Delhi District Court
Sharif Ahmed vs (1)The State Of Nct Of Delhi on 8 May, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI
C.R. No.09/2013
Unique Case ID No.02402R0035172013
Sharif Ahmed
S/o Late Sh. Bakridi
R/o IX/4718, Gali No.7,
Old Seelampur (West),
Gandhi Nagar, Delhi31. ... Petitioner
Versus
(1)The State of NCT of Delhi
(2)Sh. Jaspal Singh Saini
S/o Late Malkiyat Singh Saini
R/o IX/3105, Gali No.3,
Dharam Pura, Gandhi Nagar,
Delhi110031.
(3)Sh. Gora @ Cosmo
S/o Not Known
Bearing No.IX/2822, Gali No.18,
Kailash Nagar, Gandhi Nagar,
Delhi110031.
(4)Sh. Dharmender Pal Singh
Station House Officer,
PS Gandhi Nagar, Delhi110031.
C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 1 of 9
(5)The Dy. Commissioner
Municipal Corporation of Delhi
Shahdara North Zone,
Shahdara, Delhi. ... Respondents
Date of Institution : 06.02.2013
Date of order reserved : 26.04.2013
Date of order : 08.05.2013
O R D E R
Vide this order, I shall dispose of a revision petition filed by the revisionist/petitioner under Section 397 of Cr.P.C. against order dated 08.01.2013 passed by Ld. M.M. (East) Karkardooma Courts, Delhi whereby the application of the revisionist /petitioner filed under Section 156(3) of Cr.P.C. was dismissed. 2 Trial Court record has been called. I have heard learned counsel for the petitioner as well as Ld. Addl. PP for the State and have gone through the material available on the record. 3 The facts leading to filing of the present revision petition are that petitioner/complainant filed a complaint under Section 200 of Cr.P.C. against respondent Nos.2 to 4 for commission of offences under Section 166/167/212/217/218/221/406/420/506/ C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 2 of 9 120B/34 IPC read with Section 13 of Prevention of Corruption Act. The petitioner/complainant had also filed an application under Section 156(3) of Cr.P.C. seeking direction to the police to register the FIR. Ld. M.M. on appreciation of the material placed before him, dismissed the said application and called the complainant/petitioner to adduce presummoning evidence. It is against that order, the present revision petition has been filed.
4 Grounds challenging the impugned order dated 08.01.2013 are that the impugned order is against the facts and circumstances of the case; police officials have been made the accused persons; allegations against the SHO and Deputy Commissioner are required to be investigated and case law cited by the petitioner has not been considered by the Ld. MM. 5 Written arguments have also been filed by the petitioner. It has been argued by Ld. Counsel for the petitioner that when allegations made by the petitioner disclosed commission of cognizable offences, police was duty bound to register FIR. He has argued that the Ld. MM even did not call the status report from the concerned police station. He has further argued that the case of the petitioner discloses cognizable offences of very serious nature which C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 3 of 9 needs investigation that can be done only after a proper case is registered. He has further argued that the complaint also disclosed commission of cognizable offences i.e. taking of bribe and misusing official position by accused persons, therefore, Ld. M.M. was having no option other than directing the police to register FIR. Ld counsel for the petitioner has relied upon authority reported as Lallan Chaudhary and Ors. Vs. State of Bihar and Anr. AIR 2006 SC 3376 in which it has been held that mandate of Section 154 Cr.P.C. is very clear that if any information disclosing a cognizable offence is laid before an in charge of police station, such police officer has no other option except to register case on the basis of such information. Ld. Counsel has also relied upon judgment in case of Lalita Kumari Vs. Govt. of U.P. & Ors. (W.P.(Crl.) No.68/2008 decided by Hon'ble Apex Court on 08.08.2008) in which the State Governments and Governments of Union Territories besides DGPs/Commissioners of Police were directed to take steps to register FIR immediately on receipt of information of cognizable offences if the same is not done, the complainant may move the concerned Magistrates by filing a complaint.
6 There is no dispute so far as legal proposition C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 4 of 9 propounded in abovesaid authorities is concerned. But fact remains that it is not necessary that in every case where a complaint has been filed under section 200 of the Code, the Magistrate should direct the police to investigate the crime merely because an application has also been filed under Section 156(3) of the Code, even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses.
7 The question involved in the present case is with regard to issuance of directions by the Ld. Court to the police or taking of cognizance by the Court itself on the complaint of the petitioner. As per Section 190 of Cr.PC, when a complaint is received, the Magistrate is empowered to take cognizance of the offence disclosed in the complaint. After taking cognizance, the Magistrate can adopt two methods. Firstly, the Magistrate may forward the complaint to the police under Section 156(3) Cr.PC, without taking cognizance, to investigate and file a report. Secondly, the Magistrate may take the cognizance of the offence disclosed in the complaint and conduct proceedings under Section 202 of Cr.PC. In this case, Ld. M.M. exercised his discretion and instead of adopting former procedure, preferred to take cognizance on the complaint of C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 5 of 9 the petitioner and called upon the petitioner to adduce pre summoning evidence.
8 I have gone through the ratio of judgment in case titled P. Kannappan versus State of Kerala (Reported in 2006 (1) RCR (Criminal) 165), in which the Hon'ble Kerala High Court has observed that the Magistrate can adopt two options when a complaint is filed before him. He may direct the police to investigate and file the report. He may take cognizance and proceed under Section 202 of Cr.P.C. It is further observed that the complainant has no right to make a demand to refer the case to the police.
9 Similar views have been expressed by their lordships of Hon'ble Supreme Court in judgment titled Rameshbhai Pandurao Hedau vs. State of Gujarat, AIR 2010 SC 1877 in which it was held that the power to direct an investigation to the police is available to the Magistrate both under Section 156(3) Cr.P.C. and under section 202 Cr.P.C. The powers under Section 156(3) Cr.P.C. to direct an investigation by the police is at the precognizance stage while the power to direct similar investigation under section 202 Cr.P.C. is at the postcognizance stage. The Magistrate dismissed the application of the petitioner under Section 156(3) Cr.P.C. and proceeded with the C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 6 of 9 complaint filed by the petitioner under Section 200 Cr.P.C. Hon'ble Apex Court held that there is nothing irregular in the manner in which the Ld. Magistrate has proceeded and if at the stage of 202(2) Cr.P.C., if deems it fit, he may either dismiss the complaint under Section 203 Cr.P.C. or proceed in terms of Section 193 Cr.P.C. The said law has been consistently followed in :
(1)Skipper Beverages Pvt. Ltd. vs. State 2001 ( 92) DLT 217. (2)Suresh Chand Jain vs. State of M.P. 2001 (I)AD (Crl.) SC 34.
10 Our own Hon'ble High Court has also observed as such in case titled Vikrant Kapoor Vs. The State and ors. 2012 IV AD (Delhi) 526. It was held that there was no error in the dismissal of application under Section 156(3) of Cr.P.C. by the Ld. MM as the evidence was in knowledge and possession of the petitioner. It was observed that plea of the petitioner that documentary evidence needed to be adduced by him could not have been recovered without help of police, was found to be without any merit as the petitioner could have summoned and got produced in the evidence.
11 In the present case also, the Ld. M.M. rejected the application of the petitioner under Section 156(3) of Cr.PC. In the said application, the petitioner made prayer for issuance of direction C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 7 of 9 to the police to investigate the matter under Section 156(3) of Cr.P.C. In my view, a complainant has no right or privilege to ask the Magistrate to refer the case to the police. It is the discretion of the Magistrate, either he can forward the complaint to the police for investigation or he himself can take cognizance and proceed under Section 202 of Cr.P.C.
12 In the present case, it is apparent that the accused persons as mentioned in the complaint are well known to the petitioner. Petitioner is also having the knowledge of the facts and circumstances of the alleged offences and the evidence is in his possession. The evidence can easily be adduced by the petitioner in support of allegations contained in the complaint, so there was no necessity to direct the police to inquire into the allegations. So far as allegations under Section 13 of the Prevention of Corruption Act are concerned, a statement was made by the Ld. Counsel for the petitioner/complainant that he did not want to press the allegations of offence u/s 13 of the P.C. Act. Therefore, the judgments relied upon by the petitioner in case of Lallan Chaudhary (supra) and Lalita Kumari (supra) are of no help to him as the same are distinguishable to the facts of the present case.
C.R. No.09/2013 Sharif Ahmed Vs. The State etc. Page 8 of 9 13 In view of laid down by Superior Courts, impugned order can not be said to be inconsistent with the law. Ld. M.M. can not be said to have failed to exercise the jurisdiction vested with him. Impugned order passed by Ld. M.M. does not suffer from any illegality, irregularity or impropriety. There is no jurisdictional error in the impugned order. Consequently, impugned order is hereby upheld. Resultantly, present revision petition is dismissed. 14 A copy of the order along with Trial Court Record be sent to Trial Court concerned. Revision file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 08.05.2013 District & Sessions Judge (East)
Karkardooma Courts : Delhi
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