Smt Pankjani Swain vs State (Nct Of Delhi) & Ors.
2014 Latest Caselaw 2552 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. No.2755/2013

                                Date of decision: 20th May, 2014

SMT PANKJANI SWAIN                                 ..... Petitioner
                 Through:              Mr. Partap Singh, Adv.

                   versus
STATE (NCT OF DELHI) & ORS.                  ..... Respondents
                  Through:             Mr. Parveen Bhati, APP for the
                                       State
                                       Mr. Ashish Kumar, Adv. for
                                       Respondents 2 to 5.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. By this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.), the petitioner challenges the order dated 23.3.2013 passed by Metropolitan Magistrate-10, South West, Dwarka Courts, New Delhi whereby the application under Section 156(3) Cr.P.C. filed by the petitioner was dismissed.

2. Brief facts of the case are that the petitioner filed a complaint under Section 156(3) read with Section 190 of Cr.P.C. for the offence under Sections 380/392/394/445/446/448/451/453/454/457/34 IPC. The petitioner/complainant is the owner of RZF-172-B, Gali No.32, Sadh Nagar-II, Near Pradhan Chowk, Palam Colony, New Delhi. The son of the petitioner, Sunil Swain was in love with proposed accused No.1/ Mayuri Ruhella. Both of them insisted their parents for solemnizing their marriage and finally on 11.3.2012, the marriage between Sunil Swain and Mayuri Ruhella/

respondent no. 2 was solemnized. After their marriage, both of them stayed in the matrimonial house for 2-3 days and then went to Vaishno Devi. After about one week, accused No.1 starting misbehaving with the complainant, her husband and her son and accused No.3 was informed about the said behaviour of accused no. 1. Accused No.3 requested the complainant to send accused No.1 back to their house, for about ten days and accordingly she was sent to her parental house for about 15 days. The complainant also stated that accused No.1 stayed at the matrimonial home till 29.6.2012 and again on 30.6.2012 accused No.1 went to her parents house till 15.8.2012. In the meantime, accused Nos.3 & 4 came to the house of the complainant on three-four occasions to discuss about indifferent feeling and unhappiness of accused No.1 in the matrimonial house. The complainant, her husband and her son/Sunil went to bring back accused No.1 but she refused. After persistent persuasion by Accused Nos.3 & 4, accused No.1 agreed and accompanied the complainant, her husband and Sunil back to the matrimonial house. However, accused No.1's attitude and bad behaviour did not change with her husband, she used to quarrel with the complainant, her husband and her son on trivial issues. It is also alleged that on 5.9.2012 at about 10.30 p.m. accused No.3 & 4 came to house of the petitioner and started abusing the petitioner, her husband and her son/ Sunil. On 6.9.2012, accused No.3 & 4 again came to the house of the petitioner and asked the petitioner to send accused No.1 with them for a week and accordingly, accused No.1 was taken back by them. It is also alleged by the complainant that due to continuous misbehaviour and bad attitude of accused No.1, son of the petitioner resigned from his job and went away from the house without informing anyone about his whereabouts.

Thereafter, son of the petitioner telephonically informed his father/ husband of petitioner that he is living in Odisha but did not disclose the location of his whereabouts. On 17.9.2012 the petitioner and her husband went to Hyderabad to visit their elder son, Anil and stayed there till mid of October, 2012 and, thereafter, went to their home town in Odisha.

3. It is also alleged by the complainant that on 15.11.2012 at about 7 p.m. in the absence of the petitioner, all the accused persons along with three police officials came to the house of the petitioner/complainant and broke open all the locks on the ground, first, second and third floor, despite objection being raised by the neighbours of the petitioner. Subsequently, one of the neighbours namely, Mahavir informed PCR but to no avail.

4. On 19.11.2012 when the petitioner and her husband came back from Odisha, they were astonished to see the main door of the premises closed from inside. The neighbours of the petitioner informed that since 15.11.2012 accused No.1 & 2 have been residing in the house, after breaking all the locks. The husband of the petitioner filed a complaint dated 19.11.2012 with SHO, P.S. Palam Village vide DD No.26A. The SHO, PS Palam Village made a telephonic call to accused No.1 and instructed her to open the door and allow the petitioner and her husband to enter into the house. When the petitioner opened the almirah, she found that amount of Rs.50,000/- (Rupees fifty thousand) in cash, three gold rings, one gold chain, two gold necklaces and four gold earrings, which were kept in the safe of almirah, were missing. The petitioner alleged that the same have been stolen by the accused persons and their 20 other associates on 15.11.2012. The petitioner filed a complaint vide DD No.25B dated 21.11.2012 addressed to

Commissioner of Police, DCP (South West), ACP (South West) and the SHO, P.S. Palam Village but no action was taken against the respondents till date.

5. It is also alleged that on 24.11.2012 when the petitioner refused to transfer the said house/ property in the name of the accused no. 1, daughter-in-law of the petitioner and her maternal grand-mother, vacated the house of the petitioner. However, they both threatened to get the house transferred in the name of accused no. 1 by falsely implicating the petitioner, her husband and other family members.

6. It is further alleged that on 25.11.2012 accused No.5 to 11 came to the house of the petitioner along with a man with gas cutter and cut the iron gate of the house and entered into the premises and illegally arrested the petitioner and her husband in case FIR No.325/2012 under Section 498A/406/506/323/34 IPC registered at P.S. Palam Village on 25.11.2012 and were taken to P.S. Palam Village. The petitioner and her husband were released on bail by the Learned Metropolitan Magistrate, Dwarka Courts, Delhi on 26.11.2012. Further, it is alleged that on 30.11.2012 the petitioner found Rs.10,000/- (Rupees Ten Thousand) missing from her almirah while they were in police custody on 25/26.11.2012.

7. A status report was filed by the Investigating Officer. Thereafter, another status report was filed by ACP, P.S. Dabri wherein apart from the facts mentioned in the status report by the I.O., it was stated that concerned SHO, P.S. Palam Village after taking due permission from Senior Officers on telephone arrested the petitioner and her husband in case FIR No.325/12, P.S. Palam Village.

8. Learned counsel for the petitioner contended that the petitioner and her husband have already disowned and disinherited their son and

daughter in law/ accused no. 1 from their movable and immovable properties. The property in question is self acquired property of the petitioner. He further submits that Respondent No.2/ daughter-in- law of the petitioner and her husband had been living separately since 6.9.2012. Even in the petition filed by respondent No.2 under Section 12 of Protection of Women Against Domestic Violence Act, 2005 it is stated that accused no. 1 has been residing with her parents. Relying upon the judgement in Neetu Mittal vs. Kanta Mital & Ors. AIR 2009 Delhi 72 and Subhkaran Luharuka vs. State, (170) 2010 DLT 516, counsel for the petitioner submitted that the police is bound to register the FIR in a cognizable offence.

9. I have given my thoughtful consideration to the contentions raised by the counsel for the petitioner and respondents.

10. 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.

11. The well settled guidelines are laid down by this Court in respect of 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."

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 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.

14. 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.

15. Thus, 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 through investigation by the police, an FIR should be ordered to be registered.

16. In the instant case, the parties are known to each other. The evidence on which the petitioner relies is within her 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.

17. In the light of the aforesaid discussion, there is no illegality or infirmity in the impugned order dated 28.1.2014 passed by learned Additional Sessions Judge, New Delhi and order dated 23.3.2013 passed by the Learned Metropolitan Magistrate-10, Dwarka, New Delhi.

18. The petition is, therefore, dismissed.

(VED PRAKASH VAISH) JUDGE May 20, 2014 aj