Delhi District Court
Surender Kumar And Others vs Jitender Singh And Others on 14 January, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE (II): OUTER DISTRICT
ROHINI COUTRS : DELHI
C.R. No. : 17/09
Surender Kumar and others
..........Petitioners
Vs.
Jitender Singh and others
........(Respondents)
Date of Institution : 22072009
Date on which reserved for order : 05122012
Date of order : 14012013
ORDER
1. This revision petition has been filed by the petitioners against the impugned order dated 1842009, passed by the Ld. MM Rohini, Delhi vide which the Ld. MM declined to issue directions U/s 156 (3) Cr.P.C. in CC Nos. 1639/08 to CC No. 1641/08 by observing that in the facts of these cases there is no need to direct police investigation before recording the statement of the complainant and his witnesses, in support of the complaints which have been filed U/s 200 of the Cr.P.C. The relevant observations made by the Ld trial Court in this regard is C.R. No. : 17/09 Page 1 of 13 2 as under :
"After hearing the contention of the parties and perusal of the material on record, I am of the considered opinion that the present matter does not call for any direction being issued U/s 156 (3) Cr.P.C. The allegations levelled by the complainant can be established by leading independent evidence. No investigation requiring the indulgence of police official is required to establish the allegations levelled in the complaint. ''
2. In brief the case of the revisionists is that they are the users of the rasta bearing Khasra No. 343 Mauza Mamur Pur, Narela, Delhi110040. The people of the locality including the petitioners/revisionists lodged a number of complaints to all the competent authority including Halqua police but all in vain because the local police is / was hand in glove with the land mafia. So the petitioner No. 1 alongwith other advocates filed a W.P. (C) 1174041/2006 titled as Yashpal and others Vs. Govt of NCT of Delhi in the Hon'ble High Court of Delhi. The Hon'ble High Court was pleased to grant stay which was served upon the parties.
C.R. No. : 17/09 Page 2 of 13 3
3. According to the petitioners on 2782006, at about 11 a.m the interested respondents/accused persons herein in willful violation started raising unauthorized construction and criminally trespassed into the house of the petitioner/complainant herein. The respondent No. 1 hurled filthy abuses and assaulted the petitioner/complainant No. 1 and his family members who came for his rescue. The respondents dragged the petitioner to the roof of their house and thrashed them brutally and took them to police station Narela. When petitioner No. 1 became unconscious, he was removed to hospital at 12:20 p.m whereas petitioner No. 2 and 3 were taken to the hospital at about 2 p.m by the police.
4. The petitioner Yashpal in W.P. (C) 1174041/2006, was also taken to the police station by the respondents/accused No. 1 and 7 and they obtained his signatures on blank papers/Vakalatnama etc. and fraudulently withdrew the said writ petition. Petitioner Yashpal filed CCP 127374/2006 which is pending in the Hon'ble High Court against the contemnors including the respondents/accused persons No. 1 and 7.
5. The petitioners lodged a complaint to the police but the police did not register any case. So the petitioners filed their C.R. No. : 17/09 Page 3 of 13 4 compliant case U/s 200 Cr.P.C and the Ld trial Court of Ms. Samita Garg invoked the provisions of Section 156 (3) Cr.P.C on its own motion.
6. Further the allegations levelled are that when the petitioner No. 1 entered into his house and closed the doors in order to take the photographs of the said encroachment, accused/respondent No. 1 alongwith police officials criminally trespassed into his house and came to his drawing room and started abusing him. He was brutally assaulted by the accused persons who snatched the camera from his hands. After this petitioner No. 1 was taken to the hospital and was given medical treatment.
7. It is in these circumstances, the petitioners were compelled to file police complaints and complaints to other authorities but no FIR was registered. So thereafter they filed their complaints U/s 200 Cr.P.C whereby they prayed that the accused persons be prosecuted and they be summoned and penalized in accordance with law.
8. The Law with regard to the exercise of the discretion U/s 156 (3) Cr.P.C is well settled. The said power is available to the Magistrate while dealing with the complaint U/s 200 Cr.P.C. It is C.R. No. : 17/09 Page 4 of 13 5 only when the Magistrate decides not to inquire into the allegations made in the complaint himself, he can direct an investigation to be made by police officers or by some other person as he thinks fit for the purposes of deciding whether or not there are sufficient grounds for proceeding.
9. However, this stage comes after the examination of the complainant and his witnesses U/s 200 Cr.P.C. Such discretion is not available to the Magistrate unless and until he passes through the stage U/s 200 Cr.P.C.
10. In so far as the powers vested with the Magistrate U/s 156 (3) Cr.P.C is concerned, the said provision is circumscribed by the provisions contained in Section 190 of the Cr.P.C which reads as follows : "190 : Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
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(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try. ''
11. In the present case once an FIR has not been registered U/s 154 Cr.P.C, the cognizance can only be taken by the Magistrate on the basis of the complaint filed by the petitioners and for that purpose the Magistrate is required to follow the provisions contained in Chapter XV of the Code which comprises of Sections 200 to 203 Cr.P.C.
12. The provisions for the sake of reference are reproduced hereunder:
200. Examination of Complainant :
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall C.R. No. : 17/09 Page 6 of 13 7 be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) If a public servant actiing or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them
201. Procedure by Magistrate not competent to take cognizance of the case:
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall,
(a) If the complaint is in writing, return it for presentation to the proper court with to that effect;
(b) If the complaint is not in writing, direct the complainant to the proper Court.
C.R. No. : 17/09 Page 7 of 13 8
202. Postponement of issue of process :
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or
(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under subsection (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court C.R. No. : 17/09 Page 8 of 13 9 of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under subsection (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint:
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
13. To my mind, it is not necessary for the Ld. M.M. to deal with the allegations made in the said complaint in detail. The Ld Magistrate by a reasoned order dated 18042009 refused to direct investigation in the matter in order of Section 156 (3) Cr.P.C of the code stating that :
"The allegations levelleld by the complainant can be C.R. No. : 17/09 Page 9 of 13 10 established by leading independent evidence. No investigation requiring the indulgence of police official is required to establish the allegations levelled in the complaint."
14. The petitioners have argued that the crime was committed by the accused persons during the stay order of the Hon'ble High Court. It is further argued that complainant No. 1 was taken to the hospital when he became unconscious due to brutal beatings. It is also argued that the bail order dated 2882006, would show that the petitioner No. 1 was produced in the court in injured condition. It is also argued that the accused persons i.e police officials had not taken the blood samples, broken watch, mobile phone etc from the roof of the petitioner No.
1. It is also argued that the news papers wrongly published the incident and even not published the corrigendum after receiving the notice from the petitioners. The complainant has placed reliance upon Ramesh Kumari Versus State ( NCT of Delhi) reported in 2006 (1) JCC 468 and State of Haryana and others versus CH, Bhajan Lal and other reported in SCC 1991 (1) in Civil Appeal No. 5412 of 1990.
15. The decision of the Ld. MM in the present case declining C.R. No. : 17/09 Page 10 of 13 11 to issue directions for registration of FIR U/s 156 (3) Cr.P.C and instead fixing the case for recording of the complainant's evidence reflects the cautious approach. The judgments cited by the Ld counsel for the petitioner in fact requires the Ld. MM to be cautious while taking proceedings to take cognizance of offence on complaint. The Ld. M.M. has the discretion to either initially direct to the police for registering the FIR or to direct the complainant's evidence to be recorded. The decision of the Ld. MM to opt for the later course cannot in the facts of the present case be held to be erroneous and illegal.
16. In the present case all the facts and circumstances of the case are within the knowledge of the complainant. If the Ld. MM after considering the presummoning evidence proceeds to take cognizance and at the post cognizance stage considers it necessary to require the further investigation or inquiry to be under taken before issuing process to the accused, it would open to the Ld. MM to invoke the powers U/s 202 Cr.P.C. However, as the instant case is still at the precognizance stage, it is premature to stipulate about the course the Ld. MM should adopt.
17. In the case of M/s Skipper Beverages Pvt. Ltd. Vs. C.R. No. : 17/09 Page 11 of 13 12 State 2001 (4) A.D. (Delhi) 625, wherein it has been laid by his lordship in clear terms that Magistrate should not pass orders under Section 156 (3) Cr.P.C mechanically without judicial application of the mind and further observed that the power under Section 156 (3) Cr.P.C ought to be exercised only in cases where allegations are serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact, I am of the view that no specialized investigation by the police or any other like agency is required in the present case since almost all the documentary proof is within the reach of the complainant. Reliance can also be placed upon :
(a) Crl. Rev. P. 573/2009 titled as Dr. V.P. Sharma Vs. The State ( N.C.T. of Delhi) & Ors decided on 27 October, 2009 by the Hon'ble High Court of Delhi.
(b) Crl. M.C. No. 2367/2011 titled as Khandelwal Builders Pvt.
Ltd. Vs. State decided on 8 November, 2012 by the Hon'ble th High Court of Delhi.
(c) Crl. M.C. No. 3918/2009 titled as Vikrant Kapoor Vs. The State & Ors. decided on 27012012 by the Hon'ble High Court of Delhi.
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(d) Crl. M.C. No. 865/2010 titled as Krishnana Manchanda Vs. State & Ors decided on 15th March, 2012 by the Hon'ble High Court of Delhi.
18. In view of the discussions, mentioned hereinabove, I do not find any illegality caused by the Ld. MM in not directing registration of the FIR and asking the petitioners to proceed as a complaint case as the evidence is in the possession of the petitioners and in case some inquiry is required to be got conducted the same can be got conducted U/s 202 Cr.P.C as held in the judgments "supra" cited above.
19. The revision petition is, therefore, dismissed.
Petitioners are directed to appear before the Ld. Trial Court on 522013. Trial Court Record be sent back alongwith the copy of the order. Revision file be consigned to Record Room. (Announced in the open Court on 14012013) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER ROHINI COURTS : DELHI C.R. No. : 17/09 Page 13 of 13