Delhi District Court
Jai Chand Gaur vs Mr. Shiv Hari on 1 February, 2018
-: 1 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017
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. : 551/2017
Jai Chand Gaur
S/o Late Shri Ganpat Ram
R/o B-3, Mahavir Enclave,
New Delhi.
......... Revisionist
VERSUS
1. Mr. Shiv Hari
S/o Late Sh. Badam Singh
2. Mr. Hari Om
S/o Late Sh. Badam Singh
3. Sh. Anurag Gaur
S/o Sh. Hari Om
All r/o H. No. 209, Lamba Mohalla,
Village Shahbad Mohammad Pur,
New Delhi.
4. SHO
PS Dwarka-23
New Delhi.
.........Respondents
CR No: 551/2017 Page No.1 of 24 DOJ 01.02.2018
-: 2 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017
CR No. 551/2017
Date of Institution 05.12.2017
Reserved for orders on 18.01.2018
Judgment announced on 01.02.2018
JUDGMENT
1. This revision petition under section 397 Cr.PC is directed against order dated 05.09.2017 passed by Ld. ACMM(SW), Dwarka Courts, New Delhi whereby the Ld. ACMM has been pleased to dismiss the application under section 156(3) Cr.PC filed by the revisionist. Briefly stated relevant facts for disposal of the revision petition are as under :-
2. The present revision petition arises out of complaint case bearing no. 35/16 , titled as Jai Chand Gaur Vs. Shiv Hari & Ors. filed by the complainant (revisionist herein) against the accused persons (respondents herein).
3. The revisionist has filed a criminal complaint under section 200 Cr.PC for the offence punishable under sections 417/418/419/420/448/465/467/468/471/120B/34 IPC against accused no.1 Shiv Hari (respondent No. 1 herein), accused no.2 Hari Om (respondent No. 2 herein)and accused no. 3 Anurag Gaur (respondent No.3 herein) & other unknown persons.
4. In the complaint, the complainant has stated CR No: 551/2017 Page No.2 of 24 DOJ 01.02.2018
-: 3 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 that property measuring 975 sq yards in Khasra no. 256, situated in revenue estate of Village Shahbad Mohd. Pur, New Delhi was owned and possessed by his wife Late Smt. Sumitra Devi who expired on 16.02.2014 and her legal heirs executed the relinquishment deed in favour of complainant(revisionist herein) on 16.08.2014. It is further stated in the complaint that on 08.11.2014 at about 2.30 PM, Bhupesh Gaur and Lokesh i.e. sons of complainant went to the plot and they saw accused no. 1 & 2 ( respondent no. 1and 2 herein) along with some other persons raising construction on the said plot and when they objected to such constructions, accused no. 1 and 2 along with other persons stated that they are taking possession of the plot forcibly and then a call was made to the police and thereafter accused no. 1 and 2(respondent no. 1& 2 herein) along with other persons attacked them with the bricks, lathies and dandas etc. and they also damaged their car bearing no. DL4CNB4276. It is stated in the complaint that both the sons of complainant/revisionist were admitted in DDU hospital and their MLCs were prepared but doctors refused to hand over their MLCs and the police failed to take any action. It is stated in the complaint that thereafter application under section 156(3) Cr.P.C. was filed before Ld. ACMM, Dwarka Courts, New Delhi and vide order dated 21.01.2015 directions were issued for CR No: 551/2017 Page No.3 of 24 DOJ 01.02.2018
-: 4 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 registration of FIR and an FIR no. 27/15 u/s 323,341 IPC was registered at PS Dwarka 23.
5. It is stated in the complaint that respondent no. 1 to 3 had trespassed on the land of revisionist and raised illegal constructions also. It is stated in the complaint that respondent no. 3 had applied for electricity connection with BSES at Khasra No. 256 situated in village Shahbad Mohd.Pur, New Delhi and on the basis of false and frivolous documents, electricity meter bearing CA no. 151346958 was installed at the plot of complainant/revisionist in the name of respondent no. 3. It is further stated in the complaint that respondent no. 1 to 3 with intention to grab the property of revisionist had mentioned the khasra no. 257 in the documents and got installed the electricity meter at Khasra no. 256 and a complaint was made to BSES but no action was taken and subsequently a complaint was made to SHO, Dwarka-23, New Delhi but no action was taken. It is stated that thereafter complainant/revisionist has filed the complaint before the court.
6. Alongwith complaint under section 200 Cr.PC, the complainant(revisionist herein) also filed an application under section 156(3) Cr.PC for direction to SHO, PS : Dwarka-23, New Delhi to register the FIR against the accused persons. However, the said CR No: 551/2017 Page No.4 of 24 DOJ 01.02.2018
-: 5 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 application under section 156(3) Cr.PC was dismissed vide impugned order dated 05.09.2017 by Ld. ACMM, Dwarka Court, New Delhi.
7. Feeling aggrieved by the impugned order dated 05.09.2017, by which the application of the complainant(revisionist herein) was dismissed, the revisionist has filed the present revision petition.
8. The revisionist has challenged the impugned order dated 05.09.2017 on the ground that the same is based on conjectures and surmises and the impugned order has been passed without appreciating the facts and the law. It is stated in the revision petition that Ld. Trial court has wrongly observed that the dispute is of civil in nature and complainant can prove his case by leading evidence. Ld. Trial court has not considered that respondent no. 1 to 3 with intent to grab the property of revisionist had mentioned the khasra no. 257 in the documents and got installed the electricity meter at Khasra no. 256 and BSES had after receiving the complaint from the revisionist got the demarcation done from the revenue department and after enquiry, the officials of BSES had removed the electricity connection. It is further stated in the revision petition that trial court has not considered that the documentary evidence created by the respondent no. 1 to 3 can be investigated CR No: 551/2017 Page No.5 of 24 DOJ 01.02.2018
-: 6 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 by the police only. It is stated that impugned order dated 05.09.2017 is liable to be set aside.
9. I have heard the Ld. Counsel for the revisionist and carefully perused the record.
10. The complainant ( revisionist herein) has filed the complaint under Section 200 Cr.P.C. alleging that the respondent no.1 to 3 have committed forgery by obtaining false and frivolous documents in respect of plot measuring 975 Sq. yards in khasra no. 256 situated in revenue estate of village Shahbad Mohd.Pur, New Delhi which was in the name of wife of complainant.
11. As per order dated 01.09.2016 Ld. ACMM(SW) was pleased to direct for calling the action taken report from the SHO concerned and as per order dated 16.12.2016 status report was filed by the police. As per order dated 01.02.2017 IO stated that he has not issued the notice to the alleged persons asking them as to how they are the owners of the disputed plot and sought time to carry out inquiry in this regard. As per order dated 09.05.2017 another status report dated 08.05.2017 was filed by the police. In the status report dated 08.05.2017 the IO has submitted as under:
Most respectfully, in continuous to the previous report it is further submitted that during the course of inquiry of complaint of the complainant Jai Chand Gaur notice u/s 91 Cr.P.C.
CR No: 551/2017 Page No.6 of 24 DOJ 01.02.2018
-: 7 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 served to the complainant, who in his reply of notice provided the copy of documents of ownership of property in question and copy of Khasra Khatauni and Girdwari. As per the documents of complainant Smt. Bharpai W/o Late Meer Singh D/o Smt. Ram Kaur executed Agreement to Sell in favour of Smt. Sumitra Devi W/o Sh. Jai Chand Gaur on dated 10.10.1994. On the same day Smt. Bharpai executed General Power of Attorney in the favour of Complainant Jai Chand Gaur registered in the office of Sub Registrar Delhi. Whereas the complainant Jai Chand Gaur executed Sale Deed in favour of his wife Smt. Sumitra Devi on 07.10.1994 and later on the same Sale Deed was got registered from Sub Registrar of Bombay on 15.10.1994, whereas the complainant was not authorized as per his documents to execute the Sale Deed on 07.10.1994.
During the course of inquiry notice u/s 91 Cr.P.C. also served to the respondent Shiv Hari who in his reply provided the copies of documents of ownership of property in question copy attached. As per the documents the respondent Shiv Hari purchased 1 bighas 11 biswas out of khasra No. 256/1 (1-0) and 257(0-11) from Phool Singh in 09.10.1987 who purchased from Smt. Ram Kaur W/o Sh. Mirchi in 06.07.1973, 11 biswas out of Khasra No. 257/3(3-6) from Bharpai D/o Ram Kaur CR No: 551/2017 Page No.7 of 24 DOJ 01.02.2018
-: 8 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 on 26.05.1987, 550 Sq. Yds i.e. 1/6 Share out of khasra no. 1 etc. /257/3 from Bharat Singh and Jai Karan S/o Harphool in 22.07.1985, 275 Sq. Yds from Krishan on 16.11.1982 and 275 Sq. Yds from Murari on 29.07.1985 and 1/6 share i.e.11 biswas after the death of his father transfer to them.
During the course of inquiry request letter sent to Tehsildar Delhi Cantt. to verify the revenue record. As per the revenue record the share of Bharpai in Khasra No. 256 and 257 transferred to Sumitra Devi W/o Jai Chand Gaur. Verified Khatauni and Girdawari are also attached. A pencil note for deletion and cancellation of mutation of Smt. Sumitra Devi S/o Jai Chand Gaur is also on record of Khatauni. The respondents are in physical possession of property in question.
12. The complainant/revisionist is aggrieved by the impugned order dated 05.09.2017 of Ld. ACMM whereby his application under Section 156 ( 3) Cr.P.C. for registration of FIR was dismissed.
13. In the impugned order dated 05.09.2017, Ld. ACMM has been pleased to observe :
9. The dispute appears to be civil in nature. No custodial interrogation of the accused is required.
Civil suit between the parties is already pending. There are serious doubts on the documents relied by the complainant as the agreement to sell was CR No: 551/2017 Page No.8 of 24 DOJ 01.02.2018
-: 9 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 executed in between Bharpai and Sumitra Devi on 10.10.1994 whereas the GPA between Bharpai and Jai Chand Gaur is of dated 07.10.1994 and Jai Chand Gaur executed sale deed on 07.10.1994 in favour of his wife Sumitra. How he could have executed a document in favour of his wife. The complainant can prove his case by leading evidence. At this stage, no ground is made to register FIR particularly when other civil disputes are pending the parties. Hence, I do not find any ground to give directions for registration of FIR. The application u/s 156(3) Cr.P.C. is accordingly dismissed.
14. 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.
15. 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 CR No: 551/2017 Page No.9 of 24 DOJ 01.02.2018
-: 10 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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 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.
16. In Lalita Kumari v. Govt. of UP & Ors. 92014) 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: 551/2017 Page No.10 of 24 DOJ 01.02.2018
-: 11 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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: 551/2017 Page No.11 of 24 DOJ 01.02.2018
-: 12 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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.
CR No: 551/2017 Page No.12 of 24 DOJ 01.02.2018
-: 13 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017
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: 551/2017 Page No.13 of 24 DOJ 01.02.2018
-: 14 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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.
17. 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 regard to the limited nature of CR No: 551/2017 Page No.14 of 24 DOJ 01.02.2018
-: 15 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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.
XXXXXXXXXXXX XXXXXXXXXXXX
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 cases. This Court in Maksud Saiyed case examined the CR No: 551/2017 Page No.15 of 24 DOJ 01.02.2018
-: 16 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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. Xxxxxxxxxx xxxxxxxxxxx CR No: 551/2017 Page No.16 of 24 DOJ 01.02.2018
-: 17 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017
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.
Xxxxxxxxxxxxxx xxxxxxxxxxxxxx
32. We now come to the last question whether in the present case the Magistrate ought to have CR No: 551/2017 Page No.17 of 24 DOJ 01.02.2018
-: 18 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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 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.
CR No: 551/2017 Page No.18 of 24 DOJ 01.02.2018
-: 19 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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 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 CR No: 551/2017 Page No.19 of 24 DOJ 01.02.2018
-: 20 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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 otherwise and then examine if any offence is prima facie committed by all or any of the accused."
18. 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.
CR No: 551/2017 Page No.20 of 24 DOJ 01.02.2018
-: 21 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017
19. 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.
20. 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 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 CR No: 551/2017 Page No.21 of 24 DOJ 01.02.2018
-: 22 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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 20001 (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 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 CR No: 551/2017 Page No.22 of 24 DOJ 01.02.2018
-: 23 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 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.
21. The allegations of the complainant( revisionist herein) are that the property admeasuring 975 sq yards in khasra no. 256 situated in revenue estaet of village Shahbad Mohd.Pur , New Delhi was owned and possessed by his wife Late Smt. Sumitra Devi, who expired on 16.02.2014 and her Legal heirs executed the relinquishment deed in favour of complainant on 16.08.2014 and respondent no. 1 to 3 have committed forgery by obtaining false and frivolous documents in respect of plot admeasuring 975 Sq. yards in khasra no. 256 situated in revenue estate of village Shahbad Mohd.Pur, New Delhi.
22. In the impugned order dated 05.09.2017, Ld. ACMM has observed that the dispute appears to be civil in nature and no custodial interrogation of the accused is required. Ld. ACMM has been pleased to observe that there are serious doubts on the documents relied by the complainant as the agreement to sell was executed in between Bharpai and Sumitra Devi on 10.10.1994 CR No: 551/2017 Page No.23 of 24 DOJ 01.02.2018
-: 24 :- Jai Chand Gaur v. Shiv Hari & ors.
CR No: 551/2017 whereas the GPA between Bharpai and Jai Chand Gaur is of dated 07.10.1994 and Jai Chand Gaur executed sale deed on 07.10.1994 in favour of his wife Sumitra and how he could have executed a document in favour of his wife and the complainant can prove his case by leading evidence.
23. Looking at the nature of allegations as made in the complaint filed before Ld. ACMM, I am of the view that judicial discretion has been exercised by Ld.ACMM properly and in accordance with provisions of law. I find no infirmity in the impugned order dated 05.09.2017. The revision petition is devoid of merits and same is dismissed.
24. TCR be sent back to the court concerned along with copy of this judgment. Revision file be consigned to record room.
Announced in the open Court (HARISH DUDANI) today on 01.02.2018 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed HARISH by HARISH
DUDANI
DUDANI Date: 2018.02.01
16:08:21 +0530
CR No: 551/2017 Page No.24 of 24 DOJ 01.02.2018