Delhi District Court
Sarita vs Ajay And Ors on 29 November, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
Cr. Rev: 194/2024
CNR No. : DLST01-004568-2024
Smt. Sarita
W/o Sh. Bhim Sain,
R/o H. NO. 208, Gali No. 2,
Dr. B. R. Ambedkar Colony, Aya Nagar Pahadi,
South Delhi-110047 .........REVISIONIST
VERSUS
1. Ajay
2. Smt. Neelam
W/o Ajay
3. Priyanshu
S/o Ajay
Respondents No. 1 to 3 at:
House No. 211, Ambedkar Colony,
Aya Nagar Pahadi, Delhi-110047
4. Sonu
5. Smt. Gulshan
Respondents No. 4 to 5 at:
House No. 200, Ambedkar Colony,
Aya Nagar Pahadi, Delhi-110047
6. SHO
PS Fatehpur Beri
7. DCP South District
Hauz Khas, New Delhi ........ RESPONDENTS
PURSHOTTAM
DATE OF INSTITUTION : 07.05.2024
PATHAK
ARGUMENTS HEARD ON : 29.10.2024
Digitally signed
by
DATE OF JUDGMENT : 29.11.2024
PURSHOTTAM
PATHAK
Date: 2024.11.29
16:35:00 +0530
Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 1 of 10
JUDGMENT
1. By this order I shall decide the criminal revision petition under Section 397/399 of Cr.P.C against the order dated 01.03.2024 in complaint CT No. 532/2023 titled as 'Sarita Vs. Ajay and Ors.', whereby Ld. MM-01, South dismissed an application u/s 156 (3) Cr.P.C. seeking directions to SHO, PS Fatehpur Beri, Delhi to register FIR and to investigate the matter.
2. The Ld. MM has noted the factual position as under:-
"It is alleged by the complainant that the alleged accused no.1 has made lewd comments, obscene gesture and has evil eyes on her. It is alleged that on 21.01.2022, the husband of the complainant asked accused no.1 not to indulge in these kinds of illicit activities, but accused no.1 did not pay heed to the request of husband of the complainant. It is alleged that the accused persons have caused grievous hurt to her and her husband. It is also submitted that the accused persons have hurled abuses and created ruckus outside the house of the complainant. Further, she made a call to 100 for police assistance. The complainant approached to the Police station with written complainant on 21.01.2022 for registration of FIR, but no action has been initiated against the accused persons. Deputed police officer SI Kabul Singh advised the accused no.1 to not to indulge in the these kind of activities. SI Kabul Singh also warned that he will take strict action. However, no action was taken by the police against the accused persons. It is further alleged that the accused no.1 has caused damage to the motorcycle of husband of the complainant. Time again and again, accused persons have used abusive language towards the complainant in front her family members. It is alleged that the accused persons are taking resort to all the activities to annoy and to cause hurt to the complainant including threats. It is alleged that the complainant made another complaint with PS Fatehpur Beri on 25.02.2023, but no action was taken against the accused. Thus, present application under section 156(3) Cr.P.C is filled before this Court seeking directions to Digitally signed by PURSHOTTAM concerned SHO to register the FIR."
PURSHOTTAM PATHAK PATHAK Date:
2024.11.29 16:35:05 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 2 of 10
3. The complainant lodged a complaint with SHO Fatehpur Beri Police Station and DCP (South) Hauz Khas on 12.03.2023, but no action was taken. Hence, the complainant moved an application u/s 156(3) Cr.P.C. before the Ld. MM.
4. After perusing the record, the status report and relying upon the judgments titled as M/s. Skipper Beverages Pvt. Ltd. v State, 2001(2)JCC (Delhi) 671 of Hon'ble High Court of Delhi, Ld. MM dismissed the application moved under Section 156(3) Cr.P.C. by making following relevant observation:-
"After going through the complaint and hearing the arguments, the complainant has filed one USB-Drive, which reflects that he is in the possession of the complete evidence. The conduct of the complainant is also very apparent in one of the videos available on record, which reflects that the complainant is trying to instigate other alleged accused persons. Thus, it is seen that the entire evidence is either in possession of the complainant or the complainant can get the same summoned through the process of this Court and the assistance of the police agency is not required in the present case. Besides, if after examination of the complainant, any police assistance is required, the Court is within its power to direct investigation u/s 202 Cr.P.C.
Considering the facts and circumstances, there is no ground for this court to exercise jurisdiction u/s 156(3) Cr. P.C. Hence, the prayer u/sec. 156(3) Cr.P.C. made by the complainants is hereby declined."
5. Being aggrieved by the order dated 01.03.2024 revisionist has preferred this revision petition on following grounds:-
i. that the impugned order passed by the Ld. Trial Court is bad in law because it has been passed in a PURSHOTTAM PATHAK mechanical manner, with a closed mind, with per-Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.29 16:35:08 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 3 of 10
determined notions, without considering the submissions made on behalf of the revisionist and also the judicial pronouncement applicable.
ii. Ld. Trial Court failed to appreciate that the complaint of the revisionist disclosed commission of various cognizable offences and thus the police official were mandated to register the FIR.
iii. that Ld. MM by not directing for registration of FIR has deprived the revisionist of his right to get the matter investigated in accordance with law.
iv. that Ld. MM has failed to appreciate that the registration of FIR by the police was mandatory under Section 154 Cr.P.C. and the credibility, reliability and genuineness of the information are to be verified after registration of the FIR and not before.
v. that Ld. MM has opined that the document relied upon by the revisionist reflect that the entire evidence lies within the possession of the revisionist but such an observation is completely contrary to the facts and circumstances of the case.
vi. that the Ld. MM has failed to go through the application of the revisionist under Section 156 (3) Cr.P.C., wherein specific circumstances were narrated, which warranted the order of registration of FIR. PURSHOTTAM PATHAK vii. that the Ld. MM has failed to appreciate that the Digitally signed by PURSHOTTAM PATHAK proposed accused persons are operating with rank Date: 2024.11.29 16:35:11 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 4 of 10 impunity and the impugned order grants further immunity to them, allowing them to continue with their illegal and unlawful activities.
viii. that the police official did not investigate the matter fairly and filed the status report in the present case which is without any substance.
ix. that the impugned order is not an interlocutory order but it is a final order.
6. I have heard arguments advanced by Ld. counsels for both the parties and perused the trial court record.
7. Ld. counsel for the revisionist in addition to above grounds has argued that the impugned order passed by the Trial Court is without application of judicial mind. He submitted that the Ld. MM has failed to consider the materials available before court and has passed an order which is not in accordance with the facts pleaded. He contended that there is a need for police investigation. He contended that the Hon'ble Supreme Court of India in Lalita Kumari Vs. State of UP (2014) 2 SCC 1 held that it is mandatory to register FIR in a case disclosing commission of cognizable offence. He relied upon certain judgments in support of his contention i.e. Kuldip Singh Vs. State 54 (1994) DLT 380(DB), Laxminarayan Gupta Vs. Commissioner of Police and Ors. 130 (2006) DLT 490, Madhu Bala Vs. Suresh Kumar AIR 1997 SC 3104, Mohd. Salim Vs. State III (2010) DLT (Crl.) 338, Amit PURSHOTTAM PATHAK Digitally Khera Vs. Govt of NCT Delhi 171 (2010) DLT 607, and signed by PURSHOTTAM PATHAK Date:
2024.11.29 16:35:26 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 5 of 10 Subhkaran Luharkuka & Anr. Vs. State (Govt. of NCT of Delhi) 210 (3) JCC 1972.
8. On the other hand, Ld counsel for the respondents has contended that the Ld. MM has passed a reasoned order after due application of judicial mind. He contended that there is no illegality in the impugned order and that there is no need for any police investigation. He held reliance upon judgment i.e. M/s Skipper Beverages Pvt. Ltd. Vs. State 2002 CRI. L. J. NOC 333(Delhi).
9. It is a settled law that a direction for registration of FIR cannot be issued mechanically, without applying judicial mind to the facts and circumstances of the case.
10. Hon'ble Supreme Court of India in the case of "Priyanka Srivastava & Anr vs State Of U.P. & Ors"decided on 19 March, 2015 in Criminal Appeal No.781 of 2012 held as under:-
"29. At this stage, it is seemly to state that power U/s 156 warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Court. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same".
11. Therefore, an exercise for issuance of directions for registration of FIR is not an empty formality. It is serious exercise of judicial discretion. It must be exercised after due application of mind to the facts and circumstances of the case and interest of justice. Such direction cannot be PURSHOTTAM PATHAK issued in a casual and mechanical manner.
Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.29 16:35:31 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 6 of 1012. Such a direction can only be issued where there is prima facie material disclosing commission of a cognizable offence, warranting complex and scientific investigation for the collection of evidence.
13. In the case of Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
14. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''. PURSHOTTAM PATHAK Digitally signed by PURSHOTTAM Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 7 of 10 PATHAK Date: 2024.11.29 16:35:34 +0530
15. After going through the order of Ld. Trial Court and complaint, I find that the Ld.trial court had observed that the entire evidence is either in possession of the complainant or the complainant can get the same summoned through the process of court. Making such an observation and passing such an order was completely within the jurisdiction and power of Ld. MM.
16. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
17. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK "14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-
PATHAK Date:
2024.11.29
16:35:38
consideration of any relevant material or there is palpable +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 8 of 10 misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
18. All the facts and circumstances are within the knowledge of the complainant including identity of accused persons and documentary evidence, as well as the names and addresses of the concerned witnesses. If the revisionist want to establish her case certainly she can examine herself and if there is any necessity to summon any record or other witness she can apply to the Ld. Trial Court for the same.
19. Even otherwise, the Ld. Trial Court was very cautious and judicious because while disposing of application u/s 156(3) Cr.P.C, it allowed the revisionist to proceed with complaint u/s 200 Cr.P.C. and has clarified that complainants option of police investigation under section 202 of Cr.P.C are kept open.
20. Ld. Counsel for revisionist has relied upon the judgment of Lalita Kumari vs State of UP (2014) 2 SCC 1, to contend that FIR is mandatory if cognizable offence Digitally signed by PURSHOTTAM is found. I am however, of the view that the said judgment PURSHOTTAM PATHAK PATHAK Date:
was primarily about the duty of police U/s 154 (3) Cr.P.C 2024.11.29 16:35:43 +0530 Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 9 of 10 to be mandatory but the power given to Magistrate U/s 156 (3) Cr.P.C is discretionary in nature. Further, there is no dispute as to legal preposition laid down in the other judgments relied upon by the Ld. Counsel for the revisionist. However, the same are not applicable to the facts of the present case.
21. This Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set aside, Accordingly, the criminal revision petition filed by the revisionist is dismissed.
22. The revision petition is disposed off.
23. TCR along with copy of this judgment be sent back to Ld. Trial Court.
24. Revision petition be consigned to record room after due compliance. PURSHOTTAM Digitally signed by PURSHOTTAM PATHAK PATHAK Date: 2024.11.29 16:35:52 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 29th DAY OF NOVEMBER, 2024 SAKET COURTS: N.D (This judgment contains total 10 signed pages) Cr. Rev 194/2024 Sarita Vs. Ajay and Ors. Page 10 of 10