Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: CC No.906/23
PS Seelampur
Babita vs. Sanjay Kumar
24.09.2024
Present: Complainant is absent.
Sh. Vikram Singh Bhatia, LAC for the complainant
through VC.
Put up for orders at 04:00 pm.
(Vipul Sandwar)
JMFC-02/NE/KKD Courts/Delhi/24.09.2024
At 04:00 pm.
Present: None for the complainant.
Order under section 156 (3) Cr. PC
1. Briefly stated the facts of the present complaint are
that the complainant herein is the real sister of the respondent.
The property bearing no. T-178, Gali no.4, Gautampuri was
owned by their father who expired on 11.12.2006. Later on
03.09.2016 their mother also expired. The complainant, her sister
and two brothers became the joint owners of the property. It is
the allegations of the complainant that on 05.10.2016 on the
pretext of partitioning the property the respondent got her
signatures on a relinquishment deed by committing a fraud. She
has filed a suit for partition, possession and permanent injuction
against the respondent wherein in the WS the respondent has
relied on the relinquishment. The said deed was registered on
21.10.2016. The complainant made written complaint to SHO,
PS Khajuri Khas on 01.10.2022 which was forwarded to PS
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Seelampur. The complainant also made written complaint to Sub
Registrar-IV, Seelampur on 04.03.2023. No action has been taken
by the police officials till date. Aggrieved the complainant has
approached this Court.
2. Action Taken Report as per judgment of
Hon'ble
High Court of Delhi in matter of
“Subhkaran Luharuka & Anr.
Vs. State (Government of NCT of Delhi) & Anr.”, 170 (2010)
was called in this matter which was filed by EO/SI Khagnesh on
25.10.2023. As per the ATR, no cognizable offence is made out.
3. Submission heard.
4. In the matter of
“M/s Skipper Beverages Pvt. Ltd.
Vs. State” 2002 Crl. LJ NOC 333 (Delhi), it has been held as
under : -
“Section 156 empowers Magistrate to direct
police to register case and initiate investigation
but this power has to be exercised judiciously
and not in mechanical manner. Those cases
where allegations are not very serious and
complainant himself is in possession of
evidence to prove allegation, there should be no
need to pass order under Section 156”.
5. In the case of
“Sukwasi Vs. State of Uttar Pardesh”
2008 Cri. L. J. 472, Division Bench of
Hon'ble High Court of
Allahabad has held that merely because a complaint discloses a
cognizable offence, application under Section 156 (3) of The
Code of Criminal Procedure, 1973 is not bound to be allowed.
The following observations are relevant : -
“22. Applications 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
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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 to the Police to register a
case. Such applications should not be allowed
because the law 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.
23. 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 Code of Criminal Procedure,
1973 and there is no such legal mandate. He
may or may not allow the application in his
discretion.”
6. In matter of
“Ravindra Kumar Vs. State (Govt. of
NCT of Delhi) & Anr.” 2013 VIII AD (DELHI) 403 of
Hon'ble
High Court of Delhi has held that:-
“04. 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.
05. Remedy under Section 156 (3) Cr. P.C. is a
discretionary one as the provision proceeds
with the word 'may'. The 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.”
7. In matter of
“Zubair Ul-Abidin (Dr.) Vs. State (NCT
of Delhi)” 2014 III AD (DELHI) 61 of
Hon'ble High Court of
Delhi has held that : -
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“12. 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 the allegations are
serious enough and establish the commission of
cognizable offence required thorough
investigation by the police an FIR should be
ordered to be registered.”
8. In matter of
“Mrs. Priyanka Srivastava & Anr. Vs.
State of UP & Ors.” in Criminal Appeal No.781 of 2012 decided
on 19.03.2015,
Hon'ble Supreme Court of India in a case
registered on directions of the Court against public servant(s)
cautioned the magistracy at the time of passing of directions for
registration of FIR under Section 156 (3) Cr. P.C. and observed
as under : -
“24. Regard being had to the above-said
enunciation of law, it needs to be reiterated
that the Learned Magistrate has to remain
vigilant with regard to allegations made and
the nature of allegations and not to issue
directions without proper application of mind.
He has also to bear in mind that sending the
matter would be conducive to justice and then
he may pass the requisite
order................................”
9. I have considered the submissions advanced by the
complainant. As per the ATR, the matter is regarding family
dispute between the complainant and her brother over ancestral
property. It is the case of the complainant that the respondent had
got the relinquishment deed signed on the pretext of preparing
documents of the share of the property on her on 05.10.2016
which was registered on 21.10.2016. She came to know of the
same when the respondent filed the WS in the civil suit filed by
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the complainant in the year 2021. The crux of the dispute is
regarding the genuineness of the relinquishment deed dated
05.10.2016 signed by the complainant in favour of the
respondent. The same is the subject matter of the concerned civil
Court.
10. In totality of circumstances, this is not a fit case for
invoking powers under Section 156 (3) of the Code of Criminal
Procedure, 1973 and for directing the SHO of concerned police
station to register FIR for the following reasons : -
1. The identity of the accused persons is already known.
2. No facts are to be unearthed so as to require aid of police
and it is also not the case where the collection of evidence
is required.
3. Custodial interrogation of the accused person(s) is not
necessary.
4. The evidence required in the case is within the reach of the
complainant.
5. The present application appears to have been only filed to
put pressure on opposite side by getting registered FIR
against them.
6. Furthermore, if, police aid would be required at any stage
the same could be sought under Section 202 of Cr. P.C. and
further, aid of Section 91, 93 and 94 of Cr. P.C. could be
taken at appropriate stage and time, if required.
11. In view of the above-said reasons, application of the
applicant/complainant under Section 156 (3) of The Code of
Criminal Procedure, 1973 is hereby dismissed.
12. The complainant has come before this Court with
jural succor and therefore, the complainant should be given an
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opportunity to prove his allegations leveled in the complaint.
Since the complainant is alleging commission of offences as
mentioned in his complaint against proposed accused persons,
therefore, complainant is given an opportunity to prove his case
by leading evidence.
Cognizance taken.
Now put up for PSE on 13.02.2025.
Copy of order be given dasti.
(Vipul Sandwar)
JMFC-02/NE/KKD Courts/Delhi/24.09.2024
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