P.P. Chauhan vs State (NCT of Delhi)

Ved Prakash Vaish, J.—By way of this petition u/s 482 Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C.'') read with Article 227 of the Constitution of India, the petitioner seeks setting aside of the impugned order dated 6.10.2012 passed by Metropolitan Magistrate, New Delhi. The brief facts of the case are that the petitioner herein filed a complaint under Sections 465/468/471/420 IPC read with Section 120B IPC on the allegations, inter alia, that the petitioner is the real uncle of Ms. Meenakshi Chauhan. In the year 2008, the petitioner filed a criminal complaint against his brother Mr. K.P. Chauhan, sister-in-law Madhu Chauhan, and brother of sister-in-law Mr. Lalit Kumar for the offences u/s 420/467/468/471/120B IPC. On the basis of the said complaint FIR No. 84/2008 was registered by the Economic Offences Wing. The accused persons in the said FIR moved an application for bail before this Court bearing Bail Application No. 1458/2010. During the pendency of the said application, niece of the petitioner Ms. Meenakshi Chauhan who happened to be the authorised attorney of the accused Mr. K.P. Chauhan filed an additional affidavit accompanied by certain documents in the form of annexures to the said bail application. At the time of hearing of the said application, the petitioner was present in person and on perusal of the additional affidavit and documents, it was revealed that the signatures of the petitioner have been forged on ''ST-5'' Form, an intimation letter dated 4.7.1983 to the Sales Tax officer purportedly signed by the complainant, Letter Head/Bill of M/s. Chauhan Plastic Corporation dated 30.6.1982, a forged statement of account of partnership of M/s. chauhan Plastic Corporation towards interest on loan as on 31.3.1986 and details of rent for the year ending 31.3.1986 which also bears the forged signatures of the complainant.

It was also alleged by the petitioner that the petitioner moved an application under RTI Act before the Sales Tax Office and obtained certified copies bearing his original signatures on ''ST-5'' Forms and letter dated 4.7.1983. Ms. Meenakshi Chauhan along with her mother Smt. Madhu Chauhan had been visiting accused K.P. Chauhan and Lalit Kumar who were in judicial custody in the said case in Rohini jail and at the time of said meeting a criminal conspiracy was entered into to forge the said documents. It was also alleged by the petitioner that the documents were forged by the accused persons in conspiracy with each other through the agency of Ms. Meenakshi Chauhan to use them as genuine ones despite having the knowledge of the same being forged and fabricated with the sole purpose of deceiving the petitioner which caused or is likely to cause injuries/damage or harm to the complainant. The petitioner lodged a complaint on 1.9.2011 at P.S. Tilak Marg, New Delhi but the police officials have not registered the FIR. The petitioner also approached DCP concerned on 15.12.2011 but the same was also proved to be futile exercise.

An application u/s 156(3) of Cr.P.C. was also filed by the petitioner which was dismissed vide impugned order dated 6.10.2012 passed by learned Metropolitan Magistrate, New Delhi.

Learned Senior counsel for the petitioner contends that accused persons had hatched a criminal conspiracy and in furtherance of the said conspiracy forged the documents which were filed at the time of hearing of application of bail in case FIR No. 84/2008 The accused persons forged and fabricated the said documents with a view to deceive the petitioner and which is likely to cause harm/damage to the petitioner.

Counsel for the petitioner also submits that allegations in the complaint discloses a cognizable offence and custodial interrogation of the accused persons is required to recover the original documents. Relying upon the judgment in Mr. Amit Khera Vs. Govt. of NCT of Delhi and Others, , V. Sujatha and Others Vs. State of Kerala and Others, and Shashi Lata Khanna Vs. State of Delhi and Others, , learned senior counsel for the petitioner contends that the trial court should have directed registration of FIR.

I have given my thoughtful consideration to the submission made by learned senior counsel for the petitioner in the light of the facts and circumstances of the case.

It is well settled law that when a criminal complaint is filed before the Magistrate and upon perusal it is found to disclose cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers u/s 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police u/s 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report u/s 173 Cr.P.C. is submitted by the police, on which further process of law would follow.

The law governing the choice to be exercised from amongst the two options has been settled by this Court in M/s. Skipper Beverages Pvt. Ltd. Vs. State, . In the said case it was held that a Magistrate must apply his mind before passing an order u/s 156(3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.

The well settled guidelines are laid down by this Court in respect of invoking provisions of Section 156(3) Cr.P.C. in Subhkaran Luharuka and Shree Ram Mills Ltd. Vs. State (Govt. of NCT of Delhi) and Utility Premises Pvt. Ltd., , the guidelines have been summarized as under:-"52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application u/s 156(3) of the Code is summarized as under:-

(i) Whenever a Magistrate is called upon to pass orders u/s 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 person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO,

(ii) or even by the senior officer of the Police, when approached by the Complainant u/s 154(3) of the Code.

(iii) The Magistrate should then form his 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 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.

(iv) The Magistrate, when approached with a Complaint u/s 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 u/s 202 of the Code.

(v) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application u/s 156(3) of the Code is also filed along with a Complaint u/s 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 only satisfy himself about the pre-requisites 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 complainant 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 why he intends to proceed under Chapter XII instead of Chapter XV of the Code.

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.

In the instant case, the evidence on which the petitioner relies is within his knowledge and control. It cannot be said that the petitioner has been put to an impossible task. If need were to arise for investigation, such possibility is not precluded as learned trial court has entered upon the inquiry under Sections 200 and 202 Cr.P.C. Proviso to Section 202 Cr.P.C. permits such investigation to be ordered at an appropriate stage of the proceedings. In view of the aforesaid discussion, there is no infirmity or illegality in the impugned order passed by learned Metropolitan Magistrate, New Delhi. 14, The petition is without merit and the same is hereby dismissed.