IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI [CASE NUMBER] Date of Institution : 15.09.2011 Date of Arguments : 05.12.2011 Date of Order : 12.12.2011 [ENTITY] Revisionist Versus [ENTITY] & Anr. Respondent ORDER
This order will dispose off a revision for setting aside order dated 01.09.2011 passed by Sh. [ENTITY], Ld. M.M., Karkardooma Courts, Delhi.
2. I have heard arguments of Ld. Counsels for the revisionists, Ld. Addl. Public Prosecutor for state and Counsel for respondent no. 2 and perused file as well as Trial Court Record .
3. On perusal of impugned order, I find that Ld. M.M. after hearing on application of complainant/respondent no. 2 u/[SECTION] [ACT], mentioned in the order as u/[SECTION] [ACT] and considering the status report ordered for registration of FIR against the accused/revisionist. It was also observed that allegations made in the complaint were serious in nature. Investigation by police was required as genuineness of signature on the cheques was to be verified by applying scientific techniques. The court also opined that it was appropriate if case is investigated by the police. Having aggrieved from that order the revisionist filed the present revision.
4. The impugned order has been assailed on the grounds inter alia that impugned order was against the law and facts; impugned order was passed without jurisdiction and the cognizance taken by Ld. M.M. was illegal. The respondent no. 2/complainant was having friendly relations with brother of revisionist and a friendly loan of Rs.3,50,000/- in the presence of Sh. [ENTITY], brother of revisionist was given to the complainant/respondent no. 2. The impugned order will cause irreparable injury to the revisionist as the impugned order is erroneous and against the principles of natural justice, equity and good conscience.
5. During the course of arguments Ld. Counsel for revisionist argued that complainant had filed an application u/[SECTION] [ACT] but the Ld. M.M. passed order u/[SECTION] of [ACT] therefore the impugned order is illegal.
6. On the other hand, Ld. Counsel for respondent no. 2 argued that impugned order is legal and proper. The revision is not maintainable as it has been filed against an interlocutory order.
7. In support of his arguments Ld. Counsel for respondent no. 2 relied on a case [PRECEDENT], in [CASE NUMBER], wherein High Court of Judicature at Allahabad observed that:
"6. In the case of [PRECEDENT], this Court has observed as follows:-
"Where an order is made under [SECTION] [ACT] directing the police to register FIR and investigate the same, the Code no where provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order under [SECTION] or during the stage of investigation until Courts takes cognizance and issues process, he can not be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He can not be termed as an "aggrieved person" for purpose of [SECTION] of the Code."
7. At the Stage of [SECTION] [ACT], any order made by the Magistrate does not adversely affect the right of any person, since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused can not challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. If the accused does not have a right to instal the investigation, but for the limited grounds available to him under the law, it surpasses all suppositions to comprehend that he possesses a right to resist registration of F.I.R." (Emphasis supplied)
8. In support of his arguments Ld. Counsel for respondent no. 2 further relied on a case [PRECEDENT], wherein Rajasthan High Court observed that:
"6. In my considered opinion the argument advanced by the learned counsel for the petitioners has substance. I am of the view that there is express bar under [SECTION] [ACT] about filing of revision against an interlocutory order, therefore, the revision was not maintainable. The learned Sessions Judge has illegally interfered with the interlocutory order dated 03.06.1995 passed by learned Magistrate as he lacks inherent jurisdiction hence the order passed by him on 23.01.1996 is perse illegal, nullity and void ab-intio which deserves to be ignored. Although against interlocutory order filing of revision is barred under [SECTION] [ACT] yet such interlocutory order can be challenged under [SECTION] [ACT] and can be interfered in rarest of rare cases by the court provided its judicial conscience is shaken with the order impugned."
9. In support of his arguments Ld. Counsel for respondent no. 2 further relied on a case [PRECEDENT], wherein Supreme Court observed that:
"16. The power in the Magistrate to order further investigation under [SECTION] is an independent power and does not affect the power of the investigating officer to further investigating the case even after submission of his report vide [SECTION]. Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide [PRECEDENT].
(SCC:AIR para 19)
17. In our opinion [SECTION] [ACT] is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. [SECTION] [ACT], though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation."
10. In support of his arguments Ld. Counsel for respondent no. 2 further relied on a case [PRECEDENT], wherein Supreme Court observed that:
"6. Let us now proceed to interpret the provisions of [SECTION] against the historical background of these facts. [SECTION] of the 1973 Code may be extracted thus:
"The powers of revision conferred sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
11. In support of his arguments Ld. Counsel for respondent no. 2 further relied on a case [PRECEDENT], wherein Allahabad High Court observed that if an information is given to the police about commission of a cognizable offence, it is the statutory duty of the police to lodge FIR and the police cannot investigate a case unless FIR is lodged.
12. On perusal of file and Trial Court Record and considering the rival contentions of Ld. Counsel for parties, I am of the view that there is no merit in the revision. The reasons which support to my decision are firstly, that impugned order comes in the category of interlocutory order. The principles of law laid down in cases [PRECEDENT], (supra), [PRECEDENT], (supra) and [PRECEDENT], (supra) relied by Counsel for respondent no. 2 are applicable in the present case.
13. Secondly, the arguments of Ld. Counsel for revisionist that Ld. M.M. was not having power to pass impugned order and direct the police to register the case and investigate u/[SECTION] [ACT] in a case where complainant had filed an application only u/[SECTION] of [ACT] is not tenable.
14. It would be appropriate to produce provisions of [SECTION] which runs as under:
"156. Police officer's power to investigate cognizable case.-(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of [SECTION].
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under [SECTION] may order such an investigation as above-mentioned."
The provisions make it clear that Ld. M.M. has power to order the police to register a case and to make investigations.
15. Thirdly, the principles of law laid down in case [PRECEDENT], (supra) and [PRECEDENT], (supra) relied on by Counsel for respondent no. 2 are applicable on the facts of present case and support this decision on the point that Ld. M.M. was having power to register a case and direct the police to investigate the case u/[SECTION] [ACT] even if an application u/[SECTION] [ACT] was filed by the complainant.
16. In view of the above reasons and discussion, I am of the view that there is no infirmity, incorrectness, inaccuracy or impropriety in the order of Ld. Magistrate. Accordingly, the present revision petition is dismissed.
17. Trial court record be returned along with copy of this order.
18. Revision file be consigned to Record Room.
Announced in the Open Court on 12.12.2011 (DR. [ENTITY]) Additional Sessions Judge-02,East Karkardooma Courts, Delhi