Delhi District Court
Sadiqua Sadaf vs State on 21 April, 2025
IN THE COURT OF SH. LOVLEEN,
ADDITIONAL SESSIONS JUDGE-03 (SOUTH EAST),
SAKET COURTS, NEW DELHI
DLSE010135652024
CRL. REVISION No. 784/2024
SADIQUA SADAF
D/o Fahim Ahmad
R/o 9676, 2nd Floor,
Islamganj,
Azad Market
New Delhi-110016.
....Revisionist
VERSUS
1. THE STATE (NCT OF DELHI)
2. Dr. Mohd. Ahad Kamal Alvi @ Mohd. Ahad @ Ahad
Kamal
S/o Sadiq Kamal Alvi,
R/o G-134, Lane No. 17,
Zakir Nagar,
Okhla,
New Delhi-110025.
3. THE SHO
PS Jamia Nagar
New Delhi.
.....Respondents
Date of institution : 23.12.2024
Date of Reserving judgment : 21.04.2025
Date of Pronouncement : 21.04.2025
JUDGMENT
1. This is a revision petition U/s 438 / 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned order dated 16.12.2024 passed by the Court of Ld. Judicial Magistrate First Class - 08/South East/Saket Courts, in Ct. Case No. 41990/2024 titled as "Sadiqua Sadaf Vs. Mohd. Ahad Kamal Alvi", whereby the application moved by the revisionist herein U/s 175(3) of BNSS was dismissed. For the sake of convenience, the revisionist herein shall be referred to as 'complainant' and respondent no.2 herein shall be referred to as 'accused'.
BRIEF FACTS
2. The said complaint was filed by the complainant u/s 223 of BNSS against the accused alleging commission of offence punishable u/s 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The same was accompanied by an application u/s 175(3) of BNSS, which came to be disposed of vide the impugned order dated 16.12.2024. The facts of the case have been correctly noted by the Ld. Magistrate in the impugned order dated 16.12.2024. Relevant extracts of the same are reproduced below for ready reference:-
1. Vide this order, I shall dispose of the application filed by the Complainant u/s 175(3) BNSS.
2. In the application, the applicant contends that she met proposed accused Dr. Mohd. Ahad Kamal Alvi @ Mohd. Ahad on 26.01.2022 through one website 'nikahforever'. The family members of complainant and the proposed accused met each other in order to discuss regarding the marriage proposal. Complainant alleges that proposed accused person had informed the complainant and her family that he does not believe in the concept of dowry. However, prior to the engagement ceremony, complainant's father in law demanded that engagement ceremony be organised at a 'nice place' and further asked for cash of Rs. 5,51,000/-
as shagun. Complainant's father gave shagun of Rs. 2,51,000/- to proposed accused and further gave gifts to the in-laws of complainant as per their demand. Again at the time of marriage, further demand of Rs.
5,00,000/- was made by the family members of the proposed accused. Parents of complainant handed over one cheque in the amount of Rs. 5,00,000/- to the accused at the time of nikah ceremony. Further, the complainant alleges matrimonial disputes, wherein further dowry was demanded from her by the parents of the proposed accused person. Complainant also alleges that proposed accused had extra marital affairs and had hit her when the complainant confronted him.
Complainant claims that at the time when she was with her mother at Select City Walk Mall, Saket on 19.09.2024, she received phone call from the number of proposed accused person's girlfriend. Proposed accused pronounced triple talak on the said phone call. Thereafter, complaint was made to SHO concerned and DCP concerned. However, no action was taken.
3. Hence, the present application has been filed for registration of FIR against the proposed accused as per the memo of parties.
4. Complainant has placed on record copy of nikahnama, marriage invitation card (Annexure A-1 Colly) and transcript of conversation which took place between complainant, proposed accused and her girlfriend.
3. The Ld. Magistrate called an ATR from the SHO concerned. SHO concerned reported in the ATR that the commission of offence took place within the jurisdiction of some other PS. Thereafter, Ld. Magistrate heard arguments of complainant and proceeded to pass the impugned order dated 16.12.2024.
Grounds of Revision
4. The grounds cited by the complainant are as under:
i) Ld. Trial Court erred in law in holding that ordering the registration of FIR involves only the process entering the substance of the information relating to the commission of a cognizable offence & that the evidence is not beyond the reach of complainant or custodial interrogation is also not necessary given the nature of allegations.
ii) Ld. Trial Court erred in law in not considering that the wrongful and illegal actions and cognizable offences being committed by the accused can only be prevented by the Police and there is nothing to be proved by way of oral evidence.
iii) Ld. Trial Court erred in law in wrongfully applying the judgment reported in M/s Skipper Beverages Pvt. Ltd. Vs. State cited in 2001 IV, AD, Delhi, 625, Shubhkaran Luharukha & Anr.
Vs. State & Anr., 2010 (3) JCC 1972 Para 52(a), which case were filed on the basis of documents, while the present case is in hand pertains to evidence pertaining to audio recording wherein voice of the accused is required to be verified by scientific investigation to be conducted by Specialized Investigating Agency.
iv) The nature of the allegations is such that, the Complainant himself may not be in a position to produce evidence before the Hon'ble Court and interest of justice demand that the Police should step in to help the Complainant to prove the commission of offence.
v) Ld. Trial Court failed to consider that it is also a case where Police assistance was required to discover evidence, which the complainant is unable to collect of his own. v)
vi) Ld. Trial Court failed to consider that the allegations are serious and evidence is beyond the reach of the Complainant and custodial interrogation is necessary for discovering all facts.
vii) Ld. Trial Court failed to consider that for launching a successful prosecution in the present case the help of Police is necessary.
viii) Ld. Trial Court failed to consider the judgment reported in (2014) 2 SCC 1 titled Lalita Kumar Vs. Government of U.P. & Ors., which is of larger Bench of Hon'ble Supreme Court wherein the Hon'ble Supreme Court have held that if the complainant prima facie discloses any cognizable offence, it is the duty of the Police to register the FIR.
ix) Further for direction for registration of FIR against respondent no.3 being a public servant who have committed offence U/s 199 of The Bhartiya Nyay Sanhita wherein the SHO P.S. Jamia Nagar have knowingly disobeyed the direction of the law as envisaged U/s 175(3) of BNSS wherein have not registered an FIR causing prejudice to the revisionist.
x) Further have forwarded status report which does not states anything regarding the concerned offence are cognizable or non- cognizable, any preliminary inquiry is conducted as required under the BNSS in case of receipt of complaint constituting cognizable offence. Further disobeyed the direction of law as contained in Section 173 of BNSS, 2023 wherein on receipt of information of commission of cognizable offence, irrespective of the area where the offence is committed failed to conduct preliminary inquiry as envisaged U/s 173(3)(i & ii) of BNSS, 2023.
xi). The objectives of The Muslim Women (Protection of Rights on Marriage) Act, 2019 has been ignored which was enacted to protect the rights of Muslim married women and to prohibit pronouncing Talaq by their husbands are liable for criminal action in case of pronouncement of Talaq as referred to in Section 3 upon his wife and the said offence was made cognizable offence and the recording as placed on the record along with the transcript makes it clear that the accused have pronounced Triple Talaq and have committed an offence U/s 3 punishable U/s 4 of The Muslim Women (Protection of Rights on Marriage) Act, 2019.
xii) It is pertinent to mention that under the Criminal Procedure Code, 1973 wherein Section 154 Cr.P.C. pertains to information in cognizable cases wherein it has been mentioned in 154(1) which is reproduced for kind perusal of this Court:-154(1). Information in cognizable cases "Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."
xiii) The present Code wherein the provision of Section 173 of BNSS, 2023 pertains to information in cognizable cases is reproduced herein for the kind consideration of this Hon'ble Court:-
173. Information in cognizable cases - (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given -
(i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it;......."
xiv) The court below erred in law and failed to appreciate that the present act cast duty upon the police and their power to investigate wherein information relating to the commission of Cognizable offence irrespective of the area where the offence is committed if the prima facie case is made out on preliminary injury as envisaged U/s 173(3)(i & ii) is under the law bound to investigate the same and register the FIR for commission of cognizable offence, however the Ld. Trial Court failed to appreciate the incorporation of new word in the present BNSS.
xv) The court below erred in law in holding that the custodial interrogation of the accused is not necessary given the nature of allegations.
xvi) The Police officials are liable to register the FIR and investigate the same as per law. In the matter of Prakash Singh Badal Vs. State of Punjab-2007(1) RCR Criminal Page 01, the Hon'ble Supreme Court has held that:-
"It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an Officer Incharge of a police station satisfying the requirements of Section 154(1) of the Code, the said Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. In this connection, it may be noted that though a Police Officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non-cognizable offence under the order of a magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under Sub-Section (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the Police Officer can investigate such offences with the same powers as he has while investigating a cognizable offence."
xvii) That revisionist approached the local police officials for redressal of their grievance, but the duty officer refused to register/record the statement of the complaints, upon which the revisionist made a complaint in writing to the SHO Jamia Nagar, along with copies to senior officer but police officials failed to take any action for the reasons best unknown to them. Section 175(3) provides for check and balance by magistrate on police performing of duties under Chapter XIII BNSS, 2023. In the present case the police officials failed to perform the statutory duty cast upon them and left with no remedy, the revisionist seeks indulgence of this Hon'ble Court for direction to SHO for registration of FIR.
xviii) It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of police station satisfying the requirements of section 173 of the BNSS, 2023, the police officer has no other option except to enter the substance thereof in the prescribed form, to register a case on the basis of such information and proceed as per law.
xix) Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal reported in 1992 SSC (Crl.) 426 in Para 32 has observed: "If any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information, 'Reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. The police officer should not refuse to record information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In Section 154(1) the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)
a) or (g) of the Code wherein the expressions, "reasonable complaint" and 'credible information "are used." xx) That Ld. Trial Court, is required to make an opinion as to whether any cognizable offence is made out or not, Hon'ble Allahabad High Court has stated in Ram Babu Gupta & Anr. Vs. State of U.P. & Ors. 2001 Cr. L.J. 3363 (Allahabad) that "If on reading of complaint the magistrate finds that the allegations therein clearly disclose commission of a cognizable offence and forwarding of complaint U/S 156(3) Cr.P.C. to the police for investigation, will be conducive to justice and valuable time of Magistrate will be saved in inquiring into the matter which was the primary duty of police to investigate. He will be justified in adopting that course as an alternative to take cognizance of the offence himself. An order U/S 156(3) Cr.P.C. is in the nature of a reminder or intimation to the police to exercise their full powers of investigation U/S 156(1) Cr.P.C.
xxi) The application for seeking directions under section 156(3) Cr.P.C. falls outside the periphery of the definition of Complaint under Section 2(d) of the Code. The application under Section 156(3) Cr.P.C. was filed before the Ld. Magistrate only for a limited purpose to seek his interference for an order to the police to register and investigate the cognizable offence complained thereof. The Ld. Magistrate has taken cognizance under Section 190 (a) of the code which is a separate procedure provided under the Code of Criminal Procedure under a separate chapter. The legislature had intentionally made a separate procedure to be followed therefore the Ld. Magistrate could not convert one procedure into other and convert the application under section 156(3) of the Code into an application under Section 200 of the Code. The Ld. Magistrate takes action under Section 190(1) (a) of the Code under Chapter XV of the Code, while Section 156(3) is a part of Chapter XII of the Code. The purview of the power conferred upon the Magistrate does not travel beyond the scope of only looking into the application to find out as to whether the offence disclosed is cognizable or not. If the offence complained in the application is a cognizable, the Magistrate has no other option than to order for registration and investigation of the case. Reliance is placed upon Smt. Masuman etc. vs. State of UP reported 2007 (1) CRJ 129.
The Hon'ble Court has further held:
"Thus from the above it is clear that the Magistrate by not directing investigation under Section 156(3) Cr.P.C. gives a long rope to the police to act on its whims and caprices and fosters illegality of in action by the police in registration of information of cognizable offences. It is not permissible for any Magistrate under the Code to act contrary to the provisions of the Code."
xxii) That the police being the investigation machinery of the State is under a statutory obligation to register a First Information Report if a complaint discloses commission of cognizable offence and it cannot preclude itself of its statutory duty.
xxiii) Relying upon "ACHARYA ARUN DEV VS. STATE & ANR REPORTED IN 2005(2) JCC 897 (Paragraph 8 at page 900) has observed:
Further the purpose of the investigation has been sufficiently explained in the application under Section 156(3) Cr.P.C. submitted to the Magistrate. The revisionist, inter alia wanted to trace the cheated money and if possible to recover the same which was possible only for the police to do. Further the Revisionist wanted the police to discover the previous and subsequent conduct of the respondent no.2 to as to procure evidence to prove the dishonest intention:.
xxiv) Relying upon Smt. Masuman Etc. Versus State of U.P. and others, Allahabad High Court 2007 (1) CRJ 129 page 153 that "In most of the cases the Magistrate has rejected the prayer by holding that the appellant is in knowledge of all facts and therefore, he will not order for investigation. This, to me, seems to be totally perverse and injudicious approach for example in cases of murder, loot, dacoity, rape etc. the informant is in knowledge of all the facts of the incident, but this does not mean that the Magistrate should not direct an investigation under Section 156(3) Cr.P.C. It is preposterous even to cogitate that merely because the victim applicant/revisionist is in the knowledge of all facts therefore his FIR should not be directed"
xxv) Reliance is placed upon Superintendent of Police Versus Tapan Kumar Singh and others, Supreme, 2003 JIC 126 (para 20) in which it was held that:
"The true test is whether the information furnished provides a reason to suspect the commission of an offence which the concerned police officer is empowered under Section 156 of the code to investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the report discloses commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolve of his duty to investigate the case and discover the true facts, if he can."
xxvi) The First Information as referred to U/S 154 Cr.P.C. seeks only to contain information relating to the commission of a cognizable offence, which is the foundation of the FIR. It is well settled law of the land that the FIR has not be an encyclopedia of the entire offence. It only has to reveal commission of an offence. Reliance is placed upon Superintendent of Police, CBI and others Versus Tapan Kumar Singh reported in 2003 SCC (Crl.) 1305. Further in Rajesh Bajaj Versus State of NCT of Delhi reported in 1999 Crl. L. J. 1833 (SC) Hon'ble Supreme Court has held in para clearly stating that -
"It is not necessary that a complaint should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor it is necessary that the revisionist should state in so many words that the intention of the respondent no.2 was dishonest or fraudulent. Splitting up of the two definition into the different components of the offence to make a meticulous scrutiny whether all the ingredients have been precisely spelled out in the complaint is not need at the state of investigation.
xxvii) That Hon'ble High Court in Subhkaran Laharuka & Anr.
State (Govt. of NCT of Delhi) & Anr. [2010 (3) JCC 1972 have passed the guidelines to be followed by MM's at Para 52A on page 2003 and 2004. The contents of (iv) is reproduced:
"(iv) off course, it is open to the Magistrate to proceed under Chapter XII or Code when an application under Section 156(3) of the code is also filed along with a complaint under Section 200 of the code of Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing an order to proceed under chapter XII, should not only satisfy himself the prerequisites 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 Revisionist nor can be produced by the witness on being summoned by the Court at the instance of revisionist and the matter is as such which calls for investigation by a state agency. The Magistrate must pass an order giving cogent reasons to why he intends to proceed under Section XII instead of chapter XV of the code. The impugned order does not pass an order which can stand the scrutiny and same is passed without substance and against the law of the land.
xxviii) That recently larger bench of Hon'ble Supreme Court in Lalita Kumari Versus Government of U.P. & Ors. (2014) 2 SCC 1, held:
(i) That registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the First Informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) Further as to what type of and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under"-
(a) Matrimonial dispute/family disputes
(b) Commercial Offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, e.g. over three month delay in reporting the matter without satisfactorily explaining the reason for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the respondent no.2 and the revisionist a preliminary inquiry should be made time bound and in any case it should not exceed seven days. The fact of such delay and the causes of it must be reflected in general diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, the Hon'ble Supreme Court directed that all information relating to cognizable offences, whether resulting in registration of FIR for leading to inquiry, must be mandatorily and meticulously reflected in the said Diary and decision to conduct a preliminary inquiry must also be reflected as mentioned above.
(ix) However, the clause (vii) was amended by the Hon'ble Supreme Court in Crl. M.P. No.5029 of 2014 and WRIT PETITION (CRIMINAL) NO.68 OF 2008 wherein clause vii of paragraph 111 of the judgment dated 12.11.2013 was modified in following manner. "Vii) while ensuring and protecting the right of the respondent no.2 and Revisionist a preliminary inquiry should be made time bound and in any case it should not exceed 15 days generally and in exceptional cases, by giving adequate reasons six week time is provided. The fact of such delay and the causes of it must be reflected in General Diary Entry."
5. A prayer has been made to set aside the impugned order.
SUBMISSIONS OF THE RESPONDENT NO.2
6. Respondent No.2 has placed on record written submissions alongwith a compilation of citations. The prayer made by the revisionist has been opposed.
DISCUSSION
7. This court has considered the above submissions. Records have also been considered.
8. In the present case, it has been noted by this Court that the Ld. Magistrate directed issuance of a notice to the SHO PS Jamia Nagar on the very first day of hearing (i.e. 16.10.2024) in the complaint mentioned above and put following queries to him:-
1. Whether any complaint has been made/received by the complainant in the police station.
2. If yes, whether any action has been taken on the complaint.
3. Whether as a result of investigation/inquiry, any cognizable offence has been made out against the accused person and whether any action has been taken by the police.
4. If yes, whether any FIR has been registered and status of investigation.
5. If no cognizable offence has been made out, whether the complainant has been informed accordingly.
9. In response, the SHO PS Jamia Nagar sent in the following report:-
"With regard, it is submitted that as per the contents of complaint, the alleged offence has been stated to be committed under the jurisdiction of P.S Saket. Therefore the complaint of Ms. Sadiqua Sadaf have already transferred to SHO/Saket through DCP South Distt. New Delhi. Vide Dy. No.429-W-LC/SHO/Jamia Nagar dated 03.10.2024. Hence, no action can be taken by this Police Station.
In view of above facts and circumstances mentioned above, it is therefore requested that SHO P.S Saket may be notice in this regard.
However, undersigned is ready to abide all the directions whichever will be passed by the Hon'ble Court. Report is submitted for kind perusal please."
10. It is further apparent from the records that after the receipt of above said report, the Ld. Magistrate directly proceeded to hear arguments in the application moved by the complainant u/s 175(3) of BNSS without seeking any further Action Taken Report from the concerned SHO. In the considered opinion of this Court, the Ld. Magistrate was under an obligation to seek an Action Taken Report before deciding the application u/s 175(3) of BNSS. Reliance is placed upon the observations made by Hon'ble High Court of Delhi in Alok Kumar Vs. Harsh Mendar 2023 SCC Online Del 4219, wherein the entire law regarding the exercise of jurisdiction u/s 156(3) Cr.P.C. (now Section 175(3) of BNSS) has been discussed and elaborated. In fact, the citation relied upon by the Ld. Magistrate in the impugned order also reflects the above fact. That being so, it would be appropriate that the Ld. Magistrate firstly seeks an Action Taken Report from the SHO concerned and then proceeds further to decide the application moved u/s 175(3) of BNSS by the complainant. Ordered accordingly. Consequently, the impugned order dated 16.12.2024 is hereby set aside. Matter is remanded back to the same stage when the impugned order dated 16.12.2024 came to be passed.
11. It is clarified that none of the above observations shall caste any shadow on the merits of the case.
12. With these observations, the revision petition stands disposed of. A copy of this order be forwarded immediately to the Ld. Magistrate concerned. TCR be also sent back.
13. This revision file be consigned to Record Room, as per rules.
Digitally signed by LOVLEEN LOVLEEN Date:
2025.04.22 Dictated and Announced 14:27:17 +0530 in open Court on 21.04.2025 (Lovleen) ASJ-03 (South East), Saket Courts, New Delhi