Interim Order 5

Order Details: COPY OF ORDER
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CC No. 15978/2023
P.S. Prem Nagar
Sanjay Kumar vs Sukhbir Singh & Ors
19.07.2024
Present: Ld counsel for complainant.
Arguments on application u/s 156(3) Cr.P.C. heard.
Briefly put, as per the complaint, it is the case of
complainant that the accused No. 1 had filed a civil suit regarding dispute
qua possession of PIQ ( ie. Plot No 143, Khasra No. 1122/1222 situated
in area of Village Mundka abadi known as Laxmi Vihar, Delhi), however,
same was withdrawn on 25.02.2023. After few days on Sunday, son of the
complainant went to the property to check the same and when he opened
the lock, accused No. 1 alleged that son of the complainant was breaking
the property. Accused No. 2 SI Sandeep came and took the son of the
complainant and his cousin to PS and allegedly illegally detained them in
the PS and also assaulted and abused them. Accused No. 2 allegedly also
threatened to implicate him in false case and to face dire consequences.
A complaint was also lodged with SHO PS Prem Nagar and also with
DCP concerned but no action was taken. Since police did not take
appropriate action upon the complaint of the complainant, therefore,
complainant approached this court seeking directions to be issued to
police for registration of FIR under appropriate provisions of law.
ATR was called and received. As per ATR, it is submitted
that no cognizable offence is made out. There is stated to be dispute
between the parties regarding possession of PIQ and Civil suit is also
stated to be pending. Further, preventive action u/s 107/151 CrPC is
stated to have been taken against the son of the complainant.
During arguments, Ld. counsel for complainant reiterated
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the facts of the case and stated that the complaint was disclosing
commission of cognizable offence by the accused persons and it was the
duty of the police to register an FIR and investigate into the matter.
It is trite that power u/s 156(3) Cr.P.C. to order registration
of FIR has to be exercised judiciously and not in a mechanical manner. It
is only when the allegations are grave and complainant himself is not in a
position to collect and produce evidence before the Court, the court
should direct registration of FIR and initiation of police investigation.
The Hon’ble High Court of Delhi, in
M/S Skipper Beverages Pvt. Ltd. vs.
State, (2001) 92 DLT 217, while laying down the circumstances in which
the magistrate can exercise his powers u/s 156(3) Cr.P.C. to order
registration of FIR, held:
“7. It is true that Section 156(3) of the Code empowers a
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 complaint
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. The 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 complaint himself may not be in a position to
collect and produce evidence before the Court and interests of
justice demand that the police should step in to help the
complaint. The police assistance can be taken by a Magistrate
even under Sec. 202(1) of the Code after taking cognizance
and proceeding with the complaint under Chapter XV of the
Code as held by Apex Court in 2001 (1) Supreme page 129
titled “Suresh Chand Jain v. State of Madhya Pradesh & Ors.”
Record perused. From the facts of the case, issue appears to
be regarding possession of PIQ between the complainant and accused No.
1. A civil suit was filed by the accused no. 1 however, same has been
withdrawn. Complainant has also alleged illegal detention and assault by
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the accused no. 2 with the son of complainant and his cousin. However,
as per the ATR, no cognizable offence is stated to be made out. Further,
preventive action u/s 107/151 CrPC is stated to have been taken against
the son of the complainant as there was apprehension of breach of peace
and encroachment of PIQ. Prima facie, acts done by accused No. 2
appears to have been performed during the course of his official duty,
however, no sanction to be prosecute him has been obtained. Even
otherwise, allegations made by the complainant do require involvement
of state machinery at this stage as complainant is having knowledge of
entire facts of the case and his case can be substantiated through his
testimony as well as that of his witnesses. Identity of the accused persons
is already known to the complainant and their custodial interrogation is
also not required. Hence, at this stage, there is no requirement of police
intervention; however, after examination of the complainant, if any police
assistance is required, the Court can direct police investigation u/s 202(1)
Cr.P.C.
In view of the above facts and circumstances, this court is of
the view that no ground is made out for this court to exercise jurisdiction
u/s 156(3) Cr.P.C. for registration of FIR. Hence, the prayer u/s 156(3)
Cr.P.C. is declined.
Put up for PSE on 18.01.2025.
(Navdeep Gupta)
JMIC-06/North-West/RC/Delhi/19.07.2024
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