Delhi District Court
Pradeep Kumar vs . Inspector Rajesh Dahiya & Anr. on 1 September, 2012
IN THE COURT OF SH. VIKRAM, MM03, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI.
C.C. No. : 95/1
P.S. : J.P. Kalan
Pradeep Kumar Vs. Inspector Rajesh Dahiya & Anr.
ORDER
1. This order is to decide an application under section 156(3) Cr. P. C for getting an FIR registered.
2. This application is filed by complainant Pradeep Kumar who has also filed a complaint u/S 200 Cr.P.C for initiating criminal proceedings against Inst. Rajesh Dhaiya and ASI Shri Kishan for various offences under IPC.
3. The facts narrated in the complaint are that on the intervening night of 18/19.07.12 at about 12:30 AM when the complainant Pradeep reached Rawta Mor along with his cousin brother Sh. Ravi Kumar, his car was stopped by SHO J.P. Kalan Sh. Rajesh Dahiya, the accused no.1 in complaint and asked Sh. Ravi Kumar, who was driving the car to show his driving license. After seeing the driving license the SHO kept the same in his pocket and when Sh. Ravi Kumar asked to return the license the SHO slapped in his face. It is alleged that when the complainant objected the SHO for that illegal act the SHO and his other associate pulled out Sh. Ravi Kumar from the car and started slapping and assaulting the complainant and Sh. Ravi Kumar. Thereafter under the garb of police authority the SHO demanded a sum of Rs. 10,000/ by intimidating that if the amount is not paid they will be implicated in several criminal cases. It is alleged that when complainant refused to accede to illegal demands of SHO they became more furious and asked the subordinates to snatch all documents as well as money from the complainant and in this process they forcibly took away a sum of Rs. 20,000/, 3 mobile phones, 1 ATM card, RC of the vehicle and the license and C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 1/9 forcibly coerced the complainant to gulp a few drops of whiskey in order to falsely show that the complainant was under influence of liquor and they took complainant and SH. Ravi Kumar to RTRM where colluding with the doctor they manipulated a false MLC. It is also submitted that in the process of assault by the accused persons and their associates the complainant suffered grievous injury which has its mention in MLC No. 2014/12 prepared at RTRM Hospital.
4. The complainant has also alleged that after getting the false MLC the complainant and his brother were taken PS and were illegally confined there and thereafter both the accused persons along with their associates assaulted the complainant mercilessly due to which he suffered massive injuries on Jaw. It is alleged that the SHO threatened the complainant and his brother that if they reported the matter anywhere they will be falsly implicated in serious criminal cases. It is also alleged that the SHO threatened the complainant to the effect that he has got links with goons of the area and will manage to get his life finished by running a vehicle over the complainant's body.
5. It is also alleged in the complaint that in order to cover their misdeeds accused persons falsely framed an incorrect Kalandra under Section 107/151 Cr. P. C vide DD No. 5A dated 19.07.12 with intent to cause further injury to the complainant by way of denial of personal liberty by falsely projecting that there was an apprehension of breach of peace on the part of complainant and his brother Sh. Ravi Kumar and they were produced before SEM on 19.07.2012 where they were admitted to bail.
6. It is stated by the complainant that after being released on bail the complainant immediately approached to Rockland hospital and got the treatment there, where the doctor diagnosed that there was fracture of mandible left angle. The complainant remained in that hospital till 23.07.12. It is also stated that the complainant reported the matter to Hon'ble Chief C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 2/9 Justice of Hon'ble High Court of Delhi by way of sending complaint dated 21.07.12 with copies marked to various authorities but till date no FIR has been registered. One copy of such complaint was received by this court also. It is alleged by the complaint that the while preparing false Kalandra it was falsely shown that the car No. DL8C9250 was being driven in rash and negligent manner under the influence of loquor but till date accused persons have not challaned the complainant or Sh. Ravi Kumar for any offence under MV Act. It is stated that this shows the Kalandra was false and fabricated.
7. Alleging the above facts in complaint this application under Section 156(3) Cr. P. C is filed for seeking intervention of the Court with a prayer to issue direction to DCP SouthWest for registration of FIR against accused persons u/S 166/167/203/209/220/325/341/342/357/506/34 IPC.
8. As the complainant had preferred a complaint to Hon'ble Chief Justice of Hon'ble High Court of Delhi, a direction was issued by Hon'ble RegistrarcumSecretary to Hon'ble Chief Justice, to Commissioner of Police for taking appropriate action. Therefore a status report was called from Commissioner of Police.
9. In the status report it is mentioned that, it was revealed in inquiry that on the intervening night of 18/19.07.12 at about 1.30 AM the complainant along with Sh. Ravi Kumar were medically examined in RTRM Hospital but none of them made any complaint to the doctor about beating being given by the police staff. It is also stated that complainant or Sh. Ravi Kumar did not complained about the beatings in the PS either to sentry or the Duty officer of PS of any relative or friend neither they made any oral or written complaint to SEM when they were produced in Kalandra. It is also stated that on 20.07.12 an information was received from Rockland Hospital at about 12.40 AM that the complainant is admitted vide MLC no. 7/12 with alleged history of beatings by public and HC Anil Kumar was deputed for the C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 3/9 above call who met with the complainant in the hospital and once at his residence but he refused to give any statement. It is also stated in the report that the complainant Pradeep Kumar produced one Sh. Shailender Sehrawat who stated that on that day complainant had consumed liquor in his office in a party organized by him. It is also stated in the report that a sum of Rs. 6,900/ and other articles of the complainant were deposited in the malkhana as personal search during his arrest.
10. After perusing report and complainant arguments were heard from Ld. Counsel for complainant and it is submitted by Ld. Counsel that a bare reading of the complaint discloses commission of cognizable offence, therefore, the FIR has to be registered so as to unearth the circumstances under which which the offences were committed. It is also submitted the allegation against the accused are such which requires detailed investigation by police into the fact that money and some documents were snatched from the complainant which requires to be discovered and seized. It is also submitted that the act of the accused comes under Prevention of Corruption Act as the accused had demanded money from the complainant. Ld. Counsel also submitted that the Ld. SEM has discharged the complainant and Sh. Ravi Kumar in the false Kalandra which was prepared by accused just to harass the complainant and to cover his own illegal act. It is submitted that a detailed investigation is required unearth those circumstances and to bring them before court.
11. In support of his contentions Ld. Counsel placed reliance upon Srinivas Gundluri & Ors. Vs. M/s Sepco Electric Power Construction Corpn. & Ors 2010 [4] JCC 2671 where the Hon'ble Supreme Court referred to the conclusion drawn in (1976) 3 SCC 252 and (1977) 4 SCC 459 and held that "it is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance of complaint if the facts alleged in the complaint, disclose the commission of cognizable offence. This is clear from the use of word "may C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 4/9 take cognizance" which in the context in which the occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate. If on a reading of complaint he finds that the allegation theirin disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting the course as an alternative to taking cognizance of the offence, himself ".
12. Ld. Counsel also referred to para 13 of above judgment where it was pronounced by Hon'ble Supreme Court that "To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
13. Ld. Counsel for complainant further placed reliance on 2007 (2) Crimes 202 (All.) Sanjai Gupta Vs. Gulab Misra and Ors. where it was held by Hon'ble Allahabad High Court that "To start a lis is domain of the aggrieved person. The Magistrate cannot start litigation by suo motu conversion of an application under section 156(3), Cr.P.C to one under section 2(d), Cr. P. C and take cognizance of offence under Chapter XV. The aggrieved person may have thousands of reasons for not filing a complaint. Once he has not opted to file a complaint it was wholly illegal on the part of Magistrate to convert the application under section 156(3) Cr. P. C under Chapter XII to one under Chapter XV of the Criminal Procedure Code. Filing of a complaint and prosecution of case as the complaint case is the responsibility and domain of the Complainant or the aggrieved person. The Magistrate cannot compel the person to file a complaint. The law laid down by the Apex Court is that if the C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 5/9 cognizable offence is disclosed in an application under 156(3) Cr. P. C the Magistrate is under legal duty to direct the police to exercise their plenary power of investigation".
14. Ld. Counsel for complainant also placed reliance on Ramesh Kumari Vs. State (NCT of Delhi) & Ors. (2006) 2 SCC 667 wherein it was held that "provision of section 154 Cr.P.C is mandatory. Hence the police officer concerned is duty bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case". However in this judgment Hon'ble Supreme Court have not dealt with section 156(3) Cr.P.C.
15. Before dealing with the question whether the FIR is it is required to be registered or not it is necessary here to take note of the guidelines issued by Hon'ble High Court of Delhi in Crl. M.C No. 612223/2005 with Crl.M.C. No.613334/2005. The guidelines are enumerated in Para 52A of the judgment which are reproduced here;
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 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 154(3) of the Code.
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 C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 6/9 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 only 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 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.
16. Therefore before ordering registration of FIR it is necessary to follow above guidelines. The judgments relied by the counsel for complainant were not directly related to the question, in what circumstances FIR can be registered under section 156(3). Information as to cognizable offence is, no doubt, the condition precedent for ordering investigation under section 156(3) Cr.P.C, but it is not necessary that in every cognizable offence the direction be issued to investigate the offence.
17. In Skipper Beverages Pvt. Lt. Vs. State 92 (2001) DLT 217 it was held by Hon'ble High Court of Delhi that that "Section 156(3) of the code aims at curtailing and controlling the arbitrariness on the part of police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The section empowers the Magistrate to issue directions in this regard but this provision should not be C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 7/9 permitted to be misused by complainants to get the police case registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore, a Magistrate, must apply his mind before passing an order under Section 156(3) of the code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of facts".
18. The complainant in his application has prayed for registering case for committing disobedience of law by public servant to cause injury, framing incorrect document with intent to cause injury, giving false information respecting and offence committed, dishonestly making false claim in court, committing and confining the complainant knowing that it is contrary to law, voluntary causing grievous hurt, wrongful restrain, wrongful confinement and criminal intimidation to cause death. Ld. Counsel for complainant submits that the complaint also discloses commission of offence under Prevention of Corruption Act.
19. Out of all the offences complained by complainant the allegation disclosing cognizable offences are under section 167, 325, 341, 342 and 357 IPC. Rest of the offences are non cognizable. The gravest among these is offence under section 325 IPC i.e. the offence of causing grievous hurt. The complainant is already having in his possession the relevant MLCs and since there is no allegation of any use of weapon it is not a case which requires recovery. The allegation that some money and documents were taken are explained in status report that some personal search is deposited in malkhana. Applying the principles laid in Crl.M.C No. 612223/2005 I find that this is not a case where any police investigation is required or any custodial interrogation is necessary. The complainant and Sh. Ravi Kumar C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 8/9 are the best witness of incident and the documents necessary for proving the offence can be summoned being public record. There are serious observations made in status report that despite having opportunity the complainant preferred to remain silent before SEM when he was produced in the Kalandra. Moreover, till date complainant has not filed any complaint in the PS concerned or to any superior authority. The complaint which was made by the complainant to the Hon'ble Chief Justice cannot be treated as the one under section 154(1) or 154(3) Cr.P.C. Therefore, the complainant has not met out the first condition as laid in Crl.M.C No. 612223/2005 which say "at the outset, 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 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 154(3) of the Code".
20. In view of the law discussed above and the reasons recorded the application of complainant under Section 156(3) Cr.P.C is dismissed.
Dictated & Announced in Open Court (Vikram)
On the 1st day of September, 2012 MM03/SouthWest/Delhi
01. 09.2012
C.C. No: 95/1 Pradeep Kumar v. Inspector Rajesh Dahiya & Anr. Page No. 9/9