S S Sandhu vs State
2014 Latest Caselaw 2683 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 3476/2013

                                Date of decision: 26th May, 2014

       S S SANDHU                                 ..... Petitioner
                          Through:      Mr.Mohit Mathur, Adv.

                          versus

       STATE                                       ..... Respondent
                          Through:      Mr.Yogesh Verma, APP for the
                                        State.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

Crl.M.A. Nos.14340/2013 This is an application under Section 340 Cr.P.C. filed on behalf of the petitioner.

Counsel for the petitioner does not press this application. The application is dismissed as not pressed.

Crl.M.A. No.14342/2013 This is an application for impleadment filed on behalf of Dr.Sanju Singh. No one appeared for the applicant. It appears that the applicant is not interested in pursuing the application.

Hence the application is dismissed in default. CRL.M.C. 3476/2013

1. The petitioner, S.S. Sandhu, has filed the present petition under Section 482/483 of the Code of Criminal Procedure (hereinafter referred to as „Cr.P.C.‟) read with Article 227 of the Constitution of

India assailing the order dated 24.07.2013 passed by learned Additional Sessions Judge-II, FTC, Patiala House, New Delhi.

2. In nutshell, the brief facts of the case are that the petitioner filed complaint dated 01.01.2013 to the SHO, PS R.K. Puram, New Delhi. The petitioner moved an application under Section 156(3) Cr.P.C. on the allegations, inter alia, that he was serving as an Inspector General of Police with CRPF and was due for further promotion to the rank of Additional DG and so on, as the complainant is one of the meritorious and decorated officer in CRPF having excellent record of services. The accused persons after coming to know that complainant is under consideration zone for the promotion, the proposed accused persons along with some unknown persons were seeking opportunity to cause wrongful loss to the complainant in order to ensure that the complainant should not get the promotion to the rank of Inspector General of Police. The proposed accused persons hatched a conspiracy. Dr.Sanju Singh committed a misconduct in his profession when he purchased a flat without informing to the concerned department. The complainant being incharge of RAF Administration at the RAF Headquarters, R.K. Puram was assigned to inquire in the said matter by the concerned department. The proposed accused Dr.Sanju Singh tried to influence the complainant but the complainant being a man of steel nerves stood by the rule of law and did not yield to the pressure of Dr.Sanju Singh. Due to said reason, Dr.Sanju Singh enraged against the complainant and joined hands with some unknown conspirators in the Ministry of Home Affairs along with other proposed co-accused persons and forged/tampered the Medical Health Card and Medical Report of the complainant during the period 01.03.2011 to 01.07.2011 by making certain cuttings, over-writings, use of white fluids and altered the medical records and medical health

card of the complainant. The proposed accused persons hatched the conspiracy by tampering and fudging complainant‟s medical report and medical health card in order to cheat the Government of India as well as complainant and in order to cause wrongful loss to the complainant. A copy of Medical Health Card which bears date of signatures of the doctors (Board of Members) as 25.03.2011 will prove that the proposed co-accused have committed the forgery and fabricated the documents. The complainant made representation to the Secretary, Ministry of Home Affairs, Government of India for making an enquiry in this regard, who after considering the record directed that the concerned record be examined by CFSL. The Director, Central Forensic Laboratory submitted a report to the Home Secretary that the medical record in question were forged by the accused persons. The Home Secretary, Government of India ordered detailed inquiry after putting the accused persons under suspension. It is also alleged by the complainant that on 23.01.2012, complainant came to Delhi due to some official work and went to see his family and was shocked to see that his family was under threat at the hands of the proposed accused persons and the wife of complainant was terrorized by the proposed accused persons. The complainant reported the matter to the senior officers by fax i.e. Commissioner of Police, DG(NSG) and DG (CRPF), but to no avail.

3. Vide order dated 27.02.2013, learned Metropolitan Magistrate, Delhi directed for registration of FIR.

4. Against the said order dated 27.02.2013, State filed Crl. Rev. No.48/2013. Vide impugned order dated 24.07.2013, learned Additional Sessions Judge-02, New Delhi allowed the revision petition and set aside the order passed by the Metropolitan Magistrate, New Delhi.

5. Feeling aggrieved by the said order, the petitioner has preferred the present petition.

6. Learned counsel for the petitioner vehemently argued that the respondent has relied upon documents which were not placed on record before Metropolitan Magistrate, New Delhi at the time when the direction for registration of FIR was issued. The respondent, State was not an aggrieved party in the present case.

7. The counsel for the petitioner further contended that the Metropolitan Magistrate, Delhi passed an order for registration of FIR with a view to ascertain the truth in the allegations made by the complainant. Relying upon judgment in Madhu Bala vs.Suresh Kumar & Ors., 1998 SCC (Cri) 111, the counsel for the petitioner submitted that the order dated 27.02.2013 passed by Metropolitan Magistrate, New Delhi directing the investigation under Section 156(3) Cr.P.C. is valid.

8. Per contra, learned APP for the State urged that the medical examination of the petitioner/complainant was conducted by Dr.S.N. Kumar and his team report was counter signed by Dr.A.K. Dhawan. The doctor had signed the correction and there is no question of any act of forgery.

9. I have given my anxious thought to the submissions made by learned counsel for the petitioner and learned APP for the State.

10. It is well settled law that when criminal complaint is filed before the Magistrate and upon perusal it is found that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the

complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.

11. The Apex Court in Mona Panwar vs. High Court of Judicature of Allahabad through its Registrar & Ors. (2011) 3 SCC 496, observed as under:

"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of the High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of the Code.

23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."

12. The Hon‟ble Supreme Court of India in Madhu Bala's case (supra) observed:

"6. Coming first to the relevant provisions of the Code, Section 2(d) defines "complaint" to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report. Under Section 2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which a police officer may in accordance with the First Schedule (of the Code) or under any other law for the time being in force, arrest without a warrant. Under Section 2(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code. Chapter XII of the Code comprising Sections 154 to 176 relates to information to the police and their powers to investigate. Section 154 provides, inter alia, that the officer in charge of a police station shall reduce into writing every information relating to the commission of a cognizable offence given to him orally and every such information if given in writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Section 156 of the Code with which we are primarily concerned in these appeals reads as under:

"(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."

7. On completion of investigation undertaken under Section 156(1) the officer in charge of the police station is required under Section 173(2) to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government containing all the particulars mentioned therein. Chapter XIV of the Code lays down the conditions requisite for initiation of proceedings by the Magistrate. Under sub-section (1) of Section 190 appearing in that Chapter any Magistrate of the First Class and any Magistrate of the Second Class specially empowered may take cognizance of any offence (a) upon receiving a "complaint" of facts which constitutes such offence; (b) upon a "police report" of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Chapter XV prescribes the procedure the Magistrate has to initially follow if it takes cognizance of an offence on a complaint under Section 190(1)(a).

8. From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate police station under Section 156(3) for investigation. Once such a direction is given under sub-section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a "police report" in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b) -- but not under 190(1)(a). Since a complaint filed before a Magistrate cannot be a "police report" in view of the definition of "complaint" referred to earlier and since the investigation of a "cognizable case" by the police under Section 156(1) has to culminate in a "police report" the "complaint" -- as soon as an order under Section 156(3) is passed thereon -- transforms itself to a report given in writing within the

meaning of Section 154 of the Code, which is known as the first information report (FIR). As under Section 156(1), the police can only investigate a cognizable "case", it has to formally register a case on that report.

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10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a "complaint" the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to "register a case" makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable "case" and the Rules framed under the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be "to register a case at the police station treating the complaint as the first information report and investigate into the same."

13. In the instant case, learned Metropolitan Magistrate observed that the complainant has made the allegations of cheating, forgery and criminal conspiracy, on the part of the proposed accused persons with regard to his own medical record. There are evidently cuttings in the said medical record. The questions: who made those cuttings? Under what circumstances those cuttings were made? Why those cuttings were made? Why the maker of those cuttings did not put counter sign on the said cuttings and questions of like nature, need investigation.

The said points need thorough investigation which can be done by the police after FIR is registered.

14. Under these circumstances, learned Metropolitan Magistrate, New Delhi had exercised the judicial discretion envisaged under Section 156(3) Cr.P.C. and directed the concerned SHO to register FIR.

15. In view of the aforesaid discussion, the petition succeeds. The Additional Sessions Judge, New Delhi had no occasion to interfere with the discretion of Metropolitan Magistrate, Delhi. Thus, the impugned order dated 24.07.2013 passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi is set aside and the order dated 27.02.2013 passed by learned Metropolitan Magistrate, Delhi is restored.

16. The petition is, accordingly, disposed of. Crl.M.A. Nos.12743/2013 & 14343/2013 The applications are dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE May 26, 2014 gm