Gopal Krishan Dua vs State
2009 Latest Caselaw 969 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI


                CRL.REV. P. No. 571 of 2008 & CRL M A 12229/2008

                                           Reserved on: February 12, 2009
                                           Date of decision: March 25, 2009


        GOPAL KRISHAN DUA                             ..... Petitioner
                         Through: Mr. Vijay Aggarwal with Mr. Vishal
                         Garg and Ms. Aanchal, Advocates

                      versus


        STATE                                                    ..... Respondent
                               Through: Mr. Asim Naeem, Advocate for the
                               complainant.
                               Mr. Jaideep Malik, APP for State.

        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR

                1. Whether Reporters of local papers may be
                allowed to see the judgment?                        No
                2. To be referred to the Reporter or not?           Yes
                3. Whether the judgment should be reported          Yes
                in Digest?


                               JUDGMENT

1. This revision petition under Section 397 read with Sections 401/482 and 483 of

the Code of Criminal Procedure, 1973 („CrPC‟) and Article 227 of the Constitution

of India is directed against the order dated 14th August 2008 passed by the learned

Metropolitan Magistrate („MM‟), New Delhi rejecting the application filed by the

Petitioner under Section 156 (3) CrPC.

2. The background to the filing of the aforementioned case is that FIR No. 356 of

2007 was registered against the Petitioner under Sections 406/498A/506 of the

Indian Penal Code („IPC‟) at the instance of the Petitioner‟s wife, pursuant to an

application filed by her under Section 156 (3) CrPC. It is stated that pursuant to

the registration of the said FIR the Petitioner filed an application for anticipatory

bail which came to be dismissed by this Court on 14 th May 2008. Aggrieved by the

said order the Petitioner filed a Special Leave Petition (Crl) No. 4222 of 2008.

While directing notice to issue in the SLP the Supreme Court directed that the

Petitioner will not be arrested.

3. According to the Petitioner, after the dismissal of the bail application by this

Court he ceased to stay at the matrimonial home at W-108, Greater Kailash-II,

New Delhi where his wife and two children were residing. The Petitioner states

that on 29th May 2008 he reached the aforementioned premises at about 7.30 pm

and was sitting in the lobby when his wife called the police asking the Petitioner to

be arrested. Thereafter the Petitioner was taken to the police station. After the

police was shown the stay order dated 27th May 2008 by the Petitioner‟s lawyer,

the Petitioner was released on the same day. When he returned to the premises at

about 10.10 pm, he was restrained by his wife from entering the house. He

immediately informed the police about this incident, but no action was taken.

Thereafter on 17th June 2008 when he visited the house, he was shocked to see that

all his belongings had already been removed by his wife. On the above averments

the Petitioner filed a complaint with the police on 23rd July 2008. When no action

was taken by the police the Petitioner filed a Complaint Case against his wife in

the court of the learned MM under Section 200 CrPC together with an application

under Section 156 (3) CrPC.

4. Dismissing the application under Section 156 (3) CrPC, the learned MM passed

the following order on 14th August 2008:

"14.08.2008

Present: Complainant with counsel.

SI K.P. Singh, PS C.R. Park present. He filed the status report. I have heard the argument on the application moved u/s 156 (3) CrPC.

As per the status report the Accused No.1 Rajni Dua is not allowing her husband to enter into his own house. Having heard the submissions of the complainant, I observe that the allegations leveled against the accused are outcome of the matrimonial dispute arisen between the complainant and accused No.1. No specific allegations have been leveled against the accused No.2.

Matter seems to be purely of civil nature. Already several complaints are pending for and against the parties. I am of the considered view that no investigation is required to be conducted in this case. No recovery is to be effected. Therefore, I feel that there is no need to pass an order for registration of F.I.R. under Section 156 (3). Hence the application is dismissed.

Matter is fixed for C.E. on 20.10.2008."

5. During the pendency of this petition, a status report was filed by the police in

this Court on 24th November 2008 which it was stated that during the investigation

in FIR No. 356 of 2007 under Sections 498-A/406/506 IPC the wife remained in

the same house with two kids. However, the petitioner absconded with a view to

avoiding arrest. He returned after the order staying his arrest was passed by the

Supreme Court but was taken away by the police at the instance of the wife. The

status report recorded that the complainant has thereafter been residing in a guest

house and that his wife Respondent was not allowing him to enter the house.

6. It appears that subsequently the wife filed a petition under Section 12 of the

Protection of Women from Domestic Violence Act 2005 („PWDV Act‟) alleging

that she and the two children had been forcibly dispossessed of the house in

question by the Petitioner along with 6 or 7 persons. This Court has been shown a

copy of an order dated 14th January 2009 passed by the learned MM in the said

petition directing that the wife and the two children should be given "safe re-entry

and repossession" of the house by the SHO, Chittaranjan Park and directing

removal of all persons, other than the Petitioner herein, from the said house.

7. Mr. Vijay Aggarwal, learned counsel appearing for the Petitioner submits that

given the nature of the allegations made by the petitioner in his complaint, an order

ought to have been passed under Section 156 (3) CrPC by the learned MM

directing the police to register a case and investigate the crime. It is pointed out

that the learned MM erred in observing that no recovery is to be effected since

there are specific allegations in the complaint that the Petitioner found his personal

belongings missing when he went back to the matrimonial home. Reliance is

placed upon the judgments of the Supreme Court in Suresh Chand v. State of

Madhya Pradesh (2001) 1 AD (Crl) SC 34, Chitra Narain v. M/s. NDTV 2004

Crl LJ 2818, Anil Bhardwaj v. The State 1985 Crl L J 613 and Ram Babu Gupta

v. State of Uttar Pradesh 2001 Crl L J 3363 to contend that it is obligatory on the

police to investigate cognizable offences. The gist of the above decisions is this.

When the Magistrate receives a complaint and the facts alleged therein disclose the

commission of an offence, the learned MM is not always bound to take

cognizance. He may either take cognizance under Section 190 or may forward the

complaint under Section 156 (3) to the police for investigation. If on a reading of

the complaint the Magistrate finds that the allegations therein disclose the

commission of a cognizable offence, he should forward the complaint under

Section 156 (3) CrPC to the police for investigation as that will be conducive to

justice and the valuable time of Magistrate will be saved in inquiring into the

matter.

8. It is further submitted that in Ram Babu Gupta it was held by the Supreme

Court that the power to order investigation under Section 156 (3) is different from

the power under Section 202 (1) CrPC to direct investigation. The two operate in

distinct spheres and at different stages. The power under Section 156 (3) is

exercisable at a pre-cognizance stage whereas the power under Section 202 (1)

CrPC is at the post-cognizance stage. Once the Magistrate has taken cognizance of

the offence, it is not within his competence to revert to the pre-cognizance stage

and invoke Section 156 (3) CrPC. It is therefore submitted that it would be no

answer to the complainant that the learned MM can always invoke the powers

under Section 202 CrPC if he requires any inquiry to be undertaken by the police at

the post-cognizance stage. It is further submitted that the accused cannot be

compelled to make any statement at even the post-cognizance stage which is self-

incriminating. It is submitted that given the nature of the complaint, the recovery of

the stolen goods will not be possible unless the FIR is registered, the respondent is

made an accused and subject to custodial interrogation.

9. The submissions of learned counsel for the Petitioner have been considered.

The background to the present case reveals that the Petitioner is facing criminal

proceedings instituted against him by his wife for the offences under Sections

498A/406/506 IPC. The Supreme Court granted a stay of arrest of the Petitioner by

its order dated 27th May 2008. The incident leading to the present complaint by the

husband took place two days thereafter. It is plain that given the fact that the

parties were already at loggerheads, there were bound to be conflicting versions of

the incident of 29th May 2008 as well as the subsequent events. The police

therefore understandably stayed their hands at that stage. Although in the status

report filed before this Court it is mentioned that the wife was not permitting the

petitioner to enter the house in question, the orders passed by the learned MM in

the petition filed by the wife under Section 12 PWDV Act shows that, according to

her, she and the children were forcibly from the house by the Petitioner and some

other persons. While this Court is not pronouncing on the correctness of either

version, since in any event that would be subject matter of the proceedings under

the PWDV Act, the reluctant of the police to immediately register an FIR in the

matter is understandable.

10. The contention of learned counsel for the Petitioner that it was obligatory for

the police to straightaway register an FIR and thereafter investigate the cognizable

offence, does not account for the decisions of the Supreme Court which permit to

the police to conduct a preliminary inquiry before proceeding to register an FIR.

The observations of the Supreme Court, in the context of complaints against public

servants, in P.Sirajuddin v. State of Madras (1970) 1 SCC 595 (at p.602) was

cited with approval in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335.

Further the Supreme Court referred to an earlier decision with approval in the

following passage in Bhajan Lal (SCC, p.371):

"Mudholkar, J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi (1964)3 SCR 71 at p. 86 while agreeing with the conclusion of Subba Rao, J. (as he then was) has expressed his opinion stating: (SCR pp. 86-

87) "In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it."

79. We are in agreement with the views, expressed by Mitter, J. and Mudholkar, J. in the above two decisions."

11. Particularly in the context of matrimonial disputes, it is an accepted practice for

the police to conduct a preliminary inquiry before proceeding to register an FIR.

The Crimes Against Women Cell (CAW) does precisely that. Although the

offences are cognizable in nature, it is only after a stage is reached when either no

reconciliation is possible or it is not possible to make any headway due to non-

cooperation of the party against whom the complaint has been made that an FIR is

registered.

12. The decision of the learned MM in the present case declining to issue a

direction to the police under Section 156 (3) CrPC and instead fixing the case for

the recording of the complainant‟s evidence, reflects the cautious approach that is

necessary in matrimonial disputes. The judgments cited by learned counsel for the

Petitioner in fact require the learned MM to be cautions while taking proceeding to

take cognizance of an offence on a complaint. The learned MM had the discretion

to either forward the complaint to the police for registering an FIR or decide to

direct the complainant‟s evidence to be recorded. The decision of the learned MM

to opt for the latter course cannot, in the facts of the present case, be held to be

erroneous or illegal.

13. Learned counsel for the Petitioner repeatedly urged that given the allegations of

theft and criminal misappropriation by the wife of the husband‟s goods the

coercive process of law required to be invoked. Shorn the legal nicety, the purport

of this submission was that the wife should be arrested and subjected to custodial

interrogation for recovering the husband‟s goods. Given the background of the

case, if the learned MM in his discretion decided not to permit the husband to use

the coercive process of the criminal law to get back at his wife, it cannot be said

that his decision was illegal.

14. It is needless to state that if the learned MM after considering the pre-

summoning evidence, proceeds to take cognisance, and at the post-cognizance

stage considers it necessary to require further investigation or inquiry to be

undertaken before issuing process to the accused, it would be open to the learned

MM to invoke the powers under Section 202 CrPC. However, since the instant

case is still at the pre-cognizance stage it is premature to speculate about the course

that the learned MM should adopt.

15. For the aforementioned reasons this Court finds no illegality in the impugned

order dated 14th August 2008 passed by the learned MM. The petition is,

accordingly, dismissed. The pending application also stands dismissed.

S. MURALIDHAR, J.

MARCH 25, 2009 rk