Delhi District Court
Umesh Kumar vs State (Nct Of Delhi) on 12 January, 2018
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.56465/2016
Umesh Kumar
S/o Late Sh. Puttu Ram
R/o House No.46, Deep Enclave,
Gali No.2, Vikas Nagar, Part2,
Uttam Nagar, New Delhi59
............Revisionist
Vs.
1. State (NCT of Delhi)
Through Commissioner of Police,
PHQ, ITO, New Delhi
2. Shyam Narayan
S/o Sh. Bhuwan Prasad
3. Smt. Chanda
W/o Shyam Narayan
4. Bhuvan Prasad
S/o Not Known
5 Kalawati
W/o Bhuwan Prasad
Resp. No.2, 3, 4 & 5 R/o Block - R3 A3,
Plot No.25, Near G.D. Lancer School,
Chandi Farm, Mohan Garden,
New Delhi110059
...........Respondents
Date of Filing : 22.12.2016 Date of Arguments : 08.01.2018 Date of Order : 12.01.2018 CR No.56465/16 Umesh Kumar Vs. State & Ors. Page 2 of 11
Criminal Revision Petition U/Sec.397/399 Cr.P.C. against the order dated 17.10.2016 passed in CC No.588/1 filed by revisionist O R D E R
1. This revision petition has been filed by the revisionist against the impugned order dated 17.10.2016 passed by Sh. Jitendra Singh, Ld. Metropolitan Magistrate, West District, Tis Hazari Court, Delhi vide which the revisionist's application filed U/Sec.156(3) Cr.P.C. was dismissed.
2. The brief facts necessary for disposal of present petition are as follows: 2.1 That on 08.04.2015 a complaint case bearing CC No.588/1/15 U/Sec.200 Cr.P.C. alongwith application U/Sec.156(3) Cr.P.C. was filed by the revisionist (hereinafter referred to as 'complainant') against the respondent no.2, 3, 4 & 5 (hereinafter referred to as 'accused no.1, 2, 3 & 4' respectively).
2.2 In the said complaint case, it was stated by the complainant that the accused no.1 was his friend and other accused persons were also known to him and that the accused no.1 and his wife were in dire need of money and therefore, the complainant extended a friendly CR No.56465/16 Umesh Kumar Vs. State & Ors.
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loan of ₹3,50,000/ (Rupees Three Lakhs and Fifty Thousand only) to them and they agreed to keep him in one room of their house and further to execute sale deed of one floor of their house i.e. H.No.25, R3 A3, Mohan Garden, Near Gandhi Chowk, Chandi Farm, New Delhi if they failed to repay the loan amount. It was further stated that in the year 2014, accused no.1 and 2 in furtherance of criminal conspiracy started quarreling with the complainant and harassing and humiliating him day by day for water, electricity and other amenities for pressuring him to vacate the said room and on 24.07.2014, the accused persons without information and knowledge of the complainant threw all his household articles, clothes and other belongings on road and broke some household articles for which he called up the police at 100 number and lodged report vide DD No.54 A. It was further stated that the complainant also filed a civil suit for recovery of the entire amount paid to the accused persons and the same was pending before the Court of Ld. District Judge, THC, Delhi. It was further stated that on 06.08.2014, the accused persons in pre planned manner started pressurizing the complainant to vacate and not to enter the room and threatened him to implicate in false and frivolous criminal cases and he made a written complaint to police vide DD No.34A at P.S. Ranhola. It was further stated that on CR No.56465/16 Umesh Kumar Vs. State & Ors.
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18.11.2014, when complainant reached at his room at about 11.00 p.m., he found that the accused persons had stolen his goods including gold jewellery, a watch, one camera model No.2100, two old camera model No.BH No.1000 and ₹40,000/ and that they also threatened him to kill him if he did not vacate the room within two days. It was further stated that though the complainant reported the matter to the police but no action was taken by the police against the accused persons. Hence, he filed the complaint case for summoning, trying and punishing the accused persons under Sec.380/410/506/445/446/420/120B IPC and alongwith said complaint case he filed an application U/Sec.156(3) Cr.P.C. for registration of FIR against the accused persons. 2.3 Vide impugned order, the Ld. Trial Court dismissed the abovesaid application and declined to give direction to the SHO to register FIR by holding that the evidence was within the reach of the complainant and the accused persons known to him and further that if subsequently it would be deemed necessary, then police inquiry could be initiated U/Sec.202 Cr.P.C.
3. The present revision petition has been filed by the complainant for setting aside the impugned order dated 17.10.2016 on the following CR No.56465/16 Umesh Kumar Vs. State & Ors.
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main grounds:
(i) That the impugned order is not proper in the eyes of law as the revisionist/complainant has not suppressed the real facts to take undue advantage of his own wrong.
(ii) That the Ld. Trial Court has failed to appreciate that the offences as narrated in the complaint lodged before the police well depicted the commission of cognizable offence and it is well settled law that as and when a complaint citing commission of cognizable offence is lodged, immediately an FIR should be registered.
(iii) That the Ld. Trial Court has failed to appreciate that articles of the complainant were stolen and illegally retained by the accused no.2, 3, 4 & 5 after breaking his room lock.
(iv) That the I.O. has not enquired the matter properly and misguided the Court for reason best known to him and that an FIR is required to be registered against the accused persons for recovery of stolen items.
(v) That the Ld. Trial Court has wrongly mentioned that the CR No.56465/16 Umesh Kumar Vs. State & Ors.
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complainant is having control over the evidence.
4. Notice of the present revision petition was given to the respondents and the revision petition has been contested by them.
5. I have heard the arguments from counsel Sh. Sunil Singh for revisionist/complainant and Counsel Sh. K. Lal for the respondent no.2, 4 & 5 and perused the record including the Trial Court record in the light of submissions made before me.
6. The Counsel for revisionist/complainant has vehemently argued that the impugned order is liable to be set aside as it is not legal whereas the counsel for respondents has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
7. Chapter XII of Cr.P.C. deals with information to the police and its power to investigate the offences. Chapter XV of Cr.P.C. deals with complaint filed before a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. Sec.156 Cr.P.C. contained in Chapter XII speaks of the powers of the police officers to investigate cognizable cases and subclause (3) of the said CR No.56465/16 Umesh Kumar Vs. State & Ors.
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section gives power to the Magistrate having power under Sec.190 Cr.P.C. to order such an investigation. Complaint filed U/Sec.190 r.w. Sec.200 Cr.P.C. before a Magistrate provides an alternative as well as an additional remedy to a complainant whose complaint is not entertained by the police. Thus, when a criminal complaint, which discloses commission of cognizable offence, is filed before a Magistrate, two courses are opened to him viz. (i) he may direct the police to investigate the matter U/Sec.156(3) Cr.P.C., or (ii) he may choose to inquire into the complaint by taking cognizance U/Sec.190 Cr.P.C. However, it is settled law that power vested in Magistrate to direct police to investigate the matter U/Sec.156(3) Cr.P.C. is to be exercised judiciously on appropriate grounds and such order could not be passed in every case in a mechanical manner unless there are serious allegations and further that the evidence is beyond the reach of the complainant or the custodial interrogation appears to be necessary for some recovery of articles or discovery of facts. It is held by Hon'ble High Court of Delhi in M/s. Skippers Beverages Pvt. Ltd. Vs. State, 2001 (3) RCR (Criminal) 514, "It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and CR No.56465/16 Umesh Kumar Vs. State & Ors.
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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 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 help the complainant."
8. In Shri Subhkaran Luharuka & Anr. Vs. State (Govt. of NCT Of Delhi) & Anr., 2010 (170) DLT 516 the Hon'ble High Court of Delhi has held that when the Magistrate is approached with a Complaint U/Sec.200 Cr.P.C., he should invariably proceed under Chapter XV by taking cognizance of the Complaint. However, it is also held that it is open to the Magistrate to proceed under Chapter XII of Cr.P.C. when an application U/Sec.156(3) Cr.P.C. is also filed along with a Complaint U/Sec.200 Cr.P.C. if the Magistrate decides not to take CR No.56465/16 Umesh Kumar Vs. State & Ors.
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cognizance of the Complaint, but in that case the Magistrate before passing any order to proceed under Chapter XII, should 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.
9. It has been held by Hon'ble High Court of Delhi in Ravindra Kumar Vs. State (Govt. of NCT of Delhi), 2013(8) AD(Delhi) 403 that the remedy U/Sec.156(3) is discretionary and the complainant cannot insist as a matter of right that his complaint in every eventuality be directed to the police for investigation. The Hon'ble Court has held, "Remedy under Section 156 (3) Cr.P.C. is a discretionary one as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. CR No.56465/16 Umesh Kumar Vs. State & Ors.
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The complainant, as a matter of right, cannot insist that the complaint case filed by him/her should be directed in every eventuality to the police for investigation."
10. Thus, the Magistrate has the discretion to refuse the registration of FIR. Criminal law is not expected to be set into motion on the mere asking of a party. It is only in those cases where there is substance in the complaint and the allegations are of serious nature and the evidence could not be obtained by the complainant without the assistance of the police, that an order for registration of FIR be passed U/Sec.156(3) Cr.P.C. The present case is not a case where the police assistance is required for breaking the case or for discovery of some evidence which the complainant himself is unable to collect at his own. It is not a case where the evidence is beyond the reach of the complainant or that the custodial interrogation is required for discovery of fact. The evidence on which complainant is relying is within his knowledge. He himself has submitted in para 16 of his complaint case that he is in possession of original bills of his stolen articles. Since the complainant himself can also lead evidence to prove his case, so the present case is not found a fit case for directing the SHO to register FIR. Moreover, if the need arises, the Trial Court can take recourse to CR No.56465/16 Umesh Kumar Vs. State & Ors.
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Sec.202 Cr.P.C. at appropriate stage of proceedings. On careful perusal of the record in general and the impugned order in particular, it is revealed that the complainant/revisionist has not been able to show any reasonable ground to interfere in the impugned order. It is well settled law that the revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. Moreover, if any fact requiring police investigation is found by the Trial Court after conclusion of pre summoning evidence, the said fact can very well be verified/investigated through police U/Sec.202 Cr.P.C. If the impugned order is analyzed in the light of scope of Sec.397/399 Cr.P.C., no wrong, illegality, impropriety or irregularity is found therein. Hence, the impugned order is upheld and the revision petition is dismissed being devoid of merits.
11. TCR be sent back alongwith copy of this Order.
12. File of the revision petition be consigned to Record Room.
(Announced in open
Court on 12.01.2018) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.56465/16
Umesh Kumar Vs. State & Ors.