Mst Qamar Jahan vs The State(Govt Of Nct Of Delhi)
2014 Latest Caselaw 3256 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.M.C. No. 2724/2014

                  Date of decision: 22nd July, 2014

MST QAMAR JAHAN                                   ..... Petitioner
                          Through: Mr. Kaushal Kaushik, Adv.

                          versus

THE STATE(GOVT OF NCT OF DELHI)          ..... Respondent
                  Through: Mr. Navin Sharma, APP
                          for the State


CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

Crl.M.A. No.9129/2014 (exemption) The application is allowed subject to just exceptions. Application is disposed of accordingly.

Crl.M.C. No.2724/2014

1. By way of this petition under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.') the petitioner seeks setting aside of the impugned order dated 28.4.2014 passed by learned Additional Sessions Judge, Delhi in Crl.Rev. No.63/2014 titled `Qamar Jahan vs. State & Ors.' whereby the revision petition was dismissed.

2. Shorn off the unnecessary details, the facts of the case are that the petitioner filed a complaint for the offence under Sections 420/468/471/120B/34 IPC and an application under Section 156(3) Cr.P.C. praying for registration of FIR.

3. On the application under Section 156(3) Cr.P.C., the Metropolitan Magistrate called for the status report. The police filed status report stating that the matter is subjudice before civil court. Vide order dated 16.3.2012, learned Metropolitan Magistrate dismissed the application under Section 156(3) Cr.P.C. and directed the petitioner to lead pre-summoning evidence.

4. Subsequently the petitioner filed a revision petition bearing Crl.Rev. No.63/2014 which was dismissed by learned Additional Sessions Judge, Central, Tis Hazari Courts, Delhi vide impugned order dated 28.4.2014.

5. Feeling aggrieved by the said order, the petitioner filed the present petition.

6. Learned counsel for the petitioner submits that one Mr. Chhota sold the half portion of the property bearing No.4234-35, Gali Shahtara, Ajmeri Gate, Delhi admeasuring 261 sq. yards to one Parma Chand and Itwari Lal vide registered sale deed dated 30.6.1960 and remaining half portion of the said property was sold by Smt. Heero, wife of late Chhota and other legal heirs of Chhota to Haji Kallu in the year 1974-1975. Sh. Parma Chand and the legal heirs of Shri Itwari Lal, namely, Padam Singh and Chatar Singh further sold the entire half portion of the said property to the petitioner vide sale deed dated 30.6.1960. He also submits that on 21.10.2010 Parmachand and legal heirs of Itwari Lal sent a notice to Bafatan and Allah Wala stating that they have sold their share in the said property to Mst. Qamar Jahan vide sale deed dated 11.10.2010.

7. Learned counsel for the petitioner further submits that the general power of attorney in favour of Smt. Heero Devi which was purported to have been executed by the legal heirs of late Shri

Chota is a forged document and the police is bound to register the FIR.

8. 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.

9. 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.10. In case Gulab Chand Upadhyay vs. State of U.P. (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.

10.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. A similar view was taken in Meankshi Anand Sootha vs State, 2007 (4) JCC 3230 Delhi.

11. 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.

12. 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.

13. In the light of the aforesaid discussion, there is no illegality or infirmity in the impugned order dated 28.4.2014 passed by learned Additional Sessions Judge, Central, Tis Hazari Courts, Delhi and

the order dated 16.3.2012 passed by learned Metropolitan Magistrate, Central, Tis Hazari Courts, Delhi.

14. Accordingly the petition is dismissed.

(VED PRAKASH VAISH) JUDGE JULY 22, 2014 aj