Delhi District Court
Hon'Ble High Court In M/S. Skipper ... vs . State, Cited on 1 March, 2016
Yash Pal v. Ram Kumar and others CC No. 103/1/15 PS Moti Nagar 01.03.2016 Present : None. 1.
Brief facts of the case are that complainant is the tenant sand accused no. 1 is the landlord of shop no. 29, Chara Mandi, Zakhira, New Delhi-110015. It is alleged that accused persons were threatening the complainant for last 3-4 months that they will forcefully dispossess him from the said shop. It is stated that on 20.09.2015 accused Ram Kumar along with other accused persons came to the shop of the complainant and threatened him to immediately vacate the shop. It is stated that again on 23.09.2015 accused Ram Kumar came to the shop of the complainant with Sh. Pavittar Singh and asked the complainant to vacate the shop within one week or he will show him how the shop will be vacated within five minutes. It is stated that on 01.10.2015s employee/nephew of the complainant namely Rajesh Kumar was wrongfully restrained and the key of the shop was snatched from him by the accused persons. Thereafter, accused open the shutter with the key, forcibly entered the shop and with the help of heavy labour started vacating the shop by moving machines and thrown 2-3 machines outside the shop. In the meantime, Sh. Rajesh Kumar called on 100 number. In between the complainant was also informed and he also rushed to police station Moti Nagar and met the police officials. On that one police official namely Mahesh Dutt went to the spot with the complainant who stopped the accused persons in their act. Thereafter, all the machines were put inside the shop and key of the shutter was taken from the accused and was handed over to the complainant. Thereafter, in the police station the matter got compromised between the complainant and the accused persons despite opposition by the complainant. It is stated that despite making several complaints to the police no action taken by the police. On the basis of these facts it is argued that accused persons committed the offence punishable u/s 445, 452, 453, 454, 455, 506 IPC CC no. 103/1/15 PS Moti Nagar Page 1 of 5 r/w section 34 IPC.
2. Reply was sought from the SHO concerned, same filed by SI Hira Lal wherein it is reported that on 01.10.2015 a quarrel had taken place between the complainant and the accused persons however, thereafter, compromise had taken place between the parties and the call was filed. It is reported that no such act of breaking lock and vacating the shop or snatching the key found to be committed. It is reported that no cognizable offence was made out, hence, no FIR was registered.
3. It is settled law that U/s 156 (3) Code of Criminal Procedure, a magistrate has power to direct the police to register a case and investigate the matter, but this power is to be exercised judiciously and not in a technical manner. In the matters where the complainant has in his possession all the evidence required to prove his allegations, there should be no need to pass an order U/s 156 Code of Criminal Procedure. In this regard, reliance is placed on the decision of our own Hon'ble High Court in M/s. SKIPPER BEVERAGES PVT. LTD. Vs. STATE, Cited as 2001 IV AD (Delhi), wherein it has been held as under:
"It is true that Section 156(3) of the Code empowers the Magistrate to direct the police to register a case and initiate investigation but his 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. This 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 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 the complainant".
4. Hon'ble Supreme Court of India has laid down guidelines to decide applications u/s 156(3) Cr.P.C. in a case titled as Priyanka Srivastava and Another v. State of U.P. and Others (CRIMINAL APPEAL NO.781 OF 2012 ) CC no. 103/1/15 PS Moti Nagar Page 2 of 5 DOD. 19.03.15, wherein it was held "26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. a court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. 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 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. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be CC no. 103/1/15 PS Moti Nagar Page 3 of 5 filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR".
5. In the present case complainant has filed a complaint dated 1.10.2015 with SHO PS Moti Nagar and also sent copy of the same complaint to DCP concerned. In that complaint it was stated by the complainant that the accused called some lock breaker and broken the lock of the shop and throw away all the machines and goods kept in the shop on the road. However, in his complaint he has told a different story as it is stated by him that key of the shop was snatched from his nephew/employee Rajesh Kumar and thereafter the articles were thrown out of the shop. These two versions in two written complaints made by the complainant of the same incident raises a doubt as to his bonafide.
6. All the evidences are in the reach of complainant. From the facts of the case, the undersigned is of the opinion that the assistance of investigating agency is not required in the present case for the collection of evidence. The facts and circumstances of the present case are such that the complainant is in CC no. 103/1/15 PS Moti Nagar Page 4 of 5 possession of entire evidence, further he can summon the witnesses. Thus it does not appear to be a case where the police assistance is required for the purpose of collection of evidence. Further if in future any need would arise police assistance can be taken U/s 202 Cr.P.C. None of the evidence in the present case is beyond the reach of the complainant. Accordingly, the present application u/s 156 (3) of Code of Criminal is dismissed. In the facts of the present case, the undersigned deem it appropriate that the complainant be directed to prove the allegations made by him on the oath.
7. Therefore, the undersigned takes cognizance of the complaint and complainant is called upon to bring pre-summoning evidence on 24.05.2016.
(GAJENDER SINGH NAGAR) MM-04:West:THC:Delhi:02.03.2016.
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