Delhi District Court
Amit Bhadauria vs State Of Nct Of Delhi on 9 December, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 254 of 2021
CNR No. DLSE01-010974-2021
IN THE MATTER OF:
Amit Bhadauria,
S/o Sh Umesh Singh Bhadauria,
R/o 46F, 2nd Floor, LP-Block,
Pitampura, New Delhi-110034
.......Revisionist
Versus
1. State of NCT of Delhi
2. Gurjot Singh,
S/o Sh Baljinder Singh,
R/o J-5/22, 1st Floor,
Rajouri Garden, Tagore Garden,
West Delhi-110027
........Respondents
Instituted on : 09.12.2021
Reserved on : Not reserved
Pronounced on : 09.12.2021
JUDGMENT
1. Vide instant revision, revisionist takes exception to the order dated 30.11.2021, whereby his application under section 156(3) Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 1 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:03:19 +0530 Cr.P.C in case bearing Ct No. 155/2021 titled as Amit Bhadauria Vs Gurjot Singh, stood dismissed by Ld. Metropolitan Magistrate-06, South East District, Saket Court, New Delhi.
2. Brief facts may be taken note of: Revisionist and respondent entered into a partnership deed in the name of style of SBAG Consulting LLP (Limited Liability Partnership) dealing with computer training data processing centers and to act as consultant, advisor, developer, trade in computer programming, accounting support system etc. As per revisionist, they both were taking care of the business. It was alleged that respondent no.2 had misappropriated the funds of the Firm by making certain unaccounted transfer to the tune of about Rs.1.60 crores. It was further alleged that respondent no.2 forged his signatures and prepared a forged resignation letter and submitted the same with ROC. On these allegations, revisionist sought registration of FIR against respondent no.2 alleging offences under section 420/403/406/467/120B IPC.
3. Action Taken Report was filed by concerned Inquiry Officer, Police Station Kalkaji before concerned Court, wherein the matter was reported to be civil in nature and no cognizable offence was found to have been made out in the instant matter.
4. Vide impugned order, the prayer of revisionist for registration of FIR in terms of section 156(3) Cr.PC stood declined by concerned court. The relevant observations of Ld Magistrate is reproduced as under :-
Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 2 of 9 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:03:32 +0530 " In the instant case, the complainant is aware of the witnesses who are to be examined and / or in possession of complete details of the complaint /documents. The mode and manner in which the alleged offence is stated to have been committed is clear, identity of the accused is also not to be established. As per the submissions, identity of the accused persons is known to the complainant. Further, all the documents are lying in the possession of the complainant. The complainant has brought nothing on record to suggest as to what evidence is required to be collected through police investigation.
10. Therefore, the offence committed if any may be proved by leading evidence by the complainant himself. No active or passive assistance required from the state machinery for investigation.
Therefore, there is no requirement of police investigation in this case for the purpose of collection of evidence. The case, if any, can be proved by the evidence of the complainant. If any further evidence would be required, the same can be summoned by the court at the required stage u/s 202 Cr.PC.
11. Therefore, in view of the above discussion the present application filed u/s 156 (3) Cr.PC is dismissed.
12. Now to come up for PSE on 11.02.2022."
5. Revisionist is aggrieved with the said order and has assailed the impugned order on various grounds which can be summarized as under :-
i) That the impugned is against the settled principle of law and as such same is bad as well as based on conjectures, surmises and imaginations;
(ii) That Ld Trial Court failed to considered the facts and circumstances of the present case and has erroneously held that all the facts and evidences are within knowledge / possession of revisionist;
(iii) That Ld Trial Court erred in law by declining the prayer of revisionist for registration of FIR as the facts alleged disclosed commission of cognizable offences;
(iv) That the Status report filed by Inquiry Officer was malafide;
(v) That Ld Trial Court failed ignored the fact that it is beyond the reach of revisionist to produce material to substantiate the allegations;
Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 3 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:03:40 +0530
6. Ld. counsel for the revisionist has advanced arguments on the line of grounds as taken in the instant revision petition. He has forcefully argued that the impugned order is not sustainable in the eyes of law as Ld Magistrate was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is urged that all the evidence is not within the possession of revisionist and assistance of police would be required for effective investigation, for ascertaining the authorship of forged documents and for recovery of embezzled amount. It is further urged that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
7. I have heard contentions of Ld counsel for revisionist and perused the record.
8. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 4 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:03:50 +0530 the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
9. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
10. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
11. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 5 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:04:00 +0530 "13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court.
Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
12. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
13. After going through the records and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that the revisionist is aware of the witnesses who are to be examined and he is in possession of complete details including identity of proposed accused i.e. respondent no.2. In my view, the entire evidence is within possession of revisionist and no investigation by police is required for collection of any evidence. If assistance of police would be required at any stage, same can be had by resorting to provisions of section 202 Cr.PC by the Ld Magistrate.
14. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 6 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:04:15 +0530 Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
15. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
16. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 7 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:04:24 +0530 whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
17. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 8 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:04:33 +0530 not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
18. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate. Ld counsel for revisionist has failed to point out any patent illegality or jurisdictional error in the impugned order.
19. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 30.11.2021. The revision petition stands accordingly dismissed.
20. TCR be sent back to Ld Trial Court along with copy of this judgment.
21. Revision file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.12.09 15:04:46 +0530 Announced in the open (ANUJ AGRAWAL) Court on 9th December 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 254 of 2021 Amit BhadauriaVs State & Anr Page No. 9 of 9