Full Text
HIGH COURT OF DELHI
Date of Decision: 24.01.2023
RAVINDER LAL AIRI ..... Petitioner
Through: Mr. Dhruv Dwivedi, Adv.
Through: Mr. Rahul Tyagi, ASC for State with Mr. Jatin, Mr. Aashish Chojar, Advs. with SI Murari Krishan, PS NFC
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
2. Applications stand disposed of.
3. This is a petition seeking setting aside of the impugned judgment dated 19.11.2022 passed by learned Sessions Court in Crl. Rev. 23/2020 and to restore the order dated 06.01.2020 passed by the learned ACMM.
4. In the present case, the learned ACMM vide order dated 06.01.2020 on an application u/s 156(3) Cr.P.C. filed by the petitioner was pleased to disregard the action taken report (“ATR”) and direct registration of the FIR.
5. The said order was challenged by the respondents herein in a revision petition before Additional Sessions Judge who firstly discussed the legal position and held that the revision petition is maintainable.
6. Secondly, the learned Sessions Court was of the view that once the action taken report opined that no cognizable offence is made out and the matter is civil in nature, for the learned ACMM to disagree with the opinion of the inquiry officer and order registration of FIR would require reasons.
7. The Sessions Court was of the view that the order of 06.01.2020 was devoid of reasons and hence the Sessions Court was pleased to set aside the order dated 06.01.2020 and remand the matter to ACMM to hear afresh and take a reasoned decision.
8. This order of the Sessions Court has been challenged by the petitioner.
9. It is stated by Mr. Dwivedi, learned counsel that the order directing registration of FIR is an interlocutory order and has relied upon judgment of Gujarat High Court in “Parmar Rameshchandra Ganpatray & Ors. vs. State of Gujarat & Ors.” in Spl. Criminal Appl. No. 5789/2016 and more particularly para 45 and 50 which read as under:
10. He also relied on the judgment of Allahabad High Court viz., “Father Thomas vs. State of U.P. & Ors.” in CRL.REV. No. 1581/2001, 1640/2001, 1656/2001, 1658/2001, 1727/2001, 1731/2001 and more particularly para 46 and 54 which read as under:
11. I am unable to agree with the two judgments.
12. The Delhi High Court in “Nishu Wadhwa vs. Siddharth Wadhwa & Anr.” in W.P.(CRL) 1253/2016 on 10.01.2017 observed as under:
ARORA
13. I am of the view that the registration of FIR affects the fundamental right and freedom of the accused person. He can be summoned for investigation, arrested without warrants for allegations of cognizable offences. Therefore, an order directing registration of FIR u/s 156(3) Cr.P.C. is not an interlocutory order and the revision petition against the same would be maintainable as the accused has a valuable right to be heard.
14. It is further stated by Mr. Dwivedi that only brief reasons are required for registration of an FIR which was done, which has been given by the learned MM.
15. The operative portion of the order dated 06.01.2020 reads as under: “Per contra, as per the ATR, it is denied that any cognizable offence is made out. It is stated that the collaboration agreement has not been fabricated as alleged and full & final payment of Rs. 85,00,000/- is acknowledged by receipt dated 06.01.2013 and another undated receipt. The complainant has denied his signature on the undated receipt and fabricated pages of collaboration agreement. It is conceded by the IO that verification of transfer of RS. 40. 00 Lacs through cheques to the account of the Complajnant per the undated receipt was not verified. In these facts and circumstances, this Court deems it appropriate to order registration of FIR under relevant Sections as commission of cognizable offences are made out and complainant is not equipped to collect evidence by himself. SHO concerned is directed to register the same and file compliance report, within a week. He shall investigate/get the matter investigated, as per law.”
16. In “Harpal Singh Arora and Ors. vs. State and Anr.” 2008 (103) DRJ 282 this Court formulated the relevant question which reads as under: ARORA “(b) Is a Magistrate, when approached thereafter by a complainant with a complaint under Section 190 read with Section 200 CrPC along with an application under Section 156 (3) Cr.PC seeking a direction for investigation by the police, bound to deal with the said report before disposing of the application under Section 156 (3) CrPC and proceeding with the complaint under Section 200 CrPC?....
16. Considering the fact that the learned MM called for the report of the CAW Cell, which is fairly detailed, the proper course of action before ordering an investigation under Section 156 (3) would have been to examine that report before deciding to issue a direction for investigation. When the police in the CAW Cell has come to conclusion that no cognizable offence is made out, the Magistrate cannot brush aside that conclusion lightly. Although that the said conclusion of the CAW Cell is not binding on the Magistrate at that stage, since his order is a judicial one he must give reasons, however brief, why he is inclined to order investigation notwithstanding the said report. Question (b) is answered accordingly.”
17. In „Arvindbhai Ravjibhai Patel vs. Dhirubhai Sambhubhai‟ 1998(1) Crimes 351, the Gujarat High Court took exception to the growing tendency of asking the police to investigate cases u/s 156(3) of the Code and advised Magistrate not to pass orders mechanically. It was held:- “Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation”.
18. I am of the view that the ATR has not been considered by the learned MM.
19. The MM directed that “in these facts and circumstances this Court ARORA deems it appropriate to order registration of FIR…” This order is not showing application of mind as to why and how the ATR has been considered and the reasons as to why the learned MM has not agreed with the opinion expressed by the IO that no cognizable offence has been made out. This aspect has been correctly analysed by the learned Sessions Court in its revisional jurisdiction.
20. In this view of the matter, I find no merit in the petition and the same is dismissed.
JASMEET SINGH, J JANUARY 24, 2023 ARORA