Final Order 2

Order Details: COPY OF JUDGMENT
Pdf Text: 1
IN THE COURT OF SH. SUMIT DASS, ADDITIONAL SESSIONS
JUDGE – 05, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Criminal Revision No. 79/2025
Arvind Saraf
S/o Late Ram Gopal Saraf
Having its office at
F-701-A, Lado Sarai, Mehrauli,
New Delhi-110030. …….Revisionist
VERSUS
1. State of NCT of Delhi
Through SHO
PS Economic Offences Wing,
Mandir Marg, New Delhi
2. Gautam Khaitan
s/o Late O.P.Khaitan
r/o N-12, Panchsheel Enclave,
New Delhi.
Having office at B-1, Defence Colony,
New Delhi-110024. …… Respondent
Date of Institution : 06.02.2025
Date of Arguments : 10.02.2025
Date of Decision : 25.02.2025
JUDGMENT
1. This revision petition is directed against the order dated
31.01.2025 passed by the Court of Ld. Chief Judicial Magistrate [in short
Ld. CJM/Ld. Trial Court] in complaint case bearing no. 81842/2023 titled
Cr. Rev. 79/2025 1/13
Arvind Saraf v/s State
-- 1 of 13 --
2
as
Gautam Khaitan v/s Arvind Saraf & Anr. PS EOW, Mandir Marg
whereby and whereunder the Ld. CJM had allowed an application U/s
156(3) of the Code of Criminal Procedure, 1973 [in short Cr.PC] and had
directed registration of FIR.
1.1 In compliance of the said order in fact FIR No.15/2025 dated
03.02.2025 U/s 406/420 IPC at PS EOW was lodged/registered.
1.2 The revision petition was received in this Court on 06.02.2025
- by then the FIR had already been lodged. Infact on 06.02.2025 I had
passed an order directing the notice of the revision petition to be served
on the opposite party and the
impugned order directing registration of the
FIR was stayed. However, the said order in the given set of facts and
circumstances did not survive and on 10.02.2025 arguments on the
revision petition were heard and the matter was reserved for orders.
2. Sh. Sidharth Aggarwal, Ld. Sr. Advocate for the revisionist
contended that notwithstanding the said aspect i.e. the FIR having been
registered, this Court is duly empowered to examine the legality,
correctness and propriety of the
impugned order dated 31.01.2025 on the
touchstone of the provision of Section 397 Cr.PC to check whether the
same is not illegal, improper or otherwise in any manner perverse. He
submits that since the revision petition emanates from the order directing
registration of the FIR that order - being a judicial order is subject to
scrutiny by this Court. In support thereof he has relied upon the
following judgments:
i)
Arun P.Gidh v/s Chander Prakash & Ors. Writ Petition
Cr. Rev. 79/2025 2/13
Arvind Saraf v/s State
-- 2 of 13 --
3
2517/2022 decided by Hon'ble Bombay High Court.
ii) Ravinder Lal Airi v/s S.Shalu Constructions Pvt. Ltd. &
Ors. reported in (2023) 1 High Court Cases (Delhi) 597
iii) Alok Kumar v/s Harsh Mander & Anr. reported in 2023
SCC Online Delhi 4213.
iv) Om Prakash Ambadkar v/s State of Maharashtra, Crl.
Appeal No. 352/2020.
2.1 On the other hand Sh. Madhav Khurana, Ld. Sr. Advocate
appearing on behalf of complainant/respondent no.2 contended that more
or less once the FIR has been lodged it would be only an academic
exercise to continue with the present revision petition - in fact the revision
petition should be dismissed on this short ground only. He submits that
even if the order passed by Ld. CJM is considered on a stand alone basis
it is in consonance with the direction passed by Hon'ble Apex Court in
Lalit Kumari v/s Govt. of U.P. & Ors. coupled with the settled case law
on the subject as to what course of action the Ld. Magistrate should take
upon receipt of the application U/s 156(3) Cr.PC. He submits that the
entire case law on the subject has been cited/relied upon by the Ld. CJM
in para no.6 of the
impugned order. In fact the said judgments/the ratios
are again perused the revision petition
perse would liable to be dismissed.
3. Matter was heard at length and reserved for orders.
4. First and foremost question which arises for consideration is
whether once the FIR has been lodged whether this Court should exercise
any revisional jurisdiction over the subject matter notwithstanding the fact
Cr. Rev. 79/2025 3/13
Arvind Saraf v/s State
-- 3 of 13 --
4
lodging of FIR or the said event cannot be effaced even for the sake of
argument the revisionist is successful. To that extent Ld. Counsel for the
revisionist also conceded but stated that the Ld. Trial Court had not
considered the judicial precedents on the subject matter i.e. U/s 156(3)
Cr.PC and therefore it is imperative that this Court should exercise its
revisional jurisdiction and pass necessary directions.
4.1 In support thereof Ld. Counsel appearing on behalf of
revisionist contended that in the judgment i.e.
Arun P. Gidh v/s Chander
Prakash Singh & Ors. (supra) the Hon'ble Bombay High Court had
opined that this Court while exercising its revisional jurisdiction is
competent to deal with the said matter even post registration of the FIR.
Ld. Sr. Advocate has extensively relied upon the said judgment and read
over the questions as formulated in para no. 45 and contended that the
said judgment is directly applicable in the given set of facts and
circumstances. He has particularly drawn the attention of the Court to
para 119 to 122 and para 125 to 128 which reads as here under :
119. The distinction propounded by Mr. Ostwal cannot be said
to be inconceivable. The illegality in the order passed by the
Magistrate may manifest in the form of procedural breach or
want of compliance of the pre- requisite under the statute or a
law declared by the Supreme Court. For instance, if the
Magistrate passes an order under Section 156(3) without an
affidavit having been filed in the manner ordained by Priyanka
Srivastava (supra), the procedural irregularity would be writ
large. Likewise, if an order is passed in respect of an act done
by a public servant while acting in official capacity or in
discharge of his official duties without the previous sanction
envisaged under Section 197 of the Code, where the proviso to
Section 156(3) introduced by the Maharashtra Amendment
operates, the legality of the order under Section 156(3) can be
questioned on that ground.
Cr. Rev. 79/2025 4/13
Arvind Saraf v/s State
-- 4 of 13 --
5
120. In the case of Jacob Mathew V/s. State of Punjab and
Anr.55 55(2005) 6 SCC 1 WP2517-20222+-.DOC the
Supreme Court directed that a private complaint of medical
negligence may not be entertained, unless the complainant has
produced prima facie evidence before the Court in the form of
a credible opinion given by another competent doctor to
support a charge of rashness or negligence, on the part of the
accused doctor. The investigating officer should, before
proceeding against the doctor accused of rash or negligent act
or omission, obtain an independent and competent medical
opinion preferably from a doctor in government service
qualified in that branch of medical practice. If a direction for
registration of FIR without adhering to the aforesaid mandate
is given, it may be assailed as being illegal for being in
violation of the law declared by the Supreme Court. It can be
conceivably urged that, in the aforesaid cases, when the order
of the Magistrate is set aside, all the actions which have been
taken, in the interregnum, must be declared illegal and non-est.
121. Mr. Ponda joined the issue by canvassing a submission
that it is well settled principle of criminal jurisprudence that
the illegality committed during the course of investigation
does not affect the competence and jurisdiction of the Court. A
strong reliance was placed on the observations of the Supreme
Court in the case of State of Haryana and Ors. V/s. Bhajan Lal
and Ors.56 to lend support to the submission that the invalidity
of the preceding investigation does not vitiate the resultant
prosecution, unless miscarriage of justice has been caused
thereby. In the case of Bhajan Lal (Supra), in the context of the
investigation having been carried out by an 561992 Supp.(1)
SCC 335 WP2517-20222+-.DOC officer, who was not
empowered under Section 5A of the Prevention of Corruption
Act, 1947, the Supreme Court enunciated the position in law
as under :
"119. It has been ruled by this Court in several decisions
that Section 5-A of the Act is mandatory and not directory
and the investigation conducted in violation thereof bears
the stamp of illegality but that illegality committed in the
course of an investigation does not affect the competence
and jurisdiction of the court for trial and where the
cognizance of the case has in fact been taken and the case
is proceeded to termination, the invalidity of the preceding
investigation does not vitiate the result unless miscarriage
of justice has been caused thereby See (1) H.N.Rishbud
and Inder Singh V/s. State of Delhi57; (2) Major
E.G.Barsay v/s. State of Bombay58; (3) Munna Lal V/s.
State of Uttar Pradesh 59; (4) S.N.Bose V/s. State of
Cr. Rev. 79/2025 5/13
Arvind Saraf v/s State
-- 5 of 13 --
6
Bihar60; (5) Muni Lal V/s. Delhi Administration61; (6)
Khandu Sonu Dhobi V/s. State of Maharashtra62.
However, in Rishbud Case, and Muni Lal Case, it has been
ruled that if any breach of the said mandatory proviso
relating to investigation is brought to the notice of the
court at an early stage of the trial, the court will have to
consider the nature and extent of the violation and pass
appropriate orders as may be called for to rectify the
illegality and cure the defects in the investigation."
(emphasis supplied)
122. The submission of Mr. Ponda, based on the prosecution
not being completely vitiated by an illegality in investigation
does not afford a 57(1955) 1 SCR 1150 58(1962) 2 SCR 195
59(1964) 3 SCR 88 60(1968) 3 SCR 563 61 (1971) 2 SCC 48
62 (1972) 3 SCC 786 WP2517-20222+-.DOC complete
answer to the issue raised by Mr. Ostwal. The patent illegality
in the order of the Magistrate passed under Section 156(3) of
the Code, as is evident, relates to at a stage anterior to
investigation. In a sense, the order passed by the Magistrate, in
the circumstances, highlighted above, takes the colour of an
order passed in breach of a jurisdictional condition, either
prescribed by the statute or postulated by a precedent. Thus,
we are afraid to accede to the submission that such an
illegality in the order can be equated with an illegality
committed during the course of investigation.
125. To equip the revisional court to exercise the discretion in
a correct manner, it may be advantageous for the revisional
court to ascertain whether, pursuant to the direction of the
Magistrate, FIR has, in fact, been registered. Two situations
are conceivable : pre and post-registration of FIR pursuant to
the order by the Magistrate.
126.
(a) If the FIR is yet not registered, an interim order passed by
the revisional court, staying effect and operation of the
impugned order under Section 156(3), will have full play and
the investigating agency cannot proceed to register the FIR
and enter into investigation lest the order passed by the
revisional court would be denuded of the meaning and content.
(b) Such an interim order before the registration of the FIR
will operate with full force and vigor, irrespective of the nature
of the infirmity in the impugned order which weighed with the
revisional court to stay such an WP2517-20222+-.DOC order.
Cr. Rev. 79/2025 6/13
Arvind Saraf v/s State
-- 6 of 13 --
7
(c) On the other hand, if the FIR has already been registered,
before the revisional court passes an interim order, then the
nature of the infirmity in the impugned order may become
relevant.
(d) If the revisional court finds that the impugned order suffers
from jurisdictional error, (of the nature referred to in Para
Nos.119, 120 and 122 above), in our considered view, the
revisional court must be construed to have the power to stay
further proceedings pursuant to the registration of the FIR if
the matter is still at the stage of investigation.
(e) We hasten to add that while passing such an order of stay
of the proceedings at the stage of investigation, the revisional
Court ought to record reasons which weighed with the court to
hold that there appears a jurisdictional error in passing an
order under Section 156(3) of the Code and thereupon, in
terms, direct that the further proceedings be stayed.
(f) However, where the investigation culminates into lodging
of the chargesheet and/or cognizance has been taken by the
jurisdictional court, the interim order or final order passed by
the revisional court setting aside the order passed by the
Magistrate under Section 156(3), will not have the effect of
quashing the resultant prosecution.
127. We are unable to persuade ourselves to agree with the
submission of Mr. Desai that the view that after FIR is
registered revision is not an efficacious remedy, would render
the statutory remedy of revision redundant. The order passed
by the revisional Court setting aside a direction for WP2517-
20222+-.DOC investigation, even after registration of the FIR,
cannot be said to be bereft of any utility. If such an order is
passed before the completion of investigation, the
investigating agency may take the same into account in
determining the course the investigation shall culminate into.
If such an order is passed, post lodging of the chargesheet, the
jurisdictional Magistrate may have the benefit of the said order
at the stage of taking cognizance or during the course of the
inquiry, as envisaged by the Code. The High Court may also
have due regard to the order of the revisional Court while
considering the prayer for quashing the FIR and/or prosecution
in exercise of writ or inherent jurisdiction.
128. The conspectus of aforesaid discussion is that in our view,
the decision of the Division Bench in the case of Kailash
Dattatraya Jadhav (supra), that in a case where on the basis of
an order under sub-Section (3) of Section 156 of the Code,
FIR is registered, the remedy of revision under the Code, is not
an efficacious remedy, lays down the correct position in law.
Cr. Rev. 79/2025 7/13
Arvind Saraf v/s State
-- 7 of 13 --
8
4.2 Further emphasizing on para 126 (d) which I have also
underlined he emphasized that the impugned order suffers from non
application of judicial mind coupled with the fact that it did not correctly
appreciate the law on the subject which is adumbrated in
Alok Kumar v/s
Harsh Mander & Ors, (supra) and thus the
impugned order is liable to be
set aside by exercising revisional jurisdiction. In simpler words the Ld.
Trial Court had committed a jurisdictional error and had not followed the
settled precedent on the subject matter. He contended that already a civil
suit was filed which was pending adjudication and the complainant had
not been able to receive any favourable result till now and in those
circumstances the recourse of criminal action was to somehow or the
other convert a civil wrong into a criminal act. Somehow or the other
coerce the revisionist to yield to his illegal demand once he has been
unsuccessful in the civil suit. Furthermore the Investigating
Officer/Enquiry Officer had reported in the ATR that no cognizable
offence is made out and the Ld. Trial Court/CJM had brushed aside those
aspects/did not consider the same. The
impugned order is liable to be set
aside accordingly.
5. On the other hand Ld. Sr. Advocate Sh. Madhav Khurana
appearing on behalf of the complainant argued that in fact in the judgment
of
Arun P. Gidh v/s Chander Prakash Singh & Ors. itself particularly para
126(d) points out to certain eventualities as referred to in para no. 119,120
and 122 and none of the said eventualities or infirmities are made out in
the given facts.
Cr. Rev. 79/2025 8/13
Arvind Saraf v/s State
-- 8 of 13 --
9
5.1 He argued that Ld. CJM had noted the facts of the case,
considered the ATR report, relied on the judicial precedents particularly
the binding ratio of leading case of
Lalita Kumari v/s State and thus, had
applied his judicial mind and passed a reasoned order in favour of the
complainant and that view cannot be substituted by the revisional Court
moreso when the FIR has already been lodged.
6. If I just have a re-look at para 126 onwards, para 126 (a) and
(b) deals with the situation when the FIR is not yet registered - the
operation of the impugned order can be stayed by the revisional Court -
the revisional Court has full powers staying the operation of the impugned
order and the Investigating Agency cannot enter the domain to investigate
unless and until the revisional Court decides the matter. Para No.126 (b)
reclarifies this aspect that before registration of the FIR irrespective of the
nature of the infirmity which weighed with the revisional Court to stay
such an order. Meaning thereby at that juncture the revisional Court has
all the powers to check as to the propriety, correctness and legality of the
impugned order. The usage of the words irrespective of the nature of the
infirmity is for the reason that in para 126(c) the said aspect becomes
important or relevant post registration of the FIR. This particular aspect
has been clarified, in my humble opinion in para no.126(b) wherein
certain instances have been quoted.
6.1 Coming to the nature of infirmity in the impugned order the
infirmity should of such a nature which is adumbrated in para 119, 120,
122 of the said judgment :
Cr. Rev. 79/2025 9/13
Arvind Saraf v/s State
-- 9 of 13 --
10
i) First infirmity which has been pointed is with regard to the
non compliance of the ratio of
Priyanka Srivastava which pre supposes
filing of an affidavit in support of the complaint.
ii) Secondly an order has been passed in respect of an ACT
done by a public servant while acting in official capacity or in discharge
of his official duties without the previous sanction envisaged U/s 197
Cr.PC.
iii) Another category of cases was culled out with reference to
doctors wherein the question of medical negligence is in question
particularly in reference to the criminal aspect wherein additional
safeguards have been provided to prevent wanton misuse of the provision
of the criminal law - as so held in the leading case of
Jacob Methews v/s
State of Punjab & Ors. wherein Hon'ble Apex Court has directed that a
private complaint may not be entertained unless the complainant has
produced
prima facie evidence of a competent doctor particularly in
reference to a charge of rashness and negligence viz a viz the accused
doctor. Non compliance of such a mandate would itself means that there
is a violation of a settled law and any action taken in contravention
thereof is illegal and
nonest.
7. The instances which have been articulated which is clear by
the usage of the word
" in a sense, the order passed by the Magistrate in
the circumstances, highlighted above, takes the colour of an order passed
in breach of a jurisdictional condition, either prescribed by the statue or
postulated by judicial precedents" suggest that the infirmities are of such a
nature which at the first instance would not have led to the registration of
the FIR. In simpler words at the stage post registration of the FIR the
Cr. Rev. 79/2025 10/13
Arvind Saraf v/s State
-- 10 of 13 --
11
interdict by the Court or intervention is considerably narrower or only in
exceptional circumstances where there is a breach of jurisdictional
condition and not otherwise to substitute another view against the view
taken by the Ld. Trial Court/Ld. CJM.
8. The complaint and the application U/s 156(3) Cr.PC is
supported with the affidavit of the complainant. It is also not a complaint
wherein any public servant or any medical professional is involved.
There is no patent or gross violation of any statute or a leading precedent
which constitutes to be a breach of jurisdictional condition.
9. Ld. Sr. Advocate on behalf of the revisionist has not been able
to point out any fragrant violation except contending to the fact that
already a civil suit was filed and the ATR is in their favour. In my
considered opinion these are not infirmities which Court should now
consider once the FIR has been registered. Still, in order to lend
completeness to the present order I have examined the same as well.
9.1 The crux of the submission of the Ld. Sr. Advocate on behalf
of the revisionist is that the Ld. CJM should not have ordered registration
of the FIR and should have opted/taken recourse to the procedure U/s
200/202 Cr.PC which facet is also substantiated by the fact that the ATR
had also concluded that no cognizable offence is made out. Now on this
aspect i.e. whether the Ld. CJM should have taken/adopted the second
path instead of ordering the registration of FIR U/s 156(3) Cr.PC, in my
considered opinion the primary test or the basic test with respect to the
registration of the FIR is whether the complaint discloses any cognizable
Cr. Rev. 79/2025 11/13
Arvind Saraf v/s State
-- 11 of 13 --
12
offence or not. Once answer to this is in affirmative then the next
question for consideration is as to whether Court should order registration
of the FIR or proceed by treating the same to be a complaint case.
Now the Ld. CJM had categorically formed the opinion that on
the basis of the complaint and the material relied upon by the complainant
coupled with the ATR this matter requires to be investigated by
registration of FIR. This particular aspect or opinion cannot stated to be
perverse. In fact the Ld. CJM had taken due note of the judgment/the
ratio of
Ravinder Lal Airi (supra) and Alok Kumar (supra) and taken note
of the ATR which has been filed. Ld. CJM had taken note of the facts of
the case as so stated in para 2 of the
impugned order and also taken note
that the amount was duly acknowledged coupled with the fact that the
accused had agreed to dispose of the property of his company of which
the complainant was earlier also a director and later on the said property
was fraudulently sold for a pittance i.e. much less than the market rate to
negate/wriggle out of the obligations by causing change in shareholding
in contravention of the Companies Act. Apart thereof the money trail also
requires to be investigated.
9.2 Considering the totality of facts and circumstances the need
for investigation the second test U/s 156(3) Cr.PC apart from the
disclosure of a cognizable offence was adjudicated/held in favour of the
complainant and the said opinion to my mind cannot be faulted
moreso
once crystallized in the registration of the FIR cannot be reversed by
exercising the revisional jurisdiction which is even much more restricted
post registration of the FIR/subsequent to the registration of the FIR.
Cr. Rev. 79/2025 12/13
Arvind Saraf v/s State
-- 12 of 13 --
13
10. With the aforesaid discussion the present revision petition is
liable to be dismissed. The same is dismissed.
File be consigned to Record Room. TCR alongwith copy of
the order be sent to the Ld. Trial Court.
Pronounced in open Court
on 25.02.2025 (Sumit Dass)
Additional Sessions Judge -05
New Delhi District, Patiala House Courts
New Delhi.
Cr. Rev. 79/2025 13/13
Arvind Saraf v/s State
-- 13 of 13 --