Delhi District Court
Sunita Joshi vs . Naresh & Anr. on 16 March, 2012
Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :-
Sunita Joshi
W/o Late Sh. Deepak Joshi
D/o Dharmanand Gunwant
R/o Mahaveer Vihar
D-78, New Delhi. ... Petitioner
VERSUS
1. Naresh
S/o Bhagwan Singh
R/o Village Chhawla
New Delhi-110071
2. Bhagwan Das @ Bhagwan Singh
R/o Village Chhawla
New Delhi - 110071 ... Respondents
CR No. 13/12
Date of Institution:30.01.2012
Reserved for orders on:16.02.2012
Judgment announced on: 16.03.2012
JUDGMENT
1. Vide this order, I shall dispose off this petition preferred against the impugned order dated 23.12.2011.
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CR No. 13/12
2. Brief facts in net shell are that petitioner and respondent No.1 entered into an agreement to sell with the petitioner but the accused no.1 failed to comply with the terms and conditions of the agreement to sell and after getting earnest money from the petitioner, the balance consideration of Rs. 4.5 lakhs was agreed to be paid on 20.11.2009. The petitioner made further payment of Rs. 1.5 lakhs on or before 01.11.2009. The petitioner had paid an amount of Rs. 2.5 lakhs which has been acknowledged by the respondent no.2. Petitioner reached in the office of respondent no.1 on 20.11.2009 in order to perform her part of contract but neither the respondent no.1 or nor respondent no.2 was present there. Respondent no.1 put forth lame excuse for not performing his part of contract. It is further stated that the respondent avoided the request of the petitioner for getting the sale deed executed in respect of the property which was subject matter of the agreement to sell. The respondent no.1 was not coming forward to perform his part of contract or to return the amount so received from the petitioner. It is further stated that the petitioner got in contact with the respondent no.2, father of respondent no.1 who called him in his kothri (a small room) located in isolated place and the petitioner went to said kothri of respondent no.
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CR No. 13/122 but the respondent no.2 abused her and started threatening the petitioner and respondent no.2 manage to get the original documents of the petitioner on the pretext of getting the same zeroxed and thereafter respondent no.2 fled away from the said kothri.
3. Petitioner next day contacted respondent no.2 to return the original documents but the respondent no.2 flatly refused to hand over such document otherwise asked the petitioner to pay a visit to his kothri where the petitioner was to please friends of the respondent no.2. The petitioner approached the police but police had not taken action so this complaint has been filed.
4. Vide this impugned order, the application moved by the petitioner under section 156(3) Cr.PC is dismissed and matter is listed for presummoning evidence.
5. I have heard the counsel for the petitioner and perused the record.
6. It is contended by the counsel for the petitioner that from the CR No. 13/12 3 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12perusal of the complaint as well as documents placed on record, a prima facie offence has been committed by the respondents. Ld. Trial Court has not tried to appreciate the facts and the status report filed by the police. It is further stated in the status report filed by the police that it has not been mentioned that respondent have returned the amount given by the petitioner as earnest money and the accused/respondent had misappropriated the money of the petitioner. It is further contended that the respondent had fraudulently received the original document/received in respect of the agreement to sell entered into the petitioner and respondent no.1. So the directions should have been issued under the provision of 156(3) Cr.PC for lodging FIR against the respondent. In this regard, reliance is placed upon Mahender Singh Vs. State Govt. of NCT of Delhi & ors 2008 (1) JCC 43, Vinay Mohan Sharma Vs. Delhi Administration 2008(1) JCC 45.
7. Ld. Counsel for the petitioner vehemently assailed the impugned order of the Ld. Magistrate saying that it has been passed without adopting judicial approach and without exercising judicial discretion. According to him such a case directions for registration of FIR against CR No. 13/12 4 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12respodents should have been passed.
8. On the other hand, Ld. APP supported the impugned order saying that it has been passed having regard to the entire facts and circumstances of teh case brought before the Ld. Magistrate.
9. Subsection 3 of section 156 Cr.PC reads as under: "(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned."
10. It would also be useful to note the provisions of section 190 Cr.PC which are as under: Section 190: Cognizance of offences by Magistrate (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;
(b) upon a police report of such facts;
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Sunita Joshi Vs. Naresh & Anr.
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(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. A combined reading of aforesaid two provisions of law reveals that Magistrate is neither bound to take cognizance of the offence mentioned in a complaint before him, nor is he bound to order any investigation into the offence alleged in the complaint. The use of word 'may' in both the aforesaid sections leaves it to the judicial discretion of the Magistrate concern either to take cognizance of the offence or to direct investigations into the offence.
12. No doubt the discretion has to be exercised by the Magistrate after taking into consideration all the relevant facts and circumstances of the case and in a judicious manner. Besides ascertaining whether complaint discloses the commission of cognizable offence, the Magistrate has also CR No. 13/12 6 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12to satisfy himself that the nature of allegations in the complaint is such as requires investigations by the police in the matter of collection of evidence, custodial interrogation of the accused, taking the opinion of the experts etc.
13. The procedure to be followed by a Magistrate while dealing with an application under section 156(3) Cr.PC has been succinctly explained by the Hon'ble High Court in 2010 (3) LRC 120 (Del) High Court of Delhi Subhkaran Luharuka & Anr. Vs. State (Govt. of NCT of Delhi) & Anr., 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 CR No. 13/12 7 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12approached by the complainant under section 156(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 satisfaction, unless here 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 CR No. 13/12 8 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12Magistrate 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 teh Code when an application under section 156(3) of the Code is also filed alongwith 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 prerequisites 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 m,ust pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.
14. Thus when a Magistrate is approached with a complaint, normally CR No. 13/12 9 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12he shall proceed under chapter XV of the code of criminal procedure by taking cognizance of the complaint, taking the evidence produced by the complainant and then deciding whether or not to proceed against the accused. The Magistrate may proceed under chapter XII of the code when the complaint is accompanied by an application under section 156(3) Cr.PC., if he is satisfied that it is not possible for the complainant to collect the incriminating evidence against the accused and that the custodial interrogation of the accused is necessary in order to unearth any conspiracy entered into by the accused. Directing registration of an FIR entails serious consequences, as the accused may be arrested pursuant to the registration of the FIR, which would amount to infringement of their personal liberty. Therefore, it is all the more necessary for a Magistrate to be circumspect in passing any such order which is likely to affect the liberty of an individual. The Magistrate would be required to pass a reasoned order, if he intends to proceed under chapter XII instead of chapter XV of the Code.
15. In the present case, Ld. Trial Court had sought for a status report and from the perusal of the same, it transpired that matter between the CR No. 13/12 10 16.03.2012 Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12parties pertaining to one dispute and nothing is to be recovered from the respondents. It is settled law that order for registration of FIR should not be passed by the courts in mechanical manner and only in cases where the allegations are not so grave and evidence is within the reach of complainant, the direction for registration of FIR should not be passed. Applying the said proposition of law, I am of the opinion that Ld. Trial Court has rightly dismissed the application of the petitioner for seeking direction for registration of FIR under section 156(3) Cr.PC. Ld. Counsel for the petitioner has not pointed out any illegality in the said petition so this criminal revision petition is hereby dismissed.
16. A copy of the order alongwith TCR be sent to the Ld. Trial Court for information.
17. File of revision petition be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 16th Day of March 2012 ASJ/ Dwarka Courts
New Delhi/16.03.2012
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Sunita Joshi Vs. Naresh & Anr.
CR No. 13/12
Sunita Joshi Vs. Naresh & Anr.
CR No.13/12
16.03.2012
Present : Sh. Sanjeev Gupta, Ld. Counsel for the petitioner alongwith petitioner.
Vide separate judgment of even date, the revision petition is hereby dismissed. A copy of the order alongwith TCR be sent to the Ld. Trial Court for information.
File of revision petition be consigned to record room.
(VIJAY KUMAR DAHIYA)
ASJ/ DWARKA COURTS
NEW DELHI/16.03.2012
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