Tarun Kumar & Ors vs State Of Nct Of Delhi & Ors
2018 Latest Caselaw 6109 Del

$~5
       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Decided on: 08th October, 2018

+      CRL.M.C. 1369/2015 and Crl. M.A. Nos.5003/2015, 10282-
       10283/2015 and 21044/2017
       TARUN KUMAR & ORS                   ..... Petitioners
                   Through: Mr. Sunil Fernandes and Mr.
                   Arnav Vidyarthi, Advocates


                          versus

       STATE OF NCT OF DELHI & ORS          ..... Respondents
                     Through: Mr. Arun Bhardwaj, Advocate for
                     R-2 & 3

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                    ORDER (ORAL)

1. The petitioners are facing prosecution as accused in the criminal case in the court of the Additional Chief Metropolitan Magistrate (South-East) at Saket Court Complex, arising out of the first information report (FIR) no.43/11 involving offences punishable under Sections 120B, 409, 420 of Indian Penal Code, 1860 (IPC) of police station Economic Offences Wing. On the basis of the report (charge-sheet) under Section 173 of the Code of the Criminal Procedure, 1973 (Cr. PC) submitted upon conclusion of investigation into the said FIR, the Magisterial court in Delhi took cognizance and issued process against them by order dated 04.06.2012. It appears that besides them, there are six other accused in the array, they being

a company known as DD Build Well Pvt. Ltd., DD Group, DD Township, DD Infrastructure and two other individual accused namely Rajeev Gambhir and Karan Gambhir.

2. Apart from the present case arising out of FIR No.43/2011, the petitioners are also facing criminal prosecution in eleven other cases, all of them pending in the court of the Judicial Magistrate (Ist Class) at Faridabad, Haryana, they including criminal complaint case RBT no.523/11 lodged on 14.12.2011, the other ten being State cases arising out of FIR nos.09/2011, 82/2011, 132/2011, 134/2011, 181/2011, 205/2011, 209/2011, 45/2012, 185/2012, 186/2012, the criminal cases registered being nos.827/2012, 745/2012, 740/2012, 741/2012, 742/2012, 739/2012, 744/2012, 743/2012, 815/2012, 187/2012 respectively.

3. It may be mentioned here that in the abovesaid ten State cases pending at Faridabad, Haryana, the Judicial Magistrate had taken cognizance and issued process by orders dated 15.06.2012, 04.07.2012, 03.07.2012, 03.07.2012, 03.07.2012, 02.07.2012, 04.07.2012, 04.07.2012, 24.08.2013 and 24.08.2013.

4. There is no dispute as to the fact that the second and third petitioners herein are accused in the court of the Judicial Magistrate at Faridabad, Haryana in cases arising out of FIR nos.9/11, 132/11, 134/11, 205/11, 209/11, 185/12, 186/12 and the complaint case 523/11. Further, the second petitioner is an accused in cases arising out of FIR nos.181/11 and 45/12. Similarly, two other accused namely Rajeev Gambhir and Karan Gambhir are also accused in some of the

cases at Faridabad, the company DD Build Well Pvt. Ltd. with which all these persons are connected being a common accused in all the cases including the one at Delhi.

5. By the petition at hand presented under Section 482 Cr. PC, it has been prayed that the orders of cognizance passed in the cases pending before the Judicial Magistrate at Faridabad, Haryana be quashed and such proceedings be discontinued, and it be held and declared that the court of the ACMM at Saket Court Complex at New Delhi is the competent court to enquire and try the alleged offences as reflected in the FIR (43/11) of Economic Offences Wing, New Delhi and, in the alternative, it to be held that offences in the cases of Faridabad can "only be tried at Delhi", reference in this context being made to the provision contained in Section 186 Cr. PC.

6. The petition has been resisted by the State of Haryana and the SHO of Economic Offences Wing, Faridabad, Haryana. The Govt. of NCT of Delhi has taken a neutral stand leaving it to the discretion of the court.

7. Having heard both sides, this court finds no merit in the petition in so far as it seeks discontinuance of the proceedings in the criminal cases pending on the file of the Judicial Magistrate (Ist Class) at Faridabad, Haryana, in the ten State cases and one complaint case referred to above. The reasons may be set out hereinafter.

8. References were made at the hearing to the allegations in all the above mentioned cases, one registered by the Delhi Police, ten

registered by Haryana Police at Faridabad and one arising out of the private complaint case presented before the Court of the Magistrate to Faridabad. The allegations in all the cases are more or less similar, but they have been levelled by different victims of offences either for cheating or for criminal breach of trust, each relating to offers made to the public at large by the company DD Build Well Pvt. Ltd. or its associate companies or entities or the private individual accused who are connected thereto for development and allotment of land in Sector 77, Faridabad. The said company appears to have operated from offices situated both in New Delhi and in Faridabad. The members of the public at large who approached the said company or its associates made huge investments. It is alleged that the representations made leading to such investments were false and dishonest. It is also alleged that the public at large having been allured, huge money was collected but no plots of land were developed or allotted. The allegations have been made in most of the cases at Faridabad of forgery and fabrication of certain documents including in the nature of valuable security and their use, such allegations constituting offences punishable under Sections 464, 467, 468, 471 IPC, there in addition to criminal intimidation.

9. The provision contained in Section 186 Cr. PC reads thus :-

"186. High Court to decide, in case of doubt, district where inquiry or trial shall take place -- Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the

question shall be decided-- (a) if the Courts are subordinate to the same High Court, by that High Court; (b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be discontinued."

10. While it is correct on the part of the State of Haryana to point out that the first case registered respecting the transactions involving various victims constituting offences of cheating, etc. was in the form of FIR no.9/11 of police station Bhupani, Faridabad lodged on 22.01.2011, it preceding FIR no.43/11 of Delhi (registered on 03.03.2011), there is no denial that upon submission of the charge- sheet by the police, the order of cognizance was taken by the Delhi court on 04.06.2012 ahead of such orders being passed by the Judicial Magistrate at Faridabad in respect of the cases pending there. But, on this fact alone, it is not correct for the petitioners to argue that all the cases will have to be brought together before the court at Delhi. The provision contained in Section 186 Cr. PC only guides as to which High Court is to take a call on the issue as to which criminal court "ought to inquire into or try" the case if "two or more courts have taken cognizance of the same offence".

11. Since the cases in which context the prayer is made and pressed under Section 186 Cr. PC pertain to the courts subordinate to two different High Courts, clause (b) of Section 186 would apply here and since the court of ACMM at Saket, New Delhi had taken cognizance

first, it is for this court to consider as to which of the courts ought to inquire and to try all the aforementioned cases, this assuming that they involve "the same offence".

12. The issue of jurisdiction is to be decided not with reference to Section 186 Cr. PC but primarily in accordance with the guidance provided by Section 177 to 184 Cr. PC. As is the general rule (per Section 177) every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Section 178 Cr. PC, inter alia, states that where an offence is committed partly in one local area and partly in another or where it consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas. Similarly, Section 179 Cr. PC permits trial of an offence by a court within whose local jurisdiction the incriminating acts have been done or the court within whose local jurisdiction the sequence of such acts constituting offence has ensued.

13. Having regard to the background facts of the solitary case at Delhi and the eleven cases before the court of the Judicial Magistrate at Faridabad, it does appear that there is lot of commonality. The background facts leading to the offences alleged by different victims in each of these cases are similar. The persons who are accountable for such acts and consequently to be prosecuted to a large extent are also common. But then, transaction of each victim was distinct and, therefore, each of these cases constitute separate offences.

14. There is no reason why the case at Delhi be given primacy or be treated as the master case. There is no justification for the prayer for discontinuance of the proceedings in the eleven cases pending on the file of the Judicial Magistrate (Ist Class), Faridabad, Haryana on such account, particularly with reference to the provision contained in Section 186 Cr. PC.

15. The petition and the applications filed therewith are dismissed.

R.K.GAUBA, J.

October 08, 2018 yg