CASE BRIEF: AMIT KUMAR v. JOGINDER SINGH AND ANR., 2019 SCC OnLine P&H 1976

CASE NAME	Amit Kumar v. Joginder Singh, 2019 SCC OnLine P&H 1976
CITATION	(2019) 2 RCR (Cri) 723
COURT	Punjab & Haryana High Court
BENCH	Hon’ble Justice Arvind Singh Sangwan
PETITIONERS	Amit Kumar
RESPONDENT	Joginder Singh and Others
DECIDED ON	decided on 15th January, 2019

INTRODUCTION

The First Information Report (FIR) that was filed and the ensuing legal actions under Section 166A of the Indian Penal Code (IPC) are important to the matter at hand. Public employees who neglect to report information or take necessary action, especially when it comes to sexual assaults against women, are expressly punished under Section 166A. The Criminal Law (Amendment) Act of 2013 instituted this provision in response to the widespread protests against crimes against women and the need for more stringent legislation and enforcement. The incident usually starts when someone goes to the police station to file a formal complaint, or FIR, which is the first important step in starting a criminal inquiry. In India, if the information indicates that a cognizable offense has been committed, the police are required by law to file a First Information Report (FIR). If this isn't done, there may be legal action taken against the offending public servant under Section 166A of the IPC, particularly in cases of sexual violence. This clause requires police personnel to respond immediately; if they don't, they risk fines and up to two years in jail.  In this instance, the aggrieved party claimed that the concerned police officer neglected to file a formal complaint (FIR) despite having full knowledge of a criminal crime. Due to this failure to act, a complaint under Section 166A was filed, holding the officer liable for negligence. The case looks at the legal ramifications of failing to file a formal complaint and emphasizes how crucial it is to make sure law enforcement organizations carry out their obligations, especially when it comes to cases involving gender-based violence. It also highlights the legal options open to citizens in cases where public employees fail to fulfill their legal responsibilities.

FACTS OF THE CASE

The complaint outlines the brief facts of the case as follows: the complainants, Joginder Singh and Rajendra Kumar Goel, claim to have bought property/built-up flats in Sushant Lok - 2 and 3 in Sector 57, Gurgaon, from their builder (the builder's name is not disclosed throughout the complaint). The petitioner, who was the Station House Officer of Police Station Sector 56 Gurgaon at the time, is accused in the complaint of having given certain assurances to the complainants, including the provision of a built-in swimming pool in the bungalow, a community center, a club, and a legalized electricity connection. Upon discovering that their builder had failed to deliver the promised facilities, the complainants lodged a complaint with the SHO Police Station Sector 56, Gurgaon on August 2, 2015 (Annexure P2), which was cited in paragraph 4 of the complaint dated September 2, 2015, against the Directors of M/s. Ansal Buildwell Limited, Rigoss Estate Networks Private Limited, and Aadharshila Towers Private Limited. The complaint highlighted the various illegal acts committed by the aforementioned individuals/Directors with the aim of deceiving and cheating the general public. The complainants observed hoarding in Sector 57 Gurgaon in 2007–2008 after reading an advertisement on the website www.ansalabl.com stating that the builder was selling houses with a swimming pool on the terrace. This complaint further claims that the swimming pool on the terrace was not built in accordance with the building design approved by the District Town Planning Department, proving that the amenities advertised were in reality untrue. Its constructor illegally created an office site on the common land intended for parks and took it from Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL) without following the legal procedures.

ISSUES RAISED

• Whether or not the petitioner has registered the complaint as alleged by complainant
• Whether the accused is liable under Sec. 166A of IPC?
• Whether or not the criminal proceedings should be quashed?

ARGUMENTS FROM BOTH SIDES

Argument on behalf of the petitioner

• The complainants have withheld a few facts that directly affect the case from the trial court's attention.
• It is stated that the complainants have filed a complaint alleging fraud, deception, and record manipulation against the directors/owners of M/s. Ansal Buildwell Limited, Rigoss Estate Networks Private Limited, and Aadharshila Towers Private Limited, with case number COMI/13150/2015 No. 183/08.10.2015. The aforementioned complaint was submitted in accordance with Section 156(3) of the Code of Criminal Procedure, or simply "Cr.P.C.", requesting that the SHO in question be directed to take the proper action against the defendants.
• Following the Illaqa Magistrate's ruling under Section 156(3) of Cr.P.C., directing the complainant to present preliminary evidence and expressing his preference not to forward the complaint to the relevant SHO, the complainant chose to withdraw the complaint. 
• The petitioner's learned attorney argues that both complainants then filed a second complaint on the same charges against the same accused individuals, citing Section 156(3) Cr.P.C. and requesting that their complaint be forwarded to the SHO Police Station Sector 56, Gurgaon, for the purpose of registering a case and conducting an investigation.
• The complainants failed to notify the trial court during their evidence presentation or the summons order passing that they were pursuing legal recourse against the accused, and the Illaqa Magistrate twice declined to forward the complaint to the relevant SHO for case registration and investigation. Thus, the petitioner, the SHO of the area, has not disregarded the instructions under the law if, upon reading the complaint, it is not apparent that any cognizable offense has been committed because he was acting legally and within his authority and because there isn't a prima facie case under Section 166(A) IPC.
• According to the letter of allotment between the builder and the buyer, there is a privity of contract. It is stipulated in the agreement that any disagreement between the parties about a term or condition will fall under the jurisdiction of the Delhi or New Delhi courts.
• Aside from their comments and the complaint dated 02.08.2015 that was entered into the record, the complainants did not present any prima facie evidence during the preliminary evidence phase that would have demonstrated the petitioner's commission of the act punishable under Section 166-A IPC.

Argument on behalf of the respondent

• The complainant has not refuted the fact that no additional appeal or revision was filed after the builder was the target of two complaints that the complainants brought before the Illaqa Magistrate, pleading for the SHO to submit a formal complaint.
• The complainants have pointed out that the builder built the swimming pool without a site plan approval in the complaint dated 02.08.2015, which serves as the foundation for the contested complaint brought against the petitioner. In addition, the building was built unlawfully on public land and in parks; third, electricity connections were turned on without the DHBVNL's previous approval; and fourth, the contractor is even misusing groundwater.
• In light of this, the complainants submit that, even upon a cursory review of the complaint, it is evident that the builder deceived the complainants by falsely promising to buy the bungalow and refund a portion of their money. This deception was later discovered to be untrue, and as a result, the builder is accused of cheating and forging documents with the complainants. As a result, the petitioner—the local SHO—was required to file a police report and look into the matter. It is argued that the trial court properly called the petitioner under Section 166-A IPC since the petitioner disregarded legal directives.

JUDGMENT

The Court held that, in light of Lalita Kumari's case, the prosecution of the petitioner in the impugned complaint is nothing more than an abuse of the legal system if the petitioner, who is the SHO of the area, has not filed a formal complaint after the Illaqa Magistrate dismissed it, concluding that no cognizable offense has been established. The current petition is granted for the previously mentioned reasons. This quakes the trial court's summoning order from October 6, 2015, and the challenged complaint from September 2, 2015. Nonetheless, if encouraged to do so, the respondent-complainants are free to take legal action against the constructor.

ANALYSIS & CONCLUSION

The case of Amit Kumar is a landmark judgment for Sec. 166A of IPC. This case examines the misuse of the power of law by the police officers in registering the complaint. The complainants have not refuted the fact that they have filed two criminal complaints against their builder with the Illaqa Magistrate based on identical allegations. They are pleading for an order under Section 156(3) Cr.P.C. to direct the SHO to submit a First Information Report and conduct an investigation into the matter. The Illaqa Magistrate rejected both of the allegations on October 8, 2015 (Annexure P6) and October 15, 2015 (Annexure P7). As a result, it appears that the petitioner, being an SHO in the area, is unable to form an opinion other than that of the court or an illaqa magistrate, making the accusations against him that he did not exercise his authority under Section 154 Cr.P.C. to file a formal complaint against the complainants' builder unfounded. During the arguments, the complainants' learned counsel was unable to refute the fact that the trial court's orders, which prohibited the petitioner from referring the complaints to the SHO under Section 156(3) Cr.P.C., had become final. Consequently, the filing of the current complaint under Section 166-A IPC against the petitioner, who was the SHO of the concerned area, is nothing more than an abuse of legal process in the absence of further action by the complainants against their own builder. Nevertheless, the petitioner has not committed any offense under Section 166-A IPC by failing to file the aforementioned FIR, given that no cognizable violation is shown against the builder. Hence, to understand the misuse of law and how the SHO or any officer of the same rank misuses their power to deny the registration of a complaint, this case sets a leading judgment. This case deals with the fact the SHO has been given the power to register an FIR for the purpose of justice and equity, and the same is not served if the SHO refuses to register the FIR. It is also necessary to look at the case of Lalita Kumari which sets forth the guidelines for registration of FIR by the police officer.