Delhi District Court
Lt. Col. C.M. Upreti vs Sh. K.K. Bhargava on 10 February, 2016
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE,
(PC ACT) & (CBI)-03, SOUTH WEST DISTRICT, DWARKA,
NEW DELHI
Crl. Revision No. 01/15
In re:
1. Lt. Col. C.M. Upreti,
S/o Late Sh. L.N. Upreti,
R/o B-108, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
2. Sh. Sunil Sachdeva,
S/o Late Sh. D.D. Sachdeva,
R/o A-5, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
3. Sh. R.S. Rana,
S/o Late Sh. N.S. Rana,
R/o A-307, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
.............. Petitioners
Versus
1. Sh. K.K. Bhargava,
Secretary, K.K. Cooperative
Group Housing Society Ltd.,
R/o C-301, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
2. Sh. K.L. Bhargava,
Member Executive Committee,
Crl. Rev. No. 01/15 10-02-2016 1 of 19
C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
K.K. Cooperative Group
Housing Society Ltd.,
R/o C-103, Plot No. 4,
Sector - 9, The KK Cooperative
Group Housing Society Ltd.,
Dwarka, New Delhi - 110077.
............. Respondents
Date of Institution : 13-03-2015
Date on which Order reserved : 30-01-2016
Date on which Order passed : 10-02-2016
ORDER
1.1 This order shall decide the revision petition filed by petitioner No. 1, Lt. Col. C.M. Upreti, petitioner No. 2, Sunil Sachdeva and petitioner No. 3, R.S. Rana (complainant No.s 1, 2 and 3 respectively, before the Ld. Trial Court) against order dated 17-12- 2014 of the Ld. Trial Court vide which application u/s 156 (3) Cr.P.C. moved by the complainants was dismissed.
2.1 The relevant facts leading to filing of the petition are that the complainants filed a complaint against respondent No. 1, Sh. K.K. Bhargava and respondent No. 2, Sh. K.L. Bhargava (named as accused No.s 1 and 2 respectively before the Ld. Trial Court) u/s 200 of the Cr.P.C. alleging, inter-alia, that they are residents and members of the KK Cooperative Group Housing Society Limited, located at Sector -9, Plot No. 4, Dwarka, Phase-I, New Delhi. The affairs of the society are managed by Managing Committee whose office bearers are elected by the members from amongst themselves. Accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava are the founding members of the society which is named after the initials of accused No. 1, K.K. Bhargava. The accused Crl. Rev. No. 01/15 10-02-2016 2 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
persons are holding key positions in the society since its inception. Accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava are habitual offenders. They have fraudulently and illegally enrolled 60 members in the society out of a total strength of 105 members from amongst their relatives and associates. All the relevant documents are under their control and out of reach of other members. The accused persons were holding key positions in the managing committee. Accused No. 1 also became President of the society after 17-02-1999.
2.2 It is further stated that accused No. 1, K.K. Bhargava circulated a tentative payment schedule dated 09-01-1994 to the members reflecting an amount of Rs. 50,000/-and Rs. 65,000/- to be paid by each member as cost of lift, depending upon the category of flat of the member. On 31-12-1997, the society signed a contract with M/s Bharat Bijlee Limited for installation and commissioning of 6 lifts in the society for a total consideration of Rs.39.24 lacs. As per the contract, the lifts were to be installed/commissioned by 31-10- 1998, which period could have been extended upto a maximum period of 50 weeks i.e. upto 15-01-1999. Various payments amounting to a total of Rs. 36,60,716/- were made to M/s Bharat Bijlee Limited as on 31-03-2001 but the accused persons failed to install and commission the lifts in the society within the stipulated time. Meanwhile, on 17-02-1999, accused No. 1, K.K. Bhargava, who was then an executive member in the managing committee, along with few other officers wrote a letter to other ordinary members alleging serious irregularities and misappropriation of society's funds etc. in the award of contract. On 16-08-2002, accused No. 1, K.K. Bhargava wrote a letter to the members and demanded additional sum of Rs. 19.85 lacs under the heads, "lift Crl. Rev. No. 01/15 10-02-2016 3 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
Balance Payment" and "Power Back-Up". During the period 01-04- 2003 to 31-03-2004, accused paid another sum of Rs. 2,04,000/- to M/s Bharat Bijlee Limited, however, lifts were not installed. The aggrieved members made a complaint to RCS in this regard who sought explanation from accused No. 1, K.K. Bhargava. Accused No. 1, K.K. Bhargava shifted the blame on Sh. Arun Khullar, Ex.- secretary, who by that time had sold his flat and left. Accused No. 1, K.K. Bhargava in collusion with accused No. 2, K.L. Bhargava had issued NOC to Sh. Arun Khullar. The RCS vide letter dated 29-09- 2003 directed the society to take action against Sh. Arun Khullar and furnish action taken report but till date, no action had been taken by the accused. As on 31-03-2004, the accused persons had collected a sum of Rs.72.35 lacs from the members, out of which a sum of Rs. 38.64 lacs had been paid to the company as per various audit reports.
2.3 It is also stated that during 2001-02, allotment was made and possession of flats was given to members without commissioning the lifts. On 17-12-2006, in the annual general body meeting of the society, when the agitated members sought to know the status of lifts, which were not installed till that date, accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava inter-alia, assured the members that they would file a complaint against M/s Bharat Bijlee Limited in State Consumer Dispute Redressal Commission for compensation of Rs. 45 lacs. Accused No. 1 and 2 again requested the members for payment of Rs. 30,000/- each for commissioning the lifts and power backup, as loan to the society, till the time the state commission passed an order in favour of society for Rs. 45 lacs. Although, the members rejected the said demand but later most of the members paid the said sum under protest and Crl. Rev. No. 01/15 10-02-2016 4 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
to mitigate their sufferings, under bonafide belief that the said amount of Rs. 30,000/- each would be refunded back once the decision of the State Commission was passed in favour of the society. A few members, who knew the dishonest ways of the accused persons resisted this demand. The accused persons however obtained favorable orders from Arbitrator by misleading the said Arbitrators.
2.4 It is further stated that in January 2007, a complaint was filed by the accused in Delhi State Commission on behalf of the society against M/s Bharat Bijlee Limited for compensation of Rs. 45 lacs. Meanwhile, accused issued list of outstanding dues of members as on 03-05-2008 reflecting names of members who had not paid Rs. 30,000/-. They also filed false cases u/s 70 of Delhi Cooperative Societies Act, 2003 (hereinafter referred to as DCS Act) against such members including petitioner No. 2, Sh. Sunil Sachdeva. The Arbitrator gave award in favour of petitioner No. 2, Sh. Sunil Sachdeva but the same has been challenged by accused No. 1, K.K. Bhargava before Delhi Cooperative Tribunal.
2.5 It is further stated that in the year 2009, the society contracted M/s Indo Fuji Pvt. Ltd. to install and commission lifts for a consideration of Rs. 21 lacs and later procured a DG Set for power backup for Rs. 5 lacs. However, the accused persons did not reveal the process for placing order on the said company. Thus, the accused persons spent a sum of Rs.64,64,000/- out of a total amount of Rs. 1,03,85,000/-. The balance sum of Rs. 39,21,000/- is missing from the society's account. The complaint filed before the State Consumer Dispute Redressal Commission was dismissed in default on 19-01-2010 as accused had deliberately failed to appear Crl. Rev. No. 01/15 10-02-2016 5 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
before the State Commission on four consecutive dates i.e. 20-07- 2009, 01-09-2009, 16-11-2009 and 19-01-2010. Two years later i.e. in the year 2012, the accused persons filed an application before the National Commission to get the complaint restituted in the State Commission. The National Commission did not find any merit in the petition and on 25-02-2012, the same was withdrawn by accused No. 1, K.K. Bhargava. Meanwhile, the aggrieved members had filed a petition before the RCS u/s 121 r/w section 128 of DCS Act, seeking sanction to prosecute the accused. On 29-02-2012, RCS granted sanction and directed the complainant to file FIR against the accused for their prosecution. A complaint was accordingly filed on 26-04-2014 against accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava vide DD No. 53-B at Dwarka South Police Station. A copy of the complaint was also sent to the concerned DCP. The complainants also personally met the SHO. However, FIR was not lodged. On 25-06-2014 and 02-07-2014, the complainants sent representation by e-mails to the Hon'ble Lt. Governor, Delhi. A reminder was also sent to DCP on 16-09-2014 but FIR was not registered. According to the complainants, accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava have committed various offences under DCS Act and IPC.
2.6 Along with the complaint, an application u/s 156 (3) Cr.P.C. seeking a direction for registration of FIR was also filed. The Ld. Trial Court called for the action taken report from the police station. The action taken report was filed on 26-11-2014. In the report, it was, inter-alia, concluded that the accused persons had till 16-08-2002, taken about Rs. 72 lacs from the members of the society as contribution for lift and construction work, the details of which had been given by the management of the society to the Crl. Rev. No. 01/15 10-02-2016 6 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
members. After 16-08-2002, complainant Sunil Sachdeva and R.S. Rana had not given any money to the society for lift and other maintenance. Complainant Lt. Col. C.M. Upreti has, in the year 2007, given Rs. 30,000/- for lift. If the complainant is not satisfied with the accounts of the management of the society, he could complain to RCS / Finance Commission.
2.7 In the impugned order passed on 17-12-2014, while dismissing the application u/s 156 (3) Cr.P.C., the Ld. Trial Court held, "In the opinion of this Court also, the matter is a financial dispute of a civil nature. The complainant has the appropriate remedy to approach a civil court for rendition of accounts or to challenge the order passed by the Arbitrator. Even otherwise, the police investigation is not required in the present case. In reference to the facts of the case, case titled as "M/s Skipper Beverages Pvt. Ltd. Vs. State' 2001 IV AD (Delhi) 625 can be relied upon. The complainant can lead evidence on his own. In case it is required, the Court shall conduct an enquiry u/s 202 CrPC.
In view of the same, the application is dismissed. However, in view of the allegations, I takes cognizance on the complaint under Section 200 CrPC. In view of the same, put up for PSE for 18.02.2015."
2.8 Thereafter, pre-summoning evidence has been recorded and the matter is now at the stage of arguments on summoning.
3.1 The impugned order has been assailed, inter-alia, on the grounds that while passing the impugned order, the Ld. Magistrate has wrongfully relied upon the status report filed by the Investigating Officer, which is full of defects, infirmities, misconstrued and irrelevant facts. The Ld. M.M. has, therefore, erred while stating under para 2 of the impugned order that the complainants had complained of offences "...such as illegal Crl. Rev. No. 01/15 10-02-2016 7 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
enrollment of members, etc." and that "The complainant made a complaint in this regard to the Registrar of Cooperative Societies who directed the registration of FIR against the accused persons vide order dated 24-07-2007 but FIR was not registered", whereas the same is not the substance and subject of the plaint filed by the complainants. The Ld. M.M. has also erred while stating under para 3 of the impugned order that "till date no lift has been installed"
which has not been alleged by the complainants. Thus, the Ld. M.M., has passed the impugned order by wrongly placing her complete reliance on the 'Status Report' filed by the IO without properly perusing the plaint. It is further stated that the accused have committed several cognizable offences under the DCS Act, as well as under IPC. The Ld. M.M. also failed to appreciate that Section 121 (3) of the DCS Act, 2003 provides that every offence committed under Section 118 of the DCS Act, for the purposes of Cr.P.C., shall be deemed to be a cognizable offence. In the instant matter, the accused have not only committed offences under Section 118 of the DCS Act but also under various sections of IPC.
3.2 It is also stated that the Ld. Trial Court has failed to understand the nature, substance and seriousness of the allegations made in the complaint and has hastily concluded in the impugned order that the complainant has the appropriate remedy to approach a civil court for rendition of accounts or to challenge the order passed by the Arbitrator, which is not even the subject matter of the complaints in question. The Ld. M.M. has also wrongly relied on M/s Skipper Beverages Pvt. Ltd Vs. State (supra) and ignored the guidelines with regard to registering the FIR, given by the five- judges bench of the Honorable Supreme Court in Lalita Kumari Vs. Government of U.P. AIR 2014 (SC) 187. The Ld. M.M. has Crl. Rev. No. 01/15 10-02-2016 8 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
wrongly formed her opinion by relying upon the unsubstantiated statements of the accused recorded by the Investigating Officer in his own handwriting. The IO simply recorded the statements of the accused as tutored to him by the accused without even verifying the truth in the statements, especially in the light of documentary evidence placed on record by the complainants. Further, the statements by the accused are un-connected with the complainants' allegations. The IO even failed to record the statements of the complainants, the aggrieved parties and key witnesses supporting the plaint. It is further stated that the accused have all along been the key office bearers in the Managing Committee of the society and have been holding one or the other key position since the inception of the society, by virtue of which all the vital records, relevant documents and books of accounts are in their possession and control. Hence, it was imperative for the IO to take custody of the books of accounts for verifying the true facts in the light of the allegations made by the complainants in their plaints.
4.1 Dr. K.S. Bhati, Ld. Counsel for the petitioners has generally argued on the same lines as the petition. He argued that the accused persons had in collusion with M/s Bharat Bijlee Limited cheated the society and members of the society by collecting a huge amount but not getting the lifts installed in the society. He contended that the accused persons have siphoned off a substantial amount of money collected from the members of the society. He also submitted that police investigation is required to ascertain whether the accused persons were in collusion with M/s Bharat Bijlee Limited, whether they had shared the amount of Rs. 40 lacs with M/s Bharat Bijlee Limited, whether they had taken Crl. Rev. No. 01/15 10-02-2016 9 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
bribe/unlawful benefit from M/s Bharat Bijlee Limited for not appearing before the State Commission and to find source of income of the accused and their assets/property which are disproportionate to their known sources of income, etc. Ld. Counsel has relied upon Lalita Kumari Vs. Government of U.P. (supra).
5.1 Sh. Ashok Chaitanya, Ld. Counsel for the respondents has submitted that the complaint by the petitioners is a counter blast to the action taken by the respondents for recovery of society's dues outstanding against the petitioners. He argued that the petitioners have themselves filed a complaint u/s 200 Cr.P.C., requesting the Ld. Trial Court to take cognizance of the offences and an application u/s 156 (3) Cr.P.C. seeking a direction for registration of FIR. The Ld. Trial Court had, thus, to proceed either u/s 200 Cr.P.C. or direct registration of FIR. Ld. Trial Court after consideration of all the material has decided to proceed u/s 200 Cr.P.C. in which case the application u/s 156 (3) Cr.P.C. had to be dismissed. He further contended that the allegations are mainly regarding mismanagement of the society. Every year, audit of the society's accounts is conducted and in case of any grievance with regard to the management of the society, necessary remedies are available to the petitioners under DCS Act. He also argued that u/s 139 of the DCS Act, petitioners have a right to access the record and they are in fact in possession of all the relevant documents which they have also filed before the Ld. Trial Court as well as in this Court. He submitted that the resolutions of general body of the society according to which actions were taken by accused No. 1, K.K. Bhargava and accused No. 2, K.L. Bhargava had not been challenged by the petitioners. Ld. Counsel has relied upon Crl. Rev. No. 01/15 10-02-2016 10 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
Manohar Singh and Anr. Vs. State and Others, (Crl. M.C. No. 1952/2009 decided by Hon'ble High Court of Delhi on 10-04- 2013), Ramesh Bhateja Vs. State and Others, (Crl. M.C. No. 147/2014 decided by Hon'ble High Court of Delhi on 13-01- 2014) and Gopal Krishan Dua Vs. State and Anr. (Crl. M.C. No. 1822/2010 decided by Hon'ble Supreme Court of India on 28-05-2014).
6.1 I have heard Dr. K.S. Bhati, Ld. Counsel for the petitioners and Sh. Ashok Chaitanya, Ld. Counsel for respondents and have also perused the record.
7.1 In this case, the crux of allegations levelled by the complainants is that the respondents have cheated and misappropriated a substantial amount out of funds collected by them from the members of the society for the purpose of installation of lifts in the society.
8.1 In Lalita Kumari Vs. Govt. of U.P. (supra), relied upon by Ld. counsel for the petitioner, a writ petition under Article 32 of the Constitution was filed by one Lalita Kumari (minor) through her father Sh. Bhola Kamat for issuance of a writ of habeas corpus for protection of his minor daughter who has been kidnapped. His grievance was that a written report was submitted by the petitioner before the officer incharge of the police station concerned, who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered. The matter was referred to a Constitution Bench seeking enunciation of law and adjudication on the point whether u/s 154 Cr.P.C., a police officer is bound to register an FIR when a cognizable offence is Crl. Rev. No. 01/15 10-02-2016 11 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR. The Hon'ble Supreme Court, after discussing in detail the law on the subject held, "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 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) xxxxxxxxx
iv) xxxxxxxxx
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.
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) xxxxxxxxx
viii) xxxxxxxxx"
8.2 From the above, it can be seen that the Hon'ble Apex Court has not precluded preliminary enquiry in all the cases. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry can be conducted to ascertain whether cognizable offence is disclosed or Crl. Rev. No. 01/15 10-02-2016 12 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
not. The cases in which preliminary enquiry is to be conducted will depend on the facts and circumstances of each case. Hon'ble Supreme Court has also listed certain category of cases, as illustrations, in which preliminary enquiry may be made. Certain financial disputes may also fall in the category of cases requiring preliminary investigation.
8.3 However, in this case, vide impugned order dated 17- 12-2014, the Ld. M.M. has dismissed application u/s 156 (3) Cr.P.C. moved by the complainants. Thus, it is pertinent to refer to Section 156 (3) Cr.P.C. which provides as under :-
" 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 case which a 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 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."
In sub clause (3), the use of word "may" shows that a Magistrate has to exercise discretion in deciding whether to order investigation or not.
8.4 The question as to how a Magistrate is to deal with an application u/s 156 (3) Cr.P.C. was dealt by the Hon'ble High Court of Delhi in Skipper Beverages Pvt. Ltd. Vs. State (supra), wherein it was held, "10. 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. The Section empower the Crl. Rev. No. 01/15 10-02-2016 13 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases 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 the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact."
8.5 In Sh. Subhkaran Luharuka & Anr. Vs. State (Govt of NCT of Delhi) & Anr., (170) 2010 DLT 516, the Hon'ble High Court laid down the procedure to be followed by the Magistrates while dealing with an application u/s 156 (3) Cr.P.C. as under :-
"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 reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional Crl. Rev. No. 01/15 10-02-2016 14 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
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 pre-requisites 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".
8.6 The law laid down in Skipper Beverages Pvt. Ltd. Vs. State (supra) and Subhkaran Luharuka & Anr. Vs. State (Govt of NCT of Delhi) & Anr. (supra) has been followed by Hon'ble High Court of Delhi in various judgments including Vikrant Kapoor Vs. The State & Ors., 187 (2012) DLT 241, Sonu Gautam @ Amit Kumar Vs. Prasad Saheb & Ors., (W.P. (Crl.) 836/2013, decided on 27-11-2013), Suresh Chand Dahiya Vs. State, 2014 (2) JCC 1451, Smt. Pankajani Swain Vs. State (NCT of Delhi) & Ors., (Crl. M.C. No. 2755/2013, decided on 20-05- 2014), Mohd. Yusuf Khan Vs. State & Anr. (Crl. M.C. No. 3468/2013, decided on 26-05-2014) and B.S. Rana Vs. Govt. of NCT of Delhi & Anr. (Crl. M.C. No. 3587/2013, decided on Crl. Rev. No. 01/15 10-02-2016 15 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
29-05-2014).
8.7 In B.S. Rana Vs. Govt. of NCT of Delhi and Anr. (supra), the Hon'ble High Court of Delhi held, "14. It is well settled law that when criminal complaint is filed before the Magistrate and upon perusal it is found that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.
15. The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police, an FIR should be ordered to be registered.
16. The law governing the choice to be exercised from amongst the two options has been settled by this Court in M/s. Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD (Delhi). In the said case it was held that a Magistrate must apply his mind before passing an order under Section 156(3) Cr.P.C. 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 the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
17. In Aleque Padamsee vs Union of India 2007 Crl. L.J. 3729 (SC), the Hon'ble Supreme Court observed that when the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to Crl. Rev. No. 01/15 10-02-2016 16 of 19 C.M. Upreti & Ors. Vs. K.K. Bhargava & Anr.
take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code.
18. Further, in another case Mona Panwar vs. High Court of Judicature of Allahabad through its Registrar & Ors., (2011) 3 SCC 496 it was held :
"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of the High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of the Code.
23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."
19. In the instant case, the parties are known to each other. The evidence on which respondent no. 2 /complainant relies is within her knowledge and control and if need were to arise for investigation, such possibility is not precluded as the Metropolitan Magistrate entered upon the inquiry under Section 200 and 202 Cr.P.C. Proviso to Section 202 Cr.P.C. permits such investigation to be ordered at an appropriate stage of the proceedings."
8.8 In Anil Sood Vs. The State and Another (Crl. M.C.
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No. 2240/2014 decided by Hon'ble High Court of Delhi on 09- 05-2014), it was observed, "9. In another case Gulab Chand Upadhyay vs. State (2002) Crl.L.J. 2907, it was held that the use of the word 'may' in Section 156 (3) Cr.P.C. clearly indicates that the Magistrate has the discretion to refuse registration of FIR."
9.1 From the above, it is clear that a Magistrate while dealing with an application u/s 156 (3) Cr.P.C. is not supposed to act mechanically and direct registration of FIR in every case in a routine or casual manner. Before directing registration of FIR, he is to satisfy himself that there is need for investigation by the police 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 the complainant or that custodial interrogation appears to be necessary for recovery of some article or discovery of fact or that the matter is such which calls for investigation by the State agency.
10.1 In the instant case, the allegations are with respect to misappropriation of a substantial amount out of funds collected by the accused persons from the members of the society for the purpose of installation of lifts in the society. There does not appear to be any relevant material/documents which is beyond the reach of the petitioners or which can not be produced by witnesses on being summoned by the court or which is required to be recovered by the police. The evidence on which the petitioners rely is within their knowledge and/or can be summoned by the court. Petitioners have already led pre-summoning evidence. If need were to arise for investigation by police, such possibility is not precluded, as proviso to section 202 Cr.P.C. enables the court to order such investigation.
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The Ld. Trial Court in its order has also observed that in case it is required the said court shall conduct an inquiry u/s 202 Cr.P.C.
11.1 In view of the aforesaid discussion, there does not appear to be any illegality, impropriety or incorrectness in the order dated 17-12-2014 of the Ld. Trial Court. The revision petition is accordingly dismissed.
12.1 Copy of this order along with Trial Court Record be sent to the Ld. Trial Court.
13.1 Revision file be consigned to the Record Room.
Announced in the Open Court today on 10th February, 2016.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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