Delhi District Court
Rajat Sharma vs State Of Nct Of Delhi on 22 October, 2021
IN THE COURT OF SH. SUMIT DASS: ADDITIONAL SESSIONS
JUDGE-04 & SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
IN THE MATTER :
Cr. Revision No. 181/21
Rajat Sharma
S/o Sh. Janak Sharma
R/o E-50, G.K.-II Enclave,
New Delhi. ....... Revisionist
Versus
State of NCT of Delhi
Through Public Prosecutor ......Respondent
Order Reserved - 16.10.2021
Order Pronounced - 22.10.2021
ORDER
1. The present criminal revision petition U/s 397 of the Code of Criminal Procedure 1973 [in short Cr.PC] is directed against the order dated 31.01.2021 passed by Sh. Jitender Pratap Singh, Ld. M.M.-04, South East, Saket Courts, Delhi in C.C. No. 6497/2020 titled as "Rajat Sharma v/s State" whereby and whereunder the application U/s 156(3) Cr.PC seeking registration of FIR was dismissed.
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2. Aggrieved against the said order of dismissal the instant revision petition has been filed.
3. TCR was called for. Same has been perused.
3.1 For the purposes of convenience the revisionist shall be denoted as the 'complainant'.
4. Submissions have been heard at length - adduced by Sh. S.M.Bhaskar, Ld. Counsel for complainant/revisionist and Ld. APP for State.
5. Admittedly the complainant had filed a complaint case seeking registration of FIR for the offence(s) U/s 193/201/ 203/323/341/394/395/5-6/120-B of the Indian Penal Code, 1860 [in short IPC]. In the body of the complaint it is asserted as hereunder :
i) That in the evening of 21.07.2020 the complainant and his 8 years old son Rudra Sharma were riding bi-cycles in their colony i.e. G.K.II Enclave. At about 8 pm while they were passing in front of H.No.B-15, G.K.II Enclave, New Delhi, a lady namely Sushmita Kovar who lived in the same address rashly and negligently drove out in her car and hit the bi-cycle of complainant's minor son whereupon he fell down and got injured.Cr. Rev. No.181/2021
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ii) After hitting and injuring the Complainant's 8 years old
son Sushmita Kovar tried to drive away from the spot but the complainant managed to stop her car. At that point of time she and her husband Dr. B.D.Chowdhary got out of the car and started abusing and shouting. Smt. Sushmita Kovar instead of admitting her guilt rebuked the Complainant's 8 years old son and hit him. On this the Complainant's minor son got terrified and was in pain.
iii) Complainant tried to free his 8 years old son whereupon Sushmita Kovar who was carrying a bunch of keys gave a blow on Complainant's face whereupon he received a deep cut on his lower lip. They called their guard servant and other persons who gathered at the spot and started hurling abuses. The Complainant was surrounded by the son and daughter of the said Sushmita Kovar namely Ritish and Amrita and another person who was being addressed as 'Bhaiya'. All started hitting the Complainant. In the said process the Complainant was beaten by the husband of Smt. Sushmita Kovar, their guard and the said 'bhaiya' and Sushmita Kovar pounced upon him and forcibly snatched his gold chain and pendant. Neighbours intervened and stopped the accused persons from attacking the complainant. Complainant made a call to PCR from his mobile. Complainant also called his family and thereafter sent his son to home. Doctor examined his son. PCR and the local police came. Instead of taking them to Safdarjung hospital which was the earlier destination upon the insistence of the accused Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 3 of 27 persons they went to AIIMS wherein Dr. B.D.Chowdhary introduced himself to be the Head of Trauma Center. The accused no.1 and 2 also went back to their houses and stated that they shall reach the Trauma Center on their own. Thus, the Complainant was only taken to Trauma Center through PCR. Subsequently on account of the position which the Dr. B.D. Chowdhary had, he infact ensured that the MLC of the complainant was not properly recorded and the injury caused on his neck by forcible snatching of gold chain was not recorded. Complainant again got himself examined through a private practitioner namely Dr. Vipul Mohan at his clinic at Hauz Khas.
Whereas Sushmita Kovar manipulated to show abrasion scratch marks over her left upper breast though she was wearing a high neck outfit and the injury on her nose was received accidentally while leading attack on the Complainant. Thus, the complainant in a manner was implicated in a false complaint lodged by Sushmita Kovar of molestation and assault whereas no action was taken on the complaint which the Complainant had given to the police.
iv) In these conspectus of circumstances since no FIR was lodged by the concerned SHO the Complainant sent a complaint to the DCP, South Distt, Hauz Khas on 26.07.2020 which was received on 29.07.2020 but to no avail. In the circumstances it was contended that necessary directions for registration of FIR be passed U/s 156(3) Cr.PC.
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v) Now perusal of the record reveals that the complaint
was received in the Court of Ld. M.M. on 18.12.2020. In fact there is no direction in the ordersheet as to seeking the Action Taken Report or otherwise as to any other report being called from the SHO concerned. Immediately arguments were heard and the matter was listed for orders on the application on 14.01.2021 in terms of order dated 18.12.2020.
vi) Nonetheless status report was filed by the SHO concerned through SI Sanjeev Kumar which is dated 17.11.2020 and bears the forwarding of the SHO dated 17.11.2020. The said report has been relied upon by the Ld. M.M. in the impugned order as well.
6. Coming to the status report as well it is stated therein that during the course of the enquiry B.D.Chowdhary had submitted his reply through email which was relied upon alongwith the report. The conclusions of the IO in the status report were that one FIR No. 199/20 U/s 354/323/341 IPC dated 22.07.2020 PS C.R.Park was registered on the complaint of Ms. Sushmita Kovar w/o Dr. B.D.Chowdhary r/o B-15, GK. II Enclave Age-43 years against the Complainant Rajat Sharma. Furthermore it was stated that Ms. Sushmita Kovar was stopped, beaten and molested by Rajat Sharma s/o Janak Sharma r/o E-50, GK.II Enclave. Chargesheet in said case was prepared by IO SI Rahul Soni which has been filed in Court and the same is pending adjudication.
Cr. Rev. No.181/2021Rajat Sharma Vs. State Page no. 5 of 27 6.1 Annexed alongwith the complaint there is an email reply
of Dr. Chowdhary addressed to the IO. I am quoting the same also as hereunder :-
Respected Sanjeev Ji As regard to the incident of 21st July 2020 evening I think it was mentioned elaborately in the complaint that lead to the FIR and also in the report of the magistrate (when asked to depose in front of the inquiring Magistrate) The sequence of the events are as follows:
In the evening I and wife were leaving home to attend to a sick patient. Wife was in the driving seat and I was in the passenger seat next to her. The lane outside our gate is a narrow one. So we have to come out carefully. As we came out of out gate running to the right side when suddenly we saw two cyclists racing and tried to pass by not even stopping seeing a vehicle emerging out of the gate. The vehicle had no even become straight on the road when wife had to apply the brake suddenly to avoid touching a boy (the second cyclist) in the bicycle who also trying to pass by following the first cyclist. Fortunately nothing untoward happened as the vehicle was moving at very slow speed. The sudden braking had startled the child and he lost his balance and probably the bicycle touched slightly the vehicle. At this the other cyclist who had already passed by, came rushing and started hitting the car in a frenzy of rage with hurling abuses in the filthiest possible language at us This other cyclist turned Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 6 of 27 out to be the father of the child. Since we had to rush to the sick patient and understanding the state of mind of the father we begged and requested him with folded hands to calm down as thankfully nothing untoward happened. But this person who identified himself as Rajat Sharma, was not calming down at all. The Old Security Guard posted at out house gate too, tried to calm him and requested him not to abuse us as we are only softly requesting him with folded hands then this Mr. Rajat Sharma physically assaulted him. Seeing this I got off the car and intervened. But in his continued state of rage he punched me several times on my face breaking my expensive Spectacles and pushed me with his full might due to which I got thrown off on the ground. Due to the scuffle and fall on the ground I lost my very expensive watch and pen. Seeing this my wife who was in shock till now due this sudden even got down off the vehicle and rushed to save me. She tried to hold Mr. Rajat Sharma to prevent him from running away as he was trying to run away with his son by now. Then Mr. Rajat Sharma punched her too on her face which caused profuse bleeding from her nose. Both her eyes turned black later. He manhandled her so badly that her upper wear (Kurta) was torn and her modesty was outraged. In the hospital, during the Medico Legal Examination (MLC), a CT scan of the face was done which revealed a fracture of the Nasal bone. The injury to her face has disfigured her nasal shape. She is under tremendous mental shock after that incident. She has stopped driving due to the fright reaction.Cr. Rev. No.181/2021
Rajat Sharma Vs. State Page no. 7 of 27 She is undergoing Psychiatric treatment for the mental trauma caused by that incident. There were several people at that time who witnessed the event and came rushing to intervene too."
7. The Ld. M.M. in terms of the impugned order dated 31.01.2021 had dismissed the application U/s 156(3) Cr.PC relying upon the judgment of M/s Skipper Beverage P. Ltd. Vs. State 2001 (4) AD Delhi and also Shubhkaran Luharuka & Anr. Vs. State & Anr. reported in 2010(3) JCC 1972. The Ld. M.M. had observed as hereunder :
"In the instant case, admittedly the FIR No. 199/20, PS CR Park has already been registered against the present applicant on the basis of the representation of the proposed accused Mrs. Sushmita Kovar. The allegations against the accused/ the present applicant as mentioned in the said FIR are serious. Considering the contents of the instant application of Mr. Rajat Sharma in the light of the already registered case against him,, this court is of the view that the nature of the allegations of the applicant is such that he himself is in a position to collect and produce evidence before the court and interest of justice do not warrant the police to step in to help the applicant. The police assistance can be taken subsequently if need so requires under Section 202 of the Cr.PC. In the circumstances of the case, this court does not find it justified that the instant application be allowed. The same stands dismissed. The complainant Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 8 of 27 however is at liberty to lead evidence in the case."
7.1 Aggrieved against the said adjudication the instant revision petition has been filed.
8. Section 154 Cr.PC and Section 156 Cr.PC both are important for the present discussion which to my mind requires to be reproduced as here under :
"Section 154 Cr.PC - Information to cognizable cases
- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police state, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub Section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of police concerned who, if satisfied that such information discloses the Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 9 of 27 commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Court, and such officer shall have all the powers of an officer in-charge of the PS in relation to that offence.
Section 156 Cr.PC - Police officer's power to investigate cognizable case - (1) Any 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.
(2) No proceeding of a police officer if any such case shall at any stage he called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above- mentioned.
8.1. Before I advert further and delving on Section 154 Cr.PC it is worthwhile to notice that Section 154 Cr.PC casts a duty upon the Officer Incharge of a PS to enter into the book "any information relating to commission of a cognizable offence". There is use of the word "shall" in Section 154(1) Cr.PC. The gist of the Section is that if any information in respect of any cognizable offence is given orally then the said information shall be reduced in writing either by officer himself or under his direction, and if given in writing shall be duly signed by the complainant whereafter the FIR would be registered.
Cr. Rev. No.181/2021Rajat Sharma Vs. State Page no. 10 of 27 8.2 This section by itself is quite clear however it is not
always that the police immediately proceed to lodge FIR in respect of cognizable offences. Obviously Section 154(3) Cr.PC itself pre supposes such a situation wherein the higher police authorities are noticed of such a refusal and they are duly empowered to direct registration of a FIR. Now Section 154 Cr.PC in its entirety deals with the situation - as to the registration of the FIR from the stand point of the complainant/aggrieved party and the police authority/ State. At no point of time the accused/suspect comes into picture or given any audience.
8.3 Necessarily Section 154(1) Cr.PC speaks of an information relating to the commission of a cognizable offence - thus the solitary test to determine registration of an FIR U/s 154 Cr.PC is commission of a cognizable offence. The word 'commission' at best denotes a concluded or a complete offence which is a cognizable one, in contradistinction to incomplete or vague details. There is no other test or criteria U/s 154 Cr.PC.
8.4 In this regard I may refer to the judgment of Ramesh Kumari Vs. State, indiankanoon.org/doc/116992¸ wherein the Hon'ble Apex Court had relied upon the observations made in State of Haryana Vs. Bhajan Lal:
Cr. Rev. No.181/2021Rajat Sharma Vs. State Page no. 11 of 27 That the Police Officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code are no more res integra. The point of law has been set at rest by this Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors., [1992] Supp. 1 SCC 335. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under:
``31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context). In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 12 of 27 post to the Superintendent of Police concerned who is satisfied that the information forwarded to him discloses a colonizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.'' ``32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ``information'' without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ``reasonable complaint'' and ``credible information'' are used. Evidently, the non-qualification of the word ``information'' in Section 154(1) unlike in Section 41(1)
(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, `reasonableness' or `credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ``information'' without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that `every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that `every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word `complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 13 of 27 in that place the word `information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.'' Finally, this Court in para 33 said :
``33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.'' The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave no manners of doubt that the provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence.
8.4 The aforesaid judgment is clear that the word "information" U/s 154(1) of Cr.PC has intentionally not preceded with the words like credible/ reasonable information. The condition precedents U/s 154 Cr.PC is simply that any information disclosing a cognizable offence and fulfilling the other procedural requirements of Section 154 Cr.PC then Police Officer has no other option except to register the same/ lodge an FIR.Cr. Rev. No.181/2021
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9. Again in the case of Lalita Kumar Vs. Govt. of U.P. & Ors., indiankanoon.org/doc/10239019, it was held as here under:
111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 15 of 27 circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
9.1 Point (iv) supra in Lalita Kumari's case goes a little further and mandates action against erring officer who do not register Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 16 of 27 the FIR if information received by him discloses a cognizable offence. Point to be emphasized is that the singular test or consideration at the time of registration of FIR remains that the information discloses a cognizable offence.
This salutary pronouncement makes it evidently clear that the Officer concerned cannot embark into any enquiry to otherwise cross check the correctness of the information but the scope of enquiry is also constricted/limited. Pre registration investigation/ enquiry is abhorred and has no sanction/ validity in the eyes of law.
10. Viewing from the prism of the said law the primary test remains as to whether the information discloses commission of cognizable offence. I am delving a little further on this point for the reason that the Police cannot refuse investigation in respect of cognizable offence provided the information/ complaint discloses the same, the Ld. M.M. while dealing with an application U/s 156(3) Cr.PC can evaluate the facts pleaded in the complaint not on one parameter but now there is another parameter which comes into play i.e. :
i) Whether police investigation is required under chapter 12 of the Cr.PC or not - case is to be treated as a complaint case? [second test] Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 17 of 27 10.1 Needless to state that the other parameter/ the test U/s 154 (1) Cr.PC - disclosure of commission of a cognizable offence, is in a manner overshadowed or takes a back seat.
10.2 I have crossed over to Section 156 (3) Cr.PC when the police has refused to register the FIR and the ball is in the Court of the Ld. M.M. and the complainant seeks registration of the FIR on the same complaint which has been refused by the Police. In this regard I may refer to a judgment of Devarappali Lakshmi Narayana Vs. V.Narayana Reddy, 1976, AIR 1672, wherein it was held as here under:
"It may be noted further that an order made under sub- section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173."
The aforesaid pertinent observation makes it apparent that order U/s 156(3) Cr.PC are a sort of a reminder to the Police to perform their task or obligation to investigate the offence after due registration of the FIR.
The Magistrate therefore while dealing with the
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application U/s 156(3) Cr.PC should not venture into uncharted terrain particularly when the scope of preliminary enquiry has been specifically constricted by virtue of judgment of Lalita Kumari (supra) and the word 'information' is not preceded by the words 'reasonable' or 'credible' and the second test/criteria [as extracted earlier] is not available to the Police Officer.
10.3 On the touchstone of the aforesaid principle of law let me evaluate the reasoning penned down by the Ld. M.M. while dismissing the application U/s 156(3) Cr.PC. As concluded earlier that the second test - whether offence requires to be investigated under chapter 12 of Cr.PC assumes more prominence rather than the primary test U/s 154 Cr.PC it is but obvious that the complainant's version would be tested on reason/ parameters other than one which flow from Section 154 Cr.PC itself.
11. In this regard as to whether the complaint discloses any cognizable offence. Suffice to note herein that there is a medical report of Rudra Sharma, the son of the complainant. In any event no taint is attached to him inasmuch as he is not the accused in the FIR No.199/2020 PS C.R. Park to which much weightage was given by the Ld. M.M. as being the case registered at earlier point of time.
A perusal of the said medical examination report reveals that he was examined on 21.07.2020 at Capital Health Clinic by Dr. Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 19 of 27 Vipul Mohan. The doctor has recorded H/O road traffic accident hit by car today. The said medical examination reveals that he had pain on right leg, left arm and left lateral aspect of forehead. There were bruises on right shin and on left forearm. Besides there was mild swelling on the forehead.
In any event qua the said medical examination of Master Rudra Sharma nothing has been stated by the IO in his status report. In the email accompanied alongwith the status report by Dr. B.D. Chowdhary addressed to the IO, Dr. B.D.Chowdhary had written that on account of the sudden braking the child had lost his balance and probably the bicycle had touched slightly the vehicle. Thus, the said email probablizes the complainant's version as well that the triggering point was the factum of the car driven by Sushmita Kovar hitting the cycle of the minor child. That part of the entire transaction has not been subject matter of any investigation - even otherwise both Section 279/337 IPC both are cognizable and squarely decipherable from the record itself.
11.1 Dehors the aforesaid the complainant has also suffered injuries which are evident from the photographs as well as there is also a medical examination of his which was carried out at JPN Trauma Center, AIIMS. Perusal of the said MLC reveals that there is history of assault by five unknown person at GK.II. There were abrasions on the inner side of lower lip as well as scratch marks over Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 20 of 27 the arms and chest. There is no explanation whatsoever given qua the said injuries as well.
11.2 There was also a PCR call at the contemporaneous time at 21.07.2020 at 20:17:58 which reveals as "colony ki ek lady aur paanch logon ne mere sath maar peet ki hai aur meri gold neck chain bhi nikal li hai." Thus, the information was promptly relayed to the police which rules out any manipulation or fabrication later on.
11.3. Ld. M.M. has rejected the application on the premise that already an FIR U/s 354 IPC was registered against the complainant. Suffice to note herein that the triggering point of this infraction was the accident with the bi-cycle of the son of the complainant [as per the email reply]. There is nothing to suggest that the complainant herein or said Sushmita Kovar had any prior interface before the said incident. The allegations of manhandling whereby it is alleged that her modesty was outraged were in the later part of the email/ the last part wherein it is stated that -
"then Mr. Rajat Sharma punched her too on her face which caused profuse bleeding from her nose. Both her eyes turned black later on. He manhandled her so badly that her upper wear (Kurta) was torn and her modesty was outraged."
Ld. M.M. has not considered the MLCs and the entire Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 21 of 27 incident in the correct perspective and has chosen to outrightly exclude the right of the complainant to seek vindication of his grievance by registration of a police case on a solitary premise that already an FIR has been lodged. That too my mind cannot be the legal basis to exclude the complainant's version 11.4 Delving a little more on the aspect of there being another FIR a sort of a counter narrative to the incident there is no bar whatsoever that there cannot be any other FIR as well. In this regard I may rely upon the judgment titled as Mohd. Salim v/s State reported in 175(2010) DLT 473 wherein the Hon'ble High Court held as under :
"This prohibition, according to the Supreme Court, does not apply the counter complaint by the accused in the first complaint or on his behalf alleging the different version of the said incident. Allowing the appeal the Supreme Court, inter alia held as under :
23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 22 of 27 and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible."
11.5 Thus, there is no bar or embargo in registration of the FIR at the behest of the complainant herein notwithstanding the fact that he is an accused in FIR No. 199/2020 PS C.R.Park. Neither his version becomes tainted for any reason whatsoever merely because he is an accused in the said FIR. There is documentary evidence - the MLCs of the complainant and the medical record of his minor son coupled with the angle of rash and negligent driving and as a consequence whereof the son of the complainant was injured which incident preceded the later on incident or turn of events on a stand alone basis satisfying the requirement of "cognizable offence".
12. Furthermore Insofar as the second aspect is concerned i.e. instead of registration of FIR/ rather than adopting the process U/s 156(3) Cr.PC the Ld. M.M. has chosen to opt for treating the Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 23 of 27 present case as a complaint case and adopting the procedure U/s 200/202 Cr.PC by calling the complainant to lead pre summoning evidence and for forming the said opinion he had relied upon "Skipper Beverages v/s State 2001 IV AD (Delhi) and Subhkararan Luharuka @ Anr. v/s State & Anr. 2010 (3) JCC 1972.
Basically it was observed that the complainant was in a position to collect evidence himself than direct the State to do so by registration of FIR.
12.1 As discussed herein above there cannot be any detailed preliminary enquiry for the purposes of determining the correctness of the allegations. As a fortiori at the time of disposal of the applica- tion U/s 156(3) Cr.PC there cannot be any extraneous reasoning in- troduced for negating the grievance of the complainant - be that as there being another FIR or to treat the first or earlier FIR as being the correct one. It is not a stage of any adjudication - rights/obligations or otherwise any penal liability is determined. It is merely to assess the need to investigate by the Police.
12.2 In this regard I am quoting from the judgment relied upon by the Ld. M.M. Skipper Beverages v/s State (supra) itself. Same reads as here under :
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10. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore a Magis- trate, must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be ex- ercised primarily in those cases where the allega- tions are quite serious or evidence is beyond the reach of complainant or custodial interrogation ap- pears to be necessary for some recovery of article or discovery of fact". [emphasis mine] Section 156(3) Cr.PC is for curtailing/controlling the arbitrariness on the part of the Police in registration of FIRs even in cases where the same are warranted. In fact the Police negate the mandatory provisions of Section 154(1) Cr.PC notwithstanding the fact that they may liable for non compliance in view of the ratio of Lalita Kumari (supra). It is not that at the time of disposing of application under Section 156(3) Cr.PC a detailed order meticulously weighing the pros and cons of the complainant's version/case is required for. That to my mind would be a sort of an anathema and Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 25 of 27 would cause violence to the statutory scheme under the Cr.PC.
13. That being the scenario it is a fit case where there ought to have been registration of FIR. There are unidentified culprits, whose name could only be revealed through detailed methodical investigation. The guard, bhaiya and other persons who were there require to be probed. In fact the entire incident may also have been captured by CCTV inasmuch as the incident occurred on a public road. Recoveries are required to be effected. The angle of the car being driven in a rash and negligent manner hitting the cycle or otherwise should be properly investigated, which may require scientific methods/ through FSL as well. Considering all such factors there ought to have been a prompt registration of an FIR on the complaint of the complainant which should be investigated in accordance with Chapter 12 of Cr.PC.
14. Section 156(3) Cr.PC application is between the aggrieved person and the State - the obligation to promptly register the FIR and investigate the case has been whittled by the police the redressal whereof is sought for by seeking a direction u/s 156(3) Cr.PC. Neither the complainant/revisionist had acceded to the order of the Ld. M.M./ stepped into the witness box to lead pre summoning evidence. As such to my mind in view of the ratio of Chandra Deo Singh v/s Prakash Chandra Bose @ Chabi Bose & Anr. AIR 1963 SC 1430 the prospective accused(s) have no right to participate Cr. Rev. No.181/2021 Rajat Sharma Vs. State Page no. 26 of 27 unless the process is issued against him.
15. In view of the aforesaid discussion the impugned order dated 31.01.2021 passed by Sh. Jitender Pratap Singh, Ld. M.M.-04, South East, Saket Courts, Delhi in C.C. No. 6497/2020 titled as "Rajat Sharma v/s State" is set side. Ld. M.M. is directed to pass directions for registration of the FIR on the basis of the complaint U/s 156(3) Cr.PC against the accused persons with SHO PS C.R. Park who shall thereafter investigate the case in accordance with the provisions of Chapter 12 of the Cr.PC. Compliance be made forthwith.
16. Ordered accordingly. Copy of the order be sent to the concerned Court forthwith. TCR be returned back. Revision file be consigned to Record Room.
Pronounced in open Court (SUMIT DASS)
on 22.10.2021 ASJ-04 + Spl. Judge (NDPS) South East
District, Saket Court, New Delhi
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