Delhi District Court
Mr. Kamal Hemrajani vs The State on 9 January, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ASJ02/SE/SAKET COURT
NEW DELHI
IN RE: Criminal Rivision No. 40/11
ID No: 02406R0282412011
Mr. Kamal Hemrajani
M5, Modi Tower,
Nehru Place,
New Delhi. ..... Revisionist
VERSUS
The State ..... Respondent
__________________________________________________________
Date of Institution : 09.11.2011
Date when the arguments were heard : 05.01.2012
Date of judgment : 09.01.2012
J U D G M E N T
Present is a revision petition under section 397 Cr.P.C. against order dated 22.10.2011 passed by ACMM, Saket Courts, New Delhi.
Smt. Krishna Wanti (since deceased) filed two eviction petitions under section 14(1)(b)(h) and (i) of The Delhi Rent Control Act numbered as E13/97 and E14/97 against the revisionist, in respect of two different portions of property described as G11 (old no. B18), Maharani Bagh, New Delhi. Both of these petitions were dismissed by CR No. 40/11 1/6 the court of Additional Rent Controller, Delhi vide a common judgment dated 30.07.2005. Present revisionist preferred an appeal against said order/judgment by filing two separate appeals. Both of these appeals were dismissed by the Additional Rent Control Tribunal, Saket, New Delhi vide order/judgment dated 10.08.2011. Feeling aggrieved by the order, the revisionist challenged said order/judgment in High Court of Delhi by filing a CM(main) No. 1158/2011. High Court of Delhi vide order dated 28.09.2011 was pleased to direct parties of case to maintain status quo, till 30.09.2011.
It is submitted by Ld. Counsel for revisionist that despite said order of the High Court, the respondent/accused no.1 along with bailiff and some unidentified men broke open the lock of premises of revisionist. A lot of expensive belongings/articles of revisionist company were thrown in the lawns and drive away. Some other belongings/articles were loaded in truck brought by accused no.1. The complainant requested the bailiff as well as accused no. 1 to make inventory of goods being removed but it was ignored. Apart from all this, the complainant and his colleagues were threatened with dire consequences, if they keep on protesting. While the goods were being loaded in trucks, the complainant received information that the High Court of Delhi had pleased to pass an order for maintaining status quo on the same day i.e. 28.09.2011. Despite all this, accused forcibly loaded some trucks with the goods belonging to the company, took these away. CR No. 40/11 2/6 As per Ld. Counsel, a prima facie case for theft was made out but Ld. ACMM, Delhi did not direct the police to register FIR, under Section 156 (3) Cr.P.C., rather declined request in this regard, through impugned order.
It is further contended by Ld. Counsel that Ld. ACMM had given false reasoning that truck number, detail of goods were not mentioned in the complaint by the complainant. Moreover, no telephone call was made to the PCR (at no.100). Ld. Counsel also questioned the observation given by Ld. ACMM that law could not be set into motion, to settle personal scores. As per him, mala fides of informant are not to be considered at the time of registration of FIR. Ld. Counsel relied upon a case in this regard titled as Priya Gupta Vs. State 2007 (2) JCC 1330.
As per Ld. Counsel, the Magistrate i.e. MM was duty bound to direct the police to investigate the case under section 156 (3) Cr.P.C. though the said power was discretionary power, it should have been exercised judiciously which Ld. ACMM did not do. Ld. Counsel referred two cases on this point titled as Acharya Arun Dev Vs. State and Anr. 2005 (2) JCC 897 and D. R. Bhatija Vs. State 1995 Crl. L. J. 2158, where it was observed that :
"Order of Magistrate directing the police to investigate the case under section 156(3) Cr.P.C. can be validly made bit it should be at the pre CR No. 40/11 3/6 cognizance stage. When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint the commission of an offence. The magistrate has discretion in the matter. If on reading a complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the police complaint to the police for investigation u/s 156(3) will be conducive and save valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate. He will be justified in adopting that course as an alternative to taking cognizance of the offence himself."
It is further the plea of Ld. Counsel that even if complete details were not given by the complainant, same could have been obtained by the police during investigation. FIR, even if it was registered, was not an encyclopedia of case of complainant. Ld. Counsel referred a case in this regard titled as Ashabai Machindra Adhagale Vs. State of Maharashtra and Ors. 2009 (3) SCC 6 where it was held by the Apex Court that first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported.
There is no quarrel over the findings given by the Apex Court and High Courts on this point. It is pointed out by Ld. Addl. PP that appeal filed by present revisionist before the Rent Tribunal had already been dismissed and in execution of same, warrants of possession were issued to be executable with the police aid. Police aid was also provided CR No. 40/11 4/6 to facilitate decree holder and bailiff to execute the decree and that possession of suit property had already been handed over to the decree holder with the police aid. This fact was brought to the notice of High Court of Delhi on 28.09.2011. From aforementioned order, it is clear that it was brought to the notice of the High Court of Delhi that decree had already been executed and the petitioner was evicted. The belongings of the petitioner had been driven away from the premises and that the constructed portion was in possession of respondent.
If the revisionist has any grievance or same reasserts that his goods had been taken away after order of High Court of Delhi, directing parties to maintain status quo, the complaint filed by present revisionist is still pending before the court of ACMM, Delhi. The former is still at liberty to lead evidence in support of its claim.
As what held in Acharya Arun Dev (Supra) it was discretion of the Magistrate to direct police to investigate the case under section 156 (3) Cr.P.C. In the given facts of the case, Ld. ACMM was of the opinion that complainant was free to lead evidence under section 200 Cr.P.C. and case had been adjourned for that purpose. If the revisionist feels that his goods were removed illegally, same can lead evidence in this regard. It is not the case of revisionist even that same is not able to lead evidence to prove said fact. No reason to interfere in the impugned order.
Revision in hands is dismissed. Let trial court record be sent CR No. 40/11 5/6 back alongwith the copy of this order/judgment and this case file of this court be consigned to Record Room.
Announced in the open court (RAJENDER KUMAR SHASTRI)
on 9th January 2012 ASJ02/SE/ SAKET COURT
NEW DELHI
CR No. 40/11 6/6