Mohd Yusuf Khan vs State & Anr
2014 Latest Caselaw 2690 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL.M.C. 3468/2013


                                  Date of decision: 26th May, 2014

          MOHD YUSUF KHAN                           ..... Petitioner
                      Through:           Mr.Rajat Aneja, Adv.


                            versus


          STATE & ANR                                ..... Respondents
                            Through:     Mr.O.P. Saxena, APP for the
                                         State.
                                         Mr.Jivesh Tiwari, Adv. for R-2.


CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. By filing the present petition under Section 482 Cr.P.C., the petitioner Mohd. Yusuf Khan challenged order dated 18.04.2013 passed by learned District and Sessions Judge (South), Saket Courts, New Delhi whereby the criminal revision petition filed by the petitioner was dismissed.

2. Shorn off unnecessary details, it is suffice to mention that the petitioner filed a complaint under Section 200 Cr.P.C. for the offences punishable under Section 420/467/468/471/506 IPC. The petitioner also moved an application under Section 156(3) Cr.P.C. seeking directions to the SHO for registration of the FIR.

3. On the prayer under Section 156(3) Cr.P.C., the Metropolitan Magistrate called for Action Taken Report (ATR). The police filed a Action Taken Report stating that the alleged accused persons namely, Habib Khan, Khairunisha, Yakub Khan and Smt. Qutaban, Smt.Sabina and Smt.Ayuba had not signed any family settlement and the same is forged. It was also mentioned that various other matters are going on between the complainant and the accused. Vide order dated 02.01.2013, learned Metropolitan Magistrate dismissed the application after considering the averments made in the complaint under Section 156(3) Cr.P.C. and directed the petitioner to lead pre-summoning evidence.

4. Against the said order, the petitioner filed Crl. Rev. No.55/2013 and vide order dated 18.04.2013, learned District and Sessions Judge, Saket Courts, New Delhi dismissed the revision petition.

5. Feeling aggrieved with the said order, the petitioner preferred the present petition.

6. Learned counsel for the petitioner contended that the respondent had forged Will dated 20.06.1979 and separate FIR No.154/2010 was registered at PS Hazrat Nizamuddin. The respondent had prepared a forged family settlement in the name of legal heirs, inter alia, stating that the deceased Chand Khan had executed a Will on 20.06.1979, the said family settlement was a fabricated document. The respondent had used the family settlement in the various litigations. According to him, cognizable offence is made out and the police is bound to register FIR.

7. It is 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.

8. 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.

9. 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.

10. 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.

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. Further, in another case Mona Panwar vs. High Court of Judicature of Allahabad through its Registrar & Ors. (2011) 3 SCC 496 it was held :

"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of the High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of the Code.

23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed

over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."

13. 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.

14. For the reasons mentioned above, there is no illegality and infirmity in the impugned order dated 18.04.2013 passed by learned District and Sessions Judge (South), Saket Courts, New Delhi

15. Accordingly the petition is dismissed.

Crl.M.A. No. 12713/2013

16. The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE

May 26, 2014/gm