Delhi District Court
Kishan Lal vs Sh. Mehboob on 17 October, 2017
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSION JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO. 204173/2016
IN THE MATTER OF:
1. Kishan Lal
S/o Sh. Bhore Lal
2. Sh. Dharam Singh
S/o Sh. Bhore Lal
Both residents of
C-8, Sanwal Nagar,
New Delhi-110049 ........ Revisionists
VERSUS
1. Sh. Mehboob, Jr. Engineer
Through the Deputy Commissioner
South Delhi Municipal Corporation,
Building Department, Central Zone,
Lajpat Nagar, New Delhi-110024
2. Smt. Sugani Devi
W/o Sh. Mool Chand,
3. Sh. Mahesh Kumar
S/o Sh. Mool Chand
4. Sh. Mukesh Kumar,
S/o Sh. Mool Chand
S. No. 2 to 4 Residents of:-
C-13, Sanwal Nagar,
New Delhi-110049 ...........Respondents
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Date of arguments : 03.10.2017
Date of Order : 17.10.2017
JUDGMENT
This criminal revision has been filed by the revisionist under Section 397 of the Code of Criminal Procedure, 1973 (in short the "Code") against the order dated 17.01.2015 Metropolitan Magistrate-09, South East District, Saket Courts, New Delhi in CC No. 29/2/14 titled as "Kishan Lal v. Mehboob".
2. The revisionist-complainant has filed criminal complaint under Section 156(3) read with Section 190 of the Code against the respondents/accused persons before the learned Metropolitan Magistrate. Learned Metropolitan Magistrate has called Action Taken Report (ATR) from the concerned police station. The said ATR was filed. After hearing the submissions of learned counsel for the complainant (revisionist) and considering the material available on record and ATR, learned Metropolitan Magistrate had dismissed application under Section 156 (3) of the Code and matter was posted for pre-summoning evidence. Hence, this revision petition.
3. Learned counsel for the revisionist has submitted that the revisionist was not deliberately informed about the proceedings initiated under the provisions of the Delhi Municipal Corporation Act (DMC Act) nor the alleged demolition order had been served by the respondent no. 1 herein upon the revisionist. The respondent no. 1 who is then then junior engineer (building) in Central Zone, Municipal Corporation of Delhi has balantly flauted the several provisions of the DMC Act. The notices dated CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.2 of 10 02.08.2011 and 05.08.2011 were required to be served upon the revisionists/occupants of the building but same were not served. The revisionist is aggreived only against the first order dated 02.08.2011 and not against the second demolition order. Department proceedings were initiated against the then junior engineer Mehboob (respondent no. 1) and he was punished in the said proceedings and therefore, impugned order of learned Metropolitan Magistrate may be set aside and order of registration of FIR may be passed. She has placed reliance upon the decisions namely M/s. Skipper Bevarages Pvt. Ltd. v. State, 2001 IVAD Delhi 625 and Altamas Kabir and Markandey Katju.JJ., AIR 2009 Supreme Court 1404 in support of her arguments.
4. On the other hand, learned counsel for respondent no. 1 and learend counsel for the respondent no. 2 to 4 have opposed the revision petition stating that the demolition proceedings were carried out in execution of demolition order and demolition was carriet out as per the DMC Act. Hon'ble Delhi High Court has said to take action against unauthorised construction.
5. In M/s Skipper Beverages Pvt. Ltd.'s case (supra) and Gulab Chand Upadhyay v. State of UP & Ors., 2002 Crl.LJ 2907, it has been held that the powers under Section 156 (3) of the Code ought to be exercised judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quite serious or evidence is beyond that reach of the complainant or custodial interrogation appears to be necessary for recovery of some articles or discovery of facts and further in those cases where the allegations are not CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.3 of 10 very serious and complainant himself is in possession of evidence to prove allegations, there should be no need to pass order under Section 156 (3) of the Code.
6. In Mrs. Priyanka Srivastav & Anr. v. State of UP & Ors., Criminal Appeal no. 781 of 2012 decided on 19.03.2015, Hon'ble Supreme Court has observed that it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind and he has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order and further the learned Magistrate should take the note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It was further observed that power under Section 156(3) warrants application of judicial mind and a court of law is involved. It was also observed that it is not the police taking steps at the stage of Section 154 of the Code of Criminal Procedure and in a litigant at his own whim can not invoked the authority of the Magistrate. It was also observed that there has to be prior application under Section 154(1) and 154(3) while filing a petition under Section 156(3) and both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. It was also observed that an application under Section 156(3) be supported by an affidavit and the veracity of the complaint can also be verified by the learned Magistrate, regard being had to the nature of the allegations of the case.
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7. In Subhkaran Luharuka v. State (Govt. of NCT of Delhi) MANU/DE/1646/2010, Hon'ble Supreme Court has reproduced the judgment passed in Suresh Chand Jain v. State of Madhya Pradesh wherein it has been observed that in those cases where the allegations are not serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders under Section 156 (3) of the Code; that the discretion ought to be exercised after proper application of mind and only in those cases where the magistrate of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interests of justice demand that the police should step in to held the complainant.
8. In para no.51A of the case Subhkaran Luharuka's case (supra), the procedure to be followed while dealing with an application under Section 156(3) of the Code for the guidance of subordinate courts has 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 156(3) of the Code.
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(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 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 CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.6 of 10 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."
9. Hence, it is clear from the above judgments/authorities that if complaint discloses commission of cognizable offences and investigation is required by the police and evidence are required to be collected by the police and prior complaint under Section 154(1) and 154(3) of the Code have filed before the SHO and the DCP respectively and affidavit has been filed alongwith the complaint filed before learned trial court, the order of registration of FIR can be passed under Section 156(3) of the Code by the Magistrate.
10. The allegations of the revisionist as mentioned in the application under Section 156(3) of the Code are that the complainants had been receiving threats from accused no. 2 to 4 and property mafia to sale off their shares in the property in question (C-8, Sanwal Nagar, New Delhi). In order to further their conspiracy, accused no. 1 (Junior Engineer Building) suddently visited the property on 02.08.2011 at about 12:25 PM when the complainants were not in house and other members of their family were also away and there was lock installed on the main door of the property but accused no. 1 illegally and without any authority forcibly broke open the locks and caused damage to the roof of the upper floor of CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.7 of 10 the property. When the complainant returned to the house, they noticed that the property includig fans, furniture, mobile phone etc had been ransacked/broken and a purse containing the jewellery articles including gold chain, gold ring and cash of Rs. 4,300/- which had been kept in the purse, were stolen from the house.
11. Power under Section 156 (3) of the Code can be exercised by the learned Metropolitan Magistrate judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quiet serious or evidence is beyond that reach of the complainant or custodial interrogation appears to be necessary for recovery of articles and only in those cases where the complainant himself may not be in a position to collect and produce evidence before the court. The judgment of Lalita Kumari Vs. Govt. of U.P. and Ors. JCC 2014 (1) only deals with the duties of the police and does not direct the Magistrate to order registration of FIR under Section 156 (3) of the Code even if cognizable offence is made out from the complainant. In Priyanka Srivastava's case (supra) after considering the Lalita Kumar's case, Hon'ble Supreme Court has observed that power under Section 156 (3) of the Code warrants application of judicial mind and a court of law is involved and it is not the police taken steps at the stage of Section 154 of the Code and in a litigant at his own whim cannot invoked the authority of the Magistrate. The test under Section 156(3) of the Code is not as to whether any cognizable offence is disclosed but as to whether such cognizable offence needs to be investigated by the police as per the provision of chapter XII.
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12. In ATR filed by the Sub Inspector Mahipal Singh, Police Station Defence Colony before the learned Metropolitan Magistrate, it is mentioned that the enquiry has been conducted which revealed that on 02.08.2011 and 05.08.11 demolition programme were conducted at C-8, Sanwal Nagar, New Delhi by the team of MCD headed by Mahboob Khan JE (B) Central Zone, Lajpat Nagar, New Delhi and police assistance ware provided to them in accordance with their requisition letter No. 397/E.E(B)/Central Zone dated 29.07.2011 and vide DD no .21 B dated 02.08.2011 PS Defence Colony New Delhi ; that on 02.08.2011 after completing demolition programme SI Anand Kumar as the team in charge of local police lodged the detailed report vide DD No. 41 B dated 02.08.2011 of PS Defence Colony New Delhi ; that on 05.08.2011 same demolition programme was also again conducted and local police assistance was provided according to requisition letter no. 406/E.E(B) Central Zone dated 03.08.2011 and vide DD no .13 B dated 05.08.2011 of PS Defence Colony New Delhi, after completing the demolition programme SI Anand Kumar lodged a detailed report vide DD no. 32 B dated 05.08.2011 PS Defence Colony New Delhi ; that Demolition programme of MCD against the unauthorized construction at property No. C-8, Sanwal Nagar New Delhi, was conducted in compliance of orders of the Hon'ble High Court in Contempt Case No. 325/2011 in the case titled as Sugani Devi Vs. Vikas Anand and other ; that on basis of enquiry it is found that complainant were well known to the demolition programme 02.08.2011 and 05.08.2011 and they have called the PCR by dialing 100 number at 12.44 PM, 1.35 PM and 4.38 PM on 02.08.2011 ; that the main gate of the house was locked by the complainant knowingly ; that Smt. Urmila and her son Kunal were inside the house when demolition was CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.9 of 10 started on 02.08.2011 after broken open the lock of main gate by MCD staff ; that the demolition work was conducted by Mr. Mehboob JE (B) and other staff in their official capacity ; that demolition action conducted by MCD official was bonafide.
13. Hence, as per the Action Taken Report (ATR) , the demolition programme was conducted at property in question by the team of MCD headed by Mehboob Khan JE (B), Central Zone, Lajpat Nagar, New Delhi and police assistance were provided to them in accordance with their requistion letter dated 29.07.2011 and DD no. 21 B dated 02.08.2011 PS Defence Colony New Delhi. The demolition programme/proceedings is stated to have been carried out by the MCD officials in compliance orders of Hon'ble Delhi High Court. Order of Hon'ble Delhi High Court dated 03.03.2009 in writ petition civil 7583/2008 titled as Sugani Devi v. MCD & Ors and CONT.CAS (C) 325/2011 dated 28.03.2012 have also been placed on record.
14. Keeping in view the complaint filed by the revisionist herein and Action Taken Report filed by the police of PS Defence Colony, I am of the view that the learned Metropolitan Magistrate has rightly dismissed the application under Section 156 (3) of the Code and has rightly not passed the order for registration of the FIR. Hence, revision is dismissed.
Announced in the open court on 17.10.2017 (Sanjeev Kumar) Additional Session Judge-05, South East,Saket Courts New Delhi CR No. 204173/2016 Kishan Lal & Ors. v. Mehbood & Ors. Page No.10 of 10