Chander Bhushan v. State, NCT of Delhi

1. These two petitions are at the instance of the accused arising out of common incident, therefore, they were taken up for hearing together and are being decided by this common order. Crl.M.C No. 1622/14 is for quashment of FIR No.354/13 dated 01.06.2013, registered under Section 188 IPC at PS Mehrauli and for setting aside the order of summoning dated 05.10.2013, passed by the learned MM (South)-07, Saket Court, New Delhi. In this case, this court vide order dated 22.12.2014, directed for exemption of personal appearance of 2022:DHC:2978 - 2the petitioner before the court of learned MM. In Crl.M.C. No.2039/20, the petitioner is seeking quashment of order dated 11.09.2020 passed by the learned ACMM, Saket Court, New Delhi, whereby, the learned ACMM has rejected the prayer for discharge of the petitioner. In this case, vide order dated 21.10.2020 this court passed an interim order staying the further proceedings before the trial court.

2. For the sake of convenience, facts from Crl.M.C. No.2039/20 are being referred. The facts of the case show that in exercise of powers conferred by Section 144 of Cr.P.C. read with Government of India, Ministry of Home Affairs, New Delhi, Notification dated 26.11.2008, the Deputy Commissioner of Police South District, New Delhi vide order dated 23.04.2013 ordered that no landlord / owner / person of any house / property falling under the jurisdiction of the area of police station specified in the schedule appended thereto, shall let / sublet / rent out any accommodation to any person unless and until he has furnished the particulars of the tenant to the Station House Officer of the police station concerned. It was also stated therein that all persons who intended to take accommodation on rent shall inform in writing in that regard to the Station House Officer concerned in whose jurisdiction the premises fall.

3. In paragraph 4 of the said order dated 23.04.2013, it was stated that the same would be effective with effect from 25/04/2013 and shall remain in force for a period of 60 days i.e. up to 23.06.2013 (both days inclusive) unless withdrawn earlier. It was also ordered that any person contravening the said order shall be punished under Section 188 of IPC.

4. On 01.06.2013, an FIR came to be registered against the petitioner by Head Constable Ashok Kumar for an offence punishable under Section 188 of IPC on a written complaint stating therein that on patrolling of the area he found that House No.C-4 Paryavaran Complex, New Delhi, 3rd floor thereto was occupied by the tenant namely, Dharma Teja Pulimi S/o Venkat Raman Prasad. The same premises was owned by the petitioner who, on interaction, told that on - 3account of he being busy with his personal and business work, could not inform the concerned police station.

5. On 03.07.2013, the charge sheet was filed before the competent court. On 15.09.2013 a complaint under Section 195 (1) (a) of Cr.P.C was also filed by Assistant Commissioner of Police Sub-Division, Mehrauli, New Delhi before the said court, for an offence punishable under Section 188 IPC. On 05.10.2013, learned MM (South)-07 Saket Court took cognizance of the offence punishable under Section 188 IPC and issued summons to the petitioner.

6. Learned counsel, Shri Yoginder Handoo, assisted by Shri Garvit Solanki, appearing for the petitioner submits that no FIR could have been registered against the petitioner unless there is a complaint in writing by the competent public servant. He further submits that in the instant case, initially an FIR was registered and chargesheet was filed without any authority and to cover up the legal deficiencies, a purported complaint has been filed under Section 195 (1) (a) of Cr.P.C. He also submits that even assuming that after filing of an FIR, a complaint can also be filed, but in that case, the complaint filed by the incompetent authority is not maintainable. According to him, the instant complaint is filed by the Assistant Commissioner of Police Sub-division Mehrauli, New Delhi, whereas, no officer below the rank of Deputy Commissioner of Police could have filed the complaint as the directions, which are stated to have been violated, are issued by Deputy Commissioner of Police South-District, New Delhi. He lastly submits that in any case, in view of the law laid down by the Hon’ble Supreme Court in the case of State of Haryana & Ors. v. Bhajan Lal and Ors.[1] no offence is made out even if the entire charges are accepted to be true. He has taken this court to order dated 23.04.2013 to submit that the same was issued on 23.04.2013 and was made effective after 30 days i.e. from 25.04.2013 and in the instant case admittedly, as per the prosecution case itself, the rent agreement in question was executed on

- 4- 01.02.2013 (Page 78) i.e. prior to the date of issuance of the notification. He places reliance on the decision of the Hon’ble Supreme Court in the matter of C. Muniyappa & Ors. Vs. State of Tamil Nadu[2], State of U.P. Vs. Mata Bhikh & Ors[3] and the decision of this court in the case of Pankaj Prakash Vs. State,[4] Mohan Kukreja Vs. State Government of NCT Delhi and Ors.[5] and decision of the High Court at Madras in the case of Jeevandhan & Ors Vs. State & Ors.[6]

7. Shri Amit Chadha, learned Additional Public Prosecutor, opposed the petition and he submits that this court should not go into the factual aspects of the matter as the same is the subject matter of trial. According to him, the police is empowered to take recourse to both the modes i.e. to lodge an FIR and invoke the procedure prescribed under Section 154 of Cr.P.C. and also to file a complaint for the said offence under Section 195 (1) (a) of Cr.P.C. According to him, in any case, the complaint is filed by the competent authority. Therefore, neither the FIR nor the complaint requires to be interfered into. He places reliance on a decision of the Hon’ble Supreme Court in the matter of State of Punjab Vs. Raj Singh[7], M Narayan Das Vs. State of Karnataka 8, and the decision of Gujarat High Court in the case of Nikhilbhai Kesubhai Patel Vs. State of Gujarat.[9]

8. I have heard the learned counsel appearing for the parties and perused the record. The legal position is now well settled that when a prosecution, at the initial stage is sought to be quashed, the principle to be applied by the court is whether uncontroverted allegations, as made, prima facie establish the offence. It is also to be kept in mind that if according to the opinion of the court, no case for the offence alleged is made out, there would be no purpose to continue the prosecution.

9. In the instant case although, various legal submissions have been made by learned counsel appearing for the petitioner, but this court finds it appropriate to first examine as to whether even on the basis of uncontroverted facts, an offence under Section 188 of IPC is made out or not.

10. In the instant case, disobedience of the order dated 23.04.2013 is alleged. The said order is made applicable w.e.f. 25.04.2013 for a period of 60 days i.e. up to 23.06.2013 (both days inclusive). The order in question has been issued in exercise of the power vested with the said authority by virtue of Section 144 of Cr.P.C. and the Government of India Notification dated 26.11.2008. A perusal of Section 144 of Cr.P.C. also suggests that the same empowers the authority to issue immediate preventive order if in the opinion of such authority the situation so demands. Any preventive order will obviously be for future.

11. The order in question dated 23.04.2013 is being reproduced as under: “1.Whereas reports have been received that due to the situation prevailing in the areas of Police Stations specified in the schedule appended to this office, it is apprehended that terrorist/anti-social elements may seek hideouts in the residential areas of the said Police Stations and there is every likelihood of breach of peace and disturbance of public tranquillity and also there is grave danger to human life and safety and injury to public property on that account.

2. And whereas it is necessary that some checks should be put on landlords/tenants so that terrorist/anti-social elements in the guise of tenants may not cause explosion riots shoot outs affray, etc. and that immediate actions is necessary for the prevention of the same.

3. Now, therefore, I, Chhaya Sharma, Deputy Commissioner of Police, South District, New Delhi in exercise of the powers conferred upon me by Section 144 Criminal Procedure Code, 1973 read with Govt. of India, Ministry of Home Affairs New Delhi's Notification No. U-11036/1/2008 UTL dated 26.11.2008, do hereby order that no landlord/owner/person of any house/property which falls under the jurisdiction of area of Police Stations specified in the schedule appended to this order, shall let/sublet/rent out any accommodation to any - 6person unless and until he has furnished the particulars of the said tenant (s) to the Station House Officer of the Police Station concerned. All persons who intend to take accommodation on rent shall inform in writing in this regard to the Station House Officer concerned in whose jurisdiction the premises fall. The persons dealing in property business shall also inform in writing to the Station House Officer concerned in whose jurisdiction the premises fall about the particulars of the said tenants.

4. The order shall come into force with effect from 25.04.2013 and shall remain in force for a period of 60 days i.e. upto 23.06.2013 (both days inclusive) unless withdrawn earlier.