Delhi District Court
Narender Sharma vs The State on 2 September, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT) &
(CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Revision No. 04/14
In re:
Narender Sharma,
S/o Sh. Surender Sharma,
R/o A-66/67, Chanakya Place,
Part - I, 40 Ft. Road,
New Delhi.
............... Petitioner
Versus
1. The State,
(N.C.T. of Delhi),
New Delhi.
2. Joginder Kumar,
S/o Sh. Charan Dass,
R/o 189, Ground Floor,
Block-B, Type-A,
DDA Flats, Binda Pur,
New Delhi.
............... Respondents
Date of Institution : 02-08-2014
Date on which Order reserved : 01-09-2014
Date on which Order passed : 02-09-2014
ORDER
1. This order shall decide the revision petition filed by the petitioner Sh. Narender Sharma (complainant before the Ld. Trial Court) against order dated 22-05-2014 of the Ld. Trial Court vide which Crl. Rev. No. 04/14 02-09-2014 1 of 18 application u/s 156 (3) Cr.P.C. of the petitioner was dismissed.
2. The facts leading to filing of the petition are that the complainant filed a complaint against respondent No. 2, Sh. Joginder Kumar (accused before the Ld. Trial Court) u/s 200 Cr.P.C. alleging that he wanted to purchase a house property. The accused offered to sell his property bearing No. B-129 situated at Block B, Type A, DDA Flats, Bindapur, Delhi and after negotiations, the deal was finalized for a sum of Rs.16,00,000/-. He paid earnest/advance money of Rs. 5,00,000/- i.e. Rs. 1,00,000/- by way of cheque bearing No. 219716, dated 28-08-2012, drawn on HDFC Bank Ltd. and Rs. 4,00,000/- in cash to the accused. The accused executed an agreement to sell and purchase ('bayana'), dated 27-08-2012 and a receipt of the amount received. The accused also handed over physical possession of the flat to the complainant. In clause 8 of the agreement, it was mentioned that peaceful and vacant physical and unencumbered possession of the property has been handed over by the accused to the complainant. The complainant put his lock on the property. It was agreed that accused will get the property freehold at his own cost, the complainant will make the balance payment within one month from the date of the property becoming freehold and accused will execute the transfer documents/sale deed in favour of the complainant or his nominee. The accused also provided photocopies of chain of title of the property and assured that he will get the property freehold at the earliest.
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3. It was further alleged that the complainant used to visit the property occasionally and requested the accused many times to get the property freehold, to accept the balance payment and execute sale deed. However, the accused continued to linger on the matter on one pretext or the other. On 04-03-2014, when the complainant visited the property, he was shocked to see that lock of the flat was broken and some construction/renovation work was going on at the instance of the accused. He immediately rang up the police at No. 100 and lodged a written complaint which was registered vide DD No. 82-B, dated 04-03-2014. The keys of the flat are still with him. The police has neither inquired into the matter nor registered an FIR.
4. Along with the complaint, an application u/s 156 (3) Cr.P.C., seeking a direction for registration of FIR, was also filed.
5. The Ld. Trial Court issued notice to IO to file action taken report. The report was filed on 22-05-2014 and on the same day, the impugned order was passed.
6. In the report, it is stated that enquiry was made from both parties. The complainant had stated that the accused had sold the flat in question to him on 27-08-2012. On the same day, an agreement to sell was signed by both the parties. Rs. 4,00,000/- in cash and Rs. 1,00,000/- by cheque were paid by him as 'bayana'. The deal was for Crl. Rev. No. 04/14 02-09-2014 3 of 18 Rs. 16,00,000/-. Balance payment was to be made to accused at the time of giving possession. The complainant further told that possession of the above flat was given to him by Sh. Joginder Kumar on 12-02-2013. However, the balance payment was not paid on that day. On the other hand, accused Joginder Kumar had stated that he had entered into a deal with complainant Sh. Narender Sharma. Both the sides have prepared documents and signed the same. Sh. Narender Sharma had given Rs. 1,00,000/- as bayana vide a cheque but has not paid the remaining amount, that is why, he was still having the keys of the flat. On 11-02-2013, he got Sh. Gagandeep @ Raje, evicted from the said flat, as per orders of the court. In the report, it is further stated that presently the flat was locked and both the sides were making their claims to the same. The trial court record also contains a copy of eviction order, dated 12-04-2012 of the Ld. ARC, Dwarka Court, Delhi, in an eviction petition filed by Sh. Joginder Kumar against one Sh. Gagandeep @ Raje for eviction of tenant from the property bearing flat No. 129, Type A, Pocket 3, Block B, DDA Flats, Bindapur, Delhi, u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act, 1955, a copy of execution application, dated 21-05-2012 in respect of the above property and a photocopy of a receipt, dated 11-02-2013 of one Sheela Rani regarding her having received the goods taken out from House No. 129, Pocket B.
7. In its order, dated 22-05-2014, while dismissing the application u/s Crl. Rev. No. 04/14 02-09-2014 4 of 18 156 (3) Cr.P.C., the Ld. Trial Court held, "The fact of possession in the property is not necessarily required to be looked into at this stage. The parties can settle the title as well as possession only through civil suit. The allegations of the complainant are of cheating and criminal breach of trust but there is no necessity to have any investigation in this case as the evidence is within the reach of the complainant and further there is no requirement of custodial interrogation neither any discovery has to be effected. Further, the accused is known to the complainant. Hence, in view of settled law in Skippers Beverages V/s State, the application u/s 156 (3) Cr.P.C. is dismissed."
8. The case was thereafter fixed for pre-summoning evidence on 26-06-2014. On 26-06-2014, at the request of complainant, the case was adjourned for pre-summoning evidence on 02-08-2014. On 02-08-2014, the complaint was dismissed for non appearance and non prosecution as none has appeared for the complainant.
9. The revision petition has been filed on the ground that the Ld. M.M. has failed to appreciate that the police of PS Binda Pur failed to register the FIR even after written complaint lodged by the petitioner which, prima-facie, disclosed commission of cognizable offences against the accused. The police of PS Binda Pur in clear violation of the well settled principles of law submitted its report and did not give Crl. Rev. No. 04/14 02-09-2014 5 of 18 any reasons for not taking any action in the said matter till called upon by the Court. Thereafter they conducted an illegal enquiry in the matter without registration of the FIR and filed a false and frivolous report. The Ld. M.M. failed to appreciate that the alleged investigation/inquiry conducted by the local police without the registration of FIR is against the law because it is well settled principle of law that the police is bound to first register FIR on receipt of a complaint of cognizable offence and then investigate the matter. Petitioner in his complaint case as well as complaint to the local police specifically mentioned as to how the accused has cheated and dispossessed the petitioner after tress passing. SHO of PS Binda Pur was duty bound to register the FIR on the complaint dated 04-03-2014 as commission of cognizable offences were disclosed in the said complaint. The report submitted by the IO clearly reveals the connivance of the police officials. Both civil and criminal actions for the same cause of action are very much maintainable and initiation of civil proceedings does not debar the police from registering an FIR, especially when there is complaint of commission of cognizable offences.
10. Ld. counsel for the petitioner has argued that the complaint disclosed commission of cognizable offences u/s 406/420/448/506 IPC and thus, it was mandatory for the police to register FIR. The Ld. Trial Court has wrongly dismissed the application u/s 156 (3) Cr.P.C. He has relied upon Laxminarayan Gupta Vs. Commissioner of Police, 2006 Crl. Rev. No. 04/14 02-09-2014 6 of 18 (2) JCC 1058, Madhu Bala Vs. Suresh Kumar, AIR 1997 SC 3104, Abhay Nath Dubey Vs. State of Delhi & Others, 2003 (2) JCC 1096 and Lalita Kumari Vs. Govt. of U.P., 2013, AIR SCW 6386 to argue that whenever any complaint/information discloses commission of cognizable offence, police is bound to register FIR.
11. I have heard Sh. Dinesh Mudgil, Ld. counsel for the petitioner and also perused the record.
12. In Lalita Kumari Vs. Govt. of U.P. (supra), relied upon by Ld. counsel for the petitioner, a writ petition under Article 32 of the Constitution was filed by one Lalita Kumari (minor) through her father Sh. Bhola Kamat for issuance of a writ of habeas corpus for protection of his minor daughter who has been kidnapped. His grievance was that a written report was submitted by the petitioner before the officer incharge of the police station concerned, who did not take any action on the same. Thereafter, when the Superintendent of police was moved, an FIR was registered. The matter was referred to a Constitution bench seeking enunciation of law and adjudication on the point whether u/s 154 Cr.P.C., a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR. The Hon'ble Supreme Court, after discussing in detail the law on the subject held, Crl. Rev. No. 04/14 02-09-2014 7 of 18 "111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) xxxxxxxxx
iv) xxxxxxxxx
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter Crl. Rev. No. 04/14 02-09-2014 8 of 18 without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) xxxxxxxxx
viii) xxxxxxxxx"
13. From the above, it can be seen that the Hon'ble Apex Court has not precluded preliminary enquiry in all the cases. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry can be conducted to ascertain whether cognizable offence is disclosed or not. The cases in which preliminary enquiry is to be conducted will depend on the facts and circumstances of each case. Hon'ble Supreme Court has also listed certain category of cases, as illustrations, in which preliminary enquiry may be made. Certain property disputes may also fall in the category of cases requiring preliminary investigation.
14. However, in this case, vide impugned order dated 22-05-2014, the Ld. M.M. has dismissed application u/s 156 (3) Cr.P.C. moved by the complainant. Thus, it is pertinent to refer to Section 156 (3) Cr.P.C. which provides 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 Crl. Rev. No. 04/14 02-09-2014 9 of 18 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."
In sub clause (3), the use of word "may" shows that a Magistrate has to exercise discretion in deciding whether to order investigation or not.
15. The question as to how a Magistrate is to deal with application u/s 156 (3) Cr.P.C. was dealt by the Hon'ble High Court of Delhi in Skipper Beverages Pvt. Ltd. Vs. State, 92 (2001) DLT 217, wherein it was held, "10. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore, a Magistrate, must apply his mind before passing an order under Section 156(3) of the Code and must not pass Crl. Rev. No. 04/14 02-09-2014 10 of 18 these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact."
16. In Sh. Subhkaran Luharuka & Anr. Vs. State (Govt of NCT of Delhi) & Anr., (170) 2010 DLT 516, the Hon'ble High Court laid down the procedure to be followed by the Magistrates while dealing with an application u/s 156 (3) Cr.P.C. as under :-
" 52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized 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 approached by the Complainant under Section 154(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 Crl. Rev. No. 04/14 02-09-2014 11 of 18 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 there 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 Magistrate 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 the Code when an application under Section 156(3) of the Code is also filed along with 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 pre-requisites as Crl. Rev. No. 04/14 02-09-2014 12 of 18 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 must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code".
17. The law laid down in Skipper Beverages Pvt. Ltd. Vs. State (supra) and Subhkaran Luharuka & Anr. Vs. State (Govt of NCT of Delhi) & Anr. (supra) has been followed by Hon'ble High Court of Delhi in various judgments including Vikrant Kapoor Vs. The State & Ors., 187 (2012) DLT 241, Sonu Gautam @ Amit Kumar Vs. Prasad Saheb & Ors., (W.P. (Crl.) 836/2013, decided on 27-11-2013), Suresh Chand Dahiya Vs. State, 2014 (2) JCC 1451, Smt. Pankajani Swain Vs. State (NCT of Delhi) & Ors., (Crl. M.C. No. 2755/2013, decided on 20-05-2014), Mohd. Yusuf Khan Vs. State & Anr. (Crl. M.C. No. 3468/2013, decided on 26-05-2014) and B.S. Rana Vs. Govt. of NCT of Delhi & Anr. (Crl. M.C. No. 3587/2013, decided on 29-05-2014).
18. In B.S. Rana Vs. Govt. of NCT of Delhi and Anr. (supra), Hon'ble Delhi High Court held, "14. It is well settled law that when criminal complaint is filed before the Crl. Rev. No. 04/14 02-09-2014 13 of 18 Magistrate and upon perusal it is found that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.
15. The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police, an FIR should be ordered to be registered.
16. The law governing the choice to be exercised from amongst the two options has been settled by this Court in M/s. Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD (Delhi). In the said case it was held that a Magistrate must apply his mind before passing an order under Section 156(3) Cr.P.C. and must not pass these orders mechanically on the Crl. Rev. No. 04/14 02-09-2014 14 of 18 mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
17. In Aleque Padamsee vs Union of India 2007 Crl. L.J. 3729 (SC), the Hon'ble Supreme Court observed that when the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code.
18. Further, in another case Mona Panwar vs. High Court of Judicature of Allahabad through its Registrar & Ors., (2011) 3 SCC 496 it was held :
"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of the High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot Crl. Rev. No. 04/14 02-09-2014 15 of 18 and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of the Code.
23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."
19. In the instant case, the parties are known to each other. The evidence on which respondent no. 2 /complainant relies is within her knowledge and control and if need were to arise for investigation, such possibility is not precluded as the Metropolitan Magistrate entered upon the inquiry under Section 200 and 202 Cr.P.C, proviso to Section 202 Crl. Rev. No. 04/14 02-09-2014 16 of 18 Cr.P.C. Proviso to Section 202 Cr.P.C. permits such investigation to be ordered at an appropriate stage of the proceedings."
19. From the above, it is clear that a Magistrate while dealing with an application u/s 156 (3) Cr.P.C. is not supposed to act mechanically and direct registration of FIR in every case in a routine or casual manner. Before directing registration of FIR, he is to satisfy himself that there is need for investigation by the police 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 the complainant or that custodial interrogation appears to be necessary for recovery of some article or discovery of fact or that the matter is such which calls for investigation by the State agency.
20. In the instant case, the dispute between the parties has apparently arisen from an agreement to sell property. In the agreement to sell, no date is given by which the accused was to get the property in question freehold and consequently when the balance payment was to be made and sale deed was to be executed. According to the report filed by the IO, the possession of the property is in dispute. As per record, eviction order dated 12-04-2012 was passed by Ld. ARC, Dwarka Courts, Delhi in respect of the property in question against one Gagandeep @ Raje and on 11-02-2013, he is stated to have been evicted from the property/flat in question. As per eviction order, the Crl. Rev. No. 04/14 02-09-2014 17 of 18 property in question was let out to the tenant on 01-10-2010 whereas complainant is claiming possession of the property w.e.f. 27-08-2012. From the facts brought on record, it is clear that both the parties are known to each other. The entire facts relating to the above dispute are in the knowledge of the complainant. The evidence on which the complainant relies is within his reach and/or can be produced by the witnesses on being summoned by the court. No custodial interrogation appears to be necessary as neither any new fact has to be discovered nor any recovery is required to be made. Therefore, there is no requirement for any investigation by the State agency.
21. In view of the aforesaid discussion, there does not appear to be any illegality, impropriety or incorrectness in the order dated 22-05-2014 of the Ld. Trial Court. The revision petition is accordingly dismissed.
22. Copy of this order along with Trial Court Record be sent to the Ld. Trial Court.
23. Revision file be consigned to the Record Room.
Announced in the Open Court today on 2nd day of September, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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