Suresh Sahu vs State & Ors.
2014 Latest Caselaw 3152 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL.M.C. 1788/2014

                                  Date of decision: 17th July, 2014

SURESH SAHU                                   ..... Petitioner
                            Through:     Mr. Mohit Chaudhary, Adv.


                            versus


STATE & ORS.                                    ..... Respondents
                            Through:     Mr. Yogesh Verma, APP for
                                         the State.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.' for short) read with Article 227 of the Constitution of India, the petitioner Suresh Sahu has challenged the order dated 28.2.2014 passed by learned District & Sessions Judge, South East, Saket Court, New Delhi whereby criminal revision filed by the petitioner was dismissed.

2. The facts of the case as borne out from the present petition are that the petitioner filed a complaint for the offences under Sections 420/467/468/471/406 and 34 IPC on the allegations, inter alia, that petitioner/ complainant is the landlord of the property bearing number D-402, Defence Colony, New Delhi and the respondents No.2 to 4 are the tenants. The respondents moved an application for conversion of the property from leasehold to freehold before L & D.O. and projected

Crl.M.C. No.1788/2014 page 1 of 5 themselves to be the owner /GPA Holder of the owner and obtained conversion and conveyance deed dated 12.4.2012 by playing fraud. It is further alleged that the property was owned by Mr. Satish Sahu, brother of the petitioner who expired on 20.2.1989. It is also alleged that the respondents have forged and fabricated the general power of attorney allegedly executed by the deceased Satish Sahu. The petitioner lodged a complaint dated 14.8.2012 but of no avail.

3. On an application filed under Section 156(3) Cr.P.C., the Metropolitan Magistrate called for status report. The police filed the status report stating that the FIR was not lodged since a civil suit with regard to the property in question is already pending in the High Court of Delhi. It was also mentioned that the accused persons are in occupation of the property for the last 46 years and also running their business from the said property. Vide order dated 12.7.2013, learned Metropolitan Magistrate, after considering the averments made in the complaint, dismissed the application under Section 156(3) Cr.P.C. and directed the petitioner to lead pre-summoning evidence.

4. Against the said order, the petitioner filed Criminal Revision No.131/2013 which was dismissed by learned District & Sessions Judge (South East), Saket Courts, New Delhi vide impugned order dated 28.2.2014.

5. Feeling aggrieved by the impugned order dated 28.2.2014, the petitioner has preferred the present petition.

6. Learned counsel for the petitioner contends that Mr. Satish Sahu, brother of the petitioner was the owner of the property D-402, Defence Colony, New Delhi. The respondents who were tenants in the said property forged the general power of attorney alleged to have been

Crl.M.C. No.1788/2014 page 2 of 5 executed on 10.12.1986 by late Shri Satish Sahu, who expired on 20.2.1989 and on the basis of the said forged and fabricated general power of attorney, the respondents moved an application for conversion of the property from leasehold to freehold before L & D.O. and a conveyance deed was obtained.

7. Learned counsel for the petitioner also submits that the petitioner filed a civil suit bearing CS(OS) No.2582/2012 for cancellation of illegal documents before this Court and the suit is pending.

8. Learned counsel for the petitioner further submits that respondents No.2 to 4 have committed offence and the police is bound to register the FIR.

9. It is a well settled law that when criminal complaint is filed before the Magistrate and upon perusal it is found that it discloses a 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 direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.

10. The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint

Crl.M.C. No.1788/2014 page 3 of 5 filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police, an FIR should be ordered to be registered.

11. In another case Gulab Chand Upadhyay vs. State (2002) Crl.L.J. 2907, it was held that 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.

12. The law governing the choice to be exercised from amongst the two options has been settled by this Court in M/s. Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD (Delhi). In the said case it was 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.

13. In Aleque Padamsee vs Union of India 2007 Crl. L.J. 3729 (SC), the Hon'ble Supreme Court observed 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.

Crl.M.C. No.1788/2014 page 4 of 5

14. In the instant case, the parties are known to each other. The evidence on which the petitioner relies is within his knowledge and control and if need were to arise for investigation, such possibility is not precluded as learned trial court has entered upon the inquiry under Sections 200 and 202 Cr.P.C. Proviso to Section 202 Cr.P.C. permit such investigation to be ordered at an appropriate stage of the proceedings.

15. From the upshot of the aforesaid discussion, I do not find any illegality or infirmity in the impugned order dated 28.2.2014 passed by District & Sessions Judge, South East, Saket Courts, New Delhi. The petition deserves to be dismissed and the same is hereby dismissed.

                                      (VED PRAKASH VAISH)
                                             JUDGE


July 17, 2014
aj




 Crl.M.C. No.1788/2014                                      page 5 of 5