Delhi District Court
Naresh Kumar vs . Sho Tarkeshwar on 25 August, 2015
Naresh Kumar vs. SHO Tarkeshwar
CC No.182/14, PS Nand Nagri
25.08.2015
1.Vide this order, I shall dispose of the application u/s 156(3) Cr.P.C. of the complainant.
2. Brief facts as stated in the complaint are that complainant is an RTI Activist raising his voice against illegal activities like gambling and sale of illegal liquor in the area of PS Nand Nagri. He was falsely implicated in a case u/s 302 IPC by police officials who are hand in gloves with the persons including in those illegal activities. On 11.11.2014, SI Karim Baksh called on complainant mobile number in day time and after sometime he visited the complainant at his house alongwith a police constable and forcibly entered inside and misbehaved with the ladies of the family. Accused no.1 and 2 forcibly detained the complainant and handcuffed him and removed his clothes and gave beatings to him and also threatened to him. Police persons also snatched Rs.4,300/ from pocket of the complainant and obtained his signatures forcibly on some blank papers and pressurized him to withdraw his complaint against the police officials. Complainant was also threatened of fake encounter and false implication. On 25.11.2014 at about 11:41 am, SI Karim Baksh called the complainant at instance of the SHO and asked him to visit police station. Complainant is living under fear of arm from the accused persons.
3. It is mentioned in the ATR filed by the police that the present complaint is motivated and complainant has not enclosed any medical report and present complaint is filed with a view to save himself from the clutches of law as complainant is involved in case FIR no.368/14, u/s 302 IPC, PS Nand Nagri.
4. Heard submissions made and record is perused.
5. It is settled law that u/s 156(3) Cr.P.C., Magistrate has power to direct the police to register a case and investigate the matter, but his power is to be exercised judiciously and not in a mechanical manner. In the matters where the complainant has in his possession all the evidence required to prove his allegations, there should be no need to pass an order U/s. 156 (3) Cr.P.C. In this regard, reliance is placed, on the decision of our own Hon'ble High Court in M/s. SKIPPER BEVERAGES PVT. LTD. Vs. STATE, Cited as 2001 IV AD (Delhi), wherein it has been held as under: "It is true that Section 156(3) of the Code empowers to 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 no need to pass orders under section 156 (3) of the Code. This 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 interest of justice demand that the police should step in the help the 1complainant".
6. Time and again, the Superior Court have taken strong exceptions to the growing tendency of asking the police to investigate cases U/s. 156 (3) Cr.P.C. of the Code and advised the Magistrate not to pass orders mechanically.
7. Keeping in view that the facts and circumstances of the case, I am of the considered opinion that the evidence is within the reach of the complainant and the matter does not calls for investigation by the State Agency.
8. Moreover, I am enlightened by the judgment of Hon'ble Delhi High Court titled as "Subhkaran Laharuka & Anr. Vs. State & Anr.", wherein it has been held that: "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 persons/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 from the 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 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 satisfy himself about the prerequisites 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 complaint 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 whey he intends to proceed under Chapter XII instead of Chapter XV of the Code."
9. In this regard, reference may also be have to a case titled Smt. Prem Hazara Vs. Satinder Singh Grewal, (Delhi) 1985 (2) R.C.R (Criminal) 256, Delhi High Court wherein it was observed:
"Where a complaint is made against the officer of police the Magistrate should himself conduct the preliminary inquiry and not refer the matter for investigation to a police officer even though such officer happens to be a superior officer of the police. The reationable behind this view is quite apparent. It is that apprehension in the mind of the complainant would certainly be that when a police officer were to make an inquiry in respect of his complaint, he i.e. the inquiry officer, many not remain so dispassionate towards the matter and may not be able to bring a detached mind to bear upon the inquiry. Thus, to remove any misapprehension on the p0art of the complainant with regard to the impartiality8 and disinterestedness of the forum of inquiry it was imperative in a case like th present not to refer the complaint for inquiry to another police officer."
10. Applying the guidelines as mentioned above in the case in hand the evidences are within the reach of the complainant and the accused persons are known to the complainant and the identity is not in dispute.
11. Hence, in the totality of facts and circumstances, I do not find it a fit case for registration of FIR. I am of the considered view that entire evidence lies within the possession of complainant and there is no need for registration of FIR. Accordingly, the present application U/s 156 (3) of Cr. P. C. is dismissed. However, while taking cognizance of the offence as alleged, the complainant is directed to bring his evidence for 09.02.2016.
(MAYURI SINGH) MM03/(SHD)/KKD/Delhi:25.08.2015