Delhi District Court
Neelam @ Leela vs State on 7 April, 2018
IN THE COURT OF SH. SANJAY KHANAGWAL
SPECIAL JUDGE (PC ACT)-05 (ACB), CENTRAL,
TIS HAZARI COURTS, Delhi
Crl. Revision . No. 154/2018
Neelam @ Leela
wife of Sanjay
R/o Q. No.13, Near SDM Office,
Tis Hazari Court, Delhi.
..........Petitioner
Versus
1.State
2.Mariyam W/o Late Shamsher Singh
R/o H. No.13, Court Compound,
Tis Hazari Court, Delhi.
..........Respondents
JUDGMENT:-
1). This revision petition has been filed on behalf of petitioner U/s 397/399 CrPC as to the correctness, legality and proprietary of impugned order dated 24.1.2018 and 26.2.2018 passed by Ld. MM (Central), Tis Hazari Court, Delhi.
2). As per the brief facts of the case that on 17.3.2017 information was received at PP Tis Hazari court, PS Subzi Mandi Delhi from PCR Control Room as Crl.Revision No.154/18 1/9 Neelam V. State well as from St. Stephen's Hospital that one Sanjay Kumar @ Sonu aged about 30 years was admitted in St. Stephen's Hospital, who had been declared brought dead by the concerned doctor. Inquest proceedings U/s 174 CrPC was initiated, post mortem of the body of the deceased was conducted and viscera was sent for further examination.
Thereafter, mother of deceased Ms. Mariyam alleged hand of Ms. Leela @ Neelam, the wife of deceased in his death, in view of the same the grave of the deceased was reopened on 7.4.2017. Re-post mortem under the supervision of Board of Doctors was conducted. In the said PM report, doctor has opined that deceased having suffered from coronary artery disease. The said report dated 6.2.2018 on the basis of PM report and viscera analysis concluded that "the death in this case occurred due to coronary artery disease and its complication, being precipitated by acute alcohol intoxication". No foul play has been reported in the said PM report.
3). It has been submitted on behalf of the petitioner that in view of the PM and viscera chemical analysis report, nothing abnormal was found in the death of the deceased. The respondent had alleged baselessly against the petitioner having hand in his death. Despite, having produced all facts and circumstances by the IO before the Trial Court, it was erred in passing the order of Crl.Revision No.154/18 2/9 Neelam V. State registration of FIR in the death of her husband. No registration, investigation is required in the death of the deceased.
So far as, arguments on the maintainability of the present petition Ld. Counsel for the petitioner filed judgement of Hon'ble High court Nishu Wadhwa Vs. Sidharth Wadhwa Anr. W.P. (CRL.) 1253/2016 in support and argued that the present revision petition is not filed against an interlocutory order, the impugned orders covers the important rights and liabilities of the parties, substantially affects the rights of the petitioner.
4.) Per contra, it is argued on behalf of the respondent that no satisfactory investigation is carried out by the police authority, some photographs of the deceased has been produced to show the presence of blood near his nostrils. It is further submitted that tongue of the deceased was struck between the teeth. Both the conditions are not possible in case of the death by coronary artery disease.
It is further submitted on 6th March 2017, even prior to the death of Sanjay Kumar @ Sonu respondent had filed a complaint raising apprehension of threat from petitioner and her family members to the life of deceased. Thereafter, on 17.3.2017, 22.3.2017 complaints were filed regarding the foul play in the death of Sanjay Kumar @ Sonu. It is further argued by Ld. Counsel that IO has taken considerably long time in Crl.Revision No.154/18 3/9 Neelam V. State complying with the order of Ld. MM dated 24.1.2018 and 26.2.2018, whereby, directions were passed to register the FIR. A thorough investigation is required as to ascertain the truth behind the sudden death.
5.) In view of the submissions made on behalf of both the parties and on perusing the material on record and Trial court record, I am of the view that so far as contention of Ld. Counsel for the respondent that present petition is not maintainable, same is unfounded due to the reason that by dismissing or allowing an application U/s 156(3) CrPC, it amounts to adjudication of a valuable right in favour of accused or the complainant. Such order are in the nature of final order terminating the proceedings which would be revisable under the revisional power of Sessions Court or the Hon'ble High Court. Reliance is placed on the judgement of Hon'ble High court Nishu Wadhwa Vs. Sidharth Wadhwa Anr. W.P. (CRL.) 1253/2016 where it was held that:-
"11. The Division Bench of Bombay High Court in the decision reported as 2015 SCC Online Bom 5197:2016 ALLMR (Cri) 985 Avinash and Ors. v. The State of Maharashtra and Ors held that the order passed directing police to investigate under section 156(3) of the code is not an interlocutory order, but in the nature of a final order terminating the proceeedings under section 156(3)of the Code Crl.Revision No.154/18 4/9 Neelam V. State which would be revisable under the revisional powers of the Sessions court or the High Court.
12. It is trite law that once directions are passed by the learned Magistrate under section 156(3) CrPC directing registration of FIR he becomes functus-officio. (See (2016) SCC online del 5490 M/s. Gabrani Infrasctucture Pvt. Ltd. vs. M/s. Unitech Hi-Tech Developers Limited & Ors and MANU/Gj/7486/2007 Randhirsing Dipsinh Parmar V. state of Gujarat & Ors.)Thus, disposing of an application under Section 156(3) crPC amounts to adjudication of a valuable right whether in favour of the accused or the complainant.
13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under section 156(3) CrPC. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediaely, on registration of FIR, the person against whom allegations are made in the fIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable ofences are duly affected. In a situation where the fundamental right of Crl.Revision No.154/18 5/9 Neelam V. State freedom and liberty of a person is afected, it cannot be held that he has no right to be heard at that stage. Thus told hold that since directions only have been issued under Section 156(3) CrPC and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156(3) CrPC is not an interlocutory order and a revision petition against the same is maintainable."
In the present case Ld. MM has directed the SHO to register the FIR in view of several suspicion raised by the respondent as to the death of the deceased Sanjay Kumar. There are complaints prior to the death and after the death of the deceased filed by the respondent to the police station Subzi Mandi. Not only that, the petitioner has also filed several complaints with respect to the matrimonial dispute, against the respondent and her husband i.e. deceased Sanjay Kumar @ Sonu. The complaints which has been filed by the respondent raising the suspicion over the death of the deceased are required to be investigated thoroughly in the light of the allegations made by the respondent. Such complaints were filed on 22.3.2017. In pursuance to the same, the grave of deceased was reopened on 7.4.2017 for re-post mortem to the dead body and same was conducted by the board of doctors of MAMC vide PM No. 284/2017. Ld. Crl.Revision No.154/18 6/9 Neelam V. State MM vide order dated 24.1.2018 while observing the post mortem report and without waiting the viscera report passed a direction to SHO PS Subzi Mandi to register FIR under the relevant provisions of law and start the investigation.
Even after passing the direction to register the FIR no such FIR has been registered due to the reason that during the course the viscera report was received and no foul play was reported in the same. The SHO should have registered the FIR in compliance of the directions and should not have waited for the viscera report as Ld. MM already observed this fact that same was also not received on the date of passing of the order i.e. 24.1.2018 of registration of the FIR.
Section 154 CrPC, provides that every information related to the commission of a cognizable offence when brought before the police officer the concerned officer is bound to register an FIR. It is not the prerogative or free will or privilege of police officer to whimsically decide that in what case to register an FIR or not. In case where prima-facie material was laid by the complainant disclosing commission of cognizable offence, that too an offence of such a heinous nature, the SHO should have registered the FIR even without the order of Ld. MM.
It is a misconception that the registration of an FIR must necessarily led to an arrest of a suspect of the crime as it is entirely depends on each case as there may be Crl.Revision No.154/18 7/9 Neelam V. State cases where the arrest of the accused may be essential and others where the police may require more incriminating evidence for apprehending the accused. It is thus a settled law that mere registration of FIR in every case may not result into arrest of a person accused of the offence. Reliance is placed on Radha Vs. State 179(2011) DLT 810.
The information of a cognizable offence as brought on record by the respondent is required to reach to a logical end. Only after conducting the investigation the veracity of complaint and information brought by the complainant can be ascertained. It is true that there are post mortem and viscera report are there which does not disclose commission of any offence in the death of the deceased but same is also required to be examined in the light of the complaint filed by the respondent. Law does not bar the IO to file a cancellation or closure report if no offence is made out but same cannot be concluded by way of the inquest report U/s 174 CrPC without examining the complaints of commission of offence.
6). Therefore, I do not find any infirmity in the impugned order dated 24.1.2018, 26.2.2018 of Ld. Trial Court. The concerned SHO is directed to complied with the impugned orders within 48 hours. The Stay granted on 5.2.2018 is hereby vacated. Revision petition is accordingly dismissed.
Crl.Revision No.154/18 8/97). Trial court record be sent back immediately with the copy of this judgment.
8). File of appeal be consigned to record room.
Digitally signed by SANJAY SANJAY KHANAGWAL
KHANAGWAL Date: 2018.04.09
15:21:27 +0530
Announced in open court (SANJAY KHANAGWAL)
on 7th day of April, 2018 Spl.Judge (PC ACT)-05(ACB)
Central /THC/Delhi
Crl.Revision No.154/18 9/9
Neelam V. State