Interim Order 12

Order Details: COPY OF ORDER
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34 CT Cases 385/2023
ROHIT VERMA Vs. NARENDER GUPTU
AND OTHERS
(Bhajan Pura)
15.01.2025
Present: None.
1) The complainant has filed the complaint u/s 200 Cr.P.C alongwith an application u/s
156 (3) Cr.P.C. On the application of the complainant, status report was called from the
SHO, PS concerned. The status report was filed by HC Kuldeep Kumar and forwarded by
DCP concerned. It is mentioned in the status report that during the inquiry, it was found
that there is property dispute between the parties and that the complainant has not
produced any material to butteress the allegation of breaking of lock of shop. That as per
property documents, ownership of the property is in the name of respondent no. 1. That the
complainant has not produced any property document in his name. That matter is purely
civil in nature and one civil suit bearing no. 19403/2016 in Tis Hazari Courts is pending
between the parties and that the concerned Sub Registrar has been directed not to register
any documents for sale in respect of the property. That subsequently the civil suit has been
transferred from Tis Hazari Courts, to Hon’ble High Court of Delhi.
2) I have gone through the complaint, the annexures and the status report / ATR filed by the
police. The complainant has filed the present complaint against the respondents / proposed
accused person. Briefly stated the complainant has alleged that his father namely, Ratan
Singh is the co-owner of the property bearing no. B-323, Bhajanpura Delhi alongwith
respondent no. 2. That father of complainant is in the use, occupation and possession of
said property and was unable to look after the property due to advance age. That the
intention of respondent no 2 became dishonest and he filed a civil suit bearing no.
619043/16 in Tis Hazari Courts and that status quo order was issued in the said civil suit.
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That during the pendency of civil suit, the wife of respondent no. 1 filed an application
before the Court that she has purchased the above property and that both respondent no. 1
and 2 have violated the status quo order. That on 23.02.2023, at about 04.40 p.m., when the
complainant went to the shop, he found some bricks lying in front of the shop and that he
took photographs of the same and of the locks put by the complainant. That on 26.02.2023
at about 09.00 p.m. some unknown person informed him that someone had broken the
locks of the shop and put new locks and he may steel the articles also. That the complainant
on 27.02.2023, at about 10.00 a.m. reached the shop and found that new locks were put
after removing the old locks and that he took photographs of the new locks. That on
inquiry, he found that the said act was done by respondent no. 1 with the support of
respondent no. 2 and 3. That the complainant immediately approached the concerned PS
and lodged a written complaint dt. 27.02.2023 but no action was taken by the police.
Hence, the present complaint.
3) I have heard the submissions made by the Ld. Counsel for the complainant. It is
settled proposition of law that the power of the Magistrate to give directions u/s 156 (3)
Cr.P.C is discretionary and the same has to be exercised only when there is requirement of
investigation / custodial interrogation by the police. If the evidence is within the reach of
complainant, usually the directions u/s 156 (3) Cr.P.C are not given. The word used in the
section 156 (3) Cr.P.C is “may”, whereas the word used in section 154 Cr.P.C is “shall”.
The wording of these section clearly implies that the police is bound to register an FIR
when an information regarding cognizable offence is given to the police, whereas the
Magistrate is not bound to give directions u/s 156 (3) Cr.P.C, even though the complaint
discloses the commission of a cognizable offence as the Magistrate has to see whether the
investigation by the police is required or not in the given case.
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4) In the judgment of Hon'ble Delhi High Court titled as Subharkaran
Luharka v. State DoD 9-7-2010 delivered in Crl. 6122/23/05, it has been held by the
Hon'ble High Court that if the evidence is within the reach of the complainant and no
investigation by the police is required, the Magistrate should ask the complainant to lead
the evidence rather than giving directions to the police for registration of FIR u/s 156 (3)
Cr.P.C.
5) In the another judgment titled as M/s. Skipper Beverages Pvt. Ltd. v. State,
2001 IV AD (Delhi) the Hon'ble High Court of Delhi has observed as under :
“It is true that Section 156 (3) Cr.P.C. 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 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
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 complainant”.
6) Also in Suresh Chand Jain Vs. State of MP 2001 (1) AD (Crl.) S.C. 34'
Hon'ble Apex Court stated that “ there are pre-requisites to the followed by the
complainant before approaching the Magistrate U/s 156 (3) of the code which 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.
It is thus not necessary that in every case where a complaint has been filed under
section 200 of the code the Magistrate should direct the police to investigate the crime
merely because an application has also been filed under section 156 (3) if the code even
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though the evidence to be led by the complainant is in his possession or can be
produced by summoning witnesses, may be with the assistance of the court or
otherwise. This issue of jurisdiction also becomes important at that stage and cannot
be ignored”.
7) In the present case, the complainant is aware about the name and address
of the proposed accused person. From the material on record, the entire evidence
is within the reach of the complainant and no field investigation/ forensic
investigation by the police is required at this stage. Needless to say that if required
later on, the investigation may be directed u/s 202 Cr.P.C. In view of the aforesaid
reasons, the application u/s 156 (3) Cr.P.C is hereby dismissed. Let the complainant be
granted an opportunity to lead pre summoning evidence in support of his allegations.
Be put up on 25.06.2025 for pre summoning evidence.
(Pankaj Rai)
JMFC-01/NE/KKD/15.01.2025
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