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IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
Vikram Kathuria - Appellant
Versus
State - Respondent
Cr.M.C. 4719 of 2023 & Cr. M.A. 18048 of 2023
Decided On : 26-09-2023
Abuse of Process of Law - Criminal Procedure - Section 91 of Cr.P.C. - The order dated 10.04.2023 passed by learned ACMM was set aside by learned ASJ. The order passed on application filed under Section 91 of Cr.P.C. was interlocutory in nature. The accused persons had not been summoned to appear before the Court concerned. The investigation in the present case was still pending and was not complete by the investigating agency and even the cognizance of the offence had not been taken. The application filed by the accused/petitioners under Section 91 of Cr.P.C. ought not to have been entertained by the learned ACMM. The petitioners shall be at liberty to approach the concerned Court/learned ACMM by way of an application under Section 91 of Cr.P.C. at an appropriate stage, as per law laid down by Hon'ble Apex Court in this regard in case of Debendra Nath Padhi (supra) and Nitya Dharmananada (supra). If any such application is filed by the petitioners, the same shall be decided by the concerned Court/learned ACMM as per law, after issuing notice to the complainant, and in light of aforesaid observations of this Court.
Fact of the Case:
The petitioners sought setting aside of impugned order dated 09.06.2023 passed by learned ASJ in Criminal Revision No. 98/2023. The petitioners were falsely implicated in the present FIR on the complaint of respondent no. 2. The petitioners filed an application under Section 91 of Cr.P.C. before the learned ACMM to ensure that the correct facts were brought on record before the learned Trial Court in order to establish the truth.
Finding of the Court:
The order passed on application filed under Section 91 of Cr.P.C. was interlocutory in nature. The accused persons had not been summoned to appear before the Court concerned. The investigation in the present case was still pending and was not complete by the investigating agency and even the cognizance of the offence had not been taken. The application filed by the accused/petitioners under Section 91 of Cr.P.C. ought not to have been entertained by the learned ACMM. The petitioners shall be at liberty to approach the concerned Court/learned ACMM by way of an application under Section 91 of Cr.P.C. at an appropriate stage, as per law laid down by Hon'ble Apex Court in this regard in case of Debendra Nath Padhi (supra) and Nitya Dharmananada (supra). If any such application is filed by the petitioners, the same shall be decided by the concerned Court/learned ACMM as per law, after issuing notice to the complainant, and in light of aforesaid observations of this Court.
Issues: The order passed on application filed under Section 91 of Cr.P.C. was interlocutory in nature. The accused persons had not been summoned to appear before the Court concerned. The investigation in the present case was still pending and was not complete by the investigating agency and even the cognizance of the offence had not been taken. The application filed by the accused/petitioners under Section 91 of Cr.P.C. ought not to have been entertained by the learned ACMM.
Ratio Decidendi: The application filed by the accused/petitioners under Section 91 of Cr.P.C. ought not to have been entertained by the learned ACMM. The accused persons had not been summoned to appear before the Court concerned. The investigation in the present case was still pending and was not complete by the investigating agency and even the cognizance of the offence had not been taken.
Final Decision: The order dated 10.04.2023 passed by learned ACMM was set aside. The petitioners shall be at liberty to approach the concerned Court/learned ACMM by way of an application under Section 91 of Cr.P.C. at an appropriate stage, as per law laid down by Hon'ble Apex Court in this regard in case of Debendra Nath Padhi (supra) and Nitya Dharmananada (supra). If any such application is filed by the petitioners, the same shall be decided by the concerned Court/learned ACMM as per law, after issuing notice to the complainant, and in light of aforesaid observations of this Court.
The legal decision outlined in the document primarily addresses the nature and maintainability of an application filed under Section 91 of the Criminal Procedure Code (Cr.P.C.). The court determined that such an application, which seeks the production or preservation of documents or records, is an interlocutory order, meaning it is a procedural step that does not decide on the substantive rights of the parties involved (!) (!) .
The court emphasized that at the stage when the application was filed—before the investigation was complete, and before the cognizance of the offence was taken—the order passed by the lower court was not final but procedural. Therefore, any revision against this order was not maintainable, as revision is generally barred against interlocutory orders that do not affect the core rights or liabilities of the parties (!) (!) .
Furthermore, the court clarified that orders under Section 91 Cr.P.C. can be passed at any stage of the proceedings, including investigation, inquiry, or trial, provided they are necessary or desirable for the case (!) (!) . However, such orders should not interfere with the rights of the parties in a manner that could affect the course of justice or the trial itself, especially when the investigation is still pending and the charges have not been framed (!) (!) .
The court also highlighted the importance of procedural fairness, noting that the order passed by the lower court did not provide notice or an opportunity to affected parties, including the complainant, which was considered a procedural error (!) (!) .
Based on these principles, the court held that the order passed by the lower court allowing the application under Section 91 was legally flawed because it was made at a stage when the investigation was ongoing and before the accused had been summoned or charges framed. Consequently, the revision filed against this order was not maintainable, and the order was set aside (!) (!) .
The court concluded that while the order under Section 91 Cr.P.C. is generally interlocutory, parties are always free to approach the court again at an appropriate stage with a proper application, ensuring procedural fairness and compliance with legal standards (!) .
JUDGMENT
Swarana Kanta Sharma, J.
1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.') has been filed on behalf of petitioner seeking setting aside of impugned order dated 09.06.2023 passed by learned Additional Sessions Judge-05, Shahdara District, Karkardooma Courts, New Delhi (`learned ASJ') in Criminal Revision No. 98/2023 vide which the learned ASJ has set aside the order dated 10.04.2023 passed by the learned Additional Chief Metropolitan Magistrate, Shahdara District, Karkardooma Courts, New Delhi (`learned ACMM') on an application filed under Section 91 of Cr.P.C. by the petitioner herein, in case arising out of FIR bearing no. 411/2022, registered at Police Station Anand Vihar, Delhi under Sections 376/377/328/506 of Indian Penal Code, 1860 (`IPC').
FACTUAL BACKDROP
2. The petitioner no. 1 is son of petitioner no. 2. The petitioners, by way of present petition, submit that they have been falsely implicated in the present FIR on the complaint of respondent no. 2. It is stated that the present FIR is absolutely false, replete with false versions of the complainant, and other witnesses in connivance with the local police have concealed correct facts deliberately with a view to mislead the Courts. It is stated that during the pendency of anticipatory bail application of petitioner no. 1 before this Court, in which he had been granted interim protection on10.11.2022, he had come to know that the Investigating Officer (`IO') had preferred to file final report and supplementary report in the present matter. The petitioner no. 1 had inspected the file and had come to know about the deliberate illegal acts of the local police. It is stated that the case has deliberately been falsified by the local police and, therefore, petitioner no. 1 was constrained to file an application under Section 91 of Cr.P.C. before the learned ACMM to ensure that the correct facts were brought on record before the learned Trial Court in order to establish the truth.
3. As stated in the petition, the allegations leveled in the FIR do not disclose commission of any offence against the petitioners. It is stated that as per contents of complaint and MLC, offence under Section 377 of IPC is not made out. It is further stated that the allegations in the complaint were that the petitioner no. 1 had solemnized marriage with respondent no. 2 on 09.05.2022 without informing her about his previous marriage which was in subsistence and had thereafter entered into sexual relationship with her on the false pretext that the two of them were legally married. It is stated that the allegations at best could make out commission of offence under Section 493 of IPC and not under Section 376 of IPC, which has been added to aggravate the offence. It is further stated that there are no allegations of inducement to obtain valuable security to attract Section 420 of IPC. It is also stated that Section 328 of IPC is not made out in light of the allegations leveled in the FIR. It is stated that Section 506 of IPC is also not made out since there are no allegations of threat.
4. As regards the role of IO in the present case, it is stated that final report was prepared under Section 173(i)(A) of Cr.P.C. by the SHO concerned and ACP on 18.10.2022 which was retained by the IO till 28.01.2023, when it was filed before the Court. It is stated that petitioner no. 1 was granted interim protection by this Court on 10.11.2022, after which on 16.11.2022, he had handed over various documents to the IO to show the illegal acts of extortion by respondent no. 2 and her associates. It is stated that on 06.01.2023, the IO in FIR bearing no. 882/2022, Civil Lines, Moradabad, Uttar Pradesh had provided the IO in the present case with various documents pertaining to that FIR for investigation in present FIR, however, the IO of present case had neither placed the same before the Court nor were they placed for scrutiny with her superiors which is the mandate of la
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