Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF ADDL. CHIEF METROPOLITAN
MAGISTRATE-II, PATIALA HOUSE COURTS, NEW DELHI
Presided by: Swati Sharma
Ct Cases 1558/2022
ASHVINDER CHOPRA Vs. BASANTSAWHNEY AND ANR.
PS Vasant Kunj South
24.06.2023
Order on application u/s 156 (3) Cr.PC
1. This order shall dispose off the application u/s. 156 (3) Cr.PC. In
brief, allegations made in the complaint are that the complainant
purchased a house i.e. freehold MIG Flat No. 304, Located on
Third Floor, in Ganga Block-5, Sector -D. Pocket-6, Vasant Kunj,
New Delhi out of her own funds and resources on the basis of
registered sale deed dated 04.06.2014. It is further stated that in
October 2019 the complainant allowed her brother and his wife
i.e. accused No. 1 Mrs. Basant Sawhney to move into her above
said apartment. It is further stated that in February 2022, the
complainant requested her brother and accused No. 1 to vacate the
same, but the accused No. 1 Mrs. Basant Sawhney refused. It is
further stated that the complainant traveled to India during
February 2022 and all the money and valuables were kept in a
locked almirah of her apartment. It is further stated that it came to
the knowledge of the complainant that on 16.03.2022, the accused
No. 2 Mrs. Parminder Kaur sold her own house in Vikaspuri and
also moved into the complainant's apartment. It is further stated
that on 13.04.2022 the complainant managed to take custody of
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her apartment and got exclusive possession of the same and
complainant got her apartment locked by the RWA president Mr.
N.S. Mor on the very same day. It is further stated that subsequent
to the safe locking of the apartment the complainant took a flight
back to Europe on 14.04.2022. It is further stated that on
24.04.2022 the accused persons came to the apartment of the
complainant along-with locksmith. They break the lock of the
complainant's apartment and trespassed in the house of the
complainant. It is further stated that it is visible in the camera
footage of CCTV installed by the RWA in the society that the
defendant No.2 & 3 are entering in the suit property along-with
locksmith. It is further stated that RWA President Mr. N.S. Mor
informed the complainant that the keys of the complainant's
apartment were still in the possession of RWA and that they were
not given to anyone. It is further stated that the complainant was
extremely worried about her cash and valuables and took the
earliest possible flight back to India and reached New Delhi on
04.052022. It is further stated that the complainant was shocked
to see that the accused persons i.e. Mrs. Basant Sawhney and her
mother Mrs. Parminder Kaur have not only stolen all the cash,
jewelry, gold and other belongings of the complainant but are also
continuing to occupy the house of the complainant illegally. It is
further stated that the complainant lodged police complaint
against the accused persons for house break-in, trespassing, theft
of cash, gold, jewelry. On the complaint of the complainant, no
action was taken. Hence, present application is filed.
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2. Action Taken Report was called. As per the enquiry conducted it
has been revealed that Basant Sawhney has got registered an FIR
under Section 10 POCSO Act & 354 IPC against complainant's
husband Jagmeet Singh Chopra and they have matrimonial
dispute. It is further stated that as per RWA record Flat belongs to
complainant Ashwinder Chopra and complainant also provided
sale deed of the Flat which is not yet verified from the concerned
department.
3. Arguments heard. Record perused.
4. Hon'ble Mr. Justice R. C. Chopra in M/s Skipper Beverages P.
Ltd. Vs. State 2002 Crl. L. J. NOC 333 (Delhi) has illustrated that
the powers under Section 156(3) Cr.P.C. can be exercised by a
Magistrate. It has been observed as under:
"Section 156 empowers Magistrate to direct police to
register case and initiate investigation but his power
had to be exercised judiciously not in mechanical
manner. Those cases, where allegations are not very
serious and complainant herself in possession of
evidence to prove allegation, there should be no need
to pass order under Section 156(3) Cr.P.C. But, cases
where Magistrate is of view that nature of allegation
is such that complainant himself may not be in
position to collect, and produce evidence before
court, and interest of justice demand that police
should step into to help complainant, police
assistance can be taken".
5. In Suresh chand Jain Vs State of MP 2001 (1) AD(Crl.) S.C. 34'
and Subhkaran Luharuka & Ors. vs. State of NCT of Delhi
2010 (3) JCC 1972, it is held that:-
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“provision u/s 156(3) of the code is a discretionary
remedy as the provision proceeds with the word
“May”. The magistrate is required to exercise his
mind while doing so. He should pass orders only if
he is satisfied that the information reveals
commission of cognizable 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”.
6. I have heard the contentions of the complainant and perused the
record. In the present matter, it is to be seen if or not any
investigation is required. The entire incident has been narrated by
complainant in his complaint. At this stage, it is to be seen if or
not any field inquiry is required. No fact could be specified or
pointed out regarding which field investigation is necessary and
without filed investigation said evidence could be produced or
collected. The proposed accused persons are her own family
members so there us no dispute regarding their identity also.
Therefore, apparently evidence is within control of complainant.
Accordingly, application is disposed of as being not allowed.
Needless to say that if at later stage any inquiry is required,
investigation u/s. 202 Cr.PC may be directed. To prove its case,
opportunity is granted to complainant for adducing pre-
summoning evidence.
7. Re-notify the matter for pre-summoning evidence on 22.01.2024.
(SWATI SHARMA)
ACMM-II/PHC/ND/24.06.2023
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