Delhi District Court
Additional Sessions Judge-01 : New ... vs Amar Singh on 1 March, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CR No. 06/12
Hasmat Ali
S/o Shokat Ali,
R/o Khasra No. 541 and 422,
A-171, Village Mandoli,
Delhi-93 ..... Petitioner / Revisionist
versus
1 Amar Singh
R/27, Lodhi Estate, New Delhi.
2 Tarun (PA to Amar Singh)
R/27, Lodhi Estate, New Delhi.
3 Ramesh
Address to be disclosed by accused.
..... Respondent
Date of institution of the appeal : 27.01.2012
Date of reserving judgment/order : 16.02.2012
Date of judgment / order : 01.03.2012
JUDGEMENT :
1. This criminal revision u/s 397 Code of Criminal Procedure (hereinafter referred to as "Cr.PC") which has been filed by the revisionist challenging the order dated 12.12.2011 passed by Ld. MM, vide which the application u/s 156 (3) Cr.PC of the petitioner for registration of FIR has been dismissed.
2. The facts in brief are that the petitioner had filed a complaint u/s 200 Cr.PC r/w Section 156 (3) Cr.PC for directions to the SHO for registration of the FIR against the respondents.
CR No. 06/12 Page No. 1 of 8 -2-The facts as alleged in the complaint are that the petitioner was one of the witness in "NOTE FOR VOTE" scam. It is stated by him that in the night of 21.07.2008 at about 11-12 midnight, the car of the complainant was followed by that of MP Revati Raman Singh and thereafter complainant had gone to the house of MP Ashok Argal (sic), where the deals of money and talk with MP Amar Singh/respondent no. 1 took place but because of the late hours he was told that the talks would continue on the next date for finalizing the talks to make payment to the two Minister of Parliament. The complainant was a friend of Sohail Hindustani and helped him in exposing the scam of payment to the MPs dated 21.07.2008.
3. A Parliamentary Committee had been constituted for enquiry into the said matter. An FIR No. 14/09, u/s 7/8/12/13(1)(d) Prevention of Corruption Act, 1988 read with Section 120B IPC had been registered in regard to this matter. The petitioner was summoned as a witness to depose before the Parliamentary Committee on 25.09.2008. On 24.09.2008, the complainant received a call from respondent no. 2 Tarun, who tried to bribe him to make a statement in favour of respondent no. 1. On the same day i.e. 24.09.2008, the complainant had also been forced by respondent no. 3 Ramesh at Nirula's Restaurant, Preet Vihar, Delhi, at around 06.30 p.m. to depose in favour of respondent no. 1
4. It is further alleged that in the morning on 25.09.2008, at about 08.00 a.m., he had gone to Khan Market, where he met respondents no. 2 and 3, who took him to their CR No. 06/12 Page No. 2 of 8 -3- car on the pretext of having a conversation on the point of revolver. He was forcibly taken to the house of respondent no. 1 Amar Singh, where his mobile phone was snatched and he was threatened and slapped by respondent no. 1, who also made him to write a statement forcibly. He was kept in detention for about 3-4 years after which he was handed over to police before the media. The police took him to PS Chanakaya Puri, where he gave the statement to Inspector Satish Sharma. His car was recovered by the police from the Khan Market and was brought to PS Chanakaya Puri and he was made to leave with the assurances that the matter would be investigated.
5. The petitioner has further stated that in the month of September, 2011, the charge-sheet has been filed in criminal case FIR No. 14/09, before Ld. ASJ, Tis Hazari Court and then the complainant has come to know that no case of threat, kidnapping and illegal confinement was made out against the respondents. Hence, he has filed this complaint u/s 200 read with Section 156 (3) Cr.PC seeking directions from the police for registration of the FIR.
6. The status report was called from Crime Branch, Chanakaya Puri, which was filed by Inspector Sunil Kumar, wherein it has been come that on the complaint which had been made by the petitioner, a detailed inquiry was conducted by the Crime Branch and two Constables of 12th Batallion, RAC, who were deployed at Khan Market and also from the Security Guard, who denied of any incident of taking away forcibly the CR No. 06/12 Page No. 3 of 8 -4- petitioners having been noticed by them. Furthermore, the petitioner who is a witness in case FIR No. 14/09 had already sought security from the police being the prosecution witness in the criminal case and the said request has already been allowed by Member Secretary, Delhi Legal Aid Services, Patiala House Court Complex and the petitioner has already been provided with the security. It is submitted that the detailed report was recorded vide DD No. 10, dated 25.09.2008 and the complaint was not found to be substantiated and hence no FIR was registered. The copy of the DD Entry has been annexed along with the report.
7. I have heard the submissions and have also perused the record. The scope of Section 156 (3) Cr.PC was considered by the Hon'ble Supreme Court in "H. S. Bains v. State, AIR 1980 SC 1883", wherein it was observed that :
"Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section1 73(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he CR No. 06/12 Page No. 4 of 8 -5- adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be."
8. In "Mohd. Yousuf v. Afaq Jahan", scope of Section 156(3) was explained by the Supreme Court as under :
"8.The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
9.But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation CR No. 06/12 Page No. 5 of 8 -6- referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".
10.This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.
11.The clear position therefore is that my Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a bock kept by the Page 195 officer in charge of the police station as indicated in Section 154 of the code. Even if a Magistrate does not say in so many words while directing investigation under Section 156 (3) of the Code that an FIR should be registered, it is the duty of the officer in charge or the police station to register the FIR regarding the cognizable offence disclosed by CR No. 06/12 Page No. 6 of 8 -7- the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
9. The alleged incident of wrongful confinement and threat as detailed by the petitioner had taken place in 2008. Immediately on his report detailed inquiry had been conducted by the police and it was found that the complaint did not disclose any cognizable offence as the facts therein were not substantiated during the investigations and the same was recorded vide DD No. 10. The complainant has since then not approached in Court and it is only after the charge-sheet in the criminal case FIR No. 14/09 had been filed in the Court on 20.09.2001 that this complaint has been filed. The facts as alleged by the complainant are within the personal knowledge of the complainant is not of the kind which he is unable to collect on his own. Further it is not as if the ld. MM has refused to take cognizance on the complaint made by the petitioner but has chosen to adopt third recourse as described in the case of H. S. Bains (supra) of asking the complainant to get himself examined on oath and to produce his witnesses so as to be able to proceed further.
10. The Ld. MM has, therefore, rightly observed that in view of the detailed inquiry which has already been done by the police, the application u/s 156 (3) does not merit any direction and the petitioner has been asked to produce his evidence to prove his contentions.
11. There is no infirmity or illegality pointed out in the CR No. 06/12 Page No. 7 of 8 -8- said order. The petitioner is at liberty to substantiate his allegations u/s 200 Cr.PC. The present revision is without merit and is hereby dismissed.
12. Trial Court Record be sent back along with the copy of this order.
13. Revision file be consigned to the Record Room. Announced in the open Court on 01st Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CR No. 06/12 Page No. 8 of 8