Delhi District Court
Smt Manju Devi vs The State (Govt. Of Nct Of Delhi) on 26 August, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-5, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 337 of 2020
CNR No. DLSE01-005822-2020
IN THE MATTER OF:
Smt Manju Devi,
W/o Sh Yogesh Kumar,
R/o House No.N-532, Aman Market,
Saurabh Vihar, Badarpur,
New Delhi-44 .......Revisionist
Versus
1. The State (Govt. of NCT of Delhi)
2. Deepak
S/o Sh Ram Singh
3. Ms Deepika,
D/o Sh Ram Singh,
4. Smt. Meera
W/o Sh Ram Singh,
Respondent no.2 to 4 resident of :
House No.C-15, Saurabh Vihar,
Jaitpur, Badarpur, New Delhi -44 ........Respondents
Instituted on : 21.12.2020
Reserved on : Not reserved
Pronounced on : 26.08.2021
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.26
13:12:51 +0530
JUDGMENT
1. By instant revision, revisionist takes exception to order dated 10.09.2020 whereby her application u/s 156(3) Cr.P.C in case bearing CC No. 42104/19 titled as Smt. Manju Devi Vs Deepak & Ors, stood dismissed by Ld. Metropolitan Magistrate-11, South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld Trial Court in the impugned order are not in dispute and same are being reproduced for the sake of convenience :-
" Applicant / complainant Manju Devi approached the court with an application under section 156 (3) Cr.PC seeking directions for SHO P.S. Jaitpur to register an FIR against the proposed accused persons, namely, Deepak, Deepika and Smt. Meera for the commission of offences punishable under section(s) 323/324/354/354A/354B/452 /506/34 IPC.
2. The complainant claims that her husband is running a shop in the name and style of Nagar & Seva Dairy for selling milk, ghee at D6, Nala Road, Saurabh Vihar, Jaitpur, New Delhi. It is the case of complainant that on 12.10.2019 at about 10 am, when the complainant was present at her shop, the accused persons came on her shop and started beating her with fist and blows as well as dandas by saying abusive language. It is further the case of complainant that accused persons also torned the clothes of the complainant, in order to outrage her modesty. Thereafter, the complainant was taken to AIIMS Trauma Center for medical examination. Thus, a complaint was filed in PS Jaitpur, however, since no action was taken, present application U/s 156(3) Cr.PC has been filed before the Court."
3. Status report was filed by concerned IO/SHO before Ld Magistrate wherein it was reported that the allegations of complainant could not be substantiated as nothing incriminating against the accused persons could be discovered. It is further reported that on the complaint of accused persons, a case bearing FIR No.275/2019 dated 12.10.2019 PS Jaitpur under section 354/354-A/354-B/323/379/356/427/34 IPC was registered against the husband of complainant and other family members.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.26
13:13:01 +0530
4. Vide impugned order, the said application stood dismissed by concerned court. The relevant observations of Ld MM is follows :-
" ...............
8. In view of the above discussed facts & circumstances of the case, as alleged by applicant/complainant in his application and considering the nature of offences alleged to have been committed and in the light of ratio of above discussed judgments, this court is of the humble opinion that this is not a fit case for invoking powers under Section 156(3) of Cr.P.C. and for directing the SHO concerned to register an FIR and conduct investigation for the following reasons:
(i) The identity and complete addresses of proposed accused is already known to the complainant.
(ii) All the incriminating facts are already with in the knowledge of the complainant.
(iii) No facts are to be unearthed so as to required aid of police and it is also not the case where the collection of evidence is required.
(iv) Custodial interrogation of the accused is not necessary.
(v) The evidence required in the case is within the reach of the complainant.
(vi) Furthermore, in case police aid is required at any stage, the same can be sought in terms of Section 202 Cr. PC.
9. In view of above discussion, the application of the applicant Manju Devi under section 156(3) Cr. P.C. is hereby dismissed.
10. Put up for pre summoning evidence on 09.11.2020."
5. The revisionist is aggrieved with the said order of the Ld. Magistrate and has assailed the same on the grounds which can be summarized as under:-
(i) That the impugned order passed by Ld. Trial Court is against the law and is without consideration of facts and evidence on record;
(ii) That Ld Magistrate failed to appreciate that police investigation is required for the purpose of ascertaining the fact whether respondents have committed cheating, fraud, forgery, assault and snatching and threats;
(iii) That Ld Magistrate erred while considering the ATR filed by IO as he has not recorded the statement of witnesses/neighbours and has not produced the video recording of the alleged incident;
(iv) That the ATR filed by the IO is false, frivolous and Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:13:19 +0530 baseless as the same is based on interested witnesses as well as in collusion and connivance with respondents;
(v) That the impugned order is arbitrary and based on conjectures and surmises.
6. Ld. counsel for revisionist has argued on the lines of grounds as taken in the instant revision petition. It is argued that the impugned order is not sustainable in the eyes of law as Ld MM was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is further argued that Ld Trial Court passed the impugned order in haste, ignoring the statutory principle of law as well as facts on record. It is argued that Investigating Agency in connivance with respondents got registered criminal case against the revisionist, however no action was taken against the respondents on her complaint.
7. As per revisionist, respondents herein are trying to grab her property and a civil suit in this regard is also pending. It is submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
8. I have heard contentions of Ld counsel for revisionist and perused the record.
9. Before deciding the instant revision petition, it would be relevant to reproduce relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :--(1) The High Court or any Sessions Judge may Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:13:31 +0530 call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
10. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first. What is an 'interlocutory order' has been discussed by the Apex Court in the decision reported as (1977) 4 SCC 137 Amar Nath v. State of Haryana:
"6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub- section (2) of Section 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub- section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:13:44 +0530 have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
11. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397.
The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.26
13:14:06 +0530
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
12. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"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) Cr.P.C. 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 immediately, 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 offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. 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) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
13. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
14. After going through the records and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that all the evidence is within the reach and knowledge of the revisionist and Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:14:25 +0530 nothing new is to be collected for which the assistance of police agency is required. Even the identity of respondents is known to the revisionist. Furthermore, if required, the assistance of police can be availed by resorting to provisions of Section 202 Cr.P.C. by Ld Magistrate.
15. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble 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 accusation".
16. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified'' .
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.26
13:14:38 +0530
17. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:15:09 +0530 jurisdiction in substituting its views and that too without any legal basis."
18. Therefore, in my considered opinion, the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate. Ld counsel for revisionist has failed to point out any patent illegality or jurisdictional error in the impugned order.
19. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in her. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 10.09.2020. The revision petition is accordingly dismissed.
20. TCR be sent back to Ld Trial Court along with copy of this judgment.
21. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.08.26 13:15:19 +0530 Announced in the open (ANUJ AGRAWAL) Court on 26th August'2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 337 of 2020 Manju Devi Vs The State (Govt. of NCT of Delhi) & Ors Page No. 10 of 10