Ashok Kumar Garg vs State Of Delhi & Others
2010 Latest Caselaw 1765 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CRL.M.C. 2106/2007

%                                   Date of decision : April 05, 2010

         ASHOK KUMAR GARG                  ..... Petitioner
                        Through           Mr. Anupam Sharma, Adv.

                        versus

         STAE OF DELHI & ORS                           ..... Respondent
                           Through        Mr. N. Hariharan and Mr. Atul
                                          Ahlawat, Advocates for the
                                          respondent.

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA

                                 ORDER

The petitioner, Mr. Ashok Kumar Garg had filed a private complaint

under Section 406/420/468/471/506/34 of the Indian Penal Code before

the Metropolitan Magistrate, with an application under Section 156(3) of

the Code of Criminal Procedure, 1973 (hereinafter referred to as the

Code).

2. On 18th October, 2003, after hearing the counsel for the petitioner

and perusing the facts stated in the complaint, the application under

Section 156(3) of the Code was allowed and the SHO, Police Station-

Punjabi Bagh was directed to register a FIR and conduct investigation.

Crl.M.C. No.2106/2007 Page 1

3. The police filed cancellation report under Section 173 of the Code

on 22nd March, 2004. The petitioner filed objections to the said

cancellation report. The objections filed by the petitioner were rejected

and vide order dated 29th May, 2004, the cancellation report filed by the

police, was accepted.

4. A revision petition filed by the petitioner was dismissed vide order

dated 4th April, 2007.

5. The impugned orders passed by the learned Metropolitan

Magistrate and the Additional Sessions Judge suffer from two legal

fallacies. Firstly, they have held that after the complaint has been referred

for investigation under Section 156(3) of the Code, the complainant loses

and does not have any right to lead evidence under Section 200 of the

Code and recourse to the said procedure is prohibited/barred. Secondly, it

has been held that as the alleged forged bills were relied upon by the

respondent in a civil suit and, therefore, provisions of Section 195 of the

Code are attracted and without permission of the civil Court, no complaint

that the bills were forged and fabricated can be entertained.

6. On the first issue, counsel for the petitioner has rightly relied upon

judgments of the Supreme Court in H.S. Bains Vs. The State (Union

Crl.M.C. No.2106/2007 Page 2 Territory of Chandigarh) 1980 CRL L.J. 1308, M/s India Carat Pvt. Ltd. Vs.

State of Karnataka 1989 SCC (Criminal) 306 and Minu Kumari Vs. State of

Bihar (2006) 2 SCC (CRL) 310. In these decisions it has been held that when

a private complaint is received by a Magistrate, he has several courses

open to him. He can take cognizance of the offence after examine the

witnesses. He can dismiss a complaint in case there is no sufficient ground

for proceeding further. A Magistrate under Section 202 of the Code also

has power to postpone issue of process and enquire into the matter

himself or direct investigation by police or stay proceedings. Another

course available to the Magistrate is to order an investigation to be made

by police under Section 156(3) of the Code. When the said order is made,

the police have to investigate the matter and submit a report. After

receiving report from the police, a Magistrate initiates process as

stipulated under Section 190 of the Code. Irrespective of the police report

whether or not a case is made out, a Magistrate can take cognizance of an

offence under Section 190(1)(b) of the Code. He can straight away issue

the process. The Magistrate is not bound by the conclusions drawn by the

police and may proceed to issue the process even if the police have

recommended that there is no sufficient ground for proceedings further. It

Crl.M.C. No.2106/2007 Page 3 is also open to the Magistrate to record statement upon oath of the

complainant and witnesses under Section 200 of the Code and thereafter

decided whether to dismiss the complaint or issue process. The mere fact

that the Magistrate had earlier ordered an investigation under Section

156(3) of the Code and received a report under the Section 173 of the

Code will not have the effect of total effacement on the power of the

Magistrate to proceed under Sections 200, 202 and 204 of the Code. In

H.S. Bains' case it has been observed as under:-

"Thus, a Magistrate who on receipt of a complaint, order an investigation under Section 156(3) and receives a police report under Section 173(1), may thereafter, do one of three things; (1) he may decided that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under section 190 (1) (b) on the basis of the police report and the process; this he may do without being bound in any manner by the conclusions arrived at by the police in their report (3) he may take cognizance of the offence under section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. He adopts the third alternative, he directly hold or direct any inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be."

Crl.M.C. No.2106/2007 Page 4

7. The second legal issue is also covered by the decision of the

Supreme Court in Iqbal Singh Marwah and Another Vs. Meenakshi

Marwah and Others 2005 SCC (CRL) 1101, in which it has been held in

paragraphs 25 and 33 as follow:-

"25. An enlarged interpretation to Section 195 (1) (b) (ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged documents or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, were the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.PC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e.

Crl.M.C. No.2106/2007 Page 5 during the time when the document was in custodial legis."

8. In view of the aforesaid, the impugned orders passed by the

Metropolitan Magistrate and affirmed by the Session Judge are set aside

and the matter is remanded back to the learned Metropolitan Magistrate

for fresh decision. It is clarified that the observations made in this order

are only for the purpose of the decision of the petition. Learned

Metropolitan Magistrate will apply his own mind. It is also clarified that

this Court has not expressed any opinion on whether or not evidence of

the witnesses are required to be recorded or sufficient grounds for issuing

process or not are made out. The question whether the respondent herein

has right to appear and heard is also left open and is not decided. Records

of the trial Court will be sent back.

9. The petitioner will appear before the trial Court on 26 th April, 2010,

when a further date of hearing will be fixed.

Dasti.

SANJIV KHANNA, J.

       APRIL 05, 2010
       NA




Crl.M.C. No.2106/2007                                                  Page 6