Delhi District Court
In Re vs ) Rajeev Garg on 31 January, 2017
Crl. Revision No. 55903/2016
IN THE COURT OF MS. SMITA GARG,
ADDITIONALSESSIONS JUDGEFTC, WEST,
TIS HAZARI COURTS, DELHI.
Crl. Revision No. 55903/2016
In re:
Pradeep Sharma
S/o Late Sh. O.P. Sharma
J1/162, Rajouri Garden,
New Delhi ......... Petitioner
Versus
1) Rajeev Garg
S/o Sh. S.C. Garg
R/o I76, Karanpura,
Moti Nagar, New Delhi110015
2) State (NCT of Delhi) ...... Respondents
Date of filing of revision petition : 18.08.2016
Date of reserving judgment : 16.01.2017
Date of judgment : 31.01.2017
JUDGMENT:
1. This revision petition under Section 397 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') is directed against the order dated 21.05.2015 passed by the learned Metropolitan Magistrate whereby the application under Section 156 (3) CrPC filed by the petitioner was declined and he was asked to lead pre summoning evidence.
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2. Factual matrix relevant for the disposal of the revision petition is that the petitioner preferred the application under Section 156(3) CrPC on 11.11.2014 before the Ld. MM seeking direction to SHO P.S Rajouri Garden for registration of FIR against the respondent herein for the commission of offences under Section 420/468/471 IPC.
In the application, the petitioner alleged that the respondent, who worked as an office boy in his office during the period 15.01.1999 till February, 2000 and had access to all the files and documents lying in the office, took advantage of the petitioner's absence from the office on account of ill health of his parents and stole certain blank stamp papers bearing the signatures of the petitioner from the office. The respondent is alleged to have misused the said stamp papers to forge and prepare the documents dated 12.07.1999 (i.e. General Power of Attorney, Agreement to Sell and Purchase, Affidavit and Receipt) in respect of the transfer of the office of the petitioner in his own name. The petitioner lodged a complaint with Economic Offence Wing on 27.06.2012 and P.S Rajouri Garden on 28.05.2012 but no action was taken by the police. Hence, the petitioner was compelled to approach the court.
3. Vide the impugned order, the trial court dismissed the application under Section 156(3) CrPC by observing that no investigation was Pradeep Sharma v. Rajeev Garg & Ors. Page No.2/7 Crl. Revision No. 55903/2016 required to be conducted by the police and that all the evidence required to prove his case was well within the power and possession of the petitioner. Aggrieved therefrom, the petitioner is before this court.
4. The counsel for the petitioner submitted that since the allegations made in the complaint disclosed the commission of cognizable offence, the police was under an obligation to register an FIR in view of the law laid down in Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187 and consequent upon failure of the police to discharge its duty, the trial court ought to have directed for the registration of FIR. He has argued that the trial court also failed to appreciate that investigation by police was required not only to recover the original documents forged by the respondent but also to establish the identity of the associates of the respondent involved in the commission of the crime.
Per contra, the counsel for the respondents has submitted that the impugned order does not suffer from any illegality. He has relied upon M/s Skipper Beverages Pvt. Ltd. v. State, 2001 IV AD Delhi 625 to argue that the Ld. MM has judiciously exercised his discretion and therefore, no interference is called for. He has submitted that the documents in question had been filed by the respondent in the civil suit for possession instituted by him in the year 2002 but despite Pradeep Sharma v. Rajeev Garg & Ors. Page No.3/7 Crl. Revision No. 55903/2016 being aware of the documents, the petitioner choose to file the complaint case after an inordinate delay in the year 2014 and thus, the Ld. MM rightly dismissed the application. He has pointed out that since all the original documents were filed in the said suit, nothing is to be recovered from the possession of the respondent.
5. I have heard the counsel for both the parties and perused the trial court record.
6. It is the settled law that when a criminal complaint disclosing the commission of cognizable offence is laid before a Magistrate, two courses are open to him. He may either choose to inquire into the complaint by taking cognizance in exercise of his power under Section 190 (1) (a) CrPC and proceed to inquire into it in accordance with the procedure laid down in Section 200 & 202 CrPC. In the alternative, he may refer the complaint to police under Section 156(3) CrPC for investigation. In the latter case, the further process of law has to wait till the report under Section 173 CrPC is submitted by the police.
The law governing the choice to be exercised from amongst the two options has been settled by the Hon'ble High Court of Delhi in M/s Skipper Beverages Pvt. Ltd. v. State, 2001 IV AD (Delhi). In the said case, it was held that a Magistrate must apply his mind Pradeep Sharma v. Rajeev Garg & Ors. Page No.4/7 Crl. Revision No. 55903/2016 before passing an order under Section 156(3) CrPC and must not pass these orders mechanically on the mere asking of the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
Similarly, in Subhkaran Luharaka v. State, (170) 2010 DLT 516 (which was also referred to by the trial court), while laying down the procedure to be followed by the Magistrate while dealing with an application under Section 156(3) CrPC, it was held that before passing any order to proceed under Chapter XII of the Code on an application under Section 156(3) CrPC, the Magistrate must 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 the 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.
Here, it would not be out of place to mention that in Gulab Chand Upadhyay v. State, (2002) Crl. L.J. 2907, it was held that the Pradeep Sharma v. Rajeev Garg & Ors. Page No.5/7 Crl. Revision No. 55903/2016 use of word 'may' in Section 156 (3) CrPC in contradistinction to the word 'shall' in Section 154 CrPC clearly indicates that the Magistrate has the discretion to refuse the registration of FIR.
Thus, the Magistrate is not supposed to act mechanically and direct the 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 if it appears that the allegations are of serious nature which are required to be investigated by the police, then only an FIR should be ordered to be registered.
7. In the case on hand, the parties are known to each other. The evidence on which the petitioner relies is within his knowledge. The documents of the property allegedly forged by the respondent are also within the knowledge of the petitioner. Infact, the copies thereof were also filed by the petitioner alongwith his application. The allegations made in the application can be established by the petitioner by examining himself as well as the witnesses to the said documents. Further, the fact that the respondent had filed a civil suit for possession against the petitioner on the basis of the said documents is not in dispute. Hence, the documents in question can be obtained by summoning the judicial record of the civil suit instituted by the respondent. Moreover, if it is felt necessary, it would be open Pradeep Sharma v. Rajeev Garg & Ors. Page No.6/7 Crl. Revision No. 55903/2016 to the Ld. MM to invoke the powers under Section 202 CrPC at an appropriate stage of proceeding. Considering the delay in approaching the court by the petitioner with his application under Section 156(3) CrPC and the facts and circumstances of the case, the decision of the Ld. MM to direct the petitioner to lead pre summoning evidence can not be held to be erroneous or illegal.
8. For the foregoing reasons, I find no merit in the revision petition and the same is, accordingly, dismissed.
File be consigned to record room.
Announced in the open court (Smita Garg)
on 31.01.2017 Addl. Sessions JudgeFTC,(West)
Tis Hazari Courts, Delhi.
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