Pooja Taneja vs The State Of Nct Of Delhi & Ors
2016 Latest Caselaw 7425 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(CRL) 624/2015

                    Judgment reserved on 1st December, 2016
                    Judgment pronounced on 16th December, 2016
       POOJA TANEJA                               ..... Petitioner
                        Through     :Mr. Vikas Pahwa, Sr. Advocate with
                                    Ms. Chandrani Prasad, Ms. Mitari
                                    Thakkar, Mr. Kinnori Ghosh and Mr.
                                    Aditya Dogra, Advs.

                        versus

       THE STATE OF NCT OF DELHI & ORS                ..... Respondents
                        Through     : Mr. R.S. Kundu, ASC with Mr.
                                    Ankit Kumar Gulia, Adv. & SI
                                    Deepak Kumar, P.S. Rajouri Garden,
                                    Delhi for the State
                                    Mr. Dayanan Krishnan, Sr. Advocate
                                    with Mr. Baldev Raj, Mr. Shikha
                                    Tyagi and Mr. Sumit Sandeep Tyagi,
                                    Advs. for respondent no. 5
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

W.P.(CRL) 624/2015

1. Aggrieved by the judgment dated 21st January, 2015, passed by the

learned Additional Sessions Judge, Delhi in Crl. Revision Petition no.

83/1/14, petitioner has filed this petition under Articles 226 and 227 of the

Constitution of India read with Section 482 of the Code of Criminal

Procedure, 1973 ("the Code", for short). By placing reliance on Radhey

Shyam & Anr. Vs. Chabbi Nath, (2015) 5 SCC 423, learned Senior Counsel

for the respondent no. 5 has challenged the maintainability of the writ

petition under Article 226 of the Constitution of India, against the judicial

order passed by the learned Additional Sessions Judge, Delhi. It is further

contended that petition under Article 227 of the Constitution of India has to

be treated as an application and not the writ petition. Reliance has been

placed on Shalini Shayam Shetty & Anr. Vs. Rajendra Shankiar Patil,

(2010) 8 SCC 329.

2. Vide order dated 12th August, 2016, my learned Predecessor called

upon the learned counsel for the petitioner to satisfy the Court with regard to

maintainability of writ petition against the judicial order and also for seeking

registration of the FIR, after having availed the alternate remedies.

3. During the course of hearing, learned Senior Counsel for the

petitioner has contended that present petition be treated under Section 482 of

the Code read with Article 227 of the Constitution of India. Ordered

accordingly. Registry to re-number this petition as a Criminal

Miscellaneous Case.

Crl. M.C. No. /2016 (to be numbered)

4. Petitioner filed a complaint under Section 200 of the Code before the

learned Metropolitan Magistrate against the respondent no. 5, alleging

therein that respondent no. 5 had committed offences punishable under

Sections 307/312/325/341/342/354/376(c)/493/494/495/496/503/509 IPC

and that he be punished for the said offences. An application under Section

156(3) of the Code was also filed, which was dismissed by the learned

Metropolitan Magistrate, Delhi vide order dated 11th November, 2014

Learned Metropolitan Magistrate decided to proceed with the complaint

under Section 200 of the Code. During the course of hearing, it has been

pointed out that five witnesses have already been examined by the petitioner

at the pre-summoning stage.

5. Petitioner preferred a Revision Petition under Section 397 of the Code

before the Additional Sessions Judge, Delhi, which has been dismissed by

the judgment impugned in this petition.

6. That is how, petitioner is before this Court by way of present petition

under Section 482 of the Code read with Article 227 of the Constitution of

India.

7. Briefly stated, petitioner alleged in the complaint that she was married

to one Shri Anil Kumar and two children, namely, Divyansh and Suryansh

were born from their wedlock. In the year 2001, their marriage was

dissolved by a decree of divorce by mutual consent and thereafter, she

started living at WZ-251, Virender Nagar, New Delhi along with her son

Divyansh. In the year 2006, petitioner met one Rajat Mittal, who exploited

her physically by extending promises to marry her. However, he did not

marry her and left the country. On 24th February, 2012, she went to Police

Station Moti Nagar for registering a criminal case against him, where she

met respondent no. 5, who was posted as Station House Officer in the said

Police Station. Initially, respondent no. 5 did not show any interest in

registering the FIR, however, later FIR No. 33/2012 under Section 376/506

IPC was registered at Police Station Moti Nagar, New Delhi against Rajat

Mittal. During the investigation, respondent no. 5 developed friendly

relations with her. He proposed to marry her. On 7th June, 2012, respondent

no. 5 married her in a simple ceremony in presence of her sister at D-547,

2nd Floor, Shiv Nagar, New Delhi. Thereafter, they started living together.

On 12th July, 2012, she checked the mobile phone of respondent no. 5 and

found that he was in touch with one Ms. Summi. Later, she came to know

that from 2008 till 2011 respondent no. 5 was having relations with one Ms.

Ritu Arora also. When she confronted respondent no. 5 with these facts, he

became angry and abused her. When she became pregnant, respondent no. 5

said that he was not willing to have children. He took her to Kalra Hospital,

Kirti Nagar and forced her to undergo abortion. She conceived for the

second time. Respondent no. 5 again asked her to terminate the pregnancy,

but she did not agree to this and on 21st August, 2013, one male child,

namely, Master Gaurik Kumar was born in Kalra Hospital. Prior thereto, in

the month of February, 2013, on checking the mobile phone of respondent

no. 5, she found that he was having relations with one of his subordinate,

namely, Ms. Anu as well. Soon after the birth of Master Gaurik Kumar, the

behavior of respondent no. 5 changed and he started remaining out of the

house for prolonged durations. In the month of December, 2013, she was

shocked to learn that respondent no. 5 was already married to one Ms.

Sushma and was having two sons aged about 11 and 16 years, respectively.

When she confronted the respondent no. 5 with this fact, he gave beatings to

her. Thereafter, regular fights started between them. 15th February, 2014

onwards, respondent no. 5 started visiting the house once in 15/20 days.

Respondent no. 5 also started pressurizing her to settle the matter with him.

He threatened that in case, she did not settle the matter with him, he would

kill her and their son. In order to avoid physical and mental torture, she got

the CCTV cameras installed on 17th May, 2014 at her residence. In the third

week of April, 2014, the respondent no. 5 beat her up and forced her to sign

some papers. On 31st July, 2014, respondent no. 5 informed her that he had

deposited Rs.9,00,000/- in her bank account. On 1st August, 2014,

respondent no. 5 came to her house all of a sudden, bolted the main gate

from inside, unplugged all the CCTV cameras, snatched her mobile phone,

snatched Master Gaurik Kumar from the maid and threatened that in case,

she refused to compromise the matter with him, he would kill her and

Master Gaurik Kumar. On 2nd August, 2014, respondent no. 5 again came to

her residence and forced her to sign some agreement. She filed a complaint

with SHO, Police Station Rajouri Garden on 25 th August, 2014, but no

action was taken. Complaint before the Assistant Commissioner of Police

dated 27th August, 2014 also did not bring any fruitful result, hence the

complaint.

8. Trial court has held that the Magistrate has not to order for the

registration of FIR mechanically and in a routine or casual manner.

Criminal law is not expected to be set in motion on mere asking of the

parties. Power has to be exercised where evidence is beyond the reach of

the complainant or custodial interrogation appears to be necessary for

recovery of some articles and discovery of facts. It is held that, in this case,

the parties were known to each other and the facts as well as evidence was

within the knowledge and control of the complainant and no custodial

interrogation was required as nothing was to be recovered during the police

investigation. The evidence sought to be led can be adduced by the

complainant in pre-summoning evidence under Section 200 of the Code.

Reliance was placed on Dilshad vs. S.R. Sundaram & Ors. 2013 (3) JCC

2227 and Brahm Prakash Gupta vs. State 2008 (4) JCC 2331. Learned

Metropolitan Magistrate has also considered the action taken reports filed by

the Assistant Commissioner of Police and has noted that a MOU was signed

between the parties in presence of the witnesses, inasmuch as there was

delay in lodging of the complaint. Learned revisional court has concurred

with the view taken by the trial court. It has been noted in the impugned

order that MOU for Rs.60,00,000/- was also signed by the elder sister of the

petitioner, besides one more witness. No document of marriage was placed

on record. As regards incident of 1st August, 2014 is concerned, it is noted

that no PCR call was made. Learned Additional Sessions Judge has also

noted that MOU was dated 16th April, 2014, thus, there was no occasion for

the respondent no. 5 to extend any threat on 1st August, 2014. In a nutshell,

the courts below have taken a view that there was delay in lodging the FIR,

inasmuch as entire material was within the knowledge of the petitioner and

no evidence was to be collected through the process of police investigation.

9. Learned Senior Counsel for the petitioner has contended that the

averments made in the complaint disclose cognizable offences including the

offence under Section 376 IPC, therefore, learned Metropolitan Magistrate

ought to have ordered for the registration of FIR, in exercise of its powers

under Section 156(3) of the Code. Allegations are serious in nature,

therefore, police investigation was necessary. Learned Metropolitan

Magistrate as well as learned Additional Sessions Judge have erred in

holding that matter could have been inquired by following the procedure laid

down in Section 200 of the Code. Police assistance was required as

witnesses would be reluctant to come forward to depose, since respondent

no.5 is a police officer. Reliance has been placed on Lalita Kumari vs. State

of U.P., (2014) 2 SCC 1, Raisa Begum vs. State (2015) SCC online Del.

10078, Srinivas Gundluri & Ors. Vs. SEPCO Electric Power Construction

Corporation & Ors. (2010) 8 SCC 206, Rameshbhai Pandurao Hedau vs.

State of Gujarat (2010) 4 SCC 185, Amit Khera vs. State of NCT of Delhi &

Ors. (2010) 171 DLT 607, Smt. Masuman vs. State of U.P. & Ors. (2007) 1

All LJ 221 and Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy

& Ors. (1976) 3 SCC 252. It is contended that in Lalita Kumari (supra)

Supreme Court has held that the police is duty bound to register an FIR

when the complaint discloses a cognizable offence. Heavy reliance has been

placed on Smt. Masuman (supra), a judgment rendered by the learned Single

Judge of Allahabad High Court, to contend that the Magistrate has to order

for registration of FIR under Section 156(3) of the Code if the ingredients of

cognizable offences are attracted and he cannot decline to pass such an order

solely on the ground that complainant is in the know of all the facts.

10. Learned Additional Standing Counsel has supported the impugned

judgment. It is contended that the trial court and the revisional court have

rightly not directed for registration of FIR under Section 156(3) of the Code,

in the facts of the present case, as detailed hereinabove, including the delay.

Learned Senior Counsel for the respondent no. 5 has contended that the trial

court, while dismissing the application of petitioner under Section 156(3) of

the Code, has granted opportunity to the petitioner to lead pre-summoning

evidence under Section 200 of the Code. Learned Metropolitan Magistrate

is not bound to direct investigation by the police in each and every case in a

routine manner and it is open for him to direct the petitioner to lead pre-

summoning evidence, more so, in the cases where the evidence sought to be

led is in possession of the complainant and there is no need for custodial

interrogation of the accused. Reliance has been placed on Madhao & Anr.

Vs. State of Maharashtra & Anr. (2013) 5 SCC 615, State of Gujarat vs.

Girish Radhakrishnan Varde (2014) 3 SCC 659, Shri Subhkaran Luhurka &

Anr. Vs. State & Anr. ILR (2010) VI Delhi 495, Brahm Prakash Gupta vs.

State 2008 (106) DRJ 199, Suresh Sahu vs. State & Ors. 2014 SCC online

Del. 3655 and Dilshad vs. S.R. Sundaram & Ors. 2013 SCC online Del

2156. It is further contended that Section 397(3) of the Code, bars a second

Revision, accordingly, High Court in exercise of its inherent powers under

Section 482 of the Code should interfere only in the cases, when it is shown

that mandatory provisions of law have not been complied with by the trial

court or serious miscarriage of justice will result if impugned order is

sustained. Reliance has been placed on Krishnan & Anr. vs. Krishnaveni &

Anr. (1997) 4 SCC 241 and Kailash Verma vs. Punjab State Civil Supplies

Corporation and Anr. (2005) 2 SCC 571. Learned Senior Counsel has

further contended that, in the instant case, there is no legal infirmity or

miscarriage of justice caused by the manner in which the learned Magistrate

has exercised his discretion under Section 156(3) of the Code, by dismissing

the application of petitioner, which has been rightly upheld by the learned

Additional Sessions Judge, in exercise of revisional jurisdiction under

Section 397 of the Code.

11. In Lalita Kumari (supra), guidelines have been laid down and certain

directions have been issued to the police with regard to the registration of

FIRs. It is held that it is mandatory for the police to register the FIR under

Section 154 of the Code, in the cases where complaint discloses commission

of a cognizable offence. Lalita Kumari (supra) is not in the context of

Section 156(3) and Chapter XV of the Code, that is, Section 200 to 203 of

the Code. Even in Lalita Kumar (supra), a preliminary inquiry is envisaged

in certain types of cases. Relevant it would be to refer to para 120.6 in this

regard, which reads as under:-

"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The

category of cases in which preliminary inquiry may be made are as under:-

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for delay."

12. In Ramdev Food Products Private Limited vs. State of Gujarat,

MANU/SC/0286/2015, appellant sought directions for investigation under

Section 156(3) of the Code. However, Magistrate instead of directing

investigation as prayed, thought it fit to conduct further inquiry under

Section 202 of the Code and sought report of the Police Sub-Inspector

within 30 days. Grievance of the appellant before the High Court was that

in view of the allegation that documents had been forged with a view to

usurp the trademark, which documents were in possession of the accused

and were required to be seized, investigation ought to have been ordered

under Section 156(3) of the Code, instead of conducting further inquiry

under Section 202 of the Code. In Ramdev (supra), Supreme Court

considered Latika Kumari and in paras 20 and 22 held as under:-

"20 It has been held, for the same reasons, that direction by the Magistrate for investigation Under Section 156(3) cannot be given mechanically.

In Anil Kumar v. M.K.Aiyappa MANU/SC/1002/2013: (2013) 10 SCC 705, it was observed:

11. The scope of Section 156(3) Code of Criminal Procedure came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [MANU/SC/7923/2007 : (2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction Under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Code of Criminal Procedure, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter Under Section 156(3) against a public servant without a valid sanction order.

The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation Under Section 156(3) Code of Criminal Procedure, should be reflected in the order, through a detailed expression of his views is neither required nor

warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.

The above observations apply to category of cases mentioned in Para 120.6 in Lalita Kumari (supra)."

"22. Thus, we answer the first question by holding that the direction Under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall Under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."

(emphasis supplied)

13. In Shri Subhkaran Luharuka & Anr. Vs. State & Anr. ILR (2010) VI

Delhi 495, a Bench of coordinate jurisdiction of this court has held thus:-

"42 Thus, there are pre-requisites to be followed by the complainant before approaching the Magistrate under Section 156(3) of the Code which is a discretionary remedy as the provision

proceeds with the word „May‟. The magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is thus not necessary that in every case where a complaint has been filed under Section 200 of the Code the Magistrate should direct the Police to investigate the crime merely because an application has also been filed under Section 156(3) of the Code even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored."

14. In Mohd. Salim vs. State 175(2010) DLT 473, a learned Single Judge

of this court, in para 11, has held thus:-

"11. The use of the expression "may" in Sub- section (3) of Section 156 of the Code leaves no doubt that power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of

the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Code. Of Course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."

15. I concur with the view taken by this court in Shri Subhkaran Luhurka

and Mohd. Salim (supra), which otherwise, have a binding force, having

been rendered by the learned Single Judge of this Court; as against the view

expressed in Smt. Masuman (supra), a judgment of Allahabad High Court,

which only has a persuasive value. I am not persuaded by the view

expressed by the Allahabad High Court that Magistrate has to order

registration of FIR under Section 156(3) of the Code, in case complaint

discloses ingredients of a cognizable offence. I am of the view that the

directions for investigation under section 156 (3) of the Code cannot be

given by the Magistrate mechanically. Such a direction can be given only

on application of mind by the Magistrate. The Magistrate is not bound to

direct investigation by the police even if all allegations made in the

complaint disclose ingredients of a cognizable offence. Each case has to be

viewed depending upon the facts and circumstances involved therein. In the

facts and circumstances of a given case, the Magistrate may take a decision

that the complainant can prove the facts alleged in the complaint without the

assistance of the police. In such cases, the Magistrate may proceed with the

complaint under Section 200 of the Code and examine witnesses produced

by the complainant. The delay in approaching the police by the complainant

can yet be another factor which the Magistrate may take note of, while

considering the application under Section 156(3) of the Code. The

Magistrate ought to direct investigation by the police if it feels that the

evidence is required to be collected with police assistance. All other

judgments, cited by the parties, are in the context of different facts and are

of no help. In this case, there is a delay in filing of the complaint, inasmuch

the facts and evidence are within the knowledge of the petitioner, which she

can adduce during the inquiry conducted by the learned Metropolitan

Magistrate under Section 200 of the Code, inasmuch as she has already

produced five witnesses.

16. In the peculiar facts of this case, as detailed hereinabove, I do not find

any palpable absurdity or perversity in the impugned judgment, which may

require to be corrected or set right by this Court, in exercise of its inherent

jurisdiction under Section 482 of the Code or the power of superintendence

under Article 227 of the Constitution of India, which has to be exercised

sparingly and only in appropriate cases.

17. For the foregoing reasons, petition is dismissed. Miscellaneous

application is disposed of as infructuous. Needless to add here that trial

court will proceed with the complaint, in accordance with law and on the

evidence adduced before it, uninfluenced by any observation made in this

judgment and the judgment of revisional court, touching the merits of the

case.

A.K. PATHAK, J.

DECEMBER 16, 2016 rb