Order 3

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. PAYAL SINGAL
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL,
TIS HAZARI COURTS.
Ct. Cases 650/2024
Prem Chand Aggarwal Vs. Sunil Kumar And Anr
(Burari)
ORDER
12.02.2025
1. Vide this order, I shall decide the application u/s 156 (3)
Cr.P.C, moved on behalf of the complainant against the
accused person/s for registration of FIR and investigation of
the case. The present case has been filed by Sh. Prem Chand
Aggarwal (through GPA Holder Surinder Singh Rana)
(hereinafter referred to as the complainant) against Sh. Sunil
Kumar @ Sunil Tyagi @ Mutti and State through SHO, PS
Burari
(hereinafter referred to as proposed accused persons).
2. It is the case of the complainant that he is the owner of
property/land admeasuring 333 sq. yards being part of Khasra
No. 201, Burari
(hereinafter referred to as the said property)
having purchased the same from its rightful owner in 1991
and having raised boundary wall and one room also upon it.
However, in 2006, the proposed accused person No.1 along
with his co-associates forged certain documents pertaining to
the said property claiming himself to be the owner thereof. It
is the case of the complainant that on coming to know about
the said facts, he filed a civil suit for declaration before the
Ld. ADJ Courts whereby his sale deed qua the said property
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was declared to be valid and the sale deed in favour of the
proposed accused No.1 was declared to be null and void. It is
also the case of the complainant that an FIR qua the proposed
accused person and his associates is also pending
investigation pertaining to the said forgery as committed qua
the said property. It is then the case of the complainant that in
2023, when he visited the said property, he got to know that
the proposed accused No.1 had broken open the locks of the
said property, trespassed into the same and put his locks upon
it which was in total violation of law as well as the decree
passed by the Ld. ADJ Court in his favour.
3. It is then the case of the complainant that in view of the said
illegal acts of trespass, theft and criminal intimidation as
committed by the proposed accused No.1, he approached the
police officials vide written complaint dated 06.04.2023 DD
No. 89, SHO, PS Burari and complaint dated 05.03.2024,
DCP Civil lines but no action was taken upon the same and
hence, the present application u/s 156(3) Cr.P.C, seeking
investigation at the hands of the police.
4. On receipt of the present application, Status report was called
in the matter and the same had been filed by SI Sudhir Rathi
stating that the dispute was civil in nature and no cognizable
offence was made out. It was further stating that the FIR qua
the proposed accused No.1 qua preparation of forged
documents qua the said property was pending trail before the
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Ld. JMFC, PS. Timarpur and the civil litigations qua the said
property including Contempt proceedings were also pending
before the Hon’ble Courts.
5. I have given my thoughtful consideration to the allegations
made in the complaint, the submissions made by Ld. Counsel
for the complainant and the status report filed by the IO.
6. Before proceeding any further, it is relevant to note the settled
law and the guidelines that are to weigh in the mind of the
court while deciding any application u/s 156 Cr. P.C. In this
regard, it is important to note the observations of the Hon’ble
High Court of Delhi in the case of
Shri Subhkaran Luharuka
and Anr. v. State and Anr. (2010) 170 DLT 516;
“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. It is thus not necessary that in every
case where a complaint has been filed under
Section 200 of the Code, the Magistrate should
direct the Police to investigate the crime
merely because an application has also been
filed under Section 156(3) of the Code even
though the evidence to be led by the
complainant is in his possession or can be
produced by summoning witnesses, may be
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with the assistance of the court or otherwise.
The issue of jurisdiction also becomes
important at that stage and cannot be ignored.”
7. The observations of the Hon’ble High Court of Delhi in the
case of
M/s Skippers Beverages Pvt. Ltd. v State 2001 SCC
OnLine Del 448 also become relevant in this regard:-
“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 complaint 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 complaint 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
help the complaint. The police assistance can be
taken by a Magistrate even under Sec. 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 & Ors.”
8. In view of the settled law and from a careful scrutiny of the
record, it appears that all the facts constituting the alleged
offence of alleged trespass, theft, including the documents
involved, names and whereabouts of the proposed accused
persons, are well within the knowledge and the reach of the
complainant. There does not appear any requirement of any
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scientific or technical investigation in the matter as the nature
of the matter is not complex. There is no requirement of
collection of evidence by the investigating agency as the
necessary and cogent evidence are either in the reach of the
complainant or can be summoned, through the court.
Moreover, the allegations of forgery of documents qua the
said property is already pending trial and the present
complainant has not been filed qua the said aspect. At this
juncture, the court is fructified by the observations of the
Allahabad High Court in the case of
Gulab Chand Upadhyaya
v. State of U.P., and Ors. 2002 SCC OnLine All 1221 wherein
it was observed that
:-
“21. The scheme of Cr. P.C. and the prevailing
circumstances require that the option to direct
the registration of the case and its investigation
by the police should be exercised where some
“investigation” is required, which is of a nature
that is not possible for the private complainant,
and which can only be done by the police upon
whom statute has conferred the powers
essential for investigation, for example
(1) where the full details of the accused are not
known to the complainant and the same can be
determined only as a result of investigation, or
(2) where recovery of abducted person or
stolen property is required to be made by
conducting raids or searches of suspected
places or persons, or
(3) where for the purpose of launching a
successful prosecution of the accused, evidence
is required to be collected and preserved. To
illustrate by example cases may be visualised
where for production before Court at the trial
(a) sample of blood soaked soil is to be taken
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and kept sealed for fixing the place of incident;
or (b) recovery of case property is to be made
and kept sealed; or (c) recovery under Section
27 of the Evidence Act; or (d) preparation of
inquest report; or (e) witnesses are not known
and have to be found out or discovered through
the process of investigation.”
9. In view of the observations hereinabove and keeping in mind
the totality of the facts and circumstances, the court does not
deem it fit to invoke its discretionary power vested under
section 156(3) Cr.P.C. The court is of the considered opinion
that the complainant is required to
prima facie establish the
allegations by leading pre summoning evidence u/s 200
Cr.P.C. The relief claimed u/s 156(3) Cr.P.C is declined. If at
all there shall be any need for investigation, then the
provisions u/s 202 Cr.P.C may be resorted to.
10.In view of the above, the present application u/s 156 (3)
Cr.P.C is hereby dismissed.
11.Copy of the order be given dasti.
(Payal Singal)
JMFC-09/Central/THC
12.02.2025
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