* IN THE HIGH COURT OF DELHI + Crl.M.C. No.3425/2005 State ....... Petitioner through: Ms.Mukta Gupta, Adv. VERSUS Mohd.Iqbal Ghazi & Ors. ....... Respondents through: Mr.Bahar-U-Barqui, Adv. for respondent No.1 Mr.Rajesh Mahajan, Adv. for respondent No.2 Mr.Vipin Gogia, Adv. for respondent No.3. Crl.M.C. No.5521/2005 Vivek Gogia ....... Petitioner through: Mr.Vipin Gogia, Adv. VERSUS State ....... Respondent through: Ms.Mukta Gupta, Adv. for respondent No.1 Mr.Bahar-U-Barqui, Adv. for respondent No.2. DATE OF DECISION % 12.09.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Akbar was admitted at GTB Hospital on 19.3.2003. Crl.M.C.Nos.3425/05 & 5521/05 Page 1 of 27 Medical record prepared at time of admission in the hospital records that Akbar was suffering from acute pulmonary-cum- respiratory disorder and was complaining of acute breathlessness. Past history of Akbar was recorded by noting that he was a known smoker and was an alcoholic. Akbar remained an indoor patient till 21.3.2003. He expired on 21.3.2003 at about 1.40 pm. Death certificate recorded cause of death : OPD č Carpulmnaire with hypotemensia; (meaning thereby, Chronic obstructive disease with enlarged heart and septicimia and low blood pressure). 2. Mohd.Iqbal Ghazi lodged a complaint with the Commissioner of Police on 4.6.2003 alleging that Akbar was murdered by Sh.Vivek Gogia, DCP North-East District, Delhi and Sh.Gurcharan Das, SHO PS Seelampur. He alleged that the local police had registered numerous false cases against his son and that pertaining to one such false case being FIR No.212/2000, Sh.Vivek Gogia and Sh.Gurcharan Das were pressurizing Akbar to give false evidence. He alleged that Akbar resisted the pressure from the said police officers. He alleged that proceedings pertaining to FIR No.212/2000 were to be taken up by Sh.Sanjeev Aggarwal, Metropolitan Magistrate, Delhi on 27.2.2003 and that Akbar reached the Court intending to tell the truth to the learned Metropolitan Magistrate but could not do so as the learned Magistrate was on leave. He stated that on 27.2.2003 itself, Akbar swore an affidavit before an Oath Commissioner Crl.M.C.Nos.3425/05 & 5521/05 Page 2 of 27 recording:- “3. That yesterday night SHO Seelampur, Shri Gurbachan Das came along with five police personnels asked me to appear before the Court on the date fixed. Today, I stated him that I do not know anything in the aforesaid FIR therefore, I cannot make any statement. He read over the FIR to me and threatened me to give the statement in accordance with the allegations made in the FIR. He further said that in case if he did not give the statement he and his wife will be murdered and their bodies shall be thrown in Jamuna, nobody on earth ever can identified their bodies. 4. That my life and the life of my wife is in danger if any untowards incident took place then for such an incident the SHO Police Station Seelampur, Mr.Gurcharan Das and other police personnel of Seelampur, Delhi should be responsible.” 3. Mohd.Iqbal Ghazi further alleged in his complaint that on 4.6.2003 he learnt that Akbar had died and that when he went to Akbar's house, he learnt from the children of Akbar that Akbar remained untraceable from 17.3.2003 to 19.3.2003 and that Akbar was found lying unconscious next to his house in the morning and was removed to GTB Hospital where he died on 21.3.2003. He stated that Akbar's children gave him some papers which included the affidavit dated 27.2.2003. 4. The aforesaid complaint was enquired into and it was reported that the same was false. The said report was premised on a statement of Smt.Raheesan, wife of Akbar, recorded by the police during enquiry and the medical record of GTB Hospital. In her statement, Smt.Raheesan stated that her husband died due to prolonged illness. The medical record ruled out any torture and on the contrary recorded cause of Akbar's death as afore- Crl.M.C.Nos.3425/05 & 5521/05 Page 3 of 27 noted in para 1 above. 5. Mohd.Iqbal Ghazi thereupon filed a complaint before Metropolitan Magistrate on 25.7.2003 alleging same facts as were stated in his complaint dated 4.6.2003. He alleged that his complaint evidenced commission of the cognizable offence of Akbar's murder. He alleged that the police was bound to register an FIR under Section 302 IPC and investigate the matter. He prayed that the accused i.e. Vivek Gogia, DCP and Gurcharan Das be summoned, tried and punished according to law. Along with the said complaint, Mohd.Iqbal Ghazi filed an application under Section 156 (3) Cr.P.C. praying:- “a. Direct the SHO of Police Station, Seelampur, Delhi to investigate the matter thoroughly and to lodge FIR against the accused person and to submit its report of investigation before this Hon'ble Court on the date to be fixed by this Hon'ble Court which will be in the interest of justice.” 6. Complaint dated 25.7.2003 along with the accompanying application under Section 156(3) Cr.P.C. was taken up for consideration on 31.7.2003 by the learned Metropolitan Magistrate. It was adjourned to 4.8.2003 and thereafter to 11.8.2003, on which dated following order was passed:- “Arguments heard. Arguments of counsel for complainant heard on application u/S 156(3) Cr.P.C. He states that he does not press his application u/S 156(3) Cr.P.C. as accused persons are high ranking police officials and prays that it will be expedient if the matter is fixed for CE/Complainant's Evidence. In these facts and circumstances as the counsel for the complainant is not pressing his application u/S 156(3) Cr.P.C., matter be fixed for CE on 30.9.2003.” Crl.M.C.Nos.3425/05 & 5521/05 Page 4 of 27 7. On 30.9.2003 Mohd.Iqbal Ghazi led no evidence. Matter was adjourned to 16.10.2003. No evidence was led. Date notified was 21.10.2003. On said date the Presiding Officer had changed. Mohd.Iqbal Ghazi filed another application under Section 156(3) Cr.P.C. praying that directions be issued to the police to register an FIR under Section 302 IPC pertaining to Akbar's murder and thereafter conduct investigation. 8. This application was disposed of vide order dated 5.11.2003 directing the police to lodge an FIR. The order reads as under:- “The complainant has filed this complaint against the accused persons. Accused No.1 is stated to be the then DCP North East District and accused No.2 is stated to be the then SHO PS Seelampur. The complaint of the complainant that the aforesaid accused have committed the murder as per details given in the complaint. Ld. counsel for complainant has requested before the Court that the complaint be sent to the concerned PS for registration of an FIR and consequent investigation. Ld. counsel has also relied upon the citation “Madhu Bala vs. Sures Kr. 1957 JCC 532 (SC) and Suresh Chand Jain vs. State 2001 I AD (Cr.) SC 34”. Both the aforesaid cases deal with legal position regarding Magistrate's power to direct investigation after directing lodging an FIR in case cognizable offences. In Suresh Chand Jain (supra), the Hon'ble Supreme Court had held, 'For the purpose of enabling the police to start investigation it is open to magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer- in-charge of the police station as indicated in Section 154 of the Code. Even if a magistrate does not say in so many words while directing investigation under Section Crl.M.C.Nos.3425/05 & 5521/05 Page 5 of 27 156(3) of the Code that an FIR should be registered, it is cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter'. The Hon'ble Supreme Court following its earlier judgment in Gopal Dass Sindhi AIR 1961 SC 986 reiterated: “If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We can not read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint u/s 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offence is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence”. This is the position of law which was earlier laid down by the Hon'ble Supreme Court in Madhu Bala (supra) also. Therefore, this court is of the view that primarily it is the duty of the police to investigate such cognizable offences, hence a copy of the present complaint is hereby directed to be transmitted to the SHO, PS Seelampur to lodge an FIR and register a criminal case and file report before this court as per law. The compliance of this order be communicated to this Court latest by 20.11.03.” 9. Aggrieved by the order dated 5.11.2003, Gurcharan Das and Vivek Gogia filed a petition invoking the inherent jurisdiction of this Court, praying therein, that the order dated 5.11.2003 be quashed. The said petition was registered as Crl.M.C.Nos.3425/05 & 5521/05 Page 6 of 27 Crl.Misc.(C) No.4588/2003. A single point was urged. It was submitted that the learned Metropolitan Magistrate having dismissed the application under Section 156(3) Cr.P.C. vide order dated 11.8.2003 resulting in the learned Metropolitan Magistrate having proceeded under Section 200 Cr.P.C. the learned Judge could not retrace his steps and direct registration of an FIR exercising power under Section 156(3) Cr.P.C. 10. Vide Crl.Misc. No.7213/2004 the State sought impleadment as a co-petitioner in Crl.Misc.(C) No.4588/2003. The said application for impleadment remained pending when Crl.Misc.(C) No.4588/2003 was heard and decided by a learned Single Judge at this Court vide order dated 30.5.2005. Dismissing the same, it was held that nothing in the order dated 5.11.2003 shows that the learned Metropolitan Magistrate had come to a conclusion that a cognizable offence had been committed; by that date the learned Metropolitan Magistrate had not recorded that statement of the complainant; that no process was issued; that the complainant had withdrawn the application under Section 156(3) Cr.P.C. thus nothing prevented the complainant to file the second application. Holding that the learned Metropolitan Magistrate had not embarked upon the procedure provided under Chapter XV of the Code of Criminal Procedure, it was thus concluded that there was no bar on the magistrate issuing a direction to the police to register a case and investigate into the offence. Crl.M.C.Nos.3425/05 & 5521/05 Page 7 of 27 11. The State, Gurcharan Das and Vivek Gogia filed Petitions for Special Leave to Appeal before the Hon'ble Supreme Court against the order dated 30.5.2005. The said petitions were dismissed as withdrawn vide order dated 22.7.2005 which reads as under:- “Learned counsel for the petitioners submit that they would like to move before the Magistrate for appropriate relief in accordance with law and seek permission to withdraw the SLP and the application for permission to file SLP. Permission is granted. The special leave petition as well as the application for permission to file SLP are dismissed as withdrawn.” 12. Relegated to the remedy before the learned Metropolitan Magistrate the State as well as Vivek Gogia and Gurcharan Das filed applications before the learned Metropolitan Magistrate praying that order dated 5.11.2005 be treated as void and that the complaint filed by Mohd.Iqbal Ghazi be proceeded ahead in terms of the order dated 11.8.2003 i.e. the complainant be directed to lead evidence. 13. Vide order dated 25.7.2005 the application filed by Vivek Gogia and Gurcharan Das were dismissed. The application filed by the State was deferred but with a direction that a FIR be registered in terms of the order dated 5.11.2003. Order dated 25.7.2005 reads as under:- “Present : Complainant with counsel Sh.Gautam Pal Ld. Chief Public Prosecutor from Patiala House Courts with acting SHO PS Seelam Pur (who is in fact SHO, PS New Usmanpur). Advocate Sh.Sunil Mittal moving an application on behalf of Vivek Gogia and Gurcharan Dass. Crl.M.C.Nos.3425/05 & 5521/05 Page 8 of 27 Sh.Surya Prakash Katri on behalf of the applicant Raeesan. Ld. counsel Sh.Sunil Mittal has moved an application praying a relief to: i. examine the present matter in the light of the permission granted by the Hon'ble Supreme Court of India vide order dated 21.7.2005. ii. proceed with the matter in terms of order dated 11.8.03 passed by this Hon'ble Court without awaiting the registration of a case. iii. Treat the order dated 5.11.03 as void ab initio as the same was obtained by the complainant by making a false statement. The order of the Hon'ble Supreme Court dt.21.7.05 is already on record wherein the Hon'ble Supreme Court has granted permission to the petitioner to 'move before the Magistrate for appropriate relief in accordance with law'. Ld. Counsel has also argued that this Court has directed the police on the complaint of the complainant; hence the accused has also the right to be heard even prior to the conclusions of the proceedings, in the form of chargesheet U/sec.173 Cr.P.C. emanated from the order of this court U/sec.156(3) Cr.P.C. Ld. Counsel for complainant has opposed this application of Sh.Mittal on the ground that it is not properly signed by the applicants. But Ld. Counsel for accused submits that the Vakalatnama has been duly signed by the accused persons. This court has put a query to the Ld. Counsel Sh.Mittal, appearing for the accused as to under what provisions of law this Court has take, hear and dispose of this application at this stage when after an order u/s 156(3) Cr.P.C. even the FIR has not been registered by the concerned police. Under what provisions of law an accused can move the Court before being summoned pursuant to the chargesheet u/sec 173 Cr.P.C. No appropriate or clear provision of law has been cited or relied upon. The Hon'ble Supreme Court has clearly mentioned in the aforesaid order for appropriate relief in accordance with law and in absence of any such provision of Crl.M.C.Nos.3425/05 & 5521/05 Page 9 of 27 law this Court does not deem it fit to allow the accused persons, at this stage to move this court to reconsider its order dt.5.11.03 and 11.8.03 in particular circumstances when these orders have already been unsuccessfully challenged before the Hon'ble High Court. Hon'ble Supreme Court has also no granted any relief to the accused. The effect of the application of the accused, if allowed, would be to place this, the lowermost court in an appeal over and above the findings of the Hon'ble High Court, from where this court gets all its powers. The most illegal and absurd outcome! With these observations, the application of the accused and arguments in its favour is hereby dismissed as being not supported by law. Ld. Counsel has also argued that complainant Md.Iqbal Ghazi, by moving an application u/s 156(3) Cr.P.C. has tried to force the court not to exercise its discretion and list the case for recording evidence of complainant u/s 202 Cr.P.C. on wards. This court does not find this argument worth consideration. Ld. Chief Public Prosecutor has argued that u/s 202 Cr.P.C. it was not opened for the court to direct an investigation by the police after lodging an FIR as the present one was a case exclusively triable by the Ld. Sessions Court. Copy of this application supplied. Ld. Chief Public Prosecutor submits that he has no objection if the case is preponed. The acting SHO PS Seelampur has filed report/reply for the preponement. It is submitted by the local police that the FIR has not been lodged so far. The argument of the Ld. Cl. for the complainant, led on the LDOH has not still lost its relevance that despite these all applications the SHO PS Seelampur is not still absolved from his obligation to lodge an FIR immediately, which he has not done despite repeated directions. On the NDOH the SHO PS Seelampur is to come after due compliance of the directions o this Court, duly upheld by the Hon'ble Superior Courts. Failing compliance, the court would be forced to take action as per law. In addition to the compliance as aforesaid, the application of the Ld.Public Prosecutor and Smt.Raeesan be taken for hearing and disposal. The NDOH is preponed to 02.8.05.” 14. Afore-noted 2 petitions were thereupon filed praying Crl.M.C.Nos.3425/05 & 5521/05 Page 10 of 27 that orders dated 5.11.2003 and 25.7.2005 be quashed. Crl.Misc.(C) No.3425/2005 has been filed by the State and Crl.Misc.(C) No.5521/2005 has been filed by Vivek Gogia. 15. Ms.Mukta Gupta, learned counsel for the State, Sh.Rajesh Mahajan, learned counsel for Gurbachan Das (respondent No.2 in Crl.Misc.No.3425/2005) and Sh.Vipin Gogia, learned counsel for Sh.Vivek Gogia, urged the following:- 1. Whether the learned Metropolitan Magistrate before passing an order under Section 156(3) Cr.P.C. is duty bound to apply his mind to the fact whether any cognizable offence is made out or not from the complaint? 2. Whether the learned Metropolitan Magistrate is duty bound to look into the documents filed along with the complaint to see whether on the face of it a cognizable offence is made out or not before passing an order under Section 156(3) Cr.P.C? 3. Whether the learned Metropolitan Magistrate can look into the documents filed with the complaint selectively while passing an order under Section 156(3) Cr.P.C? 4. When on the face of it, in a case of natural death whether a direction under Section 156(3) can be given to register FIR by the learned Metropolitan Magistrate? 5. In case the case is at the stage of precognizance and the learned Metropolitan Magistrate had the mobility of passing any order as held by this Hon'ble Court, whether pursuant to the leave/permission granted by the Hon'ble Supreme Court the learned Metropolitan Magistrate was not duty bound to consider the application/report filed by the State before asking for compliance of the order dated 5.11.2003? 6. Whether learned Metropolitan Magistrate ought not to have got conducted a Preliminary Enquiry before directing registration of a case under Section 156(3) Cr.P.C. as held in the case of State vs. Bhagwant Kishore Joshi AIR 1964 SC 221; P.Sirajuddin vs. State of Madras : 1971 Crl.J. 523 & State of Haryana vs. Bhajan Lal 1992 Crl.M.C.Nos.3425/05 & 5521/05 Page 11 of 27 Suppl. (1) SCC 335. That as per law laid down by the Hon'ble Supreme Court, Preliminary Enquiry should be got conducted where there are accusations against head of Government Institution. 16. It was, inter alia, urged by learned counsel:- a. That the complaint had to be read along with the documents accompanying the complaint and so read, in view of the death certificate issued by GTB Hospital, it was obviously a case of natural death and hence the complaint and the documents annexed therewith did not disclose the commission of a cognizable offence. Learned counsel urged that under Section 156(3) Cr.P.C. a Magistrate can direct investigation by police only if information received by him discloses the commission of a cognizable offence. b. That some cryptic information disclosing an occurrence and not disclosing the commission of a cognizable offence cannot be treated as an FIR. Thus, in the instant case no investigation could be directed by the learned Magistrate for the reason no FIR could be registered on the information disclosed. c . That even at the stage of directing registration of an FIR under Section 156(3) Cr.P.C. the learned Magistrate has to apply his mind whether the facts disclosed to him disclosed the commission of a cognizable offence. d. That as held by the Hon'ble Supreme Court in various decisions and in particular in the decision reported as P.Sirajuddin vs. State 1970 (1) SCC 595 while directing registration of FIR against a head of a department a suitable Crl.M.C.Nos.3425/05 & 5521/05 Page 12 of 27 preliminary enquiry should be conducted because not only it affects him but the entire institution. e. That the learned Magistrate, as per the view taken by this Court vide order dated 30.5.2005 when Crl.Misc.C. No.4588/2003 was decided, had not yet taken cognizance of the complaint and had not embarked upon the procedure provided for in Chapter XV Cr.P.C. and hence was competent to entertain the application filed by the State as also by the police officers requiring him to treat the order dated 5.11.2003 as void and proceed ahead in terms of the order dated 11.8.2003. Learned counsel urged that the ratio of the order dated 30.5.2005 passed by a learned Single Judge of this Court was that till a Magistrate embarked upon the procedure provided for in Chapter XV Cr.P.C. he retained jurisdiction to decide whether to proceed under Section 156(3) Cr.P.C. or call upon the complainant to lead evidence in support of the complaint and merely because at some stage the application under Section 156(3) Cr.P.C. was dismissed did not prevent the Magistrate to reconsider another application under Section 156(3) Cr.P.C. but subject to the condition that the learned Magistrate did not proceed under Chapter XV Cr.P.C. Learned counsel urged that the logic of the same reasoning enjoined upon the learned Magistrate to decide on merits the applications which were the subject matter of the impugned order. f. It was further urged that the complainant had an axe to Crl.M.C.Nos.3425/05 & 5521/05 Page 13 of 27 grind against the police officers evidenced by not only him but even his close family relations involved in a series of offences. Thus, it was all the more necessary for the learned Magistrate to have acted with circumspect considering the criminal antecedents of the complainant and the probability of the complaint being motivated, malicious, mala fide and intended to sub-serve a collateral motive. g. Lastly, Ms.Mukta Gupta, learned counsel for the State urged that the complaint did not state that the complainant had witnessed Akbar being tortured by the police. The allegations in the complaint were admittedly hearsay because the complainant himself stated that what was written in the complaint was told to him by the family members of Akbar. That along with the complaint at serial No.40 of the list of documents the death certificate dated 21.3.2003 issued by G.T.B. Hospital was filed. Learned counsel urged that a bare perusal of the said death certificate rules out any physical torture and conclusively records that Akbar died in the hospital due to medical complications which were the result of Akbar being an alcoholic. Where was the material or the information before the learned Magistrate of Akbar's death being homicidal? Wondered the counsel. Thus, it was urged that it was a fit case to quash not only the impugned order but even the order dated 5.11.2003 as also the complaint being a vexatious complaint. 17. In response, Mr.Bahar-U-Barqui, learned counsel for Crl.M.C.Nos.3425/05 & 5521/05 Page 14 of 27 the complainant urged that in so far challenge was raised to the order dated 5.11.2003, the issue was res-judicata in view of the order dated 30.5.2005 dismissing Crl.Misc.(C) No.7213/04. As a sequetur, counsel urged, order dated 25.7.2005 suffered from no infirmity. Mr.Bahar-U-Barqui, learned counsel urged that there was no provision in law under which a Magistrate can review or recall his order and hence the learned Magistrate correctly held that he could not recall the order dated 5.11.2003. On merits, learned counsel urged that affidavit dated 27.2.2003 sworn before a learned Oath Commissioner was sufficient prima facie evidence of Akbar being murdered and hence a cognizable offence