Punjab-Haryana High Court
Ashok Punia @ Ashok Kumar And Ors vs State Of Haryana And Anr on 5 July, 2023
Neutral Citation No:=2023:PHHC:084831
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1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.3823 of 2021 (O&M)
Date of Reserve: 15.05.2023
Date of Decision: 05.07.2023
Ashok Punia @ Ashok Kumar & others ....Petitioners
Vs
State of Haryana and another .....Respondents
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. Ashok Aggarwal, Senior Advocate with
Mr. Mukul Aggarwal, Advocate and
Mr. Hari Pal, Advocate
for the petitioners.
Mr. Deepak Sabherwal, Addl. A.G., Haryana.
Mr. J.S. Mehndiratta, Advocate
for the respondent No.2/complainant.
****
RAJ MOHAN SINGH, J.
[1]. The petitioners have preferred this petition under
Section 482 Cr.P.C. for quashing of complaint No.486/2020
dated 17.12.2020 (Annexure P-20) titled 'Neeraj Chaudhry vs.
M/s Sai Aaina Farms Private Limited & others', order dated
07.01.2021 (Annexure P-25) passed by the Chief Judicial
Magistrate, Gurugram directing registration of FIR against the
petitioners and consequential FIR bearing No.11 dated
14.01.2021 under Sections 120-B, 406, 420, 467, 468, 471 IPC
Police Station Sushant Lok, Gurugram (Annexure P-26) along
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with all consequential proceedings arising out from there being
illegal and without jurisdiction. The petitioners have also prayed
for stay of further proceedings in the aforesaid FIR.
[2]. The order dated 07.01.2021 passed by the Chief
Judicial Magistrate, Gurugram is reproduced hereasunder:-
"Neeraj Chaudhary vs. M/s Sai Aaina Farms Pvt. Ltd. &
ors.
Present:-Complainant in person being represented by
Sh. N.K.Jain, and Ms. Jyotsna Bhuchar, Advocate
ASI Bablu Singh, Economic Crime Branch,
Gurugram in person.
Action taken report has been filed by the Police.
The same is not found conclusive on any count. However,
on bare perusal of the complaint and the documents
annexed with it, this Court is of the considered view that
there are serious allegations of forgery, which otherwise
also appears to be made out. Hence, the matter requires
investigation by a professional agency. The complainant
would not be in a capacity to collect evidence or to
investigate the matter on its own. Hence, specialist agency
i.e. Police would be in a position to investigate the matter.
Hence, this Court is of the considered view that it is a fit
case for registration of FIR in compliance of Section 156(3)
Cr.P.C under relevant Sections of Indian Penal Code, 1860
against the accused persons. However, simply because
certain persons have been arrayed by the complainant in
the present complaint as accused shall not disentitle the
Police to add more accused or delete some accused from
the list of accused persons. SHO, P.S. Sushant Lok,
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Gurugram is directed to register the FIR in the present
complaint and submit his compliance report in this Court on
15.01.2021. File complete in all respect be sent to the
concerned Police Station. Photocopy of the same be
retained on record. Ahlmad is directed to put up photocopy
of the file on the date fixed.
Announced in open Court. (Anil Kaushik)
Dated of order: 07.01.2021 Chief Judicial Magistrate
Gurugram (UID No.HR0283)"
[3]. The respondent No.2 filed a complaint before the
Commissioner of Police, Gurugram vide diary No.3247 dated
07.01.2020 for registration of FIR against nine persons in
reference of forged and dead/non-existing bank guarantees of
the IDBI Bank. In the aforesaid complaint, the petitioners No.3
and 5 were not arrayed as accused persons. Thereafter the
respondent No.2 filed a criminal complaint under Section 200
Cr.P.C. read with Section 156(3) Cr.P.C. before the Illaqa
Magistrate/Duty Magistrate against 15 accused persons on
17.12.2020 for registration of FIR for the offences under
Sections 406, 420, 467, 468, 471, 120-B IPC. The subject
matter of the complaint was with regard to forged, fake and non-
existing two bank guarantees of IDBI Bank for obtaining a
licence for developing an affordable housing project under the
Affordable Housing Policy, 2013 by the authorized signatory of
accused No.1-Company. As many as 15 accused were named
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in the complaint. The serial No.16 was left for any other accused
(subject to investigation). The petitioners herein are listed as
accused at Sr.Nos.4, 5, 6, 11 and 12 in the aforesaid complaint.
[4]. After filing of the complaint, the Court asked for action
taken report and the same was called for 23.12.2020.
Thereafter on 23.12.2020, the case was adjourned to
04.01.2021 at the request of Police Officer of the Economic
Crime Branch for filing action taken report. Thereafter the case
was further adjourned to 07.01.2021 for the same purpose. The
action taken report was filed on 07.01.2021 i.e. the day on
which the impugned order as reproduced hereinabove was
passed.
[5]. Learned Senior counsel for the petitioners submitted
that the impugned order is wholly illegal and does not satisfy the
mandatory requirement of Section 156(3) Cr.P.C. with reference
to Shri Subhkaran Lubharka and Anr. vs. State (Govt. of
NCT of Delhi) and Anr., 2010(7) R.C.R 595 (Delhi SB);
Priyanka Srivastava and Another vs. State of Uttar Pradesh
and others, (2015) 6 Supreme Court Cases 287; Babu
Venkatesh and others vs. State of Karnataka and another,
(2022) 5 Supreme Court Cases 639; Amit Joshi vs. State of
Chhattisgarh through Superintendent of Police and others,
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2021 SCC Online CHH 235; Anil Kumar and others vs. M.K.
Aiyappa and another (2013) 10 Supreme Court Cases 705;
Ramdev Food Products Private Limited vs. State of Gujarat,
(2015) 6 Supreme Court Cases 439; Maksud Saiyed vs.
State of Gujarat and others, (2008) 5 Supreme Court Cases
668; Guruduth Prabhu and others vs. M.S. Krishna Bhat and
others, 1999 CrlLJ 3909 and Kheta Ram vs. State of
Haryana, 2007(3) R.C.R.(Criminal) 649.
[6]. Learned Senior counsel for the petitioners further
submitted that before issuing any direction under Section 156(3)
Cr.P.C., the Magistrate has to apply his mind and the said
application of mind must reflect in the order. Mere observation
by the Magistrate that he has gone through the complaints,
documents and heard the complainant will not be sufficient and
will not serve the mandatory requirement of Section 156(3)
Cr.P.C. The Magistrate must reflect in clear terms in the order
as to what weighed with him factually or legally to order
investigation under Section 156(3) Cr.P.C. The application of
mind means that the person required to apply his mind has to
come to grasp the facts and to bring into focus the law on the
subject and apply the facts to the law arriving at a conclusion by
a process of reasoning that all the relevant facts have been
taken note of and properly analyzed in the light of law applicable
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to the facts of the case. The Magistrate has to ensure before
passing any order under Section 156(3) Cr.P.C. at the very
outset that before coming to the Court, the complainant did
approach the Police Officer-in-charge of the Police Station in
terms of section 154(1) Cr.P.C. and the Court must examine as
to what action was taken by the Incharge, Police Station or even
by senior officer of the Police when approached by the
complainant in terms of Section 156(3). There has to be proper
applications under Section 154(1) and 154(3) Cr.P.C. before the
Incharge, Police Station and Commissioner of Police/
Superintendent of Police respectively. Both these aspects are
legally required to be clearly spelt out in the complaint along
with the necessary documents.
[7]. Learned Senior counsel for the petitioners further
submitted that the complaint under Section 156(3) Cr.P.C. has
to be supported by an affidavit of the complainant thereby
disclosing ingredients of the offence alleged. In this regard
reference becomes necessary to Chapter XII of the Code of
Criminal Procedure which starts from Section 154 Cr.P.C. i.e.
information to the Police and their power to investigate. Section
154 Cr.P.C. enables every person, who wishes to disclose
information relating to commission of cognizable offence to
approach the Station House Officer of the concerned Police
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Station who then is required to reduce such information into
writing and to register an FIR, if that information discloses
commission of cognizable offence as provided under Section
154(1) Cr.P.C. If the concerned officer is reluctant or refuse to
register an FIR based on the information, then the complainant
may approach the senior police officer under Section 154(3)
Cr.P.C. Once the FIR is registered, then the criminal law
procedure shall come into play i.e. the investigation under
Section 156 Cr.P.C. till filing of challan under Section 173
Cr.P.C. The procedure for investigation has been prescribed
under Section 157 of the Code which enables the Investigating
Officer to proceed to investigate the facts and circumstances
and if necessary to take measures for discovery and even arrest
of the offender even without warrant. After investigation of the
case, a report has to be filed in the Court by the concerned
Investigating Officer. The report can either be for prosecution or
for closure of the case. If the complainant is aggrieved of
inaction on the part of the police, then he can file a complaint
under Section 200 of the Code of Criminal Procedure for
redressal of his grievance. The complainant can do so when he
is not satisfied with the police action under Chapter XII by
approaching the senior police officer under Section 154(3)
Cr.P.C. On fling of the complaint under Section 200 Cr.P.C., the
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Magistrate has an onerous duty to record evidence led by the
complainant and also examine his witnesses and if necessary
even to call for a police report. Thereafter the Magistrate has to
decide as to whether he has to proceed under Chapter XV or
has to dismiss the complaint. The question arises whether the
complainant without approaching the senior police officer can
approach the Magistrate directly with a complaint under Section
200 Cr.P.C. The issue is whether the Magistrate can still
exercise powers under Section 156(3) Cr.P.C. instead of
proceeding under Chapter XV.
[8]. Learned Senior counsel for the petitioners further
submitted that under Section 156(3) Cr.P.C., the Magistrate is
empowered to order investigation. Under Section 157(1) Cr.P.C.
the officer Incharge of the Police Station having reasons to
suspect commission of offence is empowered under Section
156 Cr.P.C. to investigate the offence under Section 157(1)(a)
Cr.P.C. If the case is not of a serious nature and it appears that
there is no sufficient ground for entering into an investigation,
the Investigating Officer shall not investigate the case and he
should inform the complainant in a prescribed manner. Even the
police officer, who is empowered to investigate on the
information received by him of the commission of cognizable
offence can decide whether there is no sufficient ground for
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entering into an investigation and in the event of finding no
sufficient ground he should not investigate the case. But once
the Magistrate orders an investigation under Section 156(3)
Cr.P.C., the police officer is bound to investigate the matter.
In the light of aforesaid position it becomes very much
important that the Magistrate should apply his mind in
order to find out whether the allegations made in the
complaint filed under Section 200 Cr.P.C. discloses an
offence or not. If every complaint filed under Section
200 Cr.P.C. is referred to the police under Section
156(3) Cr.P.C. without application of mind in respect of
disclosure of an offence, then there is every likelihood
of unscrupulous complaints being filed in order to
harass the accused named therein. Therefore, it is
mandatory for the Magistrate to apply his mind to the allegations
made in the complaint and should pass the order only when it is
found that the complaint discloses an offence whether the
Magistrate gets jurisdiction to order an investigation by the
police, if he does not take cognizance of the same. The
Magistrate must exercise discretion after proper application of
mind and only in the cases where the Magistrate is of the
opinion that the nature of accusation/allegation is such that the
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complainant himself may not be in a position to collect and
produce evidence before the Court and the interest of justice
demands that the Police should step in to help the complainant
then the police assistance can be taken by the Magistrate.
[9]. Learned Senior counsel for the petitioners further
submitted that under Section 202(1) Cr.P.C. even after taking
cognizance and proceedings with the complaint under Chapter
XV Cr.P.C., there are pre-requisites to be followed by the
complainant before approaching the Magistrate under Section
156(3) Cr.P.C. which has discretionary remedy as the provision
proceeds with the word 'may' which means that the person
required to apply his mind has to come to grasp with the facts
and has to bring into focus of law on the subject and applying
the facts to the law in order to arrive at a conclusion by
processing of reasoning that all relevant facts have been taken
note of and properly analyzed in the light of law applicable. The
truncated and gibberish reproduction of facts excluding the
relevant facts from the focus of the mind would result in a
decision being taken which can be classified as a decision
without application of mind. The Magistrate is not expected to
mechanically direct the investigation by the police without first
examining whether in the facts and circumstances of the case
investigation by the State machineries is required or not. If the
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allegations made in the complaint are simple where the Court
can straightaway proceed to conduct the trial, the Magistrate is
expected to record the evidence and proceed further in the
matter instead of passing the buck to the police station under
Section 156(3) Cr.P.C. If the allegations are such which require
complex and complicated investigation, it would be appropriate
for the Magistrate to direct investigation by the Police.
Therefore, the Magistrate is not supposed to act merely as a
post office and needs to adopt a judicial approach while
considering the application/complaint under Section 156(3)
Cr.P.C. In Shri Subhkaran Lubharka and Anr.'s case (supra)
the Delhi High Court has formulated the guidelines for the
subordinate Courts to be followed while dealing with the
application/complaint under Section 156(3) Cr.P.C. For ready
reference, in para no.52A of the aforesaid judgment, the
following guidelines have been formulated:-
"(i) Whenever a Magistrate is called upon to pass
orders under Section 156(3) of the Code, at the outset, the
Magistrate should ensure that before coming to the Court,
the Complainant did approach the police officer in charge of
the Police Station having jurisdiction over the area for
recording the information available with him disclosing the
commission of a cognizable offence by the person/persons
arrayed as an accused in the Complaint. It should also be
examined what action was taken by the SHO, or even by
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the senior officer of the Police, when approached by the
Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion
whether the facts mentioned in the complaint disclose
commission of cognizable offences by the accused persons
arrayed in the Complaint which can be tried in his
jurisdiction. He should also satisfy himself about the need
for investigation by the Police in the matter. A preliminary
enquiry as this is permissible even by an SHO and if no
such enquiry has been done by the SHO, then it is all the
more necessary for the Magistrate to consider all these
factors. For that purpose, the Magistrate must apply his
mind and such application of mind should be reflected in
the Order passed by him. Upon a preliminary satisfaction,
unless there are exceptional circumstances to be recorded
in writing`, a status report by the police is to be called for
before passing final orders.
(iii) The Magistrate, when approached with a
Complaint under Section 200 of the Code, should invariably
proceed under Chapter XV by taking cognizance of the
Complaint, recording evidence and then deciding the
question of issuance of process to the accused. In that
case also, the Magistrate is fully entitled to postpone the
process if it is felt that there is a necessity to call for a
police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed
under Chapter XII of the Code when an application under
Section 156(3) of the Code is also filed along with a
Complaint under Section 200 of the Code if the Magistrate
decides not to take cognizance of the Complaint. However,
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in that case, the Magistrate, before passing any order to
proceed under Chapter XII, should not only satisfy himself
about the pre-requisites as aforesaid, but, additionally, he
should also be satisfied that it is necessary to direct Police
investigation in the matter for collection of evidence which
is neither in the possession of the complainant nor can be
produced by the witnesses on being summoned by the
Court at the instance of complainant, and the matter is
such which calls for investigation by a State agency. The
Magistrate must pass an order giving cogent reasons as to
why he intends to proceed under Chapter XII instead of
Chapter XV of the Code."
[10]. Learned Senior counsel for the petitioners further relied
upon para nos.29, 30 and 31 of the Priyanka Srivastava and
Another's case (supra) in order to strengthen his arguments on
the aforesaid issue. For ready reference, the aforesaid
paragraphs are reproduced hereinbelow:-
"29. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A court
of law is involved. It is not the police taking steps at the
stage of Section 154 of the Code. A litigant at his own whim
cannot invoke the authority of the Magistrate. A principled
and really grieved citizen with clean hands must have free
access to invoke the said power. It protects the citizens but
when pervert litigations takes this route to harass their
fellow citizens, efforts are to be made to scuttle and curb
the same.
30. In our considered opinion, a stage has come in
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this country where Section 156(3) CrPC applications are to
be supported by an affidavit duly sworn by the applicant
who seeks the invocation of the jurisdiction of the
Magistrate. That apart, in an appropriate case, the learned
Magistrate would be well advised to verify the truth and
also can verify the veracity of the allegations. This affidavit
can make the applicant more responsible. We are
compelled to say so as such kind of applications are being
filed in a routine manner without taking any responsibility
whatsoever only to harass certain persons. That apart, it
becomes more disturbing and alarming when one tries to
pick up people who are passing orders under a statutory
provision which can be challenged under the framework of
the said Act or under Article 226 of the Constitution of
India. But it cannot be done to take undue advantage in a
criminal court as if somebody is determined to settle the
scores.
31. We have already indicated that there has to be
prior applications under Sections 154(1) and 154(3) while
filing a petition under Section 156(3). Both the aspects
should be clearly spelt out in the application and necessary
documents to that effect shall be filed. The warrant for
giving a direction that an application under Section 156(3)
be supported by an affidavit is so that the person making
the application should be conscious and also endeavour to
see that no false affidavit is made. It is because once an
affidavit is found to be false, he will be liable for prosecution
in accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section 156(3).
That apart, we have already stated that the veracity of the
same can also be verified by the learned Magistrate, regard
being had to the nature of allegations of the case. We are
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compelled to say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family disputes,
commercial offences, medical negligence cases, corruption
cases and the cases where there is abnormal delay/laches
in initiating criminal prosecution, as are illustrated in Lalita
Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are
being filed. That apart, the learned Magistrate would also
be aware of the delay in lodging of the FIR."
[11]. Learned Senior counsel for the petitioners further
submitted that the condition precedent for commencing
investigation under Section 157 Cr.P.C. is that the FIR must
disclose that the cognizable offence is committed. The Police
has no unfettered discretion to commence the investigation
under Section 157 Cr.P.C. when there is no commission of
cognizable offence. The right of enquiry is a condition by the
existence of reason to suspect the commission of a cognizable
offence and they cannot be reasonably have reasons so to
suspect unless the FIR prima facie discloses the cognizable
offence. It was the duty of the trial Court to establish the
involvement of each of the accused persons individually for
each offence for which they have been charged. Learned Senior
counsel referred to Somasundaram alias Somu vs. State
represented by the Deputy Commissioner of Police, (2020)
7 SCC 722.
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[12]. Learned Senior counsel for the petitioners further
submitted that the allegations are found to be mala fide or
otherwise an abuse of process of the Court, the criminal
proceedings should not be encouraged rather the superior
courts while exercising the power should also strive to serve the
ends of justice. Learned Senior counsel referred to All Cargo
Movers (India) Private Limited and others vs. Dhanesh
Badarmal Jain and another, (2007) 14 SCC 776. Learned
Senior counsel with reference to Criminal Appeal Nos.1047-
1048/2021 titled 'Ravindranatha Bajpe vs. Mangalore Special
Economic Zone Ltd. & other etc. decided on 27.09.2021 by
the Hon'ble Apex Court further submitted that in the absence of
specific allegations and the specific role attributed to the
accused, the Magistrate is not justified in issuing the process.
Merely because the accused are Chairman/Directors etc. they
cannot be arrayed as accused in the absence of any specific
role attributed to them and the role played by them in their
capacity.
[13]. With reference to the aforesaid facts, learned Senior
counsel for the petitioners further submitted that there is a total
non-compliance of mandatory provisions inasmuch as that no
application was submitted in terms of Section 154 Cr.P.C. nor
the same was annexed with the complaint. No affidavit of the
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complainant was filed along with the complaint, therefore, the
complaint as such could not have been entertained by the
Magistrate. The Magistrate must pass a speaking order giving
cogent reasons as to why he intends to proceed under Chapter
XII instead of Chapter XV of the Code. The complainant had
filed an excessive complaint along with 50 Annexures covering
by conceivable aspects of the complaint. The impugned order is
silent inasmuch as that no satisfaction has been recorded by the
Magistrate as to what material has not been placed on record by
the complainant requiring investigation by the Police or why the
investigation by the Police is necessitated. Without considering
whether there is any material for the proceedings against the
petitioners, the Magistrate has directed registration of FIR
against all the accused. Learned Senior counsel has also
emphasized that the petitioners remain Directors of the accused
No.1-Company for a particular period. In this regard information
is relevant to be highlighted as under:-
Petitioner Name Date of appointment Date of resignation
from the Company
Petitioner No.1 - 29.08.2016 12.04.2017
Ashok Kumar
01.06.2017 18.08.2017
Petitioner No.2 - 19.09.2018 10.01.2019
Alakh Niranjan
25.03.2019 22.02.2020
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Petitioner No.3 - 22.02.2020 11.09.2020
Aditya Beri
Petitioner No.4 - 18.01.2018 22.02.2020
Satish
26.09.2020 Still continuing as
such
Petitioner No.5 - On 19.02.2020
Prince Kumar appointed as
Additional Director
[14]. Learned Senior counsel for the petitioners with
reference to the aforesaid information further submitted that
neither at the time of issuance of LOI on 27.10.2017 nor at the
time of submission of bank guarantees on 22.12.2017 any of the
petitioners was Director. It has also not been alleged in the
complaint that any of the petitioners was the authorized
signatory, who submitted the bank guarantees on behalf of the
accused No.1/Company.
[15]. Learned Senior counsel for the petitioner further
submitted that the Director of a Company cannot be held
vicariously liable for any act/offence committed by the Company
itself. The penal code does not provide for any vicarious liability
on the part of the Managing Director or Directors of the
Company when the Company itself is the accused. It is always
obligatory on the part of the complainant to make specific
allegations which would attract culpability on behalf of the
Managing Director/Directors that too with reference to a specific
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provision existing in the statute. The ingredients in terms of the
Section 420 IPC are missing altogether. In order to attract
culpability in terms of Section 420 IPC it is essential to have
mens rea/guilty intention from the very beginning i.e. the
accused has dishonest or fraudulent intention from the very
inception i.e. at the time when the complainant parted with the
money otherwise it would not attract any such offence under
Section 420 IPC. No act on the part of the accused disclosing
any intention to adduce delivery of any property of the accused
is made out. There is nothing in the complaint to show that the
accused dishonestly induced the respondents to deliver any
property to them.
[16]. With reference to the allegations, learned Senior
counsel for the petitioner further submitted that even if all the
allegations in the complaint are taken to be true at the face
value still the basic ingredients of cheating are missing
altogether. There is a fundamental inconsistency between the
offence and criminal breach of cheating. Learned Senior
counsel relied upon Shilpa Ajwani and others vs UT
Chandigarh and ors., 2020(1) R.C.R. 934 and submitted that
on the same set of facts both the ingredients cannot stand being
ante thesis to each other. The criminal prosecution cannot be
used as an instrument of harassment in order to settle private
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vendetta with ulterior motive to pressurize the accused. The
High Court has inherent powers ex debito justicia to do real
justice between the parties to prevent abuse of process of law
and also to achieve ends of justice.
[17]. Learned Senior counsel for the petitioners further
submitted that filing of the complaint by the respondent No.2 is
the result of abuse of process of law. The application for grant of
licence before the Director General, Town and Country
Planning, Haryana for developing an affordable housing was
made on 07.05.2016. LOI was issued in favour of the Company
vide letter dated 22.10.2017. The respondent No.2 filed a
complaint before the Director General, Town and Country
Planning, Haryana for cancellation of licence alleging that LOI
could not have been granted. Owing to inaction on the
complaint, the complainant filed CWP No.13933 of 2018 in the
High Court which was disposed of vide order dated 29.05.2018,
directing the Director General, Town and Country Planning,
Haryana to look into the grievance of the complainant. The
Court also pleased to decline the interference in the writ petition
as the grievance of the respondent No.2 has originated from
business dispute with the Developer. Thereafter, the respondent
No.2 filed another representation on 29.06.2018 again levelling
allegations including the allegations that the collaboration
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agreement submitted by the accused No.1/Company was fake
and the Bank Guarantee was not genuine. He submitted yet
another representation before the Director General, Town &
Country Planning, Haryana on 27.05.2019 seeking cancellation
of the licence granted to the accused No.1/Company.
[18]. Learned Senior counsel further submitted that despite
pendency of the aforesaid representation, the complainant filed
a complaint before the Commissioner of Police, Gurugram on
07.02.2020/08.02.2020 for getting the issue investigated. The
Director General, Town and Country Planning, Haryana
disposed of the representation of the respondent No.2 on
19.03.2020 finding no merit in the allegations of forgery however
the accused Company was restrained from undertaking further
development of the project as the land allegedly purchased by
the State was still in the names of the co-sharers and partition
had not been done. The ownership of the Developer was not
established till then. After passing of order dated 19.03.2020,
final partition of the land has already been taken place. The
respondent No.2 has also filed an appeal against the order
dated 19.03.2020 before the Financial Commissioner which is
pending. In the meanwhile, Economic Offence Wing, Gurugram
after investigation of the complaint dated 08.02.2020 and
noticing the matter in controversy pursuant to the direction
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dated 29.05.2018 passed in CWP No.13933 of 2018 pending
before the Director General, Town and Country Planning,
Haryana, forwarded the complaint to the Director General, Town
and Country Planning, Haryana. Despite the grievance of the
petitioner having been adjudicated by the Director General,
Town and Country Planning, Haryana, the appeal against the
said order pending before the Principal Secretary, the
complainant chose to file the complaint under Section 200
Cr.P.C. before the Chief Judicial Magistrate, Gurugram.
In view of aforesaid facts, learned Senior counsel for
the petitioner seeks to quash the impugned complaint, order
dated 07.01.2021 and consequent FIR in pursuance thereof
along with all subsequent proceedings undertaken thereto.
[19]. Per contra, learned counsel for the respondent No.2
submitted that the present petition is not maintainable as the
cognizable offence is made out. The complaint was addressed
to the Commissioner of Police with specific endorsement for
"Economic Offence Wing". The complaint was entered into the
diary kept for that purpose. In compliance of Section 141 IPC
read with Section 49 of the Haryana Police Act, the complaint
was marked by the Commissioner of Police performing the
functions of Superintendent of Police under Section 83 of the
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Haryana Police Act to DCP equivalent to Superintendent of
Police. Marking of the complaint in itself is sufficient to show that
the competent authority has applied its mind in order to
ascertain whether the cognizable offence is made out or not.
The action taken report was considered by the Chief Judicial
Magistrate. In another action taken report, there is a report of
the Police obtaining record from the Banks and Sub-Registrar in
respect of forgery committed by the accused. The report is also
signed by the Incharge, Economic Offence Wing.
[20]. Learned counsel for the respondent No.2 further
submitted that for the offences of the present type, a specialized
wing of the Police in the name of Economic Offence Wing has
been constituted. No cognizance of an offence capable of being
taken under Economic Offence Wing would be entertained
without recommendation of Commissioner of Police. Such
offences could be inquired/investigated only by the Economic
Offence Wing. The cases involving less than Rs.50 lakhs is to
be considered at the level of Police Station and the cases of
Economic Offence Wing cannot be entertained or transferred
from the Economic Offence Wing to other police station except
with the direction of the Commissioner of Police. The Economic
Offence Wing has been constituted in compliance of the
direction of the Hon'ble Apex Court.
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[21]. Learned counsel for the respondent No.2 further
submitted that in Gurugram there is Commissionerate and there
is no police post of Superintendent of Police or Senior
Superintendent of Police. The DSP is equivalent to the SP/SSP.
With reference to the aforesaid nomenclature, learned counsel
for the respondent No.2 submitted that the powers and functions
of the Superintendent of Police are to be exercised by the
Commissioner of Police in terms of Section 83 of the Haryana
Police Act. Therefore, where a complaint was submitted to an
officer higher in rank to the Superintendent of Police, there was
no scope of submitting any representation to the junior officer.
Marking of complaint by the Commissioner of Police in itself is
sufficient material to show that he had applied his mind in
respect of existence of cognizable offence.
[22]. Learned counsel for the respondent No.2 further
submitted that in view of the fact that the complaint is in respect
of economic offence and, therefore, in view of provisions of
Section 95 of the Haryana Police Act, 2007, the provisions of
Cr.P.C was applied in so far as they are not inconsistent with
the provisions of this Act. Thus when a special Wing has been
constituted while exercising statutory powers under the Haryana
Police Act 2007 and rules framed thereunder, the powers are
being exercised by the officers higher in rank to the officers
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specified under Section 156 Cr.P.C. The provisions of Section
156 Cr.P.C. have to be read in conjunction with the Sections 95
and 48 of the Haryana Police Act, 2007 and also in terms of the
Scheme of the economic offences. Learned counsel also
highlighted the Haryana Police Act 2007 with reference to its
provisions. The Gurugram Police Commissionerate was formed
vide notification dated 26.08.2009.
[23]. Learned counsel for the respondent No.2 further
submitted that in terms of order dated 27.01.2021 passed by
this Court, the contention of the petitioner in itself is sufficient to
demolish his plea regarding non-compliance of Sections 154(1)
Cr.P.C. The affidavit was filed along with the complaint under
Section 156(3) Cr.P.C. and the same is so mentioned in index
also. All the requisite particulars given in the complaint were
duly supported by the affidavit and there was sufficient material
available before the Chief Judicial Magistrate to take
cognizance of the allegations. Taking of cognizance by the
Chief Judicial Magistrate was fully in consonance with the
parameters as laid down in Lalita Kumari vs. Govt. of U.P. &
Ors. 2014(1) SCC (Cri) 524.
[24]. With reference to the Devrapalli Laxmi Narayana
Reddy and others vs. Narayana Reddy and others (1976) 3
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SCC 252, learned counsel for the respondent No.2 further
submitted that when the Magistrate receives the complaint, he is
not bound to take cognizance, if the facts alleged in the
complaint disclose the commission of an offence. This is clear
from the use of words 'may take cognizance' which in the
context in which the occur cannot be equated with 'must take
cognizance'. The word 'may' gives discretion to the Magistrate in
the matter. If on reading of a complaint, he finds that the
allegations therein disclose a cognizable offence and forwarding
of the complaint to the Police for investigation under Section
156(3) Cr.P.C. will be conducive to justice and save the valuable
time of the Magistrate in enquiring into the matter which was
primarily the duty of the Police to investigate, he will be justified
in adopting that course as an alternative for taking cognizance
of the offence himself. When on receiving the complaint the
Magistrate applies its mind for the purposes of proceedings
under Section 200 Cr.P.C. and the succeeding Sections in
Chapter XV, he is said to have taken cognizance of the offence
within the meaning of Section 290(1)(a) Cr.P.C. If, instead of
proceeding under Chapter XV, in the judicial exercise of his
discretion, he has taken action of some other kind, such as
issuing search warrant for the purpose of investigation, or
ordering investigation by the Police under Section 156(3)
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Cr.P.C., he cannot be said to have taken cognizance of any
offence. In broad spectrum, there is no dispute with regard to
the legal position involved in the present case.
[25]. Learned counsel for the respondent No.2 has made
strenuous effort to satisfy this Court that functioning and
supervision of Economic Offence Wing would negate the theory
of the petitioner. Policy Provisional/Provincial Order No.1/17
was issued by the office of Commissioner of Police, Gurugram
on the subject of functioning and supervision of Economic
Offence Wing. In view of the increasing number of complaints
relating to the economic offences and cases and work in
balance in Commissionerate of Gurugram, it has been decided
that Economic Offence Wing of three Districts are merged in the
office of Commissionerate of Gurugram. This provisional/
provincial order has been prepared with respect of functioning of
the same in future working under the Economic Offence Wing
and its supervision shall be in accordance with the
provisional/provincial order. The main objective of the Economic
Offence Wing is to conduct impartial and speedy resolution of
the matters pertaining to embezzlement, fraud or forgery of
document and record. All the non-gazetted officers presently
posted shall work as Investigating Officer of this Wing and all
the pending inquiries/investigation shall be completed by these
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Investigating Officers as per procedure.
[26]. With reference to the aforesaid policy
provisional/provincial order, learned counsel for the respondent
No.2 made reference to classification of the matters for
investigation/inquiry, supervisory officers and matters for
investigation-cum-inquiry which are the matters involving
property more than Rs.50 lakhs that can only be assigned to
Economic Offence Wing for inquiry and investigation. The
Commissioner of Police shall have a special right to assign any
mater to the Wing for inquiry or investigation. The concerned
Deputy Commissioner of Police shall assign the matter to the
Wing for inquiry/investigation falling within his area of jurisdiction
only. The matters involving property of less than Rs.50 lakhs
shall be got inquired/investigated by the Deputy Commissioner
of Police at the police station level. Neither any matter could be
marked to Economic Offence Wing nor can any matter be sent
back from the Economic Offence Wing to the Police Station
without permission of the Commissioner of Police, Gurugram. A
specific procedure is assigned in the inquiry into the complaints.
[27]. On the basis of aforesaid procedure, learned counsel
for the respondent No.2 further submitted that there is
compliance of mandatory provisions of law. The complaint was
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duly routed through the Commissioner of Police to Incharge,
Police Station.
[28]. After hearing learned counsel for the parties, this Court
finds that the impugned order dated 07.01.2021 passed by the
Chief Judicial Magistrate, Gurugram needs to be revisited by the
Court itself as the same is non-speaking with reference to the
legal requirements arising from the parameters as laid down in
Shri Subhkaran Lubharka and Anr.; Priyanka Srivastava;
Babu Venkatesh and others and Amit Joshi's cases (supra).
This Court does not wish to comment anything on merits of the
case and all issues are left open at this stage except to remand
this case to the Court of Chief Judicial Magistrate with a
direction to pass fresh order in view of mandatory requirement
of law and also to consider the stand taken by the respondent
No.2 with reference to any policy provincial/provisional order
No.1/2017 issued by the office of Commissioner of Police,
Gururam in respect of functioning and supervision of the
Economic Offence Wing.
[29]. The Chief Judicial Magistrate shall independently
consider the submissions of the petitioners as well as that of the
respondent No.2 in accordance with law without being
influenced by any statement of fact recorded in this order.
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Needless to say that the order of the Chief Judicial Magistrate
must exhibit the application of mind as required under Section
156(3) Cr.P.C. in the light of the judgments discussed in the
preceding part of the order.
[30]. At this stage, this Court does not wish to opine
anything on merits of the case, lest it may prejudice the case of
the parties. The impugned order dated 07.01.2021 passed by
the Chief Judicial Magistrate, Gurugram appears to be non-
speaking in the light of legal requirement for that the Chief
Judicial Magistrate shall be under legal obligation to reconsider
the issue afresh strictly in accordance with law and thereafter
pass speaking order exhibiting due application of mind after
grasping the facts of the case and law on the subject with
reasoned order. All other grounds are still left open.
[31]. In view of aforesaid, this petition is disposed of. All
other civil misc. applications, if pending are also disposed of
accordingly.
(RAJ MOHAN SINGH)
July 05, 2023 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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