Dhiraj vs.

Ratankaur & Ors

CC NO. 18630/2016- RN

25.9.2019
Present: Ld counsel for the complainant.
Matter is today listed for orders.
Be put up at 4.00 PM for orders.

BHAWANI SHARMA
ACMM(W):DELHI:25.9.2019

At 4.00 PM
Present: None for the parties.
Vide my separate order announced in open court
today, the application u/s. 156(3) Cr.P.C. moved by complainant is
dismissed.
However, while taking cognizance of the offence
matter be listed on 23.12.2019 for complainant's evidence.

BHAWANI SHARMA
ACMM(W):DELHI:25.9.2019
 Dhiraj vs. Ratankaur &
Ors
CC NO. 18630/2016-
RN

ORDER
25.9.2019
Vide this order I shall dispose off the application u/s.
156(3) Cr.P.C. moved on behalf of complainant.

I had heard arguments on the said application and

have also gone through the record carefully.

Brief facts of the case as per the complaint are that the
complainant had purchased the property bearing Municipal NO.
3072/2K, Street NO 10, plot NO. 75 measuring 200 Sq yards out of
Khasra No 47, Village Shadipur, Ranjit Nagar, New Delhi from one
Pramod Kumar Sehgal. It is stated that before purchasing the
same complainant had verified the documents and found that
originally property belonged to Sh Surjit Singh and then to Dr
Inderpal who then sold it to Smt Shakuntala Devi i.e. mother of
Pramod Kumar Sehgal and the mutation record was also collected
by the complainant.

It is alleged that he found that two shops in said

property was in possession of one Sh Mangal Sain Sehgal who was
tenant of Rattan Kaur, Gurdev Singh and Sumeet Singh. It is
further alleged that thereafter, complainant called a meeting
which included Sh Mangal Sain Sehgal, Rattan Kaur, Gurdev Singh
and Sumeet Singh and Rattan Kaur, Gurdev Singh and Sumeet
Singh failed to show the chain of documents in their favour due to
which Sh Mangal Sain Sehgal got convinced on the claim of
complainant and handed over key of one of the shop to the
complainant. It is further alleged that thereafter the A1 to A3
called the police and also filed civil suit against Mangal Sain and
complainant restraining third party interest. It is further alleged
that A1 to A3 had produced documents in the civil suit which were
forged and fabricated as Khasra Number is missing from the
address in the documents filed by them. It is further alleged that
in the subsequent documents filed by them property number has
been mentioned as XVII/3071/2K.

ATR was called from SHO, PS Ranjit Nagar. In the ATR,

it is mentioned that the property NO. 3072/2K, Street NO 10 falls in
Khasra NO. 47 as per the record of Sub Registrar and the accused
persons failed to show the chain of documents and moreover in
the 3 documents shown by accused persons different demarcation
of property has been shown in these three documents.

Ld counsel for the complainant had argued that the

complaint discloses commission of a cognizable offence and
therefore, the police was under an obligation to register a case
and investigate the matter. Ld counsel for the complainant had
also argued that since the police had failed to discharge its legal
duty, SHO, PS Ranjit Nagar be directed to register a case under
relevant provisions of law and investigate the matter.

The scheme of CrPC is such that an officer incharge of

a police station has to initiate investigation as provided in section
156 or 157 CrPC on the basis of entry of the first information
report, on receiving the information of the commission of a
cognizable offence. From the plain reading of section 154(1) CrPC,
it is manifestly clear that if any information disclosing a cognizable
offence is made before an officer in charge of a police station
satisfying the requirements of section 154(1) of the Code, the said
police officer has no other option except to enter the substance
thereof in the prescribed form to register a case on the basis of
information pertaining to cognizable offence. But when the police
officers do not register a case disclosing commission of a
cognizable offence and complaint in this regard is made to the
Magistrate, then under section 156(3) CrPC, the Magistrate
empowered under section 190 CrPC 'may' order investigation. The
expression used herein is 'may' and not 'shall' or 'must'. The
expression 'shall' or 'must' implies that the provision is mandatory
and expression 'may' implies that the provision is directory. The
expression 'may' gives discretion to the Magistrate. In this regard,
the following decision of the Apex Court in Devarapalli
Lakshminarayana Reddy vs V. Narayana Reddy AIR 1976
SC- 1672 is apposite to be referred to, the relevant para is as
under:
It is well settled that when a Magistrate
receives a complaint, he is not bound to take
cognizance if the facts alleged in the
complaint, disclose the commission of an
offence. This is clear from the use of the
words “may take cognizance” which in the
context in which they occur cannot be
equated with “must take cognizance”. The
word “may” gives a discretion to the
Magistrate in the matter. If on a reading of
the complaint he finds that the allegations
therein disclose a cognizable offence and the
forwarding of the complaint to the police for
investigation under station 156(3) will be
conducive to justice and save the valuable
time of the Magistrate from being wasted in
enquiring into a matter which was primarily
the duty of the police to investigate, he will
be justified in adopting that course as an
alternative to taking cognizance of the
offence, himself.
This raises the incidental question: What
is meant by “taking cognizance of an
offence” by the Magistrate within the
contemplation of section 190? This
expression has not been defined in the Code.
But from the scheme of the Code, the content
and marginal heading of section 190 and the
caption of Chapter XIV under which section
190 to 199 occur, it is clear that a case can be
said to be instituted in a Court only when the
Court takes cognizance of the offence alleged
therein. The ways in which such cognizance
can be taken are set out in clauses (a), (b)
and (c ) of section 190(1). Whether the
Magistrate has or has not taken cognizance of
 the offence will depend on the circumstances
of the particular case including the mode in
which the case is sought to be instituted and
the nature of the preliminary action, if any,
taken by the Magistrate. Broadly speaking,
when on receiving a complaint, the
Magistrate applies his mind for the purposes
of proceeding under section 200 and the
succeeding sections in Chapter XV of the
Code of 1973, he is said to have taken
cognizance of the offence within the meaning
of section 190(1)(a). If instead of proceeding
under Chapter XV, he has in the judicial
exercise of his discretion, taken action of
some other kind, such as issuing a search
warrant for the purpose of investigation, or
ordering investigation by the police under
section 156(3), he cannot be said to have
taken cognizance of any offence.

The HOn'ble Delhi High Court in Smt. Meenakshi

Anand Sootha vs. State reported as 2007(4) JCC 3230 Delhi
has made the following observations:
“It is well settled that under section 156(3)
CrPC, the Magistrate has not to pass the order
mechanically and has to apply his judicial
mind. On this point, decision of this court,
M/s. Skipper Beverages Pvt Ltd vs. State
reported as 2001 IV AD(Delhi)625, may be
referred to in which it was held:
It is true that section 156(3) CrPC of the Code
empowers Magistrate to direct the police to
register a case and initiate investigation but
this power has to be exercised judiciously on
proper grounds and not in 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 order section 156(3) of the Code. This
discretion ought to be exercise 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 interest of justice demand that the
police should step in to help the complainant.
Here in the present case, all the evidence
which are in the form of oral testimony, is in
the knowledge of the complainant and her
witnesses. The only documentary evidence,
i.e. MLC, prima facie appears to be not
connected with the present case, is also with
the complainant herself. Under these
circumstances, I do not find any illegality or
infirmity in the impugned order passed by the
Metropolitan Magistrate and it is still open for
the petitioner to prove her case which is
pending, in accordance with law”.

In Pawan Verma vs. SHO, PS Model Town & Ors

reported as 2009(2) JCC 1000 Delhi, our Hon'ble High Court
has reiterated the legal position thus:
“It is not that in every case merely on asking
of the petitioner the Court must direct
registration of an FIR unless the Court is
satisfied with the preliminary evidence which
is to be submitted by the complainant that
an FIR must be registered......”.

Recently in Mohd Salim vs. State reported as 175

(2010) DLT 473, our Hon'ble High Court has held as under:
“The use of the expression 'may' in sub-
section (3) of section 156 of the Code leaves
no doubt that the power conferred upon the
Magistrate is discretionary and he is not
bound to direct investigation by the police
even if the allegations made in the complaint
disclose commission of an cognizable offence.
In the facts and circumstances of a given
case, the Magistrate may feel that the matter
does not require investigation by the police
and can be proved by the complainant
himself, without any assistance from the
police. In that case, he may, instead of
directing investigation by the police,
straightway take cognizance of the alleged
offence and proceed under section 200 of the
Code by examining the complainant and his
witnesses, if any. Infact, the Magistrate ought
to direct investigation by the police only
where the assistance of the investigating
agency is necessary and the Court feels that
the cause of justice is likely to suffer in the
absence of investigation by the police. The
Magistrate is not expected to mechanically
direct investigation by the police without first
examining whether in the facts and
circumstances of the case, investigation by
the State machinery is actually required or
not. If the allegations made in the complaint
are simple, where the Court can straightway
proceed to conduct the trial, the Magistrate is
expected to record evidence and proceed
further in the matter, instead of passing the
buck to the police under section 156(3) of the
Code. Of course, if the allegations made in
the complaint require complex and
complicated investigation of which cannot be
undertaken without active assistance and
expertise of the State machinery, it would
only be appropriate for the Magistrate to
direct investigation by the police. The
Magistrate is therefore, not supposed to act
merely as a post office and needs to adopt a
judicial approach while considering an
 application seeking investigation by the
police”.
In the present case also the complainant as well as
accused persons are very well known to each other. The name,
parentage as well as address of accused persons have been
mentioned by the complainant in the present case. The
complainant is well aware of all the facts and circumstances and
he is in possession of all the material/ evidence required by him to
prove his case. Custodial interrogation of the accused persons or
other scientific investigation is not required in this case.

Hence, I am of the considered view that no directions

u/s. 156(3) cr.p.c. are called for in this case. Moreover,
subsequently, after evidence of complainant, if it is deemed
necessary, then police inquiry as envisaged U/s. 202 of CrPC can
be initiated.

Accordingly, the present application u/s 156 (3) of CrPC

is dismissed. However, while taking cognizance of the offence as
alleged the complainant is directed to bring his evidence.

BHAWANI SHARMA
ACMM(W):DELHI:25.9.2019