Varun Jain v. Ajay Kalsi

justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.” (emphasis supplied)

14. At the outset, a reference can be made to Section 156 of the CrPC, which reads as under:

15. Thus, while exercising powers under Section 156(3) of the CrPC and directing the registration of an FIR, the Magistrate/Special Court needs to ensure that a cognizable offence is disclosed from the allegations mentioned in the application and the essential elements of the alleged offences, thereof, are prima facie satisfied.

16. In the judgment delivered by this Court in the case of Skipper Beverages Pvt. Ltd. v. State: 2001 SCC OnLine Del 448, it was held as under:

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. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled “Suresh Chand Jain v. State of Madhya Pradesh”

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. (Emphasis supplied)

17. Thus, once a complaint/application under Section 156(3) of the CrPC is filed, the Magistrate can exercise the option of applying his own judicial mind to the entire material on record and ‘may’ direct registration of FIR. However, at times, the Magistrate also calls for a report from the police as to why no action had been taken on an earlier complaint filed by the complainant with the police, and thereafter, once a report is filed by the police, the Magistrate applies his mind to the material before him i.e. the complaint as well as the Action Taken Report which constitutes a ‘preliminary inquiry’ conducted by the police. After this, the Magistrate may make up his mind to either order registration of FIR or otherwise. Preliminary Inquiry in Present Case: The Action Taken Report filed by the police before the learned Magistrate contained a detailed account of preliminary inquiry conducted by the police. To summarise, a perusal of contents of the Action Taken Report reveals as under:

(i) No cognizable offence was disclosed from the contents of complaint;

(ii) The documentary evidence is already on record;

(iii) The accused persons are already known to the complainant; the assistance of investigating agency is not required for the collection of the evidence.

(iv) The terms and conditions of the contract sale between the parties mentions that the car dealer did not have any responsibility regarding the correctness of kilometers reading in Odometer.

17. Keeping in perspective the aforesaid observations, this Court has carefully perused and examined the records of the case including the orders impugned before this Court.

18. In Subhkaran Luharuka & Anr. vs. State: (2010) 170 DLT 516, it was observed as under:

their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even thought of a limited nature." (Emphasis supplied)

20. It is apparent that the petitioner is merely seeking the assistance of the police to conduct a fishing and roving inquiry. As is evident from the above narration of facts and the Action Taken Report filed by the Police before the learned ASJ, all pertinent facts and evidence are within the petitioner’s knowledge and reach, and he can present such information during the inquiry conducted by the learned MM pursuant to Section 200 of the CrPC. Given these factors, the need for police involvement in evidence collection appears to be minimal, as the complainant is well-equipped to facilitate the presentation of evidence on his own behalf.

21. In my opinion, the learned MM and the learned ASJ have rightly relied upon the judgments in Subhakaran Luharuka v. State (Govt. of NCT of Delhi): 2010:DHC:3345 and Skipper Beverages Pvt. Ltd. v. State (supra), wherein it was held that when the allegations are not particularly severe, and the complainant already possessed sufficient evidence to support their claims, there may be no necessity to pass orders under Section 156(3) of the CrPC.

22. In the instant case, this court is of the opinion that no exceptional circumstances have been presented to warrant the exercise of its extraordinary jurisdiction under Section 482 of the CrPC. There is no indication of any miscarriage of justice or legal irregularity in the proceedings undertaken by the two lower courts, and the petitioner has not pointed out any such deficiencies.

23. In view of the above, I find no infirmity in the impugned order dated 03.06.2024 passed by the learned ASJ, and the same cannot be faulted with.

24. The petition, is, therefore, dismissed. AMIT MAHAJAN, J JULY 9, 2024