Shri Raj Kumar Goel vs Shri Bhagwan Singh & Ors.
2014 Latest Caselaw 3162 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL.M.C. 1966/2014

                                    Date of decision: 17.7.2014

SHRI RAJ KUMAR GOEL                                         ..... Petitioner
                  Through:                  Mr. C.P. Wig, Adv.


                              versus


SHRI BHAGWAN SINGH & ORS.                                     ..... Respondents
                 Through: None.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. By filing the present petition under Article 227 of the Constitution of India challenging the order dated 26.02.2014 passed by learned Additional Sessions Judge-04, West Delhi, Tis Hazari Courts, Delhi whereby the criminal revision petition filed by the petitioner was dismissed.

2. In short, the facts of the case are that the petitioner herein filed a complaint for the offence under Sections 147/149/327/352/448/452/ 506 IPC. An application under Section 156(3) Cr.P.C. was also filed on behalf of the petitioner seeking direction to the SHO for registration of FIR. The petitioner has been running chit fund known as `committee' and respondents No.1, 4 and 6 were members of the said committee. The petitioner suffered losses due to the fault of members and, therefore, the said business was closed in the year, 2009. On

22.02.2012 the respondents forcibly entered in the house of the petitioner and attacked the petitioner and his wife and gave beatings to them. The respondents also abused and threatened the petitioner. The petitioner called PCR. PCR officials reached the spot but no action was taken against the respondents.

3. Vide order dated 6.12.2012, learned Metropolitan Magistrate-08, Tis Hazari Court, Delhi dismissed the application under Section 156(3) Cr.P.C. and directed the petitioner to lead pre-summoning evidence. Against the said order, the petitioner filed criminal revision petition No.17/2003 which was dismissed by learned Additoinal Sessions Judge (West), Tis Hazari Courts, Delhi vide impugned order dated 26.2.2014.

4. Aggrieved by the said order, the petitioner has preferred the present petition.

5. Learned counsel for the petitioner urges that the allegations made in the complaint discloses a cognizable offence and the police is bound to lodge the FIR. Relying upon the judgment in Laxminarayan Gupta vs. Commissioner of Police 2006(2) JCC 1058. Counsel for the petitioner contended that the trial court should have directed the SHO to register the FIR.

6. 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.

7. 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 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.

8. 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.

9. 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.

10. 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.

11. In view of the aforesaid discussion, there is no illegality and infirmity in the impugned order dated 26.02.2014 passed by learned Additional Sessions Judge-04, West Delhi, Tis Hazari Courts, Delhi and the order dated 6.12.2012 passed by the Metropolitan Magistrate- 08 (W), Tis Hazari Courts, Delhi

12. Accordingly, the petition is dismissed.

(VED PRAKASH VAISH) JUDGE

July 17, 2014 aj