1 IN THE COURT OF MS. [ENTITY] ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02 (CENTRAL) DELHI Crl. R. NO. 04/15 1. [ENTITY] s/o Sh [ENTITY] 2. Shri [ENTITY] 3. Smt [ENTITY] w/o Sh [ENTITY] All resident of E9, (Second Floor) New Police Line, Delhi09. REVISIONIST versus 1. [ENTITY] (GOVT OF N.C.T OF DELHI) 2. Smt [ENTITY] w/o Sh [ENTITY] r/o H. No. C9/10, Gandhi Vihar Delhi. RESPONDENT DATE OF INSTITUTION : 10.02.2015 DATE OF JUDGMENT : 10.03.2015 J U D G M E N T
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1. The present criminal revision petition has been preferred by the revisionists against order dated 21.01.2015 passed by Sh [ENTITY], Ld Metropolitan Magistrate, Delhi whereby Ld Magistrate directed the SHO, PS Timarpur to get the FIR registered against the revisionists on the complaint filed by the Respondent no. 2.
2. Brief facts leading to the present revision are that petitioner no. 1 is the owner inpossession of flat no E5859, Third Floor, Gandhi Vihar, Delhi. Husband of respondent no. 2 namely [ENTITY] approached petitioner no. 1 for purchase of property and after discussion the parties agreed to enter into the sale/purchase of the said flat for total sale consideration of Rs.48,68,000/. Part payment of the sale consideration was made to petitioner no. 1 and remaining amount was to be paid in installment on 29.08.2014 and 30.10.2014. As per the allegations of the petitioner/revisionist, herein, husband of Respondent no. 2 failed to make the payment, therefore the sale transaction could not be completed, which led to the dispute between the parties.
3. As per the averments made by the revisionist/petitioner, on 02.11.2014 when Petitioner no. 1/Revisionist no. 1 along with Revisionist no. 3 visited their aforesaid property, they found that property was occupied by Respondent no. 2 and other family [CASE NUMBER] Page 2 of 13 pages members and friends of Respondent no. 2. Quarrel took place between the parties. Matter was reported to the police and on the complaint filed by petitioner no. 1, FIR no. 753/2014 was recorded in PS Timarpur against the husband of Respondent no 2 and one [ENTITY]. Later on, during the hearing on bail application of husband of Respondent no 2 and one [ENTITY], revisionists compromised the matter with the other party and their statements were recorded on 04.11.2014.
4. It is now the case of the revisionists that respondent no. 2 had filed a complaint before Ld Trial Court and considering the averments made in that complaint by Respondent no. 2/complainant, Ld Trial Court vide impugned order dated 21.01.2015 had ordered to register FIR against the present revisionist. This order has been challenged by the revisionist on the following grounds
a) That no such facts or molestation had occurred.
b) That Ld Trial Court has erred in passing the order for lodging of FIR without calling the status report.
c) That the complaint lodged by Respondent no. 2 against petitioner/revisionist on 08.11.2014 is an after thought and counter blast to the FIR lodged against her husband by the revisionist.
with these and similar grounds revisionist has prayed for [CASE NUMBER] Page 3 of 13 pages setting aside /quashing of the impugned order dated 21.01.2015 passed by Ld Trial Court in [CASE NUMBER] titled as Smt [ENTITY] vs [ENTITY] and ors and dismiss/reject the complaint of the respondent no. 2 being based on false and misconceived facts.
5. On receipt of present revision petition, the matter was fixed for maintainability of the revision as till that time, Ld Trial Court has not summoned the revisionists as accused and the FIR has not been lodged when the revision was filed. This court was of the opinion that unless the matter has been brought to the knowledge of the revisionists ie unless they have been summoned by Ld Trial Court, they have got no locus standi to file the present revision.
6. I have heard arguments from Sh. [ENTITY], Ld counsel for revisionists. I have also heard arguments from Ld Additional P.P Shri [ENTITY]. In support of his arguments Ld counsel for revisionist has relied upon following authorities:
1. [PRECEDENT] Supreme Court Cases 705
2. [PRECEDENT]
3. Cr M C No 1952/2009 [ENTITY] vs [ENTITY]
4. (2009) 7 Supreme Court Cases 685.
7. The contention of Ld counsel for revisionists has been that before Hon'ble High Court of Delhi, similar situation had arisen [CASE NUMBER] Page 4 of 13 pages and Hon'ble High Court has considered the aspect and has held the revision filed against the order of registration of FIR is maintainable. Therefore the judgments squarely applies to the present case hence the revision is maintainable.
8. On the other hand Ld Additional P.P had argued that Hon'ble High Court of Allahabad in case 2011 Crl L J 2278 Father [ENTITY] vs [ENTITY] of UP has held that directions for registration of FIR u/[SECTION] [ACT] is not revisable order as accused has no locus standi to challenge the said directions, hence revision is not maintainable.
9. I have considered the arguments advanced by Ld counsel for the parties, judgments relied upon by Ld counsel for the parties and gone through the file.
10. After considering the lengthy arguments advanced by Ld counsel for revisionists, judgments relied upon and material available on record, I am of the opinion that point relevant to be considered at the stage of maintainability of present revision is, "whether the accused persons ie persons against whom FIR has been ordered to be registered u/[SECTION] [ACT] have any locus standi to challenge the said order or not". The other contentions of Ld counsel for revisionists which are on merits are not to be considered, at this stage, as only the maintainability of present revision is being considered at this stage.
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11. I have carefully considered the judgment passed by Hon'ble High Court of Allahabad (Full Bench)Father [ENTITY] vs [ENTITY] of UP (Supra) as well as judgment passed by Hon'ble High Court of Delhi in [ENTITY] and Anr. Vs [ENTITY] & othersCrl.M.C No 1952/2009.
12. The contention of Ld counsel for revisionists has been that Hon'ble High Court of Delhi had allowed the revision to be filed against the order of the directions for registration of FIR in [ENTITY] vs [ENTITY], therefore present revision petition is also maintainable. I have carefully considered and perused the judgment passed by Hon'ble High Court of Delhi. In that case question before Hon'ble High Court of Delhi was whether the order directing registration of FIR while exercising its power u/[SECTION] [ACT] is interlocutory order or an intermediate order. Referring to that question, Hon'ble High Court has considered the judgment of Hon'ble High Court of Allahabad in Father [ENTITY] vs [ENTITY] of UP (Supra) as well as judgment passed by Hon'ble Supreme Court in [ENTITY] vs Dharmender Bafna and another ( (2009) 7 Supreme Court Cases 685), it was considered by Hon'ble High Court of Delhi in [ENTITY] case that in [ENTITY] Vs Dharmender Bafna (Supra), Hon'ble Supreme Court has ruled as under:
"It is correct that the revisional court should not [CASE NUMBER] Page 6 of 13 pages interfere with the discretionary jurisdiction exercised by the Ld Magistrate unless a jurisdictional error or an error of law is noticed".
13. On the basis of these observation, Hon'ble High Court of Delhi in Manohar Lal vs [ENTITY] case had reached to the conclusion that "order u/[SECTION] [ACT] is revisable and impugned order holding revision petition against it to be maintainable does not suffer from any illegality or perversity".
14. Coming to the judgment passed by Hon'ble Apex Court in [ENTITY] vs Dharmender Bafna and another it is clear from the said judgment that issue before Hon'ble Supreme Court in [ENTITY]'s case was in relations to the scope of [SECTION] [ACT] In [ENTITY]'s case (mentioned above), FIR was lodged against some persons ie Appellant no. 1 to Appellant no. 9 and after the registration of FIR, investigation was carried out by two separate agencies and they did not reveal anything against Appellant no 3 to Appellant no. 10. Therefore, the Ld Magistrate, upon receipt of report u/[SECTION] [ACT] took cognizance against Appellant no 1 and Appellant no. 2. The complainant approached Hon'ble High Court u/[SECTION] [ACT] and the Hon'ble High Court remanded the matter to the Magistrate for giving opinion for further investigation u/[SECTION] [ACT], which was [CASE NUMBER] Page 7 of 13 pages allowed by Ld Magistrate. Against this order, Appellant no 2 to 5 filed revisional application before Hon'ble High Court, which was allowed & thus matter reached before Hon'ble Apex Court & resulted in upholding of order passed by Hon'ble High Court of Madras. Therefore the issue involved in [ENTITY]'s case was regarding the scope of [SECTION] [ACT] and after the FIR had already been registered, whether the order granting the time for further investigation u/[SECTION] [ACT] was revisable or not. But in the present case even the FIR has not been registered and only the directions has been given by Ld Magistrate to lodge the FIR against the revisionist. Thus, the facts of present case can be differentiated from the facts of the case before Hon'ble Apex Court in [ENTITY]'s case (Supra).
15. In Father [ENTITY] vs [ENTITY] of UP's case, Full Bench of Hon'ble High Court of Allahabad was constituted for examining the power of the court in Criminal Revision to question the order of Ld Magistrate issuing the directions u/[SECTION] [ACT] to the police to register the FIR. In this case, opinion of the Full Bench was sought on three issues:
A) Whether the order of the Magistrate made in exercise of powers under [SECTION] [ACT] directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued?
[CASE NUMBER] Page 8 of 13 pages B) Whether an order made under [SECTION] [ACT] is an interlocutory order and remedy of revision against such order is barred under [SECTION] of the [ACT]?
C) Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya vs [ENTITY] of UP and others reported in 2000 (41) ACC 435: (2000) AII L J 2730) that as an order made under [SECTION] [ACT] is amenable to revision, no writ petition for quashing an FIR registered on the basis of order will be maintainable, is correct?
16. For the purpose of present revision petition, we are concerned only with point (A) on which detail discussion was done by Hon'ble High Court of Allahabad. During the discussion, Hon'ble Full Bench of Allahabad High Court considered and observed that :
"When a complaint is filed u/[SECTION] and the court decides to take cognizance and to adopt the procedure provided for inquiry under [SECTION] and [SECTION] [ACT], the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defence, until the order issuing summon is passed. The right of hearing of a prospective accused at the pre cognizance stage, when only a direction for investigation by the police is issued by the Magistrate under [SECTION] [ACT], can only be placed at a lower pedestal. It is only during the course of trial that accused has been conferred rights at different stage to raise his [CASE NUMBER] Page 9 of 13 pages defence. In the absence of any statutory right of hearing to the prospective accused at the pre cognizance stage, when direction to investigate has only been issued by the Magistrate u/[SECTION], the accused cannot be conferred with any right of hearing even under any principle of audi alteram partem.
Even after submission of a final report, either when police decides to order further investigation u/[SECTION] or before accepting or rejection the report, only the informant is required to be heard. The accused is not entitled to be heard even at that stage. Therefore, it would be unrealistic to confer a right of hearing when only an innocuous direction for investigation is passed by the Magistrate in a case disclosing a cognizable offence, especially when the allied order regarding the decision of a police officer to investigate in exercise of powers u/[SECTION] is not vulnerable to challenge in the criminal revision. Also when objections to maintainability of a case are raised on the ground of limitation u/[SECTION] [ACT], the appropriate stage for raising these objections is at the time of cognizance or at the time of framing of charges, and not when a Magistrate issues a directions for investigation under [SECTION] [ACT]
Thus, the prospective accused has no locus standi to challenge a directions for investigation of a cognizable case u/[SECTION] in revision before cognizance or issuance of process against the accused.
17. After considering the various judgments Hon'ble High Court came to the conclusion that:
[CASE NUMBER] Page 10 of 13 pages "the order of the Magistrate made in exercise of powers under [SECTION] [ACT] directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued."
18. In view of above discussion, I am of the opinion that the scope and contention in all the three judgments referred above ie [ENTITY] case, 2. [ENTITY] s Dharmender Bafna and 3. Father [ENTITY] vs [ENTITY], cases are different. In Father [ENTITY]'s case Full Bench of Hon'ble Court of Allahabad has dealt with the issue of locus standi of prospective accused to challenge the order of the directions of registration of FIR whereas in [ENTITY] case the question was whether the order passed for registration of FIR is an interlocutory order or not and in [ENTITY]'s case the scope was directed towards the investigation order issued u/[SECTION] [ACT], after the registration of the FIR. Therefore, I am of the opinion that facts of case Father [ENTITY] vs [ENTITY] of UP squarely applies to the present case as in the present case also the prospective accused have challenged the order of the directions passed for registration of FIR and in view of the judgment passed by Hon'ble High Court [CASE NUMBER] Page 11 of 13 pages of Allahabad (Full Bench), I am of the opinion that present revision is not maintainable as present revisionists have no locus standi to challenge the directions for investigation of cognizable case u/[SECTION] [ACT] unless they have been summoned or cognizance is taken by Ld Magistrate against him.
19. The judgments relied upon by Ld counsel for revisionists, ie [PRECEDENT] and [ENTITY] vs M.K Ayappa , are not applicable to the facts of the present case. The order passed by Hon'ble Supreme Court in [ENTITY]'s case can be differentiated from the present case as in that case revision was filed by the revisionist against the order of framing charge, and while considering the same, Hon'ble High Court of Delhi, appreciated the material/evidence on record, hence the order of Hon'ble High Court was set aside by Hon'ble Supreme Court. These facts are not applicable to the facts to the case in hand.
20. On the other hand, case of [ENTITY] deals with sanction required to prosecute the public servant u/[SECTION] [ACT] & [SECTION] [ACT] This judgment can also be differentiated from the facts of present case as the said judgment is in respect to the sanction required for taking cognizance against the public servant. As per [SECTION] [ACT] the sanction is required for taking cognizance of offence, committed while performing [CASE NUMBER] Page 12 of 13 pages duties as such public servant. In the present case also, there are no facts that the commission of offence has taken place while prospective accused persons/revisionists were performing any such official duty. Hence these judgments are of no help to the revisionists.
21. In view of above discussion I am of the opinion that revision as filed by the revisionist is not maintainable and is therefore dismissed. Parties are directed to appear before Ld Trial Court on 19.03.2015.
22. Trial court record be sent back to Ld Trial Court with the copy of the order. File of revision be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 10th March, 2015. ( [ENTITY] ) ADDL. SESSIONS JUDGE (CENTRAL) DELHI [CASE NUMBER] Page 13 of 13 pages