Interim Order 10

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CIS No. 124/2023
FIROZUDDIN Vs. NIZAMUDDIN AND ORS
PS Kamla Market
10.03.2025
Present: Complainant in person.
Vide this order, I shall decide the application u/s 156
(3) CrPC filed by the complainant.
Breifly, it is the case of the complainant that he alleged
that his father Nizamuddin and his grand father Dhola Khan had
bought property No.- 3901, 3672 & 3673 Gali Sahtara, Ajmeri Gate,
Delhi from Nasiro S/o Masita on 24.04.1987 vide sale deed. His
grand father Dhola Khan expired on 17.02.2007. His grand father
had given a shop on rent to Mahaveer, which was sold by
Nizamuddin to Mahaveer Prasad on 12.09.2018 after preparation of
forged documents and without consent of the complainant.
On the present application, ATR was called from SHO
concerned, which was filed by SI Giri Raj Singh wherein it was
reported that during enquiry, it was revealed that Mahaveer Prasad
Aggarwal stated that he had taken a godown on rent for the last 30
years on property No.- 3901, Gali Sahtara, Ajmeri Gate, Delhi from
Nizamuddin. Thereafter, he bought this godown from Nizamuddin,
the owner of godown in 8½ Lakh rupess and got the registry done
on 12.09.2018. Nizamuddin stated that the property bearing No.-
3901, 3672 & 3673 Gali Sahtara, Ajmeri Gate, Delhi were bought
by him and his father Dhola Khan together. The alleged godown
was in his name which he sold to Mahaveer Prasad. During enquiry,
it came to notice that complainant Firozuddin and alleged
Page 1/4
-- 1 of 4 --
Nizamuddin are son and father and both are advocate by profession
and having family dispute. In this regard, complainant has filed a
civil suit (eviction petition) in Tis Hazari Court, Delhi which is
pending. The complaint made by complainant Firozuddin at police
station has already been filed/closed due to civil in nature and no
police action found.
The legal position with respect to use of powers under
Section 156(3) CrPC has been laid down by the Hon’ble High Court
of Delhi in the case of M/s. Skipper Beverages Pvt. Ltd. Vs. State
2001 IV AD (Delhi), wherein it was observed, inter alia, as under :
“It is true that Section 156(3) of the Code empowers to 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 complaint himself is in possession of evidence to prove his
allegations there should be no need to pass orders U/s. 156 (3) of the
Code. This 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
interest of justice demand that the police should step in to help the
complainant.
Further, in Shri Subhkaran Luharuka vs. State ILR
(2010) VI DELHI 495, it was held that the term ‘may’ used in the
provision empowers the Magistrate to use discretion, while ordering
registration of FIR. It was observed, inter alia, as under”
“42. Thus, there are pre-requisites to be followed by the complainant
before approaching the Magistrate under Section 156(3) of the Code
which is a discretionary remedy as the provision proceeds with the word
“May”. The magistrate is required to exercise his mind while doing so.
He should pass orders only if he is satisfied that the information reveals
commission of cognizable 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.”
Page 2/4
-- 2 of 4 --
Relying upon M/s. Skipper Beverages (supra), the
Hon’ble High Court of Delhi, in the case of Vijay Gupta v.
Development Credit Bank Ltd., 2019 SCC OnLine Del 6665, has
held as follows:
'14. Thus, 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 through investigation by
the police, an FIR should be ordered to be registered. The Magistrate
can treat an application under Section 156(3) Cr.P.C. as a complaint
case, adopt the procedure of the complaint case by recording evidences
under Sections 200 and 202 203 Cr. P.C. and then either proceed under
Section 203 Cr.P.C. and dismiss the complaint if no offence is made out
on summoning the accused under Section 204 Cr.P.C. whose complicity
is disclosed in the inquiry conducted by it under Section 200 and 202
CrPC”.
The main purpose of the investigation is collection of
evidences against the proposed accused person against whom a
criminal complaint has been made. It is well settled that police
investigation is required for collection of such evidence, which is
neither in possession of the complainant nor can be produced by
witnesses on being summoned by the Court, at the instance of the
complainant and the matter is such which calls for investigation by a
State agency.
The proposed accused persons are known to the
complainant. Evidence is primarily documentary in nature. The
complainant is in possession of the sale deeds, relinquishment deed
and other relevant documents in the present case. A civil suit of
eviction regarding the property in question is already pending.
No fruitful purpose would be served by sending the
Page 3/4
-- 3 of 4 --
present complaint to the police for investigation and it would suffice
that the complainant brings the relevant material on record against
the proposed accused persons. However, if enquiry is required in
this case, assistance of section 202 CrPC can be taken. Considering
the facts, there is no ground for this court to excercise the
jurisdiction u/s 156(3) CrPC. Hence, the application u/s 156(3) is
dismissed and disposed accordingly.
Put up for consideration on cognizance of the
complaint u/s 200 CrPC on 22.05.2025.
(SAYESHA CHADHA)
JMFC-08/Central/THC/Delhi
10.03.2025
Page 4/4
-- 4 of 4 --