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DELHI HIGH COURT
Suresh Kait, J.
Naveen Garg & Ors. - Appellant
Versus
State of NCT of Delhi & Ors. - Resopndent
Crl. M.C. 455 of 2012
Decided On : 03-12-2012
Criminal Complaint - Quashing - Prevention of Corruption Act, Delhi Municipal Corporation Act, Indian Penal Code - 13 of Prevention of Corruption Act r/w 345/461 of Delhi Municipal Corporation Act r/w 406/420/466/467/468/471/120-B/34 I.P.C.
Fact of the Case:
The petitioners sought to quash the criminal complaint, impugned order, and FIR registered under Section 13 of Prevention of Corruption Act r/w Sections 345/461 of Delhi Municipal Corporation Act r/w Sections 406/420/466/467/468/471/120-B/34 I.P.C. The respondent filed a complaint under Section 156 (3) Cr.P.C. against police officers, Commissioner, Land Management, and Officers of MCD, seeking directions against the accused persons for committing offenses. The learned MM allowed the petitioner to withdraw the complaint and dismissed it as withdrawn. Subsequently, the respondent filed another complaint, leading to the direction to register an FIR by the learned MM.
Finding of the Court:
The court found that the learned MM had not sought a report from the police before directing the registration of the FIR, and the petitioners had no role in the unauthorized construction as the land belonged to DDA. The court also noted that the respondent's credibility was not a bar to invoking the court's jurisdiction for FIR registration. The order against the petitioners and subsequent proceedings were set aside, allowing the learned MM to pass a fresh order after obtaining a proper report on the land and the role of the petitioners.
Issues: The issues revolved around the legality of the direction to register an FIR without seeking a report from the police, the lack of role of the petitioners in the unauthorized construction, and the credibility of the respondent in invoking the court's jurisdiction.
Ratio Decidendi: The court held that the learned MM should have sought a report from the police before directing the registration of the FIR and that the petitioners had no role in the unauthorized construction as the land belonged to DDA. The court also emphasized that the lack of credibility of the respondent was not a bar to invoking the court's jurisdiction for FIR registration.
Final Decision: The petition was allowed, and the order against the petitioners and subsequent proceedings were set aside, allowing the learned MM to pass a fresh order after obtaining a proper report on the land and the role of the petitioners.
Suresh Kait, J.—
1. Vide the instant petition, petitioners have sought to quash the Crl. Complaint No. 493/2011 dated 06.09.2011, the impugned order dated 12.12.2011 and also to set aside/quash the consequent FIR registered vide No. 394/2011 at P.S.-Pul Prahladpur, under Section 13 of Prevention of Corruption Act r/w Sections 345/461 of Delhi Municipal Corporation Act r/w Sections 406/420/466/467/468/471/120-B/34 I.P.C.
2. Mr. Rakesh Tikku, ld. Sr. Advocate appearing on behalf of the petitioners submitted that respondent no. 2 initially filed a Complaint Case no. 440/2011 under Section 156 (3) Cr.P.C. wherein police officers were impleaded as respondent nos. 1 to 4, Commissioner, Land Management, Delhi Development Authority as respondent no. 5 and respondent nos. 7 to 13 were Officers of MCD, and thereby sought directions against the accused persons in committing the Offence in terms of the order of this Court (High Court) in W.P. (C) No. 4771 of 1993 vide its order dated 03.11.1997.
3. Thereupon, Ld. MM-5 (SE) vide its order dated 06.06.2011 has passed the following order:-
“Complainant with Counsel On the last date of hearing, it was pointed out to the counsel for complainant that in the main complaint, it is not clearly mentioned as to on which land the illegal construction/encroachment is going on. Counsel submits that he do not want to file any supplementary complaint or he do not want to supplement his complaint by providing those particulars and whatever decision as to be passed on the basis of the complaint and reply filed by the SHO, Pul Prahlad Pur, where he has admitted the illegal constructions.
To come up for orders on 30.06.2011.”
4. Thereafter, on 30.06.2011, the same learned MM has passed the following order:
“Complainant with Counsel Today’s date is fixed for orders.
An application to amend the present complaint has been filed by counsel for complainant.
Put up for consideration on 15.07.2011”
5. Thereafter, the matter was listed on 15.07.2011. It is recorded in the said date that “neither the complainant nor the counsel was present.” However, the matter was put up for the purpose as enumerated in order dated 30.06.2011.
6. Ld. Sr. Advocate has pointed out that the same learned MM received another Crl. Compl. No. 493/2011; therefore, on receiving the fresh complaint “Action Taken Report” was called from the concerned police station whether any FIR has been registered on the facts of the case or whether any action has been taken or not.
7. Ld. Counsel further submits that in the second complaint it is stated by the complainant that part of the said land belongs to DDA. However, he has not indicated that the said land belongs to MCD.
8. It is further submitted that the reply to the first complaint filed by the Police did not disclose the fact that the same issue was seized by this Court in W.P.6672/2008 and dealt with the land purchaser to the village – Pul Prahlad Pur and respondent no. 2.
9. On oral request, Ld. MM has given the opportunity to the complainant/respondent no. 2 to withdraw the first complaint vide its order dated 21.10.2011. However, his statement was recorded. Ld. MM, thus allowed the petitioner to withdraw the same and accordingly, complaint case was dismissed as withdrawn. In this situation, when the complainant wanted to file the supplementary complainant, the Judge should have allowed the complainant to file the additional affidavit thereto.
10. If it is allowed, then the same judge, would not have, without seeking the ATR (Action Taken Report) from the police, straightway issue direction to the police to register the FIR under the provisions/contents mentioned therein.
11. It is further submitted that till the passing of the order dated 21.10.2011, there was no Action Take Report (ATR) qua the second complaint, whereas directed against the first complaint vide its order dated 06.09.2011. However, the ld. MM has not even gone through the contents of the second complaint and previous order as wel
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