Shankar Lal Gupta v. State

1. Ry this petition the Petitioner seeks registration of FIR against thc accused persons on the cornplaint lodged by him with PS Nazafgarh on 22nd November,

2009. It is contended that the Petitioner had filed a complaint under Sections 420/467/468/469/47I/34 IPC against Shiv Charan Gupta, Ran] Chander, Shiv Singh and Dharampal wherein it was requested that action be taken and the rnatter be invcstigated. The Petitioner sent reminder to the PS Nazafgarh through letters howcvcr no steps were taken by the SHO PS Nazafgarh. Aggrieved by the inaction on the part of the investigating agency the Petitioner filed a complaint behre learned N{etropolitan Magistrate and prayed for issuance of directions to the SII() PS Nazafgarh to register IrIR and investigate the matter. It is contended that DELHI AT NEW DELHI o wP(Crl.) No. 1037/2010 Page I of[5] 2011:DHC:16866 learned Mctropolitan Magistrate on 23'o January, 2010 called for the status report from the concerned SHO and the matter was listed for arguments. On 30th March, 2010, when the matter was listed, a handwritten status report was filed by the Sub- Inspector. On the basis of the said status report, learrred Metropolitan Magistrate rejected the prayer of the Petitioner under Section 156(3) Cr.P.C. and listed the matter for rccording the complainant's witnesses. Thereafter, the Petitioner filed Writ Petition(Crl.) No. 79912010 before this Court praying for issuance of directions for registration of FIR. Flowever, as the said petition did not have a specific prayer for setting aside the orders passed by the learned Metropolitan Magistrate, the Petitioner was allowed to withdraw the said petition with liberty to file a fresh petition.

2. Lcatncd counsel for the Petitioner contends that the impugned order passed by the learned Metropolitan Magistrate is in complete derogation of the scheme of the Criminal Procedure Code as the police instead of registering a formal FIR and then camying out an investigation, carried out an enquiry which is not warranted by any provision of the Code. It is contended that the only enquiry envisaged under the Code is at the post cognizance stage under Section 202 of the Code. No such cncluiry has been envisaged at the pre-cognizance stage. An absolute obligation is cast on the police to register a formal FIR on the receipt of a complaint disclosing prirna facie commission of cognizable offences under the Code. Further. it is WP(Crl.) No. 1037/2010 l" stated that the learned Metropolitan Magistrate vide order dated 30tr' March, 2010 refused the grant of registration of FIR merely on the basis that the wills of the father and rnother pertain to very old period, the parties in dispute are family members and that the rnutation does not confer any title on the property. It is stated that the only pararneter for registration of FIR is disclosure of a prima facie commission of a cognizable offence and nothing else. Thus the finding of the learned Metropolitan Magistrate that no investigation is required by the police and that the complainant is in a possession of the evidence to prove its case by leading the same in the Court is illegal and baseless.

3. Per contra, learned APP for the State contends that there is no illegality in the irnpugned order passed by the learned Metropolitan Magistrate as it is within the powers of the Magistrate to continue with the complaint case without passing an order for registration of FIR, if the Magistlate deerns it proper that the Complainanl is in a position to lead evidence and prove his case registration of FIR can be dispensed with.

4. I have heard learned counsels for the parties and perused the record.

5. Briefly, the allegations as set out in the cornplaint are that the accused persons with intention to usurp the joint property of the Complainant and legal heirs of late Sh. Richh Pal and Smt. I(apoori Devi forged will of Shri Ram Richh Pal and Smt. Kapoori Devi and on the basis of this forged will mutated half share WP(Crl.)No. 1037/2010 Page 3 of[5] q I of the property bearing No. 73412, Nazaf Garh in his nalne and also got mutated half share in the narle of the Complainant and his brother Ram Bhagat by forging thc signaturc of the Cornplainant and Ram Bhagat on all the papers i.e. application, indemnity bond, affidavit and the certificate of mutation was received bv hirn acknowledging the receipt on the record of MCD.

6. Status report has been filed by the SHO, Nazafgarfi stating that pursuant to the orders passed by the learned Metropolitan Magistrate to conduct an enquiry and submit a report an enquiry report had been filed before the learned Metropolitan Magistrate, arguments were heard on the application of the Petitioner under Section 156(3) Cr. P.C. and the case was listed for leading Petitioner's evidence in Courl. It is stated that the rnatter is pending evidence under Section 200 Cr.P.C. A cross-complaint has also been filed by Shiv Charan Gupta against the Petitioner alleging that his brother i.e. the Petitioner with the help of his other brothers and relatives has availed a loan from UBI Bank by deposit of original title documents and moftgaged the same property bearing plot no. 73412 Nawada Bazaar Najafgarh Delhi on the basis of sale deed and forged relinquishment deed dated 3'd May, Iggg. The said deed was falsely executed in favour of deceased Smt. Kapoori Devi who was dead on 3'd Muy, 1999. As the alleged persons faile<l to discharge their liabilities UBI Bank filed a suit for recovery. The court passed order of attachrnent on the aforesaid property. Learned Metropolitan Magistrate in WP(Crl.) No. I 03.7/201 0 lo L the said casg also called for a status report.

7. It is relevant to note that th'e Magistrate was well within his jurisdiction to dismiss the application for registration of FIR. In case of forgery expert opinion qua the same can be obtained by the Magistrate under Section 202 Cr.P.C. The Magistrate by following the complaint case can dispense with registration of FIR and put up the matter for leading evidence where the Complainant is in position to prove its case. This Court in IWs Skipper Beverages Pvt. Ltd vs. State, 2001 U t'- AD (Delhi) 625 held that since the Complainant himself is in a position to collect all the evidence and for collecting the same intervention of the police is not required and thus dismissed the application under section 156 (3) Cr.P.C..

8. In the present case the allegations are against the family members where the wills of the parents are in dispute. The fact that the Petitioner did not sign the documents based on which the accused persons got the property mutated in their j'Lb, name is not a fact which requires thorough investigation by the police. The "_v Petitioner by leading evidence can prove the said fact. If necessary the learned Magistrate can take recourse to limited inquiry under Section 202 Cr.P.C. I find no merit in the present petition. The same is dismissed. lM'h"rL " MUKTA GUPTA, J. SEPTEMBER 13. 2OII/ O dK' WP(Crl.)No. 1037/2010 Page 5 of[5]