Satish Sharma vs State & Anr.
2017 Latest Caselaw 2650 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    DECIDED ON : MAY 25, 2017

+      CRL.M.C.1519/2017 & CRL.M.A.7149/2017

       SATISH SHARMA                                     ..... Petitioner
                    Through :           Mr.V.K.Jain, Advocate.

                           versus

       STATE & ANR.                               ..... Respondents
                           Through :    Mr.Amit Gupta, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG


S.P.GARG, J. (ORAL)

1. Present petition under Section 482 Cr.P.C. has been filed by the petitioner to challenge the legality and correctness of a judgment dated 16.2.2017 of learned Additional Sessions Judge in Criminal Revision No.112A/16 (New Criminal Revision No.204418/2016) by which the order of the learned Metropolitan Magistrate dated 8.10.2015 dismissing the petitioner's application under Section 156(3) Cr.P.C. was upheld.

2. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the petitioner urged that the impugned orders of the court below cannot be sustained. The petitioner was abducted by respondents No.2 to 6 in broad day light on 4.6.2014. The incident was captured in CCTV footage. The petitioner was falsely

implicated in case FIR No.125/2014 registered under Section 376 IPC at Police Station Pul Prahlad Pur with the connivance with respondents No.2 to

7. After abduction, he was taken to a unknown place in a car and was asked to pay `50,00,000/- to settle his son's matrimonial dispute. He was made to sign certain blank papers. At 6.43 p.m., a complaint was lodged on e-mail about his abduction which was not acted upon. At 11.00 p.m. he was arrested in case FIR No.125/2014. Learned counsel for the petitioner further urged that the complaint lodged with the police disclosed commission of cognizable offence. The police was under legal obligation to lodge the FIR.

3. Undisputedly, the petitioner is facing trial in case FIR No.125/2014 registered under Section 376 IPC at Police Station Pul Prahlad Pur. The said case has been lodged on the complaint of respondent No.5, (petitioner's daughter-in-law). Upon completion of investigation, a charge- sheet has already been submitted in the court. It is not in dispute that the petitioner was arrested in the said proceedings at 11.00 p.m. on 4.6.2014. It is informed that after the lodging of the FIR, the petitioner was taken to the Police Station for interrogation and subsequently was arrested in the FIR No.125/2014.

4. It is relevant to note that in the case filed under Section 200 Cr.P.C. the learned Metropolitan Magistrate had sought Status Report / Action Taken Report from the concerned police station before deciding the application under Section 156(3) Cr.P.C. In the Status Report filed by the office of DCP (south-east) it was informed that the matter was investigated but the allegations could not be substantiated.

5. Seemingly, soon after his alleged abduction, the petitioner did not move the police machinery to lodge any complaint. The present

complaint case under Section 200 Cr.P.C. was filed along with application under Section 156(3) Cr.P.C. in April, 2015. The delay in lodging the complaint case has remained unexplained.

6. The courts below have observed that the petitioner himself was in possession of all the evidence and could prove his case by leading evidence on his own. There was no suggestion by the complainant as to what evidence was required to be collected through police investigation or in what manner assistance of the State machinery was required. These observations have been endorsed by the Revisional Court. This Court finds no valid reasons to take different view. It is to be seen during trial if the petitioner's arrest in case FIR No. 125/2014 was in violation of the due procedure. The police officials were under legal obligation to interrogate the petitioner in the FIR where serious allegations under Section 376 IPC were leveled against him.

7. It is pertinent to note that the petitioner had filed another Complaint Case No.106/2013 against her daughter-in-law and others. In the said case not only the application under Section 156(3) Cr.P.C. was dismissed but the court also declined to take cognizance and it was dismissed by an order dated 24.2.2015. Order dated 24.4.2015 in Criminal Revision No.90/2015 filed by the petitioner reveals that an application under Section 340 read with Section 195(1)(b)(i) Cr.P.C. to seek redressal at appropriate forum was withdrawn by him. By an order dated 18.4.2017, the petition was dismissed as withdrawn. Subsequently, Crl.M.A.7149/2017 was filed stating the petition be disposed of on merits. Without delving into any controversy, arguments were heard on merits on 1.5.2017.

8. Well settled law is that the petitioner cannot seek investigation under Section 156(3) Cr.P.C. by the police as a matter of right. Directions under Section 156(3) Cr.P.C. are to be issued only after application of mind by the Magistrate. It is not to be passed mechanically on the mere asking of the complainant. In M/s Skipper Beverages Pvt.Ltd. vs.State 2002 Crl.L.J. NOC 333 (Delhi) the Supreme Court observed that these powers are 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 recovery of some articles or discovery of facts.

9. The courts below have relied upon various cases including Mrs.Priyanka Srivastav & Anr.Vs.State of U.P. & Ors., Criminal Appeal No.781/2012 decided on 19.3.2015 where the Supreme Court observed:

"It needs to be reiterated that learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind and he has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order and further the learned Magistrate should take the note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It was further observed that the power under Section 156(3) warrants application of judicial mind and a court of law is involved. It was also observed that it is not the police taking steps at the stage of Section 154 of the Code of Criminal Procedure and in a litigant at his own whim cannot invoked the authority of the Magistrate. It was also observed that there has to be prior application under Section 154(1) and 1564(3) while filing a petition under Section 156(3) and both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. It was also observed that an application under Section 156(3) be supported by an

affidavit and the veracity of the complaint can also be verified by the learned Magistrate, regarding being had to the nature of the allegations of the case."

10. The concurrent findings of the courts below based upon fair appreciation of facts and law warrant no intervention.

11. The petition lacks in merits and is dismissed.

12. All pending application(s) stand disposed of.

13. Observations in the order shall have no impact on the merits of the case.

(S.P.GARG) JUDGE MAY 25, 2017 sa