Delhi District Court
Sh Sanjay Joshi (President) vs Sh. Banga on 20 September, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
CR No. 56192/2016
Sh Sanjay Joshi (President)
Delh Janta Party
Address: Y200, PhaseI,
Nangloi, Delhi110041 . . . . Revisionist
Versus
1. Sh. Banga
Address: C1/7, Mianwali Nagar,
New Delhi110087
2. Sh. Babbal
Address: C7/20, Mianwali Nagar
New Delhi110087
3. Sh. Adlakha
Address: Office of Group Housing Society
Mianwali Nagar, New Delhi87
4. Concerned Official
of Delhi Development Authority
Vikas Sadan, INA,
New Delhi110023 . . . . Respondents
Date Of Institution : 23.07.2016
Date of reserving for order : 20.09.2016
Date of pronouncement : 20.09.2016
ORDER
1. This order shall dispose of revision petition filed by revisionist against an order dated 04.06.2016 (in short 'impugned CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 1 of 9 order') passed by Sh. Gajender Singh Nagar, Ld. MM04 (West) dismissing the application under Section 156(3) of Cr.P.C. seeking directions to the SHO concerned to investigate the matter after registration of FIR against the respondents.
2. Trial Court Record of complaint case bearing CC No.15/1/16 PS Mianwali Nagar was requisitioned, received and perused. I have heard Sh. Manoj Khatri, Ld. counsel for revisionist and Ms. Neeta Gupta, Ld. Addl. PP for the State.
3. The version of the revisionist in his complaint, so far as it is relevant for adjudication of the instant revision petition in nutshell, is that he is President of a registered political party namely "Delhi Janta Party". It is averred in the complaint that plot bearing No. C7/20, Mianwali Nagar, Delhi belongs to Tolaram Dualat Devi Banga Charitable Trust [NABHA] and that respondents having an evil eye on the said plot are raising illegal construction on the said plot with an intention to grab the same after forging and fabricating certain documents.
4. The revisionist has felt aggrieved that local police failed to register an FIR and investigate the matter on his complaint and his complaint made to Ld. MM for directing the police to register an FIR and carry out investigation was wrongly disallowed vide the CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 2 of 9 impugned order. Revisionist has assailed the impugned order interalia on the grounds that: • that respondent have committed offences punishable under Sections 467/468/471/420/120B/34 IPC, which offences are cognizable and non bailable and FIR is required to be registered;
• that forged and fabricated documents are required to be seized from the respondents to unearth the truth for which assistance of Investigating Agency is required;
• that signatures of respondents are required to be taken to bring on the truth, which can only be taken by Investigating Agency;
• that Ld. trial Court vide the impugned order has erroneously held that offence under Section 420 IPC is not made out; and • that Ld. Trial court has ignored the Judgment in case titled as Lalita Kumari vs. Government of Uttar Pradesh (2014) 2 SCC 1.
5. Status Report was filed before the Ld. MM on 11.04.2016 by SI Nitu Singh PS Mianwali Nagar, wherein it is reported that: "During the course of inquiry in the complaint, complainant namely Sanjay Joshi was contacted to produce any document to substantiate his allegations but he did not have and document except the complaint and further during the course of inquiry it was revealed CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 3 of 9 that the property bearing no C7/20 Mianwali Nagar was sub leased by The Mianwali Distt. Cooperative House Building Society Ltd, which is registered under DDA, to Sh. Tola Ram Banga s/o Sh Palada Ram Banga r/o village Mandawali Fazalpur near Patparganj road Delhi on 1321981. Later on Sh. Tola Ram Banga sold the same property to Smt. Krishna Kumari Banga w/o Sh. Daulat Ram Banga r/o Bara Bazar, Sambalpur, Orissa on 2421986. Later Smt. Krishna kumari Banga sold the above said property to Sh Ranbir Bhardwaj s/o Sh Rattan lal Bhardwaj r/o 487/36 Peeragarhi Village Delhi, who is the present owner of property no. C7/20, Mianwali Nagar, on 1271991.
As per the complaint filed by Sanjay Joshi no cognizable offence was made out hence no FIR has been registered in this regard"
6. Ld. Trial Court while placing reliance on the judgments of M/s. Skipper Beverages Pvt. Ltd. State - 2001 IC AD (Delhi) and Priyanka Srivastava & Anr. Vs. State of U.P. Crl. Appeal No. 781 of 20102 decided on 19.03.2015 rejected application under Section 156(3) Cr.P.C. of the revisionist by observing as under : "7. The offence U/s 420 IPC is not made out in the matter as it is not clarified as to who was induced by the accused persons.
8. All the evidences in the present case are in the reach of complainant. Furthermore, from the facts of the case, the undersigned is of the opinion that the assistance of investigating agency is not CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 4 of 9 required in the present case for the collection of evidence. The facts and circumstances of the present case are such that the complainant is in possession of entire evidence. Thus it does not appear to be a case where the police assistance is required for the purpose of collection of evidence. Further, if in future any need would arise police assistance can be taken U/s 202 Cr.P.C. None of the evidence in the present case is beyond the reach of the complainant..."
7. Ld. Addl. PP has justified the order of the trial Court by submitting that no cognizable offence is made out and that no custodial interrogation of the respondents is required for recovery of any incriminating evidence or discovery of any facts.
8. Ld. Counsel for the revisionist has laid much emphasis on the judgment of Hon'ble Apex Court in case titled Lalita Kumari vs. Government of Uttar Pradesh, (2014) 2 SCC 1, wherein the issue that arose for consideration before the Hon'ble Apex Court in the said judgment was whether the police officer is bound to register an FIR on receiving information relating to commission of cognizable offence under Section 154 of Cr.P.C. or police officer has power to conduct a preliminary inquiry in order to test veracity of such information before registering the same.
9. The judgment cited above is of no help to revisionist in as much as the judgment pertain to provisions relating to disclosing information to the police and their power to investigate cognizable offences. This judgment does not deal specifically with scope and CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 5 of 9 ambit of powers of a Magistrate u/s 156(3) Cr.P.C. in the light of provisions contained in Chapter XII & Chapter XV of the Code.
10. In Subhkaran Luharuka vs. State ILR (2010) IV Delhi 495 after going through a catena of judgments of the Apex Court and other superior Courts, the Hon'ble High Court of Delhi laid down the guidelines for the subordinate Courts when to resort to Section 156(3) Cr.P.C. which are as under :
(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 6 of 9 Order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
iii) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the prerequisite as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 7 of 911. Thus, the Magistrate is not supposed to act mechanically and direct registration of an FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set into motion on the mere asking of a party. The power under Section 156(3) of Cr.P.C. has to be exercised with care and caution and not mechanically on the mere filing of a complaint alleging that the police has failed to register an FIR.
12. Ld. Magistrate rightly refused to direct registration of an FIR and took cognizance of the offence under Section 200 of Cr.P.C. I concur with findings of Ld. Trial Court. The identity of the persons involved is well known. No custodial interrogation is required for recovery of any article or discovery of any fact.
13. There is presently no need for field investigation by the police. If any need were to be noticed for such investigation in any specific area of dispute, the Ld. Magistrate can always resort to power available under Section 202 of the Cr.P.C. at a proper stage.
14. Hon'ble Apex Court in Kishan Lal vs. Dharmendra Batra & Anr., 2009 (9) SCALE 768 ruled that the revisional Court should not ordinarily interfere with the discretionary jurisdiction exercised by a Magistrate unless a jurisdictional or legal error of law is noticed.
CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 8 of 915. In view of the facts and circumstances of the case, the view taken by the Ld. MM (West) in the impugned order dated 04.06.2016 does not suffer from any jurisdictional or legal error and is in conformity with the guidelines laid down in the judgments of the Superior Courts as discussed above and cognizance of the offence has been taken under Section 200 Cr.P.C. for redressal of the complainant's grievances. The instant revision petition is thus dismissed.
Trial Court Record be sent back along with copy of this order to the Ld. Trial Court.
Revisionist is directed to appear before the Ld. Trial Court on 22.09.2016 at 2.00 PM.
Revision file be consigned to Record Room.
Announced in open Court ( Rekha Rani ) dated, the 20th day of District & Sessions Judge (West)
September, 2016. Tis Hazari Courts, Delhi CR No. 56192/16 Sanjay Joshi Vs. Banga & Ors. Page 9 of 9