Order 5

Order Details: COPY OF ORDER
Pdf Text: 1Ashok Kumar Taneja Vs. Hari Krishan & Ors.
CT Case No. 1403/2023
PS: Geeta Colony
08.10.2024
Present: Sh. Puneet Goel, Counsel for the complainant.
Arguments heard on the application u/s. 156(3) Cr.P.C.
Put up for order on application u/s. 156(3) Cr.P.C. at 04:00 PM
today.
(BHANU PRATAP SINGH)
JMFC-02(E):KKD COURTS/DELHI
At 04:00 PM.
Present: None.
By this order, the Court shall dispose of the application of
complainant under section 156(3) of Cr.P.C. in which the complainant has
prayed for registration of FIR against the accused persons for offences under
Section 465/467/471 of IPC.
The law relating to Section 156(3) Cr.P.C has been clarified in the
following cases:
In M/s. Skipper Beverages Pvt. Ltd. Vs. State 2001 IV AD
(Delhi), it was held that:
“
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
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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 the help of the complaint.
The Court is supposed to order investigation as per the guidelines
issued by the Hon'ble Delhi High Court in the case of Subh Karan Luharuka
& anr Vs. State & anr 2010(3) JCC 1972, where it is laid down as under:
“52A. For the guidance of Subordinate Courts, the
procedure to be followed while dealing with an
application U/s 156 (3) of the Code is summarized
as under:
(i) Whenever a Magistrate is called upon to pass
orders under Sec 156 (3) of the code, at the outset,
the Magistrate should ensure that before coming to
the Court, the complainant did approach the police
officer in charge of the Police of Station having
jurisdiction over the area for recording the
information available with him disclosing the
commission of a cognizable offence by the
persons/persons arrayed as an accused in the
complaint. It should also be examined as to what
action was taken by the SHO, or even by the
senior officer of the Police, when approached by
the complainant under Section 154 (3) of the
Code.
(ii) The Magistrate should then form his own
opinion whether the facts mentioned in the
complaint disclose commission of cognizable
offence by the accused persons arrayed in the
complaint which can be tried in his jurisdiction.
He should also satisfy himself about the need for
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investigation by the police in the matter. A
preliminary enquiry as this is permissible even by
an SHO and if no such enquiry has been done by
the SHO, then it is all the more necessary for the
Magistrate to consider all these factors. For that
purpose, the Magistrate must apply his mind and
such application of mind should be reflected in the
Order passed by him.
Upon a preliminary satisfaction, unless there are
exceptional circumstances to be recorded in
writing, a status report by the police is to be called
for before passing final orders.
(iii) The Magistrate when approached with a
complaint under Section 200 of the Code, should
invariably proceed under Chapter XV by taking
cognizance of the complaint, recording evidence
and then deciding the question of issuance of
process to the accused.
In that case also, the Magistrate is fully entitled to
postpone the process if it is felt that there is a
necessity to call for a police report under Section
202 of the Code.
(iv) Of course, it is open to the Magistrate to
proceed under Chapter XII of the Code when an
application under Section 156 (3) of the Code is
also filed alongwith a complaint U/s 200 of the
Code if the Magistrate decides not to take
cognizance of the complaint. However, in that
case, the Magistrate, before passing any order to
proceed under Chapter XII, should not only satisfy
himself about the pre requisites as aforesaid, but,
additionally, he should also be satisfied that it is
necessary to direct Police investigation in the
matter for collection of evidence which is neither
in the possession of the complainant nor can be
produced by the 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 Magistrate must pass an order
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giving cogent reasons as to why he intends to
proceed under Chapter XII instead of Chapter XV
of the Code.”
In the present case the identity of accused is known to the
complainant which is evident from the averments made in the present
complaint. Further, the complainant is privy to the allegations made in present
complaint and all the necessary facts are in the knowledge of the complainant
and complainant can lead evidence to support his allegations. Therefore, the
investigation by the police is not required at this stage.
In view of the aforesaid reasons, the application u/s 156(3) Cr.P.C
stands dismissed. The complainant is granted an opportunity to lead pre-
summoning evidence in support of her allegations.
Re-notify for pre-summoning evidence on 30.01.2025.
Announced in open Court
on 08.10.2024 (BHANU PRATAP SINGH)
JMFC-02 (EAST):KKD COURTS/DELHI
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