IN THE COURT OF SHRI [ENTITY] : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI C.R. No.22/2013 Unique Case ID No.02402R0125752013 Ms. [ENTITY] D/o Chandan Singh @ Ramesh Singh R/o 1/6293, Gali No.3, East Rohtash Nagar, Shahdara, Delhi110032. Petitioner Versus (1)[ENTITY], Govt of NCT of Delhi ([ENTITY] Proprietor of M/s Shivam Jewellers, IX/2467, Main Road, Kailash Nagar, ( opposite PNB), Delhi110031. (3)Sh. [ENTITY] S/o Sh. [ENTITY] (4)Sh. [ENTITY] (5)Wife of [ENTITY] All R/o A/10071, West Gorakh Park, Gali No.3, Shahdara, Delhi. Respondents Date of Institution : 26.04.2013 Date of order reserved : 13.08.2013 Date of order : 24.08.2013 C.R. No.22/2013 [ENTITY] Vs. [ENTITY] etc. Page 1 of 9 O R D E R
Vide this order, I shall dispose of a revision petition filed by the revisionist/petitioner under [SECTION] of [ACT] against order dated 08.04.2013 passed by Ld. M.M. (East) Karkardooma Courts, Delhi whereby the application of the revisionist /petitioner filed under [SECTION] of [ACT] was dismissed. 2 Notice of the petition was given to the [ENTITY]. Despite service of notice of the petition upon respondent No.3 & 4, nobody appeared on their behalf in the Court. Trial Court record has been called. I have heard learned counsel for the petitioner as well as Ld. Addl. PP for the [ENTITY] and have gone through the material available on the record.
3 The facts leading to filing of the present revision petition are that petitioner/complainant filed a complaint under [SECTION] [ACT] against respondent Nos. 2 to 5 for summoning them as accused for the offences punishable under section [SECTION] An application under [SECTION] of [ACT] seeking direction to the police to register the FIR was also moved by the petitioner. Ld. M.M. called the status report from the concerned Police Station. Ld. M.M. on appreciation of the material placed before him, dismissed the application under [SECTION] [ACT], and called the petitioner to adduce presummoning evidence. It is against that order, the present revision petition has been filed.
4 Grounds challenging the impugned order dated 08.04.2013 are that Ld. M.M. has not appreciated the complaint, documentary proof and the status report. Jewellery was purchased from respondent No.2; bills were issued in the name of respondent No.3 but the entire payment was made by the petitioner; respondent No.2 had given jewellery of low caret and less weight. Forgery in the bills was made.
5 It has been argued by Ld. Counsel for the petitioner that when allegations made by the petitioner disclosed commission of cognizable offences, police was duty bound to register FIR. He has further argued that the complaint also disclosed commission of cognizable offences by the accused persons, therefore, Ld. M.M. was having no option other than directing the police to register FIR. Ld counsel for the petitioner has relied upon an authority reported as [PRECEDENT] vs. [ENTITY] 2011(2) JCC 1414 in which it was observed that once any information disclosing commission of a cognizable offence is brought to police, the police officers is bound to register an FIR and he can not refuse to record an information on the ground that he is not satisfied with the reasonableness or credibility of the information. Another judgment in case of [PRECEDENT] vs. [ENTITY] of UP & Ors. 2008(1) JCC 113 has been relied upon in which it was observed that if an application under [SECTION] [ACT] is filed before Magistrate, he can direct the registration of FIR. 6 There is no dispute so far as legal proposition propounded in abovesaid authorities is concerned. But fact remains that it is not necessary that in every case where an application has been filed under [SECTION] of the Code, the Magistrate should direct the police to investigate the crime, even though the evidence to be led by the complainant is in her possession or can be produced by summoning witnesses.
7 The question involved in the present case is with regard to issuance of directions by the Court to the police or taking of cognizance by the Court itself on the application of the petitioner. As per [SECTION] of [ACT], when a complaint is received, the Magistrate is empowered to take cognizance of the offence disclosed in the complaint. After taking cognizance, the Magistrate can adopt two methods. Firstly, the Magistrate may forward the complaint to the police under [SECTION] [ACT], without taking cognizance, to investigate and file a report. Secondly, the Magistrate may take the cognizance of the offence disclosed in the complaint and conduct proceedings under [SECTION] of [ACT]. In this case, Ld. M.M. exercised her discretion and instead of adopting former procedure, preferred to take cognizance on the application of the petitioner and called upon the petitioner to adduce presummoning evidence by treating the application under [SECTION] [ACT] as a complaint under [SECTION] [ACT]
8 I have gone through the ratio of judgment in case titled P. Kannappan versus [ENTITY] of Kerala (Reported in 2006 (1) RCR (Criminal) 165), in which the Hon'ble Kerala High Court has observed that the Magistrate can adopt two options when a complaint is filed before him. He may direct the police to investigate and file the report. He may take cognizance and proceed under [SECTION] of [ACT] It is further observed that the complainant has no right to make a demand to refer the case to the police.
9 Similar views have been expressed by their lordships of Hon'ble Supreme Court in judgment titled Rameshbhai Pandurao Hedau vs. [ENTITY] of Gujarat, AIR 2010 SC 1877 in which it was held that the power to direct an investigation to the police is available to the Magistrate both under [SECTION] [ACT] and under [SECTION] [ACT] The powers under [SECTION] [ACT] to direct an investigation by the police is at the precognizance stage while the power to direct similar investigation under [SECTION] [ACT] is at the postcognizance stage. The Magistrate dismissed the application of the petitioner under [SECTION] [ACT] and proceeded with the complaint filed by the petitioner under [SECTION] [ACT] Hon'ble Apex Court held that there is nothing irregular in the manner in which the Ld. Magistrate has proceeded and if at the stage of [SECTION] [ACT], if deems it fit, he may either dismiss the complaint under [SECTION] [ACT] or proceed in terms of [SECTION] [ACT] The said law has been consistently followed in :
(1)Skipper Beverages Pvt. Ltd. vs. [ENTITY] 2001 ( 92) DLT 217. (2)Suresh Chand Jain vs. [ENTITY] of M.P. 2001 (I)AD (Crl.) SC 34.
10 Our own Hon'ble High Court has also observed as such in case titled Vikrant Kapoor Vs. The [ENTITY] and ors. 2012 IV AD (Delhi) 526. It was held that there was no error in the dismissal of application under [SECTION] of [ACT] by the Ld. MM as the evidence was in knowledge and possession of the petitioner. It was observed that plea of the petitioner that documentary evidence needed to be adduced by him could not have been recovered without help of police, was found to be without any merit as the petitioner could have summoned and got produced in the evidence.
11 In a recent judgment of our own Hon'ble High Court in case of Subhash Manchanda Vs. [ENTITY] & Anr. 2013 (2) RCR (Criminal) 495, it has been observed that in those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders under [SECTION] of the Code. 12 In the present case also, the Ld. M.M. rejected the prayer made in the application of the petitioner under [SECTION] of [ACT]. In the said application, the petitioner made prayer for issuance of direction to the police to investigate the matter under [SECTION] of [ACT] In my view, a complainant has no right or privilege to ask the Magistrate to refer the case to the police. It is the discretion of the Magistrate, either he can forward the complaint to the police for investigation or he himself can take cognizance and proceed under [SECTION] of [ACT]
13 In the present case, it is apparent that the accused persons as mentioned in the application are well known to the petitioner. Petitioner is also having the knowledge of the facts and circumstances of the alleged offences and the evidence is in her possession. The evidence can easily be adduced by the petitioner in support of allegations contained in the complaint, so there was no necessity to direct the police to inquire into the allegations. As per the law laid down in the above judgments, the Magistrate is of the discretion either to direct police to investigate or to himself investigate the allegations by calling the complainant to adduce pre summoning evidence. Therefore, the judgments relied upon by the petitioner in case of [PRECEDENT] (supra) and [PRECEDENT] (supra) are of no help to him as the same are distinguishable to the facts of the present case.
14 In view of laid down by Superior Courts, impugned order can not be said to be inconsistent with the law. Ld. M.M. can not be said to have failed to exercise the jurisdiction vested with him. Impugned order passed by Ld. M.M. does not suffer from any illegality, irregularity or impropriety. There is no jurisdictional error in the impugned order. Consequently, impugned order is hereby upheld. Resultantly, present revision petition is dismissed. 15 A copy of the order along with Trial Court Record be sent to Trial Court concerned. Revision file be consigned to record room.
Announced in the open Court ( [ENTITY] ) Dated: 24.08.2013 District & Sessions Judge (East) Karkardooma Courts : Delhi