Delhi District Court
Cr No. 154/13. Babu Ram vs . Adesh Tyagi & Others. on 8 July, 2014
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 154/2013.
Babu Ram,
S/o Late Mangu Ram Meena,
R/o RZ71, Jain Colony Part 2,
Shani Bazar Road, Uttam Nagar,
New Delhi110059. ... Revisionist.
Vs.
1. Adesh Tyagi,
S/o Mahesh Chand Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
2. Rinkle Tyagi,
W/o Adesh Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
3. Amrish Tyagi,
S/o Mahesh Chand Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
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CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
4. Karan Tyagi,
S/o Mahesh Chand Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
5. Kunti Tyagi,
W/o Mahesh Chand Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
6. Ankur Tyagi,
S/o Amrish Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
7. Rishab Tyagi,
S/o Amrish Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
8. Akshay Tyagi,
S/o Amrish Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
9. Amit Tyagi @ Karan Tyagi @ Kannu Tyagi,
S/o Mahesh Chand Tyagi,
R/o RZ3, Jain Colony Part 3,
Shani Bazar Road, Uttam Nagar,
New Delhi110059.
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CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
10. Others (20 to 30 people),
New Delhi.
11. State (NCT of Delhi),
through SHO, PS Bindapur. ... Respondents.
Date of Institution. : 2.7.2013.
Arguments Advanced On. : 8.7.2014.
Date of Order. : 8.7.2014.
8.7.2014.
Present: Revisionistcomplainant with ld. counsel Sh. B.N.
Sharma.
Sh. Piyush Chhabra, ld. counsel for respondents no. 1 to 9.
None for respondent no. 10 (mentioned as "other 20 to 30 people" in the memo of parties), who are yet to be identified as per the claim of the revisionist and were not named and hence notice of the revision petition was not issued to them.
Sh. Pramod Kumar, ld. Addl. PP for State/respondent no. 11.
Pursuant to previous order, Inspector Raj Bir Singh, SHO PS Bindapur is present and has filed action taken report dated 8.7.2014, under his signature.
Arguments on the present criminal revision petition heard.
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CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
I have perused the entire record including TCR, carefully.
:: ORDER ::
1. Initially, the revisionist had filed the present revision petition as an appeal. However, vide order dated 24.7.2014, present appeal was treated revision petition.
2. The challenge in the present criminal revision petition filed by the revisionistcomplainant is to the impugned order dated 3.6.2013 passed by Sh. Sharad Gupta, the then ld. MM, Dwarka Courts, Delhi, in complaint case no.
3168/03, titled as "Babu Ram Vs. Adesh Tyagi & Others", whereby the application u/s 156 (3) CrPC moved on behalf of the revisionist herein, was dismissed and the matter was adjourned for pre summoning evidence for 2.8.2013.
3. The relevant portion of the impugned order dated 3.6.2013 is reproduced herein as under: "... ... ... The complainant herein has come before this Court on the succinct allegation that on 7.5.2013 the complainant who is Constable Page No. 4. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
in Delhi Police was on duty from 7.00 am to 8.00 pm at New Delhi Control Room on Jantar Mantar.
That on 7.5.2013, the wife of the complainant went to Tis Hazari Courts to attend another matter. That at around 12.00 pm, complainant received a call from his family members that the accused no. 1 to 9 alongwith their accomplice had attached on their house and they had broken the CCTC cameras and damaged the property. That the bhatiji of the complainant got three stitches on her head. That the accused persons have taken Rs. 40,000/, once golden chain, one white/cream colour bag having approx 6 kg. silver and 11 tola gold and some important documents. That despite repeated complaints, no action has been taken against the accused persons by the staff of PS concerned. Hence, the present complaint has been filed.
In the status report, it has been submitted that presently two cross cases have been registered against the complainant party and the accused party. That earlier the complainant and the accused persons were family friends but they have a dispute regarding property bearing no. RZ71, Jain Colony, Uttam Nagar. That both the parties kept on complaining against each other. That 52 PCR calls were made against each other by the parties and as many as eight PCR calls were made by both the parties on 7.5.2013.
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CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
Perusal of the report shows that FIR No. 353/12 was registered against the other party on complaint of wife of the present complainant alongwith FIR No. 198/13. FIR No. 199/13 was registered on the complaint of Rinkle Tyagi W/o proposed accused Adesh Tyagi against the complainant party herein. FIR No. 200/13 was registered against the complainant herein on the complaint of proposed accused Adesh Tyagi. Thus, there is previous litigation between the parties and the parties have a penchant for making complaints against either other. Curiously enough the incident pertains to 7.5.2013 while even as per complaint the complainant came to know that a white bag containing 6 kg. silver, 11 tolas gold and some important documents were missing only on 12.5.2013 i.e. 5 days after the incident.
Before proceeding any further it would be germane to consider the settled proposition of law on the point. It appears to be settled proposition of law that registration of FIR should not be done mechanically. In "Skipper Beverages Vs. State" 92 (2001) DLT 217, the Hon'ble Delhi High Court has held that order of registration of FIR should not be passed mechanically in the cases where the allegations are not grave and the evidence is within the reach of the complainant, the directions for registration of FIR should not be passed.
Coming to the factual matrix to the case, it appears that the accused persons are known Page No. 6. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
to the complainant and have been specifically named in the complaint. As per the averments made in the present complaint, CCTV footage of the incident is within the power of the complainant and has been appended with the present complaint. Thus, the identity of the accused persons can easily be established or ascertained from the CCTV footage and no investigation is required for ascertaining identity of the accused. CCTV footage is the best evidence in the matter and same is within the power and possession of the complainant. In the peculiar circumstances of the case when the complainant came to know about the theft of his articles five days after the incident, the recovery of the articles is itself a moot point. Nothing is to be recovered from the accused persons. Further more, the entire evidence is even otherwise within reach of the complainant himself. Thus, no investigation is required for gathering evidence in the present matter.
Therefore, in view of the aforesaid facts and law, I am of the considered opinion that the investigation is not required. The entire evidence is even otherwise within the reach of the complainant. The parties are ascertained that nothing is to be recovered. Investigation is not required. Accordingly the application u/s 156 (3) CrPC is declined. ... ... ..."
4. Ld. counsel for revisionist has stated that the ld. Trial Court had dismissed the application u/s 156 (3) CrPC of Page No. 7. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
the revisionist without applying its mind. He has further submitted that in the CCTV footage handed over by the revisionist to the investigating agency, there were 2030 other people, who are mentioned as respondent no. 10 herein, who were also the assailants and their identities can be established only through police investigation, as the same is not under the control and domain of the revisionist. He has further submitted that Pooja (niece of the complainant) was also got injured due to the beatings given by the assailants and her gold chain was also snatched and neither the police nor the ld. Trial Court had taken any action in the matter inspite of the fact that the same was brought to their notice. Ld. counsel for revisionist has further submitted that one of the assailants is seen in the CCTV footage furnished by the revisionist to the police to be carrying a bag full of articles, which included Rs. 40,000/ in cash from the house of the revisionist. He has accordingly prayed that the revision petition may kindly be allowed, as field investigation is necessary in the matter to recover the stolen articles and the SHO concerned may kindly be directed to register an FIR against the respondents and to carry out investigation.
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CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
5. Per contra, ld. counsel for respondents no. 1 to 9 has submitted that there is no infirmity or illegality in the impugned order and the same had been passed on sound principles of law in the given facts and circumstances. He has prayed that the present revision petition may accordingly be dismissed.
6. SHO PS Bindapur is present pursuant to previous order and has filed action taken report regarding CCTV footage furnished by the revisionist relating to his claim regarding the alleged incident in question. It is mentioned in the said report as under: "... ... ... a complaint dated 11.5.2013 of Sh. Babu Ram S/o Manu Ram Meena R/o RZ72, Jain Colony Part2nd, Sani Bazar Road, Uttam Nagar, New Delhi, was received at PS Bindapur, vide diary no.
CD670/SHO/Bindapur on 14.5.2013 from the office of ACP/Dabri. The said complaint was filed against Adesh Tyagi, Amrish Tyagi, Amit @ Karan Singh Tyagi all son's of Mahesh Chand Tyagi and Rita Tyagi W/o Amrish Tyagi and Rinkle Tyagi W/o Adesh Tyagi and 2030 other persons for allegedly breaking the main gate, CCTV Camera, Water tank. The complainant had alleged that the above said Page No. 9. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
persons on 7.5.2013 committed theft of a bag containing jewellery and cash etc. from his house after breaking the CCTV Camera. The said complaint was entrusted to inspector investigation for inquiry.
The factual position is that on 7.5.2013 four PCR calls regarding trace pass and theft in house no. RZ71, Jain Colony Part2nd, Sani Bazar Road, Uttam Nagar, New Delhi, and quarrel were received vide DD No. 14A, 45B, 61B, 65B were received at PS Bindapur which were marked to ASI Leela Ram for inquiry. Who reached at the spot and no house hold articles were found scattered outside and a property dispute was pending between both the parties and no alleged offence was found committed and all the calls were found fake and fabricated. SHO/Bindapur also reached at the spot and he marked his returning vide DD No. 56B disclosing all the facts. ASI Leela Ram had marked his returning vide DD No. 80B explaining in detail that both the parties had registered cases against each other. Adesh Tyagi had alleged that Babu Ram Meena does not allow him to go in 1st floor of his home and he was trying to enter in his 1st floor.
Subsequently said Babu Ram had filed an application u/s 156 (3) CrPC, which was dismissed by the Court of Sh. Sharad Gupta, ld. MM, Dwarka Courts, on 3.6.2013. However the above mentioned complaint of Sh. Babu Ram was sent to DIU/SW for further enquiry Page No. 10. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
on 31.7.2013, as the investigation of cross cases registered against each other vide FIR No. 198/13 and 199/13 was transferred to DIU/SW.
The CCTV footage produce by the petitioner was examined and the following activities have been noticed.
Date 7.5.2013 at 11.08 am as seen in camera no. 1 police party reach at the gate of the petitioner and knock the door but nobody open the door inspite of trying for several minutes.
At 12.02 pm camera no. 1 broken by someone. At 12.03 pm camera no. 4 broken by someone. At 12.02 pm movement of family members of the petitioner who shift lathi and danda inside the home. At 12.04 pm Adesh Tyagi along the associates knocking the door and bricks the door and moves upstairs and break the camera no. 2 and thereafter there is no footage.
The allegation of the complainant have not been substantiated. ... ... ..."
7. The law how to exercise the power u/s 156 (3) CrPC has been described in following two judgments: In "M/s Skipper Beverages Pvt. Ltd. Vs. State", 2002 Page No. 11. Contd... ... ...
CR No. 154/13. Babu Ram Vs. Adesh Tyagi & Others.
CRL LJ NOC 333 (Delhi), it was held: "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/s 156. But case, 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 and be taken. Thus, where allegations of theft of cheque and forgoing 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."
In another case titled "Gulab Chand Upadhyay Vs. State of UP & Others", 2002 Crl. LJ 2907, Hon'ble Allahabad High Court, in para 24, observed that where accused with his name and address are known to the complainant, the evidence of the witnesses are also known to him and it is Page No. 12. Contd... ... ...
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not a case where any other material evidence is required to be collected and can be preserved, then it is not a case where any other material evidence is required to be collected and can be preserved, then it is not a case where any "investigation was required by the police for launching a successful prosecution".
8. Considering the totality of the facts and circumstances and in view of the aforesaid cases laws, it is prima facie clear that the entire facts of alleged incident including the names of the proposed accused (respondents no. 1 to 9 herein) are in the knowledge of the revisionist and also all the proposed evidence qua them is within the domain and control of the revisionist. Further, there is nothing for which field investigation by police qua them is needed, to collect the evidence. As regards the respondent no. 10, who are mentioned as 1020 other people, whose identity are not known to the revisionist, the ld. Trial Court after culmination of pre summoning evidence, can very well hold an enquiry itself or direct an investigation to be made, if needed by police, as per the provision of Section 202 CrPC, before passing the order on the point of summoning and the revisionist can also move appropriate Page No. 13. Contd... ... ...
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application before the said Court in this regard. Further admittedly the concerned video footage is in possession of the revisionist and he can satisfy the ld. Trial Court regarding the alleged criminality in the acts of aforesaid 1020 people and the ld. Trial Court can accordingly pass order against them, if a case is made out. In any case, the ld. Trial Court has merely dismissed the application u/s 156 (3) CrPC and has granted opportunity to the revisionist to lead pre summoning evidence. The ld. Trial Court has not dismissed the complaint. Thus, I am of the opinion that the ld. Trial Court has exercised its discretion u/s 156 (3) CrPC in a judicious manner and it cannot be said that the said exercise was arbitrary or without application of mind. Further if the revisionist has a strong case, then he can bring sufficient material in his pre summoning evidence for summoning of the proposed accused persons (respondents no. 1 to 10 herein). In view of above, no infirmity or illegality in the impugned order is found. Accordingly, the impugned order dated 3.6.2013 of the ld. Trial Court is upheld and the present revision petition is dismissed.
9. A copy of this order alongwith TCR be sent to the ld.
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Trial/Successor Court for proceeding further as per law, for date already fixed before the said Court i.e. 31.7.2014, at 10.00 am.
10. Revisionist is directed to appear before the ld.
Trial/Successor Court at the given date and time.
11. Revision petition file be consigned to record room.
Announced in the open Court on 8.7.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 15. Contd... ... ...