Sh. Ram Dhan v. State

1. The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner seeking setting aside of the order dated 09.10.2019 passed by the learned ASJ-03 (South), Saket Courts, New Delhi in Criminal Revision Petition No. 241/2019, vide which the order dated 01.04.2019 passed by the learned MM-05 (South), Saket Courts, New Delhi, dismissing the petitioner’s application under Section 156(3) Cr.P.C. and asking him to lead evidence on his complaint under Section 200 Cr.P.C., was upheld.

2. Brief facts of the case are that the petitioner had initially preferred a complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. before the learned Metropolitan Magistrate seeking registration of FIR against his brothers Laxman (i.e. respondent No. 2) and Ram Phal, 2021:DHC:3816 alleging that the accused persons had got registered a fabricated Will of his mother, i.e. Late Smt. Punni Devi, and deprived him of his share in her property with malafide intention. A Status Report came to be filed, wherein it was reported that the dispute pertained to a Will executed by the deceased in relation to the ancestral property and was civil in nature. Vide order dated 01.04.2019 passed by the learned Metropolitan Magistrate, the aforesaid complaint came to be dismissed with the observation that the complainant/petitioner had control over the evidence and if an enquiry was deemed necessary subsequently, it could be initiated under Section 202 Cr.P.C. Accordingly, the relief of registration of FIR against the accused persons was declined. Against the said order, a revision petition was filed by the petitioner before the Sessions Court, which came to be dismissed vide the impugned order.

3. Learned counsel for the petitioner submits that the aforesaid complaint was filed by the petitioner against the accused persons for preparing a fabricated Will on behalf of Late Smt. Punni Devi, i.e. mother of the petitioner. He further submits that the said Will was got registered in the name of the accused persons on 04.11.1992. The petitioner’s mother expired on 05.09.2004 and was survived by seven legal heirs, namely Sh. Ramesh Kumar, Sh. Devi Ram, Sh. Ram Phal, Sh. Ram Dhan, Sh. Lakshman, Sh. Subhash & Smt. Laxmi Devi. Learned counsel submitted that the accused persons fabricated and forged the aforesaid Will in pursuance of a criminal conspiracy to illegally own the property of Late Smt. Punni Devi, i.e. property bearing Khasra No. 311/8 admeasuring 150 sq. yds. (3 biswas) situated at Village Chhatarpur, Mehrauli, New Delhi. In pursuance of the conspiracy, the accused persons also got the said property mutated in their names by making a false averment that there were no other legal heirs of Late Smt. Punni Devi, besides them. It is further contended that the fabrication of the Will is established from the fact that even though one of the attesting witnesses, i.e. Sh. Naresh Kumar, stated on oath that the aforesaid Will was registered infront of him, in the civil proceedings stated to be pending before the learned ADJ, while deposing as DW-4, he admitted that the Will was not executed in his presence. The said witness also stated that he was asked to append his signatures on the Will by the second witness, namely Sh. Gian Chand, at his shop and that he did not go to the Office of the

4. Learned counsel for the petitioner has also invited the attention of the Court to the statement of Sh. Kapil Dabodia, S/o Sh. Gian Chand Dabodia (i.e. the second attesting witness), who was examined as DW-5 in the aforesaid civil suit, wherein he had only identified the signatures of his father on the aforesaid Will. It is submitted that in the aforesaid facts and circumstances, both the Courts below committed grave error in dismissing the petitioner’s application under Section 156(3) Cr.P.C.

5. Learned APP for the State, on the other hand, has supported the impugned order. It is submitted that both the Courts below have taken a consistent view that police investigation is not required in the facts and circumstances of the present case. The dispute between the parties is essentially civil in nature, and though the genuineness and validity of the Will is disputed, it is a question which remains to be determined in the course of the civil suit pending between them. Moreover, since the complainant/petitioner had not led evidence till the time when the complaint under Section 156(3) Cr.P.C. came to be filed, the learned Magistrate rightly refrained from invoking the power conferred by the provision, which though discretionary, must be exercised judiciously.

6. I have heard learned counsels for the parties and also gone through the material placed on record.

7. The law on the issue arising herein has been expounded by the Supreme Court in H.S. Bains, Director, Small Saving-Cum Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) reported as (1980) 4 SCC 631 and CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Another reported as (2005) 7 SCC

467.

8. In H.S. Bains (Supra), the Supreme Court has held: "6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."

9. Subsequently, while citing with approval the decision in H.S. Bains (Supra), the Supreme Court in Vasanti Dubey v. State of Madhya Pradesh reported as (2012) 2 SCC 731, has expounded on the issue under consideration as follows:- “20. … ‘1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;

2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:

(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.

(ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200.

(iii) Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the Magistrate cannot direct the police to straightway submit the charge-sheet as was the view expressed in Abhinandan Jha which was relied upon in Ram Naresh Prasad.”

10. Notably, in the present case, the Sessions Court in the impugned order has noted that the petitioner has not complied with the requirements of Section 156(3) Cr.P.C., which include filing of an affidavit by the applicant as well as compliance with Sections 154(1) and (3) Cr.P.C. prior to having recourse to Section 156(3) Cr.P.C. In this regard, the learned ASJ referred to the observations of the Supreme Court in Priyanka Srivastava and Another v. State of Uttar Pradesh and Others reported as (2015) 6 SCC 287. Relevant excerpt from the decision is extracted hereunder:- “20.The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised…. xxx