Vipin Gulia vs State (Govt. Of Nct Of Delhi)
2016 Latest Caselaw 5812 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
    +    CRL.M.C. No.3101/2016

                                   Date of Decision: September 05, 2016

         VIPIN GULIA                                     ..... Petitioner

                        Through    Mr.Deepak Gandhi, Adv.

                        versus

         STATE (GOVT. OF NCT OF DELHI)                 ...... Respondent
                        Through    Ms.Meenakshi Chauhan, APP.


         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present petition has been filed under Section 482

Cr.P.C. for quashing of FIR No.476/2009 registered under

Section 506 IPC together with all the subsequent proceedings

arising therefrom.

2. The brief facts of the case, leading to the filing of

present petition are that on 05.11.2009, a complaint was

received at P.S Dwarka Sector-23, wherein complainant Sarita

alleged that his son Sandeep Ahuja had been shot on

09.10.2009 by one Sachin Gulia. It was further alleged that on

05.11.2009, petitioner/accused had called Jyoti, daughter-in-

law of complainant and threatened her that in case, matter is

not compromised then he would kill all the family members.

Since the complaintant had disclosed a non-cognizable offence

U/s 506 IPC, therefore, IO SI Mahesh Soni applied for

permission from the Magistrate to investigate the matter and

arrest the accused and the same was granted by Magistrate vide

order dated 19.11.2009. Thereafter, FIR was registered vide

No.476/2009, P.S Sector-23 Dwarka and matter was taken up

for investigation.

3. After completion of investigation, petitioner/accused

was charge sheeted for the offence U/s 506 IPC. Thereafter the

Trial Court after hearing the arguments on the point of charge

vide order dated 04.02.2011 held that charge u/s 506 IPC was

prima facie made out against petitioner/accused. Thus,

petitioner was charged for the offence U/s 506 IPC and matter

was put up for trial. During the course of trial, the complainant

and her daughter-in-law were examined as PW-2 and PW-3

respectively. The petitioner/accused thereafter filed an

application under Section 239 Cr.P.C seeking discharge, which

was dismissed by the Trial court vide order dated 05.01.2016.

Aggrieved by the same, the petitioner/accused filed a revision

petition before the Sessions Court, which was dismissed vide

order dated 08.06.2016. Being aggrieved, the petitioner has

filed the present petition.

4. The learned counsel for the petitioner in support of his

petition has taken the grounds that entire proceedings

conducted before the trial court were void ab-initio as in a non-

cognizable offence, police had no power to register a FIR and

carry out the investigation. It was further submitted that no

charge sheet could have been filed in the instant case and only

a non-cognizable report could have been filed and that even the

arrest of petitioner was not proper as required permission of

the Magistrate was not sought for the arrest of the

petitioner/accused. It was further submitted that since

prescribed procedure for investigation of non-cognizable

offence as provided U/s 155 Cr.P.C was not followed,

therefore entire proceedings were void ab-initio. Accordingly,

it was prayed that impugned order be set aside and petitioner

be discharged. In support of his contention, petitioner has

relied upon the judgment of Supreme Court of India delivered

in Keshav Lal Thakur Vs. State of Bihar, 1996 VII AD SC

838 and that courts below have failed to appreciate that if these

types of illegal and unlawful activities will not be actionable as

per the provisions of law, then definitley the right, title and

itnerest of bona fide persons of society will be defeated; and

that in the present case, the petitioner/accused has been falsely

implicated after a PCR call was made against the then IO SI

Mahesh Soni as he had abducted the petitioner/accused

unlawfully from his shop under the shadow of the case in

which FIR has been registered against the real brother of the

petitioner/accused.

5. The learned APP for the State, per contra, stated that

there is no illegality or perversity in the impugned order as

Trial court after perusing the judgment of Apex Court in

Keshav Lal's case (Supra) had dismissed the application of

petitioner seeking discharge. It was submitted that in the

present case, since the IO had sought prior permission from

Magistrate to investigate a non-cognizable offence, therefore

the facts of the present case were distinguishable from the facts

mentioned in the Keshav Lal's case (Supra) and therefore, no

illegality was committed by Trial court.

6. In the present case, charge was framed against the

petitioner on 04.02.2011 and an application seeking discharge

of petitioner has been dismissed on 05.01.2016. The said order

dated 05.01.2016 has been upheld by the Sessions Court in

Crl.Revision Petition No.06/2016 filed by the petitioner. The

testimony of three prosecution witnessess has been recorded.

There is no provision for quashing of an FIR in a warrant trial

case especially when the prosecution evidence is being

recorded in the matter and three witnesses including the

complainant have already been examined. Therefore, on this

ground alone, the present petition is not maintainable.

7. Even on merits, the present petition is not maintainable

as in the present case, a perusal of charge sheet reflects that IO

had obtained prior permission of Magistrate to investigate and

arrest in the non-cognizable offence u/s 506 IPC. Therefore,

compliance of Section 155 (2) of Cr.P.C was duly made.

8. The judgment relied upon by the petitioner in Keshav

Lal's case (Supra) is distinguishable as in the facts before the

Supreme Court of India, in a non-cognizable offence U/s 31 of

the Representation of the People Act, 1950, the matter was

investigated after registration of FIR without seeking any order

from the Magistrate. Accordingly, proceedings arising from

the FIR were quashed. However, in the present case as

discussed hereinabove, the requisite permission U/s 155(2) of

Cr.P.C was sought to investigate and arrest by the IO from the

Magistrate, therefore, no illegality was committed.

9. The contention of the learned counsel for the petitioner

that in a non-cognizable offence, no FIR could have been

registered and no charge sheet could have been filed U/s 173

Cr.P.C also deserves to be rejected. The reason for the same is

that as per Section 155(3) of Cr.P.C if the police has taken the

permission from the Magistrate to investigate the non-

cognizable offence, then officer in charge of the police station

can exercise all the powers which are available to him in a

cognizable case. Since in a cognizable case, police officer has

the power to register a FIR and on completion of investigation,

file a chargesheet U/s 173 Cr.P.C, therefore no illegality was

committed in the present case in either registering the FIR u/s

154 Cr.P.C or in filing the charge-sheet U/s 173 Cr.P.C.

Therefore, this contention is also accordingly rejected.

10. Also, since the application of the petitioner under

Section 239 Cr.P.C. has been dismissed, consequentially, the

provisions of Section 240 Cr.P.C. are to follow. In the present

case, the application seeking discharge under Section 239

Cr.P.C. was filed by the petitioner after framing of charge by

the Trial Court. It is a settled law that provisions of Section

240 Cr.P.C. are subsequent to Section 239 Cr.P.C. and not vice

versa. Once a charge has been framed in the matter, there is no

question of an application Section 239 Cr.P.C. being

entertained as the said remedy can be availed only prior to

framing of charge. In warrant trial cases instituted upon the

investigation conducted by police, after framing of charge

under Section 240 Cr.P.C., the consequential result would be

either acquittal or conviction of the accused as provided under

Section 248 Cr.P.C. and not a discharge as sought by the

petitioner/accused.

11. In the light of above discussion, I do not find any ground

to quash the FIR in question exercising powers under Section

482 Cr.P.C. Hence, the present petition is accordingly

dismissed. However, the petitioner would be at liberty to argue

the contentions made in the present petition at the time of final

arguments.

(P.S.TEJI) JUDGE SEPTEMBER 05, 2016 dm/dd