ANOOP KUMAR vs. STATE & ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23.10.2018
Date of Decision: 01.11.2018

+ Crl.M.C. No.5336/2014
ANOOP KUMAR ..... Petitioner
Through Mr.Vinay Jaidka, Adv.

versus

STATE & ANR. ..... Respondents
Through Mr.Mukesh Kumar, APP.
Mr.Parmod Kr.Sharma with
Mr.Manish Kr.Sharma, Advs for R-2.

CORAM:
HON'BLE MS. JUSTICE REKHA PALLI

REKHA PALLI, J

1. By this petition under Section 482 Cr.P.C., the petitioner seeks
quashing of the order dated 13.08.2014, passed by the learned
Additional Sessions Judge, Rohini Courts, dismissing Criminal
Revision Petition No.63/2013 filed by the petitioner for laying
challenge to the order dated 13.09.2013 passed by the learned
Metropolitan Magistrate, whereunder the petitioner’s application
under Section 156(3) Cr.P.C. was rejected and he was further declined
any opportunity to lead pre-summoning evidence.
2. A brief statement of the relevant facts is considered necessary.
It is the petitioner’s case that the respondent no.2 by claiming to be
the sole and exclusive owner of a plot of land measuring 1 Bigha 4
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Biswas, bearing Khasra No.651, situated in the revenue estate of
Village Kadipur, Delhi, approached him for sale of the same. Based
on the representation made by respondent no.2 to the effect that he
was the sole and exclusive owner of the aforesaid premises, the
petitioner agreed to purchase the said plot for a total consideration of
Rs.1,10,000/-. Upon the petitioner duly paying the total sale
consideration, the respondent no.2 executed all the requisite
documents in his favour, including the Agreement to Sell, irrevocable
General Power of Attorney, Will and Affidavit of Receipt all dated
24.07.1998 and handed over the possession of the plot to him.
3. The petitioner’s further case is that though he enjoyed the
possession of the plot for almost nine years from July, 1998, no sale
deed was executed by the respondent no.2 in his favour, despite
repeated requests in this regard. The petitioner further claims that in
August, 2007, the labour working on his plot was forcibly removed by
the respondent no. 2 and on making enquiries, he learnt that the
respondent no.2 vide General Power of Attorney dated 15.01.1997
had already sold the said plot to one Shri Ashwani Maini, who in turn
had sold the property to one Smt.Beena Rani Goela.
4. The petitioner further claims that on being dispossessed from
the said plot, he made a complaint dated 23.10.2017 to the SHO,
Police Station Swaroop Nagar, followed by repeated representations
to the Commissioner of Police, but to no avail. Therefore, he was
compelled to file an application under Section 156(3) Cr.P.C. before
the learned Metropolitan Magistrate (hereinafter referred to as
“MM”), seeking a direction to the investigating authorities to register
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a FIR against respondent no.2. Along with his application under
Section 156(3) Cr.P.C., the petitioner annexed copies of the following
documents:-
(i) Agreement to Sell dated 24.07.1998
(ii) General Power of Attorney dated 24.07.1998
(iii) Will dated 24.07.1998
(iv) Affidavit of Receipts dated 24.07.1998
(v) Complaint dated 23.10.2007 addressed to the SHO, P.S.
Swaroop Nagar
(vi) Complaint dated 23.05.2008 addressed to the
Commissioner of Police, New Delhi
(vii) Letter dated 15.07.2008 addressed to the SHO, P.S.
Swaroop Nagar
(viii) Reminder dated 13.06.2008 sent to the SHO, P.S.
Swaroop Nagar and other authorities.

5. Upon the petitioner filing the aforesaid application under
section 156(3) CrPC, the learned MM sought an Action Taken Report
from the police, pursuant whereto two reports dated 05.06.2012 and
29.06.2013 were filed by the police. After considering the two
reports, the learned MM vide his order dated 13.09.2013, dismissed
the petitioner’s application by observing that the grounds taken by the
complainant for the registration of a FIR, did not seem to be genuine
and the contentions raised by the complainant as also his counsel were
not sufficient to term the act, if any, of the respondent no.2 as a
“criminal offence”. The learned MM also observed that he was not
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inclined to grant any opportunity to the petitioner to lead pre-
summoning evidence in the case, as he was of the opinion that no
offence at all has been committed by the respondent no. 2.
6. Aggrieved by the order passed by the learned MM, the
petitioner preferred a revision petition being Criminal Revision No.
63/2013 before the learned Additional Sessions Judge, Rohini Courts
(hereinafter referred to as “ASJ”), which has also been dismissed vide
order dated 13.08.2014, thus leading to the filing of the present
petition.
7. Mr. Vinay Jaidka, learned counsel appearing for the petitioner
submits that the orders passed by the learned ASJ and learned MM,
are contrary to the record as there were specific allegations made in
the complaint of cheating, preparation/execution of false and
fabricated documents, criminal trespass and taking of forcible
possession of the plot in question, which disclosed the commission of
cognizable offences by the respondent no.2 inter alia under Sections
420/447/448/451/461/471/506 of the IPC. However, despite the fact
that the complaint clearly discloses the commission of cognizable
offences, the learned MM has failed to take cognizance of the same
and the learned ASJ has erroneously upheld the order of the learned
MM without appreciating the facts as also the settled legal position
that once the complaint itself discloses the commission of a
cognizable offence, a FIR must be registered.
8. Mr.Jaidka, further submits that the learned MM has not only
wrongly rejected the petitioner’s application under Section 156(3)
Cr.P.C. but without any basis, has also declined to grant him an
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opportunity to lead pre-summoning evidence under Section 200
Cr.P.C, despite the petitioner’s specific prayer in this regard.
Furthermore, the learned ASJ while upholding the order of the learned
MM, has at this premature stage when no evidence has been led, come
to a conclusion that the respondent no.2 did not have any dishonest
intention. He submits that merely because the respondent no. 2 had
executed a number of documents on 24.07.1998, in favour of the
petitioner at the time of handing over possession of the property to
him, it could not be presumed by the Courts below that he did not
have any dishonest intention.
9. Mr.Jaidka further contends that both the learned MM and the
learned ASJ, have committed a grave error in law by not affording an
opportunity to the petitioner to lead pre-summoning evidence under
Section 200 Cr.P.C. as it was not open to the learned MM to dismiss
the petitioner’s application without recording the statement of the
petitioner/complainant and his witnesses.
10. On the other hand, Mr.Mukesh Kumar, learned APP and
Mr.Parmod Kumar Sharma, learned counsel appearing on behalf of
the respondent no.2, both support the impugned order and submit that
once the learned MM on the basis of the petitioner’s application under
Section 156(3) Cr.P.C., was convinced that there was nothing to show
that the respondent no.2 ever had any dishonest intention or at any
point of time cheated the petitioner, there was no justification for
either ordering any further investigation by the police or for giving an
opportunity to the petitioner to lead pre-summoning evidence to show
the commission of an offence by the respondent no.2.
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11. Mr.Sharma further submits that the facts emerging from the
record filed by the petitioner himself, clearly show that he had been
handed over possession of the property in question in 1998 itself after
execution of all the relevant documents and merely because the
petitioner now claims that he has been dispossessed by the respondent
no. 2, the same cannot at all be a ground to initiate criminal
proceedings for harassing the respondent no.2 who after having sold
the property to the petitioner, has no concern with the said property.
In fact, the respondent no.2 even today reiterates that he had sold the
property only to the petitioner and has no existing connection with the
subject property. Furthermore, the respondent no.2 denies that he had
executed any General Power of Attorney or, in any manner,
authorised anyone to execute the sale deed dated 08.05.2007 in favour
of Ms.Beena Rani Goela.
12. In the light of the aforesaid facts, both Mr.Kumar and
Mr.Sharma submit that the plea of the petitioner that once the Court
did not find any reason to allow the petitioner’s application under
Section 156(3) Cr.P.C., it was incumbent upon the learned MM to
permit him to lead pre-summoning evidence, is wholly misconceived.
They submit that there is no reason as to why the learned MM ought
to have allowed the petitioner’s prayer to lead pre-summoning
evidence when the version of the petitioner taken on its face value, in
itself shows that no offence of any kind had been committed by the
respondent no.2. Therefore, they submit that the learned ASJ has
rightly dismissed the petitioner’s revision petition and the present
petition is also similarly liable to be dismissed with costs.
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13. I have heard the learned counsel for the parties and perused the
record. At the outset, it may be noted that though the petitioner has
also raised a plea that based on the evidence already available, his
case was fit for directing the police to investigate the matter and
register a FIR, his main submission before this Court is that even if
the learned MM did not find any reason to exercise his power under
Section 156(3) Cr.P.C. to direct an investigation and the registration
of a FIR by the police, it was incumbent upon him to permit the
petitioner to lead pre-summoning evidence in accordance with Section
200 Cr.P.C. and, only then decide the fate of the petitioner’s
application instead of straightaway dismissing the same by
mechanically relying on the Action Taken Report filed by the Police.
14. Thus, the sole and short issue which needs to be determined in
the present petition is whether in every case it is incumbent upon a
Magistrate to allow a complainant to lead pre-summoning evidence,
even when after examining an application under section 156(3) CrPC
and the materials placed on record in support thereof, he comes to a
conclusion that no offence is made out as per the averments of the
complainant himself/herself. In other words, while considering an
application under Section 156(3) Cr.P.C., is it incumbent upon a
Magistrate to record the statements of the complainant and his
witnesses in accordance with Section 200 Cr.P.C. before dismissing
the said application on the ground that the averments made therein
alongwith the supporting documents, do not disclose the commission
of any cognizable offence?
15. Before dealing with the aforesaid issue, it may be useful to refer
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to Sections 156 and 200 of the Code of Criminal Procedure, 1973,
which read as under:

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16. I have given my anxious consideration to the plea of the learned
counsel for the petitioner that it is incumbent upon the Magistrate in
every case to permit the complainant to lead pre-summoning evidence
in order to arrive at a conclusion as to whether any offence is made
out, but I am unable to persuade myself to agree with the same. A
bare perusal of Section 200 itself reveals that it is only imperative for
a Magistrate to record the statements of the complainant and his/her
witnesses when he has taken cognizance of the offence(s) in question.
However, when no such cognizance has been taken, neither Section
156(3) nor Section 200 can be read to caste a binding mandate on the
Magistrate to record pre-summoning evidence before dismissing an
application under section 156(3) Cr.P.C., when the averments made in
the said application alongwith the documents in support thereof make
it crystal clear that there is no ground for putting the investigative
machinery into motion. To hold anything to the contrary would, in my
opinion, lead to a situation where the Courts would be unnecessarily
burdened and precious judicial time would be wasted in recording
evidence qua facts that are already apparent from the record.
17. In the facts of the present case, the documents relied upon by
the petitioner in his application under section 156(3) CrPC, in
themselves make it abundantly clear that the respondent no.2 had
executed all the relevant documents in favour of the petitioner on
24.07.1998 and had also contemporaneously handed over possession
of the plot to him. The factum of the respondent no.2 having handed
over possession of the plot to the petitioner in July 1998 itself, is not
denied by the petitioner and, therefore, merely because the petitioner
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claims that he was forcibly dispossessed from the plot almost after 10
years, can in no manner show any dishonest intention on the part of
the respondent no.2 or lead to any presumption that the respondent
no.2 had already sold the property to someone else in 1997 itself, as is
sought to be contended by the petitioner. In fact, the consistent stand
of the respondent no. 2 before this Court has been that he had
transferred his rights and interest in the property only to the petitioner
and thereafter, he has had no concern with the subject property
whatsoever.
18. It is, thus, evident that the documents filed by the petitioner
himself, show that there were no mala fides on the part of the
respondent no. 2 and there is nothing to show the commission of any
criminal offence by him. Therefore, in my opinion, once the
documents filed by the petitioner in support of his application under
Section 156(3) Cr.P.C. clearly showed that respondent no. 2 could not
be charged with any cognizable offence, there was no binding
mandate on the learned MM to still permit him to lead pre-
summoning evidence in order to demonstrate what was already
evident from the record, i.e., there is nothing to show the commission
of a cognizable offence by respondent no. 2. On the contrary, I am of
the view that once the petitioner’s complaint and the documents relied
upon in support thereof failed disclose any dishonest intention or
criminality on the part of the respondent no. 2, the Courts below were
justified in not prolonging the matter by unnecessarily allowing the
petitioner to lead any pre-summoning evidence.

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19. For the aforementioned reasons, the petition being meritless is
dismissed with no order as to costs. However, it is clarified that the
dismissal of the present petition will not effect the rights of the
petitioner to pursue his civil remedies, as may be advised.



(REKHA PALLI)
JUDGE
NOVEMBER 01, 2018
aa
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