Delhi District Court
-: 1 :- Ritu Puri vs . State & Another on 7 June, 2017
-: 1 :- Ritu Puri Vs. State & another
CR No: 440414/2016
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI)-1
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :-
CR No. : 440414/2016
Ritu Puri
W/o Mr. Suresh Puri
Principal, Govt. Senior Secondary School
Site II, Sector-6, Dwarka, Delhi- 110075.
......... Revisionist
VERSUS
1. State ( Government NCT of Delhi)
Through the SHO, PS Dwarka
2. Rita Devi
W/o Sh. Subhash
R/o RZ/P9A, Khasra No. 366,
Dayal Park, West Sagarpur, New Delhi.
.........Respondents
CR No. 440414/2016
Date of Institution 14.07.2016
Reserved for orders on 27.05.2017
Judgment announced on 07.06.2017
CR No: 440414/2016 Page No.1 of 41 DOO : 07.06.2017
-: 2 :- Ritu Puri Vs. State & another
CR No: 440414/2016
JUDGMENT
1. This revision petition under section 397 Cr.PC is directed against the order dated 28.06.2016 passed by Ld. MM-04, Dwarka Courts, New Delhi. Briefly stated relevant facts for disposal of the revision petition are as under :-
2. The complainant (respondent no. 2 herein) had filed a complaint under section 200 Cr.PC r/w Section 156(3) Cr.P.C. thereby stating that the complainant belongs to schedule caste community and is working as sweeper in Government School, Sector-6, Dwarka for last about 11 years. In the month of July 2014, accused (revisionist herein) joined as Principal in the Government School, Sector-6, Dwarka, Delhi and from the day of her joining she forced the complainant (respondent no. 2 herein) to leave the job as she was willing to keep some other person in place of complainant and on refusal by complainant(respondent no. 2 herein) to leave the job, the accused (revisionist herein) started maltreating and abusing the complainant and also threatened the complainant of terminating her services. The complainant (respondent no. 2) made a complaint to Education Officer on 04.03.2015 and she made a CR No: 440414/2016 Page No.2 of 41 DOO : 07.06.2017
-: 3 :- Ritu Puri Vs. State & another CR No: 440414/2016 complaint to Chief Minister of Delhi on 18.05.2015 on which accused( revisionist herein) got annoyed with the complainant. It is stated that on 14.09.2015 the complainant reached the school at about 7.30 AM and started her work and at about 8.30 AM, complainant was called by the accused (revisionist herein) to her room and accused told the complainant that her services have been terminated and the complainant was told to leave the school premises but the complainant asked for written order of termination as she was working under the Department of Education, Delhi Government. On being asked for written order of termination, the accused slapped her and abused the complainant with caste related words "Bhangan Chamaari, Teri Itni Aukaat Ki Tu Mujhse Zubaan Ladayegi" . Thereafter accused called the security guards of the school and the complainant was forcefully thrown out of the school premises. After few days, the complainant made a complaint at Police Station of Sector-9, Dwarka but the same was not accepted and she was advised to approach the office of ACP, Dwarka and thereafter complainant made a complaint in the office of ACP, Dwarka on 24.09.2015 but no action was taken. In her complaint, the complainant has further stated that thereafter complainant made a complaint to the office of DCP( SW), Delhi on 26.09.2015 but no action was taken. It is stated CR No: 440414/2016 Page No.3 of 41 DOO : 07.06.2017
-: 4 :- Ritu Puri Vs. State & another CR No: 440414/2016 in the complaint by the complainant that the accused has committed cognizable offences defined under various sections of Indian Penal Code and The Scheduled Castes and the Scheduled Tribes ( Prevision of Atrocities Act, 1989).
3. By way of her complaint under Section 200 Cr.P.C.
r/w 156(3) Cr.P.C., the complainant prayed that officer incharge of police station Dwarka be directed to register FIR and to investigate the matter, to take cognizance against the accused persons and to summon, try and punish the accused for the commission of above stated cognizable offences.
4. The complaint under Section 200 Cr.P.C r/w 156(3) Cr.P.C. filed by the complainant was taken by Ld. MM on 08.10.2015 and Ld. MM was pleased to direct for calling of action taken report from the concerned police station for 03.11.2015. On 03.11.2015 action taken report was filed before Ld. MM and IO sought time to complete the enquiry and complete status report was directed to be filed on 04.12.2015 and thereafter action taken report was filed on 04.12.2015 and the matter was fixed for arguments. On 28.06.2016 Ld. MM-04, Dwarka Courts, New Delhi was pleased to pass the following order :
28.06.2016 Present: Sh. Hemant Verma, Ld. Counsel for complainant.
CR No: 440414/2016 Page No.4 of 41 DOO : 07.06.2017
-: 5 :- Ritu Puri Vs. State & another CR No: 440414/2016 Matter is fixed for consideration regarding application u/s 156(3) Cr.P.c., moved on behalf of complainant against the alleged accused regarding the allegations of using derogatory/caste related words against her by the alleged accused along with beating. Action taken report was called from concerned Police Station in which it is submitted by Inspector Adith Lily that during enquiry, the allegations levelled by the complainant were not substantiated.
I have gone through the contents of the complaint as well as documents attached with the complaint. The allegations levelled by the complainant are clearly disclosing the ingredients of cognizable offence and court finds that complete and detailed investigation by State Agency is necessary to dig out the truth. Hence, SHO concerned is directed to register an FIR under relevant provisions of law and to file a report regarding investigation on 22.07.2016.
A copy of the order be sent to the SHO concerned for compliance.
5. Feeling aggrieved by the impugned order dated 28.06.2016, the revisionist has filed the above noted revision petition stating therein that the complaint filed by the complainant (respondent no. 2 herein) is a gross abuse of the process of law and the allegations made therein are motivated, false, baseless, concocted, CR No: 440414/2016 Page No.5 of 41 DOO : 07.06.2017
-: 6 :- Ritu Puri Vs. State & another CR No: 440414/2016 malafide, unjustified and instituted with sole intention of wrecking vengeance upon the revisionist for her perceived role in a routine transfer or rotation of the respondent no. 2 to another school. Revisionist has stated that the complaint does not disclose the commission of any cognizable offence by the revisionist and the same is also written by the police in the action taken report submitted before Ld. MM.
6. In the revision petition, the revisionist has stated that she had joined the Government Senior Secondary School, Sector-6, Dwarka as Principal in July 2014 and prior to that she was working as Vice Principal and PGT in Kendriya Vidyalaya Sangathan since 1993. It is stated that revisionist has an impeccable record and an experience of approximately 23 years as an educationist and there has never been any allegation relating to her conduct or otherwise against the revisionist. It is stated that revisionist has certificates of excellence issued by various authorities.
7. In the revision petition, the revisionist has stated that when she joined the school, the sanitation work was performed by the workers supplied by an outsourcing agency i.e. M/s Sympoh Marketing Pvt. Ltd and complainant( respondent no. 2 herein) was a contractually employed sanitation worker supplied by CR No: 440414/2016 Page No.6 of 41 DOO : 07.06.2017
-: 7 :- Ritu Puri Vs. State & another CR No: 440414/2016 the said agency and she was not the government employee . It is further stated that on 17.01.2014 certain guidelines were issued by the Department of Eduction, Delhi Government whereby government schools were allowed to make stopgap arrangements by hiring daily waged workers and approvals for the hiring of said daily waged workers were granted vide approval dated 20.08.2014 and on account of said arrangement, the respondent no. 2 along with other sanitation workers employed previously, were able to continue with their employment after signing and accepting the terms and conditions which clearly laid down that their employment was temporary and the same is liable to be terminated without issuance of any notice or assigning any reasons.
8. In the revision petition, the revisionist has further stated that on 03.03.2015 CBSE Board examinations were being conducted in the school and the respondent no. 2 got into a quarrel with another sanitation worker namely Smt. Laxmi in which both of them screamed and shouted very loudly and used foul language against each other, creating a lot of noise and disturbance at the time when examination was going on and despite intervention by the school authorities, the respondent no. 2 and Smt. Laxmi continued to shout and misbehave, following which they were asked to leave the school premises and not to report for further duty, so as CR No: 440414/2016 Page No.7 of 41 DOO : 07.06.2017
-: 8 :- Ritu Puri Vs. State & another CR No: 440414/2016 to maintain peace and order in the school . Thereafter respondent no. 2 approached the MLA and the said MLA wrote the letter dated 08.03.2016 to the revisionist requesting her not to terminate the employment of respondent no. 2 and permit her to continue her employment assuring that the respondent no. 2 will be of good behaviour and satisfactory job alignment in future. It is further stated that on 10.03.2015 the respondent no. 2 tendered apology to the revisionist and assured her of good behaviour and honest performance of duties and on 13.03.2015 an apology was furnished by respondent no. 2 (complainant) to the revisionist and respondent no. 2 prayed that she be allowed to resume her duty as sanitation worker and revisionist decided to continue the employment of respondent no. 2 ( Complainant) and Smt. Laxmi. It is futher stated in the revision petition that the School Sanitation Committee had, on several occasions, complained about the efficiency as well as behaviour of respondent no. 2 and despite repeated reminders, respondent no. 2 did not improve her behaviour and performance and respondent no. 2 started threatening various school officials including the revisionist that she shall frame them in frivolous charges if she was removed from the job. It is stated that various false complaints were made by respondent no. 2 to the Dy. Directorate of Education, CR No: 440414/2016 Page No.8 of 41 DOO : 07.06.2017
-: 9 :- Ritu Puri Vs. State & another CR No: 440414/2016 MLA, Chief Minister etc. It is stated that since the sanitation conditions were not appropriate in the schools of Dwarka and constant complaint were received in MLA Office, a meeting in the MLA office with respondent no. 2 was held and a letter dated 12.09.2015 was issued by the office of MLA wherein rotation orders of all the thirteen sanitation workers pertaining to four schools in that area were issued and respondent no. 2 ( complainant) was duly aware of such decision which was communicated to all sanitation workers. It is stated that on 14.09.2015 the respondent no. 2 despite being aware of the rotation order and that she had been directed to report for duty in another school, returned to the school where revisionist was the Principal and on that day the school management committee elections were in progress and the representatives of the area MLA were also present in the school and on seeing the respondent no. 2 in the school, it was conveyed to her by the MLA representatives that she was required to report at the new school and she should go there for duty. Respondent no. 2 ( complainant) on being told so raised a hue and cry and threatened the MLA representative and the revisionist with dire consequences.
9. In the revision petition the revisionist has stated that the impugned order is illegal and contrary CR No: 440414/2016 Page No.9 of 41 DOO : 07.06.2017
-: 10 :- Ritu Puri Vs. State & another CR No: 440414/2016 to law laid down by Hon'ble Supreme Court of India. It is stated that a direction to register an FIR should not be issued mechanically or in a routine manner and application of mind by the Magistrate must be reflected in the order itself. It is stated that the complaint filed by the respondent no. 2 before the Ld. MM fails to fulfill any of the requirements of Section 3 of the SC/ST (Prevention of Atrocities) Act 1989 . It is stated that while passing impugned order dated 28.06.2016, Ld. MM ignored the ATR filed by the police and respondent no. 2 's complainant is false, malicious and fabricated. It is stated that impugned order is liable to be set aside.
10. Respondent no. 1 has filed status report through Inspector Adith Lily, PS Dwarka, South West stating therein that the complainant was working as a sweeper in Govt. Co-ed Sr. Sec School site II, Sector 6 , Dwarka and she had made a complaint and as per orders of ACP Dwarka on the complaint of complainant, enquiry was conducted to verify the facts regarding two incidences of March 2015 and 14.09.2015 as mentioned in the complaint from Govt Sr. Sec School Site II Sector 6 Dwarka, the statements of staff, teachers and security guards etc. were recorded and the facts were also enquired into from area MLA representatives Ms Madhuri Varshnay, Education Coordinator and Piyush Maurya who were also present in the school on 14.09.2015 due to CR No: 440414/2016 Page No.10 of 41 DOO : 07.06.2017
-: 11 :- Ritu Puri Vs. State & another CR No: 440414/2016 school management committee elections on that day. It is stated by respondent no. 1 that during enquiry it was found that on 03.03.2015 when CBSE exam was going on, complainant Rita Devi and other sanitation worker Laxmi had a fight between them and were making lot of noise as per the statements by teachers Tanu Yadav and Sumer Singh Dahiya and on being advised to stop fighting and stop making noise, Rita Devi and Laxmi did not listen and due to continued disturbance, Principal Ritu Puri told Rita Devi and Laxmi to leave the school. It is stated that on 04.03.2015 the complainant made a complaint to Education Officer and MLA office with a request to re-appoint her in the said school and the complainant in her complaint alleged that she has been harassed by new Principal Ritu Puri and was beaten by other sanitation worker and area MLA office appointed Ms. Madhuri Education Coordinator of area MLA office to conduct enquiry and Ms. Madhuri in her enquiry found that the complaint made by Rita Devi was baseless and that Rita Devi was a habitual complainant and the sole motive of her complaints was to get permanent employment . Respondent no. 1 has further stated in the status report regarding the alleged incidence of 14.09.2015 that an enquiry was conducted from teachers, security guards, water carrier and other staff of school and their statements were recorded to verify the CR No: 440414/2016 Page No.11 of 41 DOO : 07.06.2017
-: 12 :- Ritu Puri Vs. State & another CR No: 440414/2016 facts and as per the said enquiry, Rita Devi (Respondent no. 2) was noticed shouting and abusing the Principal outside the Principal Office on 14.09.2015 and she was refusing to go to the new school where she was transferred and facts were also enquired from area MLA representative Ms. Madhuri Varshnay and Mr. Piyush Maurya who were also present in school on 14.09.2015 due to school management committee elections on that day.
11. Respondent no. 2 has filed reply to the revision petition and has contested the same. In the reply, respondent no. 2 has stated that the revision petition is abuse of the process of law and has been filed to delay the case and is liable to be dismissed. It is stated that complaint dated 24.09.2015 discloses the cognizable offences which were committed by respondent no. 2 and the matter is required to be investigated by the State Agency. It is stated that impugned order has been passed under Section 156(3) Cr.P.C. at pre-cognizance stage and cannot be challenged by means of revision petition. It is stated that in the impugned order dated 28.06.2016 , Ld. Magistrate has ordered to investigate the matter and dig out the truth and in case after the investigation, the complaint dated 24.09.2015 is found to be false, there are provisions to prosecute the respondent no. 2 for CR No: 440414/2016 Page No.12 of 41 DOO : 07.06.2017
-: 13 :- Ritu Puri Vs. State & another CR No: 440414/2016 filing false FIR. It is stated that the contents of the revision petition wherein it is stated that at the time of joining of school by the revisionist , sanitation work was performed by workers supplied by M/s Sympoh Marketing Pvt. Ltd. and respondent no. 2 was a contractually employed sanitation worker, supplied by the said agency and was not in the government employment need to be proved by the revisionist and are denied for want of knowledge. It is denied that quarrel took place between respondent no. 2 and Smt. Laxmi as alleged. It is stated that the apology letters will not allow the revisionist to commit cognizable offence against the respondent no. 2 . It is also denied that respondent no. 2 has ever threatened any official of school. It is stated that the revision petition has no merits and is liable to be dismissed.
12. I have heard Ld. Counsel for the parties and perused the records.
13. The contention of Ld. Counsel for the revisionist is that for passing a direction for registration of FIR under Section 156(3) Cr.P.C., it is necessary that the allegations as contained in the application must disclose commission of cognizable offences. It is contended that the respondent no. 2 /complainant sought registration of FIR under the provisions of The CR No: 440414/2016 Page No.13 of 41 DOO : 07.06.2017
-: 14 :- Ritu Puri Vs. State & another CR No: 440414/2016 Scheduled Castes and the Scheduled Tribes (prevention of Atrocities) Act, 1989 , however, as per the said Act, it was necessary for the respondent no. 2 to have mentioned in her application under Section 156(3) Cr.p.C. that she belongs to the Scheduled Castes or Scheduled Tribe community and the same was within the knowledge of accused ( revisionist herein) and that the the alleged act had taken place in public view. In suport of her contentions, Ld. Counsel for the revisionist has relied upon the following decisions :
(i) Daya Bhatnagar & Ors.v. State; (2004) 109 DLT 915.
(ii) Usha Chopra v. State & Anr.; 2004(77) DRJ 734.
(iii) State Vs. Om Prakash Rana & Ors.; 2013 SCC OnLine Del 5107.
14. Ld. Counsel for the revisionist has further contended that in the application under Section 156(3) Cr.P.C., respondent no. 2 has not mentioned the necessary particulars in order to fulfill the conditions as prescribed in the Scheduled Castes and the Scheduled Tribes (prevision of Atrocities) Act, 1989.
15. Ld. Counsel for the revisionist has contended that vide order dated 08.10.2015 Ld. MM was pleased to direct for calling status report from the police and as per the status report dated 04.12.2015 filed by the police, the acts as alleged were not committed by the revisionist and in these circumstances, it was not appropriate for CR No: 440414/2016 Page No.14 of 41 DOO : 07.06.2017
-: 15 :- Ritu Puri Vs. State & another CR No: 440414/2016 Ld. MM to have passed impugned order thereby directing registration of FIR.
16. It is further contended by Ld. Counsel for the revisionist that the order under section 156(3) Cr.P.C. cannot be passed mechanically and it should reflect application of mind and the impugned order will reflect that although Ld. MM has referred to report of the police as per which allegations levelled by the complainant were not substantiated despite that Ld. MM proceeded to pass the impugned order. In support of her contentions, Ld. Counsel for the revisionist has relied upon the decisions in Skipper Beverages Pvt. Ltd v. State; 2001(59) DRJ 129, Anil Kumar & Ors, v. M.K. Aiyappa & Anr.; (2013) 10 SCC 705 and Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors. ( 2015) 6 SCC 287.
17. Ld. Addl. PP for the State/Respondent no. 1 has contended that the State/Respondent no. 1 has already filed status report through Inspector Adith Lily and as per the said report no such incidence as alleged in the complaint filed before Ld. MM had taken place. Ld. Addl. PP has stated that Ms Madhuri Varshnay, Education Coordinator and Piyush Maurya were also present in the school on 14.09.2015 due to school management committee elections and their statements CR No: 440414/2016 Page No.15 of 41 DOO : 07.06.2017
-: 16 :- Ritu Puri Vs. State & another CR No: 440414/2016 were recorded by the police and in their statements they have stated that no such incidence as alleged by the complainant has taken place on 14.09.2015.
18. Ld. Addl. PP for the State has further contended that in the status report filed by respondent no. 1 , it is mentioned that complainant/respondent no. 2 is in habit of making false complaints .
19. Ld. Addl. PP for the State has contended that as per allegations of complainant( respondent no. 2) , she was abused of caste related words by the accused and there is no such evidence which is to be collected by the police and in the circumstances, order for registration of FIR under Section 156(3) Cr.P.C. was not warranted.
20. Ld. Counsel for respondent no. 2 has contended that by the impugned order dated 28.06.2016 Ld. MM has only directed that in order to dig out the truth, it is necessary for the police to register the FIR and to investigate under relevant provisions of law and the said order does not suffer from any infirmity.
21. Ld. Counsel for respondent no. 2 has contended that the complaint under Section 156(3) Cr.P.C. contains allegations of commission of cognizable offences and the evidence which is required to be collected for proving the offence could not have been CR No: 440414/2016 Page No.16 of 41 DOO : 07.06.2017
-: 17 :- Ritu Puri Vs. State & another CR No: 440414/2016 collected by the complainant of her own and in the circumstances, the orders were required for registration of FIR.
22. The main thrust of arguments of Ld. Counsel for the accused ( revisionist herein) is that the complaint under Section 156(3) Cr.P.C. does not disclose commission of cognizable offences and in the circumstances, orders under Section 156(3) Cr.P.C. could not have been passed for registration of FIR.
23. Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers to investigate the offences. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police.
24. Section 156 reads as :
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 which 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 CR No: 440414/2016 Page No.17 of 41 DOO : 07.06.2017
-: 18 :- Ritu Puri Vs. State & another CR No: 440414/2016 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.
25. In Lalita Kumari v. Govt. of UP & Ors. (2014) 2 SCC 1, Hon'ble Supreme Court of India has been pleased to observe that:
91) In Madhu Bala (supra), this court held:
6. ...............
9. ..............
10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to register a case makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate CR No: 440414/2016 Page No.18 of 41 DOO : 07.06.2017
-: 19 :- Ritu Puri Vs. State & another CR No: 440414/2016 does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable case and the Rules framed under the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then investigate into the same.
The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the first information report and investigate into the same.
.................................... .................................... ....................................
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 CR No: 440414/2016 Page No.19 of 41 DOO : 07.06.2017
-: 20 :- Ritu Puri Vs. State & another CR No: 440414/2016 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) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
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.
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CR No: 440414/2016
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) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we CR No: 440414/2016 Page No.21 of 41 DOO : 07.06.2017
-: 22 :- Ritu Puri Vs. State & another CR No: 440414/2016 direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
26. In Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 Supreme Court Cases 439, Hon'ble Supreme Court was pleased to hold:
12. It is further submitted that in the present case, the civil proceedings are pending between the parties where the question of genuineness or otherwise of the partnership deed is an issue. The process of criminal law cannot be used when a dispute is primarily of civil nature. Simultaneously initiation of criminal proceedings may be permitted where an offence is shown to have been committed. Thus, the Magistrate was entitled to satisfy himself as to whether any cognizable offence had been committed before proceeding further. The Magistrate was not satisfied from the material available that any cognizable offence had been committed and he rightly decided to conduct further enquiry under Section 202. Having CR No: 440414/2016 Page No.22 of 41 DOO : 07.06.2017
-: 23 :- Ritu Puri Vs. State & another CR No: 440414/2016 regard to the limited nature of inquiry under Section 202 which option had been rightly chosen by the Magistrate, direction to the police to investigate and give a report was limited by the very purpose for which the limited inquiry was to be held, as against procedure for investigation in cases not covered under Section 202 of the Code. The purpose was to enable the Magistrate to decide whether there was ground to proceed further. The Magistrate having taken cognizance of the offence and the police having not registered a criminal case nor the Magistrate having directed registration of criminal case, procedure and power of the police in the matter are different and in such a situation police did not have the power to arrest without permission of the Magistrate as was the view of the Gujarat and other High Courts.
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20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, it was observed: (SCC p.711 para 11) "11. The scope of Section 156 (3) Cr.P.C. came up for consideration before this Court in several CR No: 440414/2016 Page No.23 of 41 DOO : 07.06.2017
-: 24 :- Ritu Puri Vs. State & another CR No: 440414/2016 cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient . After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC , should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which , in our view, has stated no reasons for ordering investigation."
The above observations apply to category of cases mentioned in para 120.6 in Lalilta Kumari.
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-: 25 :- Ritu Puri Vs. State & another
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22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2 The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed".
Category of cases falling under para 120.6 in Lalita Kumari may fall under Section 202.
22.3 Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.
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-: 26 :- Ritu Puri Vs. State & another CR No: 440414/2016 xxxxxxxxxxxxxx
32. We now come to the last question whether in the present case the Magistrate ought to have proceeded under Section 156(3) instead of Section 202. Our answer is in the negative. The Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction. This Court has cautioned against such abuse.
33. In Indian Oil Corpn v. NEPC India Ltd., it was observed: ( SCC pp. 748-49,para 13) "13. While on this issue, it is necessary to take CR No: 440414/2016 Page No.26 of 41 DOO : 07.06.2017
-: 27 :- Ritu Puri Vs. State & another CR No: 440414/2016 notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of UP this Court observed: ( SCC p. 643, para
8) '8. ......It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of CR No: 440414/2016 Page No.27 of 41 DOO : 07.06.2017
-: 28 :- Ritu Puri Vs. State & another CR No: 440414/2016 the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
34. In Pepsi Foods Ltd. v. Judicial Magistrate, it was observed: ( SCC p. 760, para 28) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or CR No: 440414/2016 Page No.28 of 41 DOO : 07.06.2017
-: 29 :- Ritu Puri Vs. State & another CR No: 440414/2016 otherwise and then examine if any offence is prima facie committed by all or any of the accused."
27. 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.
28. Even though Section 156 (3) Cr.P.C. empowers the Magistrate to issue directions to the police to register the FIR but this provision cannot be permitted to be misused by the complainant and the Magistrate is to apply his mind to the fact of each case before passing orders under Section 156 (3) Cr.P.C. and not to act in a mechanical manner.
29. In M/s Skipper Beverages Pvt. Ltd., Vs. State, 2001 IV AD Delhi 625, Hon'ble High Court of Delhi was pleased to hold:
7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be CR No: 440414/2016 Page No.29 of 41 DOO : 07.06.2017
-: 30 :- Ritu Puri Vs. State & another CR No: 440414/2016 no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is 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. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
8. In case Arvindbhai Rajivbhai Patel Vs. Dhirubhai Sambhubhai reported in 1998(1) Crimes 351, an Hon'ble Judge of Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that Magistrates should act under Section 156(3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered CR No: 440414/2016 Page No.30 of 41 DOO : 07.06.2017
-: 31 :- Ritu Puri Vs. State & another CR No: 440414/2016 view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.
9. In the case in hand the allegations in regard to the theft of the cheque could be proved by oral or other evidence. The allegations regarding the forging of the cheque by typing out certain portions therein could also be proved by summoning the original cheque from the bankers and leading required evidence. Therefore, it was not at all a case where the police assistance was required for breaking the case and discovering some evidence which the complainant was unable to collect of his own. This Court, therefore, is of the considered view that learned Trial Judge was justified in declining the request of the complainant to issue directions to Police under Section 156(3) of the code as prayed.
30. The contention of revisionist is that complaint under Section 156(3) Cr.P.C. does not make out commission of cognizable offences and in the circumstances, order under Section 156(3) Cr.P.C. for registration of FIR could not have been passed. In para 10 of the complaint under Section 200 Cr.P.C. r/w Section 156(3) Cr.P.C., the complainant (respondent No. 2 herein) CR No: 440414/2016 Page No.31 of 41 DOO : 07.06.2017
-: 32 :- Ritu Puri Vs. State & another CR No: 440414/2016 has stated that the accused (revisionist herein) had committed cognizable offences defined under various sections of Indian Penal Code and The Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act 1989. In the impugned order, Ld. MM has observed that the allegations levelled by the complainant are clearly disclosing the ingredients of cognizable offence.
31. Section 3(1) (x) of The Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act 1989 reads as :
3. Punishment for offences of atrocities.-
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-
xxxxxxxxxxxxxxx xxxxxxxxxxxxx
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.
Xxxxxx XXXXXXXXXXXX shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
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-: 33 :- Ritu Puri Vs. State & another
CR No: 440414/2016
32. In Daya Bhatnagar & Ors. v. State ( 2004) 109 DLT 915, Hon'ble High Court was pleased to hold :
15. Basic ingredients for the offence under Clause(x) of Sub-section (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; ( b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view"
can be satisfied even in a private place, where the public is present. I find myself in agreement with the following observations of learned brother Mr. Justice B.A. Khan while expounding the ingredients of the offence:
"If the accused does not know that the person whom he was intentionally insulting or CR No: 440414/2016 Page No.33 of 41 DOO : 07.06.2017
-: 34 :- Ritu Puri Vs. State & another CR No: 440414/2016 intimidating or humiliating is a member of SC or ST, an offence under this section would not be constituted. Similarly, if he does not do all this at any place within " public view" , the offence would not be made out. Therefore, to attract an offence under Section 3(1)(x), an accused must know that victim belongs to SC/ST caste and he must intentionally insult, intimidate and humiliate him/her at a place within " public view". The place need not be a public place. It could be even at a private place provided the utterance was made within "public view".
33. In State Vs. Om Parkash Rana & Ors, 2013 SCC Online Del 5107 Hon'ble High Court was pleased to hold :
9. In Deepa Bajwa v. State (Supra), where quashing of FIR under Section 3 of SC/ST Act, 1989 was sought, it was held by this court that for ascertaining that a complaint on the basis of which the complainant seeks registration of FIR, must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary CR No: 440414/2016 Page No.34 of 41 DOO : 07.06.2017
-: 35 :- Ritu Puri Vs. State & another CR No: 440414/2016 statement and thereafter proceed to register the FIR. The relevant portion of the judgment is as under:-
"After considering the submissions made by the learned counsel for the parties, this Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of the offence and in case a complainant lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the CR No: 440414/2016 Page No.35 of 41 DOO : 07.06.2017
-: 36 :- Ritu Puri Vs. State & another CR No: 440414/2016 Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law."
10. In the present case, the original complaint lodged by the complainant does not mention in whose presence the offending words were used by the respondents/accused persons. There is also nothing on record to show that the respondents/accused persons were having the knowledge that the complainant was a member of SC/ST community. There is nothing on record to show that the offending words were used in full public view. The names of alleged witnesses are not mentioned in the complaint dated 18.07.2012. The witnesses CR No: 440414/2016 Page No.36 of 41 DOO : 07.06.2017
-: 37 :- Ritu Puri Vs. State & another CR No: 440414/2016 i.e. Meenakshi and Durga Dutt have alleged themselves to be the eye witnesses. But their names have not been stated by the complainant in her complaint. The supplementary statement dated 27.08.2012 of the complainant giving the names of alleged witnesses can't fill up the lacuna. There is also delay of 3 days in lodging the FIR. The delay is also not explained. The basis ingredients of Section 3(x) of the SC/ST Act are missing in the present case. There is no illegality in the impugned order which calls for interference of this court. The revision petition is dismissed.
34. In para 6 of the complaint under Section 200 Cr.P.C. r/w Section 156(3) Cr.P.C., the complainant has stated that on 14.09.2015 at about 8.30 am she was called by the accused( revisionist herein) in her principal room where the complainant was told that her services have been terminated and in para 7 of the said complaint, the complainant had stated that on being asked for written order of termination, the accused slapped her and abused her with bad words related to her caste and thereafter accused called the security guards of the school and forcefully threw the complainant out of the CR No: 440414/2016 Page No.37 of 41 DOO : 07.06.2017
-: 38 :- Ritu Puri Vs. State & another CR No: 440414/2016 school premises.
35. Perusal of complaint under Section 200 Cr.P.C. r/w 156(3) Cr.P.C. shows that in the said complaint, the complainant has not mentioned that accused ( revisionist herein) was aware that complainant is a member of Scheduled Caste Community and that the alleged caste related words were spoken by the accused/revisionist at a place within public view and that any other persons were present when the said words were spoken by the accused/revisionist.
36. Hence in view of decision in Daya Bhatnagar & Ors. v. State ( supra) & State v. Om Prakash Rana & Ors. (supra), it cannot be said that the complaint under Section 200 Cr.P.C. r/w 156(3) Cr.P.C. discloses commission of cognizable offences under the provisions of The Scheduled Castes and the Scheduled Tribes ( Prevision of Atrocities Act, 1989).
37. In the complaint under Section 200 Cr.P.C., apart from use of derogatory words relating to caste, the complainant has alleged that she was slapped by the accused . Although in para 10 of the complaint under Section 200 Cr.P.C. r/w 156(3) Cr.P.C. , the complainant has stated that the accused/revisionist had committed cognizable offences defined under various sections of Indian Penal Code but the complainant has failed to CR No: 440414/2016 Page No.38 of 41 DOO : 07.06.2017
-: 39 :- Ritu Puri Vs. State & another CR No: 440414/2016 substantiate her contention that any cognizable offence under Indian Penal Code was commtted by the accused/revisionist.
38. In the circumstances, the complaint under Section 200 Cr.P.C. r/w 156(3) Cr.P.C. has failed to disclose commission of cognizable offences by the accused/revisionist. However, in the impugned order dated 28.06.2016, Ld. MM has observed that the allegations leveled by the complainant are clearly disclosing the ingredients of cognizable offence and in the impugned order Ld. MM has not mentioned that the complaint discloses commission of which of the cognizable offence. The observation of the Ld. MM in the impugned order dated 28.06.2016, 'the complaint discloses commission of cognizable offence' reflects that the said order has been passed without detailed examination of the complaint and in a mechanical manner. As the complaint under Section 200 Cr.P.C. r/w 156(3) Cr.P.C. fails to disclose commission of cognizable offence, hence there was no occasion for passing any order under Section 156(3) Cr.P.C. thereby directing SHO concerned to register the FIR.
39. The perusal of the impugned order dated 28.06.2016 shows that Ld. MM has been pleased to direct SHO concerned to register the FIR as it was CR No: 440414/2016 Page No.39 of 41 DOO : 07.06.2017
-: 40 :- Ritu Puri Vs. State & another CR No: 440414/2016 deemed necessary by Ld. MM to dig out the truth by conducting detailed investigation by the said agency. It is to be noted that before passing the impugned order dated 28.06.2016, Ld. MM had deemed it appropriate to obtain status report from the PS concerned and the status report dated 04.12.2015 was filed before Ld. MM by the SHO concerned through Inspector Adith Lily wherein after conducting necessary enquiries, the police had arrived at the conclusion that no offence of passing of derogatory comments regarding the caste of complainant was committed by the accused/revisionist.
40. It is to be noted that in the impugned order Ld. MM has referred to the status report submitted by Inspector Adith Lily and has observed that as per the said report, the allegations leveled by the complainant were not substantiated but despite that Ld. MM thought it necessary to again direct the SHO to investigate the matter. No reason has been assigned in the impugned order by Ld. MM as to why despite receiving status report from the police stating that as per their enquiry no such incidence has taken place, he deemed it appropriate to direct SHO concerned again to investigate the matter.
41. In view of the aforesaid discussions, the part of the impugned order dated 28.06.2016 thereby directing the SHO concerned to register an FIR under CR No: 440414/2016 Page No.40 of 41 DOO : 07.06.2017
-: 41 :- Ritu Puri Vs. State & another CR No: 440414/2016 relevant provisions of law is set aside. The revision petition stands disposed of accordingly.
42. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned to record room.
Announced in the open Court (HARISH DUDANI) today on 07.06.2017 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
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