Delhi District Court
Criminal Revision No. 204613/16 vs State Of Nct Of Delhi on 24 April, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Revision No. 204613/16
Yogesh Tanwar
S/o Shri Om Prakash Tanwar
Sub Inspector in Delhi Police
Presently Posted in
PS Sun Light Colony . . . . . . . . . . Revisionist
Versus
1. State of NCT of Delhi
2. Smt. Daljeet Kaur
W/o Shri Surender Singh
R/o D2 LG12, Ashirwad Apartment,
Dilshad Colony,
Delhi - 110095
3. Ms. Taranjeet Kaur @ Sweety
D/o Sh. Surender Singh
R/o D2 LG12, Ashirwad Apartment,
Dilshad Colony,
Delhi - 110095
4. Sh. Vikramjeet Singh
S/o Sh. Surender Singh
R/o D2 LG12, Ashirwad Apartment,
Dilshad Colony,
Delhi - 110095 . . . . . . Respondents
CR No. 204613/16 Page 1 of 18
Date of Institution : 30.05.2016
Date of transfer of the case
to this court : 06.11.2017
Date of Arguments : 23.04.2018
Date of Order : 24.04.2018
ORDER
1. Vide this order, the present revision petition has been filed under section 397 and 399 of Code of Criminal Procedure, 1973 (in short Cr.P.C.) against the order dated 15.03.2016 passed by Learned Metropolitan Magistrate (in short MM) 08, South East, Saket Courts, New Delhi in case C.C. no. 431/4/15, titled as Daljeet Kaur and ors. Vs. Manjeet Kaur and others by which the Ld. Trial Court has passed the impugned order allowing the application of the respondents 24 filed against the petitioner/revisionist filed under section 156 (3) Cr.P.C.
2. Revisionist/petitioner is a public servant and working as a sub inspector in Delhi police. C.C. no. 431/4/15 was filed by Daljeet Kaur, Taranjeet Kaur and Vikramjeet Singh, Respondent No. 2 to 4 respectively, against Manjeet Kaur, Upender Solanki, Inspector Delhi Police, Anand Swaroop, HC Delhi Police and the petitioner herein. Vide the impugned order, learned trial court has directed for registration of FIR against complainant Manjeet Kaur and other police officials including the petitioner. Learned counsel for the respondent number 2 to 4 has conceded that the application under section 156 (3) was filed without filing any First Information Report under section CR No. 204613/16 Page 2 of 18 154 (1) or complying with section 154 (3)Cr. P.C. The issue involved in the present case is whether the learned trial court could exercise jurisdiction under section 156 (3) Cr.P.C. in absence of approaching the police authorities for registration of FIR under section 154 of Cr.P.C.
3. The relevant facts as stated by the petitioner are that on 26.03.2014, Manjeet Kaur went to Kashmir with family leaving her in laws at home and on 27.03.2014, theft took place at the house of the complainant, Manjeet Kaur allegedly by Respondent No. 2 to 4 in conspiracy and connivance with one Rajinder Kaur @ Rajji.
4. On 30.03.2014, complainant Manjeet Kaur came back from Kashmir and made a complaint to police post Sri Niwaspuri and lodged a complaint with HC Anand Swaroop who lodged a FIR No.242/14 dated 31.03.2014 under section 380 IPC. One Shri Shakeel who is a key maker and prime witness of the case disclosed about the role of the accused persons i.e. one Rajinder Kaur @ Rajji and Respondent No. 2 to 4 in the present petition. On 02.02.2014, Rajinder Kaur @ Rajji joined investigation and confessed that she got three duplicate keys made from Shakeel. On 15.04.2014, file was marked to ASI Subash Chand and on 25.04.2014 file was marked to SI Bikramjeet. On 02.05. 2014, Rajinder Kaur @ Rajji, one Surender Singh and the 3 respondents in the present petition, filed a Writ Petition No. 891/2014 seeking directions to change the investigating agency and/or IO of the case. However the same was withdrawn CR No. 204613/16 Page 3 of 18 when it was brought to the knowledge of the Hon'ble High Court that the IO had already been changed.
5. On 04.05.2014, SI Bikramjeet sent notices to the accused persons and on 06.05.2014, Rajinder Kaur @ Rajji, Taranjeet Kaur and Vikramjeet Singh joined investigation. On 10.07.2014 anticipatory bail application of Rajinder Kaur @ Rajji was dismissed. On 13.07.2014, file was marked to SI Youdhvir Singh for further investigation. On 28.07.2014 year 20 Hon'ble High Court of Delhi in connection with anticipatory bail of Rajinder Kaur @ Rajji bearing no. 1628/2014. Matter was referred to mediation and police were directed to not to arrest the accused/applicant 22.08.2014. On 26.02.2015 the said bail application was dismissed due to nonappearance of petitioner and/or her counsel. It was later restored and on 19.03.2015 status report was filed by Upender Solanki and anticipatory bail application was dismissed on merits on 24.03.2015.
6. On 01.04.2015 file was marked to SI Rajesh for further investigation. On 27.04. 2015, Taranjeet Kaur filed anticipatory bail application before the court of Sh. R.K. Tripathi, the then Ld. ASJ. And on 02.05.2015, the petitioner herein attended the said anticipatory bail matter on behalf of IO SI Rajesh and had only carried the status report prepared by IO SI Rajesh. On 15.05.2015 the said application was also dismissed and on the said date also the petitioner had attended the matter and had only carried the status report prepared by IO SI Rajesh.
CR No. 204613/16 Page 4 of 187. On 18.05.2015, respondent number 2 to 4 filed complaint under section 200 Cr.P.C. along with an application under section 156 (3) of Cr.P.C. in the court of learned MM against complainant of FIR no. 242/14 and police officials of PS Amar Colony. On 29.05.2016, IO SI Rajesh filed ATR before learned trial court to the application under section 156 (3) Cr. P.C. filed by Respondent No. 2 to 4.
8. On 01.06.2015, Rajender @ Rajji and Taranjeet Kaur filed anticipatory bail applications in Sessions Court which were again dispersed on merits. On 11.06.2015, the anticipatory bail application of Rajender @ Rajji was dismissed by Hon'ble High Court of Delhi. On 15.03.2016, learned trial court passed the impugned order for registration of FIR against complainant Manjeet Kaur and other police officials including the petitioner.
9. Feeling aggrieved the present revision petition has been filed. The ground of appeal is that learned trial court ignored the fact that the complainant/Respondent No. 2 to 4 had not made any complaint to the SHO or the DCP of the area and had not complied the requirements of section 154 (1) and section 154 (3) of Cr.P.C. and in the absence of the same, the application under section 156 (3) Cr.P.C. is not permissible in law and the impugned order is therefore illegal and perverse. Petitioner has submitted that the learned trial court has failed to consider that the respondent number 2 to 4 herein are accused persons and are deliberately evading arrest in FIR No. CR No. 204613/16 Page 5 of 18 242/2014 dated 31.03.2014, PS Amar Colony.
10. It has been contended that the learned trial court failed to consider that the petitioner had no occasion to commit offences against the respondent number 2 to 4 as he was never the IO of the FIR No. 242/2014. The only way he was connected to the said FII was that he attended the anticipatory bail application in the court of Shri R.K. Tripathi, that then Ld. ASJ on behalf of IO/SI Rajesh on 02.05.2015 and 15.05.2015 which was dismissed on 15.05.2015.
11. The petitioner has contended that the learned trial court has overlooked the motive of the complainant/Respondent No. 2 to 4 which is to deter the police to act against them in FIR No. 242/2014. The petitioner has submitted that the respondent number 2 to 4 are evading arrest and are not traceable and have filed a criminal complaint against the petitioner only after the anticipatory bail application of Respondent No. 3 and Rajinder Kaur @ Rajji has been discussed twice and even from the Hon'ble High Court of Delhi.
12. The petitioner has contended that the learned trial court has chosen to ignore the fact that the revisionist has only acted in discharge of his official duties and as such the act the protected by section 138 of Delhi Police Act 1978 and opposed to section 140 of the said Act, no notice is given to the petitioner which is mandatory as per the said section. Further no sanction has been obtained for the petitioner which is mandatory as per the mandate of section 197 of Cr.P.C. It has been further contended that by way of impugned order CR No. 204613/16 Page 6 of 18 the learned trial court is trying to influence the investigation in FIR No. 242/2014 which jurisdiction it cannot exercise. The petitioner has prayed for setting aside the impugned order directing registration of FIR against the petitioner.
13. Respondent No. 2 to 4 had taken an objection that the present revision petition is not maintainable as no revision petition is maintainable against the order allowing the application under section 156 (3) of Cr.P.C. However the said submission is unsustainable in view of law laid down in Nishu Wadhwa versus Siddharth Wadhwa and Ors, W.P. (Crl) 1253/2016 and Crl. M.A.No. 6591/2016 where it has been categorically held that an order dismissing or allowing an application under section 156 (3) Cr.P.C. is not an interlocutory order and revision petition against the same is maintainable.
14. The issue involved in the present petition is whether the learned trial court could exercise jurisdiction under section 156 (3) Cr.P.C. in absence of Respondent No. 2 to 4 approaching the police authorities for registration of FIR under section 154 of Cr.P.C.
15. Learned counsel for petitioner has argued that the application under section 156 (3) Cr.P.C. is not maintainable unless a person invokes the provisions of section 154 of Cr.P.C. but the police does not take steps at the stage of section 154 of Cr.P.C.
16. It has been argued that learned trial court could not have CR No. 204613/16 Page 7 of 18 directed for registration of FIR against the petitioner as he is a police officer/public servant and prior sanction under section 197 Cr.P.C. has not been taken against him. Reliance has been placed by the petitioner on law laid down in Common Cause (a Registered Society) and others versus UOI and others, where the Apex court while deciding interlocutory application no. 3 and 4 of 2017 in WP (C) number 505 of 2015, decided on 11.01.2017 observed that the court has to be on guard while ordering investigation against an important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. Reliance has also been placed on law laid down in Anil Kumar and others versus M.K. Ayappa and another, 2013 X AD (SC) 386.
17. Learned counsel for respondent number 2 to 4 has relied upon the observations of Hon'ble Supreme Court in Chaudhary Parveen Sultana versus State of West Bengal and another, I (2009) SLT 664 and has argued that sanction for prosecution under section 197 Cr.P.C. is not required when a public servant is to be prosecuted for extortion, communal intimidation as the offences complained of cannot be said to be part of duties of IO while investigating offence alleged to have been committed.
18. Without diverting to the correctness of the submissions of either sides, suffice it to say that section 197 of Cr.P.C. does not come into picture at the stage of registration of FIR.
CR No. 204613/16 Page 8 of 1819. Learned counsel for Respondent No. 2 to 4 has relied upon the law laid down in Lalita Kumari vs. Government of UP and others, IX (2013)SLT 1. In the said matter, Hon'ble Apex Court had posed the following two questions: "(i) Whether the immediate nonregistration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused." In answer to these questions, it was observed as "49. Consequently, the condition that is sine qua non for recording an FIR under section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of section 154(1), 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 provision of154 of the Code is mandatory and the officer concerned is dutybound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of section 154(1) of the Code have to be given their literal meaning. "Shall"
xxx xxx xxx xxx CR No. 204613/16 Page 9 of 18
72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. "Information"
xxx xxx xxx xxx
111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has "reason to suspect the commission of an offence". Therefore, the requirements of launching an investigation under section 157 of the Code are higher than the requirement under section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
xxx xxx xxx xxx CR No. 204613/16 Page 10 of 18
115. Although, we, in unequivocal terms, hold that section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state: "120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and 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 CR No. 204613/16 Page 11 of 18
(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.
120.7. 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."
20. Learned counsel for the respondent number 2 to 4 has conceded that the application under section 156 (3) was filed by respondent number 2 to 4 without filing any First Information Report under section 154 (1) or complying with section 154 (3)Cr. P.C. Learned counsel for the respondent number 2 to 4 has argued that the object of section 154 Cr.P.C. is only to record information to initiate investigation as per Cr.PC by the investigating agency and that the said purpose was accomplished when the copy of the application under section 156 (3) was submitted to court on which ATR was called which amounts to information to the police. Respondent number 2 to 4 have also relied upon law laid down in Amit Khera versus Government of NCT of Delhi and others, 171 (2010) DLT 607 CR No. 204613/16 Page 12 of 18 observed what is dutybound to take cognizance of oral complaint is a complaint of the petitioner and were bound to act upon it.
21. Learned counsel for petitioner on the other hand has argued that if a person has a grievance that the police station is not registering his FIR under section 154 Cr.P.C then he can approach the Superintendent of Police under section 154 (3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering with no proper investigation and felt, it is then open to the person to file an application under section 156 (3) before the learned magistrate concerned. If such an application under section 156 (3) is filed before the magistrate, the magistrate can direct the FIR to be registered and can also direct a proper investigation to be made, in a case where, according to aggrieved person, no proper investigation was made. Petitioner has relied on law laid down in Sakiri Vasu vs State of UP and Others, AR 2008 SC 2007. In the said matter, it has been observed by Hon'ble Supreme Court that "if a person has a grievance that his FIR has not been registered by the police station, his first remedy is to approach the Superintendent of Police under section 154 (3) Cr.P.C. or other police officer referred to in section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in section 36, his grievance still persists, then he can CR No. 204613/16 Page 13 of 18 approach a magistrate under section 156 (3)."
22. Learned counsel for respondent number 2 to 4 has argued that the matter of Lalita Kumari vs. Government of UP and others (supra) is the decision of 2013 and the decisions relied upon by the petitioner are of prior period. He has also relied on law laid down in M.C. Luthra Vs. Ashok Kumar Khanna, 248 (2018) DLT 161 where it has been observed that judgment of larger bench of Supreme Court will prevail over judgment of bench strength of lesser number of judges. In the matter of Priyanka Srivastava & Anr vs State Of U.P.& Ors decided on 19 March, 2015, Hon'ble Supreme Court has also dealt with observations and the guidelines laid down in the matter of Lalita Kumari vs. Government of UP and others (supra) while deciding Crl. Appeal No.781 of 2012 on March 19, 2015. However, it is noticed that the observations of Hon'ble Supreme Court in the matter of Lalita Kumari vs. Government of UP and others (supra) only pertains to observations in respect of section 154 and not to cases where a person does not even approach authorities as in the present case.
23. In the matter of Priyanka Srivastava & Anr vs State Of U.P.& Ors decided on 19 March, 2015, Hon'ble Supreme Court has also dealt with observations and the guidelines laid down in the matter of Lalita Kumari vs. Government of UP and others (supra) while deciding Crl. Appeal NO.781 of 2012 on CR No. 204613/16 Page 14 of 18 March 19, 2015 observed that:
"26. At this stage it is seemly to state that power under section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if CR No. 204613/16 Page 15 of 18 somebody is determined to settle the scores. We have already indicated that there has to be prior applications under section 154 (1)and section 154 (3) while filing a petition under section 156 (3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under section 156 (3)."
24. The Hon'ble Supreme Court has also dealt at length with the observations made by Hon'ble Supreme Court in its earlier decision of Lalita Kumari vs. Government of UP and others (supra). Even the learned trial court was conscious of the fact that it is mandatory for the respondents herein to first approach the authorities for registration of FIR and in case of refusal to approach Superintendent of Police for registration of FIR and in the event of FIR having not been registered even then, to invoke the powers under section 156 (3) Cr.P.C. as is reflected by the specific queries learned trial court vide its order dated 18.05.2015. The said order was passed on the very first date when the fresh complaint was received by learned trial court before issuing notice of the same, after perusing the complaint, CR No. 204613/16 Page 16 of 18 learned trial court specifically directed for recalling of ATR from SHO concerned in the following respect:
Whether any complaint has been made by the complainant in the police station.
If yes, whether any action has been taken on the said complaint Whether any investigation or enquiry has been conducted in this regard and if yes, then what is the status of the investigation/enquiry If any cognizable offence is made out, whether any FIR has been registered on not.
25. Learned trial court had specifically directed for copy of the complaint to be sent to the concerned police station. However, while passing the impugned order, has not referred to the ATR received in response of specific queries raised on 18.05.2015 without asking the complainants/respondents herein to first approach the police station and the section 154 Cr.P.C. for registration of FIR.
26. In view of aforesaid observations, the impugned order is not sustainable and is liable to be set aside as the complaint application/ under section 156 (3) of Cr. P.C. filed by respondent no. 2 to 4 is not maintainable as they had not first exhausted the alternative remedies available under section 154 (1) and 154 (3) CrPC before filing the said application is mandatory for filing the application under section 156 (3) CrPC as laid down in Sakiri Vasu vs State of UP and Others (supra) and Priyanka CR No. 204613/16 Page 17 of 18 Srivastava & Anr vs State Of U.P.& Ors (Supra).
27. The revision petition is accordingly allowed and the impugned order is set aside.
28. Copy of the judgment along with trial court record be sent to learned trial court/MM.
29. Parties are directed to appear before learned trial court on the date already fixed.
30. Revision file be consigned to Record Room.
Digitally signed by NEERA NEERA BHARIHOKE
BHARIHOKE Date: 2018.04.26
Announced in the open 16:45:50 +0530
Court on 24.04.2018 (Dr. Neera Bharihoke)
ASJ06/SouthEast/Saket/ND
24.04.2018
CR No. 204613/16 Page 18 of 18