Final Order 6

Order Details: COPY OF ORDER
Pdf Text: 1
Ct. Cases 29/2025
TEJ BHAN MARWAH Vs. STATE
26.04.2025
Present: Sh. Jeevan Chandra, Ld. Counsel for complainant
joined through VC.
1.	1. Any owner of property in Delhi would always like to	Any owner of property in Delhi would always like to
utilize his property to the fullest extent and more particularly to	utilize his property to the fullest extent and more particularly to
gain significant earning therefrom. One of the modes is to let out	gain significant earning therefrom. One of the modes is to let out
such property on a handsome rent of tenancy. This goes on for	such property on a handsome rent of tenancy. This goes on for
some years smoothly but with the passage of time, it becomes	some years smoothly but with the passage of time, it becomes
evident that due to rise in demand the property would fetch more	evident that due to rise in demand the property would fetch more
rent than what was earlier settled between the parties. The owner	rent than what was earlier settled between the parties. The owner
would then like to recover the possession of the property and	would then like to recover the possession of the property and
then to let out the same on higher rent. If the tenancy is protected	then to let out the same on higher rent. If the tenancy is protected
under Delhi Rent Control Act, the owner will face some more	under Delhi Rent Control Act, the owner will face some more
difficulty but still he can recover through special courts of rent	difficulty but still he can recover through special courts of rent
controller. If it is not so protected, he can recover the possession	controller. If it is not so protected, he can recover the possession
through civil court. Sometimes it may also happen that the tenant	through civil court. Sometimes it may also happen that the tenant
starts neglecting in paying the rent for a significant period of time	starts neglecting in paying the rent for a significant period of time
due to which the owner may want to evict him or may want to	due to which the owner may want to evict him or may want to
recover the arrears of rent. In all eventualities, the owner has to	recover the arrears of rent. In all eventualities, the owner has to
go to a court for recovery of possession or for recovery of arrears	go to a court for recovery of possession or for recovery of arrears
etc. However, he is bound to face the reality that civil proceeding	etc. However, he is bound to face the reality that civil proceeding
(either in civil court or special court of rent controller) will linger	(either in civil court or special court of rent controller) will linger
on for a very considerable period of time.	on for a very considerable period of time.
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2.	2. What then is the choice of the owner to get an early	What then is the choice of the owner to get an early
possession or arrears? Everyone fears the actions of police and	possession or arrears? Everyone fears the actions of police and
court proceedings on criminal jurisdiction. The owner would	court proceedings on criminal jurisdiction. The owner would
think of an arm-twisting technic of approaching the police with a	think of an arm-twisting technic of approaching the police with a
grievance against the tenant by saying that tenant has committed	grievance against the tenant by saying that tenant has committed
some type of criminal offence and FIR should be registered. If	some type of criminal offence and FIR should be registered. If
the police do not accept his request, the owner then will come to	the police do not accept his request, the owner then will come to
a criminal court with the same grievance and will pray that police	a criminal court with the same grievance and will pray that police
be directed to register an FIR. This is normally done by filing a	be directed to register an FIR. This is normally done by filing a
complaint case under Section-223 of BNSS alongwith an	complaint case under Section-223 of BNSS alongwith an
application under Section-175 of BNSS. Some persons utilize	application under Section-175 of BNSS. Some persons utilize
both the provisions in one go by mentioning the same in a single	both the provisions in one go by mentioning the same in a single
complaint. Once this situation is presented before the court, it is	complaint. Once this situation is presented before the court, it is
for the court to take a conscious decision as to:	for the court to take a conscious decision as to:
i) whether an offence is made out or not on the basis of facts	i) whether an offence is made out or not on the basis of facts
pleaded in the complaint/application;	pleaded in the complaint/application;
ii) if an offence is made out, whether the said offence is	ii) if an offence is made out, whether the said offence is
cognizable;	cognizable;
iii) if the offence so made out is cognizable, whether the same	iii) if the offence so made out is cognizable, whether the same
would require the intervention of police or the complainant can	would require the intervention of police or the complainant can
establish his case on his own;	establish his case on his own;
iv) if intervention of police is required, whether the same can be	iv) if intervention of police is required, whether the same can be
satisfied by a limited involvement of police or it will require a	satisfied by a limited involvement of police or it will require a
thorough police expertise in collecting the evidence.	thorough police expertise in collecting the evidence.
3.	3. After considering the entire circumstances, if the court	After considering the entire circumstances, if the court
finds that all the aforesaid requirements are available in the facts	finds that all the aforesaid requirements are available in the facts
pleaded by the complainant, the court would be able to ask the	pleaded by the complainant, the court would be able to ask the
police to register an FIR. Meaning thereby that:	police to register an FIR. Meaning thereby that:
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i) even if an offence is made out but it is non-cognizable, the	i) even if an offence is made out but it is non-cognizable, the
court cannot direct the police to register an FIR;	court cannot direct the police to register an FIR;
ii) even if the offence is found to be cognizable, the court is still	ii) even if the offence is found to be cognizable, the court is still
not required to direct the police to register an FIR if complainant	not required to direct the police to register an FIR if complainant
is in the possession of evidence and knows the culprits;	is in the possession of evidence and knows the culprits;
iii) even if the offence is found to be cognizable and complainant	iii) even if the offence is found to be cognizable and complainant
is in possession of some evidence but not of all the evidence, the	is in possession of some evidence but not of all the evidence, the
court may refuse the registration of FIR if it considers that a	court may refuse the registration of FIR if it considers that a
limited police intervention would be sufficient, in which case the	limited police intervention would be sufficient, in which case the
court will wait till the stage of Section-225 of BNSS to direct a	court will wait till the stage of Section-225 of BNSS to direct a
limited investigation;	limited investigation;
iv) it is only when the court finds the offence cognizable and a	iv) it is only when the court finds the offence cognizable and a
necessity of thorough police intervention that the court is	necessity of thorough police intervention that the court is
required to direct the police to register an FIR.	required to direct the police to register an FIR.
4.	4. Registration of FIR by the direction of court is also	Registration of FIR by the direction of court is also
required to be understood. Law mandates the officer-in-charge of	required to be understood. Law mandates the officer-in-charge of
a police station to lodge the First Information Report (FIR) of a	a police station to lodge the First Information Report (FIR) of a
crime and investigate the manner. The law however nowhere says	crime and investigate the manner. The law however nowhere says
or specially empowers a court to direct registration of any such	or specially empowers a court to direct registration of any such
FIR. But seemingly, the BNSS empowers the court to direct the	FIR. But seemingly, the BNSS empowers the court to direct the
police to investigate a crime which the police could have done on	police to investigate a crime which the police could have done on
its own but failed. It is this carrying out the investigation that will	its own but failed. It is this carrying out the investigation that will
require a prior registration of FIR. Meaning thereby that it is	require a prior registration of FIR. Meaning thereby that it is
inherent in the direction of court for investigation that the police	inherent in the direction of court for investigation that the police
should also registration an FIR before complying with the	should also registration an FIR before complying with the
direction of court given for investigating a crime.	direction of court given for investigating a crime.
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5.	5. It is clear that till the earlier three stages aforesaid, the	It is clear that till the earlier three stages aforesaid, the
court will not pass any such direction for registration of FIR and	court will not pass any such direction for registration of FIR and
only in the fourth stage aforesaid that the court would be required	only in the fourth stage aforesaid that the court would be required
to pass a direction for registration of FIR. It is this fourth stage	to pass a direction for registration of FIR. It is this fourth stage
which attracts the provision of Section-175(3) BNSS.	which attracts the provision of Section-175(3) BNSS.
“175(3) Any Magistrate empowered under section 210 may, after	“175(3) Any Magistrate empowered under section 210 may, after
considering the application supported by an affidavit made under	considering the application supported by an affidavit made under
sub-section (4) of section 173, and after making such inquiry as	sub-section (4) of section 173, and after making such inquiry as
he thinks necessary and submission made in this regard by the	he thinks necessary and submission made in this regard by the
police officer, order such an investigation as above-mentioned”.	police officer, order such an investigation as above-mentioned”.
6.	6. The provision aforesaid says that if the court wants to	The provision aforesaid says that if the court wants to
direct an investigation, it has to hear the police officer (obviously	direct an investigation, it has to hear the police officer (obviously
as to why he did not do so) and make an inquiry and only the	as to why he did not do so) and make an inquiry and only the
court should issue such direction. The provision nowhere says	court should issue such direction. The provision nowhere says
that even if the court does not find any offence or cognizable	that even if the court does not find any offence or cognizable
offence from the facts pleaded by the complainant before it, the	offence from the facts pleaded by the complainant before it, the
court has to still hear the police officer or to make an inquiry.	court has to still hear the police officer or to make an inquiry.
Meaning thereby that till three earlier stages enumerated herein	Meaning thereby that till three earlier stages enumerated herein
above, the court can take a decision directly as to what is to be	above, the court can take a decision directly as to what is to be
done.	done.
7.	7. In the earlier law i.e. CrPC 1973, there was a similar	In the earlier law i.e. CrPC 1973, there was a similar
provision in Section-156(3) empowering the court to direct the	provision in Section-156(3) empowering the court to direct the
police to investigate a crime. It runs “Any Magistrate empowered	police to investigate a crime. It runs “Any Magistrate empowered
under section 190 may order such an investigation as above-	under section 190 may order such an investigation as above-
mentioned”. It is clear that in the earlier law, there was no	mentioned”. It is clear that in the earlier law, there was no
mention of hearing the police officer or of making an inquiry.	mention of hearing the police officer or of making an inquiry.
However, still judicial precedents and traditional practice evolved	However, still judicial precedents and traditional practice evolved
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a concept of status report/ATR before issuance of such a	a concept of status report/ATR before issuance of such a
direction for investigation. It was simply with a view to ascertain	direction for investigation. It was simply with a view to ascertain
as to whether the police has already registered an FIR whereas	as to whether the police has already registered an FIR whereas
complainant is unaware, or what was the reason of the police	complainant is unaware, or what was the reason of the police
officer in not registering the FIR. Meaning thereby till the three	officer in not registering the FIR. Meaning thereby till the three
earlier stages indicated aforesaid, the court was not required to	earlier stages indicated aforesaid, the court was not required to
call for status report/ATR and could have taken a decision	call for status report/ATR and could have taken a decision
directly on the basis of pleaded facts. None of the judicial	directly on the basis of pleaded facts. None of the judicial
precedents even mandated that in all eventualities, the court was	precedents even mandated that in all eventualities, the court was
required to call for status report/ATR from the police once it	required to call for status report/ATR from the police once it
receives a complaint/application.	receives a complaint/application.
8.	8. With the aforesaid background, we may now consider the	With the aforesaid background, we may now consider the
facts of the present case. One Tej Bhan Marwah has come to the	facts of the present case. One Tej Bhan Marwah has come to the
court with a complaint under Section-175 read with Section-223	court with a complaint under Section-175 read with Section-223
of BNSS praying therein that ATR be called, police be directed to	of BNSS praying therein that ATR be called, police be directed to
register an FIR and accused persons be summoned. The case	register an FIR and accused persons be summoned. The case
pleaded by him is that he is the owner of a particular property	pleaded by him is that he is the owner of a particular property
Matadeen, his wife Beena and his daughter Shefali are the tenant	Matadeen, his wife Beena and his daughter Shefali are the tenant
in the said property having taken the same on rent of Rs.15,000/-	in the said property having taken the same on rent of Rs.15,000/-
per month in the year 2004. They were in arrears and therefore,	per month in the year 2004. They were in arrears and therefore,
the complainant filed a civil case for recovery of possession and	the complainant filed a civil case for recovery of possession and
arrears of rent. Complainant has come to know that these persons	arrears of rent. Complainant has come to know that these persons
have fabricated some documents to show themselves as owner of	have fabricated some documents to show themselves as owner of
the property and have obtained electricity connection on the basis	the property and have obtained electricity connection on the basis
of such forged documents. He claims that the forged documents	of such forged documents. He claims that the forged documents
are showing the name of seller as Prem Prakash but he was never	are showing the name of seller as Prem Prakash but he was never
the owner of the property. Complainant therefore says that	the owner of the property. Complainant therefore says that
Matadeen, Beena, Shefali have committed several offences of	Matadeen, Beena, Shefali have committed several offences of
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cheating, fraud, forgery, illegal possession of property. His	cheating, fraud, forgery, illegal possession of property. His
counsel argued on the same line on the complaint.	counsel argued on the same line on the complaint.
9.	9. It is clear from the facts pleaded in the complaint that	It is clear from the facts pleaded in the complaint that
complainant was never deceived nor made to part with any	complainant was never deceived nor made to part with any
money. When the purported documents were prepared,	money. When the purported documents were prepared,
complainant was not even in picture. He was also not available	complainant was not even in picture. He was also not available
when those documents were utilized before the electricity	when those documents were utilized before the electricity
company for getting electricity connection. Deception is the basic	company for getting electricity connection. Deception is the basic
ingredient of offence of cheating as defined in Section-318 BNS /	ingredient of offence of cheating as defined in Section-318 BNS /
415 IPC. Since complainant was never deceived by the act of	415 IPC. Since complainant was never deceived by the act of
proposed accused persons, he cannot claim any type of offence of	proposed accused persons, he cannot claim any type of offence of
cheating. If anyone was aggrieved, it was the electricity company	cheating. If anyone was aggrieved, it was the electricity company
but it has not come to the court for initiation of any criminal case	but it has not come to the court for initiation of any criminal case
which shows that the electricity company has not found any	which shows that the electricity company has not found any
defect in the documents and therefore it never made any such	defect in the documents and therefore it never made any such
allegation. Complainant cannot take on his shoulders the	allegation. Complainant cannot take on his shoulders the
responsibility of the electricity company.	responsibility of the electricity company.
10.	10. The documents so produced by the complainant show that	The documents so produced by the complainant show that
certain transaction of sale-purchase took place between Prem	certain transaction of sale-purchase took place between Prem
Prakash and Matadeen wherein Prem Prakash was claiming	Prakash and Matadeen wherein Prem Prakash was claiming
himself to be the owner and Matadeen purchased the same by	himself to be the owner and Matadeen purchased the same by
giving some amount. If in reality Prem Prakash was not the	giving some amount. If in reality Prem Prakash was not the
owner of the property, it would be Matadeen who would have	owner of the property, it would be Matadeen who would have
suffered loss of money and not the complainant. As such, the	suffered loss of money and not the complainant. As such, the
complainant cannot claim any type of offence of cheating at all (a	complainant cannot claim any type of offence of cheating at all (a
very fruitful discussion on this point is available In Mohd.	very fruitful discussion on this point is available In Mohd.
Ibrahim vs State of Bihar 2010 AIR SCW 405).	Ibrahim vs State of Bihar 2010 AIR SCW 405).
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11.	11. So far as forgery is concerned, the complainant has not	So far as forgery is concerned, the complainant has not
claimed that any of the so-called forged documents has his	claimed that any of the so-called forged documents has his
signature in fake or made under pressure. What he is pleading is	signature in fake or made under pressure. What he is pleading is
that Prem Prakash is not the owner of property but the documents	that Prem Prakash is not the owner of property but the documents
show him as owner and Matadeen as buyer and therefore, the	show him as owner and Matadeen as buyer and therefore, the
documents should be treated as forged. This cannot be accepted	documents should be treated as forged. This cannot be accepted
at all. If a person claims himself to be the owner of a property in	at all. If a person claims himself to be the owner of a property in
any document, the document will not become fabricated only	any document, the document will not become fabricated only
because he is alleged to be not the actual owner (here again	because he is alleged to be not the actual owner (here again
Mohd. Ibrahim vs State of Bihar 2010 AIR SCW 405 says that in	Mohd. Ibrahim vs State of Bihar 2010 AIR SCW 405 says that in
such a situation, there cannot be any forgery and the actual owner	such a situation, there cannot be any forgery and the actual owner
cannot initiate a criminal case).	cannot initiate a criminal case).
12.	12. Illegal possession has also been claimed by the	Illegal possession has also been claimed by the
complainant in the present case. However, his own pleading says	complainant in the present case. However, his own pleading says
that the proposed accused persons are tenant in the property. He	that the proposed accused persons are tenant in the property. He
though claims that the tenants are in arrears of rent but this in	though claims that the tenants are in arrears of rent but this in
itself will not create any type of illegal possession. It is for the	itself will not create any type of illegal possession. It is for the
complainant to recover the possession and arrears of rent through	complainant to recover the possession and arrears of rent through
proper civil mechanism, which in fact the complainant has	proper civil mechanism, which in fact the complainant has
already adopted.	already adopted.
13.	13. From a bare reading the case filed by the complainant Tej	From a bare reading the case filed by the complainant Tej
Bhan Marwah, it becomes clear that no offence, much less	Bhan Marwah, it becomes clear that no offence, much less
cognizable, is made out from the pleaded facts. In such	cognizable, is made out from the pleaded facts. In such
circumstances, we cannot reach to the fourth stage enumerated	circumstances, we cannot reach to the fourth stage enumerated
herein above and cannot consider to direct the registration of	herein above and cannot consider to direct the registration of
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FIR. Therefore, even calling for status report/ATR would also be	FIR. Therefore, even calling for status report/ATR would also be
a futile exercise.	a futile exercise.
14.	14. One thing is also noticeable in the case and in other several	One thing is also noticeable in the case and in other several
cases. Section-175(3) comes after Section-173(4) in BNSS. It is	cases. Section-175(3) comes after Section-173(4) in BNSS. It is
apparent from a bare reading of Section-173(4) that firstly, the	apparent from a bare reading of Section-173(4) that firstly, the
complainant has to approach the officer-in-charge of a police	complainant has to approach the officer-in-charge of a police
station and if he refuses to lodge an FIR then he has to approach	station and if he refuses to lodge an FIR then he has to approach
the DCP. If even DCP does not register the FIR, then only he can	the DCP. If even DCP does not register the FIR, then only he can
come to a Magistrate with his grievance. All these stages are	come to a Magistrate with his grievance. All these stages are
successive and a complainant cannot pick and choose. He has to	successive and a complainant cannot pick and choose. He has to
follow all the stages in the same sequence. Here, the complainant	follow all the stages in the same sequence. Here, the complainant
sent a complaint to SHO (officer in charge) vide letter dated	sent a complaint to SHO (officer in charge) vide letter dated
12.03.2024 (by post on 13.03.2024) and sent a copy of the same	12.03.2024 (by post on 13.03.2024) and sent a copy of the same
to DCP on the same day i.e. 13.03.2024 by post. Even he has	to DCP on the same day i.e. 13.03.2024 by post. Even he has
written in his case that he sent a copy of the same to DCP. This	written in his case that he sent a copy of the same to DCP. This
court is of the view that it cannot be treated as a compliance of	court is of the view that it cannot be treated as a compliance of
successive stages of Section-173(4) BNSS. Position was similar	successive stages of Section-173(4) BNSS. Position was similar
in the earlier law i.e. CrPC which vide its Section-154(3)	in the earlier law i.e. CrPC which vide its Section-154(3)
required a complainant to first approach the officer in charge and	required a complainant to first approach the officer in charge and
only after his refusal to register FIR that the complainant could	only after his refusal to register FIR that the complainant could
have approached the DCP. If compliance is not made to the	have approached the DCP. If compliance is not made to the
requirement of statue than the Magistrate cannot issue direction	requirement of statue than the Magistrate cannot issue direction
for registration of FIR.	for registration of FIR.
15.	15. This case is a glaring example of desire of a person to	This case is a glaring example of desire of a person to
convert a pure civil dispute into a criminal one by assuming and	convert a pure civil dispute into a criminal one by assuming and
presuming certain state of affairs. Case is simple that Tej Bhan	presuming certain state of affairs. Case is simple that Tej Bhan
Marwah is claiming himself to be the owner of a property	Marwah is claiming himself to be the owner of a property
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whereas Prem Prakash is also claiming himself to be the owner.	whereas Prem Prakash is also claiming himself to be the owner.
Who is the actual owner cannot be decided by a court of criminal	Who is the actual owner cannot be decided by a court of criminal
jurisdiction and has to be done by civil court only. Ld. Counsel	jurisdiction and has to be done by civil court only. Ld. Counsel
for the complainant would argue that complainant has in his	for the complainant would argue that complainant has in his
favour a sale deed. However, registration of a sale deed cannot	favour a sale deed. However, registration of a sale deed cannot
create a conclusive proof that the seller (mentioned in the sale	create a conclusive proof that the seller (mentioned in the sale
deed) was himself the earlier owner. He would have transferred	deed) was himself the earlier owner. He would have transferred
only such right in the property which he himself was having and	only such right in the property which he himself was having and
nothing more. The judgment in K. Gopi vs the Sub Registrar	nothing more. The judgment in K. Gopi vs the Sub Registrar
2025 INSC 462 says that while registering a sale deed, the sub-	2025 INSC 462 says that while registering a sale deed, the sub-
registrar has no authority to question the ownership of seller.	registrar has no authority to question the ownership of seller.
Meaning thereby that even if there is a sale deed in favour of the	Meaning thereby that even if there is a sale deed in favour of the
complainant, he will have to establish (once a dispute arises in a	complainant, he will have to establish (once a dispute arises in a
civil court) that his seller was having the authority to sale.	civil court) that his seller was having the authority to sale.
Similarly, the other person can also establish his claim of	Similarly, the other person can also establish his claim of
ownership in a civil court if the complainant wants to dispute the	ownership in a civil court if the complainant wants to dispute the
ownership of Prem Prakash. Whatever may be the situation, it is	ownership of Prem Prakash. Whatever may be the situation, it is
obvious that it is only a civil court which can settle the dispute of	obvious that it is only a civil court which can settle the dispute of
ownership. Criminal court will have no jurisdiction at all.	ownership. Criminal court will have no jurisdiction at all.
Complainant is just trying to convert a civil dispute into a	Complainant is just trying to convert a civil dispute into a
criminal dispute. The judgment in Rikhab Birani vs State of Uttar	criminal dispute. The judgment in Rikhab Birani vs State of Uttar
Pradesh 2025 INSC 512 has very strongly deprecated such	Pradesh 2025 INSC 512 has very strongly deprecated such
practice.	practice.
16.	16. Normally, it is assumed that even if the court does not	Normally, it is assumed that even if the court does not
direct registration of FIR but it should give a chance to the	direct registration of FIR but it should give a chance to the
complainant to prove the case by his own evidence to be	complainant to prove the case by his own evidence to be
recorded under Section-223 and 225 of BNSS. However, this can	recorded under Section-223 and 225 of BNSS. However, this can
be done only when reading of facts shows commission of any	be done only when reading of facts shows commission of any
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type of offence, whether cognizable or non-cognizable. If no	type of offence, whether cognizable or non-cognizable. If no
offence at all is made out, there cannot be any question of	offence at all is made out, there cannot be any question of
proceeding further in the case and therefore, the matter cannot	proceeding further in the case and therefore, the matter cannot
progress through Section-223 and 225 of BNSS. The case has to	progress through Section-223 and 225 of BNSS. The case has to
be dismissed in limine. The judgment in O.P. Gogne vs State	be dismissed in limine. The judgment in O.P. Gogne vs State
(dated 26.07.2011 of Hon’ble Delhi high Court) says that if the	(dated 26.07.2011 of Hon’ble Delhi high Court) says that if the
Magistrate is of the opinion that no case is made-out	Magistrate is of the opinion that no case is made-out from the	from the
complaint, then the magistrate, need not resort to the further	complaint, then the magistrate, need not resort to the further
procedures, prescribed in the Code.	procedures, prescribed in the Code.
17.	17. This court is satisfied that no offence is made out from the	This court is satisfied that no offence is made out from the
facts pleaded by the complainant and therefore, there is no	facts pleaded by the complainant and therefore, there is no
necessity in the present to proceed any further. Consequently, the	necessity in the present to proceed any further. Consequently, the
complaint filed by Tej Bhan Marwah under Section-175 read	complaint filed by Tej Bhan Marwah under Section-175 read
with Section-223 of BNSS is rejected.	with Section-223 of BNSS is rejected.
File be consigned to record room after due formalities.	File be consigned to record room after due formalities.
(Neetu Sharma)
ACJM-01/CENTRAL
26.04.2025
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