Delhi District Court
Amarjeet Kaur vs Brahm Pal on 26 October, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 57 of 2021
CNR No. DLSE01-001802-2021
IN THE MATTER OF:
Amarjeet Kaur,
W/o Sh. Manjit Singh Bhatti,
R/o C-152, 1st Floor, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-24
.......Revisionist
Versus
1. Brahm Pal
S/o Sh Raja Ram,
R/o C-152, 1st Floor, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-24
2. Mahender,
R/o C-152, 1st Floor, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-24
3. Gaurav,
S/o Brahm Pal
R/o C-152, 1st Floor, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-24
4. Sanjay,
S/o Sh Raja Ram
Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 1 of 11
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.10.26
14:59:25 +0530
R/o 32, Taimoor Nagar,
Sriniwaspuri, New Delhi
5. Premwati,
W/o Raja Ram,
R/o 32, Taimoor Nagar,
Sriniwaspuri, New Delhi
........Respondents
Instituted on : 26.02.2021
Reserved on : Not reserved
Pronounced on : 26.10.2021
JUDGMENT
1. By way of the instant revision, revisionist takes exception to the order dated 21.01.2021, whereby her application under section 156(3) Cr.P.C in case bearing Ct No. 43231/2019 titled as Amarjeet Kaur Vs Brahm Pal, stood dismissed by Ld. Metropolitan Magistrate- 10, South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld. Trial Court in the impugned order are not in dispute and the same are being reproduced for the sake of convenience:-
"Brief facts of the case are that the complainant is a house wife. The complainant has been residing at first floor of the property no. C152, Dayanand Colony, Lajpat Nagar, New Delhi alongwith her husband Manjeet Singh Bhatti and an unmarried daughter for the last several years. Accused no. 1 had purchased the ground floor of the property no. C152, Dayanand Colony, Lajpat Nagar, New Delhi in the year 2018 and started carrying out the unauthorized and illegal construction on the ground Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 2 of 11 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.10.26 14:59:33 +0530 floor. Since the husband of the complainant is a law abiding citizen, he filed a suit for injunction in the court at Saket Courts, New Delhi seeking injunction order against the accused no. 1 to stop the unauthorized/illegal construction in the said property. On 04.11.2019, at about 7.00 pm, the accused no.1 started abusing the husband of the complainant, he started beating him with fists and blows. He was wearing iron knuckle and hit the husband of the complainant on his forehead with the iron knuckle, as a result of which he started bleeding from forehead and nose with severe pain in head and nose. The accused no. 1 deliberately and maliciously removed the turban of Manjeet Singh and caught him by his hair. He removed the turban and pulled his hair with intent to hurt the religious feelings of the complainant and her husband. The complainant and her daughter Ms. Simran Kaur tried to rescue Manjeet Singh from the clutches of the accused persons. When Simran Kaur tried to cover Manjeet Singh from the attack of accused persons, they pulled her by neck and accused no. 1 pulled her bra with intent to outrage her modesty. The accused persons punched on the face of the complainant multiple times, she fell down on the hard surface resulting in soft tissue injuries on her face. They also removed the ear rings of the complainant and snatched Rs. 4500/ cash from the husband of the complainant. The complainant, her husband Manjeet Singh and daughter Simran Kaur received injuries on their body. Simran Kaur called the police at no. 100 and also called Woman Help Line. PCR reached the spot and took the complainant, her husband and her daughter to JPN, Trauma Centre where they were medically examined and treated. Their MLCs were prepared.
On 05.11.2019 at 2.00 pm, the complainant alongwith her husband and her daughter went to the police station Amar Colony. At the instance of the accused persons, the police forced the complainant, her husband and her daughter to compromise the matter and got written on the MLC that " They do not want any action against the accused".
In order to safeguard his rights the complainant made several complaints against the accused persons before Amar Colony police station but no action has been taken till date. Feeling aggrieved, the present complaint was filed."
3. Action Taken Report was filed by concerned Inquiry Officer, Police Station Amar Colony before concerned Court, wherein it was reported that no offence was reported to have been made out and the matter was found to be civil in nature.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.10.26
14:59:41 +0530
4. Vide impugned order, the application under section 156(3) Cr.PC stood dismissed by concerned court. The relevant observations of Ld Magistrate is reproduced as under :-
" After considering the entire facts and circumstances of the present case, this court is of the view that it is not a fit case where direction should be issued for registration of FIR as the complainant is well aware of the names and addresses of accused and is well versed with the facts of the case. Thus, the entire evidence is well within the reach of the complainant to prove the allegations against the accused. It is well settled in the case of M/s Skipper Beverages Pvt. Ltd. vs. State reported as 2001 (IV) AD (Delhi) 625 that power of directing police to register case and initiate investigation under section 156 (3) Cr.P.C. should be exercised judiciously and not in mechanical manner. When field investigation by the police is not required and the complainant is in a position to collect and produce evidence before the court, orders for registration of FIR need not be passed. Be that as it may, in view of the aforesaid facts, it appears that the complainant is in a position to lead all evidence on record & police machinery is not required. Moreover as per the contents of the complaint and the ATR it appears that both the parties have several issues against each other with regard to the property in question since they are residing under the same roof. Further no cognizable offence is found to be made out.
Keeping in view the aforesaid observations, the present application under section 156 (3) Cr.P.C. is dismissed. Put up for PSE on 28.05.2021."
5. Revisionist is aggrieved with the said order and has assailed the impugned order on various grounds which are summarized as under :-
i) That Ld Trial Court erred in dismissing the application under section 156(3) Cr.PC while holding that entire evidence is well within reach of complainant;
ii) That Ld Trial Court failed to appreciate the fact that complaint discloses commission of cognizable offence;
iii) That Ld Trial Court erred in not appreciating the law that Court is not bound by the Action Taken Report of police rather to apply his own judicial mind into the facts and circumstances of the case;
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iv) That Ld Trial Court failed to appreciate the fact that police has not made inquiries properly and due to this, concluded that all allegations are related to civil matter;
v) That Ld Trial Court erred in not appreciating the legal position that even if the civil case is pending, it does not debar criminal court for initiating criminal proceedings against the respondents;
6. Ld. counsel for the revisionist addressed arguments on the line of grounds as taken in the instant revision petition. He forcefully argued that the impugned order is not sustainable in the eyes of law as Ld Magistrate was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case. Ld counsel has relied upon judgments of Apex Court in Lalita Kumari Vs State of UP, (2014) (1) JCC 1, and of Delhi High Court in Amit Khera Vs State of NCT of Delhi, 2010 Vol. IV JCC 2515.
7. Per contra, Ld counsel for respondents vehemently argued that there is no infirmity in the impugned order and has righly dismissed the application of revisionist. He further argued that the impugned order was passed after considering all the facts and circumstances of the present case. It is submitted that the present revision petition is misconceived and therefore, same is liable to be dismissed.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.10.26
15:00:01 +0530
8. I have heard rival contentions of parties and perused the record.
9. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
10. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
11. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 6 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.26 15:00:12 +0530 controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
12. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.10.26
15:00:22 +0530
13. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
14. After going through the records and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that the identity of respondent/accused is well known to the revisionist. Further, the view of Ld Magistrate that entire evidence is within reach of revisionist to prove the allegations against the respondent also cannot be faulted with as no investigation by police is required for collection of any evidence.
15. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
16. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 8 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.26 15:00:33 +0530 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/s156. But cases, 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 can be taken. Thus, where allegations of theft of cheque and forging 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''.
17. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 9 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.26 15:00:43 +0530 length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
18. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
19. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate. Ld counsel for revisionist has failed to point out any patent illegality or jurisdictional error in the impugned order.
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2021.10.26
15:00:53 +0530
20. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in her. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 21.01.2021. The revision petition stands accordingly dismissed.
21. Copy of this judgment be sent to Ld. Trial court.
22. Revision file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.26 15:01:02 +0530 Announced in the open (ANUJ AGRAWAL) Court on 26th October 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 57 of 2021 Amarjeet Kaur Vs Brahm Pal & Ors Page No. 11 of 11