Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI RAVI, JUDICIAL MAGISTRATE FIRST
CLASS-07, PATIALA HOUSE COURTS NEW DELHI DISTRICT:
NEW DELHI
Ct Cases 6939/2023
Spize Hospitality vs. Startrek Holdings Pvt. Ltd.
PS: Vasant Vihar
15.07.2025
ORDER
1. By way of this order, the present application under 175 (3) B.N.S.S 2023 shall be decided
upon and disposed of.
2. By way of this order, the present application under 156 (3) Cr.P.C 1973 shall be decided
upon and disposed of.
3. The brief facts of the case as alleged in the complaint are that the complainant is a partner
in the firm M/s Spize Hospitality and was in lawful possession of premises bearing No.
32, First Floor, Basant Lok Complex, Vasant Vihar, New Delhi, pursuant to a registered
lease deed dated 25.06.2013 executed with the accused no. 1 company, Startrek Holdings
Pvt. Ltd., for a lease term beginning 01.08.2012 till 31.07.2021. The complainant was
operating a bar and restaurant under the name and style of “High Street Restaurant” and
claims to have been duly licensed under GST, Excise, Fire and other applicable
regulations. In or around September 2022, it is alleged that accused no. 3 and 4, namely
Sh. Rakesh Ranjan and Sh. Amrender Singh, approached the complainant's staff and
claimed ownership over the premises. They allegedly undertook illegal constructions
including creation of a mezzanine floor, and carried out unauthorized extensions causing
disruption and obstruction in access to the complainant's unit. It is averred that these
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persons in connivance with each other, trespassed into the complainant's premises with
hired bouncers removed and misappropriated valuable equipment fittings and documents
belonging to the complainant and issued life threats in the event of any resistance. The
complainant has detailed multiple complaints lodged with the Police Station, Vasant
Vihar on various dates including 05.09.2022, 26.10.2022, 22.11.2022, 30.12.2022,
16.07.2023 and 18.09.2023, but no FIR was registered. It is further alleged that the
accused persons claimed political influence and used said influence to evade legal action.
It is the complainant’s case that the accused persons removed, inter alia, two ductable AC
units, kitchen and bar equipment, liquor stock, furniture, exhaust systems, and a 62.5
KVA generator, among several other commercial items and religious artifacts, (including
these items total 48 items) as enumerated in para 13 of the complaint.
4. The complainant has claimed that as a result of the continuous obstruction, harassment,
and dismantling of the restaurant infrastructure, he was forced to shut down the business
in March 2023, suffering substantial financial losses. The complaint further alleges that
the accused persons openly admitted to their modus operandi of illegally evicting tenants
by unlawful means, with complete impunity, and that they threatened the complainant
with dire consequences including death if he continued to pursue legal remedies. Despite
repeated representations to the SHO, ACP, DCP, and higher police authorities, the
complainant alleges inaction on part of the police and prays for judicial intervention to
ensure registration of FIR and proper investigation.
5. An ATR was called from the concerned PS wherein the enquiry officer concluded that
the dispute between the parties is with respect to tenancy and rent payment.
6. Arguments on the present application have been
in extenso. Complete record has been
thoroughly perused.
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7. It is a well-established principle of law that when a criminal complaint is filed before a
Magistrate, and upon examination, it appears to disclose the commission of a cognizable
offense, the Magistrate has two possible courses of action. Pursuant to Section 190 of the
Code of Criminal Procedure (Cr.P.C.), the Magistrate may take cognizance of the
complaint and conduct an inquiry in accordance with the procedures outlined in Sections
200 and 202 of the Cr.P.C. Alternatively, the Magistrate may refer the complaint to the
police for investigation under Section 156(3) of the Cr.P.C. In such cases, the Magistrate
will refrain from taking further action until the police submit a report under Section 173
of the Cr.P.C., whereupon the Magistrate will proceed in accordance with the law.
8. The legal framework governing the Magistrate's discretion in choosing between the two
options has been crystallized in the landmark case of
M/s. Skipper Beverages Pvt. Ltd.
vs. State (2001 IV AD Delhi). This authoritative pronouncement establishes that a
Magistrate must exercise judicious discretion and apply his mind before passing an order
under Section 156(3) Cr.P.C. The Magistrate's order should not be a mechanical or
perfunctory response to the complainant's request. These powers ought to be exercised
primarily in those cases where the allegations are quite serious or evidence is beyond the
reach of the complainant or custodial interrogation appears to be necessary for recovery
of some articles or discovery of facts. The Hon’ble Delhi High Court in the Judgment
of M/S Skipper Beverages Pet. Ltd. VS State [2002 Crl. LJ NOC 333 (Delhi)] has
held that;
“Section 156 empower Magistrate to direct police to register case and
initiate investigation, but his power has to be exercised judiciously and
not in mechanical manner. Those cases where the allegations are not
very serious and the complainant himself is in the possession of
evidence to prove allegation, there should be no need to pass order
under section 156.”
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9. The Hon’ble High Court of Allahabad in the Judgment of Sukwasi Vs State of
Uttar Pradesh [2008 Crl. LJ 472] has held that merely because complaint discloses
a cognizable offence, application under section 156(3) Cr.P.C is not bound to be
allowed. It is also held that,
“
Application under section 156 (3) of Code of Criminal Procedure,
1973 are now coming in torrents. Provisions under section 156 (3) of
Code of Criminal Procedure, 1973 should be used sparingly. They
should not be used unless there is something unusual or extra ordinary
like miscarriage of justice, which warrants a direction the police to
provides them with an alternative remedy of filing a complaint,
therefore recourse should not normally be permitted for availing the
provisions of section 156 (3) of Code of Criminal Procedure, 1973.
The reference is, therefore, answered in the manner that it is not
incumbent upon a Magistrate to allow an application under section
156 (3) of the Code of Criminal Procedure, 1973 and there is no such
legal mandate. He may or may not allow the application in his
discretion.”
10. The Hon'ble High Court of Delhi in Ravindra Kumar Vs. State (Govt. of NCT
of Delhi) & Anr [2013 VIII AD (DELHI) 403] has held that:-
“4. Section 156(3) empowers the Magistrate to refer and direct the police to
investigate the cognizable offence. It is however not necessary to refer
every complaint filed under Section 200 to the police for investigation
under Section 156(3) of Cr. P.C. Remedy under Section 156(3) Cr. P.C. is a
discretionary one as the provision proceeds with the word 'may'. The
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Magistrate is required to exercise his mind while doing so and pass orders
only if he is satisfied that the information reveals commission of cognizable
offence/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. The complainant, as a matter
of right, cannot insist that the complaint case filed by him/her should be
directed in every eventuality to the police for investigation.”
11. The Hon'ble Supreme Court in Ramdev Food Products Private Limited vs State
Of Gujarat, (2015) 6 SCC 439 has held that:
“22. Thus, we answer the first question by holding that:
22.1 The direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate does not take
cognizance and does not find it necessary to postpone instance of process
and finds a case made out to proceed forthwith, direction under the said
provision is issued. In other words, where on account of credibility of
information available, or weighing the interest of justice it is considered
appropriate to straightaway direct investigation, such a direction is issued.
22.2 The cases where Magistrate takes cognizance and postpones
issuance of process are cases where the Magistrate has yet to determine
"existence of sufficient ground to proceed". Category of cases falling under
Para 120.6 in Lalita Kumari (supra) may fall under Section 202.
22.3 Subject to these broad guidelines available from the scheme of
the Code, exercise of discretion by the Magistrate is guided by interest of
justice from case to case.”
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12. Further, the Hon’ble High Court of Delhi has recently held in the case titled as
Satish Kumar vs State of NCT of Delhi, CRL. M.C. 1167/2020 as follows:
“19. In view of the discussions mentioned hereinabove, I am of the view
that the directions for investigation under section 156 (3) of the
Code cannot be given by the Magistrate mechanically. Such a direction can
be given only on application of mind by the Magistrate. The Magistrate is
not bound to direct investigation by the police even if all allegations made
in the complaint disclose ingredients of a cognizable offence. Each case has
to be viewed depending upon the facts and circumstances involved therein.
In the facts and circumstances of a given case, the Magistrate may take a
decision that the complainant can prove the facts alleged in the complaint
without the assistance of the police. In such cases, the Magistrate may
proceed with the complaint under Section 200 of the Code and examine
witnesses produced by the complainant. The Magistrate ought to direct
investigation by the police if it feels that the evidence is required to be
collected with police assistance. In the present case, all the facts and
evidence are within the knowledge of the petitioner, which he can adduce
during the inquiry conducted by the learned Metropolitan Magistrate under
Section 200 of the Code. Even otherwise, the order dated 17.05.2019 passed
by the Magistrate states that even if after leading the complainant evidence,
if need arises, an inquiry U/s 202 Cr.P.C may be conducted. So the
Magistrate has totally not shut out the police investigation.
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13. The judicial precedents discussed above are taken into consideration along with
the submissions made on behalf of the complainant.
14. The main purpose of investigation under Chapter XII Cr.P.C is collection of
evidences against respondents. The statement of two public witnesses have been
recorded while conducting the preliminary enquiry wherein it is stated by them
that as per the information that he has the owner of the High Street Bar has shifted
his bar from the building and took his articles. Another witness stated that there
was a dispute between the bar owner of the High Street Bar with the building
owner on vacating property. Further, the complainant has already filed a writ
petition (Civil) No. 15800/2023 titled M/s Spize Hospitality vs MCD & Ors in
which the complainant has raised the allegations contained in present application.
The complainant has stated that he closed down the restaurant in 2023; he should
not have left his belongings in the premises until September 2023. Thus,
considering the facts and circumstances of the present application, the dispute
appears to be prima facie civil in nature and no cognizable offence is made out,
thereby rendering the registration of an FIR in the present matter unnecessary. An
investigation in the present complaint would not divulge any new set of facts. This
court does not deem it feasible to exercise and invoke it’s discretionary power to
issues direction for registration of FIR. Moreover, if, during the pre-summoning
evidence, it is found that the police investigation is necessary or desirable for
elucidating the truth, then recourse to Section 202 Cr.P.C. may be taken to meet
the ends of justice.
15. In light of the above mentioned factors, the present application is
hereby
dismissed. The applicant has an alternative avenue for seeking redress by pursuing
the case as a complaint case and lead PSE.
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16. Nothing stated herein shall tantamount to any expression of opinion on the merit
of the case.
17. Copy of the order be given dasti, if requested for.
(RAVI)
JMFC-07/PHC/ND/15.07.2025
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