Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: 23
Ct Cases / 59143/2024
AMITA SACHDEVA Vs. STATE AND ORS
(Parliament Street)
22.01.2025
Present: Sh. Markand Adkar, Ld. Sr, Counsel for
complainant.
Sh. Vikram Kumar, Sh. Yadavendra Saxena, Sh.
Santanu Adkar, Sh. Ankush Mahajan and Sh.
Abhinav Kumar Ld. Counsels for complainant.
Ms. Amita Sachdeva, complainant in person.
Compliance report filed by IO stating that the
alleged paintings have been seized.
Arguments on the application U/s 175 (3) BNSS
heard.
Put up for orders at 04.00 PM.
(Sahil Monga)
JMFC-06/PHC/ND/22.01.2025
At 04.00 PM
Present: Ms. Amita Sachdeva, complainant in person.
1. By this order, I shall dispose of application under
section 175 (3) of BNSS seeking directions to the concerned
SHO for registration of FIR against the proposed accused
persons. I have heard arguments from the Ld. counsel for
complainant.
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2 Action taken report in the present matter was called from
SHO concerned and the same was filed by EO. It is stated in the
Action Taken Report that CCTV footage and NVR have been
seized. A notice was served to managing director of Delhi Art
gallery by the IO and a reply was given by Delhi Art Gallery. As
per the ATR, list of paintings was furnished and the alleged
paintings are mentioned at Sl. No. 6 and 10. Today, compliance
report regarding the seizure of alleged paintings has also been
filed by the IO stating that the said painting have been seized and
kept in Malkhana. It is further stated in the ATR that commission
of cognizable offence could not be ascertained. I have carefully
perused the present complaint, annexed documents and the status
report.
3. It has been held by the Hon'ble High Court of Delhi in
Subhkaran Luharuka & Anr. Vs. State & Anr., Crl. M.C. No.
6122-23/2005 that:
(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
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under Section 156 (3) of the Code is also filed along
with a Complaint under Section 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 of 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 giving cogent reasons as to why he
intends to proceed under Chapter XII instead of
Chapter XV of the Code".
5. It has been held by the Hon'ble High Court of Delhi in
Vijay Gupt v. Development Credit Bank Ltd. & Ors., Crl. Rev. P.
No. 41/2019 dated 14.01.2019 that:
11. Thus, the Magistrate is not supposed to act
mechanically and direct registration of FIR in each
and every case in routine and casual manner. Criminal
law is not expected to be set in motion on mere asking
of a party. There has to be some substance in the
complaint filed and it is only if it appears that
allegations are serious enough and establish the
commission of cognizable offence required thorough
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investigation by the police, an FIR should be ordered
to be registered. The Magistrate can treat an
application under Section 156(3) Cr.P.C. as a
complaint case, adopt the procedure of the complaint
case by recording evidences under Sections 200 and
202 Cr.P.C. and then either proceed under Section 203
Cr.P.C. and dismiss the complaint if no offence is
made out on summoning the accused under Section
204 Cr.P.C. whose complicity is disclosed in the
inquiry conducted by it under Sections 200 and 202
Cr.P.C.
6. It is settled law that U/s. 175(3) BNSS, Magistrate has
power to direct the police to register a case and investigate the
matter, but this power is to be exercised judiciously and not in a
mechanical manner. In the matters where the complainant has in
his/her possession all the evidence required to prove his/her
allegations, there should be no need to pass an order U/s. 175 (3)
BNSS. In this regard, reliance is placed, on the decision of our
own Hon'ble High Court in M/s. SKIPPER BEVERAGES PVT.
LTD. Vs. STATE, Cited as 2001 IV AD (Delhi), wherein it has
been held as under:-
"It is true that Section 156(3) of the Code empowers
to 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
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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 the complainant".
7. In the present case, all the facts and circumstances of the
case are within the knowledge of the complainant. CCTV footage
of Delhi Art Gallery , NVR and the paintings in question have
already been seized. In the considered opinion of this court, no
further investigation and collection of evidences is required on
the part of investigating agency at this stage, as all the evidences
are in the possession of complainant as well as on record, and if
the same is required at later stage, then Section 225 BNSS can be
resorted to. In the present facts and circumstances, the
application u/s 175(3) of Cr.P.C. stands dismissed.
8. This matter may be proceeded as a complaint case
henceforth . Let notice be issued to proposed accused persons in
terms of first proviso to section 223 BNSS for 12.02.2025.
(Sahil Monga)
JMFC-06/PHC/ND/22.01.2025
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