Delhi District Court
Amit Goel & Anr vs . Shashi Kapoor & Anr on 28 April, 2018
CR No: 35/17
Amit Goel & anr Vs. Shashi Kapoor & anr
IN THE COURT OF SH. R.L. MEENA: ADDL. SESSIONS JUDGE02:
DWARKA COURTS: NEW DELHI
C.R. No. : 35/17
CNR No. : DLSW010182692017
1. Amit Goel
S/o Sh. B.S. Goel
R/o A603, Rajasthan Apartments,
Plot No.36, Sector4,
Dwarka, New Delhi78.
2. Sumit Goel
S/o Sh. B.S. Goel
R/o A603, Rajasthan Apartments,
Plot No.36, Sector4,
Dwarka, New Delhi78.
3. State of NCT Delhi
P.S: Dwarka North.
.... Petitioners
VERSUS
1. Smt. Shashi Kapoor
W/o Sh. R.K. Kapoor
R/o A604, Rajasthan Apartments,
Plot No. 36, Sector4,
Dwarka, New Delhi78.
2. State of NCT Delhi
Police Station - Dwarka North
.... Respondents
CR No. 35/17 Page 1 of 13
CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr Date of institution of the case : 23.12.2017 Date of arguments : 17.04.2018 Date of pronouncement of order : 28.04.2018 O R D E R
1. This application under Section 397 & 400 of the Code of Criminal Procedure, 1973 (Cr.P.C) made by the applicant Amit Goel (hereinafter referred to as accused) against the respondent i.e. Shashi Kapoor (hereinafter referred to complainant) is directed against the order dated 07.12.2017, passed by the court of Sh. Deepak KumarII, Learned Metropolitan Magistrate, Dwarka Courts, New Delhi, whereby, in complaint case titled as Shashi Kapoor Vs. Amit Goel & Ors, an application under Section 156 (3) Cr.P.C made by the complainant, was allowed.
2. The circumstances giving rise to the application are that on 26.09.2017, the complainant made a complaint alleging commission of the offence punishable u/s 354/506/34 of the Indian Penal Code, against the petitioner/accused with a view to issue directions to the Station House Officer (SHO), PS Dwarka North, to register First Information Report (FIR) against the said petitioner/accused.
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3. Brief facts of the case are that complainant and accused persons are neighbours and are residing in their respective Flats at Rajasthan CGHS, Plot no. 36, Sector 4, Dwarka, New Delhi. It is alleged by the complainant that accused persons have constructed unauthorised almirah on the wall touching the flat of the complainant, therefore, several complaints were made against the accused persons. It is further alleged that on 26.02.2017, accused Amit Goel took the picture of complainant and put it in the public domain on the society's Whatsapp group and she has an apprehension that accused persons might even morph her picture and circulate the same to cause her embarrassment. It is further alleged that matter was reported to the police, but no action was taken. It is further alleged that on 24.04.2017, petitioner/accused gathered with hired goons and tried to create a scene by removing the cot of the complainant, lying in the corridor. When the husband of complainant peacefully questioned them, then accused persons, their family and hired goons started threatening and intimidating the complainant. It is further alleged that when complainant intervened to save her husband, then one Vikas Aggarwal brutally and violently pushed the CR No. 35/17 Page 3 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr complainant from her neck and hurled abuses. It is further alleged that CCTV camera installed at the door of the petitioners/accused have captured the incident and the same will show the wrong doings of the accused persons. It is further alleged that police has neither seized the CCTV footage nor taken any action against the accused persons.
4. Learned trial court, on receiving the said complaint, called the status report from the police. In the said report, it is stated that on the basis of the complaint, received from both the parties and local inquiries done in the matter, it is found that no cognizable offence is made out. However, as per preventive action, a kalandra u/s. 107/150 Cr.PC was prepared and filed by SI Vikas Yadav before the Learned SEM/SWD Court and the same is pending. It is further mentioned that both the parties are owner of their respective flats and are neighbours.
5. On 07.12.2017, learned MM, heard counsel for the complainant on the application under Section 156(3) Cr.P.C. The said application was allowed vide order dated 07.12.2017.
6. Aggrieved by the aforesaid order dated 07.12.2017, the present revision has been filed before this court.
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7. I have heard Sh. Pranav Jha, Learned counsel for the petitioner/accused, Sh. P.K. Jain Advocate assisted with Sh. Gaurav Yadav counsel for respondents/complainant and have carefully gone through the trial court record.
8. During the course of arguments, counsel for petitioner submitted that no cognizable offence is made out against the petitioner but despite that learned M.M passed an order for registration of FIR, which is contrary to law. It is further submitted that police has also filed action taken report dated 27.07.2017, wherein it is clearly stated that no cognizable offence is made out. It is further submitted that as per the allegations of complainant, only offence punishable u/s 352/506 IPC are made out which are not cognizable offences. It is further submitted that the impugned order dated 07.12.2012 is contrary to the law, therefore, same may be set aside.
9. On the contra, counsel for respondent submitted that learned trial court has passed the impugned order as per law. Counsel for respondent has also drawn the attention of the court on two complaints of the complainant dated 26.02.2017 and 23.04.2017 and claimed that contents of the said complaint clearly show that cognizable offence are CR No. 35/17 Page 5 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr made out against accused persons/petitioner. It is further submitted that complainant/ respondent is a Pardanasheen lady and her photographs were secretly taken by the petitioner/accused and same were circulated on society's Whatsapp group which is an offence punishable u/s 509 IPC. It is further submitted that complainant has leveled serious allegations against the accused particularly in para no. 3 of the complaint. In the said para, it is alleged that accused has committed the offence of mischief by removing the cot of the complainant, lying in the corridor. It is further submitted that Vikas Aggarwal brutally and violently pushed the complainant on her neck and tightly gripped the 60 years old husband of complainant who is suffering from breathing problem and hurled abuses. It is further submitted that the said contents of the complaint clearly shows that offence punishable u/s 440 IPC has also been committed by the accused persons. It is further submitted that complainant has also clearly stated that unknown persons are also involved in the alleged offences and identity of the said accused persons can be established by way of interrogation. It is further submitted that entire alleged incident was captured in CCTV camera, installed CR No. 35/17 Page 6 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr outside the house of accused persons and the analysis of the same are yet to be done.
10. In rebuttal, counsel for petitioner submitted that original complaint of the complainant is dated 23.04.2017 which does not shows any cognizable offence. It is further submitted that complainant has alleged facts of two different incidents which cannot be investigated together by a single FIR.
11. I have given my thoughtful consideration to the submissions made on behalf of respondents.
12. Under section 397 of Cr.PC, any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
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13. Under the provisions of Cr.PC, a Magistrate may take cognizance, inter alia, on the complaint made by an aggrieved person. Upon such complaint being made, the Magistrate, instead of proceedings under section 200 of Cr.PC may, in exercise of powers under section 156 (3) of C.rPC, forward such complaint to the officer incharge of the police station for registration of FIR and investigation as per law. Thus, in respect of a complaint both options are available with the Magistrate.
14. In the present complaint, I find that complainant has leveled following allegations against the petitioner/accused persons:
i). It is alleged by the complainant that complainant family is a very conservative family and their ladies do not step out without covering their head. Accused, despite knowing the said facts, had taken the picture of complainant without her consent and put it in the public domain i.e., on the society's Whatsapp group and they can even morph her picture and circulate the same to cause her embarrassment.
ii). Accused persons alongwith other persons had removed the cot of the complainant, lying in the corridor.
On the objection of the complainant and her husband, Vikas CR No. 35/17 Page 8 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr Aggarwal brutally and violently pushed the complainant on her neck and tightly gripped the 60 years old husband of complainant, who is suffering from breathing problem and hurled abuses.
15. In view of the said allegations, I find that learned trial court has taken the notice of the fact that complainant and accused persons are neighbours and there is a dispute regarding construction of almirah by the accused persons. It was also in the notice of the learned MM that accused persons had allegedly assaulted the complainant and her husband. In view of the said allegations, learned trial court directed the SHO, PS Dwarka North to register an FIR and investigate the matter. However, SHO was directed not to arrest the accused persons unless there is sufficient grounds for their arrest.
16. In view of the said allegations of the complainant, now one question is required to be posed:
1). Whether learned MM, should have mentioned the offences disclosing commission of cognizable offence in the impugned order.
OR CR No. 35/17 Page 9 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr
2). Whether Learned MM should have simply passed an order for the registration of the FIR in the exercise of the power conferred u/s. 156 (3) Cr.PC without disclosing the sections of cognizable offences.
17. In order to determine the said aspect, I rely upon the law laid down in case titled as Suresh Chand Jain V. State of MP decided on 10.01.2001 by Hon'ble High Court of Madhya Pradesh wherein it is held that :
"any Judicial Magistrate, before taking cognizance of the offence, can order investigation u/s 156(3) Cr.PC. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is noting illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer Incharge of the PS, as indicated in section 154 of Code. Even if the Magistrate does not say in so many words while directing investigation u/s. 156(3) of the Code that an FIR should be registered, it is the duty of the Officer CR No. 35/17 Page 10 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr Incharge of the Police Station to register the FIR regarding cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in chapter XII of the Code only thereafter".
18. Bare perusal of the aforesaid legal position, it is apparent that it is not necessary that Magistrate must disclose each and every cognizable offence while passing the order for registration of FIR. It is sufficient for the Magistrate to refer the complaint of the complainant to SHO for registration of the FIR if the said complaint is disclosing commission of the cognizable offence. Merely, not disclosing the sections of offences of commission of cognizable offences, does not mean that the impugned order is bad in law.
19. Perusal of the entire trial court record, I find that there are sufficient averments made in the complaint by the complainant regarding the cognizable offences, therefore, it cannot be said that no cognizable offence is made out. It is further to be note here that there is also allegations of the complainant that unknown persons also accompanied the petitioners/accused persons at the time of commission of the alleged offences, therefore, police investigation is CR No. 35/17 Page 11 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr required to unearth the true and correct facts of the case and CCTV Footage are yet to be recovered by the police.
20. In view of the aforesaid facts and circumstances of the case, the learned Metropolitan Magistrate had two options namely without taking cognizance of offence on the basis of complaint, to forward the complaint to the SHO concerned or after taking cognizance of offence on the basis of complaint, to proceed under Section 200 Cr.P.C and subsequent provision of Cr.P.C. The learned Metropolitan Magistrate, in the light of relevant provisions of Cr.P.C, having taken into account the facts mentioned above. The judicial discretion exercised by the learned Magistrate was inconsonance with the scheme postulated by Cr.P.C. There is no material on record to indicate that the judicial discretion exercised by the learned Metropolitan Magistrate was either arbitrary or perverse.
21. Before parting with the order, it is to be note here that the citation relied upon by the counsel for the petitioner i.e., Subhash Manchanda V. State and Ors decided on 04.02.2013 by Hon'ble High Court of Delhi, is not applicable to the facts and circumstances of the present case as the learned MM has kept in mind the guideline of settled proposition of law CR No. 35/17 Page 12 of 13 CR No: 35/17 Amit Goel & anr Vs. Shashi Kapoor & anr regarding registration of the FIR while passing the impugned order.
22. In the light of aforesaid circumstances and after examining the record, I am of the considered view that there is no occasion to interfere with the discretion exercised judicially by the learned Metropolitan Magistrate. The Revision is without merits, hence the same is dismissed. Copy of this order be sent to learned trial court alongwith the trial court record. Revision file be consigned to Record Room.
Digitally
signed by
RAM RAM LAL
MEENA
Dictated and Announced LAL Date:
MEENA 2018.05.03
in the open court 21:23:56
+0530
on 28.04.2018
(R.L. Meena)
ASJ02 (South West),
Dwarka Courts, Delhi
28.04.2018
CR No. 35/17 Page 13 of 13