Delhi District Court
Smt. Swatantra Suneja vs The State (Nct Of Delhi) on 20 August, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
CR No. 56108/2016 (Old No. 81/16)
Smt. Swatantra Suneja,
W/o Sh. Harish Suneja,
D/o Late Sh. Chaman Lal,
R/o H.No. 2/40, Old Rajinder Nagar,
New Delhi110060 . . . . Revisionist
Versus
1. The State (NCT of Delhi)
2. Sh. Anil Kumar
S/o Late Sh. Chaman Lal,
Prop. Arvind Industries
AT 4888, First Floor, Foota Road,
Sadar Bazar, Delhi110002
Also at:
2521, Palam Vihar,
Gurgaon, Haryana
3. Sh. Sunil Arora,
S/o Late Sh. Chaman Lal
Prop. Chaman Paints,
At: 7699, Subzi Mandi, Ghanta Ghar,
G.T. Road, New Delhi.
Also at:
SU138, Vishakha Enclave,
Pitampura,
Delhi110088 . . . . Respondents
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 1 of 9
Date Of Institution : 06.06.2016
Date of reserving for order : 12.08.2016
Date of pronouncement : 20.08.2016
ORDER
1. This order shall dispose of the revision petition filed by the revisionist against order dated 08.09.2015 (in short 'impugned order') passed by Sh. Dhirendra Rana, Ld. MM02 (West) dismissing the application under Section 156(3) of Cr.P.C. seeking directions to the SHO concerned to investigate the matter after registration of FIR against the respondents.
2. Trial Court Record of complaint case bearing CC No.525/1/15 PS Rajouri Garden was requisitioned, received and perused. I have heard Sh. Sunil Lalwani, Ld. counsel for revisionist and Ms. Neeta Gupta, Ld. Addl. PP for the State.
3. There is an application seeking condonation of delay in filing the instant revision petition. The revisionist was directed to show her medical record to the effect that she had sustained a fracture. However, no medical record has been filed by the revisionist. Ld. Addl. PP submitted that delay is not justified at all and that the revisionist has filed the instant revision petition half heartedly. Although no sufficient explanation has been put forth on behalf of revisionist for condonation of delay, yet I am inclined to dispose off the instant revision petition on merits.
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 2 of 94. The version of the revisionist in her complaint, so far as it is relevant for adjudication of the instant revision petition in nutshell, is that accused persons/respondents herein are real brothers of the revisionist. Father of the parties allegedly purchased properties and after his death on 10.08.1995, the respondents got executed relinquishment deeds from their mother and represented themselves as the only three legal heirs having been left by the owner of the property and concealed the name of the revisionist and her sister at the time of execution of those deeds before the Sub Registrar. It is also alleged that respondents are extending threats to the revisionist on regular basis.
5. The revisionist has felt aggrieved that local police failed to register an FIR and investigate the matter on her complaint and her complaint made to Ld. MM for directing the police to register an FIR and carry out investigation was wrongly disallowed vide the impugned order. Revisionist has assailed the impugned order interalia on the grounds that Ld. trial Court vide the impugned order has erroneously held that just because civil proceedings are pending between the parties in Civil Court, the matter is of civil nature and that nothing is sought to be recovered by the police during investigation and the revisionist is in a position to bring on record evidence against the respondents.
6. Status Report was filed before the Ld. MM on 04.07.2015 CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 3 of 9 by SI Aditya PS Rajouri Garden, wherein it is reported that matter is related to family property dispute and is civil in nature.
7. Ld. Trial Court while placing reliance on the judgments of Subhkaran Luharuka Vs. State & Anr ILR (2010) IV Delhi 495 rejected application under Section 156(3) Cr.P.C. of the revisionist by observing as under : "It is admitted by complainant that civil proceedings are pending between the parties in the court of Sh. Sumedh Kumar Sethi, Ld. ACJ Cum ARC wherein present complainant is in the category of Defendant and suit has been filed for permanent injunction against her, parties are known to each other as accused persons are brothers of the complainant and nothing is sought to be recovered by the police during investigation and complainant is in position to bring on record the evidence against the accused persons, I find no reason to order for registration of FIR. Keeping in view the nature of allegations and the aforesaid position of law, I am of the opinion that the present case does not require any investigation by the police. Accordingly, the application U/s 156(3) Cr.P.C. is dismissed. However, liberty is being granted to the complainant to lead presummoning evidence under Section 200 Cr.P.C."
8. Ld. Addl. PP has justified the order of the trial Court by stating that it is a property dispute between the parties and that no custodial interrogation of the respondents is required for recovery of any incriminating evidence or discovery of any facts.
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 4 of 99. In Subhkaran Luharuka vs. State ILR (2010) IV Delhi 495 after going through a catena of judgments of the Apex Court and other superior Courts, the Hon'ble High Court of Delhi laid down the guidelines for the subordinate Courts when to resort to Section 156(3) Cr.P.C. which are as under :
(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him. Upon a preliminary CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 5 of 9 satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
iii) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the prerequisite as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 6 of 910. Thus, the Magistrate is not supposed to act mechanically and direct registration of an FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set into motion on the mere asking of a party. The power under Section 156(3) of Cr.P.C. has to be exercised with care and caution and not mechanically on the mere filing of a complaint alleging that the police has failed to register an FIR.
11. Ld. Magistrate rightly refused to direct registration of an FIR and took cognizance of the offence under Section 200 of Cr.P.C. I concur with findings of Ld. Trial Court. The identity of the persons involved is well known. No custodial interrogation is required for recovery of any article or discovery of any fact. It is a civil dispute.
12. There is presently no need for field investigation by the police. If any need were to be noticed for such investigation in any specific area of dispute, the Ld. Magistrate can always resort to power available under Section 202 of the Cr.P.C. at a proper stage.
13. In Subhkaran Luharuka (supra), the Hon'ble Delhi High Court specifically dealt with the question how and when powers under Section 156(3) Cr.P.C. are to be exercised by a Magistrate and after discussing a number of Apex Court judgments on the CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 7 of 9 said question, issued guidelines (in para 52A of the judgment reproduced above) for subordinate judicial officers "to prevent parties from misusing the process of law [Section 156(3) CrPC]"
(para 93 of the judgment).
14. In Indian Oil Corpn. vs. NEPC India Ltd. (2006) 6 SCC 736, the Hon'ble Apex Court deprecated the growing tendency to convert civil disputes into criminal cases and it was observed : "While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/ creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/ families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
15. Hon'ble Apex Court in Kishan Lal vs. Dharmendra Batra & Anr., 2009 (9) SCALE 768 ruled that the revisional Court should not ordinarily interfere with the discretionary jurisdiction exercised by a Magistrate unless a jurisdictional or legal error of law is noticed.
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 8 of 916. In view of the facts and circumstances of the case, the view taken by the Ld. MM (West) in the impugned order dated 08.09.2015 does not suffer from any jurisdictional or legal error and is in conformity with the guidelines laid down in the judgments of the Superior Courts as discussed above and cognizance of the offence has been taken under Section 200 Cr.P.C. for redressal of the complainant's grievances. The instant revision petition is thus dismissed.
Trial Court Record be sent back along with copy of this order to the Ld. Trial Court.
Revisionist is directed to appear before the Ld. Trial Court on 22.08.2016 at 2.00 PM.
Revision file be consigned to Record Room.
Announced in open Court ( Rekha Rani )
dated, the 20th day of District & Sessions Judge (West)
August, 2016. Tis Hazari Courts, Delhi
CR No. 56108/16 Swatantra Suneja Vs. State & Ors. Page 9 of 9