The Commissioner Of Police vs Devender Anand

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 834 of 2017

The Commissioner of Police & Ors. .. Appellants

Versus

Devender Anand & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 13.01.2017 passed by the High Court

of Delhi in Writ Petition (Crl.) No. 299 of 2016, the original

respondents – appellants – Commissioner of Police and Others

have preferred the present appeal.

2. That respondent No. 1 herein – original complainant entered

into an agreement to sell in respect of house situated at WZ­ Signature Not Verified

1179, Plot No. 11, Rani Bagh, Shakur Basti, Delhi with Digitally signed by NARENDRA PRASAD Date: 2019.08.08 17:05:15 IST Reason:

respondent Nos. 2 to 3 herein for a consideration of Rs.54 lakhs. 2

That the agreement to sell, general power of attorney etc. were

executed and the entire amount of consideration of Rs.54 lakhs

was paid to the agreement sellers. According to respondent No. 1

– original complainant, subsequently on 31.07.2013, he learnt

that the said property had been mortgaged to Andhra Bank when

a notice by the said bank was affixed on the property.

According to respondent No. 1 – original complainant, thereafter

he was compelled to settle the claim of Andhra Bank to the tune

of Rs.16,93,059/­ for release of the mortgaged documents.

Respondent No. 1 – original complainant also paid the

registration charges of Rs,7,81,941/­ for registration of the sale

deed in his favour. That, thereafter he lodged a complaint with

the Karol Bagh police station against respondent Nos. 2 and 3

herein for the offence under Section 420/34 of the Indian Penal

Code alleging, inter alia, that though the property was put as a

mortgage with the Andhra Bank, the same was not disclosed to

him and without disclosing the same the property in question

was sold. Therefore, it was the case of respondent No. 1 –

original complaint that he was cheated by respondent Nos. 2 and

3 herein. That a preliminary inquiry was conducted on the said 3

complaint by the Sub­Inspector of the Police posted at the Karol

Bagh police station. According to the complainant, on

20.05.2015, the Sub­Inspector submitted his report that a prima

facie offence under Section 420/34 IPC is made out. He sought

permission to register a case under Section 420/34 IPC for

further investigation. According to the complainant, the SHO

concurred with the aforesaid conclusion in his noting dated

21.05.2015 and put up the matter before the ACP concerned.

According to the complainant, the ACP also concurred with the

said conclusion in his noting dated 25.05.2015. According to

the complainant, despite the above, the FIR was not registered

and the same Sub­Inspector Yogender Kumar of Karol Bagh

police station started a fresh process of preliminary inquiry on

the same set of facts. He concluded that since the complainant

had given his consent to the registration of the sale deed and

discharge of the liability of the bank, even though the said

mortgage as revealed to him on 31.07.2013, therefore, no police

action is required. The said file noting was concurred by the

SHO with the diametrically opposite view taken by the Sub­

Inspector Yogender Kumar earlier. The ACP also concurred 4

with the view that only a dispute of civil nature has arisen and

that a complaint be filed. It appears that thereafter the matter

was placed before the Additional DCP who also concurred with

the subsequent view that no case is made out against the

accused, vide his noting dated 07.08.2015. That the said view

was carried by the DCP/C and JCP/CR as well.

2.1 As the FIR was not registered against the accused for the

offence under Section 420/34 IPC as alleged, respondent No. 1

herein approached the High Court by way of writ petition and

prayed for the following reliefs:

“1. Pass appropriate writ/order/direction thereby ordering appropriate action to be taken against the erring police officers, including but not limited respondents No. 2 to 5, who are responsible for non­registration of the FIR in spite of a preliminary enquiry dated 20.5.2015 clearly submitting a finding that a cognizable offence under Section 420/34 of IPC was made out against respondents no. 6 and 7.

2. Pass appropriate writ/order/direction thereby quashing and declaring to be null and void the so­called second/subsequent undated report of preliminary enquiry, and the subsequent endorsements of the SHO, PS Karol Bagh dated 16 July 2015, the undated 5

endorsement of the ACP (Karol Bagh Sub­Division) and the endorsement of DCP (Central) dated 7 August 2015 as the same are without any legal sanctity and have been created and brought into existence against the settled provisions of law and without following due process of law and without following due process of law and in contravention of the procedure laid down by the Hon’ble Supreme Court in its judgment ‘Lalita Kumari vs. Government of U.P.

3. xxx xxx xxx

4. Pass appropriate writ/order/direction thereby calling upon the office of the Commissioner of Police, New Delhi, to submit a report with respect to the relevant provisions of law under which his office has empowered the area ACP and DCP to approve registration of FIR, and upon submission of such a report, the vires and legality of the same be scrutinised as the same is in violation of the provisions of the Code of Criminal Procedure and the procedural guidelines laid down by the Hon’ble Supreme Court in the case ‘Lalita Kumar vs. Government of U.P.

5. Pass appropriate writ/order/direction thereby directing the respondent no. 1 to hold an appropriate enquiry/investigation into the said circumstances under which the illegal and uncalled for second line of preliminary enquiry was initiated and carried out by the same officers, on the same facts and he may further be directed to submit a report of the said enquiry before this 6

Hon’ble Court and take appropriate action by way of registration of cases, if required, and take all other necessary and proper actions in the mater against the officials found guilty in the matter.”

2.2 That the aforesaid prayers/reliefs were opposed by the

appellants herein and respondent Nos. 2 and 3 herein. It was

submitted that the original complainant had earlier preferred an

application under Section 156(3) of the Cr.P.C. which came to be

rejected by the learned Magistrate, vide order dated 27.03.2015

and that the said order was not assailed by the complainant and

thereafter a fresh private complaint under Section 200 Cr.P.C.

has been preferred which is pending before the learned

Magistrate. It was also submitted on behalf of the original

accused that the dispute is of a civil nature which is tried to be

converted into criminal, which is nothing but an abuse of the

process of law. It was submitted that despite having the

knowledge of the mortgage of the property with the Andhra Bank,

thereafter the complainant himself had paid the mortgage money

to the Andhra Bank and even got the sale deed executed in his

favour. It was submitted that if the complainant was aggrieved, 7

in that case, he would not have got the sale deed executed in his

favour.

2.3 That, by the impugned judgment and order, the High Court

has allowed the said writ petition and has directed that the case

be placed before the Commissioner of Police for taking an action

against respondent Nos. 3 to 5 therein (who are appellant Nos. 3

to 5 herein) for taking a diametrically opposite view. The High

Court has also directed that the Commissioner of Police would be

well advised to resort to course correction by directing that the

earlier preliminary inquiry be taken to its logical conclusion and

the steps in that regard by taken within two weeks. The High

Court has also observed that the complainant shall also be

entitled to costs quantified at Rs.25,000/­ to be paid by the

State.

3. We have heard the learned counsel appearing on behalf of

the parties at length. We have also considered the material on

record.

4. Having heard the learned counsel appearing on behalf of the

parties at length and considering the material on record, we are

of the opinion that the criminal proceedings initiated by 8

respondent No. 1 – original complainant is nothing but an abuse

of the process of law for settling a civil dispute.

4.1 Even considering the nature of allegations in the complaint,

we are of the firm opinion that no case is made out for taking

cognizance of the offence under Section 420/34 IPC. The case

involves a civil dispute and for settling a civil dispute, the

criminal complaint has been filed, which is nothing but an abuse

of the process of law.

4.2 It is required to be noted that after having come to know

that the property was mortgaged with the Andhra Bank, the

original complainant himself paid the mortgage money and got

the mortgage redeemed. Not only that, thereafter, he got the

sale deed executed in his name. Thereafter also, he filed the

complaint with the learned Magistrate, being an application

under Section 156(3) of the Cr.P.C., which came to be rejected by

the learned Magistrate, vide order dated 27.03.2015. The said

order was not assailed by the complainant. It appears that

thereafter he filed a private complaint under Section 200 Cr.P.C.

which was pending before the learned Magistrate. Despite the

above, he filed a writ petition before the High Court, which is 9

nothing but an abuse of the process of law. The criminal

proceedings have been initiated by the original complainant to

settle the civil dispute. Therefore, in the facts and circumstances

of the case, the Investigating Officer and other police officers were

justified in not registering the FIR and in coming to the

conclusion that the complaint be filed. The earlier opinion on

preliminary inquiry was never placed before the DCP. Thereafter,

on thorough investigation/inquiry and considering the facts and

circumstances of the case narrated hereinabove, when it was

opined that the dispute between the parties is of a civil nature,

the High Court ought not to have issued further directions. The

High Court ought to have closed the proceedings. Not only the

High Court has issued further directions, but even has imposed

costs and an action against the appellants 3 to 5 herein which, in

the facts and circumstances of the case, is not sustainable.

4.3 In view of the above and for the reasons stated above and as

observed hereinabove, the initiation of the criminal proceedings

by the original complainant is nothing but an abuse of the

process of law, we not only quash and set aside the impugned

judgment and order, but also quash the criminal proceedings 10

pending before the learned Magistrate in respect of the

transaction in question. Consequently, the present appeal is

allowed, the impugned judgment and order dated 13.01.2017

passed by the High Court is hereby quashed and set aside. Even

the criminal proceedings initiated by the original complainant

pending before the learned Magistrate in respect of the

transaction in question are hereby quashed and set aside.

..................................J. (ARUN MISHRA)

...................................J. (S. ABDUL NAZEER)

New Delhi ...................................J. August 08, 2019 (M. R. SHAH)