Delhi District Court
Vikas Gupta vs State on 11 March, 2025
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNW01-009401-2024
CR 311-24
Vikas Gupta v. State & Ors.
11.03.2025
Present: Revisionist through VC.
Sh. G.S. Guraya, Ld. Chief PP for State/R1.
Sh. Davesh Bhatia, Sh. Sadre Alam, Advs. with Sh.
Alok Kumar, Sr. Adv. for R2 & R3.
ORDER
The present revision has been preferred impugning the order dated 10.09.2024 vide which the Ld. Magistrate has dismissed the application u/s.156(3) Cr.P.C.
2. The brief facts giving rise to the present revision are that Sh. Vikas Gupta (hereinafter referred as complainant/ revisionist) filed the complaint that Shri Hanuman Sewa Trust was created by seven founder trustees vide trust deed dated 31.03.2009 registered with the Sub-Registrar-VI-A, North-West District. It is alleged that the trust deed can be amended by VIRENDER simple majority of the General Body and be got registered by the KUMAR President or the General Secretary. It is alleged that the proposed BANSAL accused in conspiracy with each other with the dishonest and Digitally signed fraudulent intention to grab the property of the trust without by VIRENDER KUMAR calling general body meeting carried out the amendments in the BANSAL Date:
2025.03.11 trust deed which was got registered on 31.03.2009 and got 15:40:00 +0530 Page 1 of 20 registered amended trust deed dated 28.01.2020 with the Sub- Registrar-VI-A, by furnishing false declaration and information. It is also alleged that the proposed accused persons have also forged the signatures of Sh. Rajiv Aggarwal, Founder General Secretary and one of the trustees of the trust for operating the bank accounts of the trust. The complaints were made to the SHO and the DCP. Though the complaint discloses commission of cognizable offences punishable u/s.405/406/420/467/468/471 r/w Section 34 & 120B IPC but no action has been taken by the police and hence, the complaint was made before the Ld. Judicial Magistrate. Ld. Judicial Magistrate called for the report from the police. The action taken report was filed by the police, according to which during enquiry, Acharya @ Vijay Bhatia, one of the proposed accused, provided the amended trust deed and the documents related to the annual governing body meeting of 2017, 2018 & 2022. According to the documents, the proposed amendments in the trust deed and confirmation through public meeting were discussed in the meeting and only thereafter the new trust deed was executed.
3. It is also mentioned in the report that the complainant has already filed a civil suit for cancellation of the alleged amended trust deed in the case bearing no. SCJ/1262/2023 and is pending adjudication. Ld. Trial Court, after hearing the VIRENDER arguments and considering the facts, dismissed the application, KUMAR BANSAL which is impugned in the present revision.Digitally signed by VIRENDER
4. Notice of the revision was given to the State and also to KUMAR BANSAL Date: 2025.03.11 the proposed accused, who are now respondents no. 2 to 5. Trial 15:40:06 +0530 Page 2 of 20 court record was requisitioned. Revisionist himself argued the matter. I have also heard Ld. Chief PP for State and the counsel for the respondents.
5. The revisionist submitted that he is patron trustee of the trust. He made a complaint dated 16.09.2023 to the DCP and also to the SHO but no action has been taken. There are serious allegations made relating to the forgery committed by the proposed accused persons to grab the property of Shri Hanuman Sewa Trust by fabricating and forging the documents, which they have done in connivance with each other. The police officials had not registered any FIR and have not conducted any enquiry.
He submitted that though Section 154 Cr.P.C. mandates that if the complaint discloses cognizable offence then the police shall register the FIR and investigate but in the present case police had not conducted any investigation and had acted under the mechanical dictation, aid, advice, instructions and control of the proposed accused, who are the respondents herein.
6. The revisionist further submitted that the four founder trustees and the other office bearers of the trust had given their statements in detail in respect of the commission of forgery for the purposes of cheating but despite that no FIR was registered. The revisionist submitted that a fraudulent action taken report VIRENDER KUMAR was also filed by the police and he had also filed the objections BANSAL regarding the same. Even the Ld. Magistrate has not considered all the facts and dismissed the application u/s.156(3) Cr.P.C. Digitally signed by VIRENDER KUMAR though the complaint discloses the commission of cognizable BANSAL Date:
offence. The order passed by the Ld. CJM is unjust and 2025.03.11 15:40:12 +0530 Page 3 of 20 unreasonable contrary to the principles of natural justice. Ld. CJM has not gone through the judicial record and had not appreciated the facts. Revisionist submitted that the application has been dismissed in mechanical manner without considering the fact that to unearth the truth and to bring on record the material, the custodial interrogation of the respondents/proposed accused is required and intensive investigation has to be carried out with respect to the forged documents i.e. the amended trust deed particularly when the founder trustees of the trust, at no point of time, have given their consent verbally or in writing for carrying out the amendments.
7. The revisionist further submitted that Ld. CJM has totally failed to consider that all the material documents are in the care, custody, possession and control of Sh. Vijay Bhatia @ Acharya and hence those have to be recovered. Even the details of the bank accounts have to be taken out and for that purpose custodial interrogation of Sh. Vijay Bhatia @ Acharya is required but Ld. CJM, without considering all these facts and appreciating the material available, dismissed the application without applying the law as laid down by the Hon'ble Supreme Court and the other Courts.
VIRENDER KUMAR
8. The revisionist in support of his arguments relied upon BANSAL the judgment cited as Kailash Vijayvargiya v. Rajlakshmi Chaudhuri & Ors., Crl. Appeal No. 1581, 1582 & 1583 of 2021, Digitally signed by wherein it has been observed as under: VIRENDER KUMAR
14. The question, whether the Police is bound to register a First BANSAL Information Report (FIR) for a cognizable offence under Section Date:
2025.03.11 154 on receiving the information as such or has some latitude for 15:40:18 +0530 Page 4 of 20 conducting preliminary inquiry before registration of FIR, had led to the decision of the Constitutional Bench in Lalita Kumari (supra). In this case, one of the arguments raised was that when an innocent person is falsely implicated, he suffers mental tension, loss of reputation and his personal liberty is seriously impaired and, therefore, Section 154 of the Code should be read and interpreted in conformity with the mandate of Article 21 of the Constitution. Harmonizing the delicate balance to be maintained between the rights of the victim and the accused, it was opined, there are sufficient safeguards provided in the Code itself to protect liberty of an individual against registration of a false case.
However, as Section 154 has been drafted keeping in mind the interest of the victim, and their right to have access to fair and independent investigation, the mandatory registration of FIRs under Section 154 will not contravene Article 21 of the Constitution. Drawing on several earlier judgments and the language of Section 154 of the Code, it was held that the Police is bound to proceed to conduct investigation, even without receiving information about commission of a cognizable offence if the officer in-charge otherwise suspects the commission of such an offence. The legislative intent is to ensure that no information of commission of a cognizable offence is ignored and not acted upon, which would otherwise result in unjustified protection of the alleged offender/accused. Every cognizable offence must be promptly investigated in accordance with the law. This being the legal position, there is no reason that there should be any discretion or option left with the Police to register or not to register an FIR 7when information is given about commission of a cognizable offence. This interpretation in a way keeps a check on the power of the Police, which is required to protect the liberty of individuals and society rights inherent in a democracy. It is the first step which provides access for justice to a victim and upholds the rule of law, facilitates swift investigation and sometimes even prevents commission of crime and checks manipulation in criminal cases.
15. To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of the Code. While registration of an FIR is mandatory, the arrest of the accused on registration of the FIR is not. FIR is registered on the basis of information without any qualification like credible, reasonable or true information. VIRENDER Reasonableness or credibility of information is not a condition KUMAR precedent for registration of the FIR. However, for making arrest BANSAL in terms of Section 41(1)(b) or (g), the legal requirements and mandate is reflected in the expression 'reasonable complaint' or 'credible information'.
Digitally signed by VIRENDER KUMAR BANSAL9. The revisionist in support of his arguments relied upon Date:
2025.03.11 15:40:25 +0530 Page 5 of 20the judgment cited as Kuldeep Singh v. State, 1994 Cr.L.J. 1502, wherein it has been observed as under:
The police is bound to register the information received of commission of cognizable offence unless the information is vague, incomplete or does not disclose cognizable offence.
10. The revisionist in support of his arguments relied upon the judgment cited as Nirmal Singh Kahlon v. State of Punjab and others, Civil Appeal Nos. 6198-6199 of 2008 (Arising out of SLP (C) Nos. 24777 - 24778 of 2005), wherein it has been observed as under:
Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation.
11. The revisionist in support of his arguments relied upon the judgment cited as K.V. Rajendran v. Superintendent of Police, CBCID, South Zone, Chennai, (2013) 12 SCC 480, wherein it has been observed as under:
This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the VIRENDER State police lacks credibility and it is necessary for having "a fair, KUMAR honest and complete investigation", and particularly, when it is BANSAL imperative to retain public confidence in the impartial working of the State agencies.
12. The revisionist in support of his arguments relied upon Digitally signed by VIRENDER the judgment cited as Anant Thanur Karmuse v. The State of KUMAR BANSAL Maharashtra & Ors., Crl. Appeal No. 13 of 2023, wherein it has Date:
2025.03.11 15:40:33 +0530 Page 6 of 20 been observed as follows:
"25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one."
"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, VIRENDER to the Magistrate's nod under Section 173(8) to further investigate KUMAR an offence till charges are framed, but that the supervisory BANSAL jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an Digitally signed innocent person is not wrongly arraigned as an accused or that a by VIRENDER KUMAR prima facie guilty person is not so left out. There is no warrant for BANSAL such a narrow and restrictive view of the powers of the Magistrate, Date:
2025.03.11 particularly when such powers are traceable to Section 156(3) read 15:40:40 with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has +0530 Page 7 of 20 been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State of W.B. [(2009) 9 SCC 129] also stand overruled."
13. The revisionist in support of his arguments relied upon the judgment cited as Pratibha Rani v. Suraj Kumar & Anr., (1985) 2 SCC 370, wherein it has been observed as under:
.......There are a large number of cases where criminal law and civil law can run side by side. the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all VIRENDER intelligible to us to take the stand that if the husband dishonestly KUMAR misappropriates the stridhan property of his wife, though kept in BANSAL his custody, that would bar prosecution under s. 406 I.P.C. Or render the ingredients of s. 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody Digitally of her husband, no action against him can be taken as no offence is signed by committed is to override and distort the real intent of the law. VIRENDER KUMAR BANSAL Date:
2025.03.11 15:40:48 +0530 Page 8 of 20
14. The revisionist in support of his arguments relied upon the judgment cited as Rajesh Bajaj v. State NCT of Delhi & Ors., (1999) 3 SCC 258, wherein it has been observed as under:
It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustrations f) is worthy of notice now:
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.
15. The revisionist in support of his arguments relied upon the judgment cited as K. Jagadish v. Udaya Kumar G.S. & Anr., Crl. Appeal No. 56 of 2020, wherein it has been observed as under:
9. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.
16. The revisionist in support of his arguments relied upon the judgment cited as Vesa Holdings Pvt. Ltd. & Anr. v. State of Kerala & Ors., (2015) 8 SCC 293, wherein it has been observed as under: VIRENDER KUMAR It is true that a given set of facts may make out a civil wrong as BANSAL also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In Digitally the present case there is nothing to show that at the very inception signed by VIRENDER there was any intention on behalf of the accused persons to cheat KUMAR which is a condition precedent for an offence under Section BANSAL Date:
2025.03.11 15:40:54 +0530 Page 9 of 20 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.
17. The revisionist submitted that keeping in view the facts of the case, the law as laid down by Hon'ble Supreme Court and the Hon'ble High Court, the order passed by the Ld. CJM be set aside, the revision be allowed and the SHO be directed to investigate and submit the report.
18. Ld. Chief PP for State submitted that Ld. Trial Court has considered all the facts and rightly dismissed the application. There is no merit in the revision, the same be dismissed.
19. Ld. counsel for the respondents submitted that though the revisionist submits that the amendment has been carried out to convert the public trust into personal trust and to take over the properties but there is no mention as to by amending which clause or portion of the trust deed, the nature of trust has been changed from public trust to personal trust or that the proposed VIRENDER accused has got the right over the trust properties to deal with the KUMAR BANSAL same as personal property. He has already filed a suit, which is pending adjudication but deliberately did not mention about the Digitally same in the complaint. There he has asked for various reliefs signed by VIRENDER KUMAR including the relief declaring the amendments carried out as BANSAL Date:
legally null and void and nonest. 2025.03.11 15:41:01 +0530 Page 10 of 20
20. Ld. counsel for the respondents further submitted that the suit was accompanied by an application u/s.39 Rule 1 & 2 CPC. The counsel for defendant no.2 in that case appeared and made a statement that the meeting schedule of 05.10.2023 has been cancelled as of now and in view of that statement, the plaintiff i.e. the revisionist herein did not press his application. Ld. Counsel submitted that in the present case admittedly civil suit is pending. Hanuman Dhaam is also not located in Delhi, it is located in Uttrakhand and the complainant is in possession of all the necessary documents. The trial court has rightly observed so and hence there is no need of use of any police power to unearth any fact or to recover anything. Ld. Counsel submitted that the case is basically of civil nature to which the revisionist is trying to give the colour of the criminal offence, which is not permissible under law.
21. Ld. counsel for the respondents further submitted that no doubt in some cases on the basis of given set of facts, a civil remedy as well as criminal offence are made out then the two can go side by side but in the present case even the complaint does not disclose that any such criminal offence has been committed. The complaint is devoid of any details as to which amendment VIRENDER KUMAR has changed the nature and how the respondents herein have BANSAL taken over the property or put the property to their own use or dishonestly or with malafide intention caused any loss either to Digitally the revisionist herein or to the trust. Ld. Counsel submitted that signed by VIRENDER KUMAR trial court has rightly dismissed the application. There is no BANSAL Date:
merit in the revision, it be dismissed. 2025.03.11 15:41:07 +0530 Page 11 of 20
22. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Usha Chakraborty & Anr. v. State of West Bengal & Anr., 2023 SCC OnLine SC 90, wherein similar issue of trust deed and filing of the civil suit was raised, it was again held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure.
23. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Randheer Singh v. State of U.P., (2021) 14 SCC 626, wherein it has been observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. Complainant has concealed filing of the civil suit from the Ld. Magistrate and only through the police status report the Magistrate was informed about the pending suit.
24. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as M/s Skipper Beverages Pvt. Ltd. v. State, 92 (2001) DLT 217, wherein it has been observed as under:
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 VIRENDER not in a mechanical manner. In those cases where the allegations KUMAR are not very serious and the complainant himself is in possession BANSAL 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 Digitally signed by VIRENDER allegations is such that the complainant himself may not be in a KUMAR BANSAL position to collect and produce evidence before the Court and Date:
2025.03.11 15:41:18 +0530 Page 12 of 20 interests of justice demand that the police should step in to held the complainant. The police 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.
25. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Subhkaran Laharuka & Anr. v. State & Anr., MANU/DE/1646/2010, wherein it has been observed 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 VIRENDER circumstances to be recorded in writing`, a status report by the KUMAR police is to be called for before passing final orders. BANSAL
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 Digitally signed by VIRENDER evidence and then deciding the question of issuance of process KUMAR to the accused. In that case also, the Magistrate is fully BANSAL entitled to postpone the process if it is felt that there is a Date:
2025.03.11 15:41:25 +0530 Page 13 of 20 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.
26. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Anjuri Kumar v. State of NCT of Delhi, WP(Crl.) 1210 of 2023, wherein it has been observed as under:
In view of the discussions mentioned hereinabove, I am of the view that the directions for investigation under section 156 (3) of the Code cannot be given by the Magistrate mechanically. Such a direction can be given only on application of mind by the Magistrate. The Magistrate is not bound to direct investigation by the police even if all allegations made in the complaint disclose ingredients of a cognizable offence. Each case has to be viewed depending upon the facts and circumstances involved therein. In the facts and circumstances of a given case, the Magistrate may take a decision that the complainant can prove the facts alleged in the complaint without the assistance of the police. In such cases, the Magistrate may proceed with the complaint under Section VIRENDER 200 of the Code and examine witnesses produced by the KUMAR complainant. The Magistrate ought to direct investigation by BANSAL the police if the evidence is required to be collected with the assistance of the police. In the present case, all the facts and evidence are within the knowledge of the petitioner, which he can adduce during the inquiry conducted by the learned Digitally signed Metropolitan Magistrate under Section 200 of the Code. by VIRENDER KUMAR BANSAL Date:
2025.03.11 15:41:31 +0530 Page 14 of 20
27. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Indian Institute of Planning & Management v. State, Crl.M.C. 1144/2023, wherein it has been observed as under:
31. While exercising powers under Section 156(3) Cr. P.C. and directing the registration of an FIR, the Magistrate needs to ensure that a cognizable offence is disclosed from the allegations mentioned in the application and the essential elements of the alleged offences thereof are prima facie satisfied.
32. In the case of Usha Chakraborty v. State of West Bengal, 2023 SCC OnLine SC 90, it has been recently held by Hon'ble Apex Court that while passing an order for registration of an FIR upon an application filed under Section 156(3) Cr. P.C., the Court must satisfy itself that basic ingredients of the alleged offences are fulfilled. The relevant observations in this regard read as under:
...there cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr. P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot be lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged... ....
39. The impugned order, in my view, fails to pass the tests laid down by the Courts and shows total non-application of mind.
Learned CMM has not indicated a single reason to conclude that a cognizable offence was disclosed and the essential ingredients of the alleged offences were made out. Howsoever brief, learned CMM ought to have spelt out the reason in the order indicating what weighed with him to order investigation under Section 156(3) Cr.P.C. more so, in light of the 2 ATRs stating otherwise. The mere statement that from the facts, it is reflected that cognizable offence is made out and VIRENDER that the alleged offences are grave and several students may be KUMAR victims, cannot be justification enough to direct registration of BANSAL an FIR, which has serious repercussions. In Usha Chakraborty and Another v. State of West Bengal and Another, 2023 SCC OnLine SC 90; and Alhaj Ebrahim Khan and Others v. Sopan Digitally signed Pandharinath Lohakare, 2015 SCC OnLine Bom 1668, it was by VIRENDER KUMAR held that the Magistrate must apply his mind to see whether BANSAL essential ingredients of cognizable offences are disclosed and Date:
2025.03.11 15:41:38 +0530 Page 15 of 20 while the Magistrate is not required to embark on a roving inquiry on the reliability or genuineness of the allegations, he has to arrive at a conclusion that application discloses necessary ingredients of the offence. Perusal of the impugned order in the present case, does not reflect application of mind as to how the essential ingredients of the alleged offences are even prima facie made out and nothing is forthcoming for disregarding the two ATRs filed by EOW, bringing on record crucial facts emerging from a thorough investigation and stating that the disputes are purely civil arising out of commercial transactions and no cognizable offence is made out. It is settled that the Magistrate can disagree with the ATR and take a different view but the order must indicate some reasoning to differ and disregard the police reports. On these grounds itself, in my view, the impugned order become vulnerable and deserves to be set aside.
28. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Alok Kumar v. Harsh Mander & Anr., 2023 SCC OnLine Del 4213, wherein it has been observed as under:
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.
That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. VIRENDER KUMAR BANSAL
29. Ld. counsel for respondents in support of his arguments relied upon the judgment cited as Pooja Taneja v. Digitally signed by VIRENDER KUMAR NCT of Delhi, WP (Crl.) 624 of 2015, wherein it has been BANSAL Date:
observed as under: 2025.03.11
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+0530
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.....I am of the view that the directions for investigation under section 156 (3) of the Code cannot be given by the Magistrate mechanically. Such a direction can be given only on application of mind by the Magistrate. The Magistrate is not bound to direct investigation by the police even if all allegations made in the complaint disclose ingredients of a cognizable offence. Each case has to be viewed depending upon the facts and circumstances involved therein. In the facts and circumstances of a given case, the Magistrate may take a decision that the complainant can prove the facts alleged in the complaint without the assistance of the police. In such cases, the Magistrate may proceed with the complaint under Section 200 of the Code and examine witnesses produced by the complainant. The delay in approaching the police by the complainant can yet be another factor which the Magistrate may take note of, while considering the application under Section 156(3) of the Code. The Magistrate ought to direct investigation by the police if it feels that the evidence is required to be collected with police assistance. All other judgments, cited by the parties, are in the context of different facts and are of no help. In this case, there is a delay in filing of the complaint, inasmuch the facts and evidence are within the knowledge of the petitioner, which she can adduce during the inquiry conducted by the learned Metropolitan Magistrate under Section 200 of the Code, inasmuch as she has already produced five witnesses.
30. I am not going into the details of the allegations mde in the complaint and the arguments made on the allegations. The issue is whether the Court of Ld. CJM has rightly dismissed the application u/s.156(3) Cr.P.C. The contention of the revisionist is that the documents have to be recovered and the bank details have also to be unearthed and for that purpose, custodial interrogation is required. The arguments, per contra, are that VIRENDER every detail is already in possession and reach of the revisionist. KUMAR BANSAL The witnesses are already available with them and hence the trial court has rightly dismissed the application as there is no Digitally requirement of use of police power to discover the fact or to signed by VIRENDER KUMAR recover anything. BANSAL Date:
2025.03.11 15:41:51 +0530 Page 17 of 20
31. In this case, the allegations in brief are that the trust deed has been amended, that also without following the procedure. The amended trust deed is also registered with the Sub-Registrar-VI-A, North-West District. Hence, so far as this document is concerned, it is available in the office of the Sub- Registrar. The other contention is that general body meeting was not called as required under the rules but record shows that one of the respondents has already provided details of the same to the police alongwith copy. The next contention is that they have also given signatures/authority letter to the bank and the signatory in the bank has been changed. That record is already available with the bank. So far as the other trustees, which complainant alleges, have not given their consent. Their affidavits are already with the complainant. Ld. Trial court has also observed in its order in para 12 as follows:
"Applying the guidelines as mentioned above in the case in hand, the name of the offenders are well within the knowledge of the complainant/Applicant. Both, the Trust Deed dated 31.03.2009 and the amended Trust Deed dated 28.01.2020 are within the reach of the complainant. The investigation is no required to unearth any of the material. Moreover, subsequently after evidence of complainant, if it is deemed necessary, police inquiry as envisaged u/s 202 CrPC can be initiated. Accordingly, the present application U/s 156 (3) of Cr. P. C. is dismissed. The complainant is at liberty to lead PSE."
32. There is argument on behalf of the revisionist that once VIRENDER KUMAR BANSAL the complaint discloses the commission of a cognizable offence, then the Magistrate shall direct the police to register the FIR.
Digitally The Hon'ble Supreme Court has considered this argument and signed by VIRENDER KUMAR BANSAL Date:
2025.03.11 15:41:57 +0530 Page 18 of 20 held that the Magistrate has to examine the facts, apply his judicial mind and then exercise the discretion whether or not to issue directions u/s.156(3) of the Code or he can take cognizance to follow the procedure as laid down u/s.202 of the Code. The Hon'ble Supreme Court in the case titled as Kailash Vijayvargiya v. Rajlakshmi Chaudhuri & Ors. (Supra), held as follows:
39. We would refrain and not comment on the allegations made as this may affect the case put up by either side. The accused do not have any right to appear before the Magistrate before summons are issued. However, the law gives them a right to appear before the revisionary court in proceedings, when the complainant challenges the order rejecting an application under Section 156 (3) of the Code. The appellants, therefore, had appeared before the High Court and contested the proceedings. They have filed several papers and documents before the High Court and this Court. To be fair to them, the copies of the papers and documents filed before the High Court and this Court would also be forwarded and kept on record of the Magistrate who would, thereupon, examine and consider the matter. However, the complainant/informant would be entitled to question the genuineness and the contents of the said documents.
40. In view of the above and for the reasons stated above, while affirming the impugned judgment and order passed by the High Court remanding the matter back to the learned Magistrate, we set aside the subsequent order passed by the Magistrate on remand, pursuant to the impugned judgment and order passed by the High Court and remit the matter back to the learned Magistrate to examine and apply his judicial mind and then exercise discretion whether or not to issue directions under section 156(3) or whether he can take cognizance and follow the procedure under section 202. He can also direct the preliminary enquiry by the police in terms of the law laid down by this Court in the case of Lalita Kumari (supra). Copies of the papers and documents filed before the High Court and this VIRENDER Court could also be forwarded and brought on record of the KUMAR Magistrate, who would thereupon examine and consider the BANSAL matter. As observed hereinabove, the complainant/informant would be entitled to question the genuineness of the contents of the said documents.
Digitally signed by VIRENDER KUMAR BANSAL Date:
2025.03.11 15:42:04 +0530 Page 19 of 20
33. Keeping in view the law laid down by Hon'ble Supreme Court, it is clear that the Magistrate is not required to pass an order in mechanical manner on receiving the complaint and issue directions u/s.156(3) Cr.P.C. to register the FIR but he has to apply his judicial mind on the facts of the case and then take the decision.
34. In view of the above discussion, the facts of the case, in my opinion, Ld. Trial Court, after considering the facts of the case, rightly dismissed the application. I do not find any illegality or impropriety in the order passed by the Ld. Trial Court. There is no merit in the revision, the same is dismissed.
35. Trial court record be sent back alongwith copy of this order. Revision petition be consigned to the Record Room.
Digitally signed by VIRENDER VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2025.03.11
15:42:10 +0530
(Virender Kumar Bansal)
Principal District & Sessions Judge (NW)
Rohini Courts, Delhi/11.03.2025/sb
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