Delhi District Court
Veer Sain Tomar vs State on 28 November, 2017
IN THE COURT OF SH. SANJIV JAIN:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03 (PC ACT) SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
Criminal Revision No. 42/2016 (8412/2016)
CNR No. DLST010059572016
Veer Sain Tomar
S/o Sh. Jai Pal Singh
R/o A81/4, PhaseI,
Aya Nagar, New Delhi ....... Revisionist
Vs.
1. State
(Govt. of NCT Delhi)
2. Unknown persons ...... Respondents
Date of filing of revision : 26.10.2017
Date of allocation : 27.10.2017
Arguments concluded on : 28.11.2017
Date of judgment : 28.11.2017
Revision Petition u/s 397/399 CrPC against the impugned order
dated 08.09.2016 passed by Ld.MM01, Saket Courts, New Delhi
in CC No. 72/01 titled as 'Veer Singh Tomar vs. Unknown
persons'
CR No. 42/16 (8412/2016) 28.11.2017 Page no. 1/6
ORDER
1. This revision petition u/s 397/399 Cr.PC is directed against the order dated 08.09.2016 passed by the Ld. MM01, whereby the application moved by the revisionist/complainant u/s 156(3) Cr.P.C for registration of FIR was dismissed
2. In brief, the case of the complainant is that on 29.05.2016, the complainant/revisionist, an exserviceman, received a message of facebook information code on his mobile number 9911201538 '665251 is your facebook messenger for Android confirmation code, May 29, 2016, 5.45'. He, apprehending that some unknown person knowingly and intentionally was trying to penetrate or access / create a facebook account in the name of the revisionist without his authorization, made complaint to the SHO on 31.05.2016. Again on 10.06.2016 at about 8.51 PM, he received a message from 51555 on his mobile number that 84040 is the facebook confirmation code # fb. On the same day at about 11.01 PM, his son received a message from 50350 that 398068 is facebook messenger for Android Confirmation code. On 12.06.2016, he made complaint to cyber Cell and at the Police station Fatehpur Beri. On 27.07.2016, some unknown persons sent a message through the facebook of his relative and friend from the CR No. 42/16 (8412/2016) 28.11.2017 Page no. 2/6 facebook account in the name of Monika Aggarwal created by the number 8650294030 i.e. (a) 'Amit tomar jail mai hai 3 agust.(b) V.s. Tomar's family living in jail from 3 agust 2016'. He reported the matter to police on 30.07.2016 but no action was taken. He then filed complaint case u/s 211/389/419/499/500/504/506/34 IPC r/w section 66 IT Act vide case no. 25/01/16. He alleged that some unknown elements have tried to misuse the identities of the revisionist and his family in disruptive activities to get them involved in false criminal cases and litigations. Alongwith the complaint, an application u/s 156(3) Cr.P.C was filed seeking direction to the police to investigate the matter.
3. The ld. M.M vide impugned order giving reference of the case M/s Skipper Beverages Pvt. Ltd v State, 2001 (2) JCC (Delhi) 67 and on examining the contents of the complaint as well as the application and considering the submissions made on behalf of complainant, observed that the present case does not warrant the registration of the FIR and subsequent investigation by the SHO since all the evidence required by the complainant is in the knowledge and possession of the complainant because he is well conversant with the identity of the respondents and no field investigation is required to be done by the police since all the details of the alleged offence have been diligently narrated in the complaint. It was also observed that from the CR No. 42/16 (8412/2016) 28.11.2017 Page no. 3/6 allegations made in the complaint, the ingredients of offence u/s 499/500 IPC are made out. The ld. M.M however, kept the option of police investigation u/s 202 of Cr.P.C open for consideration after examination on oath the complainant and his witnesses. The ld. M.M accordingly listed the matter for the evidence of the complainant and his witnesses u/s 200 Cr.P.C.
4. This order is assailed on the ground that the impugned order is passed without calling the status report or Action Taken Report from the police; that ld. M.M failed to appreciate that the complaint is filed against unknown persons and nature of allegations are such that he, himself, is not in a position to collect and produce evidence before the Court; that when a cognizable offence is reported and if an application is made u/s 156(3) Cr.P.C, the Court is bound to issue directions for registration of the FIR.
5. I have heard the arguments advanced by ld. Counsel Sh.
Rajesh Patoha for the revisionist and ld. Addl. PP for the State and gone through the Trial Court record as well as the impugned order.
6. Although the instant complaint is against the unknown persons as to the creation of the facebook account in the name of the complainant/revisionists but in the complaint dated 12.06.2016 given to the police, the complainant had alleged the involvement of the inlaws of his son with whom CR No. 42/16 (8412/2016) 28.11.2017 Page no. 4/6 his son has matrimonial dispute. Section 156(3) Cr.P.C provides that any officer incharge of the police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area, would have power to inquire into or try under the provisions of the Act. Any Magistrate empowered u/s 190 may order such an investigation as mentioned above. In the case of Lalita Kumari vs. State of UP, AIR 2014 SC 189, it was held that it is imperative for the police to register a FIR if a complaint is given disclosing cognizable offence. The word 'shall' used in section 154 of the Code leaves no discretion in the police officer to hold preliminary enquiry before recording FIR. However, if a complaint is filed in the Court disclosing cognizable offence, the option is given to the Court either to direct the police to register an FIR or to proceed with the complaint u/s 200 Cr.P.C. The word 'may' not 'shall' has been used in section 156(3) of the Code. It is also not necessary for the Magistrate/Court to call the Action Taken Report or the Status report before proceeding u/s 200 Cr.P.C. It was held in case Skipper Beverages Pvt. Ltd case (Supra) that in the cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders u/s 156(3) of the Code.
7. In the present case, it was rightly observed by the ld. M.M CR No. 42/16 (8412/2016) 28.11.2017 Page no. 5/6 that present case does not warrant registration of the FIR and subsequent investigation by the SHO because all the evidence required by the complainant is in the knowledge and possession of the complainant because the complainant is well conversant with the identity of the respondents and no field investigation is required. Further, the option for police investigation u/s 202 Cr.P.C is kept open for consideration.
8. For the reasons stated above, I do not find any illegality or infirmity in the impugned order. The revision petition being devoid of merit, is dismissed. Trial Court Record be sent back with the copy of this order.
9. File of revision petition be consigned to the Record Room.
Announced in the Open Court.
28.11.2017 (Sanjiv Jain) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court New Delhi CR No. 42/16 (8412/2016) 28.11.2017 Page no. 6/6