A magistrate can before taking cognizance of an offense under section 190(1)(a), direct Police investigation under section 156(3): Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision : 06.12.2021 CRL.M.C. 3147 2021 CRL.M.A. 19489 2021 & CRL.M.A. IN THE MATTER OF: SH. NARENDRA BABU GAUTAM ..... Petitioner Through: Mr. Harish Chand Sharma Advocate. THE STATE & ANR. ..... Respondents Through: Ms. Neelam Sharma APP for State. HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J.The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner complainant assailing the order dated 18.01.2020 passed by the learned Metropolitan Magistrate Shahdara Karkardooma Courts Delhi in CC No. 1866 16 whereby the petitioner’s application filed under Section 156(3) Cr.P.C. was dismissed as well as the order dated 11.10.2021 passed by the learned Addl. Sessions Judge 04 Shahdara Karkardooma Courts Delhi in CR No. 34 2020 whereby the revision petition filed by the petitioner was dismissed and order dated 18.01.2020 upheld. The petitioner also seeks a direction to the learned Magistrate to send the complaint case to the concerned SHO IO for registration of appropriate FIR besides a stay of CRL.M.C. 3147 2021 the proceedings pending before the learned Magistrate in the aforesaid complaint case. Vide order dated 18.01.2020 the learned Metropolitan Magistrate while dismissing the application of the petitioner filed under Section 156(3) Cr.P.C. had taken cognizance of the offence under Section 190(1)(a) Cr.P.C. and listed the matter for pre summoning evidence. Brief facts as borne out from the material placed on record are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C 5 Gaurav Apartments Plot No. 1 I.P. Extension Patparganj New Delhi hereinafter referred to as ‘the said property’) which is stated to be owned by the present petitioner along with his two brothers namely Raj Bahadur Dohare and Ram Naresh Dohare. One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent of Rs.4 500 for the period commencing from 04.02.2015 to 04.12.2015. On 04.04.2015 a complaint came to be filed by the petitioner at Police Station Madhu Vihar Delhi which was registered vide DD No. 4B dated 04.04.2015. In the complaint it was alleged that the petitioner’s wife was trying to get the said property vacated by criminal means in furtherance of which two persons had come to the said property on 03.04.2015 in the petitioner’s absence and broken the main lock as well as the locks of the rooms with an intention to take forcible possession of the said property. It was further alleged that the said persons had also broken the lock of the tenant’s room and committed theft of certain valuable items CRL.M.C. 3147 2021 of the petitioner and his tenant. When the police did not take any action on his complaint the petitioner filed a Criminal Complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. seeking direction for registration of the FIR under Sections 380 406 452 506 IPC on the allegation that respondent No. 2 and other accused persons had taken forcible possession of the said property in his absence. On notice being issued an Action Taken Report was requisitioned. In the ATR it was stated that during enquiry respondent No. 2 claimed to be in continuous possession of the said property alongwith the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required as the entire evidence was within the control of the petitioner. Since no investigation on the part of the police was required the petitioner s application under Section 156(3) Cr.P.C. was dismissed. However the petitioner was permitted to lead pre summoning evidence. On the petitioner s challenge of the aforesaid order the learned Addl. Sessions Judge concurred with the view taken by the learned Magistrate and upheld the Learned counsel for the petitioner submits that police investigation is required in the present case and the Courts below have erroneously dismissed the petitioner’s complaint. It is contended that on the day of the incident respondent No. 2 had illegally tried to take forcible possession of the said property in absence of the petitioner by resorting to criminal means. In this regard learned counsel has placed reliance on certain photographs as CRL.M.C. 3147 2021 well as on the entry gate register of the concerned society and further submitted that the same show that respondent No. 2 alongwith Vikas and Dharam Singhhad committed the alleged offence. Learned APP for the State on the other hand has supported the impugned orders. It is submitted that the Courts below have rightly arrived at a consistent conclusion that the entire evidence being in possession of the petitioner no investigation by the police is required in the present case. I have heard learned counsels for the parties and perused the entire material placed on record. Before proceeding to analyze the submissions made I deem it expedient to recapitulate the position of law on the issue arising in the present case which has been expounded by the Supreme Court in H.S. Bains Director Small Saving Cum Deputy Secretary Finance Punjab Chandigarh v. State reported as 4 SCC 631 and CREF Finance Ltd. v. Shree Shanthi HomesLtd. and Another reported as 2005) 7 SCC 467. In H.S. Bainsthe Supreme Court had held: 6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However if he thinks fit he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the CRL.M.C. 3147 2021 purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand in the first instance on receipt of a complaint the Magistrate may instead of taking cognizance of the offence order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200 203 and 204. Thus a Magistrate who on receipt of a complaint orders an investigation under Section 156(3) and receives a police report under Section 173(1) may thereafter do one of three things:he may decide that there is no sufficient ground for proceeding further and drop action he may take cognizance of the offence under Section 190on the basis of the police report and issue process this he may do without being bound in any manner by the conclusion arrived at by the police in their report he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be." CRL.M.C. 3147 2021 9. While citing with approval the decision in H.S. Bainsthe Supreme Court in Vasanti Dubey v. State of Madhya Pradesh reported as2 SCC 731 had also expounded on the issue under consideration as follows: “20. … ‘1. When a Magistrate receives a complaint he may instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante 2. Where after completion of the investigation the police sends an adverse report under Section 173(1) the Magistrate may take any of the following steps: If he agrees with police report and finds that there is no sufficient ground for proceeding further he may drop the proceeding and dismiss the complaint. ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii) Even if he disagrees with the police report he may either take cognizance at once upon the complaint direct an enquiry under Section 202 and after such enquiry take action under Section 203. However when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant the Magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed in Abhinandan Jha which was relied upon in Ram Naresh Prasad.” In Madhao and Another v. State of Maharashtra and Another reported as 2013) 5 SCC 615 it was further held as under: “18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a CRL.M.C. 3147 2021 matter which was primarily the duty of the police to investigate he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier in the case of a complaint regarding the commission of cognizable offence the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV he is not competent to revert back to the pre cognizance stage and avail of Section 156(3).” 11. Adverting to the facts of the present case it is noted that at the time of the incident there existed matrimonial discord as well as a prior dispute with respect to possession of the said property between the petitioner and respondent No. 2. Both the parties have claimed ownership of the said property and as per the aforementioned ATR both the petitioner as well as respondent No. 2 were in possession of keys thereof. It is worthwhile to note that by way of an application filed on 20.05.2017 the petitioner had sought to bring on record a pen drive containing CCTV footage of the incident and alleged that four persons in total i.e. respondent No. 2 her daughter and two persons namely Vikas and Dharam Singh had committed the offence. 13. During arguments learned counsel for the petitioner has submitted that the identity of the two persons assailants who had accompanied respondent No.2 and her daughter on 03.04.2015 needs to be ascertained and police investigation is required for the same. However as noted above in the application dated 20.05.2017 filed by the petitioner himself the names of the two persons assailants were mentioned as Vikas and Dharam Singh. Further for establishing the identity of the aforesaid two persons the petitioner himself has placed reliance on the entry gate register of the CRL.M.C. 3147 2021 concerned society wherein the names as well as mobile numbers of the said persons are mentioned. Noticing the same the learned Metropolitan Magistrate had concluded that neither custodial interrogation nor police investigation was required in the present case more so as the entire evidence was in possession of the petitioner. In revision the Sessions Court also reached the same conclusion and upheld the order of the learned In view of the foregoing analysis and the exposition of law cited hereinabove this Court is also of the view that the learned Magistrate rightly dismissed the petitioner s complaint took cognizance under Section 190(1)(a) Cr.P.C. and proceeded to examine the petitioner under Section 200 Cr.P.C. by listing the matter for pre summoning evidence. There is no gainsaying that if any enquiry is required at a later stage the concerned Court will be empowered to hold the same under Section 202 Cr.P.C. 15. Accordingly as no illegality or perversity in the impugned orders is discernible the same are upheld. The present petition being devoid of any merits is dismissed. Miscellaneous applications are disposed of as MANOJ KUMAR OHRI) JUDGE DECEMBER 06 2021 CRL.M.C. 3147 2021 

Summary: The issue was with respect to taking cognizance of an offense by the Magistrate when FIR is not registered by the police. This was clarified in the case of SH. Narendra Babu Gautam v. The State and Another, decided on December 6th, 2021 by Hon’ble Mr. Justice Manoj Kumar Ohri. The facts of the case are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord, respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C-5, Gaurav Apartments, New Delhi is stated to be owned by the petitioner, along with his two brothers. One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent. Later, a complaint came to be filed by the petitioner at Police Station Madhu Vihar, Delhi, that the petitioner’s wife was trying to get the said property vacated by criminal means, in furtherance of which, two persons had come to the said property on 03.04.2015 in the petitioner’s absence and broken the main lock as well as the locks of the rooms. It was further alleged that the said persons had also broken the lock of the tenant’s room and committed theft of certain valuable items of the petitioner and his tenant. When the police did not take any action on his complaint, the petitioner filed a Criminal Complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. In the ATR, it was stated that during enquiry, respondent No. 2 claimed to be in continuous possession of the said property, along with the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State, the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required, as the entire evidence was within the control of the petitioner. Hence dismissed the complaint. The counsel for petitioner contends that police investigation is required in the present case and the Courts below have erroneously dismissed the petitioner’s complaint. It is contended that on the day of the incident, respondent No. 2 had illegally tried to take forcible possession of the said property in absence of the petitioner by resorting to criminal means. In this regard, learned counsel has placed reliance on certain photographs as well as on the entry gate register of the concerned society and further submitted that the same show that respondent No. 2, alongwith Vikas and Dharam Singh had committed the alleged offence. The Counsel for the State, on the other hand, has supported the impugned orders. It was submitted that the Courts below have rightly arrived at a consistent conclusion that the entire evidence being in possession of the petitioner, no investigation by the police is required in the present case. After considering the arguments of both the parties, The court before giving its opinion had reiterated the Supreme Court judgements in the case of H.S. Bains, Director, Small Saving-Cum Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) &amp; Vasanti Dubey v. State of Madhya Pradesh, where it was decided that, “When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3); However, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take necessary steps”. In the present case, the the petitioner had sought to bring on record a pen drive containing CCTV footage of the incident and alleged that four persons in total, i.e., respondent No. 2, her daughter and two persons, namely Vikas and Dharam Singh, had committed the offence. Further, for establishing the identity of the aforesaid two persons, the petitioner himself has placed reliance on the entry gate register of the concerned society, wherein the names as well as mobile numbers of the said persons are mentioned. Noticing the same, the learned Metropolitan Magistrate had concluded that neither custodial interrogation nor police investigation was required in the present case, more so, as the entire evidence was in possession of the petitioner. In revision, the Sessions Court also reached the same conclusion and upheld the order of the learned Magistrate. In view of the foregoing analysis and the exposition of law cited hereinabove, this Court is also of the view that the learned Magistrate rightly dismissed the petitioner’s complaint. Hence the petition was dismissed.