Delhi District Court
Pradeep Kumar vs State Of Madhya Pradesh & Ors." on 20 November, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CR 13/20
CNR no.DLNE01-000835-2020
PRADEEP KUMAR
SON OF UDAI RAJ SINGH
RESIDENT OF C-73, GALI NO 5
PANCHAL VIHAR
DELHI-110094
..... PETITIONER/REVISIONIST
V
1. KALU RAM PANCHAL
RESIDENT OF E-3, WEST JYOTI NAGAR
MAIN 100 FT. ROAD
SHAHDARA
DELHI-110094
2. VED PAL PANCHAL
RESIDENT OF D-69, GALI NO 1
NEAR LALITA MANDIR
ASHOK NAGAR
DELHI-110093
3. KRISHAN PAL PANCHAL
RESIDENT OF 1/3494, RAM NAGAR EXTENSION
MANDOLI ROAD
SHAHDARA
DELHI-110093
4. RAM NIWAS PANCHAL
SON OF KHEM CHAND
RESIDENT OF C-52 A, MAIN 100 FT. ROAD
JYOTI COLONY
SHAHDARA
DELHI-110094
CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 1/8
5. RAVINDER PANCHAL
MAIN 100 FT. ROAD
CHAJJUPUR
SHAHDARA
DELHI-110094
6. THE STATE
......RESPONDENTS
INSTITUTION: 06.03.2020
ARGUMENT: 27.10.2020
JUDGMENT:20.11.2020 REVISION UNDER SECTIONS 397, 398 AND 399 OF THE CRIMINAL PROCEDURE CODE, 1973 AGAINST IMPUNGNED ORDER DATED 07.12.2019 PASSED BY SH. PAWAN SINGH RAJAWAT, CMM (NORTH-EAST) IN CASE TITLED AS PRADEEP KUMAR V KALU RAM PANCHAL AND OTHERS BEARING CC NO 643/19 PS KARAWAL NAGAR WHEREBY APPLICATION UNDER SECTION 156(3) CR. P. C. WAS DISMISSED ORDER
1. The petitioner/revisionist/complainant/Pradeep Kumar (hereinafter referred to as "the revisionist") filed complaint under section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the code") against the proposed accused/respondents (hereinafter referred to as "the respondents") for offences punishable under sections 323/324/341/506/201/34 of the Indian Penal Code, 1860 along with an application under section 156 (3) of the Code for registration of FIR against the respondents. The trial court vide order dated 07.12.2019 (hereinafter CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 2/8 referred to as "the impugned order") dismissed application under section 156 (3) of the Code and gave liberty to the revisionist to lead pre-summoning evidence.
2. The revisionist being aggrieved the present revision and challenged the impugned order on grounds that impugned order is bad in law. The impugned order is contrary to law. The trial did not consider fact that the respondent no 1 to 5 committed cognizable offences. The trial court erred in observing that evidences are within reach of the revisionist and there is no requirement of technical or scientific evidence. The trial court has not considered MLC of the revisionist. The trial court has failed to apply its judicial mind. The revisionist also challenged impugned order on other grounds and prayed that impugned order be set aside and necessary directions be issued for registration of FIR.
3. Sh. Brijesh Panchal, Advocate for the revisionist and Sh. Gaurav Pandey, Additional Public Prosecutor for the respondent no 6/State heard. Trial Court Record and impugned order are perused.
4. The perusal of impugned order reflects that the trial court while dismissing application under section 156 (3) of the Code observed that power under section 156 (3) of the Code should be exercised judiciously and not in mechanical manner. The revisionist is in possession of necessary evidence required to prove allegations of the revisionist. The facts and circumstances of the case are within the knowledge of the revisionist. The identity of the proposed accused is also known to the revisionist and there is no requirement of collection of evidence by police.
5. Section 156 of the code deals with police's power to investigate cognizable case. Sub section (3) deals with power of magistrate to order for investigation. Section 156 (3) of the Code reads as under:-
156. Police officer's power to investigate cognizable case.
(1) .......
(2).......
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
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6. If the police did not register FIR under Section 154 of the Code then the aggrieved person can approach the Superintendent of Police under Section 154(3) of the Code by an application in writing. Even if FIR is not registered or proper investigation is not conducted, then the aggrieved person can file an application under Section156 (3) of the Code before concerned Magistrate. The Magistrate can direct registration of FIR and can also direct a proper investigation. The Supreme Court in Sakiri Vasu V State of Uttar Pradesh and Others, (2008) 2 SCC 409 observed as under:-
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
The Supreme Court in Sudhir Bhaskarrao Tambe V Hemant Yashwant Dhage and others, (2016) 6 SCC 277 and M. Subramaniam V S. Janaki, Criminal Appeal No 102 OF 2011 decided on 20th March, 2020 took similar view.
7. The perusal of impugned order reflects that the trial court relied on Subhkaran Luharuka and another V State & another, Crl. M.C. No. 6122-23/2005 decided on 09th July, 2010 by the High Court of Delhi. The High Court summarized the procedure to be followed while dealing with an application under Section 156(3) of the Code of Criminal Procedure, 1973 and observed as under:-
(i) Whenever a Magistrate is called upon to pass orders un-
der Section 156(3) of the Code, at the outset, the Magistrate should CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 4/8 ensure that before coming to the Court, the Complainant did ap- proach the police officer in charge of the Police Station having ju- risdiction 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 prelimi- nary 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 neces- sary for the Magistrate to consider all these factors. For that pur- pose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him. Upon a pre- liminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
iii) The Magistrate, when approached with a Complaint un- der Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evi- dence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to post- pone the process if it is felt that there is a necessity to call for a po- lice report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chap- ter 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 investi- gation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the wit- nesses on being summoned by the Court at the instance of com- plainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent rea- sons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.
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8. The High Court of Delhi in Vijay Gupta V Development Credit Bank Ltd. and others, Crl. Rev. P. No 41/2019 decided on 14th January, 2019 observed as under: Thus, the Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police, an FIR should be ordered to be registered. The Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint case, adopt the procedure of the complaint case by recording evidences under Sections 200 and 202 Cr.P.C. and then either proceed under Section 203 Cr.P.C. and dismiss the complaint if no offence is made out on summoning the accused under Section 204 Cr.P.C. whose complicity is disclosed in the inquiry conducted by it under Sections 200 and 202 Cr.P.C.
9. The High Court of Delhi in M/s. Skipper Beverages Pvt. Ltd. V State, 2001 IV AD (Delhi) observed as under:-
Chapter XII of the Code deals with information to the police and its power to investigate the offences. Section 156 of the Code in- cluded in this chapter speaks of the power of the police officers to investigate cognizable cases and sub clause (3) thereof lays down that any Magistrate empowered under Section 190 of Code may order such an investigation. Chapter XV of the Code deals with complaints to a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. This chapter pro- vides 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 Po- lice.
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 al-
CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 6/8 legations is such that the complainant himself may not be in a posi- tion to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the com- plainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and pro- ceeding 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."
In case Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai re- ported 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 ad- vised 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 re- quired and the Magistrate is of the considered view that the com- plainant on his own may not be in a position to collect and produce evidence in support of the accusations.
10. The Calcutta High Court in Pranati V State of W.B., 2020 SCC On Line Cal 132 observed that the appropriate course of action of a Magistrate while rejecting a prayer under Section 156(3) of the to take cognizance of the alleged offences under Section 200 of the Code and to examine the complainant and her witnesses to determine as to whether the process should not be issued. Again under Section 202(1) of the Code the Magistrate, instead of issuing process, may direct an investigation to be made by a police officer. An investigation under Section 202(1) of the Code may hold the Magistrate to ascertain whether or not there is substantial ground to proceed further. The requisite evidences proposed to be led by the revisionist are in knowledge and possession of the revisionist.
11. The trial court rightly and correctly observed that power under section has to be exercised judiciously and not in a mechanical manner. The revisionist is in possession evidences required to prove his allegations. The facts and are within the knowledge of the revisionist and the identity of the proposed accused is also known to the revisionist. There is no requirement of collection of evidence by police as the revisionist can lead evidence and if collection of evidence is required at later stage, then Section 202 of the Code can be resorted to. The direction for registration of FIR cannot be given in mechanical manner. The trial court was CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 7/8 legally justified in dismissing application under section 156(3) of the Code and giving liberty to the revisionist to lead pre-summoning evidence. The impugned order was passed with application of judicial mind and after appreciating material on record. The trial court considered all relevant issues and facts at the time of passing of impugned order which is well-reason. There is no infirmity or illegality in the impugned order. There is no merit in revision and the impugned order does not call any interference. The grounds as taken by the revisionist to challenge impugn order are without any basis on facts and law. Hence present revision is dismissed. TCR be send back to concerned court. Copy of this order be send to the trial court for information. Revision file be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 20th NOVEMBER, 2020 (DR. SUDHIR KUMAR JAIN) PRINCIPAL DISTRICT AND SESSIONSJUDGE NORTH-EAST KARKARDOOMA COURTS, DELHI Digitally signed by Sudhir Sudhir Kumar Jain Kumar Date:
Jain 2020.11.20
12:57:38
+0530
CR No.13/2020 PRADEEP KUMAR V KALU RAM PANCHAL AND ORS 8/8