1 IN THE COURT OF SH. [ENTITY] ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS) DISTRICT NORTH, DELHI CR No. 13/09 SH. JASBIR SINGH, S/O SH. INDER SINGH, R/O D-111, PUNJABI BASTI, BALJEET NAGAR, NEW DELHI. PETITIONER vs STATE RESPONDENT Date of institution:26.10.09 Date of taking up the matter for the first time:19.12.09 Date of conclusion of arguments:15.01.10 Date of judgment:15.01.10 Counsel for petitioner: Sh. [ENTITY] , Advocate Counsel for respondent:Sh. [ENTITY],Additional Public Prosecutor JUDGMENT (ORAL)
1. The short question involved in the present revision is as to whether factual matrix of the present case calls for directions under [SECTION] [ACT]. It is [CASE NUMBER] Page 1 of 9 pages admitted position that under [SECTION] [ACT] it is not mandatory for the magistrate to direct registration of FIR and investigation in each case; admitted position is that it depends upon facts of the case as to whether or not directions under [SECTION] [ACT] be issued.
2. Briefly stated, the present petitioner filed a complaint under [SECTION] [ACT] alleging that he was tenant in the shop of the accused for past four years and had been paying rent regularly, though no receipts were issued; that when the accused refused to accept rent, the petitioner deposited the rent in court; that on 26.08.07 the accused broke open locks of the tenanted shop in presence of a tea vendor and after taking away articles of the petitioner, illegally dispossessed him of the shop; and that despite complaint, the local police took no action. Alongwith the complaint under [SECTION] [ACT], the present petitioner also filed an application under Section Cr. No. [SECTION] [ACT] reiterating the facts verbatim and sought directions to the SHO Patel Nagar to register a case against the accused for offence under [SECTION] [ACT].
3. By way of impugned order dated 28.07.09, learned metropolitan magistrate dismissed the application under [SECTION] [ACT] and granted liberty to the complainant to examine his witnesses in court. Hence the present revision petition. I have heard Sh. [ENTITY] counsel for revision petitioner and Sh. [ENTITY], learned Additional Public Prosecutor on behalf of respondent [ENTITY] and also perused the trial court record.
4. Learned counsel for petitioner went through the various judicial precedents cited by the learned magistrate in his lucid order to the effect that magistrate has specific powers under [SECTION] [ACT] to direct registration of FIR and investigation of the case but at the same time it is equally well settled that the magistrate need not direct [CASE NUMBER] pages registration of FIR in every case; as per settled legal position, power under [SECTION] [ACT] should be exercised in a case where complainant is not able to collect the necessary evidence or where custodial interrogation or technical investigation is required. Learned counsel for revision petitioner contended that the present case is fit for directions under [SECTION] [ACT] since recovery of the stolen articles can be done by police only; since the premises and stolen tools of the petitioner can be restored to him by police only; since witnesses of the petitioner have told him that they would make statement only before the police; and since custodial interrogation of accused is necessary in this case. As such, it is argued by learned counsel for petitioner that the learned magistrate was not correct in rejecting his application under [SECTION] [ACT].
5. Per contra, learned prosecutor defended the [CASE NUMBER] took a stand that present case does not fall in the category that would call for custodial interrogation and directions under [SECTION] [ACT].
6. Legal position being undisputed as described above, what is to be seen is whether there was any illegality, incorrectness or impropriety in the impugned order passed by the learned magistrate. I am of the considered view that there is no infirmity in the impugned order that would call for interference by way of present proceedings.
7. The articles allegedly stolen by the accused are not a necessary piece of evidence without which case of the complainant cannot be established. If the purpose is recovery of those articles, as it is so submitted today, the same is not within the domain of criminal courts. During arguments today for the first time it was also revealed that the petitioner has already filed civil suit for recovery of possession of the premises and for recovery of articles and [CASE NUMBER] Page 5 of 9 pages damages. Police cannot be used to obtain reliefs which are civil in nature, much less by way of provisions under [SECTION] [ACT].
8. I also fail to find any substance in the argument of petitioner that his witnesses have refused to make statement anywhere except police. It is not believable that a person would prefer making a statement to police than before a court. Moreover, even after making a statement before police those witnesses would still have to come to court. As such, this cannot be a ground to seek police investigation.
9. In the case of [PRECEDENT], cited by the learned magistrate in the impugned order also the allegations were regarding theft and Hon'ble High Court upheld the view that such allegations could be proved by way of oral or other evidence, without seeking police intervention. In the [CASE NUMBER] Page 6 of 9 pages said case even regarding allegations of forgery, Hon'ble High Court took a view that the same could be proved without any police intervention.
10. Further, it is nobody's case that the petitioner is unaware about identity of the offender, who has to be tracked down, which could be done only by police; the offender is well within the knowledge of the petitioner.
11. Much beyond the scope of legal propositions, learned counsel for petitioner also argued that the proceedings in complaint case as well as the civil suit would take a very long time, so directions under [SECTION] [ACT] should have been made. In the case of [PRECEDENT], cited in the case of [PRECEDENT] (supra) strong exception was taken to the growing tendency of asking the police to investigate cases under [SECTION] [ACT]. To my mind, delay in complaint case proceedings and civil [CASE NUMBER] Page 7 of 9 pages suits cannot be recognized as a ground to direct the police to investigate the alleged offences for which they can have no special contribution.
12. At this stage, learned counsel for petitioner makes a request for issuing directions to the learned magistrate for at least time bound disposal of the complaint case. In my view, no such directions can be issued by the Sessions Court and even otherwise, I find no reason to believe that learned magistrate would ignore the present case. Docket and case flow management has to be left to the absolute domain of each court without any interference unless some exceptional circumstances are pointed out. It is submitted by learned counsel for petitioner that adjournments of 4-5 months are being given in the court of learned magistrate. Unfortunately, all the courts and more so the magisterial courts are suffering with over flowing dockets therefore no case calls for priority treatment. So, I am not inclined to [CASE NUMBER] issue any such directions and encroach upon calender of the learned magistrate.
13. I find no infirmity in the impugned order dated 28.07.09 and accordingly the revision petition is dismissed being meritless.
ANNOUNCED IN THE OPEN COURT ON 15th JANUARY 2010 ([ENTITY]) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI [CASE NUMBER] Page 9 of 9 pages