In CRL.M.C. 6211/2023- DEL HC- Power u/s 482 CrPC against interlocutory order has to be exercised sparingly in cases where criminal proceeding has been initiated illegally, vexatiously or without jurisdiction: Delhi HC
Justice Vikas Mahajan [20-12-2023]

Read Order: ACHAL NATH & ANR v. ATUL NATH

Tulip Kanth

New Delhi, December 29, 2023: The Delhi High Court has clarified that there is no complete bar on exercise of jurisdiction under Section 482 CrPC by the High Court in relation to an interlocutory order.

The Single-Judge Bench of Justice Vikas Mahajan was considering a petition filed under Section 482 CrPC against the impugned order passed by the Additional Sessions Judge whereby the criminal revision filed by the present petitioners was dismissed as devoid of merits.

The petitioners had filed the criminal revision against the order passed by the Metropolitan Magistrate whereby the application filed by the respondent seeking limited investigation under Section 202 CrPC for the purpose of procuring some original documents, stated to be in the exclusive possession of the present petitioners/accused, was allowed. The SHO concerned was also directed to appoint an I.O who may seize the documents mentioned in the application and send them to the FSL for obtaining an opinion.

The brief facts of the case were that the present petitioners, as well as, the respondent are real brothers who are litigating against each other. The relationship between the petitioners and the respondent soured over a larger company dispute initiated by the respondent over the majority shareholding of the petitioners in two companies' i.e, Ashok Manufacturing Limited ('AMC’) and Ashok Brothers Impex Pvt. Limited (‘ABI’).

The case of the petitioners was that the respondent filed a false case with forged and fabricated company documents before the Company Law Board concerning issue of shareholding in AMC and ABI, which matter is now sub-judice before the NCLT.

The petitioners filed a criminal complaint before Police Station Model Town against the respondent, his son and another accused alleging conspiracy on their part to impersonate themselves as the directors of AMC and falsely showing control over the company by using false, fabricated documents and counterfeit seals of AMC.

The respondent filed a complaint under Section 200 CrPC read with Section 156(3) CrPC against the petitioners, before the Trial Court, alleging that the petitioners had forged the signatures of their mother in order to usurp majority shareholding and control of the said companies.

The application of the respondent filed under Section 156(3) CrPC along with his complaint under Section 200 CrPC was dismissed by the Trial Court. Thereafter, when the Court of Session dismissed the criminal revision filed by the respondent, the respondent again agitated the matter before this Court by filing a writ petition. Via an agreement, the respondent (petitioner therein) had agreed that he shall lead pre-summoning evidence before the Trial Court and if the necessity arises, the respondent may request the learned Trial Court to invoke its power under Section 202 CrPC to get further investigation done.

One of the main arguments from the petitioner’s side was that the impugned directions could not have been given to the SHO to have the documents seized from the petitioners and to send them to the FSL as it is settled law that the accused cannot be involved in an inquiry under Section 202 CrPC.

The short question which had to be decided by way of this judgment was with regard to the maintainability of the present petition filed under Section 482 CrPC against the orders, and challenging the proceedings, arising out of an inquiry under Section 202 CrPC .

Referring to K.K. Patel vs. State of Gujarat & Amar Nath vs. State of Haryana,the Bench opined that the order of the Metropolitan Magistrate dated 26.04.2023 is an interlocutory order, inasmuch as, it does not decide or touch upon the important rights or liabilities of the parties nor the said order directing the SHO to seize the documents, if reversed, will conclude the proceedings under Section 202 CrPC. At best, it is a step in aid of the proceeding under Section 202 CrPC.

Considering this position, the Bench opined that the revisional court ought not to have entertained the revision of the petitioners in view of the specific bar contained in sub-section (2) of Section 397 CrPC.

The next issue before the Bench was whether the present petition under Section 482 CrPC, which impugned the order/proceeding arising out of an interlocutory order, was maintainable notwithstanding that the revisional court entertained and dismissed the criminal revision filed by the petitioners on merits.

To answer this question, the Bench referred to Madhu Limaye vs. State of Maharashtra; Girish Kumar Suneja vs. CBI & Hoogly Mills Company Ltd. vs. State of West Bengal and said, “Clearly, from a perusal of the above noted judgments, it manifests that there is no complete bar on exercise of jurisdiction under Section 482 CrPC by the High Court in relation to an interlocutory order. However, the power under Section 482 CrPC against an interlocutory order has to be exercised sparingly in rarest of rare cases, where criminal proceedings has been initiated illegally, vexatiously or without jurisdiction or where the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice.”

The Bench observed that in order to find answer to the moot question, it would be necessary for this court to embark upon an inquiry as to whether the present case comes within the sweep of aforesaid parameters so as to warrant exercise of jurisdiction under Section 482 CrPC.

This, as per the Bench, would require touching upon the merits of the case and examination of the following issues- whether the learned Metropolitan Magistrate by directing the SHO to seize the documents from the possession of the accused/petitioners in an inquiry under Section 202 CrPC has exceeded his jurisdiction; whether the impugned order has brought about a situation which is an abuse of the process of the Court, and whether this Court needs to interfere with the impugned order of the revisional court, as well as, the order dated 26.04.2023 of the learned Metropolitan Magistrate, to secure the ends of justice.

The Bench further observed that it would be appropriate to hear the parties on the above issues. Thus, the Bench ordered that notice be issued to the respondent by all permissible modes, returnable on the next date.

Keeping in view the above detailed discussion and regard being had to the fact that matter required consideration and was being listed for final hearing, the Bench held that the operation of the impugned order, as well as, the order of the  Metropolitan Magistrate, would be stayed till the next date.