Delhi High Court
Devender Kumar vs State (Govt Of Nct Of Delhi) & Ors. on 28 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2116/2013
Date of decision: 28th October, 2014
DEVENDER KUMAR ..... Petitioner
Through: Mr. Lalit Naryan Singh, Adv.
versus
STATE (GOVT OF NCT OF DELHI) & Ors. ..... Respondents
Through: Mr. Parveen Bhati, APP for the
State
Mr. N. Hariharan, Sr. Advocate
with Mr. Ankit Kalu, Adv. for
Respondents No.2 to 5
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
CRL.M.A. 8242/2013
The application is allowed subject to just exceptions.
The application stands disposed of.
CRL.M.C. 2116/2013
1. By way of the present petition under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for
short) the petitioner Devender Kumar has challenged the order dated
12.4.2013 passed by learned Additional Sessions Judge, Saket Court,
New Delhi whereby criminal revision filed by the petitioner against the
Crl.M.C. No.2116/2034 page 1 of 6
order dated 04.02.2013 passed by learned Metropolitan Magistrate in
Case No.206/1was dismissed.
2. Brief facts of the case as borne out from the present petition are
that the petitioner filed a complaint under Section 200 Cr.P.C. for the
offences under Sections 406/420/468/471/506/34 IPC. In the
complaint, the petitioner stated that on the assurance of respondent
No.3/ HDFC Bank, respondent No.4/ Sunit Singh obtained the
signature of the complainant on some policy assuring the complainant
that he is required to pay a premium of Rs.25,000/- (Rupees twenty
five thousand) per annum for three years and on maturity, the
complainant would receive an amount of Rs.1,25,000/- (Rupees one
lakh and twenty five thousand). The petitioner, accordingly, paid a
sum of Rs.75,000/- (Rupees seventy five thousand) to respondent No.2.
After completion of three years of insurance policy in the year 2009,
the petitioner approached the Manager of HDFC Bank namely Ms.
Kulpreet Kaur who told the complainant that he should approach M/s
Aviva Life Insurance Company (respondent no.2). When the petitioner
went to collect the aforementioned sum the said company flatly
refused and further stated that he is entitled for a sum of Rs.31,238/-
(Rupees thirty one thousand and two hundred and thirty eight). After
discussion with respondent No.2, the petitioner came to know that
respondent No.2 has deducted more than 73% of the amount under
different heads.
3. Along with the complaint, an application under Section 156(3)
Cr.P.C. was also filed. On this application learned Metropolitan
Magistrate called for the status report. The police filed the status
Crl.M.C. No.2116/2034 page 2 of 6
report stating that no cognizable offence was made out as the matter is
of civil nature. Vide order dated 04.02.2013, learned Metropolitan
Magistrate, after considering the averments made in the complaint,
dismissed the application under Section 156(3) Cr.P.C. and directed
the petitioner to lead pre-summoning evidence.
4. Against the said order of learned Metropolitan Magistrate, the
petitioner filed Criminal Revision No.15/2013 which was dismissed
by learned Additional Sessions Judge-02 (South East), Saket Courts,
New Delhi vide impugned order dated 12.04.2013.
5. Feeling aggrieved by the impugned order, the petitioner has
preferred the present petition.
6. Learned counsel for the petitioner contended that the petitioner
is having Savings Account number SB-11038152 with HDFC Bank,
previously known as 'Centurion Bank of Punjab Ltd.'. The said bank
merged with HDFC and is presently functioning in the name of HDFC
Bank. He further submits that in reply to the consumer complaint, the
policy document filed by the respondent No. 2 bearing No.WTG-
1332351 was not the same as the policy document supplied to the
petitioner by the insurance company and it contained different terms
and conditions. He therefore, submits that the police is bound to
register the FIR.
7. I have given my thoughtful consideration to the submissions
made by learned counsels for the parties and pursued the material
placed on record.
Crl.M.C. No.2116/2034 page 3 of 6
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 course 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 requiring thorough
investigation by the police, an FIR should be ordered to be registered.
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.
Crl.M.C. No.2116/2034 page 4 of 6
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 'Aleque Padamsee vs. Union of India', 2007 Crl. L.J. 3729
(SC), the Hon'ble Supreme Court of India 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 of Criminal Procedure 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.
13. In the instant case, the evidence on which the petitioner relies is
within his knowledge 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.
Crl.M.C. No.2116/2034 page 5 of 6
14. In view of the aforesaid discussion, I do not find any illegality or
infirmity in the impugned order dated 12.04.2013 passed by learned
Additional Sessions Judge-02, South East, Saket Courts, New Delhi.
The petition deserves to be dismissed and the same is hereby
dismissed.
15. Accordingly, the petition stands disposed of.
(VED PRAKASH VAISH)
JUDGE
October 28, 2014
aj
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