Delhi High Court
Tepander Giri vs Sho & Ors. on 29 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 8th March, 2022
Pronounced on: 29th March, 2022
+ W.P.(CRL) 2094/2020
TEPANDER GIRI ..... Petitioner
Through: Mr. Puneet Goel, Advocate
(Through VC)
versus
SHO & ORS. ..... Respondents
Through: Mr. Sanjay Lao, Standing Counsel
with ASI Bijender, P.S. Anti
Corruption
Ms. Tajinder Virdi, Advocate for R-2
to R-6 (Through VC)
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant writ petition under Article 226 of the Constitution of
India, read with Section 482 of Code of Criminal Procedure, 1973
(hereinafter "Cr.P.C.") has been filed by the Petitioner seeking the following
reliefs:
"a. Direct the respondent no. 1 to conduct detail and
thorough enquiry/investigation on the complaint dated
29-10-2020 of the petitioner (given through speed post
dated 29.10.2020) and provide a copy of complete
enquiry report to the petitioner in term of law laid down
by Hon'ble Supreme Court of India in case title "Lalita
Kumari Vs. State of Uttar Pradesh."
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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b. Direct the respondent no. 1 to register the FIR on the
complaint dated 29.10.2020 of the petitioner for the
offence under section 13 (1) (c) and (d) of Prevention of
Corruption Act and under section 217 IPC against
respondent no. 3 to 6 and start investigating the matter in
accordance with law, in interest of justice.
c. Any other or further relief which this Hon'ble Court
deem fit and proper may kindly be granted in favour of
petitioner and against respondents in interest of justice."
2. Mr. Puneet Goel, learned counsel appearing on behalf of the petitioner
submitted that one Mr. Netrapal Yadav had vacated the property bearing plot
No. B-281, Gharoli Dairy Farm, Delhi (hereinafter "the said property") and
ran somewhere with all his belongings. It is further submitted that one Mr.
Joginder Bhati and his associates tried to encroach the said property,
demolished the entire structure and raised illegal/unauthorized construction
and have taken unlawful possession of the said property.
3. Learned counsel appearing on behalf of the petitioner submitted that
as per the provisions of the Delhi Municipal Corporation Act, 1957, no one
can raise any construction without obtaining prior approval from the
Municipal Corporation. It is submitted that in the instant case, no approval
had been taken by Mr. Joginder Bhati to carry out the said construction on
the said property.
4. It is submitted that the petitioner had written several complaints to the
respondents, but no action has been taken by the officials of East Delhi
Municipal Corporation (hereinafter "EDMC"). Further, it is submitted that
respondent nos. 3 to 6 are involved in criminal conspiracy with Mr. Joginder
Bhati and by misusing their official position, they have allowed the illegal
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Digitally Signed By:GAURAV
SHARMA
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construction. Therefore, the said officers of the Municipal Corporation are
guilty of committing the offence under Section 13(1)(c) and (d) of
Prevention of Corruption Act, 1988 (hereinafter "PC Act").
5. Learned counsel appearing on behalf of the petitioner submitted that
complaints were addressed to the highest officers of the Corporation as well
as the police officers of respondent no. 1, therefore, it was mandatory for the
police/investigating agency to register an FIR and thereby direct for
investigation. It is submitted that there are serious allegations against the
concerned Junior Engineer and the Assistant Engineer who have misused
their official position and corruptly discharged their official duty to obtain
the pecuniary benefit by allowing such illegal construction. The petitioner
had given a complaint through Speed Post on 29 th October 2020 to
respondent no. 1 for registration of FIR under Section 13 (1) (c) and (d) of
PC Act and Section 217 of the Indian Penal Code, 1860 (hereinafter "IPC")
against respondent nos. 3 to 6. It is argued by the learned counsel for the
petitioner that it was the statutory and official duty of respondent no. 1 to
register the FIR and start the investigation of the matter, however, till date
nothing has been done on the said complaint.
6. Learned counsel appearing on behalf of the petitioner has relied upon
the Constitution Bench decision of the Hon‟ble Supreme Court in Lalita
Kumari v. Govt. of U.P. & Ors. (2014) 2 SCC 1, which has been referred to
in the subsequent paragraphs.
7. Per Contra, Mr. Sanjay Lao, learned Standing Counsel appearing on
behalf of the State vehemently opposed the submissions made by learned
counsel for the petitioner and submitted that the petitioner has filed various
complaints against the EDMC Officials. It is submitted that the complaints
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SHARMA
Signing Date:29.03.2022
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were forwarded to the Chief Vigilance Officer (hereinafter "CVO") of
EDMC, Delhi, for inquiry and necessary action vide following office
reference letters No. (hereinafter "abovementioned reference letters"):
i. 984/SO/ACB/OC-391/20 Dated 19/2/2020
ii. 4379/SO/ACB/OC-2228/20 Dated 6/11/2020
iii. 5032/SO/ ACB/OC-2372/20 Dated 27/11/2020
iv. 5244/SO/ACB/OC-2481/20 Dated 9/12/2020
8. Learned Standing Counsel for the State submitted that the complaints
given by the petitioner have no specific allegations of demand/acceptance of
bribe, misappropriation of funds or abuse of official position against any
specific officer of the Corporation. Such type of complaints are normally
forwarded to the concerned CVO for inquiry and necessary action at their
end.
9. It is submitted that even the Constitution Bench of the Hon‟ble
Supreme Court in Lalita Kumari's case (Supra) has carved out certain
exceptions and has approved ordering preliminary enquiry before registering
an FIR. One of the exceptional cases which have been carved out by the
Hon‟ble Supreme Court is a case where allegations of corruption are made
out. He submitted that in the present case, the allegations of corruption have
been made against the officers of the Corporation. Hence, looking into the
nature of allegations, the complaints of the petitioner have rightly been
referred to CVO for enquiry and necessary action. Learned Standing
Counsel submitted that the preliminary inquiry will be completed and final
report will be submitted at the earliest.
10. Ms. Tajinder Virdi, learned Counsel appearing on behalf of
respondent nos. 2 to 6 (hereinafter "Corporation") vehemently opposed the
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SHARMA
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contentions of the Petitioner and submitted that the frivolous petition has
been filed by the petitioner with ulterior motives for illegal possession and
he is guilty of suppression and concealment of true and material facts. It is
also submitted that the petitioner has no locus standi in this petition as the
mother of the petitioner as well as the petitioner herein are not the allottee(s)
of the property in question, and the petitioner himself is trespasser on the
said property.
11. Learned counsel appearing on behalf of the Corporation submitted
that as per the affidavit/status report, the Corporation has allotted some plots
for the purpose of Animal Husbandry/running the Dairy Farms, and the said
property was allotted to one Smt. Gian Devi in the year 1976, who had
expired in the year 2000. However, the mother of the Petitioner had moved
into the property in question without anyone‟s permission and has been in
actual possession of the said property since 2 nd January, 1977. It is further
submitted that the mother of the petitioner after acquiring the possession of
the suit property had constructed two rooms, one verandah, and the
boundary wall including the front gate, without any authorization or any
legal position of the said property. Learned Counsel appearing on behalf of
the Corporation submitted that the petitioner herein has made all malicious
attempts to mislead this Hon‟ble Court. It is further submitted that the
petitioner has not impleaded the encroacher Mr. Joginder Bhati.
12. Learned Counsel appearing on behalf of the Corporation submitted
that the grievance of the petitioner that Mr. Joginder Bhati has been trying to
encroach upon the said property is a matter of proper adjudication before the
Civil Court as the petitioner herein and his mother had preferred multiple
litigations before the Civil Court in regard to the said property which does
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SHARMA
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not belong to them, and in fact, the Municipal Corporation has a
title/ownership over it. It is therefore submitted that the instant writ petition
is nothing but a gross misuse of the process of law and devoid of any merit
and is liable to be dismissed.
13. I have considered the submissions of learned counsel for the parties
and perused the record. Before I proceed to examine the rival contentions, it
is relevant to refer the letter dated 29th October 2020 which was sent by the
petitioner to the SHO, Anti-Corruption Branch. The relevant portion of the
said complaint is reproduced hereunder: -
"9. ... I immediately went at East Delhi Municipal
Corporation office and duly informed Dy. Commissioner,
South Shahdara Zone about such illegal construction by
way of a written complaint date 30.09.2020.
10. That a written complaint was also given on
19.10.2020 and 22.10.2020 to the Commissioner East
Delhi Municipal Corporation regarding such illegal
construction.
11. That a separate written complaint regarding such
illegal construction was also given on 19.10.2020 and
22.10.2020 to the Superintendent Engineer (building-II).
12. That a separate written complaint regarding such
illegal construction was also given to the Assistant
Engineer (building-II) On 19.10.2020 and 22.10.2020.
13. That a separate written complaint regarding such
illegal construction was also given on 19.10.2020 and
22.10.2020 to Junior Engineer. (building-II) South
Shahdara Zone, East Delhi Municipal Corporation.
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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14. That a separate written complaint regarding such
illegal construction was also given on 21.10.2020 to the
Director Vetenary Services East Delhi Municipal
Corporation.
15. That a separate written complaint regarding such
illegal construction was also given to Dy. Director,
Vetenary services, South Shahdara Zone, East Delhi
Municipal Corporation on 19.10.2020 and 22.10.2020.
16. That a separate written complaint regarding such
illegal construction was also given on 19.10.2020 and
22.10.2020 to the Assistant Commissioner, South
Shahdara Zone, East Delhi Municipal Corporation.
17. That a separate written complaint regarding such
illegal construction was also given to Sh. P.K. Tomer,
Executive Engineer (building-II) South Shahdara Zone,
East Delhi Municipal Corporation on 19.10.2020 and
22.10.2020.
18. That despite receiving all such complaints by all such
officers., no action have been taken. As on today he has
made the complete base of the plot and concreate column
and has also erected the wall of the building and now they
have made the shattering for making the lanture/Slab of
ground floor. Till today neither the said illegal
construction has been booked for demolition. As per law,
it was the statuary duty of concerned J.E. and A.E. to
register the FIR immediate after receiving the information
about such illegal construction and then should book such
illegal construction for demolition but the concerned area
J.E. and A.E have not yet registered the FIR and have not
yet booked such illegal construction for demolition which
apparently proves that these officials are in collusion with
such trespassers. The concerned A.E. and J.E. are
abusing their official position and corruptly discharging
their official duty to obtain the pecuniary benefit for such
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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trespassers. The concerned A.E. and J.E. are allowing
such trespassers to encroach upon such plot thereby, they
are guilty for committing the offence under section 13 (1)
(D) of Prevention of Corruption Act.
19. That Gharoli Dairy farm, Delhi-96 were entrusted to
concerned area J.E and A.E being a Public Servant under
their colour of duty that they would not allow any person
to convert any property for their use except those who are
entitled for the same but concerned are J.E. and A.E.
allowed such trespasser to convert such property for their
use by allowing them to raise illegal construction and
trespass upon such property thereby, concerned J.E. and
A.E. of Gharoli Dairy farm, Delhi-96 are guilty for
committing the offence under section 13 (1) (C) of
Prevention of Corruption Act.
20. That as per DMC Act, 1957, if a person wilfully flout
the provision of DMC Act, 1957, the penal provision is
prescribed for such person under DMC Act. In the instant
case, it was the statutory duty of concerned J.E. and A.E.
to initiate prosecution action under the relevant provision
of DMC Act against all those persons who attempted to
encroach upon such Municipal License Property and
raising illegal construction thereupon but as area J.E.
and A.E. are in deep collusion with such criminals
thereby, they have not booked such criminal for penal
action under DMC Act. Hence, concerned J.E. and A.E.
are guilty for disobeying the direction of law to save the
accused persons from legal punishment as envisage under
section 217 IPC.
21. That on 30.09.2020 I personally met to Sh. P.K.
Tomer Executive Engineer (Building-II) and requested
him for taking appropriate legal action under the
provision of DMC Act and also provided a written
complaint to him. At the time of taking written complaint,
Executive Engineer P.K. Tomer had assured me for taking
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SHARMA
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appropriate action but Executive Engineer P.K. Tomer
despite receiving a written complaint did not take any
action which further prove that executive Engineer P.K.
Tomer is also involved somehow in this criminal
conspiracy thereby, he is also liable to be booked under
the relevant provision of POC Act as well as IPC and is
liable to be arrest immediately.
22. That on 19.10.2020 I personally met to J.E and A.E
South Shahdara Zone, East Delhi Municipal Corporation
and requested them for taking appropriate legal action
under the provision of DMC Act and also provided a
written complaint to them. At the time of taking written
complaint, J.E and A.E, South Shahdara Zone, East Delhi
Municipal Corporation had assured me for taking
appropriate action but area J.E and A.E South Shahdara
Zone, East Delhi Municipal Corporation despite receiving
such written complaint did not take any action which
further prove that area J.E and A.E South Shahdara Zone,
East Delhi Municipal Corporation are also involved
somehow in this criminal conspiracy thereby, they are
also liable to be booked under the relevant provision of
POC Act as well as IPC and is liable to be arrest
immediately.
It is, therefore under the fact and circumstances as
stated above kindly register the FIR under section
13 (1) (C), 13 (1) (D) of Prevention of Corruption
Act and under section 217 IPC against above
named Municipal Officers and arrest them
forthwith."
14. The petitioner had also written a letter dated 2nd November 2020
which was sent to the Deputy Commissioner of Police, Anti-Corruption
Branch. The contents of the aforesaid letter dated 2nd November 2020 are
same as the contents of the letter dated 29th October 2020.
Signature Not Verified
Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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15. Section 154 of Chapter XXII of Cr.P.C. deals with the information to
the Police and their powers to investigate. It is relevant to note that the
complaints of the petitioner had already been referred to the CVO of EDMC.
Ld. Standing Counsel for the State has referred to the abovementioned
reference letters by which the said complaints were referred to the CVO, and
submitted that after the preliminary enquiry on the said complaint by the
CVO, the FIR may or may not be registered.
16. The crucial question, which is to be examined and answered, is as to
whether the department committed any error by referring the complaints of
the petitioner vide abovementioned letters for preliminary enquiry and not
immediately registering an FIR on receipt of the letter dated 29 th October
2020. The question regarding lodging of FIR, its registration, investigation
and consequent action has been engaging the attention of this Court and the
Hon‟ble Supreme Court in large number of cases.
17. Learned counsel appearing on behalf of the parties have placed
reliance on Lalita Kumari's case (supra). As per the learned counsel for the
petitioner, the Constitution Bench has unequivocally laid down that if the
information given to a police officer discloses cognizable offence, the
concerned police officer has no option, but to register an FIR. On the other
hand, learned Standing Counsel for the State submitted that the judgment
itself has carved out various exceptions where it is not mandatory to register
an FIR and there is a discretion given to SHO to direct for preliminary
enquiry before registering an FIR. It is further submitted that corruption
case is one of the exceptions where preliminary inquiry has to be directed.
18. Before I proceed further, it is relevant to extract the directions issued
by the Hon‟ble Supreme Court in Lalita Kumari's case (supra) as under:
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under
Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint,
a copy of the entry of such closure must be supplied to
the first informant forthwith and not later than one week.
It must disclose reasons in brief for closing the complaint
and not proceeding further.
120.4. The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not
register the FIR if information received by him discloses
a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify
the veracity or otherwise of the information received but
only to ascertain whether the information reveals any
cognizable offence.
120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
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(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of
all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry
should be made time-bound and in any case it should not
exceed 7 days. The fact of such delay and the causes of it
must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily
Diary is the record of all information received in a police
station we direct that all information relating to
cognizable offences, whether resulting in registration of
FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said diary and the decision
to conduct a preliminary inquiry must also be reflected,
as mentioned above."
19. Learned Standing Counsel for the State has referred to paragraphs 115
and 117 of Lalita Kumari's case (supra) which are reproduced hereinbelow:
-
"115. Although, we, in unequivocal terms, hold that
Section 154 of the Code postulates the mandatory
registration of FIRs on receipt of all cognizable
offences, yet, there may be instances where preliminary
inquiry may be required owing to the change in genesis
and novelty of crimes with the passage of time. Once
such instance is in the case of allegations relating to
medical negligence on the part of doctors. It will be
unfair and inequitable to prosecute a medical
professional only on the basis of the allegations in the
complaint.
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xx xx xx
117. In the context of offences relating to corruption,
this Court in P. Sirajuddin expressed the need for a
preliminary inquiry before proceeding against public
servants."
20. The Constitution Bench has laid down that registration of FIR is
mandatory under Section 154 of Cr.P.C. when cognizable offence is
disclosed and no preliminary inquiry is permissible in such situation.
However, in para 120.6 of Lalita Kumari's case (supra) it has been laid
down by the Constitutional Bench as to which cases require preliminary
inquiry depending on the facts and circumstances of each case. Some
category of cases in which preliminary inquiry may be made, have been
enumerated in para 120.6, which include „corruption cases‟. There is no
dispute between the parties that allegations are in realm of corruption of the
officers of the Corporation.
21. Looking into the nature of allegations, which are contained in the
letter dated 29th October 2020, the fact that the same has been referred to the
CVO to conduct preliminary inquiry, and the fact that the allegations are
made against the Government officials including public servants, this Court
is of the view that the said decision cannot be held to be palpably wrong.
Moreover, this Court is of the view that since the preliminary inquiry which
has been directed to be conducted as stated by learned Standing Counsel
appearing on behalf of the State will be completed expeditiously in the near
future, it would be appropriate in the fitness of things that the competent
authority be directed to take a decision on the basis of the report of the
inquiry in accordance with the provisions of the Cr.P.C.
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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22. Apart from the above, this Court finds that as on date, the preliminary
inquiry is pending with the competent authority and it is at preliminary
stage, therefore in the considered opinion of this court it would be pre-
mature to pass any direction to the respondents as prayed for, in the instant
petition. Finding no merit in the present petition filed by the petitioner, the
same is accordingly dismissed.
23. Pending application, if any, also stands disposed of.
24. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
MARCH 29, 2022
Aj
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Digitally Signed By:GAURAV
SHARMA
Signing Date:29.03.2022
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