Kuldeep Kaur (Since Deceased) ... vs State & Anr.
2019 Latest Caselaw 358 Del

                                                            SHAKUN ANAND

                                                            29.01.2019 10:35

$~34
        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 21st January, 2019

+       CRL.M.C. 2297/2018 and Crl. M.A. 8164/2018

        KULDEEP KAUR (SINCE DECEASED)
        Through LRs                       ..... Petitioner
                     Through: Mr. Sunil Satyarthi and Mr.
                     Anand Kumar Dubey, Advocates

                             versus

        STATE & ANR.                                 ..... Respondent

                             Through: Mr. Kewal Singh Ahuja, APP for
                             State with Insp. A.K. Singh, SHO, CR Park
                             and SI Rajesh Kumar Verma

                             Mr. Vishal Gosain, Mr. N. Ahuja and Mr. M
                             Pathak, Advocates for R-2

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

                         ORDER (ORAL)

1. The first information report (FIR) no.76/2011 was registered by police station Chitranjan Park on 07.04.2011, on the complaint of Mrs. Kuldeep Kaur wife of late Sh. Ajit Singh, she having alleged certain acts of commission and omission having been indulged in by the second respondent (accused), the same constituting offences punishable under Sections 465, 468, 471 of Indian Penal Code, 1860 (IPC), property bearing no.L-59, Kalkaji, New Delhi being the subject matter of the dispute. The first informant Kuldeep Kaur has since

passed away and the petitioners claim to have inherited the interest in the subject property.

2. The police had carried out investigation on conclusion of which report (charge-sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC) is stated to have been submitted. By the said charge-sheet, the police had proposed prosecution of the second respondent for offences punishable under Sections 420, 465, 468, 471, 120 B IPC, the gravamen including the allegations that a general power of attorney (GPA) purporting to have been executed on 05.04.2007 by the late husband of the first informant had been fabricated, forgery being palpable in as much as the stamp paper on which it had been printed was issued in the year 2010, much after the death of the executant. The GPA, it is stated, had been used by the accused to obtain an electricity connection in the property in which the said person had been permitted to be in use for sometime. It is also stated that the first informant was constrained to prosecute a civil suit to obtain recovery of possession of the subject property, such litigation having since concluded in her favour, decree of the civil court having attained finality, the matter being pending at the stage of execution.

3. The criminal case (no.621749/2016) arising out of the aforementioned charge-sheet had reached the stage of consideration of charge when the Assistant Public Prosecutor moved an application on 29.08.2017 suggesting the need for "further investigation". This application was allowed by the Metropolitan Magistrate, by order dated 29.08.2017, the deficiency in the investigation earlier carried out

being noticed to the effect that the author of forgery had not been identified. The accused challenged the said order in the court of Sessions by a criminal revision petition (no.588/2017) which was allowed by the Additional Sessions Judge by order dated 20.01.2018 primarily for the reasons that the criminal court did not have the power to "direct" further investigation, after cognizance had been taken, reliance being placed on Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Others, (2017) 4 SCC 177 and Athul Rao vs. State of Karnataka and Another, (2018) 14 SCC 298.

4. The petition at hand was filed invoking the jurisdiction of this court under Article 226 of the Constitution of India read with Section 482 Cr. PC to challenge the order dated 20.01.2018 of the revisional court on the ground that the investigation carried out has not been comprehensive or fair, the crucial need to identify the author of forgery having been designedly overlooked.

5. While the first respondent / State supports the contentions and prayer of the petitioner, the second respondent resists the prayer referring to the aforementioned case law also placing reliance on Babubhai Jamnadas Patel Vs. State of Gujarat and Others, (2009) 9 SCC 610 and Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346.

6. Against the above backdrop, reference is made by the learned Additional Public Prosecutor, inter alia, to the report dated 12.10.2011 of the then investigating officer indicating his impression that the GPA in question was a forged document, the second respondent being the beneficiary. He also referred to the observations in the order dated

14.10.2011 of the Additional Chief Metropolitan Magistrate whereby the application for release on bail was dismissed, it being pointed out, inter alia, that it required probe as to whether the accused was the author of the GPA or some other persons had acted in his complicity, particular reference being made to the attestation endorsed on the said document.

7. Inspector A.K. Singh, Station House Officer of police station Chitranjan Park, has appeared with the Additional Public Prosecutor and submitted that given the above clear deficiency in the investigation earlier carried out, he intends to exercise his discretion and prerogative in law to subject the case to "further investigation" in terms of Section 173(8) Cr. PC. This position taken by the investigating agency renders it unnecessary for this court to pass any further directions in the matter on the prayer in the petition. It also renders unnecessary consideration of the objections raised to the locus standi of the petitioners to bring this objection or to the permissibility of the court "directing" further investigation in such fact-situation.

8. At this stage, the learned counsel for the second respondent submitted that since the investigating policy agency has indicated that it is embarking upon further investigation into the matter under Section 173(8) Cr. PC, it would not be desirable that the proceedings in the criminal case should continue till the supplementary report under Section 173 Cr. PC has been submitted. This court agrees with this submission and thus directs that while the police carries out further investigation under Section 173 (8) Cr. PC, proceedings in the

criminal case mentioned above against the second respondent shall remain stayed. The Metropolitan Magistrate shall take up further proceedings in accordance with law in the case once the supplementary report pursuant to further investigation under Section 173(8) Cr. PC is submitted.

9. The petition and the application filed therewith are disposed of in above terms.

R.K.GAUBA, J.

JANUARY 21, 2019 yg