Full Text
HIGH COURT OF DELHI
MANISH KUMAR ..... Petitioner
Through: Petitioner in person. (through video conferencing).
Through: Mr. Amit Ahlawat, APP for the State with SI Mamta, PS Dwarka, South
Ms. Arpita Bhattacharyya ad Mr. Paras Tanwar, Advocates for R-
2/RBL Bank Ltd. (through video conferencing).
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of. CRL.M.C. 2766/2023 and CRL.M.A. 10379/2023 (condonation of delay of 7 days in re-filing the present petition)
3. The present petition has been filed under Section 482 Cr.P.C. by the petitioner seeking following prayers:- “(a) Set aside the judgment and order dated 24.11.2022 passed by Sh. Manoj Jain, Ld. Principal District & Sessions Judge Dwarka Courts, New Delhi in Crl. Rev. No. 413/2022; Titled as Manish Kumr vs St. & Ors, (b) Set aside the judgment and order dated 23.05.2022 U/s 156 (3) Cr.P.C. passed by Ms. Kratika Chaturvedi, Ld. Metropolitan Magistrate of the Dwarka Court Misc. No. 4254/2021;
(c) Direct the police, Respondent No. 1, to register an FIR and appoint senior police official for investigation. Commence investigation with regard to the offences under Section 409/506/120B/34 IPC and 72A IT Act. Committed by the Respondent.
(d) Pass any other order as this Hon’ble Court may deed fit, towards securing the ends of Justice.”
4. Heard.
5. Records perused.
6. Learned counsel for the petitioner submitted that the inherent power of this Court U/s 482 Cr.P.C is still available and for continuous superintendence, the Court would be justified in interfering with the order which has led to the miscarriage of justice. He further submitted that the object of introduction of the bar in Section 397(3) Cr.P.C is to prevent a second revision so as to avoid frivolous litigation, but the doors of the High Court to a litigant who had failed before the Court of Sessions are not completely closed, and if a "special case" is made out, then such bar ought to be lifted.
7. On the other hand, it is submitted by the Ld. APP for the State that there is no infirmity in the impugned order. It is further submitted that the petition is liable to be dismissed as this Court U/s 482 of the Cr.P.C shall not upset the concurrent findings of the two courts below in the absence of any perversity and the petitioner cannot be allowed to initiate a second revision petition in the garb of Section 482 Cr.P.C.
8. Now a procedural issue has arisen, as to whether the petitioner having already availed the remedy of revision should be allowed to take recourse to Section 482 Cr.P.C as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s 397 (3) Cr.P.C which reads as follows: "(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
9. In Rajinder Prasad Vs. Bashir, (2001) 8 SCC 522, the Supreme Court referring to its earlier decision in Krishnan Vs. Krishnaveni, (1997) 4 SCC 241 held that: “...though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, "Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code."
10. In Kailash Verma vs. Punjab State Civil Supplies Corporation & Anr., (2005) 2 SCC 571, the Supreme Court observed thus:-
11. A learned single judge of this court in Surender Kumar Jain vs. State & Anr., ILR (2012) 3 Del 99 accepted such objections in another similarly placed petition under Section 482 Cr. PC observing thus:-
12. In the instant case, learned Magistrate was not satisfied with the prayer made by the petitioner for directions to the police for investigation under Section 156(3) Cr.P.C, and learned MM observed that on the basis of the enquiry report and material on record there was no need to invoke Section 156(3) Cr.P.C for issuing directions to the SHO to register an FIR and learned MM enumerated the following grounds for arriving to such a conclusion: a) The identity of proposed accused persons is ascertained. b) No facts are needed to be unearthed as the same are well within the knowledge of the complainant and can be proved by complainant himself or through summoned witnesses. c) Custodial interrogation of alleged accused persons is not necessary. d) The evidence is well within the reach of complainant and no assistance of police is required to gather the same. e) The facts of the case are not such that would warrant detailed and complex investigation to be carried out by the State Agency.
13. The said view of the magistrate has been affirmed by the Court of Sessions while dismissing the revision petition vide impugned order dated 18.01.2020.
14. In M/s Skipper Beverages Pvt. Ltd. Vs. State, 2001 IVAD Delhi 625" in para 6 and 7 it has been observed as under: Para-6: Chapter XII of the Code deals with information to the police and its power to investigate the offences. Section 156 of the Code included in this chapter speaks of the power of the police officers to investigate cognizable cases and sub clause (3) thereof lays down that any Magistrate empowered under Section 190 of Code may order such an investigation. Chapter XV of the Code deals with complaints to a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police. Para-7: It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled " Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
15. In "Subhkaran Luharuka & Anr. Vs. State, III(2003) DLT (Crl.) 194" wherein it has been observed as follows: "52A. For the guidance of subordinate Courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under.................................Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
16. In Ramdev Food Products Private Limited vs. State of Gujarat, MANU/SC/0286/2015, appellant sought directions for investigation under Section 156(3) of the Code. However, Magistrate instead of directing investigation as prayed, thought it fit to conduct further inquiry under Section 202 of the Code and sought report of the Police Sub-Inspector within 30 days. Grievance of the appellant before the High Court was that in view of the allegation that documents had been forged with a view to usurp the trademark, which documents were in possession of the accused and were required to be seized, investigation ought to have been ordered under Section 156(3) of the Code, instead of conducting further inquiry under Section 202 of the Code. In Ramdev (supra), Supreme Court considered Latika Kumari and in paras 20 and 22 held as under:-
17. In Shri Subhkaran Luharuka & Anr. Vs. State & Anr. ILR (2010) VI Delhi 495, a Bench of coordinate jurisdiction of this court has held thus:-
18. In Mohd. Salim vs. State 175(2010) DLT 473, a learned Single Judge of this court, in para 11, has held thus:-
19. Considering the aforementioned discussions, I opine that the Magistrate must not issue directions for an investigation under Section 156(3) of the Code in a perfunctory manner. Such directives should only be issued after careful consideration, indicating a thoughtful application of judicial discretion. The Magistrate is not obligated to order a police investigation solely based on the presence of elements constituting a cognizable offense in the complaint, as this decision requires a judicious exercise of discretion.
20. Each legal matter should be assessed based on its unique set of facts and circumstances. In the specific context of a given case, the Magistrate may determine that the complainant is capable of substantiating the allegations without reliance on police assistance. In such instances, the Magistrate can proceed under Section 200 of the Code, conducting an inquiry and examining witnesses presented by the complainant. The Magistrate is duty-bound to order a police investigation only when the collection of evidence necessitates police involvement. In the instant case, all pertinent facts and evidence are within the petitioner's knowledge, and they can present such information during the inquiry conducted by the Metropolitan Magistrate pursuant to Section 200 of the Code.
21. Hence, this court is of the opinion that no exceptional circumstances have been presented to warrant the exercise of its extraordinary jurisdiction under Section 482 Cr.P.C. or under Article 226 of the Constitution of India. There is no indication of any miscarriage of justice or legal irregularity in the proceedings undertaken by the two lower courts, and the petitioner has not pointed out any such deficiencies.
22. Therefore, in these facts and circumstances, I do not perceive any evident absurdity or manifest perversity in the challenged order that necessitates correction or rectification by this Court through the exercise of its inherent jurisdiction under Section 482 Cr.P.C.. As a result, the petition is dismissed.
RAJNISH BHATNAGAR, J NOVEMBER 29, 2023 p