Delhi District Court
Gurjeet Singh vs The State on 5 June, 2015
IN THE COURT OF SH. SANJAY BANSAL,
ADDITIONAL SESSIONS JUDGE-03 (EAST),
KARKARDOOMA COURTS, SHAHDARA, DELHI.
Criminal Revision No. 18/15
Unique Case ID No.: 02402R0090872015
1. Gurjeet Singh
S/o Sh. Bhagat Singh
2. Damanpreet Singh
S/o Sh. Bhagat Singh
3. Smt. Gurcharan Kaur
W/o Sh. Bhagat Singh
All R/o 252, Govind Khand,
Vishwakarma Nagar, Delhi .........Petitioners.
Vs.
1. The State
2. Smt. Tajinder Kaur
D/o Sh. Jasbir Singh
R/o 99, Pratap Khand,
Vishwakarma Nagar,
Delhi ........Respondents.
CC No.: 22/01/13
PS: Gazipur
U/s. 156(3) CrPC.
Date of Institution: 17.03.2015
Order Reserved on: 01.06.2015
Date of Order: 05.06.2015
ORDER:
1. Feeling aggrieved of order dt. 04.03.2015 passed by learned MM-03, East in CC No.22/01/13, the petitioners have filed this revision petition. By the said order, learned MM directed SHO PS Gazipur to register the FIR under relevant provisions of law and further directed him to investigate the case. Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 1 of 7
2. The respondent no.2 had filed a complaint case u/s 200 CrPC against the petitioners alleging offence punishable u/s 406/498-A/323/506/34 IPC and Sec. 3 & 4 of Dowry Prohibition Act. Respondent no.2 had levelled various allegations against the petitioners. She had also filed an application u/s 156 (3) CrPC. Respondent no.2/complainant had mentioned name of the PS as 'CAW Cell Gazipur'. Learned MM had called for status report. Reports were submitted by SHO PS Gazipur as well as CAW Cell East. Vide the impugned order, learned MM ordered for registration of FIR.
3. I have heard Sh. Sanjay Gupta alongwith Sh. S. K. Seth, learned counsels for petitioners, Sh. Sanjay Kumar, learned Addl. PP for state/respondent no.1 and Sh. Kumar Dutta, learned counsel for respondent no.
2. I have gone through the trial court record and reply of respondent no.2 as well.
4. Learned counsel for the petitioners argued that the impugned order is not sustainable as it is an illegal order passed without jurisdiction. He further submitted that learned MM ignored all the principles of law which govern the field. He submitted that the order has been passed without application of mind. He relied upon Omprakash & Ors. v. State & Anr. reported as 2012 (2) LRC 218 (Del) and an unreported judgment of Hon'ble Supreme Court in Priyanka Srivastava & Anr. v. State of UP & Ors. passed in Criminal Appeal No. 781/2012 dated 19.03.2015.
5. On the other hand learned counsel for respondent no. 2 while supporting the impugned order submitted that order is valid. He submitted that there was need for investigation by the police as it was not possible for Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 2 of 7 complainant herself to collect the evidence. Regarding jurisdiction, he submitted that learned MM could deal the application u/s. 156(3) CrPC even if she was not dealing with the cases of that particular police station. He relied upon AIR 1999 SC 3499 titled "Trisuns Chemical Industry v. Rajesh Aggarwal & Ors."
6. Learned Addl. PP on behalf of respondent no. 1 submitted that there is another aspect. He pointed out that if the impugned order is set aside, it will have the effect of quashing of the FIR and this court does not possess that power. He submitted that petitioners should have approached the Hon'ble High Court of Delhi.
7. I have considered the submissions.
8. It was held in Om Prakash's case (supra) that a reasoned order has to be passed by the MM while directing registration of FIR u/s 156 (3) CrPC. Further in Priyanka Srivastava's case (supra), Hon'ble Supreme Court has laid down various guidelines which are to be followed while dealing with matters like the present one.
9. In the case of Lalita Kumari Vs. Govt. of UP & Ors. (2014) 2 SCC 1, Hon'ble Supreme Court had discussed the law in depth. In the case of Subhkaran Luharuka Vs. State, (170) 2010 DLT 516, Hon'ble Delhi High Court had also laid down the guidelines for the court of Magistrates for dealing with applications u/s 156(3) CrPC. The guidelines run as follows:
"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 Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 3 of 7 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 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 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 Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 4 of 7 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.
10. It was required of the learned MM who has dealt with the application u/s 156 (3) CrPC to firstly ascertain as to whether the complainant had approached the police station within whose jurisdiction the alleged offences had taken place. It was also required to be ascertained that whether she herself had jurisdiction to deal with the matter or not. In the present case after passing of the impugned order, a zero FIR was registered at PS Gazipur. This itself is reflective of the fact that the alleged offences were not committed within the jurisdiction of PS Gazipur. There is a status report also on record given by SHO PS Gazipur in which it was clearly spelt out that the matter fell within the jurisdiction of PS Vivek Vihar. Despite this, learned MM did not discuss this issue in the impugned order at all and gave the directions for registration of FIR. Admittedly no prior complaint was made at PS Gazipur or PS Vivek Vihar. Thus there was no compliance of S. 154(1) CrPC or S. 154(3) CrPC. The direction of learned MM runs counter to the guidelines laid down by Hon'ble Delhi High Court.
11. Perusal of the impugned order also shows that learned MM did not discuss the allegations and there is complete non-application of mind. There was adverse status report from CAW Cell and they had conveyed that there was no case for registering FIR. Learned MM has not discussed anything about this adverse report. It has been held in Priyanka's case as well as Lalita Kumari's Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 5 of 7 case (supra) that preliminary inquiry can be conducted before registration of FIR in matrimonial matters. Thus learned could not have brushed aside the said report without any assigning any reason.
12. It is also apparent that learned MM could not have proceeded with the complaint u/s 200 CrPC as matter pertained to PS Vivek Vihar whereas learned MM was dealing with the cases of PS Gazipur. It is also to be noted that both the police stations fall in different districts/sessions divisions. Learned MM who is posted in East District could not have dealt with matter of Shahdara District.
13. The impugned order is unsustainable.
14. As far as contentions raised by learned Addl. PP are concerned, I may state that if an order is illegal, it cannot be sustained merely on the ground that it has been given effect to. The order suffers from errors which go to the root of the matter and thus cannot be sustained at all. Further in the judgment of Mahohar Singh & Ors. v. State passed in CRL. M.C. 1952/2009 and dated 10.04.2013, Hon'ble Delhi High Court has held a criminal revision petition as maintainable against orders u/s 156 (3) CrPC. Therefore, the fact that an FIR has been registered subsequent to order u/s 156 (3) CrPC is not at all relevant for deciding a criminal revision petition against the said order.
15. The judgment cited by learned counsel for the respondent no. 2 is not of any help since the aspect of giving directions u/s. 156(3) CrPC was not discussed in that decision.
Crl. Revision No. 18/15 Gurjeet Singh & Ors. v. State & Anr. Page 6 of 7
16. The impugned order is hereby set aside. Revision petition stands allowed.
17. Copy of this order be sent to the trial court alongwith TCR. Copy of this order be also sent to SHO's of PS Gazipur and PS Vivek Vihar.
18. Revision file be consigned to Record Room.
Announced in Open Court today on 05.06.2015 (SANJAY BANSAL) ASJ-03 (East) KKD Courts, Delhi.
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