Suresh Chand Dahiya vs State
2014 Latest Caselaw 2219 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+   CRL.M.C. No. 2074/2014

                               Date of decision: 02nd May, 2014

    SURESH CHAND DAHIYA                           ..... Petitioner
                Through:              Mr. Nitin Khanna, Adv.


                          versus
    STATE                                        ..... 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. 6979/2014(exemption) The application is allowed subject to just exceptions. Application is disposed of accordingly. Crl.M.C. No. 2074/2014

1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.') against the order dated 15.2.2014 passed by learned Additional Sessions Judge-07, (Central), Tis Hazari Courts, Delhi whereby revision petition filed by the petitioner was dismissed.

2. The petitioner filed a complaint under Section 200 Cr.P.C.

against Shri Subhash Chand Jain and Smt. Santosh Gupta. The case of the petitioner is that the mother of the petitioner was a joint owner of agricultural land measuring 85 bighas and 5 biswas situated in Village Karala, Delhi vide Khatoni

No.123/270 for the year 1997-1998.

3. The prospective accused namely Shri Subhash Chand Jain and Smt. Santosh Gupta claimed to have purchased 27 bighas and 13 biswas of the said land from the mother of the petitioner, Late Smt. Chhotto Devi and from maternal grand father of the petitioner namely Shri Kaila, who was joint owner of the said land.

4. The prospective accused No.2 Smt. Santosh Gupta is known to Subhash Chand. The mother of the petitioner, Late Smt. Chhotto Devi executed sale deed in favour of the prospective accused persons namely Subhash Chand Jain and Smt. Santosh Gupta which was registered as under: A. Sale deed dated 2.8.1989 registered vide document No.8817, Addl. Book No.1, volume No.6160 at pages 84 to 87 executed on 2.8.1989, registered on 8.8.1989.

B. Sale deed dated 7.6.1989, registered vide document No.6520, Addl. Book No.1, Volume No.6160 at pages 126-129 .

C. Sale deed dated 1.11.1989, serial No.11615,

to 45 registered on 01.11.1989.

D. Sale deed dated 1.11.1989, Serial No.11616, Addl. Book No.1, Vollume No.6226 at pages No.46 to 50 registered on 1.11.1989.

5. The petitioner was living with his mother and during her life time, she told the petitioner that she had never visited the office of Sub-Registrar, Kashmere Gate, Delhi in connection with the registration of sale deeds in favour of Subhash Chand Jain and/or in favour of Smt. Santosh Gupta.

6. Since different persons started claiming ownership on the basis of documents executed by Subhash Chand Jain,

therefore, the petitioner along with his brother Ram Chander went to the office of Sub Registrar, Kashmere Gate to ascertain the thumb impressions of petitioner's mother on the said documents, in the month of May, 2011. The petitioner obtained certified copies of the sale deeds on 16.5.2011. On perusal of the said sale deeds, the petitioner noticed that thumb impressions of person purported to be of the petitoner's mother are blurred and were having different thumb impressions on different pages of the sale deeds. The petitioner moved an application dated 7.2.2012 in the office of D.C., North seeking permission to check and compare the same through some handwriting expert but they refused to get the same checked through handwriting expert on the pretext that they will permit only a police officer and refused to check the same from handwriting expert.

7. The petitioner has also alleged that the blurred thumb impressions are affixed fraudulently in connivance with the staff of office of Sub-Registrar. Thereafter, the petitioner submitted complaint to the DCP, District North, Delhi as well as to the SHO, P.S Kashmere Gate on 9.5.2012 for registration of the case but the officers did not register the case. Hence the petitioner filed a complaint for the offence punishable under Sections 419/420/465/468/471/34 IPC.

8. The petitioner filed an application under Section 156(3) Cr.P.C. and the Magistrate called for Action Taken Report (ATR) from Police Station, Kashmere Gate. The police officials submitted the Action Taken Report and in it, it was stated that the complainant was asked to give some substance to his application during inquiry but he failed to do so. The

complainant also failed to justify as to why he did not file the present complaint in the life time of his mother. It was also mentioned in the status report that the matter concerned is within the jurisdiction of Sub-Registrar under Section 83 of the Registration Act and, therefore, FIR in the present matter was not registered. The application under Section 156(3) was dismissed by learned Metropolitan Magistrate (Central), Tis Hazari Court, Delhi vide order dated 13.12.2013 and the petitioner was directed to adduce pre-summoning evidence. Against the said order the petitioner filed revision petition which was dismissed by learned Additional Sessions Judge (Central), Tis Hazari Court, Delhi vide impugned order dated 15.2.2014.

9. I have given my thoughtful consideration to the contentions raised by the counsel for the petitioner in the light of facts and circumstances of the case.

10.It is well settled that when the 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.

11.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.

12.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.

13.The well settled guidelines are laid down by this Court in respect of invoking provisions of Section 156(3) Cr.P.C. in Subhkaran Luharuka vs. State, (170) 2010 DLT 516, in para 52A, the guidelines have been summarized as under:- "52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:-

(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for

recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO,

(ii) or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.

(iii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.

Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.

(iv) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint,

recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.

(v) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint.

However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-

requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."

14.Thus, the Magistrate is not suppose 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 through investigation by the police, an FIR should be ordered to be registered.

15.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.

16. In view of the aforesaid facts and circumstances of the case, there is no illegality or infirmity in the impugned order dated 15.2.2014 passed by learned Additional Sessions Judge, (Central), Delhi.

Thus, the petition is hereby dismissed.

V.P.VAISH, J MAY 02, 2014 aj