Delhi District Court
Sajida Begum vs State on 15 November, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 225 of 2021
CNR No. DLSE01-009796-2021
IN THE MATTER OF:
Sajida Begum,
W/o Naseem Ahmed,
R/o C-17, Okhla Vihar,
Jamia Nagar, New Delhi-110025
.......Revisionist
Versus
1. State
(Govt. of NCT of Delhi)
2. Sufiyan Khan,
S/o Irfan Khan,
R/o P-103, Batla House,
Jamia Nagar, New Delhi-25
3. Shezad,
S/o NOT KNOWN
R/o NOT KNOWN
(Property Dealer in locality of Jamia Nagar)
4. Shadab,
S/o Irfan Khan,
R/o Property No.83,
Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 1 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.11.15
16:33:15 +0530
Fourth Floor, Floor Back Side,
Gali No.22, Zakir Nagar, Okhla, New Delhi-110025
5. Osama,
S/o Irfan Khan,
R/o Property No.83,
Fourth Floor, Floor Back Side,
Gali No.22, Zakir Nagar, Okhla, New Delhi-110025
........Respondents
Instituted on : 15.11.2021
Reserved on : Not reserved
Pronounced on : 15.11.2021
JUDGMENT
1. By way of the instant revision, revisionist takes exception to the order dated 17.04.2021, whereby her application under section 156(3) Cr.P.C in case bearing Ct No. 155/2021 titled as Sajida Begum Vs. Mohd Sufiyan Khan, stood dismissed by Ld. Metropolitan Magistrate-08, South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld. Trial Court in the impugned order are not in dispute and the same are being reproduced for the sake of convenience:-
"The said application has been filed by applicant/ complainant stating therein that she is the owner of property bearing no. 83, gali no. 22, Zakir Nagar, Okhla, New Delhi. That in September 2017, the said property was given on rent by applicant/ complainant to respondent no. 1 for a period of 11 months vide lease deed dated 18.09.2017. That respondent no. 1 stopped paying rent and handed over possession of the property Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:33:26 +0530 to respondent no. 3. That respondent no. 3 is not vacating the said property and has also threatened to kill the complainant. That on 01.12.2019, respondent no. 4 gave beatings to son of the complainant and threatened to kill them. That complainant gave a complaint dated 28.02.2020 to the police in this regard. That no action was taken on the said complaint. Hence, the present application."
3. Respondent no.2 is the lessee of the property in question, respondent no.3 is the property dealer through the transaction of lease took place whereas respondent no.4 is alleged to be the trespasser, to whom the property was handed over illegally by respondent no.2.
4. Action Taken Report was filed by concerned Inquiry Officer, Police Station Amar Colony before concerned Court, wherein the matter was reported to be civil in nature and no cognizable offence was found to have been made out in the instant matter.
5. Vide impugned order, the application under section 156(3) Cr.PC stood dismissed by concerned court. The relevant observations of Ld Magistrate is reproduced as under :-
" It has been argued by Ld. Counsel for the applicant that since accused persons have trespassed into the house of complainant and criminally intimidated the complainant and his family, it was obligatory for the police to lodge FIR in the present matter. However, I do not find myself to be in agreement with this submission. All the details of the alleged offence are within the knowledge of applicant. Ld. Counsel for applicant submits that applicant is not aware of details of persons who have trespassed into her property. However, perusal shows that all the details of the said persons have been mentioned by the applicant in the memo of parties. Thus, it appears that applicant is well aware of identities of the accused persons. Allegations levelled against the accused persons and nature of fact as narrated in the present application are not complex in nature. No police investigation is required to be conducted in this regard. Hence, I do not deem it necessary to order registration of FIR. I place reliance on the case of M/S. Skipper Beverages Pvt. Ltd. vs State [92 (2001) DLT 217] in this Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:33:35 +0530 regard, wherein it was held that "it is true that Section 156(3) of the Code empowers a 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 orders under Section 156(3) of the Code. The 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 the 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 the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
In view of the above discussion, prayer for registration of FIR is hereby declined. Application stands disposed off accordingly. However, applicant is given an opportunity to prove his case by leading evidence. I take cognizance of offence u/s 200 Cr.P.C. Put up for PSE / FP on 01.06.20."
6. Revisionist is aggrieved with the said order and has assailed the impugned order on various grounds which can be summarized as under :-
i) That the impugned is against the settled principle of law and as such same is bad as well as based on conjectures, surmises and imaginations;
(ii) That Ld Trial Court failed to considered the facts and circumstances of the present case and has erroneously held that all the fact are in the knowledge of revisionist;
(iii) That Ld Trial Court erred in dismissing the application under section 156(3) Cr.PC;
(iv) That Ld Trial Court failed to appreciate the fact that complaint discloses commission of cognizable offence;
7. Ld. counsel for the revisionist addressed arguments on the line of grounds as taken in the instant revision petition. He forcefully Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:33:44 +0530 argued that the impugned order is not sustainable in the eyes of law as Ld Magistrate was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
8. I have heard contentions of Ld counsel for revisionist and perused the record.
9. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
10. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 5 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.11.15
16:33:53 +0530
11. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
12. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:34:01 +0530 of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
13. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
14. After going through the records and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that the identities of respondents/accused are well known to the revisionist. In my view, the entire evidence is within possession of revisionist and no investigation by police is required for collection of any evidence.
15. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:34:10 +0530
16. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
17. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 8 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:34:21 +0530 "9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
18. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
19. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:34:30 +0530 this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate. Ld counsel for revisionist has failed to point out any patent illegality or jurisdictional error in the impugned order.
20. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in her. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 17.04.2021. The revision petition stands accordingly dismissed.
21. TCR be sent back to Ld Trial Court along with copy of this judgment.
22. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.11.15 16:34:41 +0530 Announced in the open (ANUJ AGRAWAL) Court on 15th November 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 225 of 2021 Sajida Begum Vs State & Ors Page No. 10 of 10