Delhi District Court
Naresh Kumar Kataria S/O Late Pokar Das vs Saraswati Arya W/O Sh. Ashok Kumar on 13 April, 2010
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IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
CR No. 42/10
Naresh Kumar Kataria S/o Late Pokar Das,
R/o H.No. 1072, Bawana,
Delhi-110039 ...... Revisionist/Petitioner.
Versus
Saraswati Arya W/o Sh. Ashok Kumar,
H.No. 1208, Sector-15, Sonipat, Haryana.
Working as Principal in
Updesh Kaur Sarvodya,
Kanya Vidyalya, Daryapur Kalan,
Delhi-110039.
&
The SHO,
PS Bawana
Delhi. ........Respondents
Date of Institution in Sessions Court: 01.02.2010
Date of Order :13.04.2010
ORDER:
Vide this order, I shall dispose off the present criminal revision petition/revision, filed by the revisionist/petitioner against the impugned order dt. 18.01.2010, whereby the his application U/s 156(3) Cr. PC was dismissed by the Ld. Trial Court and the 2 revisionist/petitioner was given a liberty to lead pre-summoning evidence.
2. The brief facts, which can be culled out from the order of the Ld. Trial Court dt. 18.01.2010 are as under:-
"In the present case, the complainant has prayed for direction U/s 156(3) Cr. PC to SHO concerned for registration of FIR U/s 115/500 IPC & Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. It is stated in the application that accused has committed the cognizable offence & it is further stated that he lodged the complaint to the police but police did not take any action and therefore he has filed the present complaint for getting the FIR registered against the accused.
Ld. Counsel for accused has relied upon 3 judgments in support of this case i.e. Lalita Kumari Vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164, Parvez Parwaz Vs. State of U.P. & Ors. (2009) Cri LJ 614 & Masuman Vs. State of U.P & Ors., 3 Misc. Application no. 6152 of 2006.
I have gone through the judgments relied upon by the counsel for complainant.
In the judgment passed by the Hon'ble Supreme Court titled as Lalita Kumari Vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164 Hon'ble Court has held that in case police does not take any action, then CMM/CJM should take disciplinary action.
Ld. Counsel has heavily relied upon the judgment titled as Masuman Vs. State of U.P & Ors (Supra).
As per the above said Judgment, if a cognizable offence is disclosed through an application U/s 156(3) Cr. PC, the Magistrate has no option but to order for registration of FIR. It is further held in this judgment that application U/s 156(3) Cr. PC cannot be treated as a complaint. However, this judgment has been overruled by Division Bench of Allahbad Court, in case titled as Sukhwasi Vs. State of U.P 2008 CRW 472 (Supra). I wish 4 it is an unintentional mistake on the part of Ld. Counsel for the complainant.
The law with respect to giving directions to SHO concerned U/s 156(3) Cr.PC is well settled.
First of all, I may mention that when a complaint case is filed before the Magistrate, the Magistrate has two option i.e. either to send the matter to the police for investigation U/s 156(3) Cr. PC or to make a preliminary inquiry U/s 202 Cr. PC. In this regard, I find support from a decision of a case reported as M/s Skipper Beverages Pvt. Ltd. Vs. State 2001 IV AD (Delhi) wherein it was held that:-
"It is true that Section 156(3) of the Code empowers to Magistrate to direct the police to register a case and intimate 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 complaint himself is in possession of evidence to prove his allegations there should be no need to pass orders U/s 156(3) of the Code. This discretion ought to be exercised after proper application of mind and only in those cases where the 5 Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interest of justice demand that the police should step in the help of the complaint.
In this regard, help can also be taken from the decision of a case reported as Gulab Chand Upadhayay Vs. State of UP reported as 2002 Crl. Law Journal 2907.
It is pertinent to mention here that the complainant has only filed a application U/s 156(3) Cr. PC and has not filed any complaint U/s 200 Cr .PC.
In the latest judgment passed by Hon'ble High Court of Delhi titled as V.P. Sharma (Dr.) Vs. State (N.C.T of Delhi) & Ors, 2009XAD(Delhi) 701, it is interalia held that:
The insistence to direct the Magistrate to take the other course of exercise of directing registration of FIR by calling for an investigation under Section 156(3) Cr.PC is putting the entire Cr.PC on a different pedestral. It is being raised by people who does not want to lead evidence or who does not have evidence to substantiate the complaint in accordance with law. In the 6 present case also, the petitioner has not chosen to file a complaint under Section 200 Cr. PC and he wanted to adopt a shortcut. In the present case, all the facts and circumstances of the case are within the knowledge of the complainant. Therefore, to my mind, there appears to be no ground to issue directions to SHO to register FIR as there is nothing for which the police assistance is called for. Accordingly, the application of the complainant U/s 156(3) Cr. PC is disposed off. However, complainant is at liberty to lead pre-summoning evidence.
Hence, put up this matter for C.E on 04.03.2010."
2. It is against the said order, the petitioner/revisionist has approached this court on the following main grounds:-
a. That the Ld. Trial court did not consider the judgments relied upon by the revisionist/petitioner before Ld. Trial court and as per the aforesaid judgments, the Ld. Magistrate was under an obligation to order for the registration of the FIR, which he has not done. Therefore, it is stated that the said order dt. 18.10.2010 needs to be set aside. Ld. Counsel for the petitioner/revisionist has also relied 7 upon the judgments AIR 1976 SC1762, 2008(3) LRC 391(Del), 2009 Cri LJ 614, (2008) 7 SCC 164 and 2008 Cri LJ 4369, which judgments, he has mentioned in the grounds for preferring the present revision petition itself. In addition to that, he has also relied upon the judgment K. Kannan Vs. State (The superintendent of Police and The Inspector of Police, MANU/TN/2561/2009, relying upon the said judgments, the Ld. Counsel for the revisionist/petitioner has argued that the order of the Ld. Trial Court was patently illegal as under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act 1989. A special procedure have been prescribed in the said act and the rules framed there under, whereby rules have been framed to give speedy investigation by a police officer of a higher rank with certain qualities and the investigation has also to be completed within a specified time, which cannot be done, in case the matter is fixed for pre-summoning evidence, as has been done by the Ld. Trial Court vide order dt. 18.01.2010. Relying upon the aforesaid judgments, he has argued that the order dt. 18.01.2010 of the Ld. Trial Court passed by the Ld. MM is liable to the set aside and 8 directions be given to the SHO PS Bawana to register a FIR against the respondents under the relevant provisions of law.
3. I have heard Ld. Counsel for the revisionist/petitioner Sh. Aditya Aggarwal and Ld. Addl. PP Sh. G.S. Guraya, Ld. Addl. PP for the state and perused the record.
4. The judgment relied upon by the Ld. Counsel for the revisionist K. Kannan Vs. State (The superintendent of Police and The Inspector of Police, MANU/TN/2561/2009, (supra) is not applicable to the peculiar facts and circumstances of the present case, as in the said case there were allegations that certain accused persons had trespassed into the land of the complainant, armed with deadly weapons and they had also threatened the petitioner and his father- in-law with dire consequences, if they failed to vacate the land and they had also beaten him up with spade. In these circumstances, the FIR was ordered to be registered, whereas there are no such allegations in the present case warranting the custodial interrogation of the accused persons/respondents or collection of evidence by the police during the investigation. Other judgment relied upon by the Ld. 9 Counsel for the appellant Lalita Kumari Vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164 (supra) is also not applicable to the peculiar and circumstances of the present case in my respectful view, as in the said case also no steps were taken by the police for apprehension of the accused or for recovery of minor girl. The said case also turned on its peculiar facts, as in that case also field investigation was required by the police for the arrest of the accused and for the recovery of the minor girl, which is not the case in hand. I do not find any infirmity or illegality in the order of Ld. Trial Court dt. 18.01.2010, which has been rightly passed relying upon the judgments of the Hon'ble Delhi High Court in M/s Skipper Beverages Pvt. Ltd. Vs. State 2001 IV AD (Delhi) and V.P. Sharma (Dr.) Vs. State (N.C.T of Delhi) & Ors, 2009XAD(Delhi)701. In the present case also, the revisionist has only filed an application U/s 156(3) Cr. PC alleging that the principal of a school, where he was working had used certain words degrading his reputation, which fell foul of the provisions of scheduled caste and scheduled tribes (Prevention of Atrocities) Act 1989, and in the present case also the 10 petitioner/revisionist has chosen not to file a complaint U/s 200 Cr. PC and he wants to adopt a shortcut. Consequently, the Ld. Trial Court was justified in dismissing his application U/s 156(3) Cr. PC and putting up the matter for pre-summoning evidence. Even, otherwise all the prospective evidence which the petitioner/revisionist wanted to lead in this case, was well within his knowledge and reach and no field investigation was required on the part of the police to collect any evidence in this case on the complaint, filed by him before the Ld. Trial Court.
5. Even otherwise, U/s 156(3) Cr. PC, the Magistrate has discretion to direct the investigation U/s 156(3) Cr. PC and similarly he can take the cognizance of the matter and proceed U/s 200 Cr. PC and once he has done so, and even if after recording the statement of the witnesses, the Magistrate is not satisfied, with the same then he can always postpone the issue of process and direct an inquiry by any other person or investigation by the police under 202 Cr. PC. The only difference being that the Magistrate can direct investigation U/s 156(3) Cr. PC before taking cognizance of the matter, but once 11 he takes the cognizance, then the investigation can only be ordered U/s 202 Cr. PC. In the present case, since the Magistrate has exercised discretion by taking cognizance U/s 200 Cr. PC. Therefore, in case, the Magistrate feels after recording the statement of the witnesses sought to be examined by the complainant that inquiry is still required, then he can always resort to section 202 Cr. PC.
6. Consequently, the Ld. MM has rightly dismissed the application of the petitioner/revisionist U/s 156(3) Cr. PC as discussed above. Therefore, I do not find any infirmity or illegality in the impugned order dt. 18.01.2010, which is fully supported by the reasons given in the support of the same. Consequently, present revision petition has no merits, same is accordingly dismissed. TCR be sent back with the copy of this order. Revision file be consigned to record room. Nothing expressed herein above shall tantamount, to expression on the merits of the case, during the trial.
Announced in the open court (Sanjeev Aggarwal)
On 13.04.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
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