Delhi High Court
Satyender Tewari vs State & Ors. on 20 December, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 13th December, 2010
Date of Order: 20th December, 2010
+ W.P.(Crl.) No. 1233/2010
% 20.12.2010
Satyender Tewari ... Petitioner
Through: Mr. Ajay Rai, Advocate
Versus
State & Ors. ... Respondent
Through: Mr. Akshay Bipin, ASC with
Mr. Virender Singh, SI
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By this petition under Article 226 of the Constitution of India read
with Section 482 Cr.P.C. the petitioner has prayed this Court to issue a writ of
mandamus directing respondents no. 1 & 2 to register a case against
respondents no. 3 to 8 and has also prayed for setting aside order dated 21 st
June, 2010 passed by the learned Additional Sessions Judge Shri J.P.Aryan
in Criminal Revision No. 39/2009.
2. Brief facts relevant for the purpose of deciding this petition are
that petitioner filed an application under Section 156(3) Cr.P.C. before the
learned Metropolitan Magistrate for getting an FIR registered against
respondents No. 3 to 8. The learned MM vide his order dated 27 th November,
2009 declined to send the complaint of petitioner for registration of FIR and
instead asked the petitioner to lead evidence before him. Against this order,
the petitioner preferred a revision petition which was dismissed by the learned
ASJ vide order dated 21st June, 2010 and the learned ASJ observed that
under Section 156(3) Cr.P.C. the Magistrate has not to act in a mechanical
manner and send every complaint made before him to police for registration
of FIR and this power has to be exercised judiciously by the learned MM and
in those cases where allegations are not such that there should be necessity
of police investigation and the complainant was in possession of the evidence
to prove his allegations, the Magistrate can ask him to examine his witnesses
before him. The learned ASJ observed that in the case of petitioner he could
examine himself on oath and could examine supporting evidence which he
desired to adduce. He therefore declined to interfere with the order passed by
the learned MM.
3. The contention of the petitioner is that once petitioner filed a
complaint before the SHO, SHO is bound to register an FIR irrespective of the
fact that whether the allegations made in the complaint were truthful or false
and he (SHO) is bound to start investigation after registration of FIR.
Similarly, when a person makes an application under Section 156(3) Cr.P.C.
before MM, MM has no option but to refer complaint to SHO for registration of
FIR. He submitted that in this case he initially filed a complaint before the
learned MM under Section 156(3) Cr.P.C., this complaint was dismissed on
the ground that he had not even approached the police for registration of FIR.
He then approached police for registration of FIR. FIR was not registered.
He again approached learned MM and learned MM instead of sending his
complaint for registration of FIR asked him to lead evidence. He submitted
that the learned MM should have directed for registration of FIR.
4. The purpose of giving powers to Metropolitan Magistrate under
Section 156(3) Cr.P.C. is not to convert MM into a post office for sending
complaints to police for registration of FIRs. Section 156(3) Cr.P.C. gives
powers to the MM that he may order an investigation to be done by in-charge
of police station in a case, where he was empowered under Section 190
Cr.P.C to take cognizance. Section 190 Cr.P.C gives powers to Magistrate
upon receiving a complaint of facts which constitute offence to take
cognizance of the offence. Thus, it is only in those cases, where MM can take
cognizance of the offence on a complaint, that he may order investigation of
the complaint by SHO. If the learned MM cannot take cognizance of the
offence mentioned in the complaint, he cannot order registration of FIR also.
Undisputedly, in this case the alleged incident about which FIR was sought to
be registered had taken place in 2005 & March, 2006. Complaint was made
to learned MM in 2009. The offence alleged by the petitioner was under
Section 166/167/343/466 & 471 IPC. Section 166 IPC is a non-cognizable
offence and the punishment is simple imprisonment up to one year thus the
limitation for taking cognizance for this offence is one year. Under Section
167 IPC, the maximum sentence is up to three years with fine again issue of
limitation would arise and since the limitation for taking cognizance for this
offence is three years. Under Section 343 IPC the maximum imprisonment is
for two years again issue of limitation would arise. Section 466 and Section
467 IPC invite imprisonment up to seven years and 10 years respectively
however, the allegations made in this case are about bringing accused in
Rajdhani Express on a ticket of someone else and forging official documents
to show that the accused was arrested on some other day then the date of his
actual arrest. All these allegations have been made by the petitioner after
three years of commission of offence and I consider that the learned MM had
discretion either to refer the matter to police for investigation or to entertain
the complaint and ask the petitioner to lead evidence.
5. It cannot be said that the only course available to the Magistrate
was to send the complaint for investigation to the police/SHO and get an FIR
registered. The plea taken by the petitioner that Magistrate is bound to send
every complaint for registration of FIR is not tenable. I find no force in this
petition. The petition is hereby dismissed.
December 20, 2010 SHIV NARAYAN DHINGRA, J.
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