Interim Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Ct. Cases 1390/2024
Mahesh Gupta Vs. Himanshu Gupta And Ors
PS (Sarai Rohilla)
04.09.2025
Present: Sh. Tushar Yadav, Ld. Proxy counsel for the
complainant.
Arguments on application u/s 175(3) BNSS heard.
Put up for orders at 04:00 pm.
(Manuj Kaushal)
JMFC-04/Central:
Delhi/04.09.2025
At 04:00 pm
Matter is fixed for passing of order on the application
filed by the applicant under Section 175(3) of the Bhartiya Nagarik
Suraksha Sanhita, 2023 (henceforth BNSS, 2023) seeking
directions to the SHO, PS Sarai Rohilla to register an FIR and to
investigate the matter.
Briefly stated, it is the complainant’s case that the
complainant is the owner of the property i.e. godown situated at
19/92, Sarai Rohilla, Delhi and the same has been let out to a tenant
namely Sh. Vinay Rathore. It is the complainant’s case that on
20.04.2024 at around 02:26 PM, accused no.1 to accused no.4
deliberately with malafide intention entered into the aforesaid
godown of the complainant ander started videography of the
premises from his mobile phone and threatened the staff and
labourers for vacating the property. It is further stated that when
the staff opposed the accused persons they misbehaved and
manhandled the staff. It is further stated that the said incident was
also recorded in the CCTV footage. It is further the complainant’s
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case that the complainant fave a complaint to SHO PS Sarai
Rohilla and higher police officials however, no action was taken.
ATR was filed by the enquiry officer who has stated
that the nature of the dispute between the parties is civil in nature.
Arguments heard. Records perused.
Before examining the merits of the aforesaid
application, I find it expedient to refer to the law regarding Section
156(3) of CrPC, 1973 which is analogour to Section 175(3) of
BNSS.
In
M/s. Skipper Beverages Pvt. Ltd. v State, 2001(2)
JCC (Delhi) 67, the Hon'ble High Court, has observed as under:
“It is true that Section 156(3) of the Code empowers to
Magistrate to direct the police to register a case and
intimate 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. 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 the help of the
complainant”.
In the case of
Mohd. Salim vs State, (2010) 175 DLT
473 :
“11. The use of the expression may" in sub-section (3) of s.
156(3) 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, straight away take cognizance
of the alleged offence and proceed under s. 200 of the Code
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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 straight away 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 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”.
This being the legal position, based on the averments
made in the application, arguments furthered by the counsel and
documents filed on record, I am of the view that no case is made
out for directing registration of FIR. The reasons for reaching this
conclusion are as follows:
1. A perusal of the record shows that the case of the
complainant is substantially based upon the oral and documentary
evidence of the applicant. The allegations in the application clearly
shows that the evidence is within the control of the applicant.
2. No assistance of investigating agency is required and the
facts and circumstances of the case are within the knowledge of the
applicant.
3. That the contents of the application made by the
complainant reveal that the complainant is well conversant with
the identity of the accused.
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In light of the aforesaid, the exercise of discretionary
power under Section 175(3) of BNSS, 2023 is declined and the
aforesaid application is dismissed.
Before parting with this Order, it is clarified that the
option of directing police investigation under Section 225 of
BNSS, 2023 is kept open for consideration after examination on
oath of the complainant and his witnesses under Section 223 of
BNSS, 2023.
Complainant is at liberty to lead PSE on 10.12.2025
(Manuj Kaushal)
JMFC-04/Central:
Delhi/04.09.2025
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