Delhi District Court
Sunil Tanwar vs State on 25 August, 2007
1
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGE : ROHINI : DELHI
Crl. Revision No.36/07
Sunil Tanwar
S/o Sahib Singh Tanwar,
R/o VPO Palla,
Delhi-110036. ...Revisionist
Versus
State ...Respondent
Date of Institution : 04.07.2007
Date on which order has
been reserved : 17.08.2007
Date on which the order has
been delivered : 25.08.2007
ORDER
Vide this order, I shall dispose of a revision petition filed by petitioner/complainant for setting aside the order dated 17.05.2007 passed by learned Metropolitan Magistrate (hereinafter to be referred as the impugned order) vide which the prayer of the complainant for sending the complaint case for police investigation u/s 156(3) Cr.PC was dismissed by the Ld. MM.
2. The facts as per the complaint filed before the Ld. MM are that the wife of the present revisionist was operated upon by the respondent no.1 Dr. M.L. Parnami with other doctors. After the operation, the condition of the wife of the revisionist started deteriorating and finally, as per the complainant, his wife died due to negligence of the said doctors.
3. The grudge of the complainant is that the when the complainant approached the police, the police did not register the case. Therefore, he approached the learned Metropolitan Magistrate with the criminal complaint. Learned Metropolitan Magistrate rejected the application under Section 156(3) Cr.P.C. and hence this revision petition.
4. The grounds furnished by the petitioner are that the approach of the learned Metropolitan Magistrate in declining to proceed under Section 156 Cr.P.C. and for directing the matter for recording of the evidence of the complainant vide the impugned order is not correct. It is further stated that the matter requires a fair enquiry and the evidence can only be collected by the police. He has requested that a direction should be given to the police to register a case. The revisionist relied upon various case laws. SUNIL TANWAR VS. STATE 3
5. I have heard the learned Counsel for the petitioner as well as the learned Addl. Public Prosecutor on this revision petition. I have also perused the impugned order dated 17.05.2007.
The powers of the Magistrate as enshrined in Section 156(3) are as under :-
"156. Police officer's power to investigate cognizable case---
(1)Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2)No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3)Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
6. Though the revisionist has filed certain case laws but the said case laws are not applicable to the scope of the present revision petition. This is because in the said case laws, the powers of police has been SUNIL TANWAR VS. STATE 4 discussed whereas the present revision petition pertains only to question as to whether the learned Magistrate was right or wrong in refusing to send the matter for police investigation under Section 156(3) Cr.P.C. After perusing the order of learned Metropolitan Magistrate, it is manifestly sound on the part of learned Metropolitan Magistrate to say that the examination of the complainant's witnesses is mandatory in this case as the revisionist has not shown the medical record of the deceased. The Ld. MM further opined that the complainant witnesses needs to be examined.
Our own Hon'ble High Court in M/s Skipper Beverages Pvt. Ltd. vs. State 2001 IV AD(Delhi) has held that :-
" It is true that Section 156(3) of the Code empowers to Magistrate to direct the police to register a case and intimate 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. This discretion ought to be exercised after propose 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 interest of justice demand that the police SUNIL TANWAR VS. STATE 5 should step in the help the complainant.
7. Therefore, it is clear that it is the prerogative of the Magistrate either to send the matter for police investigation or to retain the same for his own inquiry under Chapter XV of Cr.PC. The word used in Section 156(3) Cr.PC is 'may'. Hence, it is not obligatory upon the Magistrate to send each and every complaint for police investigation. Otherwise, the provisions of Chapter XV drafted by the legislature will become redundant. Ld. MM has exercised his discretion in a reasonable manner while declining for referring the matter for police investigation. This is because the matter on record is not sufficient enough to do so. The judgments cited by the petitioner are not applicable to the facts of the present case. Hence, the revision petition stands dismissed.
TCR be sent back along with copy of this order. File of this Court be consigned to record room.
Announced in the Open Court on 25th August, 2007 (SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS: DELHI SUNIL TANWAR VS. STATE 6 SUNIL TANWAR VS. STATE