Delhi District Court
Inspector Daya Sagar vs State Of Nct Of Delhi on 27 February, 2023
IN THE COURT OF MS. SWATI KATIYAR,
ADDITIONAL SESSIONS JUDGE-07,
EAST, KARKARDOOMA COURTS, DELHI
Cr Rev No. 21/2021
Inspector Daya Sagar
S/o Late Sh. K.N. Sharma
R/o 171, Abhay Khand-I,
Indirapuram, Ghaziabad
presently posted as
SHO of Police Station
Kalyanpuri, Delhi. ......... Revisionist
Vs.
1. State of NCT of Delhi
2. Smt. Asha Devi
W/o Sh. Gulab Chand
R/o S-61/87, Indira Gandhi Camp,
Nehru Nagar, New Delhi-110065. .........Respondents
Date of Institution : 25.10.2021
Date of reserving for order: 15.02.2023
Date of Order : 27.02.2023
Digitally
signed by
SWATI
SWATI KATIYAR
KATIYAR Date:
2023.02.27
17:28:59
+0530
Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 1 /17
ORDER:
1. This order shall dispose off the present Criminal Revision Petition filed by revisionist against order dated 12.10.2021 passed by Ld. Chief Metropolitan Magistrate, East, KKD in CT Cases No. 4970/2019 titled as Asha Devi Vs. Kamal Singh.
2. Briefly stated, the facts of the case are that a complaint u/s. 156(3) r/w Section 190 Cr.P.C was filed by respondent no. 2 Smt. Asha Devi before Ld. CMM, East, KKD on 29.11.2019 stating that she was mother of deceased Sandeep Kumar. Respondent no. 2 stated that accused persons namely Kamal Singh who was Centre Incharge of Navjeevan Drug De-addiction and Rehabilitation Centre, Ghaziabad and other unknown persons of the center, hatched a conspiracy and committed murder of her son who was aged about 35 years at the time of incident.
3. Respondent no. 2 stated in her complaint her son was dipsomaniac for alcholic drinks due to which he was admitted at aforesaid center for rehabilitation treatment on Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:29:15 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 2 /17 14.02.2019 after consulation with the family members. A fees of Rs. 5,000/- alongwith transportation charges of Rs. 1,200/- were also paid to the Navjeevan De-addiction Centre on 14.02.2019. It was stated by respondent no. 2 that on 16.02.2019 at around 12:30 pm she alongwith her brother Tikku Ram visited the said centre but they were informed by the staff that she could not meet her son as he was undergoing rehabilitation session but she was made to watch her son live through CCTV footage. Upon seeing the live footage, respondent no. 2 and her brother returned back home.
4. It was stated by respondent no. 2 that on 18.02.2019 at around 05:15 am she received a call on her mobile number wherein she was informed that her son was not well and was admitted at LBS hospital, Khichripur, Delhi. Respondent no. 2 reached the hospital alongwith her son Gautam Kumar at around 06:00 am where Mr. Kamal Singh informed her that her son has died and his body has been sent to mortuary of the hospital. When respondent no. 2 asked Kamal Singh about reason of death of her son, she was told that local police of PS Kalyanpuri has been Digitally signed informed of the same. SWATI by SWATI KATIYAR Date:
KATIYAR 2023.02.27 17:29:28 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 3 /17
5. It was the case of respondent no. 2 that she was astounded that within two days of admission, her son expired and when they saw the dead body of Sandeep Kumar, they found bruises and blood on the body of deceased. Respondent no. 2 stated that one ASI Gabbar Singh from PS Kalyanpuri was also present in the hospital but despite request made by respondent no. 2, the said ASI did not arrest Mr. Kamal Singh. It was further stated by respondent no 2 that on the same day i.e. 18.02.2019, the body of deceased was sent for autopsy and after autopsy, the mortal remains of the deceased were handed over to the family for performing last rites of the deceased.
6. It was further stated by respondent no. 2 that on 18.03.2019, the autopsy report of deceased was received from PS Kalyanpuri. As per the postmortem report, the cause of death was stated to be neurogenic shock consequent upon multiple injuries over body, homicidal in nature and sufficient to cause death in ordinary course of nature. All the injuries were stated to be ante-mortem in nature, fresh in duration and caused by blunt force / object.Digitally signed by SWATI KATIYAR
SWATI Date:
KATIYAR 2023.02.27
17:29:40
+0530
Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 4 /17
7. It was stated by respondent no. 2 that the death of Sandeep Kumar was not accidental but a premeditated and well planned murder committed by Kamal Singh and other accused persons. It was stated that family members had informed the local PS Kalyanpuri about the same but no action was taken. Respondent no. 2 also stated that she had sent the complaint to Higher Authorities but no action has been taken. Thus, feeling aggrieved, a complaint was filed u/s. 156 (3) Cr.P.C before Ld. Trial Court praying FIR to be registered against accused persons for offences punishable u/s. 302/325/326/120B/34 of Indian Penal Code.
8. On the complaint of respondent no. 2, status report was called from SHO, PS Kalyanpuri. Action Taken Report was filed by SI Amit Kumar on 01.02.2020 submitting that on 18.02.2019, information was received vide DD No. 8A regarding admission of deceased Sandeep Kumar at LBS Hospital which was marked to ASI Gabbar Singh. It was further submitted that deceased was brought to casualty of LBS Hospital and was declared brought dead vide MLC No. 1779/2019 dated 18.02.2019. The postmortem of deceased was conducted vide PM report Digitally signed by SWATI SWATI KATIYAR KATIYAR Date: 2023.02.27 17:29:54 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 5 /17 No. 95/2019 dated 18.02.2019 at LBS Hospital. The viscera of deceased was preserved at LBS Hospital. The inquest papers alongwigh viscera was handed over to the police officials of PS Khora Colony, Ghaziabad, vide road certificate no. 155/21/19 dated 23.04.2019 through HC Bhupender Singh, No. 136, Khora Colony, Ghaziabad, UP.
The photocopy of road certificate was annexed to the report.
9. A further Status report was filed by SI Amit Kumar on 01.10.2021 submitting that viscera of deceased was sent to Vidhi Vigyan Laboratry, Niwari for analyses and report by police officials of PS Khora Colony. The report was collected by PS Khora Colony on 06.08.2020 and in the viscera report, ethyl alcohol was found. A copy of viscera report and GD No. 18 dated 17.05.2019, GD No. 21 dated 03.04.2021 and GD No. 40 dated 08.04.2021 were also annexed to the status report.
10. Vide order dated 12.10.2021, Ld. CMM, East, KKD allowed the application of respondent no. 2 and directed SHO, PS Kalyanpuri to register an FIR and conduct proper Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:30:09 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 6 /17 investigation of the case. Ld. Trial Court had made following observations while passing the impugned order, "I have given my thoughtful consideration to the submissions made on behalf of the complainant and also gone through the Status Report and other documents on record. From the facts of the case, prima facie cognizable offences appears to be made out against the accused and police investigation is required to determine the genuineness of allegations levelled. As regards the issue of territorial jurisdiction is concerned, it is on record that no FIR is pending at PS Khora Colony. As per section 179 Cr.P.C, an offence can be inquired or tried by a court within whose local jurisdiction any offence has been done or consequences of the offence, has ensued. In the present case, even if the alleged offence of beating and torture may have taken place beyond the jurisdiction of PS Kalynapuri, however, the death of victim had taken place within the jurisdiction of PS Kalyanpuri so the matter can be investigated and tried within jurisdiction of PS Kalyanpuri.
Accordingly, the SHO PS Kalyanpuri is directed to register and FIR and conduct proper investigation of this case. IO is not bound to arrest the accused until some credible evidence is found against him. Investigation be carried out fairly and expeditiously Digitally signed by SWATI SWATI KATIYAR KATIYAR Date: 2023.02.27 17:30:27 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 7 /17 and final report be submitted within the shortest period."
11. Feeling aggrieved from this order, SHO PS Kalyanpuri has preferred the present revision petition on the ground that the impugned order is not in consonance with law. It is stated that complaint has been filed in respect of offences which took place within jurisdiction of PS Khora Colony and therefore, the Court had no territorial jurisdiction in the matter. It was stated that offence if any happened under the jurisdiction of PS Khora Colony and not under the jurisdiction of PS Kalyanpuri. It was further stated that it is a simple procedure that if any injured or dead person is brought to the hospital, the local police station is informed and information is recorded in daily diary. The deceased in the present case was brought in dead condition from Navjeevan Centre, Khora which comes under the jurisdiction of PS Khora colony.
12. Revisionist further stated that Ld. Trial court has failed to appreciate that no complaint has been made by respondent no.2 to the officials of PS Khora Colony and no reason has been given by respondent no.2 before Ld. Trial Court or in her complaint for not making complaint before Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:30:38 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 8 /17 concerned PS Khora Colony. It is submitted that all the evidences are in the clutches of the investigating officer of PS Khora Colony and they are liable to make and forward the report to concerned Illaqa Magistrate. It was further stated that there is no procedure to collect evidences from the police officials of PS Khora Colony and Ld. Trial Court has failed to appreciate the entire evidence was either in possession of complainant or in possession of concerned IO of PS Khora Colony. The reports which were in possession of PS Kalyanpuri have already been handed over to the concerned officials of PS Khora Colony and therefore, there is no need for any police assistance of PS Kalyanpuri for the purpose of investigation.
13. It was further submitted that revisionist shall suffer irreparable loss if the impugned order dated 12.10.2021 passed by Ld. Trial Court is not set aside. It was thus, prayed that the order dated 12.10.2021 directing registration of FIR be set aside in the interest of justice.
14. Notice of the revision petition was issued to the respondents. Ld Addl. PP for the State accepted notice on behalf of State i.e. respondent no.1. Respondent no.2 Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:30:51 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 9 /17 appeared before the Court through her counsel on 14.12.2021. No reply was filed by respondents to the revision petition. Fresh ATR was called by this Court and the same was filed by SI Sachin Panwar on 28.01.2023 submitting that the viscera of deceased was sent by PS Kalyanpuri to the police officials of PS Khora Colony and they have sent the viscera to FSL vide RC no.1772/3V/19 dated 15.05.2019 and the FSL report has also been received by PS Khora colony on 10.12.2020. It was further stated that no complaint was given by complainant to PS Khora Colony.
15. Arguments on the revision petition were heard at length from both the parties. Written arguments were also filed on behalf of respondent no.2.
16. I have considered the submissions and perused the record carefully.
17. In the present case, it is not in dispute that the deceased was admitted for de-addiction treatment at Navjeevan Centre, Khora Colony on 14.02.2019 and he remained there till 18.02.2019 when respondent no.2 was Digitally signed by SWATI SWATI KATIYAR KATIYAR Date:
2023.02.27 17:31:02 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 10 /17 informed in the morning at around 05:15 am that her son was not well and was admitted to LBS Hospital, Khichripur, Delhi. When respondent no.2 reached the hospital, she was informed that her son Sandeep Kumar has died and when the body was received by them, they saw that there were bruises and blood on the body of deceased. The postmortem report stated that there were anti mortem injuries on the body sufficient to cause death in ordinary course of nature. It is not disputed that entire cause of action took place within jurisdiction of PS Khora Colony. The deceased was brought to LBS Hospital in unwell condition and he was declared dead on arrival. The postmortem report no.95/2019 mentions at serial no.5, the brief history as "ALLEGED H/O BEING FOUND UNCONSCIOUS AT NAJEEVAN NASH MUKTI REHAB CENTRE AT KHODA COLONY, WAS BROUGHT TO THE CASUALTY OF LBS HOSPITAL WIDE MLC NO.1779/2019 DATED 18/02/2019 AND WAS DECLARED BROUGHT DEAD AT 05.15 AM ON 18/02/2019. THE RELATIVES OF THE DECEASED ALLEGED FOUL PLAY IN THE SAID EPISODE." The viscera report of the deceased and the postmortem report were also handed over to the police officials of PS Khora Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:31:14 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 11 /17 Colony by the concerned Officials of PS Kalyanpuri. Thus, it was Police Station Khora Colony within jurisdiction of whose, the drug de-addiction centre, where the deceased was admitted, was located. It was also within jurisdiction of PS Khora Colony to interrogate the other inmates of drug de-addiction centre and collect CCTV footages, if any and other evidence requisite for the present investigation.
18. In Manoj Sharma Manu vs State Of Nct Of Delhi & Anr, CRL.M.C. 666/2017 & Crl.M.A. 2837/2017 decided on 13.04.2017, it was held by Hon'ble High Court of Delhi, "9. As noted above Section 154 Cr.P.C. unlike Section 156 (1) does not prescribe for a restriction on registration of FIR in respect of an offence committed within the territorial jurisdiction of the police station. Thus even if the offence may have been committed beyond the territorial jurisdiction of a police station, the officer in-charge of the police station would still register the FIR and investigate thereon, however, a Magistrate under Section 156 (3) Cr.P.C. cannot direct to an officer in-charge of a police station beyond its territorial jurisdiction........
11. Similar view was expressed by the Division Bench of the Bombay High Court in the decision reported as 2008 CriLJ 1496 State of Maharashtra vs. Ibrahim A. Patel. It was held: SWATI Digitally signed by SWATI KATIYAR KATIYAR Date:
2023.02.27 17:31:28 +0530Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 12 /17
5. The Short point for consideration which arises is whether the Magistrate in exercise of the powers under Section 156(3) of Cr. P.C. can direct the investigation by State CID?
6. Section 156(1) provides that "any police officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII." Sub-section (2) thereof provides that "no proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate"
and Sub-section (3) which is relevant for consideration provides that "Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
7. Plain reading of Sub-section (3) of Section 156 would, therefore disclose that the Magistrate who is empowered to take cognizance of an offence in terms Section 190 of Cr. P.C. can direct the investigation thereof by any police officer in charge of the police station, who is empowered to perform his duties within the local area demarcated for such police station and that such local area lies within the jurisdiction of the Court of the Magistrate.
8. Section 14(1) provides that "subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:31:40 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 13 /17 areas within which the Magistrate appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be vested under this Code. Provided that the Court of a Special Judicial magistrate may hold its sitting at any place within the local area for which it is established". Sub-section (2) of Section 14 provides that "except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district". Section 173(2)(i) provides that as soon as the investigation is completed, the officer in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by giving the details specified in the said Section. Section 177 of Chapter XIII provides that "every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed".
9. Conjoint reading of Section 14, 156(3), 173 and 177 of Cr. P.C. would reveal that the authority of the Magistrate to direct the investigation to a police officer relate to his powers to take cognizance of such offence and secondly to a police officer, who can function within the jurisdiction of the local limits of his Court and this authority or empowerment does not travel beyond those limits. Section 190 of Cr. P.C. speaks of the power of the Magistrate "to take cognizance" of an offence. The Code does not define the said expression. But, it is settled law that the cognizance tantamount to taking judicial notice of an offence. It is different from Digitally signed by SWATI SWATI KATIYAR KATIYAR Date: 2023.02.27 17:31:59 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 14 /17 merely initiating proceedings. Commencement of criminal proceedings relating to an offence by itself does not amount to taking cognizance.
14. The provisions of law comprised under the Code of Criminal Procedure nowhere empower the Magistrate to direct the investigation to the police officer other than one attached to the police Station situated within the territorial jurisdiction of the Court of such a Magistrate. Such powers undoubtedly can be exercised by this Court in writ jurisdiction or even while exercising the powers under Section 482 of Cr. P.C. It is settled law that a Magistrate does not enjoy inherent power. His powers are those specified under the Code and has to function strictly in accordance with the provisions of law made thereunder. The provisions of law comprised under the Cr. P.C. cannot be amended otherwise than the procedure known to law. The issuance of Manual of Instructions cannot be said to cause amendment to the Code of Criminal Procedure, as rightly submitted by the learned APP. The provisions comprised under Clause 2, Chapter III of the Manual would not empower a Magistrate to refer the matter for investigation by CID.
12. In view of the discussion aforesaid the learned Metropolitan Magistrate vide the impugned order dated 10 th February, 2017 having clearly noted that there was not even a single allegation of commission of any kind of offence alleged to have been committed within the jurisdiction of PS New Ashok Nagar and the allegations were related to the workplace of the complainant which was Noida, Digitally signed by SWATI SWATI KATIYAR KATIYAR Date: 2023.02.27 17:32:12 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 15 /17 U.P. and not within the jurisdiction of PS New Ashok Nagar clearly erred in issuing directions to the SHO, PS New Ashok Nagar for registration of zero FIR and thereafter to transfer the same to the concerned Police Station having jurisdiction in the matter as per the procedure. Consequently, Crl. M.C. Nos. 666/2017, 667/2017 and 668/2017, Crl. M.A. Nos. 2837/2017, 2839/2017 and 2841/2017 are disposed of setting aside the impugned order dated 10th February, 2017. Crl. M.A. No. 4842/2017 in Crl.M.C. No.666/2017 is dismissed."
19. In the present case as well, the entire cause of action arose within jurisdiction of PS Khora colony which has been observed even by Ld. Trial Court in the impugned order dated 12.10.2021. In view of the settled law as observed above, it was not proper to direct SHO PS Kalyanpuri to register FIR and conduct investigation in the present matter as the Ld. Trial Court had no jurisdiction to issue directions u/s 156(3) Cr.PC in a matter pertaining entirely to PS Khora Colony.
20. In view of observations made above, the present revision petition stands allowed. The impugned order dated 12.10.2021 is hereby set aside. Respondent no.2/ complainant is at liberty to pursue her remedies before the Digitally signed SWATI by SWATI KATIYAR KATIYAR Date: 2023.02.27 17:32:27 +0530 Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 16 /17 court or the investigating agency of the competent territorial jurisdiction.
TCR be sent back alongwith a copy of this order.
Revision file be consigned to record room after due compliance.
Digitally signed by SWATI Announced in the Open Court SWATI KATIYAR Date: KATIYAR 2023.02.27 on 27.02.2023. 17:32:40 +0530 (SWATI KATIYAR) ASJ-07, East, KKD Delhi / 27.02.2023. Cr. Rev No.91/2021 Inspector Daya Sagar Vs. State & Anr. 17 /17