Delhi District Court
Devender Singh vs Shyam Singh And Others on 1 April, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE (2): NORTH DISTRICT
ROHINI COUTRS : DELHI
C.R. No. : 04/10
Devender Singh
..........Petitioner
Vs.
Shyam Singh and others
........(Respondents)
Date of Institution : 01022010
Date on which reserved for order : 27022013
Date of order : 01042013
ORDER
1. This revision petition has been filed by the petitioner against the impugned order dated 10112009, passed by the Ld. MM Rohini, Delhi vide which the Ld. MM declined to issue directions U/s 156 (3) Cr.P.C. and fixed the case for pre summoning complainant evidence in Complaint Case titled as Devender Singh Vs. Shyam Singh and Others by observing that "the name, address of the accused persons and all the prospective evidence to be led by the complainant is well within knowledge and reach of the complainant. So there is no C.R. No. : 04/10 Page 1 of 12 2 requirement of any investigation by the police". The Ld MM further held in the impugned order dated 10112009 that :
"When complainant is herself in possession of evidence to prove his allegations, there is no need for directions to SHO to register the FIR under Section 156 (3) Cr.P.C. Hence application is dismissed."
2. In brief the case of the petitioner is that the petitioner is the owner of the shop No. 3 on ground floor out of the Khasra No. 44/14 situated in the area of village Bakhtawarpur. The petitioner has rented out the said shop to respondent No. 1 Shyam Singh in July, 2008 for 11 months and a rent agreement to that effect was executed. Respondent No. 1 Shyam Singh stopped the payment of the rent and also stopped the payment of electricity bill of the shop. As per the petitioner, respondent No. 1 Shyam Singh has grabbed the shop No. 3 of the complainant with the help of respondent No. 2 to 4 and unlawfully occupied the shop. It is averred in the complaint that the respondent No. 1 with the conspiracy of respondent No. 2 to 4 and police officer grabbed the shop of the complainant and is in unlawful C.R. No. : 04/10 Page 2 of 12 3 occupation of the complainant's shop No. 3.
3. The petitioner made complaints to the police from time to time in this regard but no FIR has been registered so the petitioner filed the complaint U/s Section 156 (3) Cr.P.C alongwith the application U/s 200 Cr.P.C whereby he prayed for issuance of direction to the police to register a case (FIR) and conduct the investigation into the matter as prescribed by law.
4. The Law with regard to the exercise of the discretion U/s 156 (3) Cr.P.C is well settled. The said power is available to the Magistrate while dealing with the complaint U/s 200 Cr.P.C. It is only when the Magistrate decides not to inquire into the allegations made in the complaint himself, he can direct an investigation to be made by police officers or by some other person as he thinks fit for the purposes of deciding whether or not there are sufficient grounds for proceeding.
5. However, this stage comes after the examination of the complainant and his witnesses U/s 200 Cr.P.C. Such discretion is not available to the Magistrate unless and until he passes through the stage U/s 200 Cr.P.C.
6. In so far as the powers vested with the Magistrate U/s 156 (3) Cr.P.C is concerned, the said provision is circumscribed C.R. No. : 04/10 Page 3 of 12 4 by the provisions contained in Section 190 of the Cr.P.C which reads as follows : "190 : Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try. ''
7. In the present case once an FIR has not been registered U/s 154 Cr.P.C, the cognizance can only be taken by the Magistrate on the basis of the complaint filed by the petitioner C.R. No. : 04/10 Page 4 of 12 5 and for that purpose the Magistrate is required to follow the provisions contained in Chapter XV of the Code which comprises of Sections 200 to 203 Cr.P.C.
8. The provisions for the sake of reference are reproduced hereunder:
200. Examination of Complainant :
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) If a public servant actiing or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after C.R. No. : 04/10 Page 5 of 12 6 examining the complainant and the witnesses, the latter Magistrate need not reexamine them
201. Procedure by Magistrate not competent to take cognizance of the case:
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall,
(a) If the complaint is in writing, return it for presentation to the proper court with to that effect;
(b) If the complaint is not in writing, direct the complainant to the proper Court.
202. Postponement of issue of process :
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be C.R. No. : 04/10 Page 6 of 12 7 made, (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or
(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under subsection (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under subsection (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint:
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the C.R. No. : 04/10 Page 7 of 12 8 Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
9. To my mind, it is not necessary for the Ld. M.M. to deal with the allegations made in the said complaint in detail. The Ld Magistrate by a reasoned order dated 10112009 refused to direct investigation in the matter in order of Section 156 (3) Cr.P.C of the code stating that :
"When complainant is herself in possession of evidence to prove his allegations, there is no need for directions to SHO to register the FIR under Section 156 (3) Cr.P.C. Hence application is dismissed."
10. The counsel for the petitioner has argued that accused Vijay and SHO Surender Kumar Sand in collusion, without any title, took the possession of shops illegally. It is further argued that from the status report dated 30/4/11, it is clear that SHO Surender Kumar Sand has hand in glove with accused Vijay, as he on behalf of the accused Vijay filed a bulky complaint. It is C.R. No. : 04/10 Page 8 of 12 9 further argued that SHO Surender Kumar Sand is representing accused Vijay as a counsel and has filed a vakalatnama in the Hon'ble Court of Sh. Charanjeet Singh, MM, Rohini. It is further argued that SHO Surender Kumar Sand has appeared on behalf of accused persons before this Hon'ble Court time to time and order dated 26072011 attached as evidence. It is further argued that while the SHO Surender Kumar Sand himself filed the status report in this case then it is illegal that the IO, SHO Surender Kumar Sand is appearing as a counsel of accused before this Court and agreement in favour of accused. The petitioner has placed reliance upon :
(a) Satish Kumar Goel Vs. State & Ors. 2000 (2) Crimes 472.
(b) Mohindro Vs. State of Punjab AIR 2001 Supreme Court 2113
(c)Laxminarayan Gupta Vs. Commissioner of Police 2006(3) RCR (Criminal) 977.
(d)Amit Khera Vs. Govt. of NCT of Delhi & Ors. 2010 [4]JCC 2515
(e)Lallan Choudhary & Ors. Vs. State of Bihar & Anr. 2006(4) Crimes 164.
(f) S.P. Sharma Vs. National Capital Territory of Delhi & Ors 1999 [1] JCC [Delhi] 59.
11. The decision of the Ld. MM in the present case declining C.R. No. : 04/10 Page 9 of 12 10 to issue directions for registration of FIR U/s 156 (3) Cr.P.C and instead fixing the case for recording of the complainant's evidence reflects the cautious approach. There is no dispute with regard to the law laid down in the judgments cited by the Ld counsel for the petitioner but every case revolves on its own facts and circumstances.
12. The Ld. M.M. has the discretion to either initially direct to the police for registering the FIR or to direct the complainant's evidence to be recorded. The decision of the Ld. MM to opt for the later course cannot in the facts of the present case be held to be erroneous and illegal.
13. In the present case all the facts and circumstances of the case are within the knowledge of the complainant. If the Ld. MM after considering the presummoning evidence proceeds to take cognizance and at the post cognizance stage considers it necessary to require the further investigation or inquiry to be under taken before issuing process to the accused, it would open to the Ld. MM to invoke the powers U/s 202 Cr.P.C. However, as the instant case is still at the precognizance stage, it is premature to stipulate about the course the Ld. MM should adopt.
C.R. No. : 04/10 Page 10 of 12 11
14. In the case of M/s Skipper Beverages Pvt. Ltd. Vs. State 2001 (4) A.D. (Delhi) 625, wherein it has been laid by his lordship in clear terms that Magistrate should not pass orders under Section 156 (3) Cr.P.C mechanically without judicial application of the mind and further observed that the power under Section 156 (3) Cr.P.C ought to be exercised only in cases where allegations are serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact, I am of the view that no specialized investigation by the police or any other like agency is required in the present case since almost all the documentary proof is within the reach of the complainant. Reliance can also be placed upon :
(a) Crl. Rev. P. 573/2009 titled as Dr. V.P. Sharma Vs. The State ( N.C.T. of Delhi) & Ors decided on 27 October, 2009 by the Hon'ble High Court of Delhi.
(b) Crl. M.C. No. 2367/2011 titled as Khandelwal Builders Pvt.
Ltd. Vs. State decided on 8 November, 2012 by the Hon'ble th High Court of Delhi.
(c) Crl. M.C. No. 3918/2009 titled as Vikrant Kapoor Vs. The State & Ors. decided on 27012012 by the Hon'ble High C.R. No. : 04/10 Page 11 of 12 12 Court of Delhi.
(d) Crl. M.C. No. 865/2010 titled as Krishnana Manchanda Vs. State & Ors decided on 15th March, 2012 by the Hon'ble High Court of Delhi.
15. In view of the discussions, mentioned hereinabove, I do not find any illegality caused by the Ld. MM in not directing registration of the FIR and asking the petitioners to proceed as a complaint case as the evidence is in the possession of the petitioner and in case some inquiry is required to be got conducted the same can be got conducted U/s 202 Cr.P.C as held in the judgments "supra" cited above.
16. The revision petition is, therefore, dismissed. Petitioner is directed to appear before the Ld. Trial Court on 23042013. Trial Court Record be sent back alongwith the copy of the order. Revision file be consigned to Record Room.
(Announced in the open Court on 01042013).
(RAJNISH BHATNAGAR)
ADDL. SESSIONS JUDGE2, NORTH
ROHINI COURTS : DELHI
C.R. No. : 04/10 Page 12 of 12