Madan Lal Suryawanshi v. State & Ors.

Delhi High Court · 26 Aug 2013 · 2013:DHC:4186

S. P. Garg

CRL.M.C.1078/2013

2013:DHC:4186

criminal petition_dismissed Significant

AI Summary

The Delhi High Court held that Magistrates have discretionary power under Section 156(3) Cr.P.C. to order police investigation and are not bound to do so in every complaint disclosing cognizable offences, dismissing the petition seeking mandatory police investigation.

Full Text

CRL.M.C.1078/2013
HIGH COURT OF DELHI
Date of Decision: 26th August, 2013

CRL.M.C. 1078/2013
MADAN LAL SURYAWANSHI ..... Petitioner
Through : Petitioner in person.

VERSUS

STATE & ORS. ..... Respondents
Through : Mr.M.N.Dudeja, APP.

CORAM:

MR. JUSTICE S.P.GARG S.P.GARG, J. (ORAL)

JUDGMENT

1. The petitioner has preferred the present petition impugning order dated 10.05.2012 of learned Additional Sessions Judge whereby his revision petition being C.R.No.69/12 challenging dismissal order dated 10.10.2011 under Section 156(3) Cr.P.C was dismissed.

2. I have heard the petitioner and have examined the trial court record. Only grievance of the petitioner is that the trial court did not direct the police to investigate his complaint under Section 156(3) Cr.P.C. His plea is that the matter requires investigation through police as he is unable to collect and produce the evidence. The complaint case filed by him discloses commission of cognizable offences by the respondents. 2013:DHC:4186

3. The petitioner filed a complaint case against six police officials, two private persons and three unknown persons for committing various offences before the trial court on 5th April, 2011. Vide order dated 10th October, 2011, the application under Section 156(3) Cr.P.C was dismissed. The complainant was directed to prove his case by producing evidence and the case was adjourned for recording statements of the witnesses for 26th April, 2012. The complainant went in the revision and the revision petition was dismissed vide order dated 10th May, 2012. The petitioner thereafter filed the present petition on 15th March, 2013. The petitioner has not given any explanation for delay in filing the petition against the order passed in revision petition.

4. On merits also, I find no illegality or irregularity in the impugned order whereby the learned Magistrate declined to get the matter investigated under Section 156(3) Cr.P.C. It is well settled that when a complaint case is filed under Section 200 Cr.P.C. before a Magistrate, he has two options either to get the matter investigated through police under Section 156 (3) Cr.P.C. or to proceed under Section 200 Cr.P.C. When the Magistrate proceeds under Section 156 (3) of the Code, he passes order without taking cognizance of the offence. If he wishes to proceed under Section 200 of the Code then, he has to take cognizance of the matter and follow the procedure prescribed under chapter-XV. It is an alternative procedure which the Magistrate ‘may’ or ‘may not’ adopt at the stage when he is examining the complainant under Section 156 (3) of the Code. Under Section 200 Cr.P.C., the Magistrate has a duty to record evidence led by the complainant and also to examine his witnesses and if necessary even to call for a police report and then to decide as to whether he has to proceed under chapter-XV or has to dismiss the complaint. Section 156 (3) empowers the Magistrate to refer and direct the police to investigate the cognizable offence. It is however not necessary to refer every complaint filed under Section 200 to the police for investigation under Section 156 (3) Cr.P.C. In ‘Skipper Reverages Pvt. Ltd. vs. State’, 2001 (92) DCT 217 SC, while relying upon ‘Suresh Chand Jain vs. State of Madhya Pradesh and Ors.’, 2001 (1) AD (Cri.) SC 34, Supreme Court held:

“7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. 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 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant.-------------" 10. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of

FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore the Magistrate, must apply his mind before passing an order under Section 156(3) of the Code 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 complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.”

5. Remedy under Section 156 (3) Cr.P.C. is a discretionary one as the provision proceeds with the word ‘may’. The Magistrate is required to exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/ offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. The complainant, as a matter of right, cannot insist that the complaint case filed by him/ her should be directed in every eventuality to the police for investigation. In ‘Mohd. Salim vs. State’ (Crl.M.C. 3601/2009) decided on 10.03.2010, this Court held:

“11. The use of the expression "may" in Sub-section (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed

further in the matter, instead of passing the buck to the Police under Section 156(3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police.”

6. In the instant case, the allegations leveled by the petitioner in the complaint case are vague and uncertain. Status report filed by the police revealed that the scooter No. DL 6SY 0191 was lying abandon and was seized under Section 66 D.P. Act on 23rd September, 2010. Allegations of the petitioner are that the police officials kidnapped his son when he was sitting on the scooter and thereafter misappropriated Rs.40,000/- and some documents lying in the said scooter. Number of DD entries have been recorded at the police station regarding the seizure of the scooter under Section 66 of the D.P. Act and also regarding the intimations given by the complainant. The complainant moved an application before the ACP concerned on 24th September, 2010 for release of the said scooter and executed an authority letter in the name of his son to get it. There is no mention in the said application regarding misappropriation of Rs.40,000/- or documents. It is for the competent Court to consider all these aspects. This Court avoids any observation on the merits to prejudice the case of either of the parties. Nevertheless, these circumstances were sufficient for the courts below not to order investigation under Section 156(3) Cr.P.C and moreover, the petitioner’s case is based upon the documentary evidence which is available with the police and the copies of which have been placed on record by the petitioner himself. The petitioner can seek assistance of the Court to examine relevant witnesses and summon the relevant records to prove these contentions before the trial court. In my considered view, assistance of the police is not required to collect evidence on this aspect. The discretion has been exercised diligently and the petitioner’s right to pursue the case has not been foreclosed. File reveals that despite various opportunities granted by the trial court, the petitioner has not come forward to examine himself or his witnesses in the complaint case.

7. The petition is unmerited and is dismissed. It is made clear that the observations in the impugned order will have no impact upon the merits of the case.

JUDGE AUGUST 26, 2013 rb

Madan Lal Suryawanshi v. State & Ors.

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation