Delhi District Court
Tanmay Rastogi vs Mrs. Sonal Rastogi @ Barkha Arya on 8 December, 2015
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT& SESSIONS JUDGE (EAST)
KARKARDOOMA COURTS, DELHI
CR No.89/15
Unique Case ID No. 02402R0370932015
Tanmay Rastogi
S/o Sh.B.L.Rastogi
R/o A121, Madhuban Enclave,
Patparganj Road,
New Delhi110092. ... Petitioner
Versus
1. Mrs. Sonal Rastogi @ Barkha Arya
D/o Sh. Mahesh Chand Rastogi
2. Sh. Mahesh Chand Rastogi
3. Sh. Shubham Rastogi
All the three respondents are
Resident of R/o 313, Kala Kuan, Amroha,
District Amroha, UP.
4. The Station House Officer,
P.S. Preet Vihar, New Delhi. ... Respondents
Date of Institution : 19.10.2015
Date of order reserved : 28.11.2015
Date of order : 08.12.2015
CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 1 of 8
O R D E R
The revisionist has filed present revision petition against impugned order dated 03.09.2015 whereby Ld. ACMM (East) dismissed application under Section 156(3) Cr.P.C. of the revisionist. 2 Facts leading to filing of the revision petition are that the revisionist had filed a complaint/ application under Section 156(3) Cr.P.C. against the accused persons/respondents herein for offences under Sections 120B/383/384/385/388/389/405/420/399/500 IPC read with Section 200 Cr.P.C. on the allegations that accused No. 1 was married to the complainant on 08.02.2014, but marriage could not be consummated as accused No.1 had certain medical problems. The said medical problems could not be cured, therefore, accused Nos.2 and 3 and other relatives came to the complainant and took away all belongings of accused No.1 against a receipt. It was alleged that since 27.04.2015, complainant had been receiving threatening calls from his inlaws that they would implicate him in a false case and thereafter false complaints/ cases have also been filed against the complainant. The police, despite repeated reports of the complainant was not helping; complainant also met higher authorities but in vain. On the application of the complainant under Section 156(3) Cr.P.C., CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 2 of 8 Ld. Addl Chief Metropolitan Magistrate called the status report and after hearing arguments, said application was dismissed vide impugned order. However, Ld. Trial Court took cognizance under Section 200 Cr.P.C. and notified the case for presummoning evidence. It also observed that if the need so arises for investigation, then Section 202 Cr.P.C. can be resorted to at any stage. 3 Grounds of revision petition are that impugned order is against the facts and law; complaint of revisionist discloses commission of cognizable offences, therefore, Ld. Trial should have ordered for registration of the FIR. Reliance has been placed on the following judgments:
(1) M/s Skipper Beverages Pvt. Ltd. vs. State 2002 Cri.L.J. NOC 333 (Dehi);
(2) Ajai Malviya vs. State of UP 2001 Cri.L.J. 313; (3) Devarapath Lakshiminarayana Reddy vs. Narayana Reddy AIR 1976 SC 1672;
(4) Randhir Singh Rana vs. State (Delhi Admn.) (1997) 1 SCC 361;
(5) Madheshwardhari Singh & Anr. vs. State of Bihar AIR 1986 Pat 324;
(6) Kumari Farmida @ Sona vs. State of UP ACR 2007 (1) 25; & (7) Suresh Chand Jain vs. State of Madhya Pradesh JT 2001 (2) SC 81.
CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 3 of 8 4 Notice of the revision petition was ordered to be issued to the State and Trial Court Record (TCR) was summoned. I have heard Ld counsel the revisionist as well as Ld. Chief PP for the State/respondent. I have gone through revision file as well as Trial Court file.
5 It has been argued on behalf of revisionist that accused persons have committed cognizable offences against the revisionist, therefore, Ld. Trial Court should have ordered for registration of FIR and thus impugned order is liable to be set aside. 6 Ld. A.C.M.M. had called for the Status Report. In the Status Report, it is mentioned that IO SI Ram Shankar Pandit had reported that matter was enquired into and it was revealed that on 26.04.2015, marriage was dissolved with mutual consent and accused No.1 went with her father after receiving jewelleries and cash of Rs.1,17,000/; divorce petition has already been filed. Revisionist had also stated that after 26.04.2015, none had visited his address from the side of his inlaws, nor he had any quarrel (physical or mental) with the complainant or her family. Accused No.1 had also filed a complaint and she on enquiry denied the allegations made by CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 4 of 8 her in the complaint. It was reported that allegations of complainant were false and a counterblast to complaint filed by his wife in CAW Cell. No cognizable case was made out.
7 There is no dispute as to legal proposition propounded in above cited authorities on behalf of revisionist. However, their lordships of Hon'ble Supreme Court in judgment titled Rameshbhai Pandurao Hedau vs. State of Gujarat, AIR 2010 SC 1877 had held that the power to direct an investigation to the police is available to the Magistrate both under Section 156(3) Cr.P.C. and under section 202 Cr.P.C. The powers under Section 156(3) Cr.P.C. to direct an investigation by the police is at the precognizance stage while the power to direct similar investigation under section 202 Cr.P.C. is at the postcognizance stage. The Magistrate dismissed the application of the petitioner under Section 156(3) Cr.P.C. and proceeded with the complaint filed by the petitioner under Section 200 Cr.P.C. Hon'ble Apex Court held that there is nothing irregular in the manner in which the Ld. Magistrate has proceeded and if at the stage of 202(2) Cr.P.C., if deems it fit, he/she may either dismiss the complaint under Section 203 Cr.P.C. or proceed in terms of Section CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 5 of 8 193 Cr.P.C.
8 Our own Hon'ble High Court has also observed as such in a recent case titled Ravindra Kumar Vs. State (Govt. of NCT of Delhi) & Anr. 2013 VIII AD (Delhi) 403. It was held that remedy under section 156(3) of Cr.P.C. is a discretionary one as the provision proceeds with the words 'may'. The Magistrate is required to apply his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and also about necessity of Police investigation for digging out of evidence neither in possession of the complainant nor the same can be procured without the assistance of police. The complainant, as a matter of right, can not insist that the complaint case filed by him/her should be directed in every eventuality to the Police for investigation. 9 In a recent judgment of our own Hon'ble High Court in case of Subhash Manchanda Vs. State & Anr. 2013 (2) RCR (Criminal) 495, it has been observed that in those cases where the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders under Section 156(3) of the Code.
10 As regards contention of the revisionist that police CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 6 of 8 investigation is necessary into the allegations of the revisionist, Ld. Trial Court has made it clear that if the need so arises, section 202 Cr.P.C. can be resorted to.
11 Even in Mrs Priyanka Srivastava and Anr. vs. State of UP & Ors. MANU/SC/0344/2015, while interpreting the earlier judgment in Lalita Kumari vs. State of UP (supra), the Hon'ble Supreme Court has held that it is not an automatic route that as soon as a complaint U/s 156(3) Cr.P.C. is filed, the Magistrate is duty bound to order for registration of the FIR and that he has to apply his mind.
12 I am of the considered view that where accused are known to the revisionist and evidence is in the knowledge of the revisionist, therefore, there is no ground to order for registration of an FIR.
13 Moreover, Ld. Trial Judge has already taken cognizance U/s 200 Cr.P.C. and listed the matter for presummoning evidence. It was also made clear that if the need for Police Investigation arises, then section 202 Cr.P.C. can be resorted to. I do not find any illegality in the impugned order. Hence, in my view, present revision petition is without any merits. Impugned order is CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 7 of 8 hereby upheld. Resultantly, present revision petition is dismissed. TCR be sent back along with copy of the order.
File be consigned to Record Room.
Announced in the open Court ( TALWANT SINGH )
Dated: 08.12.2015 District & Sessions Judge (East)
Karkardooma Courts : Delhi
CR No. 89/15 Tanmay Rastogi vs. Sonal Rastogi @ Barkha Arya etc. Page 8 of 8