[CASE NUMBER] INTHECOURTOFMS.SMITAGARG, ADDITIONALSESSIONSJUDGEFTC,WEST, TISHAZARICOURTS,DELHI. [CASE NUMBER] Inre: Smt.[ENTITY] S/oSh.DeepakKumar R/oRGBFlatNo.316,ThirdFloor, DDAFlats,RaghubirNagar, NewDelhi110027 Revisionist Versus 1) Sh.[ENTITY] S/oSh.NihalSingh 2) Smt.[ENTITY] W/oSh.[ENTITY] 3) Sh.[ENTITY] S/oSh.[ENTITY] 4) Sh.[ENTITY] S/oSh.[ENTITY] 5) Sh.[ENTITY] S/oSh.[ENTITY] AllR/oD723,Madipur, J.J.Colony,NewDelhi Respondents Dateoffilingofrevisionpetition :20.12.2016 Dateofreservingjudgment :01.09.2017 Dateofjudgment :05.09.2017 [ENTITY]. PageNo.1/7 [CASE NUMBER] JUDGMENT:
1. This revision petition under [SECTION] of [ACT] (hereinafter referred to as '[ACT]') is directed against the order dated 02.11.2016 passed by the learned Metropolitan Magistrate01 (West) whereby the application under [SECTION] [ACT]filedbytherevisionistwasdismissed.
2. Respondent no.1 and 2 are the parents in law and respondent no.3 to 5arethebrothersinlawoftherevisionist.
3. Factual matrix relevant for the disposal of the revision petition is that on 06.01.2016, the revisionist filed the complaint case under [SECTION] [ACT] alleging commission of offences under Section [SECTION] the respondents. Alongwith the complaint case, she also preferred an application under [SECTION] [ACT] seeking direction to SHO P.S PunjabiBaghforregistrationofFIRagainsttherespondents.
In the complaint case, the revisionist averred that she alongwith her husband and the respondents used to reside in a tenanted accommodation at D725, Madipur, J.J. Colony, Delhi. On 11.07.2015, the respondent no.1 asked the husband of the revisionist to pay a sum of Rs. 3000/ per month to him on the pretext that he had spent money on his marriage with the revisionist. The similar demand was made by all the respondents from the revisionist and her husband on 12.07.2015. However, upon the failure of the revisionist and her husband to comply with the demand, the respondents started giving beatings to them. The revisionist and her husband were detained in the house and all the jewellery articles of the revisionist including the jewellery given to her by her parents in marriage were taken away by the respondent no.1 & 2. Respondent no.1 & 3, who were aware that the revisionist was pregnant, gave kick blows in the stomach of the revisionist. The husband of the revisionist gave the information regarding the incident to the police. The revisionist was taken to Sanjay Gandhi Hospital where she and her husband were provided the treatment. However, the child in the womb of the revisionist could not be saved. Despite recording the statement of the revisionist and receiving complaint from her vide DD No. 46B dated 29.12.2015, no action was taken against the respondents by the police.Hence,therevisionistwasconstrainedtoapproachthecourt.
3. Vide the impugned order, the trial court dismissed the application under [SECTION] [ACT] by observing that the accused persons were known to her being the close relatives and that all the evidence required to prove the case was well within the power and possession of the revisionist. Aggrieved therefrom, the revisionist is before this court.
4. The counsel for the revisionist contended that since the allegations made in the complaint and the MLC of the revisionist disclosed the commission of cognizable offence, the trial court ought to have directed for the registration of FIR. He submitted that though the police was under an obligation to register an FIR in view of the law laid down in [PRECEDENT], but consequent upon the failure of the police to discharge its duty, the Ld. MM also erred in dismissing the application and therefore,orderdated02.11.2016isliabletobesetaside.
Per contra, the counsel for the respondents has submitted that the impugned order does not suffer from any illegality and therefore, no interferenceiscalledfor.
5. I have heard the counsel for both the parties and perused the trial courtrecord.
6. It is the settled law that when a criminal complaint disclosing the commission of cognizable offence is laid before a Magistrate, two courses are open to him. He may either choose to inquire into the complaint by taking cognizance in exercise of his power under [SECTION] [ACT] and proceed to inquire into it in accordance with the procedure laid down in [SECTION] & [SECTION] [ACT]. In the alternative, he may refer the complaint to police under [SECTION] [ACT] for investigation. In the latter case, the further process of law has to wait till the report under [SECTION] [ACT] is submitted bythepolice.
The law governing the choice to be exercised from amongst the two options has been settled by the Hon'ble High Court of Delhi in M[PRECEDENT]. In the said case, it was held that a Magistrate must apply his mind before passing an order under [SECTION] [ACT] and must not pass these orders mechanically on the mere asking of 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 necessaryforsomerecoveryofarticlesordiscoveryoffacts.
Similarly, in [PRECEDENT], while laying down the procedure to be followed by the Magistrate while dealing with an application under [SECTION] [ACT], it was held that before passing any order to proceed under [SECTION] of the Code on an application under [SECTION] [ACT], the Magistrate must also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence, which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the court at the instance of the complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under [SECTION] instead of [ACT]
Here, it would not be out of place to mention that in [PRECEDENT], it was held that the use of word 'may' in [SECTION] [ACT] in contradistinction to the word 'shall' in [SECTION] [ACT] clearly indicates that the Magistrate has thediscretiontorefusetheregistrationofFIR.
Thus, the Magistrate is not supposed to act mechanically and direct the 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 if it appears that the allegations are of serious nature which are required to be investigated by the police, then only an FIR should beorderedtoberegistered.
7. In the case on hand, the parties are known to each other. The evidence on which the revisionist relies is within her knowledge. The allegations made in the complaint can be established by the revisionist by examining herself, her husband as well as the witnesses from the hospital concerned. Moreover, if it is felt necessary, it would be open to the Ld. MM to invoke the powers under [SECTION] [ACT] at an appropriate stage of proceeding. Considering the facts and circumstances of the case, the discretion exercisedbytheLd.MMcannotbesaidtobeerroneousorillegal.
8. For the foregoing reasons, I find no merit in the revision petition and thesameis,accordingly,dismissed.
Filebeconsignedtorecordroom.
[ENTITY] ([ENTITY]) on05.09.2017 Addl.SessionsJudgeFTC,(West) TisHazariCourts,Delhi.