Delhi District Court
Arun Saroha S/O Jaiveer Singh Saroha vs State on 28 April, 2012
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03,OUTER DISTRICT
ROHINI COURTS, DELHI.
Cr. Revision No. : 62/11
PS : Prashant Vihar
Unique Case ID : 02404R0 036902011
In Re:
Arun Saroha S/o Jaiveer Singh Saroha
R/o D-3, 73-74, Rohini Sector-11
New Delhi.
...Revisionist
Versus
STATE
N.C.T. of Delhi
... Respondent
Cr. Revision No. : 62/2011
Date of Institution : 11.02.2011
Date of reserving judgment/order : 27.04.2012
Date of pronouncement : 28.04.2012
ORDER
1. Vide this order I shall decide this revision petition, directed against the order dated 25.11.2010, passed by Ld. Metropolitan Magistrate whereby application U/s 156(3) Cr.PC was dismissed.
2. Notice of the revision petition was given to State.
3. I have heard Sh. Vipin Sanduja, Advocate for revisionist and Ld. Substitute Addl. PP for State. I have also gone through the record.
Cr. Revision No. : 62/11 Page 1 of 8 24. Trial court record is also summoned. Received. Perused.
5. The relevant facts for the disposal of the revision petition are a complaint was filed against four accused persons by the complainant/revisionist stating therein on 7.9.2009, at about 9:30 p.m. he had gone to the market for buying some medicines on the motorcycle and he had parked the motorcycle in the parking and when he returned to his motorcycle after taking the medicine, he found that two boys namely Raj Dev Singh and Manu were having alcohol by putting the glasses and bottle on the roof of their car make Accent and when he started motorcycle accused persons abused him. They were known to him as they were residing in the same gali of his cousin namely Vijay and they used to abuse his cousin before this incident and threatened by saying that the complainant does not know him, he is Raj Dev owner of the Raj Gym. Thereafter he left and accused persons started following him in the car and when he reached at the end of the street, he met maternal uncle's son. The accused returned from there. At about 10:15/10:30 p.m. when Vijay was going to his house, the complainant accompanied to see him off and when they were passing in front of house of Raj Dev Singh, all the accused persons started bringing out the cricket wickets and tried to stop the complainant as well as his cousin Vijay. On this they (complainant) started running and they (accused) followed them and when the they reached at D-3 DDA Market car bearing registration No. DL-4C-AJ-1833 make Hundai Accent and Maruti Zen bearing registration No. Cr. Revision No. : 62/11 Page 2 of 8 3 DL-SC-AF-8114 intercepted the complainant and his cousin from front and back and out of the said two cars, Raj Dev Singh, Manu, Rahul Rana and Surya Pratap Singh and one more person got down from the cars armed with cricket wickets and baseball bats with intention to beat them and started beating them by saying not to let them alive. Accused Raj Dev Singh and Rahul Rana attacked on the complainant on his head with the cricket wickets with intention to kill but the complainant stopped the blow from his left hand due to which he received injuries on his left hand. The other co-accused persons had beaten Vijay. On this complainant and his cousin raised alarm "Bachao-Bachao"
for their help and on this public had gathered on which all the accused persons started running away and fell on their own on the road and sustained injury but they managed to escape. Complainant made call to police. Police came. He was examined at BSA Hospital and thereafter he gave his statement to the police but police did not take any action. On the other hand, FIR no. 529/09 u/s 308/34 IPC was registered against the complainant. On the MLC of accused Raj Dev Singh, it is opined that accused was in drunken condition at the time of medical examination. The complainant made several complaints to the police station for registration of the cross FIR but no legal action was taken. Thereafter an application u/s 156 (3) Cr.PC was also filed for registration of FIR.
6. Ld. MM had also called for status report.
Cr. Revision No. : 62/11 Page 3 of 8 47. Vide order dated 25.11.2010, Ld. Metropolitan Magistrate rejected the application U/s 156(3) Cr.PC and posted the matter for complainant evidence. Hence the present revision.
8. The order of Ld. MM has been assailed on the ground that the application was dismissed without application of mind and Ld. Metropolitan Magistrate has passed the order on the basis of false status report. The revisionist has alleged that accused had snatched the gold chain but Ld. M.M. has wrongly mentioned that accused tried to snatch the gold chain. It is further submitted that the MLC has not been appreciated. It is alo submitted that Ld. M. M. has wrongly observed that complainant himself examined from the hospital and doctor had opined the nature of injury to be simple. Ld. Counsel has also relied upon various judgments of hon'ble Allahabad High Court which are Ram Nath v. State of U.P. & Ors. 2007 Crl. L. J. (NOC) 414 (ALL), Smt. Sumitra Devi v. State of U. P. & Ors 2007 Crl. L. J. (NOC) 414 (ALL) = 2007 (3) ALJ 398, Santosh Kumari v. State of U.P. 2007 Crl. L. J. 3869 (Allahabad High Court), Sukhveer Singh v. State of U.P. 2008 Crl. L. J. 4816 (Allahabad High Court), Ravindra Singh v. State of U.P. & Ors. 2006 Crl. L. J. 3325 (Allahabad High Court), Abdul Mukid v. State of U.P., 2007 Crl. L. J. (NOC) 407 (ALL.) = 2007 (3) ALJ 293,), Ram Prapanna and Ors v. State of U.P. and Ors 2007 Crl. L. J. (NOC) 439 (ALL) = 2007 (3) ALJ 97, Sunita v. State of U.P. 2007 Crl. L. J. (NOC) 843 (ALL). = 2007 (5) ALJ 120, Mahadeo v. State of U. P. & Ors. 2006 Crl. L. J. 1424 (Allahabad High Court), Cr. Revision No. : 62/11 Page 4 of 8 5 Mangalsen v. State of U.P. & Anr. 2010 Crl. L. J. (NOC) 139 (ALL.)
9. Ld. Counsel also cited judgment of our own High Court in case titled as Radha v. State 2011 [2] JCC 1414 and judgment of Hon'ble Rajasthan High Court in case titled as Sant Lal v. State of Rajasthan & Ors. 2008 Crl. L. J. 1187.
10. Ld. Counsel also cited judgment of hon'ble Supreme Court in case titled as Srinivas Gundluri & Ors. v. M/s SEPCO Electric Power Construction Corporation & Ors. 2010 Crl. L. J. 4457, Dharmeshbhai Vasudevbhai & Ors. v. State of Gujarat & Ors. 2009 Crl. L. J. 2969.
11. There is no quarrel to the legal proposition that if a cognizable offence is disclosed the police can take action after registration of the FIR. It is further a discretion of the Ld. Metropolitan Magistrate if complaint case is filed before him which discloses cognizable offence, he either to take cognizance of the offence or direct the police to register an FIR to investigate the case. It is well settled that exercise of discretion U/s 156(3) Cr. PC for directing the police to register the FIR is judicial discretion, vested in the MM. It is also settled law that the said judicial discretion has to be exercised judicially as per the guidelines laid down by Supreme Court. Further it is now well settled by way of pronouncement of our Hon'ble High Court that it is not in every case, direction for registration of FIR is given. It was so held by our own High Court in the celebrated judgment in case Cr. Revision No. : 62/11 Page 5 of 8 6 titled as M/s. Skipper Beverages Pvt. Ltd. Vs. State, 2001 IV AD (Delhi). To quote :-
"It is true that Section 156 (3) of the Code empowers to Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. 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 order under section 156 (3) of the Code. This discretion ought to be exercised after proper application of mind and 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 interest of justice demand that the police should step in the help of the complainant."
12. Ld. Counsel for the revisionist has submitted that the Ld. Metropolitan Magistrate has not recorded the facts correctly by recording that accused Rahul Rana tried to snatch the gold chain whereas he has stated that gold chain is snatched. But the question arises as to whether small mistake in recording facts leads to prejudice to the complainant. Primary complaint is with respect to injury sustained by him and there are allegations that criminal force was used to break his gold chain from the neck of the complainant. It is nowhere stated that he has snatched the same and taken away.
13. In this case an FIR has already been registered against the Cr. Revision No. : 62/11 Page 6 of 8 7 complainant u/s 308 IPC wherein complainant has stated that in the MLC of Raj Dev Singh, the doctor had opined that the smell of alcohol is positive in breath and nature of injury has been opined as simple. Similarly in respect of the MLC of other injured, nature of injury was given as simple. I have perused the same. Raj Dev Singh has sustained injuries which are of the nature of abrasion and bruises on various parts of the body whereas injured Surya Pratap has lacerated wound measuring 3cmx0.5 cm over ocipital region. The injuries are on the head and therefore even if the nature of injury is given simple, yet offence punishable u/s 308 IPC can be attracted. Even to attract offence punishable u/s 308 IPC no injury is required.
14. Now coming to the injury sustained by the complainant himself.
As per the status report, the complainant had also got his MLC made from BSA Hospital vide MLC 4897/09 on which nature of injury was given as simple. As per enquiry offence punishable u/s 323 IPC was made out. The complainant had filed photocopy of MLC, according to which, he had appeared himself for the MLC and given history of assault yesterday, wherein the doctor has observed the bruise over left elbow and bruise over arm and nature of injury was opined to be simple.
15. Merely because the nature of injury on the person of other accused was simple and also nature of injury on the person of present complaint is simple, it cannot be said that injuries were of the similar nature. The circumstances in which injury has Cr. Revision No. : 62/11 Page 7 of 8 8 been caused, the intention to cause such injury and seat of injury are important considerations. Moreover, according to the complainant, his cousin Vijay was also beaten up by the accused persons, but there is no MLC to this effect, filed by the complainant nor he stated that he was also examined in the hospital.
16. Ld. Metropolitan Magistrate has correctly appreciated the law and facts. The revisionist is in the possession of the evidence and keeping in view the nature of injury the exercise of discretion of not directing the SHO for registration of FIR does not suffer from any impropriety, irregularity and illegality.
17. As per discussion above, I am of the opinion that there is no illegality or impropriety in the order of Ld. MM. The revision petition is devoid of merit. Accordingly revision petition is dismissed. Trial court record be sent back alongwith the copy of order. Revision file be consigned to record room. Announced in the open court today i.e on 28.04.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/Delhi 28.04.2012 Cr. Revision No. : 62/11 Page 8 of 8