Delhi District Court
Harjeet Singh Mendiratta vs The State (Nct Of Delhi) on 22 July, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Criminal Revision No. 11/13
ID No.: 02406R0003192013
Harjeet Singh Mendiratta,
R/o 823, Sector4, R.K. Puram,
New Delhi22. ........Revisionist
Versus
The State (NCT of Delhi) .......Respondent
Instituted on: 07.01.2013
Judgment reserved on: 22.07.2013
Judgment pronounced on: 22.07.2013
J U D G M E N T
1. This criminal revision petition was filed to question the correctness, legality and propriety of order dated 31.10.2012 passed by Shri Prashant Sharma, Metropolitan Magistrate06, Saket on the file of criminal case No. 06/2 of 2012 whereby the application of the petitioner seeking a direction to the police for investigation under section 156 (3) Cr.P.C was dismissed.
2. On notice, State has appeared to contest the revision petition.
3. The petition was part heard on 28.02.2013 and 14.05.2013. Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 1 of 7 The matter was adjourned for further arguments to be heard today. No one has appeared for the petitioner in spite of repeated calls since morning. It is 03.00 p.m. No good ground to wait further as the previous proceedings indicate that the petitioner has been trying to drag feet. I have perused the record.
4. The criminal complaint was presented by the petitioner alleging offences permissible under sections 200/419/463/465/ 468/469/470/420/511/120B IPC to have been committed by the persons who were shown in the array as accused Nos. 1 to
5. The allegations of the petitioner in the said complaint mainly were that a premium renewal notice had been received at his residence from the office of Birla Sunlife Insurance Company which brought out that his brother and sisters had played fraud with him and had been habitually misusing his residential address. He alleged that the said insurance company had wrongfully issued a life insurance policy in favour of Sonia Singh (sister of the petitioner), showing her residential address to be that of the residence of the petitioner. He alleged that the said sister Sonia Singh with his brother Gurjeet Singh Mendiratta had shifted on 25.09.2005 initially Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 2 of 7 to a house in Maidan Garhi and then have been residing in Malviya Nagar. The complaint indicated that the petitioner and his said siblings had been litigating in different courts since 2006 inter alia on allegations of forgery of certain documents. The petitioners speculated in the complaint that Sonia Singh might have given a wrong identity proof showing her residence as the place where the complainant has been residing.
5. The Ld. Magistrate considered the prayer for direction to the police for investigation into the case inter alia on the basis of status report which had been earlier called. The magistrate, however, was of the view that though direct allegations have been made it had not been indicated as to what evidence could be collected as could show dishonest intention on the part of the persons in question. Be that as it may, the magistrate was of the opinion that it was not a case where investigation under section 156 (3) Cr.P.C deserves to be ordered. Thus, vide his order dated 31.10.2012 he declined to grant such a direction. \
6. It may be noted here that vide the corresponding order recorded on the same date, the magistrate decided to take cognizance and inquire into the matter under sections 200/202 Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 3 of 7 Cr.P.C since he listed the case for presummoning evidence to be adduced.
7. Aggrieved with the above order, the petitioner has come up with the revision petition insisting that investigation under section 156 (3) Cr.P.C should have been directed.
8. When a criminal complaint is filed before a Magistrate and upon perusal, it is found to disclose cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such directions would stay his hand till the report under Section 173 Cr.P.C. is submitted by the investigating police, on which further process of law would follow.
9. The law governing the choice to be exercised from amongst two options has been more or less settled. The Hon'ble Delhi High Court in the judgment M/s Skipper Bevrages Vs. State Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 4 of 7 2001(2) JCC (Delhi) 67 held that "a Magistrate must apply his mind before passing an order under Section 156(3) Cr.P.C. 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 the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts".
10.To the same effect are the observations of the Hon'ble High Court of Allahabad in the judgment titled as Gulab Chand Uapdhyaya Vs. State of UP 2002 Crl. L. 2907. The use of the word "may" in Section 156(3) Cr.P.C. in contradistinction to the word "shall" in Section 154 Cr.P.C. clearly indicates that the Magistrate has the discretion to refuse registration of FIR.
11. Thus, the Magistrate is not supposed to act mechanically and direct registration of 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. There has to be substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 5 of 7 commission of a cognizable offence requiring thorough investigation by the police, that an FIR should be ordered to be registered.
12.The power under Section 156(3) Cr.P.C no doubt exists. But the same is not to be exercised mechanically on the mere filing of a complaint alleging that police has failed to register an FIR. In fact, Hon'ble Supreme Court of India in Aleque Padamsee Vs. Union of India 2007 Crl. L.J. 3729(SC) held that 'when the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code.'
13.From the narration in the criminal complaint, it appears that the case has been brought before the Metropolitan Magistrate merely on conjectures and without effort by the petitioner to collect the necessary facts. But then, given the fact that the Ld. Magistrate has opted to take cognizance and proceed with a formal inquiry under sections 200/202 Cr.P.C, the further Crl. Rev. No. 11/13 Harjeet Singh Mendiratta Vs. State Page No. 6 of 7 process should ideally be left to the judicial wisdom of the said court. On the question of direction under section 156 (3), I am of the opinion that the view taken by the Ld. Magistrate cannot be faulted. In absence of clarity, it cannot be said as to what line of probe necessitates direction to the police under section 156 (6) Cr.P.C. The broad facts are within the knowledge of the petitioner which he can adduce in his evidence under section 200 Cr.P.C before the Ld. Magistrate. As observed in the impugned order, if need arises in due course, suitable specific directions for investigation can always be ordered under section 202 Cr.P.C.
14. The petition is, thus, devoid of substance. It is dismissed.
15.Trial court record along with a copy of this judgment be sent back.
16.File of the criminal revision petition be consigned to Record Room.
Announced in open Court today on this 22nd day of July, 2013. (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi.
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