A magistrate can before taking cognizance of an offense under section 190(1)(a), direct Police investigation under section 156(3): Delhi High Court

The issue was with respect to taking cognizance of an offense by the Magistrate when FIR is not registered by the police. This was clarified in the case of SH. Narendra Babu Gautam v. The State and Another, decided on December 6th, 2021 by Hon’ble Mr. Justice Manoj Kumar Ohri.

The facts of the case are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord, respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C-5, Gaurav Apartments, New Delhi is stated to be owned by the petitioner, along with his two brothers. One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent. Later, a complaint came to be filed by the petitioner at Police Station Madhu Vihar, Delhi, that the petitioner’s wife was trying to get the said property vacated by criminal means, in furtherance of which, two persons had come to the said property on 03.04.2015 in the petitioner’s absence and broken the main lock as well as the locks of the rooms. It was further alleged that the said persons had also broken the lock of the tenant’s room and committed theft of certain valuable items of the petitioner and his tenant. When the police did not take any action on his complaint, the petitioner filed a Criminal Complaint under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C. In the ATR, it was stated that during enquiry, respondent No. 2 claimed to be in continuous possession of the said property, along with the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State, the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required, as the entire evidence was within the control of the petitioner. Hence dismissed the complaint.

The counsel for petitioner contends that police investigation is required in the present case and the Courts below have erroneously dismissed the petitioner’s complaint. It is contended that on the day of the incident, respondent No. 2 had illegally tried to take forcible possession of the said property in absence of the petitioner by resorting to criminal means. In this regard, learned counsel has placed reliance on certain photographs as well as on the entry gate register of the concerned society and further submitted that the same show that respondent No. 2, alongwith Vikas and Dharam Singh had committed the alleged offence.

The Counsel for the State, on the other hand, has supported the impugned orders. It was submitted that the Courts below have rightly arrived at a consistent conclusion that the entire evidence being in possession of the petitioner, no investigation by the police is required in the present case.

After considering the arguments of both the parties, The court before giving its opinion had reiterated the Supreme Court judgements in the case of H.S. Bains, Director, Small Saving-Cum Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) & Vasanti Dubey v. State of Madhya Pradesh, where it was decided that, “When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3); However, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take necessary steps”.

In the present case, the the petitioner had sought to bring on record a pen drive containing CCTV footage of the incident and alleged that four persons in total, i.e., respondent No. 2, her daughter and two persons, namely Vikas and Dharam Singh, had committed the offence. Further, for establishing the identity of the aforesaid two persons, the petitioner himself has placed reliance on the entry gate register of the concerned society, wherein the names as well as mobile numbers of the said persons are mentioned. Noticing the same, the learned Metropolitan Magistrate had concluded that neither custodial interrogation nor police investigation was required in the present case, more so, as the entire evidence was in possession of the petitioner. In revision, the Sessions Court also reached the same conclusion and upheld the order of the learned Magistrate. In view of the foregoing analysis and the exposition of law cited hereinabove, this Court is also of the view that the learned Magistrate rightly dismissed the petitioner’s complaint. Hence the petition was dismissed.

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Reviewed by Revanth.

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