Delhi District Court
Manjit Singh vs The State (Govt. Of Nct Of Delhi) on 10 April, 2018
Page 1 of 13
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.56381/2016
Manjit Singh
S/o Late Sh. Sardar Singh
R/o 8/16, Ground Floor,
East Patel Nagar,
New Delhi110008.
............Revisionist
Vs.
1. The State (Govt. of NCT of Delhi)
2. Parminder Singh
S/o Sh. Manjit Singh
3. Ms. Naina Singh
W/o Sh. Parminder Singh
Both C/o Hargun Foods Pvt. Ltd.
Shed No.33, Ground Floor,
Khasra No.1296, Bawa Potteries,
Village Kishangarh, New Delhi10070.
Also at:
612, Suffield Drive,
Gaithers Burg,
Maryland MD 20878,
U.S.A.
...........Respondents
Date of Filing : 05.11.2016 Date of Arguments : 09.04.2018 Date of Order : 10.04.2018 CR No.56381/16 Manjit Singh Vs. State & Ors. Page 2 of 13
Criminal Revision Petition U/Sec.397 against the order dated 14.09.2016 passed in CC No.19288/16 O R D E R
1. This revision petition has been filed by the revisionist against the impugned order dated 14.09.2016 passed by Sh. Deepak Dabas, Ld. Additional Chief Metropolitan Magistrate (ACMM), West District, Tis Hazari Court, Delhi vide which the application of the revisionist filed U/Sec.156(3) Cr.P.C. was dismissed.
2. The brief facts necessary for disposal of present petition are as follows: 2.1 That on 08.06.2016 a complaint case bearing CC No.19288/16 U/Sec.200 Cr.P.C. alongwith application U/Sec.156(3) Cr.P.C. was filed by the revisionist (hereinafter referred to as 'complainant') against the respondent no.2 & 3 (hereinafter referred to as 'accused no.1 & 2' respectively). The complainant is father of accused no.1 and fatherinlaw of accused no.2.
2.2 In the said complaint case, it was stated by the complainant as follows:
"That the accused no.2 & 3 committed fraud by hacking the CR No.56381/16 Manjit Singh Vs. State & Ors.Page 3 of 13
bank account of complainant or by misusing the password of his bank account while sitting in USA and cheated the complainant by withdrawing/transferring an amount of ₹1,15,000/ from his account i.e. ₹15,000/ on 29.10.2011, ₹55,000/ on 01.11.2011 and ₹45,000/ on 17.01.2012. The complainant reported the matter to police but no action was taken by the police against the accused."
Hence, he filed before the Court the complaint U/Sec.200 Cr.P.C. alongwith application U/Sec.156(3) Cr.P.C. for registration of FIR against the accused U/Sec.420/467/468/471/34 IPC. 2.3 Report was called by the Ld. ACMM on the said application from the police. Report was filed by police on 30.07.2016 in which it was stated that there was a family dispute between the parties over the property and the accused no.1 had already filed a complaint against complainant and other family members regarding grabbing of his property and had alleged that the complainant had forged the signatures of the accused no.1 to get the electricity meter transferred into his name. It was further stated in the said report that on enquiry the accused was found owner of the property where the complainant and other family members were residing and FIR No.995/14 dated CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 4 of 13
18.12.2014 U/Sec.420/468/471 IPC P.S. Patel Nagar was registered against the complainant. It was further stated that many civil suits were also pending between the parties. It was stated that on enquiry conducted on the allegations levelled by the complainant, it was found that the aforesaid amount was transferred in the account of accused as 'gift' by the complainant and therefore, no police action was attracted.
2.4 Vide impugned order, the Ld. ACMM dismissed the abovesaid application and declined to give direction to the SHO to register FIR by holding that the evidence was within the reach of the complainant and the accused persons known to him and further that if subsequently it would be deemed necessary, then police inquiry could be initiated U/Sec.202 Cr.P.C.
3. The present revision petition has been filed by the complainant for setting aside the impugned order dated 14.09.2016 on the following main grounds:
(i) That the impugned order is passed without application of mind and is based on conjectures and surmises.
(ii) That the Ld. ACMM has failed to consider that scientific CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 5 of 13
investigation is required in this case as the amount has been transferred and revisionist is totally unaware of the fact about the I.P. address of the computer from where the amount in question has been withdrawn and it is the bank who can disclose such information only to the police and same can only be collected by the police.
(iii) That the Ld. ACMM has failed to appreciate that there is absolutely no material available with the police to come to the conclusion that the amount was transferred in the account as 'gift'.
(iv) That the Ld. ACMM has failed to appreciate that the offences as narrated in the complaint lodged before the police well depicted the commission of cognizable offence and as per judgment titled as "Lalita Kumari Vs. Govt. of U.P. & Ors.", it is well settled law that as and when a complaint citing commission of cognizable offence is lodged, immediately an FIR should be registered.
(v) That the Ld. ACMM has failed to appreciate that the evidence is not in the control of complainant and that the matter needs CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 6 of 13
investigation.
4. Notice of the present revision petition was given to the accused and the revision petition has been contested by him.
5. I have heard the arguments from counsel Sh. K.K. Malhotra for revisionist/complainant and Counsel Sh. Sumit Ahuja for the accused/respondent no.2 & 3 and perused the record including the Trial Court record in the light of submissions made before me.
6. The Counsel for revisionist/complainant has vehemently argued that the impugned order is liable to be set aside as it is not legal whereas the counsel for accused persons has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
7. Chapter XII of Cr.P.C. deals with information to the police and its power to investigate the offences. Chapter XV of Cr.P.C. deals with the complaint filed before a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. Sec.156 Cr.P.C. contained in Chapter XII speaks of the powers of the police officers to investigate cognizable cases and subclause (3) of CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 7 of 13
the said section gives power to the Magistrate having power under Sec.190 Cr.P.C. to order such an investigation. Complaint filed U/Sec.190 r.w. Sec.200 Cr.P.C. before a Magistrate provides an alternative as well as an additional remedy to a complainant whose complaint is not entertained by the police. Thus, when a criminal complaint, which discloses commission of cognizable offence, is filed before a Magistrate, two courses are opened to him viz. (i) he may direct the police to investigate the matter U/Sec.156(3) Cr.P.C., or (ii) he may choose to inquire into the complaint by taking cognizance U/Sec.190 Cr.P.C. However, it is settled law that power vested in Magistrate to direct police to investigate the matter U/Sec.156(3) Cr.P.C. is to be exercised judiciously on appropriate grounds and such order could not be passed in every case in a mechanical manner unless there are serious allegations and further that the evidence is beyond the reach of the complainant or the custodial interrogation appears to be necessary for some recovery of articles or discovery of facts. It is held by Hon'ble High Court of Delhi in M/s. Skippers Beverages Pvt. Ltd. Vs. State, 2001 (3) RCR (Criminal) 514, "It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 8 of 13
initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to help the complainant."
8. In Shri Subhkaran Luharuka & Anr. Vs. State (Govt. of NCT Of Delhi) & Anr., 2010 (170) DLT 516 the Hon'ble High Court of Delhi has held that when the Magistrate is approached with a Complaint U/Sec.200 Cr.P.C., he should invariably proceed under Chapter XV by taking cognizance of the Complaint. However, it is also held that it is open to the Magistrate to proceed under Chapter XII of Cr.P.C. when an application U/Sec.156(3) Cr.P.C. is also filed along with a Complaint U/Sec.200 Cr.P.C. if the Magistrate decides not to take CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 9 of 13
cognizance of the Complaint, but in that case the Magistrate before passing any order to proceed under Chapter XII, should 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.
9. It has been held by Hon'ble High Court of Delhi in Ravindra Kumar Vs. State (Govt. of NCT of Delhi), 2013(8) AD(Delhi) 403 that the remedy U/Sec.156(3) is discretionary and the complainant cannot insist as a matter of right that his complaint in every eventuality be directed to the police for investigation. The Hon'ble Court has held, "Remedy under Section 156 (3) Cr.P.C. is a discretionary one as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 10 of 13
without the assistance of the police. The complainant, as a matter of right, cannot insist that the complaint case filed by him/her should be directed in every eventuality to the police for investigation."
10. Thus, the Magistrate has the discretion to refuse the registration of FIR. Criminal law is not expected to be set into motion on the mere asking of a party. It is only in those cases where there is substance in the complaint and the allegations are of serious nature and the evidence could not be obtained by the complainant without the assistance of the police, that an order for registration of FIR be passed U/Sec.156(3) Cr.P.C. The present case is not a case where the police assistance is required for breaking the case or for discovery of some evidence which the complainant himself is unable to collect at his own. It is not a case where the evidence is beyond the reach of the complainant or that the custodial interrogation is required for discovery of fact. The evidence on which complainant is relying is within his knowledge. The complainant himself can also lead evidence and summon the requisite witnesses and material to prove his case.
11. Moreover, it has been held by Hon'ble High Court of Delhi in Smt. Mithlesh Vs. The State of N.C.T. of Delhi & Ors., 2009 (4) JCC CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 11 of 13
2609 that in cases where the complainant and accused are already in litigation with each other, in such cases the parties want the registration of FIR just to put pressure on the other party and in such cases the provision of Sec.156(3) Cr.P.C. should not be allowed to be used them to satisfy their personal scores. It has been held by Hon'ble High Court in Smt. Mithlesh's case (supra), "It is not incumbent in each and every case that the Magistrate must direct registration of an FIR and the consequent investigation by the local police. The Magistrate can take an inquiry under Sec.200 Cr.P.C. by examining the complainant and the other witnesses which are produced and then proceed to deal with the complaint under Sections 202 to 204 Cr.P.C. It seems that the petitioner wants to bring bare pressure on the other side by registration of an FIR. This is so on account of the fact that once an FIR is registered other side namely the accused persons would be on the run because they will face an imminent threat of arrest and secondly it becomes convenient for the complainant as well because it becomes a State case where the presence of the complainant is not required on every date of hearing. That is the modus operandi which is CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 12 of 13
invariably adopted and aimed at by every petitioner. This cannot be permitted to be done more so in a case of a present nature where the petitioner is in litigation with the accused persons/respondents".
12. Thus as per the abovesaid caselaw the parties should not be permitted to use the provisions of Sec.156(3) Cr.P.C. as per their own convenience, for satisfying their personal vendetta. In the present case also the parties are already litigating against each other as many civil and criminal cases are pending between them. Thus as per the abovesaid caselaw the provision of Sec.156(3) Cr.P.C. should not be allowed to be used by the parties for settling their personal scores.
13. In view of the aforesaid discussion, the present case is not found a fit case for directing the SHO to register FIR. Moreover, if the need arises, the Trial Court can take recourse to Sec.202 Cr.P.C. at appropriate stage of proceedings. On careful perusal of the record in general and the impugned order in particular, it is revealed that the complainant/revisionist has not been able to show any reasonable ground to interfere in the impugned order. It is well settled law that the revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error CR No.56381/16 Manjit Singh Vs. State & Ors.
Page 13 of 13
of law and consequently there has been a flagrant miscarriage of justice. If the impugned order is analyzed in the light of scope of Sec.397/399 Cr.P.C., no wrong, illegality, impropriety or irregularity is found therein. Moreover, if any fact requiring police investigation is found by the Trial Court after conclusion of presummoning evidence, the said fact can very well be verified/investigated through police U/Sec.202 Cr.P.C. Hence, the impugned order is upheld and the revision petition is dismissed being devoid of merits.
14. TCR be sent back alongwith copy of this Order.
15. File of the revision petition be consigned to Record Room.
(Announced in open
Court on 10.04.2018) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.56381/16
Manjit Singh Vs. State & Ors.