Delhi District Court
Smt. Bharti vs Karan Singh Sankla on 25 May, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
REVISION PETITION No. 138/2021 (RBT 10/2023)
IN THE MATTER OF:
Smt. Bharti
W/o Sh. Vijender Sankla
D/o Sh. Satvir Singh,
R/o H.No. G-2/302, Madangir,
New Delhi
........ Revisionist
Versus
1. Karan Singh Sankla
2. Bhim Singh
3. Deepak Sankla
S/o Sh. Bhim Singh
4. Vijender Sankla
W/o Sh. Bhim Singh
5. Indira Singh
W/o Sh. Bhim Singh
All R/o H.No.F-12, J.J. Camp,
Tigri, New Delhi
....... Respondents
Instituted on : 08.01.2021
Reserved on : 22.05.2023
Pronounced on : 25.05.2023
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.25
16:53:28
+0530
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JUDGMENT
1. Vide this judgment, I shall dispose of the present revision petition under Section 397 Cr.P.C. moved on behalf of Ms. Bharti against the order dated 09.12.2020 of Ld. MM-04, South District in Case No.5660/2020 titled as "Bharti Vs. Karan Singh Sankla & Ors." whereby her application u/s 156(3) Cr.P.C. praying for registration of FIR against the respondents for offences u/s 379A/313/323/341/354/506/509/354B/34 IPC was dismissed.
2. Brief facts as per record are as under:-
The revisionist had filed a complaint u/s 200 Cr.P.C. alongwith an application u/s 156(3) Cr.P.C. against five persons, namely(1) Mr. Karan Singh Sankla, (2) Mr. Bhim Singh, (3) Mr. Deepak Sankla, (4) Mr. Vijender Sankla and (5) Ms. Indira Singh in October, 2020. It was alleged that in the month of August, 2018, the respondents in collusion with each other, had assaulted her and thrown her out of the matrimonial home. Since then, she has been residing at her parental home. It was further alleged that on 02.02.2019, the father of revisionist asked her father-in-law Bhim Singh Sankla and her husband to handover her jewellery and clothes so that same can be worn in the marriage of her cousin (bua's daughter), whereupon her father-in-law asked him to come tomorrow to take the same.
3. It was alleged that on 03.02.2019 in the evening at about 05:00 pm, the revisionist alongwith her cousin brother(mausi's son) went to her matrimonial home to take her jewellery and clothes. When she reached there,her mother-in-law Smt. Indira Singh said "Randi Phir Se Ghar Me Aa Gayi". She requested her mother-in- law to hand over her jewellery and clothes to be worn in the marriage of her cousin sister. However, she started abusing the revisionist and her devar Deepak, husband and Chachiya Sasur Karan Singh Sankla alongwith her father-in-law also came to her Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. Page 2/12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.25 16:53:39 +0530 room. Her devar Deepak said "Randi Tera Yaha Koi Kapde Aur Jewar Nahi he, humne To Tujhe Aur Tere Pet Me Pal Rahe Bachhe Ko Jaan Se Marne Ke Liye Aur Tujhe Nangi Karke Yahan Se Bhejne Ke Liye Bulaya Hai." When the revisionist made her protest, her husband put his hand on her mouth and devar Deepak and Chachiya Sasur Karan Singh Sankla forcibly torn her blouse and saree. Her mother- in-law caught and pulled her hair. Her devar gave kick blow on her stomach. Her cousin brother, namely, Akash intervened to save her and then only she could be saved. It was further alleged that the aforesaid respondents started beating her father and cousin brother Akash. Her mother-in-law threatened "Aaj In Sabko Kaat Kar Fenk Denge". It was further alleged that thereafter, she alongwith her father and cousin brother was beaten mercilessly with lathi/danda as well as fist and leg blows. On hearing their screams, public started gathering there whereupon the respondents forcibly detained her and her family members in a room and bolted the same. They also forcibly snatched the mobile. When the public persons tried to enquire about the same, the respondents alleged that the revisionist and her family came to commit dacoity in their house. After sometime police reached the spot and took her, her father and brother to Police Station Sangam Vihar. However, due to the said beatings, the condition of the revisionist became vulnerable as she was 8 ½ months pregnant at that time. The revisionist was medically examined at Safdarjung Hospital, New Delhi and MLC was prepared.
4. It was further alleged that prior to this incident, on 14.04.2018, the respondent Deepak had tried to outrage her modesty and touched her private parts,however when she made her protest, he gave kick blow on her stomach, as a result of which she suffered a miscarriage. However, the revisionist in order to save her marriage and because of undue influence of the respondent no.2 and 4 did not lodge complaint against him with police. A complaint was made to SHO PS Sangam Vihar as well as DCP Hauz Khas on 04.02.2019 through speed post, however no Digitally signed by Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. SUNIL Page 3/12 SUNIL GUPTA GUPTA Date:
2023.05.25 16:53:51 +0530 action was taken. It has been mentioned therein that after establishment of PS Tigri, her complaint has been transferred from PS Sangam Vihar to that PS. As no action was taken on her complaint to the police, so the application u/s 156(3) Cr.P.C. was filed before Ld. Ilaka Magistrate in October, 2020 for necessary directions to police for registration of FIR for the offences u/s 379A/313/323/341/354/506/509/354B/34 IPC against the respondents. After considering the action taken report (ATR) filed by the police and arguments alongwith material on record, Ld. Magistrate dismissed the said application vide order dated 09.12.2020. That order is being challenged in these proceedings.
5. Arguments heard.
It was argued by Ld. Counsel for revisionist that the impugned order is bad in law as same has been passed by ignoring the settled law and judicial principles. It was submitted that the revisionist was 8 ½ months pregnant at the time of alleged incident but despite that, police official did not take her for medical treatment and also did not register an FIR even after her complaint. It was submitted that Ld. Magistrate failed to take into account Section 166A IPC as per which it was mandatory for the police officials to register an FIR in the given facts as same discloses commission of an offence against a woman and non registration thereof was a punishable offence. It was further submitted that registration of FIR was necessary in this case as call detail record between her father and respondent no.2 is required to be obtained alongwith recovery of weapons used by respondent and CCTV footage of the area which can be done only through investigation by police. It was also submitted that reliance placed by Ld. Magistrate on the judgment of Hon'ble Apex Court in Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. dated 19.03.2015 and on the judgment of Hon'ble Delhi High Court in Skipper Beverage Pvt. Ltd. Vs. State 2002 Crl. LJ NOC 333 (Delhi) was not correct in given facts. Prayer has been made for allowing the revision petition by setting aside the impugned order.
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6. Per contra, it was argued by Ld. Counsel for respondents that there is no illegality in the impugned order and same has been passed after properly appreciating the material available on record. It was submitted that matrimonial dispute was going on between the parties. It was submitted that in fact on the fateful day, FIR No. 103/2019 u/s 452/323/509/506/34 IPC was lodged against the revisionist and her family members and charge-sheet has been filed in the same after completion of investigation. It was argued that the application u/s 156(3) Cr.P.C. was filed before Ld. Magistrate in counter blast to that case just to harass the respondents. It was also submitted that the revisionist had moved the said application before Ld. Magistrate after a considerable delay without providing any explanation thereof. It was also submitted that the revisionist herself can establish the allegations by leading evidence and there was no requirement of any investigation by the police. Prayer has been made for dismissal of the revision petition.
7. I have considered the arguments of Ld. Counsel for revisionist alongwith record.
The application u/s 156(3) Cr.P.C. moved on behalf of revisionist was dismissed by Ld. Trial Court by making following observations:-
"Now coming to merits of present application, it is to observe that as per the allegation in the complaint, it is the sole version of the complainant which has to be established. Same can be established by the complainant at her own, if she is allowed to pursue the matter as a complaint case and I do not find any requirement of investigation by the police.
In this regard, reliance is placed upon authority of "M/s Skipper Beverages Pvt. Ltd. Vs. State 2002 Crl. LJ NOC 333 (Delhi), it has been held that, "it is true the Section 156(3) of the Code empowers to a Magistrate to direct the police to register a case and initiative investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those Digitally Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. signed by Page 5/12 SUNIL SUNIL GUPTA GUPTA Date:
2023.05.25 16:54:07 +0530 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 order under Section 156(3) of the Code. The discretion ought to be exercised after proper application of the mind and only in those cases where the Magistrate is of the view that the nature of allegations is such that the complainant himself may not be in position to collect and produce evidence before the Court and interests of justice demand that the police should step into held the complaint".
"Accordingly, in view of aforesaid discussion, I am of the view that it is not a fit case to allow the application u/s 156(3) Cr.P.C. Same is hereby dismissed. Case is registered as a complaint case and cognizance is taken on the basis of complaint and opportunity is granted to the complainant to prove his case by way of PSE."
8. Main argument of Ld. Counsel for revisionist is that the allegations clearly indicate commission of cognizable offence against a woman u/s 354/354B IPC, so registration of an FIR by police was mandatory and Ld. Trial Court could not have dismissed the application u/s 156(3) Cr.P.C. moved by him. He has relied upon judgment of Hon'ble Apex Court in Lalita Kumari Vs. Government of U.P. & Ors. Writ Petition (Criminal) No. 68/2008 and Section 166A IPC. In Lalita Kumari (supra), the question before Hon'ble Apex Court was as to whether a police officer is bound to register a FIR upon receiving any information relating to commission of a cognizable offence u/s 154 Cr.P.C. or the police officer has the power the conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same. After discussing several relevant provisions and judgments, Hon'ble Supreme Court answered the said question in following manner:-
"111) In view of the aforesaid discussion, we hold: Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.25 16:54:15 +0530 Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. Page 6/12
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) 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.
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 Digitally signed by SUNIL Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. SUNIL GUPTA Page 7/12 GUPTA Date:
2023.05.25 16:54:24 +0530 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 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."
9. Section 166A IPC provides as under:-
"166A. Public servant disobeying direction under law.- Whoever, being a public servant,-
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of Section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine. "
10. From the material on record, there are following undisputed facts:-
(i) A matrimonial dispute between the revisionist and her husband/ in-laws was going on before the date of alleged incident i.e. 03.02.2019.
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(ii) On 03.02.2019, the revisionist, her father and her cousin brother had visited her matrimonial home.
(iii) A quarrel took place between the parties regarding which call was made to police at 100 number.
(iv) Written complaints were sent separately to the police by both the parties regarding the alleged incident.
(v) Police authorities did not take any action on those complaints and thereafter, an application u/s 156(3) Cr.P.C. was moved before Ld. Magistrate at the instance of respondent no.5 praying for registration of FIR against the revisionist, her father and cousin brother which was allowed by Ld. Magistrate vide order dated 06.04.2019 whereupon FIR No. 103/2019 was lodged at PS Tigri for the offences u/s 452/323/509/506/34 IPC. Chargesheet has been filed in that case for those offences on 16.03.2020 and revisionist alongwith both her family members was summoned for 26.05.2020.
(vi) The application u/s 156(3) Cr.P.C. was filed on behalf of revisionist in September, 2020 i.e. after she was summoned as accused in FIR No.103/2019, PS Tigri.
11. As mentioned earlier, non registration of FIR by police for certain offences against women including offence under Section 354 IPC and Section 354B IPC is an offence in itself as per Section 166A IPC which is punishable with imprisonment as well as fine. Said provision was inserted by The Criminal Law (Amendment) Act, 2013 with an aim to provide additional safeguards to women in cases of acid attacks and sexual offences. The alleged incident pertains to the year 2019 i.e. after the insertion of Section 166A IPC in the statute. So, ideally the police officials should have on their own registered the FIR for alleged offences including the offence u/s 354/354B IPC.
SUNIL Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. GUPTA Page 9/12 Digitally signed by SUNIL GUPTA Date: 2023.05.25 16:54:43 +0530
12. Main argument of Ld. Counsel for respondents is that the allegations are false and same have been so leveled in counter blast to their complaint on which FIR was registered and the revisionist alongwith her relatives has been charge-sheeted. It was further argued by him that same is being done just to harass them. In Lalita Kumar (supra), one of the arguments before Hon'ble Apex Court was that mandatory registration of FIRs will lead to arbitrary arrest, which will directly be in contravention of Article 21 of the Constitution. Said argument was dealt with by Hon'ble Court in following manner:-
"98) While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law, and there are several safeguards available against arrest. Moreover, it is also pertinent to mention that an accused person also has a right to apply for "anticipatory bail" under the provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an order from the Court. "
13. It was further observed by Hon'ble Apex Court as under:-
"100) The registration of FIR under Section 154 of the Code and arrest of an accused person under Section 41 are two entirely different things. It is not correct to say that just because FIR is registered, the accused person can be arrested immediately. It is the imaginary fear that "merely because FIR has been registered, it would require arrest of the accused and thereby leading to loss of his reputation" and it should not be allowed by this Court to hold that registration of FIR is not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence. "
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14. Like in any other case, in this case also, it cannot be said with certainty at this stage as to whether the allegations leveled by the revisionist are correct as this fact can be ascertained only after a thorough investigation by the police and the possibility of false allegations having been leveled just to harass the respondents cannot be a ground to refuse registration of FIR because the allegations pertain to commission of sexual offence against a woman. In Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. Crl. Appeal No. 781/2012, Hon'ble Apex Court had given a direction to the effect that every application u/s 156(3) Cr.P.C. should be supported by an affidavit and that the factum of prior applications u/s 154(1) and Section 154(3) have to be clearly spelt out in the petition u/s 156(3) Cr.P.C. Admittedly, the revisionist had filed the requisite affidavit before Ld. Trial Court. She has also clearly mentioned in her application u/s 156(3) Cr.P.C. that the complaint was made to SHO as well as DCP concerned on 04.02.2019 by speed post and this fact has not been denied by the respondents.
15. Considering the above discussion including the intention of legislature in giving special attention to offences against women by inserting Section 166A IPC, this Court is of the view that Ld. Trial Court fell in error in declining to issue directions to police for registration of FIR and for conducting investigation thereafter. In sexual offences, the possibility that entire case can be proved by way of sole testimony of the victim, cannot be a ground to decline the request for registration of FIR u/s 156(3) Cr.P.C. Delay in moving such application before Ld. Magistrate in this matter is also of no consequence for the same reason. The impugned order dated 09.12.2020 cannot be sustained in law for the reasons mentioned above. Same is hereby set aside.
16. SHO, PS Tigri is directed to register an FIR against the respondents for the alleged offences on the basis of complaint originally received by him in the year Digitally Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. signed by Page 11/12 SUNIL SUNIL GUPTA GUPTA Date:
2023.05.25 16:55:10 +0530 2019 and to investigate the case as per law within seven days of receipt of copy of this order. Needless to say that the investigating agency should not rush to arrest the respondents immediately after registration of FIR and relevant provisions of law alongwith directions of Hon'ble Apex Court in this regard shall be meticulously adhered to.
Revision petition stands disposed of in above terms. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.25 16:55:18 Announced in the open (Sunil Gupta) +0530 Court on 25.05.2023. Additional Sessions Judge-06 South, Saket Courts, New Delhi Cr.Rev. 138/2021 Bharti Vs. Karan Singh Sankla And Ors. Page 12/12