Delhi District Court
Rajinder Prasad vs (1)State Govt. Of Nct Of Delhi on 9 September, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI
C.R. No.10/2014
Unique Case ID No.02402R0108772014
Rajinder Prasad
S/o Late Maniram
R/o 1/123, Trilok Puri,
Delhi110091. ... Petitioner
Versus
(1)State Govt. of NCT of Delhi
(2)Ram Avtar Singh Yadav
S/o Late Ram Das Yadav
R/o B1313, First Floor,
G.D. Colony, Mayur Vihar,
PhaseIII, Delhi110091.
(3)Phool Kumar
S/o Amar Singh
(4)Savitri Devi
W/o Amar Singh
(5)Mrs. Phool Kumar
W/o Phool Kumar
Respondent Nos.3 to 5
R/o House No.203, Main Road,
Khichri Pur, Delhi110091. ... Respondents
CR No.10/2014 Rajinder Prasad Vs. State etc. Page 1 of 9
Date of Institution : 11.04.2014
Date of order reserved : 26.08.2014
Date of order : 09.09.2014
O R D E R
Vide this order, I shall dispose of a revision petition under section 397 Cr.P.C. filed by the revisionist/petitioner against order dated 12.12.2013 passed by Ld. CMM (East) Karkardooma Courts, Delhi whereby the application of the revisionist/petitioner filed under Section 156(3) of Cr.P.C. was dismissed.
2 Trial Court record has been called. I have heard learned counsel for the petitioner as well as Ld. Addl. PP for the State /respondent No.1 and have gone through the material available on the record.
3 The facts leading to filing of the present revision petition are that petitioner/complainant had filed a criminal complaint under section 200 Cr.P.c. for issuance of directions to SHO, PS Kalyan Puri to register FIR against respondent Nos.2 to 5herein/ accused persons for hatching conspiracy for cheating, forgery for the purpose of cheating, use of forged documents as genuine and creating CR No.10/2014 Rajinder Prasad Vs. State etc. Page 2 of 9 of false evidence in order to extort money from the complainant. Along with the complaint, the complainant also moved an application under section 156(3) Cr.P.C. for issuance of direction to the SHO for registration of FIR against accused persons u/s 420, 468, 471, 383, 192, 196, 199, 200, 209, 210, 120B IPC. Ld. CMM called the status report from the concerned Police Station. Ld. CMM on appreciation of the material placed before her, dismissed the application under Section 156(3) Cr.P.C. Ld. CMM called the petitioner to adduce evidence. It is against that order, the present revision petition has been filed.
4 Grounds challenging the impugned order dated 12.12.2013 are that the offences committed by the accused persons are cognizable one and as per order of Hon'ble Supreme Court, FIR must be registered in a cognizable offence; custodial interrogation of the accused persons is required to unearth the conspiracy hatched by them; police investigation is required to recover forged documents in possession of the accused persons; Ld. CMM has not considered the judicial precedents relating to registration of FIR; inaction against the accused persons may cause irreparable loss and injury to petitioner and accused persons could run away from the clutches of law. CR No.10/2014 Rajinder Prasad Vs. State etc. Page 3 of 9 5 It has been argued by Ld. Counsel for the petitioner that when allegations made by the petitioner disclosed commission of cognizable offences, police was duty bound to register FIR. He has further argued that the complaint also disclosed commission of cognizable offences of forgery of documents by the accused persons, therefore, Ld. CMM was having no option other than directing the police to register FIR.
6 In the present case, the fact remains that it is not necessary that in every case where an application has been filed under Section 156(3) of the Code, the Magistrate should direct the police to investigate the crime, even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses.
7 The question involved in the present case is with regard to issuance of directions by the Court to the police or taking of cognizance by the Court itself on the application of the petitioners. As per Section 190 of Cr.PC, when a complaint is received, the Magistrate is empowered to take cognizance of the offence disclosed in the complaint. After taking cognizance, the Magistrate can adopt two methods. Firstly, the Magistrate may forward the complaint to CR No.10/2014 Rajinder Prasad Vs. State etc. Page 4 of 9 the police under Section 156(3) Cr.PC, without taking cognizance, to investigate and file a report. Secondly, the Magistrate may take the cognizance of the offence disclosed in the complaint and conduct proceedings under Section 202 of Cr.PC. In this case, Ld. CMM exercised her discretion and instead of adopting former procedure, preferred to take cognizance on the complaint of the petitioner and called upon him to adduce evidence.
8 I have gone through the ratio of judgment in case titled P. Kannappan versus State of Kerala (Reported in 2006 (1) RCR (Criminal) 165), in which the Hon'ble Kerala High Court has observed that the Magistrate can adopt two options when a complaint is filed before him. He may direct the police to investigate and file the report. He may take cognizance and proceed under Section 202 of Cr.P.C. It is further observed that the complainant has no right to make a demand to refer the case to the police.
9 Similar views have been expressed by their lordships of Hon'ble Supreme Court in judgment titled Rameshbhai Pandurao Hedau vs. State of Gujarat, AIR 2010 SC 1877 in which it was 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 CR No.10/2014 Rajinder Prasad Vs. State etc. Page 5 of 9 202 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 may either dismiss the complaint under Section 203 Cr.P.C. or proceed in terms of Section 193 Cr.P.C. The said law has been consistently followed in :
(1)Skipper Beverages Pvt. Ltd. vs. State 2001 ( 92) DLT 217. (2)Suresh Chand Jain vs. State of M.P. 2001 (I)AD (Crl.) SC 34.
10 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 exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and CR No.10/2014 Rajinder Prasad Vs. State etc. Page 6 of 9 also about necessity of Police investigation for digging out of evidence neither in possession of the complainant nor 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. 11 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 allegations are not very serious and 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. 12 In the present case also, the Ld. CMM rejected the prayer made in the application of the petitioner under Section 156(3) of Cr.PC. In the said application, the petitioner made prayer for issuance of direction to the police to investigate the matter under Section 156 (3) of Cr.P.C. In my view, a complainant has no right or privilege to ask the Magistrate to refer the case to the police. It is the discretion of the Magistrate, either he can forward the complaint to the police for investigation or he himself can take cognizance and proceed under Section 202 of Cr.P.C.
CR No.10/2014 Rajinder Prasad Vs. State etc. Page 7 of 9 13 In the present case, status report filed by the police shows that no cognizable offence was made out as per the allegations of the complainant inasmuch as the respondent had filed civil suit for recovery of Rs.3,75,000/ against the petitionerherein. It is apparent that the accused persons as mentioned in the complaint are well known to the petitioner. Petitioner is also having the knowledge of the facts and circumstances of the alleged offences and the evidence is in his possession. The evidence can easily be adduced by the petitioner in support of allegations contained in the complaint, so there was no necessity to direct the police to inquire into the allegations. As per the law laid down in the above judgments, the Magistrate is of the discretion either to direct the police to investigate or to himself investigate the allegations by calling the complainant to adduce presummoning evidence.
14 In view of laid down by Superior Courts, impugned order can not be said to be inconsistent with the law. Ld. CMM can not be said to have failed to exercise the jurisdiction vested with her or exceeded the jurisdiction. Impugned order passed by Ld. CMM does not suffer from any illegality, irregularity or impropriety. There is no jurisdictional error in the impugned order. Consequently, CR No.10/2014 Rajinder Prasad Vs. State etc. Page 8 of 9 impugned order is hereby upheld. As a result, present revision petition is dismissed.
15 A copy of the order along with Trial Court Record be sent to Trial Court concerned. Revision file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 09.09.2014 District & Sessions Judge (East)
Karkardooma Courts : Delhi
CR No.10/2014 Rajinder Prasad Vs. State etc. Page 9 of 9