Delhi District Court
Hari Singh vs Sub-Inspector Rampal on 3 June, 2014
IN THE COURT OF MS RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS :
NEW DELHI.
CR No. 42/14
Hari Singh,
Son of Shri Attar Singh,
Resident of Flat no. 1, Pocket-9,
Nasir Pur, Dwarka, New Delhi.
.... Petitioner/
Complainant
Versus
1 Sub-Inspector Rampal,
PS Palam Village,
New Delhi-110043.
CR no. 42/14
Hari Singh Vs SI Ram Pal & Ors. page no.1
2 SI Amrinder Dhankar,
PS Palam Village,
New Delhi-110043.
3 Rajeev Solanki,
S/o Not known,
R/o Palam Village,
New Delhi.
4 Not Known,
S/o Not Known,
R/o Palam Village,
New Delhi.
5 State. Accused/
Respondents
ORDER
1. By this order, I shall dispose of the revision petition filed by the petitioner against CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.2 the impugned order of the trial court dated:
30.01.2014, whereby the application u/s. 156(3) Cr PC of the petitioner/ complainant was dismissed and Ld. MM while taking cognizance of the offence directed petitioner to produce his evidence.
2. Notice of the present revision petition was issued to all the respondents.
3. The trial court record was summoned and perused.
4. The brief facts necessary for disposal of the present revision petition are that complaint u/s 156(3) r/w Sec. 200 and 202 Cr. PC for taking cognizance of offences u/s 166, 166A, 217, 218,220, 340, 342, 347, 448, 120B/506/34 IPC was filed by the petitioner against the respondents and sought directions to the concerned SHO for registration of FIR and CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.3 further investigation. It is averred in the complaint that petitioner had purchased a property No. 905/20B situated at Raj Nagar, Palam, New Delhi from Saravjeet Kaur w/o Sh Jagdish, r/o Village Kullapur, Ludhiana, Punjab. Petitioner took the possession of the said property on 16.09.2013. That Saravjeet Kaur had purchased the said plot from late Sh Khazan Singh son of Sh. Nathwa, resident of 605, Village Palam, New Delhi on 14.06.82.
5. That on 18.09.2013 at about 11:00 am complainant alongwith his friend Puran Singh son of Sh Tara Chand Singh visited the property in question and was shocked to see that the construction work was in progress over the same. When the complainant made enquiry from the labours and masons working there, they threatened him as well as his friend of dire consequences to leave the spot. Consequently, complainant informed police on 100 number.
CR no. 42/14Hari Singh Vs SI Ram Pal & Ors. page no.4 Thereafter respondent no 2 ie SI Amrinder Dhankar came to the spot and forcibly took the petitioner to the PS and asked him to show the documents of his ownership. That he had shown the documents of his ownership to respondent no.2. In the meantime respondent no. 3 ie Rajeev Solanki and some persons came to the PS and respondent no. 3 claimed himself the owner of the property in question. He further alleged that respondent no 1 SI Ram Pal asked the petitioner to bring the original papers. Thereafter he brought the original papers and showed to the respondent no. 1 who snatched the same from him and told him that these will be got verified. He was detained in the PS and after sometimes with the intervention of his friend, the directions were issued by the Addl. CP for his release but the original documents of the property were not returned to him nor any receipt of acknowledgment was given. It is also alleged that the respondents were doing illegal CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.5 construction as well encroachment upon the property of the petitioner regarding which he wrote several complaints and made repeated calls to the police on 100 number requesting them to restrain the respondents for raising illegal construction. Further that the respondents no. 1 & 2 have conspired with respondents no. 3 & 4 and provided full support to respondent no. 3 in forcefully trespassing the property of the petitioner. Further, that all the complaints made by the petitioner are marked to respondent no. 1 which shows illegal nexus between all the respondents. It is prayed in the complaint that directions be issued to respondent no. 5 ie State for registration of the FIR against respondents no. 1 to 4.
6. Ld. MM called for the Action Taken Report from the SHO. The Action Taken Report dated: 14.10.13 was submitted in the court by Inspr. Ashok Saini, wherein it is submitted that CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.6 during enquiry it revealed that on 18.9.13 one PCR call was received vide DD No. 13A at 11:32 am regarding forceful entry in one plot and another PCR call was received vide DD no 15A at 12:20 pm regarding quarrel at plot no. 905/20B, Shastri Marg, Raj Nagar-l, Palam Colony, New Delhi and both the calls were entrusted to SI Amrinder. When SI reached the spot and found two persons namely Sh. Raxit Solanki and Sh Hari Singh discussing about the property and both were claiming ownership. They were asked to produce the documents of ownership but none of them gave any statement and were thus advised to approach the civil court regarding the ownership. The calls were filed by SI Amrinder. On the same day, another call was received against Sh Hari Singh ie the present petitioner from Sh Raxit Solanki regarding forging of documents by Hari Singh in respect of property, referred above, which was entrusted to SI Rampal. During enquiry SI Rampal contacted the CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.7 complainant and related documents were collected from Sh Raxit Solanki. Sh Hari Singh was contacted on his mobile phone by SI Ram Pal several times but he did not join the enquiry. In the Action Taken Report, it is submitted that the main allegation levelled against SI Ram Pal and SI Amrinder were that they forcefully took the original documents of the plot of the complainant but he did not turn up to explain the incident. It is further mentioned in the Action Taken Report that SI Ram Pal was busy in the investigation of case FIR no. 332/13 u/s 307 IPC vide DD no. 79B dated: 17.09.13 on 18.09.13 at the time of the incident ie 11:00 am and had departed for outstation vide DD no 74B on 18.09.13 itself and returned on 19.8.13 vide DD no. 43B PS Palam Village.
7. In the concluding part of the Action Taken Report, it is mentioned that no definite CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.8 result could be ascertained in the absence of clarification from the complainant.
8. Ld. Trial court after hearing the counsel for the petitioner and perusing the entire record was of the considered view that in view of the Judgment in case titled- M/s. Skipper Beverages Pvt Ltd Vs State, 2001 IV AD Delhi 625, the Hon'ble High Court of Delhi, since the petitioner/ complainant was in possession of the evidence, thus police investigation was not required and consequently he dismissed the application u/s 156(3) Cr PC and took cognizance of the offence stated in the complaint and fixed the matter for petitioner/ complainant's evidence. It is this order which has been impugned by the petitioner vide present revision petition.
9. I have heard arguments addressed by advocate, Shri Mohit Ramdev assisted by Shri CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.9 Advocate Shri Praveen sharma on behalf of the petitioner, Advocate Shri Sunil Chouhan, on behalf of respondent no.3, Ld. PP, Shri R.K.Pandey, for the State. None appeared for respondent no.1 and 2 on 22.05.2014 when the arguments were heard, though they had been issued notice of the petition and advocate Shri Jai Singh Yadav had appeared along with them on 04.03.2014.
10. Ld. Counsel for the petitioner has submitted that petitioner had purchased the property in dispute from Smt. Saravjeet Kaur on 16.09.2013 and the petitioner was also put in possession of the same, on the same day. That the said property had been earlier purchased by Smt. Saravjeet Kaur from Shri Khazan Singh. That on 18.09.2013 he found that illegal construction was being raised thereon and consequently, he informed the police and the police took him to the police station where CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.10 respondent no.3 claimed himself to be the owner of the property. There are allegations that the original documents of the property executed in his favour by Smt. Saravjeet Kaur were snatched away by respondent no.1 and 2 and have not been returned back to him. It is submitted that FIR is required to be registered in the present case to carry out the investigation as the original documents of the property executed in favour of the petitioner by Smt. Saravjeet Kaur are required to be recovered from the possession of the respondents.
11. It is further submitted that the Action Taken Report submitted by the police is manipulated as there are discrepancies in the complaint regarding the fact that the complaint dated: 18.9.13 of Sh Raxit Solanki filed against the present petitioner was marked to SI Rampal and that SI Rampal contacted the petitioner on his mobile phone but he did not CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.11 join the enquiry, whereas it is further mentioned in the said report that on 18.9.13 at 11:00 am SI Rampal was busy in the investigation of a case u/s 307 IPC and vide DD no. 74B had departed for outstation on 18.9.13. It is submitted that in case SI Rampal had already been out of station on 18.9.13 around 11:00 am, then how the complaint filed by Sh Raxit Solanki was marked to him and how he contacted the petitioner. It is submitted that these are false allegations to protect the police officials.
12. On the other hand, Ld. Public Prosecutor has submitted that the counsel for the petitioner has failed to point out any illegality in the impugned order as the complaint does not indicate that any evidence is required to be collected by the police and that the names and addresses of the accused as well as witnesses, particularly, from whom the petitioner claims to have purchased the property in question, are CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.12 known to him and thus no investigation is required by the police. It is submitted that since there is no illegality in the impugned order, whereby the court has taken the cognizance of the offence on the basis of the complaint, the revision petition is not maintainable and liable to be dismissed.
13. Ld. Counsel for respondent no.3 has submitted that Shri Khazan Singh (since expired) was the owner of the property in question and he never sold the same to Smt. Saravjeet Kaur and thus, she had not no right to sell the same to the petitioner. It is further submitted that since the court has taken cognizance of the offence, as per the complaint, it is the duty of the petitioner to produce the evidence, in support of his claim and to produce Smt. Saravjeet Kaur, in the witness box, in support of his claim that he had purchased the said property from her and that she was the rightful owner of the same having CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.13 purchased the property from Shri Khazan Singh, the grandfather of respondent no.3.
14. I have gone through the material on record and the submissions made by Ld. counsels for the parties.
15. Admittedly Section 156(3) Cr.P.C. empowers a Magistrate to issue directions for registration of FIR in any cognizable offence and start investigation into the allegations. Such power is required to be exercised judiciously and not in a mechanical manner. It is settled proposition of law that where the complainant himself/herself is in a position to produce evidence to prove the allegations in the complaint, the directions under Section 156(3) Cr.P.C. for registration of FIR are not required. However, in a case where the complainant himself is not in a position to collect and produce the evidence before the court in such cases, in CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.14 the interest of justice, the court is required to intervene and issue necessary directions to the police to register FIR and investigate the matter.
16. If the private complaint does not indicate that any evidence is required to be collected and preserved, and the accused with their names and addresses as well as the witnesses are known to the complainant then in such a case, no investigation by the police is required. The court may proceed to take cognizance and decline order u/S.156(3) Cr PC. It is the satisfaction of the Magistrate as to whether the complaint has to be forwarded to the PS for registration of the FIR and investigation or the cognizance is required to be taken by the court itself. If Ld. MM finds that though prima-facie commission of offence is disclosed but it does not require investigation, then he may take cognizance and proceed with it as a complaint case u/S.200-202 Cr. PC. In those CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.15 cases where the allegations are not very serious and the complainant himself is in possession of the evidence to prove his allegations, there is no need to pass orders u/s 156(3) Cr PC. The discretion ought to be exercised after proper application of mind and police investigation should be ordered only in those cases where the Magistrate is of the view that the nature of allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interests of justice demand that police should step-in to assist the complainant in mustering material in support. The police assistance can be taken by a Magistrate even u/s 202(1) Cr PC after taking cognizance and proceeding with the complaint under Chapter XV of the Code.
17. In the present case, the petitioner has claimed that he had purchased the property in question from Smt. Saravjeet Kaur and the CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.16 original documents executed by her in his favour were snatched away by the respondents. However, he is in possession of the photocopies of the same and have also filed them on record along with complaint. The petitioner can very well summon Smt. Saravjeet Kaur through court or can also produce her on his own responsibility to bring evidence on record through her testimony that she had purchased the property from Shri Khazan Singh and then had sold the same to the petitioner. For producing this evidence, before the court, he does not need the assistance of any investigation by the police. If there is any dispute about the execution of the documents either in favour of Smt. Saravjeet Kaur by Sh Khazan Singh or by Smt. Saravjeet Kaur in favour of the present petitioner, with the permission of the court the relevant documents can also be sent to the handwriting expert for comparison with the admitted signatures. For all this, police is not CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.17 required to step-in to help the petitioner. Besides, as in the present case, the cognizance has been taken by the Magistrate under Section 200 Cr.P.C., if required, the Magistrate can resort to the provisions of Section 202 Cr.P.C. and can direct an investigation to be made by police officer subsequent to the examination of the complainant and the witnesses produced by him, for the purpose of deciding whether or not there is sufficient ground for proceeding.
18. The contention of the counsel for the petitioner that the Action Taken Report is manipulated for the reason that on one hand it is claimed by the police that on 18.9.13 at the time of incident ie 11:00 am SI Rampal was busy investigating in case FIR no. 332/13 u/s 307 IPC and on the other hand claims, he was out of station vide DD no. 74B dated: 18.9.13, is of no consequence. In the Action Taken Report, it is clearly mentioned that on 18.9.13 at 11:00 am CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.18 SI Rampal was busy investigating the case u/s 307 IPC, referred above but it has nowhere been stated in the Report that at 11:00 am on 18.9.13 SI Rampal was out of station. It is mentioned therein that he left for out station vide DD no 74B dated: 18.9.13 but the time of his departure is not mentioned therein. Moreover, if there is any such discrepancy or manipulation in the Action Taken Report, the petitioner is at liberty to summon the relevant record from the concerned PS to prove the same.
19. Besides, this fact cannot be ignored that the petitioner filed application u/s 156(3) Cr PC as well as u/S.200-202 Cr PC for taking cognizance of offence allegedly committed by the accused persons and at the same time sought directions from the court for registration of the FIR. The petitioner has tried to exercise both the options available to him ie taking cognizance of offence by Ld. MM as well as issuance of CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.19 directions to the SHO for registration of the FIR. Both these options cannot be exercised simultaneously. If Ld. MM issues directions to the police to investigate a cognizable offence u/s 156(3) Cr PC, simultaneously Ld. MM cannot take cognizance of the offence u/S.200 Cr. PC, until and unless, the police files a final report and the complainant chooses to peruse his complaint. It is applicable vise-versa also as in case the Magistrate has taken cognizance of the offence, he cannot revert back and order investigation u/S 156(3) Cr PC, thereafter, except u/S. 202 Cr PC.
20. In the facts and circumstances of the present, Ld. Counsel for the petitioner has failed to point out any illegality in the impugned order whereby Ld. MM has taken cognizance of the offence stated in the complaint while dismissing the application under Section 156(3) Cr.P.C. Revision petition is without any merits, hence, CR no. 42/14 Hari Singh Vs SI Ram Pal & Ors. page no.20 the same is dismissed.
21. TCR be sent back alongwith copy of the order.
The file of the revision petition be consigned to the Record Room.
Announced in Open Ravinder Kaur,
Court. District & Sessions Judge,
Dated: 06.06.2014 South-West District,
Dwarka Courts, New Delhi.
CR no. 42/14
Hari Singh Vs SI Ram Pal & Ors. page no.21
CR No. 42/14
Hari Singh Vs SI Ram Pal & Ors.
06.06.2014
Present: None for the parties.
Sh R K Pandey, Ld. Public Prosecutor,
South-west on behalf of State.
Vide separate order, the present revision petition is dismissed.
TCR be sent back alongwith copy of
the order.
The file of the revision petition be
consigned to the Record Room.
Ravinder Kaur,
District & Sessions Judge,
South-West District,
Dwarka Courts, New Delhi.
06.06.2014
CR no. 42/14
Hari Singh Vs SI Ram Pal & Ors. page no.22