Delhi District Court
Shalini Saraff vs State on 3 November, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH - EAST, SAKET COURTS, NEW DELHI
Cr. Rev. No. 590/2019
Shalini Saraff
W/o Sh. Anoop Kumar Saraff
R/o: G-19, Second Floor,
Preet Vihar, New Delhi-110092 .......... Revisionist/
Complainant
VERSUS
State
Through its
Addl. Public Prosecutor
Department of Prosecution
Saket District Courts, New Delhi .... Respondent
Date of filing: 18.09.2020
Date of order: 03.11.2020
ORDER:
1. The Revision Petition under Section 397 Cr. P. C. has been filed by the Revisionist/Complainant against the Order dated 22.03.2019 vide which the application under Section 156 (3) Cr.P.C. filed by the Revisionist/Complainant, has been dismissed.
2. The facts in brief are that Shri Anoop Kumar Saraff, husband of the revisionist had known the accused persons since 1998 and had purchased a plot bearing No. D-201 + D-248, admeasuring 400 sq. CR No. 590/2019 Page No. 1 of 10 yards @ Rs.1400/- per sq. yard at Kanchan Kunj, Madanpur Khadar, Delhi through a registered sale deed on 05.03.1999. The symbolic possession of the suit property was also handed over as the whole area was under development at that time but the actual physical possession has not been handed over till date. It is asserted that the area was developed into a colony by the accused persons and the location of the plot of the revisionist was changed by claiming that the same would be at a new and better location in the new lay out plan. Despite repeated requests of the revisionist and her husband, the accused persons have failed to demarcate the plot despite a lapse of 4-5 years from the date of registration of sale deed. The accused persons have even taken development charges over and above the sale consideration despite which the physical possession of the plot has not been handed over and the revisionist has been duped to the tune of more than Rs.1.50 crores which is the market value of the property as on date. It is asserted that a legal notice dated 04.05.2018 was sent to the accused persons but they manipulated the report and the notice was returned back with the remarks "left" on 14.05.2018 even though they continue to reside at the same address. A complaint dated 22.05.2018 was made to the Commissioner of Police and a complaint dated 23.05.2018 was made to the DCP and the SHO of South-East, Delhi but no action has been taken by the police. Hence, the application under Section 156(3) Cr.P.C. was filed before the learned MM.
CR No. 590/2019 Page No. 2 of 103. The status report was called from the concerned Police Station by the learned MM wherein the report was filed by the IO. The learned MM however, dismissed the application under Section 156 (3) Cr.P.C. vide impugned order dated 22.03.2019. The order has been assailed on the ground that the learned MM has erred in concluding that no police investigation is required. However, the police investigations are required to ascertain how the accused persons in collusion and in conspiracy with each other had made false representation and defrauded the complainant of Rs.1.5 crore on the pretext of executing a Sale Deed and not handing over the physical possession. It is wrongly observed by the learned MM that no field investigation is required as it is for the police authorities to examine and investigate as to in which manner and how the alleged offence was committed. It was for the police to investigate who are the persons to whom the accused persons are selling the plot and whether proper documents are being executed in furtherance thereof or are they indulging in sham transactions as the revisionist has got nothing in hand except the sham transaction. It is required to be found out who is the author of alleged cheating and who are the persons involved who are acting in connivance with the accused persons. Moreover, the plot is required to be located and its possession handed over to the revisionist. The investigation is required to unearth the truth which cannot be done without the assistance of the police. It was thus claimed that the following points are required to be investigated :-
CR No. 590/2019 Page No. 3 of 10a) the offence of cheating, forgery, breach of trust etc. committed by the accused persons involving mensrea and dishonest intention which is required to be established by way of evidence and thus required thorough investigation;
b) to recover and retrieve the cheated amount;
c) to unearth the nexus between the accused persons;
d) to enquire if the accused are habitually involved in criminal activities;
e) to determine how many cases of fraud are pending against the accused persons;
f) to determine their previous and subsequent conduct; and
g) the other associates of the accused involved in committing the criminal conspiracy.
4. The revisionist has referred to the following cases in support of her assertions:
i) S S Sandhu vs State, 2014 SCC online Del 3267
ii) Abhay Kumar Mishra vs The State & Anr., 2013 SCC Online Del 4921
iii) Radha vs State 2011 (179) DLT 810
iv) Lalita Kumari vs Govt. of UP & Ors. delivered on 12.11.2013 in Criminal Appeal Nos. 1410/2011 and 1267/2007
v) D. R. Bhatija vs State 1995 Crl.L.J. 2158
vi) Devarapali Laxminarayana Reddy vs V. Narayana Reddy 1976 (3) SCC 252
vii) Gopal Das Sindhi vs State of Assam 1961 Crl.L.J. 39 CR No. 590/2019 Page No. 4 of 10
viii) Acharya Arun Dev vs State 2005 (2) JCC 897
ix) Ram Babu Gupta & Anr. Vs State of UP & Ors. 2001 Cr.L.J. 3363 (Allahabad)
x) Superintendent of Police, CBI & Ors. vs Tapan Kumar Singh 2003 SCC (Crl.) 1305
xi) Rajesh Bajaj vs State of NCT of Delhi 1999 Crl.L.J. 1833.
5. It is thus submitted in the revision petition that the impugned order be set aside and directions be issued to the SHO for registration of FIR.
6. I have heard the arguments and perused the record. My observations are as under:
7. Section 156 (3) of the Code further provides a remedy where the Metropolitan Magistrate can direct the police for registration of FIR under Section 156 (3) of Code of Criminal Procedure in case the police has not done so under Section 154.
8. In D. R. Bhatija vs State 1995 Crl.L.J. 2158, it has been observed that the order directing police to investigate the case under Section 156(3) Cr.P.C. can be validly made but it should be done at the pre cognizance stage. If the Magistrate on reading of complaint finds that the allegations disclose a cognizable offence and forwarding of complaint shall be conducive of justice and save the valuable time of the Magistrate being wasted in enquiry into the matter which was primarily of the duty of the police to investigate, it would be justified in adopting the course as an alternative to taking cognizance of the offence himself.
CR No. 590/2019 Page No. 5 of 109. The Apex Court in Devarapali Laxminarayana Reddy vs Narayana Reddy 1976 (3) SCC 252 has given the guidelines to deal with matters under Section 156 (3) Cr.P.C. It is observed that when a complaint is received by the Magistrate, he is not bound to take cognizance even if the facts alleged disclose the commission of an offence. The Magistrate has discretion in the matter. If a cognizable offence is disclosed, the Magistrate may forward the complaint for police investigation if it is found to be conducive to justice and save the valuable time of the Magistrate. Similar are the observations in Gopal Das Sindhi vs State of Assam 1961 Crl.L.J. 39 and Ram Babu Gupta & Anr. Vs State of UP & Ors. 2001 Cr.L.J. 3363 (Allahabad).
10.In so far as directions to register the FIR is concerned, it has been held in Lalita Kumari Vs. Government of Uttar Pradesh 2014 (2) SCC 1 that at the stage of registration of crime on the basis of information in compliance with the mandate of Section 154 (1) of the Code, the police officer cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. Rather, the Officer in Charge of a police station is statutorily obliged to register a case and then to proceed with a case. It is therefore, clear that once an information disclosing cognizable offence is laid before a police officer, he has no other option except to register the CR No. 590/2019 Page No. 6 of 10 FIR. Similar are the observations in S S Sandhu vs State, 2014 SCC Online Del 3267 and Radha vs State 2011 (179) DLT 810.
11.However, what is the remedy available to an informant where despite the mandate of Section 154 the police officer chooses to not take action on the complaint. Sections 156 and 157 of the Code provide an answer to the same. It provides that in case, an Officer in Charge of a Police Station refuses to exercise the jurisdiction vested in him and to register a case, the person aggrieved can send the substance of the information in writing and by post to the Superintendent of Police concerned, who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be done by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
12.In Skipper Beverages Pvt. Ltd. Vs State 2001 (59) DRJ 129, it was observed by Delhi High Court that Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empowers the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and CR No. 590/2019 Page No. 7 of 10 proceed against the accused if required. Therefore, a Magistrate must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.
13.There is an absolute clarity on this aspect of law. It is mandatory of the police to register a FIR under Section 154, but in case it is not done there are other remedies provided under the Code. The application under Section 156 (3) Cr. P. C. may be made on the basis of which the Magistrate in appropriate cases, direct registration of FIR or a complaint under Section 200 Cr.P.C be made which may be tried by the Court as per law.
14.In the light of the above case laws, the facts of the present case need to be examined. As per the averments made in the complaint a proper sale deed has been executed in favour of the revisionist by the accused persons way back in 1999. As per the sale deed, the possession was already handed over but now the allegations are being made that the only symbolic possession was given and the area was to be developed and demarcated and then the plot was to be handed over after due development. The revisionist has asserted that after the area was developed the proper demarcation of the plot sold to the revisionist was not done by the accused persons CR No. 590/2019 Page No. 8 of 10 and thus have defrauded and cheated the revisionist of her money. A civil suit has already been filed in this regard before the learned ADJ which is pending trial. It is quite evident from the averments made in the complaint that the issue is in regard to identification and demarcation of the property that was sold to the revisionist. The demarcation of the plot is to be done by the Revenue Authority.
15.The other aspects on which the police investigation is sought are that the police must interrogate and investigate to find if there was a similar conspiracy of defrauding other customers and persons in similar manner. These are vague assertions and not supported by any specifics. The police cannot possibly undertake the investigation in the dark to unearth a conspiracy the details of which are missing from the complaint. There are specific averments that the revisionist has been cheated in so much as the demarcation of the property has not been carried out by the accused persons. The aspects stated by the Revisionist for investigations by the police are not made out at this stage. For this, it has been rightly observed by the learned MM that neither the investigations by the police are required nor any field investigations are to be done by the police. The demarcation of the property is not the domain of the police. Moreover, it is quite evident that though there is an obligation on the police under Section 154 Cr. P. C. for registration of FIR when the complaint discloses a cognizable offence as observed in the case of Lalita CR No. 590/2019 Page No. 9 of 10 Kumari (Supra) and the sufficiency of the evidence is not to be considered at the stage of registration of FIR. However, in appropriate cases on failure of the police to register FIR, resort can be made to Section 156 (3) Cr.P.C. Even then, if the Magistrate finds that identity of accused is known and evidence is within the reach of the complainant, it may decide to proceed under Section 200 Cr. P. C. instead of directing registration of FIR under Section 156 (3) Cr. P. C.
16.Moreover, it is not as if the averments made by the Revisionist has been disbelieved; the court has decided to proceed under Section 200 Cr. P. C. and after recording of evidence, the appropriate directions would be issued as warranted in the circumstances. The direction to register FIR has merely been deferred and not declined. Moreover, even though the police investigation has been declined at this stage, the court can still seek police assistance under Section 202 Cr. P. C. if so required.
17.In view of above, there is no infirmity and illegality in the impugned order dated 22.03.2019. The Revision Petition is hereby dismissed.
18.A copy of this order be sent to learned Trial Court.
19.Revision Petition be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.11.06
KRISHNA 13:28:08 +0530
Announced in the open Court (Neena Bansal Krishna) on 03.11.2020 Principal District & Sessions Judge South East, Saket Courts, New Delhi CR No. 590/2019 Page No. 10 of 10