Order 4

Order Details: COPY OF ORDER
Pdf Text: 55
Ct. Cases 16673/2023
VINAY SHARMA Vs. RAMAN GANGWANP
PS (North
Rohini)
25.11.2024
Present: Sh. Mukul Sharma, Ld. Counsel for complainant.
Arguments on application heard.
Put up for orders at 3:00 PM.
(EBBANI AGGARWAL)
Judicial Magistrate First Class-03
NW/Rohini, Delhi/25.11.2024
At 3:00 PM.
Present: None for complainant.
ORDER
1. Vide this order, this Court shall dispose of an application
filed by the complainant under Section 156(3) of the Code
of Criminal Procedure, 1973 (hereinafter referred to as
“Cr.P.C.”).
2. Brief facts as alleged by the complainant are that wife of the
complainant was suffering from Cancer, she expired on
23.05.2023 and subsequent to that, alleged accused who is
the brother-in-law of complainant has withdrawn money
from the bank account of deceased wife of complainant
without the consent of the complainant. It has further been
alleged in the complaint that when complainant asked the
family members of deceased wife of complainant for return
of jewellery of deceased wife of complainant, the family
member of deceased wife of complainant refused to return
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the jewellery as well as the documents including FD.
3. Action Taken Report (“ATR”) was called from the
concerned SHO wherein it has been stated that the dispute
between the parties is of civil nature.
4. Ld. Counsel for the complainant has argued that
prima
facie, cognizable offences have been made out in the
present case and the police is required to register an FIR
and investigate the matter. Ld. Counsel for complainant has
further argued that the alleged accused persons have
admitted that household articles are lying with them as has
been mentioned in the ATR itself.
5. Arguments heard, record perused and considered.
6. Position of law regarding an application filed under Section
156(3) Cr.P.C. is well settled and has been discussed in
various judgments. One of the landmark judgments with
respect to the principles which a Magistrate should keep in
my while dealing with such an application has been laid
down by the Hon’ble High Court of Delhi in the case of
M/s Skipper Beverages Pvt Ltd vs State, (2001) DLT 217,
wherein the following has been 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 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. 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
complainant himself may not be in a position to
collect and produce evidence before the Court
and interests of justice demand that the police
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should step in to help the complainant. The police
assistance can be taken by a Magistrate even
Under Section 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 20001 (1) Supreme Page 129 titled "
Suresh Chand Jain Vs. State of Madhya Pradesh
& Ors."
7. Further, in
Mrs. Priyanka Srivastav & Anr. vs. State of
UP & Ors., (2015) 6 SCC 287 it has been reiterated that
while considering an application under Section 156(3)
of Cr.P.C., it is the duty of the Magistrate to remain
vigilant with respect to the nature of allegations in
entirety and that such applications are to be supported
by an affidavit duly sworn by the applicant who seeks
the invocation of the jurisdiction of the Magistrate.
8. The position of law which emerges is that before an
application under Section 156(3) of Cr.P.C. is filed
before a Magistrate, a complainant should have sent a
complaint to the concerned SHO and DCP. The
application should be accompanied with an affidavit
sworn by the complainant. Further, power under
Section 156(3) of Cr.P.C. is a discretionary one and
should not be exercised mechanically. The complaint
must disclose commission of some cognizable offence,
the allegations are of such a nature that some
investigation is required by the police and complainant
is not in possession of evidence in support of the
allegations.
9. Coming to the case at hand, after perusal of the
complaint and hearing the arguments advanced, this
Court is of the opinion that entire evidence is either in
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possession of complainant or the complainant can get
the same summoned through process of this Court and
nothing new is required to be collected for which field
investigation or assistance of police agency is required.
Further, even the identity of alleged accused person is
known to complainant and has been mentioned in the
complaint itself. Besides, if after examination of
complainant, any police assistance is required, then
recourse to Section 202 Cr.P.C. can be taken.
10. Therefore, considering the facts and circumstances of
the present case, no ground is made out to exercise
jurisdiction under Section 156(3) of Cr.P.C. and the
application is hereby dismissed.
11. Perusal of record shows that complainant has also filed
a complaint under Section 200 Cr.P.C.
12. Be-listed for PSE on 08.04.2025.
(EBBANI AGGARWAL)
Judicial Magistrate First Class-03
NW/Rohini, Delhi/25.11.2024
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