Full Text
HIGH COURT OF DELHI
JUDGMENT
ACHAL NATH & ANR ..... Petitioners
Through: Mr D. P. Singh with Ms. Meenakshi Kalra and Ms. Shreya Dutt, Advs.
Through: Mr. Shaunak Kashyap and Ms. Nistha Gupta, Advs.
1. The present petition has been filed under Section 482 CrPC against the impugned order dated 19.08.2023 passed by the learned Additional Sessions Judge, Saket District Court, New Delhi in Criminal Revision No. 513/2023, (incorrectly mentioned as Criminal Appeal No. 513/2023 in the caption), whereby the criminal revision filed by the present petitioners was dismissed as devoid of merits.
2. The said criminal revision was filed by the petitioners against the order dated 26.04.2023 passed by the learned Metropolitan Magistrate in CC No. 4074/2017, whereby the application filed by the respondent seeking limited investigation under Section 202 CrPC for the purpose of procuring some original documents, stated to be in the exclusive possession of the present petitioners/accused, was allowed and resultantly, the SHO concerned was directed to appoint an I.O who may seize the documents mentioned in the application and send them to the FSL for obtaining an opinion.
3. The brief facts of the case are that the present petitioners, as well as, the respondent are real brothers who are litigating against each other. The relationship between the petitioners and the respondent soured over a larger company dispute initiated by respondent over the majority shareholding of the petitioners in two companies‟ i.e, Ashok Manufacturing Limited („AMC’) and Ashok Brothers Impex Pvt. Limited (‘ABI’).
4. The case of the petitioners is that the respondent filed a false case with forged and fabricated company documents before the Company Law Board concerning issue of shareholding in AMC and ABI, which matter is now sub-judice before the NCLT.
5. The petitioners filed a criminal complaint before Police Station Model Town against the respondent, his son and another accused alleging conspiracy on their part to impersonate themselves as the directors of AMC and falsely showing control over the company by using false, fabricated documents and counterfeit seals of AMC.
6. In the said case, the charge sheet came to be filed in the year 2018 against the respondent and his son before the Sessions Court, Rohini. However, further investigation is pending in the said matter.
7. The respondent filed a complaint under Section 200 CrPC read with Section 156(3) CrPC being CT Case No. 4074/2017 against the petitioners, before the learned Trial Court, alleging that the petitioners have forged the signatures of their mother namely, Ms. Sheela Nath on certain company documents of AMC and ABI, in order to usurp majority shareholding and control of the said companies.
8. The complaint under Section 200 CrPC has been filed along with a report dated 12.03.2013 of a hand writing expert namely, Deepak Jain, who examined the allegedly forged company documents containing signatures of Ms. Sheela Nath. Mr. Deepak Jain was examined as CW-2 and his pre-summoning evidence was recorded before the learned Trial Court.
9. Subsequently, vide order dated 08.10.2013 the application of the respondent filed under Section 156(3) CrPC along with his complaint under Section 200 CrPC was dismissed by the learned Trial Court.
10. The order dated 08.10.2013 of the learned Trial Court was challenged by the respondent before the learned District and Sessions Judge in criminal revision. The Court of Sessions vide order dated 29.05.2014 ordered the registration of an FIR, which led to the registration of FIR No. 278/2014 at Police Station Hazrat Nizzamuddin.
11. The said order of the Court of Sessions was then challenged before this Court by the petitioners. This Court set aside the order of Sessions Court and remanded the matter back to the Court of Sessions for fresh adjudication of the criminal revision filed by the respondent.
12. The Court of Session vide order dated 27.01.2015 dismissed the criminal revision filed by the respondent. The respondent again agitated the matter before this Court by filing a writ petition i.e. W.P. (Crl) 482/2015. This Court while disposing of the said writ petition vide order dated 21.01.2016 recorded the arrangement arrived at between the parties. Paragraph 7 of the order dated 21.01.2016, wherein the terms have been recorded, reads as under: “..7. Mr.Sudhir Nandrajog, learned Senior Advocate for the petitioner as well as Ms. Rebecca M. John, learned Senior Advocate for respondents No.1 and 2 have arrived at a consensus for issuance of following directions:
(i) The petitioner shall lead pre-summoning evidence before the learned Trial Court in Complaint Case No. 151/2003.
(ii) If the necessity arises, the petitioner/complainant may request learned Trial Court to invoke its power under Section 202 CrPC to get further investigation done.
(iii) The parties to the Complaint Case No.151/2003 shall not take any advantage of the observations made by learned ASJ while disposing of the Criminal Revision No. 146/2013.
(iv) The learned Trial Court shall proceed in the matter uninfluenced by any observation made by learned ASJ while disposing of the Criminal Revision No.146/2013 which was necessitated just for purpose of disposal of the Criminal Revision.”…
13. A perusal of the above-quoted paragraph 7 of the order dated 21.01.2016 makes it luminous that the respondent (petitioner therein) had agreed that he shall lead pre-summoning evidence before the learned Trial Court in Complaint Case No. 151/2023. It was also agreed that if the necessity arises, the respondent may request the learned Trial Court to invoke its power under Section 202 CrPC to get further investigation done.
14. Invoking a term of the said arrangement, the respondent, at the stage of pre-summoning evidence, moved an application under Section 202 CrPC on 19.11.2019, which, as noted in paragraph 2 above, was decided by the learned Metropolitan Magistrate vide order dated 26.04.2023, whereby the SHO concerned was directed to seize certain documents and have them forwarded to the FSL for obtaining an opinion.
15. In compliance of the aforesaid order dated 26.04.2023 of the learned Magistrate, the SHO concerned issued a notice under Section
91 Cr.P.C. to the present petitioners. However, the petitioners refused to hand over the said documents and filed a Criminal Revision NO. 513/2023 challenging the said order of the learned Metropolitan Magistrate.
16. The criminal revision subsequently came to be dismissed by way of the impugned order as mentioned in the opening part of this judgment.
17. In the criminal revision, the petitioners had contended that the directions given by the learned Metropolitan Magistrate vide order dated 26.04.2023 could not have been passed as - (i) the same were beyond the scope of powers vested in him, (ii) the same tantamount to involving the petitioners in the inquiry, and (iii) the same is forbidden by the consent order of this Court dated 21.01.2016 passed in W.P. (Crl) 482/2015.
18. The Revisional Court rejected the aforesaid contentions of the petitioner for the reasons that - (a) the learned MM concerned appears to have exercised his powers in a judicious manner while stating the reasons for passing the relevant directions in the course of inquiry after considering the report and testimony of handwriting expert CW[2] Deepak Jain, who has reported in his report (Ex.CW2/B) that certain signatures of Late Ms. Sheela Nath are forged; (b) the said documents seem necessary for a just decision in the facts and circumstances of the case; and (c) by passing the relevant directions the learned Metropolitan Magistrate does not seem to involve or force the petitioners to participate in the inquiry.
19. The learned Revisional Court also observed that the learned Metropolitan Magistrate has not issued any directions which tantamount to directing or coercing the petitioners to make any „statement‟ during the course of inquiry so as to impinge their constitutional rights, rather he is seeking production of certain documents which are admittedly in the custody of petitioners, in order to forward them to the FSL.
20. The learned Revisional Court further observed that this Court vide order dated 21.01.2016 passed in W.P. (Crl) 482/2015 did not proscribe the exercise of powers under Section 202 CrPC by the learned Metropolitan Magistrate.
21. Mr. D.P. Singh, the learned counsel for petitioners, submits that the impugned directions could not have been given to the SHO to have the documents seized from the petitioners and to send them to the FSL as it is settled law that the accused cannot be involved in an inquiry under Section 202 CrPC.
22. He submits that the compelling of petitioners to submit the original documents and help the respondent to prove his case against themselves will tantamount to violation of the rights of the Petitioner under Article 20(3) of the Constitution of India.
23. He places reliance on the decision of this court in Tej Kishan Sadhu v. State & Anr., 2013 SCC Online Del 1753 to contend that the petitioners, who are the proposed accused, could not have been involved at the stage of inquiry under Section 202 CrPC in any manner.
24. Reliance was also placed on the decision the High Court of Calcutta in Ramesh Sobti @ Ramesh Sobyi v. State of West Bengal and Anr., 2017 SCC OnLine Cal 8424, to contend that since the Magistrate in the course of inquiry under Section 202 Cr.P.C. is not entitled to issue notice upon the accused to appear and participate in the proceeding, the police officer as his delegatee cannot claim higher powers and issue notice upon the accused, interrogate him in the course of investigation under Section 202 Cr.P.C. or to seize documents from him under section 91 CrPC.
25. Per contra, the learned counsel for the respondent has raised a preliminary objection as to the maintainability of the present petition. He submits that it is a settled law that second revision challenging two concurrent findings, cannot be preferred before this High Court under the guise of a petition under section 482 CrPC as there is a statutory bar under section 397 CrPC against the second revision, as well as, a statutory bar against an interlocutory order. He places reliance on the decision of Hon‟ble Supreme Court in State v. Navjot Sandhu, (2003) 6 SCC 641 and decision of this court in Ravi Kapur & Anr. v. Regional Provident Fund Commissioner in Crl. M.C. No. 4771/2019.
26. He submits that the power of investigation conferred under the CrPC upon a police officer extend to seizure of any document or material that may be relevant for the purposes of the proceedings since Section 202 CrPC does not in any way curb or curtail such powers. According to the learned counsel, the phrase “direct an investigation to be made by a police officer” are necessarily be read so as to mean all powers of investigation provided for under CrPC. He submits that this contention is further reinforced by sub-clause (3) of the Section 202 CrPC, which only puts a limitation on the powers of arrest without warrant, if the investigation is being carried out by an individual not being a police officer.
27. He submits that seizing of documents from the accused will not tantamount to self-incrimination under Article 20(3) of Constitution of India. In support of his contention, he places reliance on the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
28. I have heard the learned counsel for the parties and have perused the record.
29. As notice has not been issued in the present petition and the judgment was reserved only on the ground confined to the issue of maintainability of the present petition, therefore, the short question which has to be decided by way of this judgment is with regard to the maintainability of the present petition filed under Section 482 CrPC against the orders, and challenging the proceedings, arising out of an inquiry under Section 202 CrPC.
30. To be noted that the revision filed by the petitioners against the order dated 26.04.2023 of the learned Metropolitan Magistrate was dismissed on merits without returning any finding on the scope of inquiry under Section 202 CrPC and without assigning any reason as how the impugned directions of the learned Metropolitan Magistrate does not seem to involve or force the petitioners to participate in the inquiry, though the said contention was specifically raised by the petitioners/revisionist before the Revisional Court. There is also no specific finding that the order of the learned Metropolitan Magistrate which is the genesis of present litigation, is an interlocutory order, as has been contended by the learned counsel for the respondent.
31. Before adverting to the issue at hand, it would be relevant to advert to the fundamental question as to what is an „interlocutory order‟. This question is no more res integra. The Supreme Court in its decision in Amar Nath vs. State of Haryana: (1977) 4 SCC 137, while delving into the question as to what is the connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court, observed as under:- “…..Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” (emphasis supplied)
32. Similarly, the Supreme Court in K.K. Patel vs. State of Gujarat (2000) 6 SCC 195 has laid down the test to be resorted to for determining whether an order is interlocutory or final, in the following terms: “11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana [(1977) 4 SCC 137: 1977 SCC (Cri) 585], Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10], V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980 SCC (Cri) 695: (1980) 2 SCR 380] and Rajendra Kumar Sitaram Pande v. Uttam [(1999) 3 SCC 134: 1999 SCC (Cri) 393] ). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.”
33. Tested on the touchstone of the principles laid down by the Hon‟ble Supreme Court, it appears that the order of the learned Metropolitan Magistrate dated 26.04.2023 is an interlocutory order, inasmuch as, it does not decide or touch upon the important rights or liabilities of the parties nor the said order directing the SHO to seize the documents, if reversed, will conclude the proceedings under Section 202 CrPC. At best, it is a step in aid of the proceeding under Section 202 CrPC
34. This being the position, the revisional court ought not to have entertained the revision of the petitioners in view of the specific bar contained in sub-section (2) of Section 397 CrPC. Having said that, the question which still looms large is that whether the present petition under Section 482 CrPC, which impugns the order/proceeding arising out of an interlocutory order, is maintainable notwithstanding that the revisional court entertained and dismissed the criminal revision filed by the petitioners on merits.
35. To find answer to the question at hand, it would be apt to advert to the legal position as to the scope of interference under Section 482 CrPC against an interlocutory order. The Supreme Court in Madhu Limaye vs. State of Maharashtra (1977) 4 SCC 551 has held as under:-
36. Similarly, the Supreme Court in Girish Kumar Suneja vs. CBI,
37. Again the Supreme Court in Hoogly Mills Company Ltd. vs. State of West Bengal, (2020) 18 SCC 568, has reiterated the same principles in the following terms: “33. Coming to the final issue, Section 397(2) CrPC provides that the High Court's powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 CrPC provides that nothing in the CrPC will limit the High Court's inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers under Section 482 to set aside an interlocutory order, notwithstanding the bar under Section 397(2). However, it is settled law that this can only be done in exceptional cases. This is, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (see Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10] ).”
38. Clearly, from a perusal of the above noted judgments, it manifests that there is no complete bar on exercise of jurisdiction under Section 482 CrPC by the High Court in relation to an interlocutory order. However, the power under Section 482 CrPC against an interlocutory order has to be exercised sparingly in rarest of rare cases, where criminal proceedings has been initiated illegally, vexatiously or without jurisdiction or where the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice.
39. In a pursuit to find answer to the moot question, it would thus, be necessary for this court to embark upon an inquiry as to whether the present case comes within the sweep of aforesaid parameters so as to warrant exercise of jurisdiction under Section 482 CrPC. This would require touching upon the merits of the case and examination of the scope of jurisdiction to be exercise by the learned Magistrate under Section 202 CrPC, which means considering the following issues- (i) whether the learned Metropolitan Magistrate by directing the SHO to seize the documents from the possession of the accused/petitioners in an inquiry under Section 202 CrPC has exceeded his jurisdiction; (ii) whether the impugned order has brought about a situation which is an abuse of the process of the Court, and (iii) whether this Court needs to interfere with the impugned order of the revisional court, as well as, the order dated 26.04.2023 of the learned Metropolitan Magistrate, to secure the ends of justice.
40. The answers to the above issues either way will finally decide lis in the present petition, therefore, it is deemed appropriate to hear the parties on the above issues. The decision on the above issues will also provide answer with certitude to the preliminary issue as to the maintainability of the present petition as both the aspects, as above noted, are inextricably intertwined.
41. In view of the above, issue notice to the respondent by all permissible modes, returnable on the next date.
42. Reply be filed within a period of six weeks. Rejoinder thereto, if any, be filed before the next date.
43. List for hearing on the date fixed, i.e., 11.03.2024. CRL.M.A. 23251/2023
44. Keeping in view the above detailed discussion and regard being had to the fact that matter requires consideration and is now being listed for final hearing, the operation of the impugned order, as well as, the order dated 26.04.2023 of the learned Metropolitan Magistrate, is stayed till the next date.
45. Re-notify on 11.03.2024.
VIKAS MAHAJAN, J DECEMBER 20, 2023 dss/MK