Delhi District Court
Mahipal vs Guddu on 19 June, 2015
THE COURT OF MS. NEHA PALIWAL:
METROPOLITAN MAGISTRATE 03: KARKARDOOMA: DELHI
CC No. 14/14/2014
Mahipal Vs Guddu
Order on application U/s 156(3) Cr.P.C.
1. Vide this order this Court would dispose of the application
moved on behalf of the complainant/applicant Mahipal u/s 156 (3)
Cr.P.C.
2. The complainant has moved the application U/s 156(3)
Cr.P.C. alongwith the complaint U/s 200 Cr.P.C., and it is
submitted by the complainant that the contents of the complaint be
read as the part and parcel of the application.
3. Briefly, it is the case of the complainant that his wife expired
on 26.1.2013. He had called his brother in law to look after his
wife. After the death of his wife he alongwith his brother in law
and children went for cremation. After performing the last rites,
the complainant went to his in laws and when he was returning
back to Delhi, he asked the respondent i.e. his brother in law to
come with him, but the respondent refused to return. Thereafter, the complainant returned back and due to financial crises and due to need of money he opened the box in which his wife used to keep CC No. 14/2014 Mahipal Vs Guddu pages1 of7 her jewellery. He was shocked to see that the box was empty and the jewellery and cash kept in that box were missing. On inquiry it was told by the daughter of the complainant that the respondent had taken out the jewellery alongwith money and had asked her not to disclose the said fact to the complainant. On inquiry it was stated by the father of the respondent to the complainant that the respondent had brought the articles from his house as the same belonged to his deceased daughter Manju and they refused to hand over the jewellery and cash to the complainant as the same belonged to their daughter.
4. It is the case of the applicant that he had made the complaint in writing against the respondents to the police officials of PS Mandawali , however, no action has been taken by the police officials against the respondents. Therefore, the present complaint coupled with application U/s 156(3) has been moved before the Court and it is prayed by the complainant that SHO PS Mandawali be directed to register a case against the respondents and to investigate the matter in accordance with law.
5. Status report was filed in the present matter by IO/SI Lauvkesh. It was stated in the status report that on the complaint of the complainant an inquiry was conducted by ASI Ranbir Singh and the allegations of the complainant were found to be false and CC No. 14/2014 Mahipal Vs Guddu pages2 of7 frivolous. A complaint against complainant was lodged U/s 498 A/304 B/323/504/506 IPC and U/s 3 and 4 of Dowry Prohibition Act on which FIR was directed to be registered. The complainant has filed the complaint against the respondents 9 months later after the alleged incident of theft. It was further stated that the complainant has filed the present complaint in order to pressurize the father of the deceased.
6. Arguments were heard in the present matter and thereafter, the matter was fixed for orders.
7. Powers under Section 156 (3) of Code of Criminal Procedure, 1973 are not to be invoked mechanically but only after application of mind. Thus before referring the complaint to the police for registration of FIR, this court is required to apply its mind to the allegations leveled in the complaint, as held in the case of Ram Babu Gupta Vs. State of UP & Ors. 2001 Crl. LJ 3363.
8. In this respect, it is also apt to refer to the case of S.P. Shenbagamoorthy Vs. Mu. Ka. Stalin & Anr. 2003 Crl. LJ 271, wherein the court deprecated the practice of sending complaints to the police under Section 156 (3) of Code of Criminal Procedure, 1973 where allegations are not supported by any material or where investigation is not necessary.
CC No. 14/2014 Mahipal Vs Guddu pages3 of7
9. In the case of Arvindbhai Ravjibhai Patel Vs. State of Gujarat & Ors. 1998 Crl. LJ 463, the Hon`ble Gujarat High Court observed as under : "The Magistrate should be quite discreet enough in not mechanically directing the police to investigate the case under Section 156(3) of the Code, when the allegations in the complaint are simple enough and further where the Court undoubtedly can straightway proceed to conduct the trial. This amounts to clear abdication and dereliction of duty, which is required to be curbed in the overall interest of justice."
10. I have perused the record and considered the submissions advanced by Ld. Counsel for the complainant.
11. In the case of Lalita Kumari Vs Govt. of UP & Others, 2014(1) JCC 1, it was held by the Hon'ble Supreme Court of India that in all the cases where allegations of cognizable offences are disclosed, the FIR is mandatory to be registered by the investigating agency
12. In the present matter alongwith the status report IO has filed the copy of FIR bearing no. 422/2013, U/s 498 A/304 CC No. 14/2014 Mahipal Vs Guddu pages4 of7 B/323/504/506 IPC & Section 3 & 4 of Dowry Prohibition Act, wherein the complainant is one of the accused. The said FIR is registered on 29.12.2013. It is the case of the complainant that his wife has expired on 26.1.2013. The present complaint has been filed by the complainant on 21.4.2014. It is the case of the complainant that he has made a complaint to SHO PS Mandawali on 11.10.2013. It is stated by the IO that the father of the respondent had also made a complaint against the complainant before Ld. J.M.I, Shahjahanpur, pursuant to which FIR was registered. It is hard to contemplate that the complainant would not be knowing about the missing of jewellery for such a long period. The complainant made complaint to SHO PS Mandawali dated 11.10.2013. There is an FIR registered against the complainant of the present case with respect to dowry and other offences under IPC. In the said FIR categoric allegations have been made against the complainant.
13. In view of the above discussed factors however, without commenting upon, the merits of the case, it would be sufficient to state that the complainant is in control of the entire evidence that is required for adjudication of the dispute of the present case. Therefore this is not a fit case for invoking the powers U/sec 156 (3) Cr. PC of Code of Criminal Procedure, 1973 and for directing CC No. 14/2014 Mahipal Vs Guddu pages5 of7 the SHO of concerned police station to register FIR particularly for the following reasons:
1. The identity of the respondents is already known to the complainant.
2. All the incriminating facts are already in the knowledge of the complainant.
3. No facts are to be unearthed so as to require aid of police.
4. Custodial interrogation of the respondents is not necessary.
5. The evidence required in the case is within the reach of the complainant.
14. Reference may also be made to the case of M/s Skipper Beverages Pvt. Ltd. Vs. State 2002 Crl. LJ NOC 333 (Delhi), in which it has been held as under: "Section 156 empowers Magistrate to direct police to register case and initiate investigation and a Magistrate must apply his mind before passing the orders U/sec 156 (3) Cr. PC of the code and must not pass these orders mechanically on the mere CC No. 14/2014 Mahipal Vs Guddu pages6 of7 asking by the complainant. These powers ought to be exercised judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for the recovery of some articles or discovery of facts. Those cases where allegations are not very serious and complainant himself is in possession of evidence to prove allegation, there should be no need to pass order under Section 156".
15. In these circumstances, the application under Section 156(3) of Code of Criminal Procedure, 1973 for directions to police to register FIR and for police investigation is hereby dismissed.
16. The complainant is at liberty to treat his complaint as a complaint case for the purpose of Section 200 of Code of Criminal Procedure, 1973.
17. List on 19.11.2015 for presummoning complainant's evidence.
CC No. 14/2014 Mahipal Vs Guddu pages7 of7 (Neha Paliwal) MM03(E)/KKD: Delhi/19.6.2015 CC No. 14/2014 Mahipal Vs Guddu pages8 of7