Final Order 6

Order Details: COPY OF ORDER
Pdf Text: Cr Rev 694/2023
Suresh Chand Sharma Vs. Roopram & Ors.
15.04.2024
Present: Sh. Piyush Sachdev, Ld. LAC for the petitioner
along with petitioner in person.
Ms. Promila, Ld. Counsel for respondent no.1 along
with said respondent.
Sh. Subhash Chander, Ld. Counsel for respondent
no.2 along with said respondent.
None for respondent no.3.
IO SI Sudeep Chauhan on behalf of respondent no.4.
1. Summons sent to respondent no.3 Sajjan Kumar are
received back with the report that he has expired on 07.01.2022.
Accordingly, his name be deleted from the array of respondents.
2. Arguments on the revision petition are heard. Case
file and trial court record are carefully perused.
3. Vide present revision petition, complainant/
petitioner has assailed the order dated 06.07.2023 of Ms.
Anamika, Ld. MM-06, NDD, PHC, New Delhi whereby his
application u/s.156(3) CrPC was dismissed and cognizance of the
alleged offence in his complaint case no. 168/2023 was declined.
4. Briefly stated, on 27.01.2023, the petitioner had
instituted an application/complaint u/s. 156(3) CrPC read with
section 200 CrPC against respondent nos.1 to 3 namely
Roopram, Raghbir Singh and Sajjan Kumar for directing
respondent no.4 SHO concerned to register an FIR against them
and in alternative to take cognizance against respondent nos. 1 to
3 for the offence u/s. 323/504/506/34 IPC and any other relevant
provisions of the Act as applicable. The Ld. Trial Court called for
action taken report from SHO PS Parliament Street and pursuant
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to the said order, ATR was filed by inquiry officer SI Sudeep
which was duly forwarded by SHO PS Parliament Street.
Thereafter, vide impugned order dated 06.07.2023, the said
application of the complainant was dismissed. Pertinently, vide
said order, the ld. Trial Court even declined cognizance under
Section 190(a) CrPC and rejected the complaint of the petitioner.
5. The allegation in the complaint are that on
21.04.2013, he took a bus of route No. 408 bearing Registration
No. DL-1PC-0385 from Pandit Pant Marg Kendriya Terminal at
around 2:00-2:30 p.m. He was in queue to take his bus ticket. At
that time, the ATIs namely Roopram and Raghubir Singh
(respondent nos.1 & 2) caught him and forced for challan of
Rs.200/-. Respondent No.1 forcefully put his hands in his pocket
to take the money. Further, they gave beatings and abuses to him
due to which he was badly injured and he called the police at 100
number. Thereafter, the respondents themselves threw stones on
the bus and damaged it in order to make a false complaint against
him. The police visited the spot and conspired to make a case
under Section 3 PD Act and under Section 124/177 M.V. Act.
Thereafter, the petitioner also filed a complaint case No.136/01/
2014 which was later on withdrawn by him. The grievance of the
petitioner is that despite commission of cognizable offence,
police failed to register an FIR against the respondents.
6. As per ATR, on 21.04.2013, a PCR call vide GD No.
16A was marked to ASI Raj Kumar. ATI Roopram and the
complainant came to the PS where it was found that when ATI
Roopram was doing his duty on DTC bus, he asked the
complainant to show his ticket but he did not show the same.
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Thereafter, the complainant was asked to deboard the bus. The
complainant deboarded but threw a stone on the bus causing
damage to its glass window. An FIR No.63/2013 U/s. 3 PD Act
and U/s. 124/177 M.V. Act was registered against him. Charge-
sheet was filed in the said matter on 21.05.2013 and the
petitioner was convicted in the said case by the Ld. Trial Court
on 28.09.2019.
7. Ld. Counsel for the petitioner has contended that the
Ld. Trial Court has failed to lawfully exercise its jurisdiction u/s.
156(3) CrPC. He has contended that the allegations in the
complaint discloses the commission of cognizable offence and
therefore, the SHO concerned is duty bound to register an FIR on
the complaint of the petitioner. He has further contended that
investigation in this case is required to be conducted for
collecting and producing the evidence in the court. He has further
contended that the police officials have misused their powers in
registering the FIR of respondent no.1 and arbitrarily choosing to
ignore the complaint of the petitioner even though it is disclosing
cognizable offence. He has requested that the impugned order be
set aside and SHO PS Parliament Street be directed to register an
FIR into the allegations made by the petitioner. The other
grievance of the petitioner against impugned order is that the Ld.
Trial Court even declined to take cognizance of the alleged
offence. Therefore, it is alternatively prayed that the impugned
order may be set aside to the extent of declining of cognizance
and the Ld.Trial Court be directed to take cognizance of his
complaint, by treating his said application as a complaint u/s.200
CrPC.
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8. On the other hand, ld. Counsel for the respondent
has vehemently opposed the present petition.
9. Section 156(3) CrPC states that any Magistrate
empowered u/s. 190 CrPC may order investigation. The use of
word 'may' in the said section shows that it is not mandatory and
it is discretionary. However, the said discretion has to be
exercised lawfully and reasonably after taking into account all
the facts and circumstances of each case. Thus, in the instant
case, it is required to be considered whether the ld. Trial Court
has lawfully exercised his discretion contained in said section.
10. On receipt of a complaint disclosing commission of
a cognizable offence and an accompanying application u/s.
156(3) CrPC, Ld. MM has three options i.e. firstly, to direct
registration of an FIR u/s. 156(3) CrPC, secondly, to decline the
application u/s. 156(3) CrPC and take cognizance of offence u/s.
200 CrPC and thirdly, to dismiss the said application and decline
the cognizance too. In the instant case, the Ld. Trial Court has
availed the third option of dismissing the application u/s. 156(3)
CrPC and declining to take cognizance of the alleged offence.
11. The law relating to Section 156(3) CrPC has been
elaborately discussed and laid down by the Hon'ble Higher
Courts in catenae of their judgments. The Hon'ble Apex Court in
Priyanka Srivastava & Anr. Vs. State of UP 2015 SC 1758 held
as under-
“26. At this stage it is seemly to state that power
under Section 156(3) warrants application of judicial
mind. A court of law is involved. It is not the police
taking steps at the stage of Section 154 of the code. A
litigant at his own whim cannot invoke the authority of
the Magistrate. A principled and really grieved citizen
with clean hands must have free access to invoke the
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said power. It protects the citizens but when pervert
litigations takes this route to harass their fellows
citizens, efforts are to be made to scuttle and curb the
same.”
The Hon'ble Delhi High Court in M/s.Skipper
Beverages Pvt. Ltd. vs State 2001 IV AD Delhi 625 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 20001 (1) Supreme Page 129 titled
Suresh Chand Jain Vs. State of Madhya Pradesh &
Ors.”
It further discussed the scope and application of
Section 156 (3) CrPC in para no.10 of the said judgment and it is
reproduced as under :-
“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 inquiry under Chapter
XV and proceed against the accused if required.
Therefore, a Magistrate, must apply his mind before
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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.”
12. In the instant case, in respect of the alleged incident,
an FIR was lodged against the petitioner herein u/s.3 PD Act and
u/s. 124/177 Motor Vehicle Act PS Parliament Street. In the said
FIR, charge-sheet was filed and he was convicted on 28.09.2019.
13. Ld. Trial Court has rightly observed in the impugned
order that the facts of the case and identity of the accused persons
are within the knowledge of the petitioner. Therefore, no fruitful
purpose would be served in sending the case to police for its
investigation. Further, as discussed in succeeding paragraphs, the
limitation period for taking cognizance of the alleged offence has
expired, the allowance of the application u/s. 156(3) CrPC would
have been a futile exercise.
14. Moreover, the Ld. Trial Court has rightly held that
the allegations made in the complaint, prima facie discloses
commission of the offence punishable u/s. 356 IPC only, even if
it is believed to be a gospel truth. The maximum punishment
prescribed for the said offence is two years and therefore, as per
Section 468(2)(c) CrPC and Section 469 CrPC, the limitation
prescribed for taking its cognizance is three years from the date
of the offence. The petitioner gave first complaint regarding the
present case on 09.01.2020 i.e. almost seven years after the
commission of the alleged offence. He was aware about the
alleged offence and identity of the alleged accused persons on the
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alleged date of incident i.e. on 21.04.2023. However, he kept on
hibernating on his rights to institute a complaint for the alleged
offence for almost seven years for the reasons best known to him
and which he chose to keep surreptitious. The law comes to the
rescue of vigilant and not a dormant. In the instant case, the
petitioner has woken up from slumber after he was convicted in
respect of the same incident and has tried to rake up a stale claim.
The petitioner had neither sought condonation of delay u/s. 473
CrPC for delay in filing of the complaint nor he had advanced
any justifiable reason for the said delay. Therefore, there was no
occasion for the Ld. Trial Court to consider condonation of delay
in taking of cognizance on the said inordinately delayed
complaint. In these circumstances, bound by the provisions of
Chapter XXXVI (from Section 467 to 473 CrPC) of CrPC, the
Ld. Trial Court has lawfully declined the cognizance of the
complaint u/s. 190(a) CrPC. Therefore, no ground is made out to
interfere in the legally sustainable impugned order. Accordingly,
the revision petition is hereby dismissed.
15. The trial court record be returned along with copy of
this order for its consignment to the record room through the Ld.
Trial Court. As prayed, copy of this order be given dasti to both
the parties.
16. Revision file be consigned to the record room after
due compliance.
(Dheeraj Mor)
Addl. Sessions Judge-06,
NDD/PHC/ND/15.04.2024
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