Delhi District Court
Lt. Col. C.M. Upreti vs Sh. K.K. Bhargava on 10 February, 2016
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE,
(PC ACT) & (CBI)-03, SOUTH WEST DISTRICT, DWARKA,
NEW DELHI
Crl. Revision No. 02/15
In re:
1. Lt. Col. C.M. Upreti,
S/o Late Sh. L.N. Upreti,
R/o B-108, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
2. Sh. Sunil Sachdeva,
S/o Late Sh. D.D. Sachdeva,
R/o A-5, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
3. Sh. R.S. Rana,
S/o Late Sh. N.S. Rana,
R/o A-307, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
.............. Petitioners
Versus
1. Sh. K.K. Bhargava,
Secretary, K.K. Cooperative
Group Housing Society Ltd.,
R/o C-301, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
2. Sh. K.L. Bhargava,
Member Executive Committee,
Crl. Rev. No. 02/15 10-02-2016 1 of 20
C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
KK Cooperative Group
Housing Society Ltd.,
R/o C-103, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
3. Sh. P.R. Vishwanathan,
Ex-Treasurer Executive Committee,
KK Cooperative Group
Housing Society Ltd.,
R/o A-303, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
............. Respondents
Date of Institution : 13-03-2015
Date on which Order reserved : 30-01-2016
Date on which Order passed : 10-02-2016
ORDER
1.1 This order shall decide the revision petition filed by petitioner No. 1, Lt. Col. C.M. Upreti, petitioner No. 2, Sunil Sachdeva and petitioner No. 3, R.S. Rana (complainant No.s 1, 2 and 3 respectively, before the Ld. Trial Court) against order dated 17-12- 2014 of the Ld. Trial Court vide which application u/s 156 (3) Cr.P.C. moved by the complainants was dismissed.
2.1 The relevant facts leading to filing of the petition are that the complainants filed a complaint against respondent No. 1, Sh. K.K. Bhargava, respondent No. 2, Sh. K.L. Bhargava and respondent No. 3, Sh. P.R. Vishwanathan, (named as accused No.s 1, 2 and 3 respectively before the Ld. Trial Court), alleging, inter-alia, Crl. Rev. No. 02/15 10-02-2016 2 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
that they are residents and members of the KK Cooperative Group Housing Society Limited (hereinafter referred to as the society) located at Sector -9, Plot No. 4, Dwarka, Phase-I, New Delhi. The affairs of the society are managed by Managing Committee whose office bearers are elected by the members of the society from amongst themselves. Accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava are the founding members of the society and have been holding key positions in the committee since inception of the society. The society is also named after the initials of accused No. 1, K.K. Bhargava. These officers have been running the affairs of the society like their family business without maintaining any transparency and without following the provisions of the Delhi Cooperative Societies Act, 2003 (hereinafter referred to as DCS Act) and Rules. Accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava are habitual offenders and they have allegedly, fraudulently/illegally enrolled 60 members in the society out of a total strength of 105 members from amongst their relatives and associates because of which they enjoy the majority, win elections and continue to hold key position in the committee. It is further alleged that accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava in collusion with the Society's treasurer, accused No. 3, Sh. P. Vishwanathan made a total payment of Rs. 10,05,816/- to MCD as 'Vacant Land Tax'. A part of the payment, that is Rs. 2,00,000/- was made to the MCD on 25-02-2004 vide receipt No. 457022 while the remaining amount of Rs. 8,05,816/- was paid to MCD on 31-03-2005 vide receipt No. 805006. The accused made a total payment of Rs. 10,05,816/- to MCD under 'Vacant Land Tax' on behalf of 105 members of the society. Hence, on equal division, each member's share comes to Rs. 9,579.20. These officers, in collusion with other officers of the committee, circulated demand Crl. Rev. No. 02/15 10-02-2016 3 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
notes on 15-08-2005, 07-12-2005 and 01-07-2007 asking the members to pay a sum of Rs. 15,000/- each, under the head 'MCD Vacant Land Tax' as against Rs. 9,579.20 each, which was the actual amount paid to MCD as above. Upon receiving the above demand notes, some members under a bonafide belief, assuming the demand to be genuine paid Rs. 15,000/- in good faith, while a few other members including the complainants, being already aware of the dubious style of functioning of the accused, questioned the veracity of this demand of Rs. 15,000/- each. The accused persons did not provide any document or record to the members/complainants. Hence, a number of members, including the complainants refused to pay the amount till the time they were satisfied that the society's demand was bonafide, genuine and correctly calculated. The accused also issued a "List of Defaulter Members as on 15-02-2006" as well as another list named "Outstanding Dues of Members as on 03-05-2008", wherein they manipulated and falsely showed an amount of Rs.15,000/- under Vacand Land Tax as default amount against the members' names.
2.2 It is also stated that the accused also forged the ledger pages. During the year 2006, the above officers filed false arbitration claims of Rs. 15,000/- against the complainants as well as certain other members of the society under section 70 of the DCS Act for recovering Rs. 15,000/- from each one under 'Vacant Land Tax' as against Rs. 9,579/- which is the actual amount that was paid on behalf of each member. As the complainants did not have any knowledge or document/record in their possession with regard to the actual payment made to MCD as Vacant Land Tax and neither did the accused provide any such document (s) to the complaints, despite repeated requests made earlier, the complainants as well as Crl. Rev. No. 02/15 10-02-2016 4 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
certain other members could not defend their case properly in the arbitration proceedings whereas accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava misled the Arbitrators by concealing the true facts and manipulated the lack of information on the part of complainants with regard to the actual amount paid to MCD under Vacant Land Tax. Thus, the accused dishonestly succeeded in getting the arbitration awards passed in their favour and against complainant No. 1, Lt. Col. C.M. Upreti and complainant No. 2, Sunil Sachdeva as well as certain other members of the society, in so far as the claim for 'Vacant Land Tax' of Rs. 15,000/- is concerned. Accused No. 1, K.K. Bhargava managed to obtain a favourable award in favour of the society and against complainant No. 1, Lt. Col. C.M. Upreti. Complainant No. 1, C.M. Upreti later made the payment of Rs. 15,000/- to the society. Similarly accused No. 1, K.K. Bhargava, by concealing the facts, managed to obtain an Arbitrator's Award in favor of the Society and against complainant No. 2, Sunil Sachdeva. The accused also filed a false claim of Rs. 15,000/- under 'Vacant Land Tax' clubbed with certain other claims, against complainant No. 3 u/s 70 of DCS Act, 2003 but could not succeed this time in misleading the Arbitratoir as Sh. J.S. Rawat, Arbitrator not only summarily dismissed the society's claim but also raised serious questions about the genuineness of society's accounts.
2.3 It is also stated that the accused then approached another Arbitrator Sh. U.R. Kapoor and filed false claim of Rs. 15,000/- against complainant No. 3, R.S. Rana under 'Vacant Land Tax'. As in other cases, the accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava also tried to mislead Sh. U.R. Kapoor so as to obtain an order in their favour and against complainant No. Crl. Rev. No. 02/15 10-02-2016 5 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
3, R.S. Rana but could not succeed as the Arbitrator, Sh. U.R. Kapoor unequivocally rejected the society's claim, falsely filed by the accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava against complainant No. 3, R.S. Rana. In spite of the order passed against the society and in favor of complainant No. 3, the accused still collected Rs. 15,000/- from Sh. R.K. Sikka, from whom complainant No. 3, R.S. Rana had purchased the flat, as Sh. Sikka was not aware of the award passed in favour of Sh.
Sikka/complainant No. 3, Sh. R.S. Rana and against the society. The accused deliberately appointed an Accountant who did not possess the requisite qualifications as prescribed vide Notification No. F.36/DSCT/95/ 807/832 dated 30-11-95 issued by the RCS. It was through RTI response from the MCD dated 09-08-2011 that the complainants came to know that the officers had actually made a total payment of Rs. 10,05,816/- to MCD. In this manner the accused, on behalf of the 105 members, made a payment of Rs. 10,05,816/- only to MCD, which when divided equally among members works out to Rs. 9,579.20 per member and not Rs. 15,000/- as had been falsely demanded and claimed from members.
2.4 It is further alleged that armed with the information under RTI Act, received from the MCD, the complainants approached the RCS and filed a petition for seeking sanction from the RCS u/s 121 of DCS Act to prosecute the above named officers for cheating, breach of trust, forgery, falsification of records, misleading various courts, misappropriating the society funds and committing various other offences under IPC as well as under section 118 (5) and 118 (6) of the DCS Act, 2003. The RCS directed as under : -
"Prosecution sanction is considered only post investigation after the charge sheet is finalized by the investigating agency. It is a prelude Crl. Rev. No. 02/15 10-02-2016 6 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
to submitting the charge sheet before a competent court. A private individual cannot ask for prosecution sanction since his remedy lies in lodging FIR before police for appropriate action".
The complainants then approached Dwarka (South) Police Station, and filed a joint complaint before the SHO on 07-01- 2014 to register FIR in this case. On 10-01-2014, a copy each of the complaint was also submitted to the ACP and DCP. The complainants later approached the Dwarka (South) PS but no action was taken and the FIR was not registered by the SHO, following which the complainants sent an email to the Special Commissioner of Police on 22-02-2014, deputed by the Delhi Police to hear grievances pertaining to non-registration of FIRs, and narrated the indifference of the concerned PS in registering the FIR but the complainants did not receive any response from the Special Commissioner. Hence, they sent another email on 27-02-2014 which was also not responded. On 07-03-2014, the complainants also sent a reminder to the DCP and email reminder to DCP and Commissioner of Police on 14-03-2014. Another reminder was sent to Joint Commissioner of Police but no FIR was registered. Later, the complainants were called by one SI Rakesh Kumar of Dwarka (South) Police Station. On 18-04-2014, the complainants submitted a supplementary representation. Yet another email was sent to the Commissioner of Police on 29-04-2014. On 01-06-2014, IO called the complainants and accused to Dwarka (South) Police Station. A detailed complaint was also made to the Hon'ble Lt. Governor of Delhi vide e-mail on 25-06-2014 followed by reminder on 02-07- 2014. However, till date, no FIR has been registered.
2.5 Along with the complaint, an application u/s 156 (3) Cr.P.C. seeking a direction for registration of FIR was also filed. The Crl. Rev. No. 02/15 10-02-2016 7 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
Ld. Trial Court called for the action taken report from the concerned police station. The action taken report was filed on 26-11-2014. In the report, it was, inter-alia, concluded that complainants Sh. Sunil Sachdeva and Sh. R.S. Rana had not given any money to the society in the name of MCD vacant land tax. Only complainant Lt. Col. C.M. Upreti has in compliance of the order given Rs. 37,000/- as MCD vacant land tax and lease money. If he is not satisfied with the aforesaid, he can appeal to the competent authority.
2.6 In the impugned order dated 17-12-2014, while dismissing the application u/s 156 (3) Cr.P.C., the Ld. Trial Court held, "In the opinion of this Court also, the matter is a financial dispute of a civil nature. The complainant has the appropriate remedy to approach a civil court for rendition of accounts or to challenge the order passed by the Arbitrator. Even otherwise, the police investigation is not required in the present case. In reference to the facts of the case, case titled as "M/s Skipper Beverages Pvt. Ltd. Vs. State' 2001 IV AD (Delhi) 625 can be relied upon. The complainant can lead evidence on his own. In case it is required, the Court shall conduct an enquiry u/s 202 CrPC.
In view of the same, the application is dismissed. However, in view of the allegations, I takes cognizance on the complaint under Section 200 CrPC. In view of the same, put up for PSE for 18.02.2015."
2.7 Thereafter, pre-summoning evidence has been recorded and the matter is now at the stage of arguments on summoning.
3.1 The impugned order has been assailed, inter-alia, on the grounds that while passing the impugned order, the Ld. Magistrate has incorrectly relied upon the status report filed by the Investigating Officer which is full of defects, infirmities, misconstrued and irrelevant facts. It is stated that the Ld. M.M. has Crl. Rev. No. 02/15 10-02-2016 8 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
wrongly assumed that the complaint is regarding the illegal enrollment of members, whereas it is about the irregularities and offences committed by the accused under section 118 (5) and 118 (6) of the DCS Act, read with various sections of the IPC with regard to the criminal breach of trust, cheating, falsification and misappropriation of amounts collected by the accused in the name of 'Vacant Land Tax' in the Society, of which the complainants are the members and flat-owners while the accused are the office bearers and custodian of Society's funds. The Ld. M.M. has wrongly stated in para 2 of the impugned order that "the complainant made a complaint in this regard to the Registrar of Cooperative Societies who directed the registration of FIR against the accused persons vide order dated 24-07-2007 but the FIR was not registered", which is not even the subject matter of the complaints filed by the complainants. It is further stated that the matter is not a financial dispute of a civil nature but a criminal matter involving cognizable offences committed by the accused persons. The accused have falsified records with the common intention of cheating and committed criminal breach of trust within the meaning of Section 118 of the DCS Act. Further, section 121 (3) of the DCS Act lays down that every offence committed under section 118, for the purposes of Cr.P.C., shall be deemed to be a cognizable offence. The Registrar of Co-operative Societies has directed the complainants to file an FIR as mandated under section 121 (2) of the DCS Act. Section 122 (1) of the DCS Act lays a strong presumption of commission of offences by the officers of the co- operative Society especially with regard to section 122 (1) (c), 122 (1) (d) and 122 (1) (e) of the DCS Act read with section 118 (5) and 118 (6) which sections are also the subject matter of the plaint along with various sections of IPC, under which the accused have Crl. Rev. No. 02/15 10-02-2016 9 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
committed the offences.
3.2 It is also stated that the Ld. M.M. has wrongly relied on the case M/s Skipper Beverages Pvt. Ltd Vs. State (supra) in support of her Order and totally ignored the guidelines with regard to registering the FIR, provided by the five-judges bench of the Honorable Supreme Court in Lalita Kumari Vs. Government of U.P., AIR 2014 (SC) 187. The Ld. M.M. has wrongly formed her opinion by relying upon the unsubstantiated statements of the accused recorded by the Investigating Officer in his own handwriting without even verifying and vetting the same against the allegations and in the light of the documentary evidence provided with the plaint by the complainants. The Ld. M.M. also ignored that the IO did not even record the statement of the third accused named in the plaint and also failed to record the statements of the three complainants/key witnesses supporting the plaint. Hence, the impugned order passed by the Ld. M.M. suffers from various infirmities and lacks correctness, legality and propriety. The accused have been the office bearers in the society holding one or the other key positions since inception by virtue of which they are in possession and control of all the vital records and books of accounts containing vital information. Hence, it was imperative for the IO to take custody of the books of accounts as evidence for verifying the allegations and true facts whereas, on the contrary, the IO simply noted down the statements of the accused as narrated/tutored to him by the accused without even applying slightest of his mind and making efforts to find out the truth or to collect any additional evidence.
4.1 Dr. K.S. Bhati, Ld. Counsel for the petitioners has Crl. Rev. No. 02/15 10-02-2016 10 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
generally argued on the same lines as the petition. He argued that the accused persons had cheated the members of the society by collecting excessive amount i.e. Rs. 15,000/- from each member in the name of MCD Vacant Land Tax whereas, each member was required to pay only Rs. 9,579.20. He submitted that police investigation is required in this case to seize the documents, to find source of income of the accused and their assets/property which are disproportionate to their known sources of income, etc. Ld. Counsel has relied upon Lalita Kumari Vs. Government of U.P. (supra).
5.1 Sh. Ashok Chaitanya, Ld. Counsel for the respondents has submitted that the complaint by the petitioners is a counter blast to the action taken by the respondents for recovery of society's dues outstanding against the petitioners. He argued that the petitioners have themselves filed a complaint u/s 200 Cr.P.C., requesting the Ld. Trial Court to take cognizance of the offences and an application u/s 156 (3) Cr.P.C. seeking a direction for registration of FIR. The Ld. Trial Court had thus, to proceed either u/s 200 Cr.P.C. or direct registration of FIR. He further submitted that Ld. Trial Court after consideration of all the material has decided to proceed u/s 200 Cr.P.C. in which case the application u/s 156 (3) Cr.P.C. had to be dismissed. He further contended that the allegations are mainly regarding mismanagement of the society. Every year, audit of the society's accounts is conducted and in case of any grievance with regard to the management of the society, necessary remedies are available to the petitioners under DCS Act. He also argued that u/s 139 of the DCS Act, petitioners have a right to access the record and they are in fact in possession of all the relevant documents, which they have also filed before the Ld. Trial Court as well as in this Court. Ld. Counsel also contended that on account of timely Crl. Rev. No. 02/15 10-02-2016 11 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
payment of vacant land tax, MCD has given rebate and, thus, the excess amount was refunded to all the members of the society. He submitted that the resolutions of general body of the society, according to which actions were taken by accused persons had not been challenged by the petitioners. Ld. Counsel has relied upon Manohar Singh and Anr. Vs. State and Others, (Crl. M.C. No. 1952/2009 decided by Hon'ble High Court of Delhi on 10-04- 2013), Ramesh Bhateja Vs. State and Others, (Crl. M.C. No. 147/2014 decided by Hon'ble High Court of Delhi on 13-01- 2014) and Gopal Krishan Dua Vs. State and Anr. (Crl. M.C. No. 1822/2010 decided by Hon'ble Supreme Court of India on 28-05-2014).
6.1 I have heard Dr. K.S. Bhati, Ld. Counsel for the petitioners and Sh. Ashok Chaitanya, Ld. Counsel for respondents and have also perused the record.
7.1 In this case, the crux of allegations levelled by the complainants is that the respondents have cheated and misappropriated a substantial amount out of funds collected by them from the members of the society for the purpose of payment of MCD Vacant Land Tax.
8.1 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 Crl. Rev. No. 02/15 10-02-2016 12 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
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, "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 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"
Crl. Rev. No. 02/15 10-02-2016 13 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors. 8.2 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 financial disputes may also fall in the category of cases requiring preliminary investigation.
8.3 However, in this case, vide impugned order dated 17- 12-2014, the Ld. M.M. has dismissed application u/s 156 (3) Cr.P.C. moved by the complainants. 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 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.
8.4 The question as to how a Magistrate is to deal with an application u/s 156 (3) Cr.P.C. was dealt by the Hon'ble High Court of Crl. Rev. No. 02/15 10-02-2016 14 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
Delhi in Skipper Beverages Pvt. Ltd. Vs. State (supra), 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 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."
8.5 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 by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about Crl. Rev. No. 02/15 10-02-2016 15 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
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 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".
8.6 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, Crl. Rev. No. 02/15 10-02-2016 16 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
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).
8.7 In B.S. Rana Vs. Govt. of NCT of Delhi and Anr.
(supra), Hon'ble High Court of Delhi held, "14. It is well settled law that when criminal complaint is filed before the 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 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 Crl. Rev. No. 02/15 10-02-2016 17 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
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 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 Crl. Rev. No. 02/15 10-02-2016 18 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
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 Cr.P.C. permits such investigation to be ordered at an appropriate stage of the proceedings."
8.8 In Anil Sood Vs. The State and Another (Crl. M.C. No. 2240/2014 decided by Hon'ble High Court of Delhi on 09- 05-2014), it was observed, "9. In another case Gulab Chand Upadhyay vs. State (2002) Crl.L.J. 2907, it was held that the use of the word 'may' in Section 156 (3) Cr.P.C. clearly indicates that the Magistrate has the discretion to refuse registration of FIR."
9.1 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.
10.1 In the instant case, the allegations are with respect to misappropriation of a substantial amount out of funds collected by accused persons from the members of the society for the purpose of payment of MCD Vacant Land Tax. There does not appear to be any relevant material/documents which is beyond the reach of the petitioners or which can not be produced by witnesses on being summoned by the court or which is required to be recovered by the police. The evidence on which the petitioners rely is within their Crl. Rev. No. 02/15 10-02-2016 19 of 20 C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.
knowledge and/or can be summoned by the court. Petitioners have already led pre-summoning evidence. If need were to arise for investigation by police, such possibility is not precluded, as proviso to section 202 Cr.P.C. enables the court to order such investigation. The Ld. Trial Court in its order has also observed that in case it is required the said court shall conduct an inquiry u/s 202 Cr.P.C.
11.1 In view of the aforesaid discussion, there does not appear to be any illegality, impropriety or incorrectness in the order dated 17-12-2014 of the Ld. Trial Court. The revision petition is accordingly dismissed.
12.1 Copy of this order along with Trial Court Record be sent to the Ld. Trial Court.
13.1 Revision file be consigned to the Record Room.
Announced in the Open Court today on 10th February, 2016.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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C.M. Upreti & Ors. Vs. K.K. Bhargava & Ors.