Order 9

Order Details: COPY OF ORDER
Pdf Text: Ct. Cases 9240/2024
Sube Ram Vs. Rohtash & Anr.
PS: Ashok Vihar
ORDER ON APPLICATION U/S 156(3) Cr.P.C
17.04.2025
Present: Sh. R.S. Sharma, ld. Counsel for complainant.
Ld.Counsel has filed compilation of judgments for
assistance of the Court.
Vide this order, I shall dispose of the application
moved by the complainant U/s 156 (3) Cr.P.C.
Action taken report was called and the same was
filed under the signatures of SI Vishal forwarded by the SHO PS:
Ashok Vihar.
Submissions on the application have been heard.
Record including the said reply has been perused.
As per the contents of this application it is alleged
that father of the complainant Late Sh. Ratan Singh was the
owner of house bearing no.WP-550, Village Wazirpur, Delhi and
to avoid any controversy between his legal heirs, executed a Will
during his lifetime, duly registered with the Sub-Registrar on
16.04.2004. As per the said Will, his father bequeathed some
portion of basement, ground floor as well as first floor portion to
the applicant and since then the applicant is in possession of
abovesaid portion. Further, he alleged that the condition of entire
building was very dilapidated and that it may collapse at any
moment. So, he got shifted to Budh Vihar, Delhi. It is alleged
that alleged accused illegally trespassed into his portion by
breaking the locks and removing the articles lying in that portion.
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Hence, the present complaint.
As per the said action taken report, on enquiry, it
was revealed that earlier application u/S 156(3) Cr.P.C. filed by
the present applicant has already been dismissed by the Hon’ble
Court as well as the revision petition has also been dismissed by
the Ld.Sessions Court. Further, many civil matters between
parties are pending.
It is settled law that U/s. 156(3) Cr.P.C., Magistrate
has power to direct the police to register a case and investigate
the matter, but his power is to be exercised judiciously and not in
a mechanical manner. In the matters where the complainant has
in his possession all the evidence required to prove his
allegations, there should be no need to pass an order U/s. 156 (3)
Cr.P.C. 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 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
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evidence before the court and
interest of justice demand that the
police should step in the help the
complainant”.
Time and again, the Hon'ble Superior Court have
taken strong exceptions to the growing tendency of asking the
police to investigate cases U/s 156 (3) Cr.P.C. of the Code and
advised the Magistrate not to pass orders mechanically.
Moreover, I am enlightened by the judgment of
Hon'ble Delhi High Court titled as
“Subhkaran Laharuka &
Anr. Vs. State & Anr.” Cited as MANU/DE/1646/2010,
wherein it has been held that:-
“52A. for the guidance of subordinate
courts the procedure to be followed while
dealing with an application under section
156(3) of the Code is summarized as
under:-
(i) Whenever a Magistrate is called upon
to pass orders under section 156(3) of the
Code, at the outset the Magistrate should
ensure that before coming to the Court,
the Complainant did approach the police
officer in charge of the Police Station
having jurisdiction over the area for
recording the information available with
him disclosing the commission of a
cognizable offence by the
persons/persons arrayed as an accused in
the Complainant. It should also be
examined what action was taken by the
SHO, or even by the senior officer of the
police, when approached by the
Complainant under Section 154(3) of the
Code.
(ii) The Magistrate should then from the
own opinion whether the facts mentioned
in the complaint disclose commission of
cognizable offences by the accused
persons arrayed in the Complaint which
can be tried in his jurisdiction. He should
also satisfy himself about the need for
investigation by the Police in the matter.
A preliminary enquiry as this is
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permissible even by an SHO and if no
such, enquiry has been done by the SHO
then it is all the more necessary for the
Magistrate to consider all these factors.
For that purpose, the Magistrate must
apply his mind and such application of
mind should be reflected in the Order
passed by him.
Upon a preliminary satisfaction, unless
there are exceptional circumstances to be
recorded in writing, a status report by the
police is to be called for before passing
final orders.
(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 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 satisfy
himself about the prerequisites as
aforesaid, but, additionally, he should
also be satisfied that it is necessary to
direct police investigation in the matter
for collection of evidence which is
neither in the possession of the complaint
nor can be produced by the witnesses on
being summoned by the Court at the
instance of 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
whey he intends to proceed under
Chapter XII instead of Chapter XV of the
Code.”
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Applying the guidelines as mentioned above in the case
in hand, the name of the offender and that of the witnesses are
well within the knowledge of the complainant/Applicant. All the
evidence is available with the complainant and also the witnesses
are within the reach of the complainant. No field investigation is
required in the present case. No new facts are to be unearthed and
no custodial interrogation of any person is required.
Moreover, subsequently after evidence of
complainant, if it is deemed necessary, police inquiry as
envisaged u/s 202 Cr.P.C. can be initiated. Accordingly, the
present application U/s 156(3) Cr.P.C. is dismissed. The
complainant is at liberty to lead PSE.
Put up for PSE on 28.07.2025.
(VASUNDHRA CHHAUNKAR)
CJM (North-West)
Rohini Courts, Delhi.
17.04.2025
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