Delhi District Court
Usha Mishra & Ors. vs Anamika Mishra & Ors. on 5 June, 2015
THE COURT OF MS. NEHA PALIWAL: METROPOLITAN MAGISTRATE 03: KARKARDOOMA: DELHI CC No. 20/15/2015 U/s 156(3) Cr.P.C. PS Mandawali Usha Mishra & Ors. Vs Anamika Mishra & Ors. Order on application U/s 156(3) Cr.P.C. 1. Vide this order this Court would dispose of the application moved on behalf of the complainants/applicants u/s 156 (3) Cr.P.C. 2. The complainants have moved the application U/s 156(3) Cr.P.C. alongwith the complaint U/s 200 Cr.P.C., and it is submitted by the complainants that the contents of the complaint be read as the part and parcel of the application. 3. Briefly, it is the case of the complainant no.1 that on 7.2.2015 at about 12.30pm her daughter in law Anamika Mishra attacked her with an iron rod and hit her with fists and leg blows due to which she got multiple injuries on her body and also suffered internal injuries in her body. In the said act husband of Anamika Mishra, Ram Kishan Mishra was also a party. Thereafter her elder son, complainant no.2 made a PCR call recorded vide DD NO. 21 A and DD No. 22 A. Ram Kishan Mishra fled away from CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages1 of7 the spot. She was medically examined alongwith Anamika Mishra and her elder son. However, the police has not taken any action, and instead has lodged a case against her and her elder son U/s 354,323,506,34 IPC. 4. It is the case of the applicant that she has made the complaint in writing against the respondents to the police officials,
however, no action has been taken by the police officials against the respondents. Therefore, the present complaint coupled with application U/s 156(3) has been moved before the court and it is prayed by the complainant that SHO PS Mandawali be directed to register a case against the respondents and to investigate the matter in accordance with law.
5. In the present matter status report was filed by IO/SI Rohtash before the Court on 2.5.2015. It was submitted by the IO in the status report that on 7.2.2015 two PCR Calls were received at PS Mandawali vide DD No. 21 A and DD No.22 A regarding quarrel. IO HC Hukum Chand reached at the spot and came to know that PCR van had already taken the injured persons to LBS Hospital. IO collected the MLC of the complainants and respondent no.1 and the doctor has opined the nature of injury as simple. Respondent no.1 has alleged that complainant no.2 has tried to commit rape upon her and on the basis of her statement case FIR No. 126/2015 dated 7.2.2015 U/s 354/323/506/34 IPC was registered. It is further stated that from the contents of the complaint of the complainants and from the perusal of their MLC's offence U/s 323 IPC was made out and therefore, a DD entry regarding offence U/s 323 IPC was lodged vide DD No. 64 B dated 18.3.2015 PS Mandawali.
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6. Arguments were heard in the present matter and thereafter, the matter was fixed for orders.
7. Powers under Section 156 (3) of Code of Criminal Procedure, 1973 are not to be invoked mechanically but only after application of mind. Thus before referring the complaint to the police for registration of FIR, this court is required to apply its mind to the allegations leveled in the complaint, as held in the case of Ram Babu Gupta Vs. State of UP & Ors. 2001 Crl. LJ 3363.
8. In this respect, it is also apt to refer to the case of S.P. Shenbagamoorthy Vs. Mu. Ka. Stalin & Anr. 2003 Crl. LJ 271, wherein the court deprecated the practice of sending complaints to the police under Section 156 (3) of Code of Criminal Procedure, 1973 where allegations are not supported by any material or where investigation is not necessary.
9. In the case of Arvindbhai Ravjibhai Patel Vs. State of Gujarat & Ors. 1998 Crl. LJ 463, the Hon`ble Gujarat High Court observed as under : "The Magistrate should be quite discreet enough in not mechanically directing the police to investigate the case under Section 156(3) of the Code, when the allegations in the complaint are simple enough CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages3 of7 and further where the Court undoubtedly can straightway proceed to conduct the trial. This amounts to clear abdication and dereliction of duty, which is required to be curbed in the overall interest of justice."
10. I have perused the record and considered the submissions advanced by Ld. Counsel for the complainant.
11. In the case of Lalita Kumari Vs Govt. of UP & Others, 2014(1) JCC 1, it was held by the Hon'ble Supreme Court of India that in all the cases where allegations of cognizable offences are disclosed, the FIR is mandatory to be registered by the investigating agency.
12. In the present matter it is the case of the complainant that she was attacked by her daughter in law and son Ram Kishan Mishra due to which she got various injuries on her body. The perusal of the status report filed by the IO reveals that the nature of injury in the MLC is stated to be simple fresh. The nature of injury on the MLC of the complainant no.2 is also simple fresh. Perusal of DD No. 64 B dated 18.3.2015 reveals that it is stated that case U/s 323 IPC is made out in the present matter. In the complaint no categoric allegation regarding wrongful restraint has been made by the CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages4 of7 complainant. Section 323 IPC is a noncognizable offence
13. In view of the above discussed factors however, without commenting upon, the merits of the case, it would be sufficient to state that the complainants are in control of the entire evidence that is required for adjudication of the dispute of the present case. Therefore this is not a fit case for invoking the powers U/sec 156 (3) Cr. PC of Code of Criminal Procedure, 1973 and for directing the SHO of concerned police station to register FIR particularly for the following reasons:
1. The identity of the respondents is already known to the complainants.
2. All the incriminating facts are already in the knowledge of the complainants.
3. No facts are to be unearthed so as to require aid of police.
4. Custodial interrogation of the respondents is not necessary.
5. The evidence required in the case is within the reach of the complainants.
14. Reference may also be made to the case of M/s Skipper Beverages Pvt. Ltd. Vs. State 2002 Crl. LJ NOC 333 (Delhi), in CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages5 of7 which it has been held as under: "Section 156 empowers Magistrate to direct police to register case and initiate investigation and a Magistrate must apply his mind before passing the orders U/sec 156 (3) Cr. PC of the code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for the recovery of some articles or discovery of facts. Those cases where allegations are not very serious and complainant himself is in possession of evidence to prove allegation, there should be no need to pass order under Section 156".
15. In these circumstances, the application under Section 156(3) CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages6 of7 of Code of Criminal Procedure, 1973 for directions to police to register FIR and for police investigation is hereby dismissed.
16. The complainants are at liberty to treat their complaint as a complaint case for the purpose of Section 200 of Code of Criminal Procedure, 1973.
17. List on 3.8.2015 for presummoning complainant's evidence.
(Neha Paliwal) MM03(E)/KKD: Delhi/5.6.2015 CC No. 20/15/2015 Usha Mishra Vs Anamika Mishra pages7 of7