IN THE COURT OF DR. [ENTITY] BHARIHOKE ADDL. SESSIONS JUDGE06:SOUTH EAST SAKET COURT: NEW DELHI CRIMINAL REVISION NO.655/17 [ENTITY] S/o Shri Santosh Dayal R/o B8, Greater Kailash New Delhi . . . . Revisionist Versus 1. [ENTITY] 2. [ENTITY] S/o Late Shri Desh Raj Bahl R/o H.No.131, Golf Links, New Delhi 3. [ENTITY] S/o Shri S.K. Pahwa R/o M102, GK, PartI, New Delhi 4. [ENTITY] S/o Shri S.K. Pahwa R/o M102, GK, PartI, New Delhi . . . . Respondents Date of Institution : 20.12.2017 Date of Arguments : 01.02.2019 Date of Order : 05.02.2019 CR No.655/17 Page 1 of 12 ORDER
1. The present revision petition under [SECTION] of The [ACT] (hereinafter to be referred as "[ACT]") has been filed by the petitioner challenging order dated 20.09.2017 passed by learned Metropolitan Magistrate (in short "MM") therein declining prayer of the petitioner seeking registration of FIR against the respondents under [SECTION] [ACT]
2. The facts necessary for disposal of the revision petition are that on 22.09.2016 at about 2 PM, the petitioner/complainant was present in Defence Colony Club where respondent [ENTITY] came along with two persons and called the petitioner to come outside the club. When he came out, 23 persons came in car and told the petitioner that they were from police and had shown him NBW issued against him and therefore, they forcibly took him towards police station Tuglak Road. They stopped near the temple which was close to police station. The said persons also joined [ENTITY] and [ENTITY]. Thereafter [ENTITY], [ENTITY] and [ENTITY] threatened the petitioner/complainant for dire consequences/grievous hurt. They asked the petitioner to call his wife immediately otherwise they would implicate him and his family in a false case. Petitioner/complainant called his wife. When wife of the petitioner came, [ENTITY], [ENTITY] and [ENTITY] took her to residence of petitioner at Defence Colony. They asked the wife of petitioner to bring her jewellery and to arrange some cash, if she wanted that her husband be released from their custody. His wife brought the jewellery and cash of 1 Lakh as well as cheques bearing Nos.669655, 669656, 669653, 669654 and 669652 drawn on [ENTITY] Bank of India amounting to 3.75 Crores. They forced the petitioner to sign these cheques, on some blank papers and MOU. Petitioner have stated that his car bearing No.DL3CX9990 was also taken by [ENTITY]. Thereafter on 28.09.2016, petitioner gave information cumpeshbandi to SHO PS Defence Colony but no action was taken by the police station.
3. On these allegations, a complaint under [SECTION] [ACT] was filed on behalf of the complainant against the accused persons/ respondents alongwith an application under [SECTION] [ACT] for directions to the PS concerned to register the FIR which application was dismissed by learned MM vide the impugned order observing as under:
"As per the allegations of the complainant, the incident is of 22.09.2016 but he neither made any PCR call at 100 number nor lodged complaint with police on the same date. He lodged complaint on 28.09.2016 in this regard. There is no explanation for delay in lodging the complaint with PS Defence Colony. Moreover, as per the status report filed by SI [ENTITY], complainant was detained and interrogated by IO of FIR No. 30/16, PS Tuglak Road on 22.09.2016. Considering the facts and circumstances, the court is of considered opinion that there is no fact/evidence which is to be collected by the prosecution and as such there is no requirement for investigation. The complainant is having control over the evidence of the same is available with him. Subsequently, if it is deemed necessary, then inquiriendo [SECTION] [ACT] shall be initiated. In these circumstances, I am not inclined to give direction to the SHO for registration of the case. Hence the application under [SECTION] [ACT] is dismissed."
4. It is now well settled that the Magistrate is not bound to direct registration of FIR and investigation under [SECTION] [ACT] in every case even if the facts of the case disclose the commission of a cognizable offence. The objective of the police investigation is collection of evidence regarding the offence. Therefore, Police investigation is necessary only in those cases where the evidence is neither in the possession of the complainant nor can be produced by the witnesses on being summoned at the instance of the complainant or where the nature of the evidence is technical.
5. The petitioner has challenged the said order on following grounds:
a) Learned MM has passed the impugned order in the mechanical order without application of judicial mind and reason.
b) Learned trial court erred in observing that the petitioner is having all the evidence and there is no fact/evidence to be collected by the prosecution and as such there is no requirement of investigation by police.
c) Learned trial court erred in observing that the petitioner filed the complaint belatedly with the police and in not appreciating the reasons behind such delay beyond the control of the petitioner.
d) Learned trial court erred in not observing that there is enough incriminating material against Respondent No.2 for registration of FIR but the local police was not taking appropriate action against him for the reasons best known to them and there is good prima facie case in favour of the petitioner and against Respondent No.2.
e) Impugned order had been passed by merely considering the submissions of the IO with respect to status report in the case. A perusal of the status report would reveal that [ENTITY], [ENTITY] and [ENTITY] have taken the car, jewellery, cheques under duress from the wife of the petitioner. The IO did not consider it appropriate to have the statement of the wife of the petitioner from the said property have been taken under threat.
f) The series of events as evident from the status report itself clearly establishes that the petitioner was kidnapped, wrongfully restrained and confined and was made to deliver the above mentioned valuable property under threat of hurt and illegal detention/false implication.
g) Learned trial court failed to consider the offence under which FIR no.30/2016 in PS Tuglak Road was registered was under
[SECTION], [SECTION], [SECTION] [ACT] and as per the settled law, notice under [SECTION] [ACT] was mandatory to be issued to the accused before any coercive action could have been taken. There is nothing on record showing that the efforts for me to ascertain whether the procedure was adopted by the IO of the said FIR.
h) If the status report is to be believed, the involvement of the investigating officer with the respondents as apparent which fact was totally ignored by learned trial court. It is stated in the status report that the petitioner was picked from Defence Colony. However, admittedly he was not shown arrested after he delivered the above mentioned property then signed blank papers and MOU, he was released.
i) Learned trial court erred in not appreciating that the IO has no such over to get the matter settled or to retain the accused in the presence of complainant parties and the party to such delivery of properties and signing of such documents.
j) Learned trial court totally ignored the illegality committed by a police officer who after registration of FIR has no role to play in getting a better compromise which is only compoundable after the charge sheet has been filed by the permission of the trial court.
k) Learned trial court totally erred in not appreciating that in a complaint case, the case property would not be seized and is open to be misappropriated, destroyed and played around. It is only during the investigation, after registration of FIR, the police officer has the authority to seize the articles and in case they are misappropriated have changed hands to find its whereabouts.
l) The learned trial court totally ignored that the investigation of police in the case is very essential and on the allegations made in the complaint, investigation would not only be required to recover/fees the case properties but also to ascertain the truth of the allegations by various investigations like collection of CCTV footage of the club or PS Tuglak Road, or by obtaining location details from the nodal officer of the petitioner, his wife, IO and respondents.
6. Respondent No.1 being [ENTITY] accepted the notice of the petition through learned Additional Public Prosecutor for [ENTITY]. The respondent no. 2 to 4 appeared and contested the petition by filing a detailed reply to the petition.
7. The objections/submissions made by the petitioner in respect of him being kidnapped, wrongfully restrained and confined and made to deliver the abovementioned valuable property under threat of hurt and illegal detention/false implication by the IO of FIR no. 30/2016 in PS Tuglak Road was registered was under [SECTION], [SECTION], [SECTION] [ACT] or that the IO had no role or power to compound the offence or that CCTV footage is to be seized, all such submissions should have been made by the petitioner before the court concerned as the petitioner has himself mentioned about the details of the said court in para xxvii of the present petition.
8. It is further noticed that MOU as well as the delivery of the said cheques, cash and other valuables like jewellery of the wife of the petitioner is not disputed or denied by the respondents and thus learned trial court has rightly observed that there is no fact/evidence which is to be collected by the prosecution and as such there is no requirement for investigation. The submissions of the petitioner that in a complaint case, the case property would not be seized and is open to be misappropriated, destroyed and played around and it is only during the investigation, after registration of FIR, the police officer has the authority to seize the articles and in case, they are misappropriated have changed hands, to find its whereabouts are also not sustainable. The respondents have not disputed about the MOU, receipt of the valuables as well as the cheques and the petitioner of that liberty to seek the appropriate relief from the court concerned where the proceedings in respect of FIR no.30/2016 in PS Tuglak Road are pending. Even otherwise, the urgency to seize those articles or to find its whereabouts is lost in view of long time gap between the date of the alleged commission of offence by the respondents and the date of passing of this order which is about 2 years and 4 months.
9. It was observed by the Hon'ble High Court in "Mst. Qamar Jahan Vs. The [ENTITY] (Govt. of NCT of Delhi), 2014 [3], JCC 1859".
"It is well settled law that if a criminal complaint is filed before the Magistrate and upon perusal it is found that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under [SECTION] [ACT] and proceed to inquire into it in accordance with the procedure laid down in [SECTION] and [SECTION] [ACT] In the alternative, he may refer the complaint to police under [SECTION] [ACT] For investigation. In the later case, the Magistrate having given such direction would stay his hand till report under [SECTION] [ACT] Is submitted by the police, on which further process of law would follow.
The Magistrate is not supposed to act mechanically and direct 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 it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police, an FIR should be ordered to be registered.
In case Gulab Chand Upadhyay Vs. [ENTITY] of U.P. (2002) Crl.L.J. 2907, it was held that the use of the word "may" in [SECTION] [ACT] in contra distinction to the word "shall" in [SECTION] [ACT] clearly indicates that the Magistrate has the discretion to refuse registration of FIR.
The law governing the choice to be exercised from amongst the two options has been settled by the Hon'ble High Court in M/s Skipper Beverages Pvt. Ltd. vs. [ENTITY], 2001 IV AD (Delhi). 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 by 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 necessary for some recovery of articles or discovery of facts. A similar view; was taken in Meenakshi Anand Sootha vs. [ENTITY], 2007 (4) JCC 3230 Delhi.
In [PRECEDENT], the Hon'ble Supreme Court observed that when the information is laid with the police, but no action in that behalf is taken, the complainant can under [SECTION] read with [SECTION] of the code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in [SECTION] of the Code."
10. In the instant case, the parties are known to each other. Learned trial court has rightly observed that the allegations of the revisionist / complainant are in respect of incident of 22.09.16, but he neither made any PCR call nor lodged complaint with the police on the said date. He lodged complaint on 28.09.16 and did not offer any explanation for delay in lodging the complaint. Further, as per the status report filed by SI [ENTITY], revisionist / complainant was detained and interrogated by IO of FIR No.30/16 PS Tughlak Road on 22.09.18 and the relevant submissions / grievance can be sounded before the concerned court. Further, even in complaint dated 28.09.16, the revisionist has requested to acknowledge his complaint and that he did not want any action against the respondent. The evidence on which the petitioner relies is within his knowledge and control and if need were to arise for investigation, such possibility is not precluded as learned trial court has entered upon the inquiry under [SECTION] and [SECTION] [ACT] Proviso to Section [SECTION] [ACT] permits such investigation to be ordered at an appropriate stage of the proceedings. In light of the aforesaid discussion, I do not find any illegality or infirmity in the impugned order dated 20.09.2017 passed by learned MM. Accordingly, the revision petition is dismissed. Interim order dated 20.03.18 stands vacated.
11. A true copy of the order alongwith TCR be sent to court concerned.
Digitally signed by [ENTITY]
12. Revision file be consigned to record room. [ENTITY] Date:
2019.02.05 12:55:29 +0530 Announced in the open (DR.[ENTITY] BHARIHOKE) court today i.e.05.02.19 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi