Vijay Dev Dabas v. State of NCT of Delhi

1. The present application has been filed under Section 482 of Cr.P.C. on behalf of respondent No. 2 for vacating the ex-parte interim order dated 12.09.2022, whereby, this court directed for issuance of notice to respondent no. 2 and subject to hearing respondent no. 2 stayed the operation of the order dated 28.06.2022 passed by the court below.

2. Respondent no. 2 filed this application, which was considered on 10.11.2022 and notice on the said application was directed to be served on the petitioner.

3. Today, extensive submissions were made by respondent no. 2 and learned counsel for the petitioner on the present application. Respondent no. 2 while relying on the decision of the Hon’ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Others[1], submits that ex-parte stay granted by this court deserves to be vacated. According to respondent No. 2, the petitioner has not approached this court with clean hands and continuation of the proceedings before the learned MM would not cause miscarriage of justice. She pointed out that Writ Petition (Civil) No. 8833/2018 is pending before this court, where no stay was granted and Criminal Revision Petition No. 80/2021 is also pending before the court of learned Additional Sessions Judge-03, North District, Rohini Courts, Delhi, in that case also no stay has been granted in favour of the petitioner. According to her, even in Revision Petition No. 276/2016, the petitioner could not get any stay before the Financial 2021 SCC OnLine SC 315 3 Neutral Citation Number 2022/DHC/005 Commissioner. She states that under the facts of the present case, the propriety demands that the stay granted by this court to the operation of the impugned order be recalled and the matter be heard on merits. She further submits that despite a direction given by this court, she has not been served with the hard copy of the petition along with all documents and, therefore, the petitioner be directed to supply a complete set of pleadings and documents, enabling her to file the reply to the main petition.

4. Learned counsel appearing on behalf of the petitioner opposed the prayer and submits that the impugned order of taking cognizance is without any jurisdiction and there is no suppression on the part of the petitioner. He further submits that the petitioner has disclosed all facts in his petition, however, could not bring on record copy of few orders, which are not relevant for adjudication of the instant case. According to him, there is no jurisdiction to the police to investigate an offence and to submit a chargesheet for the offences punishable under Sections 193/199 of the IPC. In view of Section 195 of the Cr.P.C., there is a bar in taking cognizance of an offence punishable under Sections 193/199 of the IPC except a complaint made by the court and the procedure for submitting the complaint by the court to Magistrate is to be followed as given under Section 340 of the Cr.P.C. He, therefore, submits that if at all there is any false evidence, the concerned court of Tehsildar, where such an application was filed only had the jurisdiction to file the complaint. He has placed reliance on a decision of the Hon’ble the Supreme Court in the case of M.S. Ahlawat v. State of Haryana & Ors.2, and has referred paragraph No. 13 of the said decision.

5. I have heard respondent no. 2 in person and learned counsel appearing on behalf of the petitioner and perused the record.

6. The order dated 18.06.2016 passed by the Sub-Division Magistrate, Narela, would indicate that in paragraph No. 7, thereto, the SDM directed for lodging the FIR against the petitioner for offence punishable under sections 199/193 of the IPC. It is seen that the Financial Commissioner in the order dated 08.06.2018 did not accept the plea of the petitioner that he had submitted the false affidavit in good faith only before the Tehsildar and not before any court. It is also seen that against the order of Financial Commissioner, the petitioner approached this court in Writ Petition (Civil) No. 8833/2018 and this court vide order dated 02.05.2019 noted the grievance of the petitioner that he was not granted a hearing prior to the passing of the order to register an FIR against him. The order dated 02.05.2019 also does not interfere with the order of directing, lodging of the FIR. It is also seen that Revision Petition No. 80/2021 has also been filed by the petitioner before the court of sessions against order dated 31.07.2021 passed by the learned Metropolitan Magistrate, where it has been noted by the said court that there was sufficient material on the record to show that wrong doing against the complainant necessitated the need for the investigation by the police. Accordingly, SHO was directed to register an FIR. It is seen that in Revision Petition No. 80/2021, also there was no stay.

7. Having considered the submissions made by the respondent no. 2 and learned counsel for the petitioner, at this stage, this court finds that the order dated 12.09.2022 staying the operation of the order dated 28.06.2022 deserves to be vacated. Accordingly, the order dated

5 Neutral Citation Number 2022/DHC/005 12.09.2022 staying the operation of the order dated 28.06.2022 stands vacated with following directions:-

(i) The proceedings before the court of learned MM pertains to FIR

(ii) The Petitioner shall serve a complete set of pleadings along with relevant documents to respondent no. 2 in hard copy against receipt.

(iii) Respondent no. 2 is directed to file the reply to the main petition within six weeks from today.

(iv) The petitioner after receiving the copy of the reply from respondent No.2 would be at liberty to file rejoinder, if any, within four weeks thereafter.

8. With above directions, the application stands disposed of.

9. Order dasti.

JUDGE NOVEMBER 21, 2022 p’ma