The High Court of Delhi recently comprising of a bench of Justice Suresh Kumar Kait observed that where the material facts and identity of the accused are known, complainant should lead evidence before the trial court U/S. 200 Cr.P.C. (Kusum Lata V. State Of Nct Of Delhi & Ors)
The bench noted that in the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200, 202 of Cr.P.C. and if there is no substance in the prima-facie evidence adduced by the complainant, the complaint may be dismissed under section 203 Cr.P.C.
Facts of the Case
The petitioner is the mother-in-law of respondent and owner of the property, son of the petitioner and his wife were residing at the first floor of the said property. Petitioner had filed a complaint U/S.200 Cr.P.C. along with an application U/S.156(3) Cr.P.C against respondents alleging that they forcibly entered into the house of the petitioner and threatened them of dire consequences, which was dismissed. A revision petition that was filed Under section 397 Cr.P.C. was also dismissed.
The present petition has been filed under section 227 of the Constitution of India read with section 482 Cr.P.C. seeking setting aside of the order passed by learned Special Judge, Delhi’ dismissing the revision petition of the petitioner and upholding the order passed by learned MM rejecting the application of the petitioner filed under section 156(3) Cr.P.C. Petitioner seeks directions to be issued to respondent no.1 for registration of FIR against respondent nos.2 to 12.
Contention of the Parties
The counsel on behalf of the petitioner submitted that learned ASJ has not taken into consideration the fact that when respondent no.2 vacated the house voluntarily along with her husband, therefore, nothing entitles her to forcibly enter the property in possession of the petitioner or break open the locks, damage the CCTV camera or unlawfully restrain the petitioner and her husband which can be seen in the photos placed on record as obtained from the CCTV camera installed at the property of the petitioner. Moreover, the photos which were placed on record clearly proved the incident that took place on the night of 12.08.2018 including house breaking at night and the wrongful confinement of the petitioner and her husband and other things mentioned in the complaint beyond reasonable doubt and thus the same being a cognizable offence as held by the Hon’ble Apex Court in Lalita Kumari vs. Govt. of U.P. & Ors.: (2014) 2 SCC 1, therefore FIR ought to have been registered in the instant case.
The prosecution for State has relied upon the ATR submitted by SI Ashok Kumar of Police Station Sagarpur, that there was a matrimonial dispute between respondent no.2 and her in-laws. As per available records no PCR call was received from petitioner herein and her husband. He further relied upon the case of Gulab Chand Upadhyaya vs. State of UP & Ors, where in it was held that where no witness need to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no “investigation” would normally be required and the procedure of complaint case should be adopted.
Learned APP further submitted that in regard to the application which the petitioner moved under section 156(3) Cr.P.C. before learned MM which was dismissed with the observation that there is no ground on which the police may be directed to register the FIR, the request under section 156(3) Cr.P.C. is declined as all the facts and circumstances are within the knowledge of the complainant including identity of the accused as well as the name and address of the concerned witnesses. Thus, there is no ground on which the assistance of the police is required. Further, if at any stage, the court is of the opinion that investigation in the matter is required, the Court is within its power to order investigation under section 202 Cr.P.C. and impugned order shall in no way bar such investigation at latter stage.
Courts Observation & Judgment
The court referred to the order of Court of Learned Metropolitan Magistrate., and made following observations, “Learned Metropolitan Magistrate has dismissed the application of the petitioner under section 156(3) Cr.P.C. by observing that all the facts leading to the complaint are within the knowledge of the complainant. Even identity of the accused is known to the complainant, evidence is within reach and no custodial interrogation is required.”
The bench noted, “It is clear from the scheme of section 156, where the police fail in its duty to register and investigate a cognizable offence, the aggrieved person may file a complaint before the concerned Magistrate. Where the Magistrate receives a complaint the word 'may' give a discretion to the Magistrate in the matter. Two courses are open to the Court; either take cognizance under Section 190 or may forward the complaint to the police under Section 156(3) Cr.P.C. for investigation.”.
The bench dismissing the Petition noted, “In view of above facts, observation made by the courts below and the law discussed, the material facts of the present case are well within the knowledge of the petitioner including the identity of the accused persons. Hence, she can establish her case while leading evidence before the trial court under section 200 of Cr.P.C. Therefore, I find no illegality or perversity in the orders passed by the Trial Court and Appellate Court.”
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