Delhi High Court
Azad Kaur vs State Govt. Of Nct Of Delhi And Ors. on 7 April, 2025
$~76
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 07.04.2025
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+ CRL.M.C. 2329/2025
AZAD KAUR .....Petitioner
Through: Mr. Yashwant Gahlot,
Advocate.
versus
STATE GOVT. OF NCT
OF DELHI AND ORS. .....Respondents
Through: Mr. Satinder Singh Bawa, APP
with SI Anju, PS-Sagarpur.
CORAM:-
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT (ORAL)
RAVINDER DUDEJA, J.
CRL.M.A. 10461/2025 (exemption)
Allowed, subject to all just exceptions.
This application stands disposed of.
CRL.M.C. 2329/2025
1. This is a petition under Article 227 of the Constitution of India
read with Section 528 of Bhartiya Nagarik Suraksha Sanhita
CRL.M.C. 2329/2025 Page 1 of 7
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By:SUNITA KUMARI
Signing Date:14.04.2025
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[“BNSS”], 2023 (under Section 482 of the Code of Civil Procedure,
1973) [“Code”] for quashing of the order dated 12.09.2024, passed by
the learned Sessions Judge, Dwarka, whereby, the revision filed by the
petitioner against the order of the learned Metropolitan Magistrate
dated 09.11.2023 has been dismissed.
2. The facts relevant for the disposal of the present petition, briefly
stated, are that petitioner filed a complaint under Section 200 of the
Code against respondents No. 2 to 9 for the offences punishable under
Sections 307/323/352/354/354-B/447/448/451/452/506/509/34 IPC
with the allegations that petitioner’s son Pankaj, got married with
respondent No. 2 Deepti and after sometime of their marriage, Deepti
started quarrelling with her son and pressurized him to live separately
from his parents on a separate floor of the same building. Out of love
and affection, she allowed her son and Deepati to reside on the second
floor of her house but respondent No. 2 started generating pressure on
her and her husband to transfer the house in her name or to purchase a
flat in her name.
3. On 24.11.2019, respondent No. 2 picked up a quarrel and in
order to generate pressure, she hit her own hand in the window, due to
which, her hand started bleeding. She was advised to visit the doctor,
but she refused. Soon thereafter, respondents No. 3 to 9, who are the
relatives of respondent No. 2, forcibly entered the house and started
beating her, her husband, her son and her relative namely Bharat. They
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By:SUNITA KUMARI
Signing Date:14.04.2025
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assaulted her and shouted “Yeh Woh Lady Hai Jisne Meri Bahen Ka
Ghar Kharab Kiya Hain, Isey Mat Chodna”. Respondents Ashish
Kumar, Mohit, Manpreet and Akshay beat her, used criminal force
and touched her private parts. Respondents Anil Kumar, Ashish,
Mohit, Manpreet and Akshay assaulted her and threw her on the floor,
kicked and abused her. She fainted on account of injuries sustained by
her and when her husband tried to save her, respondents assaulted her
and threatened to finish the entire family. She was taken to DDU
Hopsital and from there was referred to Dr. RML Hospital for further
treatment.
4. Petitioner made a written complaint to SHO PS Sagar Pur but
instead of registering the FIR, an NCR was recorded under Section
323/506 IPC. Hence, a complaint was filed before the Court with
prayer to summon the accused for the offences stated above. An
application under Section 156 (3) of the Code was also filed along
with complaint to direct the police to register the case and investigate
the offences.
5. Learned Metropolitan Magistrate vide order dated 09.11.2023
was of the view that there was no need to send the matter to the police
for investigation under Section 156 (3) of the Code and recourse to
Section 202 of the Code may be taken for meeting the ends of justice.
The matter was posted for the recording of statements of the petitioner
and her witnesses.
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By:SUNITA KUMARI
Signing Date:14.04.2025
14:30:56
6. Feeling aggrieved, petitioner preferred a revision against the
aforesaid order of the learned Magistrate. The revision came to be
dismissed vide order dated 12.09.2024. Learned Sessions Court found
no illegality, impropriety or error in the order passed by the learned
Magistrate.
7. Learned counsel for the petitioner has argued that the learned
Metropolitan Magistrate failed to exercise his discretion properly by
refusing to direct the police to register the case and conduct
investigation. It is argued that the allegations in the complaint reveal
the commission of cognizable offence and therefore the learned
Metropolitan Magistrate was bound to issue direction for the
investigation and registration of the FIR to the police.
8. Chapter XII of the Code deals with information to the police
and its powers to investigate the offences. Clause (3) thereof lays
down that a Magistrate empowered under Section 190 of the Code
may order investigation by the police. This Chapter provides
additional remedy to a complainant whose complaint is either not
entertained by the police or if he is not satisfied with the investigation
being conducted by the police.
9. Upon receiving the complaint, the Magistrate has to apply his
mind to the allegations in the complaint, upon which, he may proceed
at once to take cognizance or may order the police for registration of
the FIR and its investigation. Before Magistrate orders for
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investigation by the police under Section 156 (3) Cr. PC, he has to
apply its mind to know whether the allegations in the complaint prima
facie make out a case.
10. Where a complaint filed before the Magistrate contains simple
allegations, it is the duty of the Magistrate to investigate into the
allegations itself. The order directing the police to investigate the case
are not to be passed mechanically. The Magistrate is not always bound
to pass an order for the registration of the FIR and investigation upon
receipt of application under Section 156 (3) Cr. PC, disclosing a
cognizable offence. The Magistrate may use his discretion judiciously
and if he is of the opinion that in the circumstances of the case it will
be proper to treat the application as a complaint case, then he may
proceed according to the procedure provided under Chapter XV of the
Code. The use of word “shall” in Section 154 (3) and the use of word
“may” in Section 156 (3) of the Code makes the intention of the
legislation amply clear. If the legislature intended that Magistrate had
no options but to direct the investigation and the registration of the
FIR, it could have used the word “shall”. The use of word “may”
therefore indicates that Magistrate has discretion in the matter and can
in appropriate cases, refuse to order registration.
11. This Court in the case of Skipper Beverages Pvt. Ltd. Vs.
State, 2001 (59) DRJ 129, held that discretion under Section 156 (3)
Cr. PC ought to be exercised only in those cases where the Magistrate
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is of the view that the nature of allegations is such that the
complainant himself may not be in a position to collect or produce
evidence before the Court and interest of justice demand that the
police should step in to help the complainant and it is open to the
Court to seek police assistance even under Section 202 (1) of the Code
after taking cognizance and proceeding with the complaint under
Chapter XV of the Code as has also been held by the Apex Court in
2001 (1) Supreme Page 129 titled Suresh Chand Jain Vs. State of
Madhya Pradesh & Ors.
12. Gujarat High Court in the case of Arvindbhai Ravjibhai Patel
Vs. Dhirubhai Sambhubhai, 1998 (1) Crimes 351, took strong
exception to the growing tendency of asking the police to investigate
cases under Section 156 (3) of the Code and advised the Magistrates
not to pass orders mechanically. It was held that Magistrates should
act under Section 156(3) of the Code only in those eases where the
assistance of the police is essentially required and the Magistrate is of
the considered view that the complaint on his own may not be in a
position to collect and produce evidence in support of the accusations.
13. On a perusal of the complaint filed by the petitioner, it is
evident that it is not a case where the police assistance was required
for discovery and collection of evidence which the complainant
herself was unable to collect of her own. The learned Sessions Court
rightly observed that the identity of the accused persons is known to
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By:SUNITA KUMARI
Signing Date:14.04.2025
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the petitioner and the evidence which the petitioner proposes to place
on record for substantiating her allegations are within her control. The
Sessions Court also took note of the fact that custodial interrogation of
the accused persons is not required and the incident having taken place
nearly five years back, it is highly improbable that the investigating
agency would be able to collect any additional evidence.
14. Considering the nature of allegations made by the complainant
in her complaint filed before the learned Metropolitan Magistrate, this
Court is of the view that learned Magistrate exercised his discretion
properly in accordance with law by declining the request of the
petitioner to make over the investigation to the police under Section
156 (3) of the Code. The learned trial court has already taken the
cognizance of the offence. Learned trial court has rightly observed that
if during the evidence of the complainant under Section 200 of the
Code, the trial court considers it expedient for the ends of justice, it
may invoke the provisions of Section 202 of the Code for taking
assistance of the police for collecting evidence by directing it to
conduct investigation in that regard.
15. In view of the above, no interference, thus, is called for by this
Court. The petition accordingly stands dismissed.
RAVINDER DUDEJA, J.
APRIL 07, 2025/RM
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Signature Not Verified
Digitally Signed
By:SUNITA KUMARI
Signing Date:14.04.2025
14:30:56