Delhi District Court
Vikas Gupta vs State on 11 March, 2025
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNW01-009401-2024
CR 311-24
Vikas Gupta v. State & Ors.
11.03.2025
Present: Revisionist through VC.
Sh. G.S. Guraya, Ld. Chief PP for State/R1.
Sh. Davesh Bhatia, Sh. Sadre Alam, Advs. with Sh.
Alok Kumar, Sr. Adv. for R2 & R3.
ORDER
The present revision has been preferred impugning the
order dated 10.09.2024 vide which the Ld. Magistrate has
dismissed the application u/s.156(3) Cr.P.C.
2. The brief facts giving rise to the present revision are
that Sh. Vikas Gupta (hereinafter referred as complainant/
revisionist) filed the complaint that Shri Hanuman Sewa Trust
was created by seven founder trustees vide trust deed dated
31.03.2009 registered with the Sub-Registrar-VI-A, North-West
District. It is alleged that the trust deed can be amended by
VIRENDER
simple majority of the General Body and be got registered by the KUMAR
President or the General Secretary. It is alleged that the proposed BANSAL
accused in conspiracy with each other with the dishonest and
Digitally signed
fraudulent intention to grab the property of the trust without by VIRENDER
KUMAR
calling general body meeting carried out the amendments in the BANSAL
Date:
2025.03.11
trust deed which was got registered on 31.03.2009 and got 15:40:00 +0530Page 1 of 20
registered amended trust deed dated 28.01.2020 with the Sub-
Registrar-VI-A, by furnishing false declaration and information.
It is also alleged that the proposed accused persons have also
forged the signatures of Sh. Rajiv Aggarwal, Founder General
Secretary and one of the trustees of the trust for operating the
bank accounts of the trust. The complaints were made to the
SHO and the DCP. Though the complaint discloses commission
of cognizable offences punishable u/s.405/406/420/467/468/471
r/w Section 34 & 120B IPC but no action has been taken by the
police and hence, the complaint was made before the Ld. Judicial
Magistrate. Ld. Judicial Magistrate called for the report from the
police. The action taken report was filed by the police, according
to which during enquiry, Acharya @ Vijay Bhatia, one of the
proposed accused, provided the amended trust deed and the
documents related to the annual governing body meeting of
2017, 2018 & 2022. According to the documents, the proposed
amendments in the trust deed and confirmation through public
meeting were discussed in the meeting and only thereafter the
new trust deed was executed.
3. It is also mentioned in the report that the complainant
has already filed a civil suit for cancellation of the alleged
amended trust deed in the case bearing no. SCJ/1262/2023 and is
pending adjudication. Ld. Trial Court, after hearing the
VIRENDER
arguments and considering the facts, dismissed the application, KUMAR
BANSAL
which is impugned in the present revision.
Digitally signed
by VIRENDER
4. Notice of the revision was given to the State and also to KUMAR BANSAL
Date: 2025.03.11
the proposed accused, who are now respondents no. 2 to 5. Trial 15:40:06 +0530Page 2 of 20
court record was requisitioned. Revisionist himself argued the
matter. I have also heard Ld. Chief PP for State and the counsel
for the respondents.
5. The revisionist submitted that he is patron trustee of the
trust. He made a complaint dated 16.09.2023 to the DCP and also
to the SHO but no action has been taken. There are serious
allegations made relating to the forgery committed by the
proposed accused persons to grab the property of Shri Hanuman
Sewa Trust by fabricating and forging the documents, which they
have done in connivance with each other. The police officials
had not registered any FIR and have not conducted any enquiry.
He submitted that though Section 154 Cr.P.C. mandates that if
the complaint discloses cognizable offence then the police shall
register the FIR and investigate but in the present case police had
not conducted any investigation and had acted under the
mechanical dictation, aid, advice, instructions and control of the
proposed accused, who are the respondents herein.
6. The revisionist further submitted that the four founder
trustees and the other office bearers of the trust had given their
statements in detail in respect of the commission of forgery for
the purposes of cheating but despite that no FIR was registered.
The revisionist submitted that a fraudulent action taken report VIRENDER
KUMAR
was also filed by the police and he had also filed the objections BANSAL
regarding the same. Even the Ld. Magistrate has not considered
all the facts and dismissed the application u/s.156(3) Cr.P.C. Digitally signed
by VIRENDER
KUMAR
though the complaint discloses the commission of cognizable BANSAL
Date:
offence. The order passed by the Ld. CJM is unjust and 2025.03.11
15:40:12
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unreasonable contrary to the principles of natural justice. Ld.
CJM has not gone through the judicial record and had not
appreciated the facts. Revisionist submitted that the application
has been dismissed in mechanical manner without considering
the fact that to unearth the truth and to bring on record the
material, the custodial interrogation of the respondents/proposed
accused is required and intensive investigation has to be carried
out with respect to the forged documents i.e. the amended trust
deed particularly when the founder trustees of the trust, at no
point of time, have given their consent verbally or in writing for
carrying out the amendments.
7. The revisionist further submitted that Ld. CJM has
totally failed to consider that all the material documents are in the
care, custody, possession and control of Sh. Vijay Bhatia @
Acharya and hence those have to be recovered. Even the details
of the bank accounts have to be taken out and for that purpose
custodial interrogation of Sh. Vijay Bhatia @ Acharya is required
but Ld. CJM, without considering all these facts and appreciating
the material available, dismissed the application without applying
the law as laid down by the Hon’ble Supreme Court and the other
Courts.
VIRENDER
KUMAR
8. The revisionist in support of his arguments relied upon BANSAL
the judgment cited as Kailash Vijayvargiya v. Rajlakshmi
Chaudhuri & Ors., Crl. Appeal No. 1581, 1582 & 1583 of 2021, Digitally
signed by
wherein it has been observed as under: VIRENDER
KUMAR
14. The question, whether the Police is bound to register a First BANSAL
Information Report (FIR) for a cognizable offence under Section Date:
2025.03.11
154 on receiving the information as such or has some latitude for 15:40:18
+0530Page 4 of 20
conducting preliminary inquiry before registration of FIR, had led
to the decision of the Constitutional Bench in Lalita
Kumari (supra). In this case, one of the arguments raised was that
when an innocent person is falsely implicated, he suffers mental
tension, loss of reputation and his personal liberty is seriously
impaired and, therefore, Section 154 of the Code should be read
and interpreted in conformity with the mandate of Article 21 of the
Constitution. Harmonizing the delicate balance to be maintained
between the rights of the victim and the accused, it was opined,
there are sufficient safeguards provided in the Code itself to
protect liberty of an individual against registration of a false case.
However, as Section 154 has been drafted keeping in mind the
interest of the victim, and their right to have access to fair and
independent investigation, the mandatory registration of FIRs
under Section 154 will not contravene Article 21 of the
Constitution. Drawing on several earlier judgments and the
language of Section 154 of the Code, it was held that the Police is
bound to proceed to conduct investigation, even without receiving
information about commission of a cognizable offence if the
officer in-charge otherwise suspects the commission of such an
offence. The legislative intent is to ensure that no information of
commission of a cognizable offence is ignored and not acted upon,
which would otherwise result in unjustified protection of the
alleged offender/accused. Every cognizable offence must be
promptly investigated in accordance with the law. This being the
legal position, there is no reason that there should be any discretion
or option left with the Police to register or not to register an FIR
7when information is given about commission of a cognizable
offence. This interpretation in a way keeps a check on the power of
the Police, which is required to protect the liberty of individuals
and society rights inherent in a democracy. It is the first step which
provides access for justice to a victim and upholds the rule of law,
facilitates swift investigation and sometimes even prevents
commission of crime and checks manipulation in criminal cases.
15. To strike a balance, distinction is drawn between power of
arrest of an accused person under Section 41 and registration of an
FIR under Section 154 of the Code. While registration of an FIR is
mandatory, the arrest of the accused on registration of the FIR is
not. FIR is registered on the basis of information without any
qualification like credible, reasonable or true information. VIRENDER
Reasonableness or credibility of information is not a condition KUMAR
precedent for registration of the FIR. However, for making arrest BANSAL
in terms of Section 41(1)(b) or (g), the legal requirements and
mandate is reflected in the expression ‘reasonable complaint’ or
‘credible information’.
Digitally signed
by VIRENDER
KUMAR
BANSAL
9. The revisionist in support of his arguments relied upon Date:
2025.03.11
15:40:25 +0530
Page 5 of 20
the judgment cited as Kuldeep Singh v. State, 1994 Cr.L.J. 1502,
wherein it has been observed as under:
The police is bound to register the information received of
commission of cognizable offence unless the information is
vague, incomplete or does not disclose cognizable offence.
10. The revisionist in support of his arguments relied upon
the judgment cited as Nirmal Singh Kahlon v. State of Punjab
and others, Civil Appeal Nos. 6198-6199 of 2008 (Arising out of
SLP (C) Nos. 24777 – 24778 of 2005), wherein it has been
observed as under:
Fair investigation and fair trial are concomitant to preservation
of fundamental right of an accused under Article 21 of the
Constitution of India. But the State has a larger obligation i.e.
to maintain law and order, public order and preservation of
peace and harmony in the society. A victim of a crime, thus, is
equally entitled to a fair investigation.
11. The revisionist in support of his arguments relied upon
the judgment cited as K.V. Rajendran v. Superintendent of
Police, CBCID, South Zone, Chennai, (2013) 12 SCC 480,
wherein it has been observed as under:
This Court has time and again dealt with the issue under what
circumstances the investigation can be transferred from the State
investigating agency to any other independent investigating agency
like CBI. It has been held that the power of transferring such
investigation must be in rare and exceptional cases where the court
finds it necessary in order to do justice between the parties and to
instil confidence in the public mind, or where investigation by the
VIRENDER
State police lacks credibility and it is necessary for having “a fair, KUMAR
honest and complete investigation”, and particularly, when it is BANSAL
imperative to retain public confidence in the impartial working of
the State agencies.
12. The revisionist in support of his arguments relied upon Digitally
signed by
VIRENDER
the judgment cited as Anant Thanur Karmuse v. The State of KUMAR
BANSAL
Maharashtra & Ors., Crl. Appeal No. 13 of 2023, wherein it has Date:
2025.03.11
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been observed as follows:
“25. We may further elucidate. The power to order fresh, de novo
or reinvestigation being vested with the constitutional courts, the
commencement of a trial and examination of some witnesses
cannot be an absolute impediment for exercising the said
constitutional power which is meant to ensure a fair and just
investigation. It can never be forgotten that as the great ocean has
only one test, the test of salt, so does justice has one flavour, the
flavour of answering to the distress of the people without any
discrimination. We may hasten to add that the democratic set-up
has the potentiality of ruination if a citizen feels, the truth uttered
by a poor man is seldom listened to. Not for nothing it has been
said that sun rises and sun sets, light and darkness, winter and
spring come and go, even the course of time is playful but truth
remains and sparkles when justice is done. It is the bounden duty
of a court of law to uphold the truth and truth means absence of
deceit, absence of fraud and in a criminal investigation a real and
fair investigation, not an investigation that reveals itself as a sham
one.”
“42. There is no good reason given by the Court in these decisions
as to why a Magistrate’s powers to order further investigation
would suddenly cease upon process being issued, and an accused
appearing before the Magistrate, while concomitantly, the power
of the police to further investigate the offence continues right till
the stage the trial commences. Such a view would not accord with
the earlier judgments of this Court, in particular, Sakiri [Sakiri
Vasu v. State of U.P., (2008) 2 SCC 409], Samaj Parivartan
Samudaya [Samaj Parivartan Samudaya v. State of Karnataka,
(2012) 7 SCC 407], Vinay Tyagi [Vinay Tyagi v. Irshad Ali,
(2013) 5 SCC 762], and Hardeep Singh [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92]; Hardeep Singh [Hardeep Singh v. State
of Punjab, (2014) 3 SCC 92] having clearly held that a criminal
trial does not begin after cognizance is taken, but only after
charges are framed. What is not given any importance at all in the
recent judgments of this Court is Article 21 of the Constitution and
the fact that the Article demands no less than a fair and just
investigation. To say that a fair and just investigation would lead to
the conclusion that the police retain the power, subject, of course, VIRENDER
to the Magistrate’s nod under Section 173(8) to further investigate KUMAR
an offence till charges are framed, but that the supervisory BANSAL
jurisdiction of the Magistrate suddenly ceases midway through the
pre-trial proceedings, would amount to a travesty of justice, as
certain cases may cry out for further investigation so that an Digitally signed
innocent person is not wrongly arraigned as an accused or that a by VIRENDER
KUMAR
prima facie guilty person is not so left out. There is no warrant for BANSAL
such a narrow and restrictive view of the powers of the Magistrate, Date:
2025.03.11
particularly when such powers are traceable to Section 156(3) read 15:40:40
with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has +0530Page 7 of 20
been noticed hereinabove, and would be available at all stages of
the progress of a criminal case before the trial actually
commences. It would also be in the interest of justice that this
power be exercised suo motu by the Magistrate himself, depending
on the facts of each case. Whether further investigation should or
should not be ordered is within the discretion of the learned
Magistrate who will exercise such discretion on the facts of each
case and in accordance with law. If, for example, fresh facts come
to light which would lead to inculpating or exculpating certain
persons, arriving at the truth and doing substantial justice in a
criminal case are more important than avoiding further delay being
caused in concluding the criminal proceeding, as was held
in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v.
State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent that
the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai
Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC
177], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC
298] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT
of Delhi), (2019) 5 SCC 542] have held to the contrary, they stand
overruled. Needless to add, Randhir Singh Rana v. State (Delhi
Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State of
W.B. [(2009) 9 SCC 129] also stand overruled.”
13. The revisionist in support of his arguments relied upon
the judgment cited as Pratibha Rani v. Suraj Kumar & Anr.,
(1985) 2 SCC 370, wherein it has been observed as under:
…….There are a large number of cases where criminal law and
civil law can run side by side. the two remedies are not mutually
exclusive but clearly coextensive and essentially differ in their
content and consequence. The object of the criminal law is to
punish an offender who commits an offence against a person,
property of the State for which the accused, on proof of the
offence, is deprived of his liberty and in some cases even his life.
This does not, however, affect the civil remedies at all for suing
the wrong deer in cases like arson, accidents, etc. It is an anathema
to suppose that when a civil remedy is available, a criminal
prosecution is completely barred. The two types of actions are
quite different in content, scope and import. It is not at all VIRENDER
intelligible to us to take the stand that if the husband dishonestly KUMAR
misappropriates the stridhan property of his wife, though kept in BANSAL
his custody, that would bar prosecution under s. 406 I.P.C. Or
render the ingredients of s. 405 IPC nugatory or abortive. To say
that because the stridhan of a married woman is kept in the custody
Digitally
of her husband, no action against him can be taken as no offence is signed by
committed is to override and distort the real intent of the law. VIRENDER
KUMAR
BANSAL
Date:
2025.03.11
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Page 8 of 20
14. The revisionist in support of his arguments relied upon
the judgment cited as Rajesh Bajaj v. State NCT of Delhi & Ors.,
(1999) 3 SCC 258, wherein it has been observed as under:
It may be that the facts narrated in the present complaint would
as well reveal a commercial transaction or money transaction.
But that is hardly a reason for holding that the offence of
cheating would elude from such a transaction. In fact, many a
cheatings were committed in the course of commercial and
also money transactions. One of the illustrations set out
under Section 415 of the Indian Penal Code (illustrations f) is
worthy of notice now:
(f) A intentionally deceives Z into a belief that A means
to repay any money that Z may lend to him and thereby
dishonestly induces Z to lend him money, A not
intending to repay it. A cheats.
15. The revisionist in support of his arguments relied upon
the judgment cited as K. Jagadish v. Udaya Kumar G.S. & Anr.,
Crl. Appeal No. 56 of 2020, wherein it has been observed as
under:
9. It is thus well settled that in certain cases the very same set
of facts may give rise to remedies in civil as well as in criminal
proceedings and even if a civil remedy is availed by a party, he
is not precluded from setting in motion the proceedings in
criminal law.
16. The revisionist in support of his arguments relied upon
the judgment cited as Vesa Holdings Pvt. Ltd. & Anr. v. State of
Kerala & Ors., (2015) 8 SCC 293, wherein it has been observed
as under: VIRENDER
KUMAR
It is true that a given set of facts may make out a civil wrong as BANSAL
also a criminal offence and only because a civil remedy may be
available to the complainant that itself cannot be a ground to quash
a criminal proceeding. The real test is whether the allegations in
the complaint disclose the criminal offence of cheating or not. In Digitally
the present case there is nothing to show that at the very inception signed by
VIRENDER
there was any intention on behalf of the accused persons to cheat KUMAR
which is a condition precedent for an offence under Section BANSAL
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Page 9 of 20
420 IPC. In our view the complaint does not disclose any criminal
offence at all. Criminal proceedings should not be encouraged
when it is found to be malafide or otherwise an abuse of the
process of the court. Superior courts while exercising this power
should also strive to serve the ends of justice. In our opinion, in
view of these facts allowing the police investigation to continue
would amount to an abuse of the process of court and the High
Court committed an error in refusing to exercise the power
under Section 482 Criminal Procedure Code to quash the
proceedings.
17. The revisionist submitted that keeping in view the facts
of the case, the law as laid down by Hon’ble Supreme Court and
the Hon’ble High Court, the order passed by the Ld. CJM be set
aside, the revision be allowed and the SHO be directed to
investigate and submit the report.
18. Ld. Chief PP for State submitted that Ld. Trial Court
has considered all the facts and rightly dismissed the application.
There is no merit in the revision, the same be dismissed.
19. Ld. counsel for the respondents submitted that though
the revisionist submits that the amendment has been carried out
to convert the public trust into personal trust and to take over the
properties but there is no mention as to by amending which
clause or portion of the trust deed, the nature of trust has been
changed from public trust to personal trust or that the proposed
VIRENDER
accused has got the right over the trust properties to deal with the KUMAR
BANSAL
same as personal property. He has already filed a suit, which is
pending adjudication but deliberately did not mention about the
Digitally
same in the complaint. There he has asked for various reliefs signed by
VIRENDER
KUMAR
including the relief declaring the amendments carried out as BANSAL
Date:
legally null and void and nonest. 2025.03.11
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+0530Page 10 of 20
20. Ld. counsel for the respondents further submitted that
the suit was accompanied by an application u/s.39 Rule 1 & 2
CPC. The counsel for defendant no.2 in that case appeared and
made a statement that the meeting schedule of 05.10.2023 has
been cancelled as of now and in view of that statement, the
plaintiff i.e. the revisionist herein did not press his application.
Ld. Counsel submitted that in the present case admittedly civil
suit is pending. Hanuman Dhaam is also not located in Delhi, it
is located in Uttrakhand and the complainant is in possession of
all the necessary documents. The trial court has rightly observed
so and hence there is no need of use of any police power to
unearth any fact or to recover anything. Ld. Counsel submitted
that the case is basically of civil nature to which the revisionist is
trying to give the colour of the criminal offence, which is not
permissible under law.
21. Ld. counsel for the respondents further submitted that
no doubt in some cases on the basis of given set of facts, a civil
remedy as well as criminal offence are made out then the two can
go side by side but in the present case even the complaint does
not disclose that any such criminal offence has been committed.
The complaint is devoid of any details as to which amendment VIRENDER
KUMAR
has changed the nature and how the respondents herein have BANSAL
taken over the property or put the property to their own use or
dishonestly or with malafide intention caused any loss either to
Digitally
the revisionist herein or to the trust. Ld. Counsel submitted that signed by
VIRENDER
KUMAR
trial court has rightly dismissed the application. There is no BANSAL
Date:
merit in the revision, it be dismissed. 2025.03.11
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22. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as Usha Chakraborty & Anr. v.
State of West Bengal & Anr., 2023 SCC OnLine SC 90, wherein
similar issue of trust deed and filing of the civil suit was raised, it
was again held that where a dispute which is essentially of a civil
nature, is given a cloak of a criminal offence, then such disputes
can be quashed, by exercising the inherent powers under Section
482 of the Code of Criminal Procedure.
23. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as Randheer Singh v. State of
U.P., (2021) 14 SCC 626, wherein it has been observed that
criminal proceedings cannot be taken recourse to as a weapon of
harassment. Complainant has concealed filing of the civil suit
from the Ld. Magistrate and only through the police status report
the Magistrate was informed about the pending suit.
24. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as M/s Skipper Beverages Pvt.
Ltd. v. State, 92 (2001) DLT 217, wherein it has been observed
as under:
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 VIRENDER
not in a mechanical manner. In those cases where the allegations KUMAR
are not very serious and the complainant himself is in possession BANSAL
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 Digitally signed
by VIRENDER
allegations is such that the complainant himself may not be in a KUMAR
BANSAL
position to collect and produce evidence before the Court and
Date:
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interests of justice demand that the police should step in to held 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.
25. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as Subhkaran Laharuka & Anr. v.
State & Anr., MANU/DE/1646/2010, wherein it has been
observed as under:
52A. For the guidance of subordinate courts, the procedure to be
followed while dealing with an application under Section 156(3) of
the Code is summarized as under:-
(i) Whenever a Magistrate is called upon to pass orders under
Section 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, or even by the senior officer of
the Police, when approached by the Complainant under
Section 154(3) of the Code.
(ii) 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 VIRENDER
circumstances to be recorded in writing`, a status report by the KUMAR
police is to be called for before passing final orders. BANSAL
iii) The Magistrate, when approached with a Complaint under
Section 200 of the Code, should invariably proceed under
Chapter XV by taking cognizance of the Complaint, recording Digitally signed
by VIRENDER
evidence and then deciding the question of issuance of process KUMAR
to the accused. In that case also, the Magistrate is fully BANSAL
entitled to postpone the process if it is felt that there is a Date:
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Page 13 of 20
necessity to call for a police report under Section 202 of the
Code.
(iv) Of course, it is open to the Magistrate to proceed under
Chapter XII of the Code when an application under Section
156(3) of the Code is also filed along with a Complaint under
Section 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.
26. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as Anjuri Kumar v. State of NCT
of Delhi, WP(Crl.) 1210 of 2023, wherein it has been observed as
under:
In view of the discussions mentioned hereinabove, I am of the
view that the directions for investigation under section 156
(3) of the Code cannot be given by the Magistrate
mechanically. Such a direction can be given only on
application of mind by the Magistrate. The Magistrate is not
bound to direct investigation by the police even if all
allegations made in the complaint disclose ingredients of a
cognizable offence. Each case has to be viewed depending
upon the facts and circumstances involved therein. In the facts
and circumstances of a given case, the Magistrate may take a
decision that the complainant can prove the facts alleged in the
complaint without the assistance of the police. In such cases,
the Magistrate may proceed with the complaint under Section VIRENDER
200 of the Code and examine witnesses produced by the KUMAR
complainant. The Magistrate ought to direct investigation by BANSAL
the police if the evidence is required to be collected with the
assistance of the police. In the present case, all the facts and
evidence are within the knowledge of the petitioner, which he
can adduce during the inquiry conducted by the learned Digitally signed
Metropolitan Magistrate under Section 200 of the Code. by VIRENDER
KUMAR
BANSAL
Date:
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Page 14 of 20
27. Ld. counsel for respondents in support of his arguments
relied upon the judgment cited as Indian Institute of Planning &
Management v. State, Crl.M.C. 1144/2023, wherein it has been
observed as under:
31. While exercising powers under Section 156(3) Cr. P.C. and
directing the registration of an FIR, the Magistrate needs to
ensure that a cognizable offence is disclosed from the
allegations mentioned in the application and the essential
elements of the alleged offences thereof are prima facie
satisfied.
32. In the case of Usha Chakraborty v. State of West Bengal,
2023 SCC OnLine SC 90, it has been recently held by Hon’ble
Apex Court that while passing an order for registration of an
FIR upon an application filed under Section 156(3) Cr. P.C.,
the Court must satisfy itself that basic ingredients of the
alleged offences are fulfilled. The relevant observations in this
regard read as under:
…there cannot be any doubt with respect to the position
that in order to cause registration of an F.I.R. and
consequential investigation based on the same the
petition filed under Section 156(3), Cr. P.C., must
satisfy the essential ingredients to attract the alleged
offences. In other words, if such allegations in the
petition are vague and are not specific with respect to the
alleged offences it cannot be lead to an order for
registration of an F.I.R. and investigation on the
accusation of commission of the offences alleged…
….
39. The impugned order, in my view, fails to pass the tests laid
down by the Courts and shows total non-application of mind.
Learned CMM has not indicated a single reason to conclude
that a cognizable offence was disclosed and the essential
ingredients of the alleged offences were made out. Howsoever
brief, learned CMM ought to have spelt out the reason in
the order indicating what weighed with him to order
investigation under Section 156(3) Cr.P.C. more so, in light of
the 2 ATRs stating otherwise. The mere statement that from
the facts, it is reflected that cognizable offence is made out and VIRENDER
that the alleged offences are grave and several students may be KUMAR
victims, cannot be justification enough to direct registration of BANSAL
an FIR, which has serious repercussions. In Usha Chakraborty
and Another v. State of West Bengal and Another, 2023 SCC
OnLine SC 90; and Alhaj Ebrahim Khan and Others v. Sopan Digitally signed
Pandharinath Lohakare, 2015 SCC OnLine Bom 1668, it was by VIRENDER
KUMAR
held that the Magistrate must apply his mind to see whether BANSAL
essential ingredients of cognizable offences are disclosed and Date:
2025.03.11
15:41:38 +0530Page 15 of 20
while the Magistrate is not required to embark on a roving
inquiry on the reliability or genuineness of the allegations, he
has to arrive at a conclusion that application discloses
necessary ingredients of the offence. Perusal of the impugned
order in the present case, does not reflect application of mind
as to how the essential ingredients of the alleged offences are
even prima facie made out and nothing is forthcoming for
disregarding the two ATRs filed by EOW, bringing on record
crucial facts emerging from a thorough investigation and
stating that the disputes are purely civil arising out of
commercial transactions and no cognizable offence is made
out. It is settled that the Magistrate can disagree with the ATR
and take a different view but the order must indicate some
reasoning to differ and disregard the police reports. On these
grounds itself, in my view, the impugned order become
vulnerable and deserves to be set aside.
28. Ld. counsel for respondents in support of his
arguments relied upon the judgment cited as Alok Kumar v.
Harsh Mander & Anr., 2023 SCC OnLine Del 4213, wherein it
has been observed as under:
30. In our considered opinion, a stage has come in this country
where Section 156(3) CrPC applications are to be supported by
an affidavit duly sworn by the applicant who seeks the
invocation of the jurisdiction of the Magistrate. That apart, in
an appropriate case, the learned Magistrate would be well
advised to verify the truth and also can verify the veracity of
the allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without taking
any responsibility whatsoever only to harass certain persons.
That apart, it becomes more disturbing and alarming when one
tries to pick up people who are passing orders under a statutory
provision which can be challenged under the framework of the
said Act or under Article 226 of the Constitution of India. But
it cannot be done to take undue advantage in a criminal court
as if somebody is determined to settle the scores. VIRENDER
KUMAR
BANSAL
29. Ld. counsel for respondents in support of his
arguments relied upon the judgment cited as Pooja Taneja v. Digitally signed
by VIRENDER
KUMAR
NCT of Delhi, WP (Crl.) 624 of 2015, wherein it has been BANSAL
Date:
observed as under: 2025.03.11
15:41:44
+0530
Page 16 of 20
…..I am of the view that the directions for investigation
under section 156 (3) of the Code cannot be given by the
Magistrate mechanically. Such a direction can be given only on
application of mind by the Magistrate. The Magistrate is not
bound to direct investigation by the police even if all
allegations made in the complaint disclose ingredients of a
cognizable offence. Each case has to be viewed depending
upon the facts and circumstances involved therein. In the facts
and circumstances of a given case, the Magistrate may take a
decision that the complainant can prove the facts alleged in the
complaint without the assistance of the police. In such cases,
the Magistrate may proceed with the complaint under Section
200 of the Code and examine witnesses produced by the
complainant. The delay in approaching the police by the
complainant can yet be another factor which the Magistrate
may take note of, while considering the application
under Section 156(3) of the Code. The Magistrate ought to
direct investigation by the police if it feels that the evidence is
required to be collected with police assistance. All other
judgments, cited by the parties, are in the context of different
facts and are of no help. In this case, there is a delay in filing of
the complaint, inasmuch the facts and evidence are within the
knowledge of the petitioner, which she can adduce during the
inquiry conducted by the learned Metropolitan Magistrate
under Section 200 of the Code, inasmuch as she has already
produced five witnesses.
30. I am not going into the details of the allegations mde in
the complaint and the arguments made on the allegations. The
issue is whether the Court of Ld. CJM has rightly dismissed the
application u/s.156(3) Cr.P.C. The contention of the revisionist
is that the documents have to be recovered and the bank details
have also to be unearthed and for that purpose, custodial
interrogation is required. The arguments, per contra, are that
VIRENDER
every detail is already in possession and reach of the revisionist. KUMAR
BANSAL
The witnesses are already available with them and hence the trial
court has rightly dismissed the application as there is no
Digitally
requirement of use of police power to discover the fact or to signed by
VIRENDER
KUMAR
recover anything. BANSAL
Date:
2025.03.11
15:41:51
+0530Page 17 of 20
31. In this case, the allegations in brief are that the trust
deed has been amended, that also without following the
procedure. The amended trust deed is also registered with the
Sub-Registrar-VI-A, North-West District. Hence, so far as this
document is concerned, it is available in the office of the Sub-
Registrar. The other contention is that general body meeting was
not called as required under the rules but record shows that one
of the respondents has already provided details of the same to the
police alongwith copy. The next contention is that they have also
given signatures/authority letter to the bank and the signatory in
the bank has been changed. That record is already available with
the bank. So far as the other trustees, which complainant alleges,
have not given their consent. Their affidavits are already with
the complainant. Ld. Trial court has also observed in its order in
para 12 as follows:
“Applying the guidelines as mentioned above in the case in
hand, the name of the offenders are well within the knowledge
of the complainant/Applicant. Both, the Trust Deed dated
31.03.2009 and the amended Trust Deed dated 28.01.2020 are
within the reach of the complainant. The investigation is no
required to unearth any of the material. Moreover,
subsequently after evidence of complainant, if it is deemed
necessary, police inquiry as envisaged u/s 202 CrPC can be
initiated. Accordingly, the present application U/s 156 (3) of
Cr. P. C. is dismissed. The complainant is at liberty to lead
PSE.”
32. There is argument on behalf of the revisionist that once VIRENDER
KUMAR
BANSAL
the complaint discloses the commission of a cognizable offence,
then the Magistrate shall direct the police to register the FIR.
Digitally
The Hon’ble Supreme Court has considered this argument and signed by
VIRENDER
KUMAR
BANSAL
Date:
2025.03.11
15:41:57
+0530
Page 18 of 20
held that the Magistrate has to examine the facts, apply his
judicial mind and then exercise the discretion whether or not to
issue directions u/s.156(3) of the Code or he can take cognizance
to follow the procedure as laid down u/s.202 of the Code. The
Hon’ble Supreme Court in the case titled as Kailash Vijayvargiya
v. Rajlakshmi Chaudhuri & Ors. (Supra), held as follows:
39. We would refrain and not comment on the allegations
made as this may affect the case put up by either side. The
accused do not have any right to appear before the Magistrate
before summons are issued. However, the law gives them a
right to appear before the revisionary court in proceedings,
when the complainant challenges the order rejecting an
application under Section 156 (3) of the Code. The appellants,
therefore, had appeared before the High Court and contested
the proceedings. They have filed several papers and documents
before the High Court and this Court. To be fair to them, the
copies of the papers and documents filed before the High Court
and this Court would also be forwarded and kept on record of
the Magistrate who would, thereupon, examine and consider
the matter. However, the complainant/informant would be
entitled to question the genuineness and the contents of the said
documents.
40. In view of the above and for the reasons stated above,
while affirming the impugned judgment and order passed by
the High Court remanding the matter back to the learned
Magistrate, we set aside the subsequent order passed by the
Magistrate on remand, pursuant to the impugned judgment and
order passed by the High Court and remit the matter back to
the learned Magistrate to examine and apply his judicial mind
and then exercise discretion whether or not to issue directions
under section 156(3) or whether he can take cognizance and
follow the procedure under section 202. He can also direct the
preliminary enquiry by the police in terms of the law laid down
by this Court in the case of Lalita Kumari (supra). Copies of
the papers and documents filed before the High Court and this
VIRENDER
Court could also be forwarded and brought on record of the KUMAR
Magistrate, who would thereupon examine and consider the BANSAL
matter. As observed hereinabove, the complainant/informant
would be entitled to question the genuineness of the contents of
the said documents.
Digitally
signed by
VIRENDER
KUMAR
BANSAL
Date:
2025.03.11
15:42:04
+0530
Page 19 of 20
33. Keeping in view the law laid down by Hon’ble
Supreme Court, it is clear that the Magistrate is not required to
pass an order in mechanical manner on receiving the complaint
and issue directions u/s.156(3) Cr.P.C. to register the FIR but he
has to apply his judicial mind on the facts of the case and then
take the decision.
34. In view of the above discussion, the facts of the case,
in my opinion, Ld. Trial Court, after considering the facts of the
case, rightly dismissed the application. I do not find any
illegality or impropriety in the order passed by the Ld. Trial
Court. There is no merit in the revision, the same is dismissed.
35. Trial court record be sent back alongwith copy of this
order. Revision petition be consigned to the Record Room.
Digitally signed
by VIRENDER
VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2025.03.11
15:42:10 +0530
(Virender Kumar Bansal)
Principal District & Sessions Judge (NW)
Rohini Courts, Delhi/11.03.2025/sb
Page 20 of 20