioner is that despite clear finding of the

Vigilance Department, the concerned Magistrate has directed

further enquiry in the matter by calling the complainant to give his

evidence. Counsel further submits that even the revisional court

has not appreciated the case of the petitioner and in a most illegal

manner upheld the order of the Magistrate. Counsel for the

petitioner also contends that the learned Magistrate has

committed grave illegality in giving hearing to the accused at the

preliminary stage of summoning the accused and such illegality

would clearly reflect perversity on the part of the learned

Magistrate in passing the order dated 18.9.2007.

The present petition is opposed by the State as well as by the

counsel for the respondent Nos. 3 and 4. Both the counsel submit

that the order of the learned Magistrate as well as the revisional

court does not call for any interference by this court as no final

decision has yet been taken by the court on the said complaint.

Counsel for the respondent contends that the court has merely

asked for the evidence of the petitioner but the petitioner has

been shirking to adduce his evidence or join the investigation.

Counsel further submits that civil disputes are pending between

the parties and the petitioner had filed the said complaint in

question after a lapse of about six years. Counsel further submits

that the petitioner has not filed any proof to show that the

petitioner was in possession of the said property as on the date

of the alleged dispossession. Counsel also submits that in the first

report of the Local Commissioner the possession of the petitioner

was shown by the Local Commissioner but that report was filed by

the L.C. at the back of the respondents and in the second report of

the L.C. the possession of the respondent no.3 was shown in the

said report. As far as hearing to the accused on 10.9.2009 is

concerned, counsel states that the accused had never appeared

before the concerned court but due to some oversight the court

has shown the presence of the counsel for the accused. Counsel

also submits that even no power of attorney has been filed to

represent the accused before the Trial Court.

I have heard learned counsel for the parties at

considerable length.

It is not in dispute that the petitioner had earlier filed a

suit for permanent injunction and thereafter also filed a suit for

possession and an ex-parte decree of possession under Section 6

of the Specific Relief Act was passed in favour of the petitioner and

the said decree has been stayed by the revisional court as per the

counsel for the respondent Nos. 3 and 4. In the present matter

disputed questions of facts are involved, therefore, I do not find

any illegality in the order passed by the learned M.M. calling upon

the petitioner to give his evidence.

In the case of Adalat Prasad vs Rooplal Jindal 113(2004)

DLT 356 (SC) scope of Section 482 Cr.P.C. was involved as to

whether the section 482 is applicable to disputed facts or not.

It was held that disputed facts cannot be resolved in proceedings

under section 482 Cr.P.C but have to await trial.

In Amitosh Moitra vs Ram Prakash 2005(121)DLT 278

this court observed that examination of reply filed by the

respondent was not to be examined under section 482 because

that would mean examining case on facts which can be done only

in trial and not in petition under section 482 of Cr.P.C. Disputed

question of facts have to be settled in trial.

It was held in BC Sharma vs Shree Bhagwati Enterprises

1999 (6) AD (delhi) 521 that disputed question of facts cannot

be decided in the present proceedings. Order of Metropolitan

Magistrate and Addl. Sessions Judge do not suffer from any

illegality. Hence no interference is required. Petition was

dismissed.

Considering the above cited cases it is apparent that the scope of

section 482 does not extend to cases where disputed facts are

involved.

It is a settled legal position that learned Magistrate upon

receiving a complaint under Section 200 of the Code of Criminal

Procedure may inquire into the case himself or by directing

investigation to be made by the police or by some other person as

he thinks fit. The Magistrate has been given an undoubted

discretion to be judicially exercised by him to come to the

conclusion for taking prima facie view on the averments made in

the complaint and the materials filed in support thereof. The

power is to direct such investigation through the police or through

some other person or by holding an enquiry himself.

In the present case instead of directing investigation by the

police the learned M.M. has merely directed the petitioner to

adduce evidence. I, therefore, do not find any illegality or

perversity in the order passed by the learned M.M. and the order

passed by the revisional court. The learned M.M. instead of

directing investigation to be made by the police has given the

directions for recording the evidence of the complainant so as to

reach to the bottom of the truth. Nevertheless, the learned M.M.

will take into consideration the report of the vigilance officer

wherein the officers of the police have been castigated being in

collusion with respondents 3 and 4.

The present writ petition is disposed of accordingly with the

above directions.

November 03, 2009                          KAILASH GAMBHIR,J
mg