Delhi District Court
Umesh Kumar Arora vs Smt. Jasbeer Arora on 9 April, 2018
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.56330/2016
Umesh Kumar Arora
S/o Late Sh. Surjeet Kumar
Presently R/o B509, 3rd Floor,
Sudershan Park, New Delhi.
Earlier R/o C39, 2nd Floor,
Front Side, Sharda Puri,
New Delhi.
............Revisionist
Vs.
1. Smt. Jasbeer Arora
W/o Sh. Umesh Kumar Arora
D/o Sh. Pritam Singh
R/o C39, 2nd Floor,
Front Side, Sharda Puri, New Delhi.
2. Smt. Darshna
W/o Sh. Pritam Singh
R/o C39, 2nd Floor,
Front Side, Sharda Puri, New Delhi.
...........Respondents
Date of Filing : 01.10.2016
Date of Arguments : 06.04.2018
Date of Order : 09.04.2018
Criminal Revision Petition U/Sec.397/399 Cr.P.C. against the order dated 06.06.2016 passed in CC No.909/1 O R D E R CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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1. This revision petition has been filed by the revisionist against the impugned order dated 06.06.2016 passed by Sh. Jitendra Singh, Ld. Metropolitan Magistrate, West District, Tis Hazari Court, Delhi vide which the revisionist's application filed U/Sec.156(3) Cr.P.C. was dismissed.
2. The brief facts necessary for disposal of present petition are as follows: 2.1 That on 06.04.2016 an application U/Sec.156(3) Cr.P.C. bearing CC No.909/1/16 was filed by the revisionist (hereinafter referred to as 'complainant') against the respondent no.1& 2 (hereinafter referred to as 'accused no.1 & 2' respectively). The accused no.1 is wife of the complainant and accused no.2 is motherinlaw of the complainant. 2.2 In the said application, it was stated by the complainant as follows:
"The complainant is NRI and citizen of Canada. In India he was residing with his wife i.e. accused no.1 at C39, 2 nd Floor, Sudershan Park, New Delhi which was belonging to his mother. He left for Canada in March, 2015. At that time his wife was residing with her parents at Lajpat Nagar. But later on she came to aforesaid house in the absence of CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr. Page 3 of 13
complainant as she was having one key of the house. When complainant came back to India on 27.01.2016, both the accused persons were present in the said house. The accused no.1 demanded money from the complainant and he promised to give her the same on the next day after getting the Canadian dollars and Euros converted into Indian currency. On the next day, the accused no.2 saw all the articles viz. laptop, perfumes, nightys, toys, cosmetics, chocolates, ladies handbag and black bag containing money & passport lying in the two suitcases of complainant. The complainant went out for getting his motorcycle repaired. But when he came back, he saw that some of his articles were lying outside the house and the accused persons were abusing him. All the costly articles and the bag containing money and passport were stolen by the accused persons. The complainant reported the matter to police but no action was taken by the police against the accused persons."
Hence, he filed the application U/Sec.156(3) Cr.P.C. for registration of FIR against the accused persons U/Sec.379/506/120B/34 IPC. 2.3 Report was called by the Ld. MM on the said application from the CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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police. Report was filed by police on 06.06.2016 in which it was stated that the accused no.1 had filed a complaint against the complainant and his family members at CAW Cell, Kirti Nagar and after inquiry and recommendation, an FIR No.203/16 U/Sec.498 A/406/34 IPC was registered against the complainant and his family members. It was further stated that during examination the accused no.1 said that her husband had not come to her house and she had not taken away any articles, whereas the complainant could not be contacted despite making of efforts as he was not available in India. It was further stated that the matter was related to matrimonial dispute and no FIR was registered as the matter was found to be of civil nature.
2.4 Vide impugned order, the Ld. MM dismissed the abovesaid application and declined to give direction to the SHO to register FIR by holding that the evidence was within the reach of the complainant and the accused persons known to him and further that if subsequently it would be deemed necessary, then police inquiry could be initiated U/Sec.202 Cr.P.C. He took cognizance of the offence and adjourned the matter for presummoning evidence.
3. The present revision petition has been filed by the complainant for CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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setting aside the impugned order dated 06.06.2016 on the following main grounds:
(i) That the impugned order is passed without application of mind and is based on conjectures and surmises.
(ii) That the Ld. MM has failed to appreciate that the police had not taken any action against the accused persons and the Ld. MM dismissed the application without going through the contents of the police report as well as the complaint.
(iii) That the Ld. Trial Court has failed to appreciate that the offences as narrated in the complaint lodged before the police well depicted the commission of cognizable offence and as per judgment titled as "Lalita Kumari Vs. Govt. of U.P. & Ors.", it is well settled law that as and when a complaint citing commission of cognizable offence is lodged, immediately an FIR should be registered.
(iv) That the Ld. MM ignored the fact that the concerned police officials had neither enquired about the articles nor filed any report qua the same.
CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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(v) That the Ld. Trial Court has failed to appreciate that the evidence in not in the control of complainant and that the matter needs investigation.
4. Notice of the present revision petition was given to the respondents and the revision petition has been contested by them.
5. I have heard the arguments from counsel Sh. Sumit Gaba for revisionist/complainant and Counsel Sh. Sunil Kumar for the respondent no.1 & 2 and perused the record including the Trial Court record in the light of submissions made before me.
6. The Counsel for revisionist/complainant has vehemently argued that the impugned order is liable to be set aside as it is not legal whereas the counsel for respondents has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
7. Chapter XII of Cr.P.C. deals with information to the police and its power to investigate the offences. Chapter XV of Cr.P.C. deals with the complaint filed before a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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Sec.156 Cr.P.C. contained in Chapter XII speaks of the powers of the police officers to investigate cognizable cases and subclause (3) of the said section gives power to the Magistrate having power under Sec.190 Cr.P.C. to order such an investigation. Complaint filed U/Sec.190 r.w. Sec.200 Cr.P.C. before a Magistrate provides an alternative as well as an additional remedy to a complainant whose complaint is not entertained by the police. Thus, when a criminal complaint, which discloses commission of cognizable offence, is filed before a Magistrate, two courses are opened to him viz. (i) he may direct the police to investigate the matter U/Sec.156(3) Cr.P.C., or (ii) he may choose to inquire into the complaint by taking cognizance U/Sec.190 Cr.P.C. However, it is settled law that power vested in Magistrate to direct police to investigate the matter U/Sec.156(3) Cr.P.C. is to be exercised judiciously on appropriate grounds and such order could not be passed in every case in a mechanical manner unless there are serious allegations and further that the evidence is beyond the reach of the complainant or the custodial interrogation appears to be necessary for some recovery of articles or discovery of facts. It is held by Hon'ble High Court of Delhi in M/s. Skippers Beverages Pvt. Ltd. Vs. State, 2001 (3) RCR (Criminal) 514, CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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"It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this 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. The 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 interests of justice demand that the police should step in to help the complainant."
8. In Shri Subhkaran Luharuka & Anr. Vs. State (Govt. of NCT Of Delhi) & Anr., 2010 (170) DLT 516 the Hon'ble High Court of Delhi has held that when the Magistrate is approached with a Complaint U/Sec.200 Cr.P.C., he should invariably proceed under Chapter XV by taking cognizance of the Complaint. However, it is also held that it is open to the Magistrate to proceed under Chapter XII of Cr.P.C. when an application U/Sec.156(3) Cr.P.C. is also filed along with a CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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Complaint U/Sec.200 Cr.P.C. if the Magistrate decides not to take cognizance of the Complaint, but in that case the Magistrate before passing any order to proceed under Chapter XII, should be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency.
9. It has been held by Hon'ble High Court of Delhi in Ravindra Kumar Vs. State (Govt. of NCT of Delhi), 2013(8) AD(Delhi) 403 that the remedy U/Sec.156(3) is discretionary and the complainant cannot insist as a matter of right that his complaint in every eventuality be directed to the police for investigation. The Hon'ble Court has held, "Remedy under Section 156 (3) Cr.P.C. is a discretionary one as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and also about necessity of police investigation for digging out of evidence neither in CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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possession of the complainant nor can be procured without the assistance of the police. The complainant, as a matter of right, cannot insist that the complaint case filed by him/her should be directed in every eventuality to the police for investigation."
10. Thus, the Magistrate has the discretion to refuse the registration of FIR. Criminal law is not expected to be set into motion on the mere asking of a party. It is only in those cases where there is substance in the complaint and the allegations are of serious nature and the evidence could not be obtained by the complainant without the assistance of the police, that an order for registration of FIR be passed U/Sec.156(3) Cr.P.C. The present case is not a case where the police assistance is required for breaking the case or for discovery of some evidence which the complainant himself is unable to collect at his own. It is not a case where the evidence is beyond the reach of the complainant or that the custodial interrogation is required for discovery of fact. The evidence on which complainant is relying is within his knowledge. The complainant himself can also lead evidence to prove his case.
11. It has been held by Hon'ble High Court of Delhi in Smt. Mithlesh Vs. CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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The State of N.C.T. of Delhi & Ors., 2009 (4) JCC 2609 that in cases where the complainant and accused are already in litigation with each other, in such cases the parties want the registration of FIR just to put pressure on the other party and in such case the provision of Sec.156(3) Cr.P.C. should not be allowed to be used by them to satisfy their personal scores.
"It is not incumbent in each and every case that the Magistrate must direct registration of an FIR and the consequent investigation by the local police. The Magistrate can take an inquiry under Sec.200 Cr.P.C. by examining the complainant and the other witnesses which are produced and then proceed to deal with the complaint under Sections 202 to 204 Cr.P.C. It seems that the petitioner wants to bring bare pressure on the other side by registration of an FIR. This is so on account of the fact that once an FIR is registered other side namely the accused persons would be on the run because they will face an imminent threat of arrest and secondly it becomes convenient for the complainant as well because it becomes a State case where the presence of the complainant is not required on every date of hearing. That is the modus operandi which is CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr. Page 12 of 13
invariably adopted and aimed at by every petitioner. This cannot be permitted to be done more so in a case of a present nature where the petitioner is in litigation with the accused persons/respondents".
12. Thus as per the abovesaid caselaw the parties should not be permitted to use the provisions of Sec.156(3) Cr.P.C. as per their own convenience, for satisfying their personal vendetta. In the present case also the parties are already litigating against each other as the accused no.1 has already lodged an FIR under Sec.498A/406/34 IPC against the complainant and his family members. Thus as per the abovesaid caselaw the provision of Sec.156(3) Cr.P.C. should not be allowed to be used by the parties for settling their personal scores.
13. In view of the aforesaid discussion, the present case is not found a fit case for directing the SHO to register FIR. Moreover, if the need arises, the Trial Court can take recourse to Sec.202 Cr.P.C. at appropriate stage of proceedings. On careful perusal of the record in general and the impugned order in particular, it is revealed that the complainant/revisionist has not been able to show any reasonable ground to interfere in the impugned order. It is well settled law that the CR No.56330/16 Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.
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revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. Moreover, if any fact requiring police investigation is found by the Trial Court after conclusion of presummoning evidence, the said fact can very well be verified/investigated through police U/Sec.202 Cr.P.C. If the impugned order is analyzed in the light of scope of Sec.397/399 Cr.P.C., no wrong, illegality, impropriety or irregularity is found therein. Hence, the impugned order is upheld and the revision petition is dismissed being devoid of merits.
14. TCR be sent back alongwith copy of this Order.
15. File of the revision petition be consigned to Record Room.
(Announced in open
Court on 09.04.2018) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.56330/16
Umesh Kumar Arora Vs. Smt. Jasbeer Arora & Anr.