IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE CRL.Rev.P.No.145/2010 & Crl.M.A.No.10905/2011 Judgment reserved on :16th November, 2011 Judgment delivered on:07th March, 2012

SIMRAN AHLUWALIA Through : Mr.Prasoon Kumar, Adv.

..... Petitioner

versus STATE Through: Mr.Navin Sharma, APP for State/R-1. Mr.Y. P. Narula, Senior Advocate with Mr.Aniruddha Choudhary, Adv for respondent Nos.2 & 3.

..... Respondent

CORAM: HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. 1. Instant petition is being filed by the petitioner while assailing the impugned order dated 03.03.2010 passed by learned Metropolitan Magistrate, Patiala House Courts, New Delhi in C.C.No.86/2010 titled as ‘Simran Ahluwalia v. Sudharshan Walia’. 2. The petitioner has sought direction to the respondent No.1 to lodge the FIR under Section 420/466/467/471/471A/120B Indian Penal Code, 1860 on the basis of the complaint dated 30.12.2009 filed by petitioner. 3. Learned counsel for petitioner has submitted that in the complaint mentioned above, petitioner has averred in para No.4 as under:“4. That during the investigation of the said complaint pending before the CAW Cell, Vikaas Ahluwalia on 09.10.2009 filed a forged and fabricated certificate dated 05.09.2009 issued by Assistant General Manager, Bank of

Maharashtra falsely stating that on 19.10.2006 the name of Sudharshan Walia was deleted as per the application dated 18.10.2006 given by Sudharshan Walia and the complainant. The certificate also falsely stated that since 19.10.2006 the locker No.S-48 is in the complainant’s name. Whereas, as a matter of fact originally the said locker was issued to Sudharshan Walia and Rachna Ahluwalia (Complainant’s sister in law) on 28.01.1987 and subsequently on 12.07.2002 the said locker was issued in the name of Sudharshan Walia and the complainant.” 4. The Assistant General Manager, Bank of Maharashtra, Press Enclave Road, New Delhi issued a communication dated 09.12.2009 to the petitioner as under:1. Locker issued originally on 28.11.2009 in the name of Sudarshan Walia and Rachna Ahluwalia, maintaining SB a/c.NO.4784. 2. Later on the said Locker No.S-48 is issued in the name of Sudharshan Walia and Simran Ahluwalia on 12.07.2002. Copies of Agreement of Letting of Locker (F-132) and Agreement on Stamp paper of Rs.50/- in connection with the said Locker No.S-48 is enclosed herewith. Later on the said Locker No.S-48 is changed in the name of Simran Ahluwalia only for operation of the Locker as per request of both Sudarshan Walia and Simran Ahluwalia. Copy of letter dated 18.10.2006 received by Bank on 19.10.2006 is enclosed. 3. Locker Rent of the said Locker No.S-48 has been taken by debiting SB A/c No.4784 since 2002 to 2009. 4. Details of Locker operation of the said Locker No.S-48 since July2002 is as under: On 30.07.2005 by Simran Ahluwalia On 26.11.2005 by Sudarshan Walia On 06.02.2006 by Sudarshan Walia On 16.10.2006 by Sudarshan Walia.” 5. Vide communication dated 18.10.2006, the petitioner and respondent No.2 jointly communicated to the Chief Manager of the Bank – mentioned above, regarding operation of the locker No.S-48 as under:-

“Now, we desire and agree mutually that the said locker will be operated single handed by Mrs.Simran Ahluwalia only with immediate effect. We, therefore, request you to do the need for the same and delete the name of Mrs.Sudharshan Walia from the said locker No.48.S.” 6. The SI of police station Saket, in his report as sought under Section 156(3) Cr. P.C. has submitted as under:“I have gone through the complaint and the attached documents. The complaint have attached the documents pertaining to the aid joint locker which shows that the said locker was last operated on 16.10.2006 and the alleged application for deletion of name of Mrs.Sudarshan Walia from the joint locker was submitted before the bank on 19.10.2006. The said locker was not operated thereafter. So to constitute an offence of cheating/forgery it is essential that a wrongful loss or wrongful gain to somebody must be there. The alleged Mrs.Sudarshan Walia had only got her name deleted from a joint locker of a bank. Even if we presume that the signature of Simran Ahluwalia are forged it does not cause any wrongful loss or wrongful gain to anybody. Therefore, does not constitute any offence.” 7. The facts leading to the filing of complaint by petitioner in brief are that the respondent Nos.2 & 3, mother-in-law and husband respectively of petitioner, in connivance with respondent–bank officials forged a letter dated 18.10.2006 by which the respondent No.2 got deleted her name from the locker No.S-48 in Bank of Maharashtra. The said locker was initially in the name of petitioner and respondent No.1. It is further alleged that the respondent Nos.1 & 2 got removed the jewellery of the petitioner which was lying in the said locker and for this, she filed a complaint in police station Saket, New Delhi, but no action was taken by the police. 8. On complaint being filed, report from the concerned police station was called and SI Praveen Kumar filed the report wherein he stated that the said locker was last operated on 16.10.2006 and the application for deletion of the name of the respondent No.2 from the joint locker was submitted before the bank on 19.10.2006. The said locker was not operated since 16.10.2006, so there was no wrongful loss or gain was caused to anybody, therefore, no offence was made, hence no action was taken. 9. Learned Trial Court observed in the impugned order that the complainant got married to respondent No.3 according to the Hindu rites and ceremony on 26.11.2001. The marriage was a love-marriage and out of the

said wedlock, a child was born, who is now 12 years and living with the petitioner. The admitted fact on record is that the complainant filed a complaint against the family members of respondent Nos.2 & 3 before Crime Against Women Cell, Krishna Nagar on 16.07.2009. The said complaint is running in as many as 12 pages. The petitioner has not whispered a single word about joint operation of the locker No.S-48 in the aforementioned bank, by her and respondent No.2. 10. Further, she has also not stated anything about keeping of her jewellery in the said locker. She simply stated in her complaint dated 16.07.2009 as under:“End of March 2007, a day after the party at Imperial Hotel, New Delhi (for Shobhit’s 40th birthday celebration) Vikaas falsely accused me of stealing money from his wallet. The fight aggravated and Vikaas snatched my cupboard keys and gave the keys to his mother. I left the house and went to my friend’s house (Amrita Aggarwal) in Saket. After I came back, I saw Vikaas, his sisters Rohini, Rachna and Mukta alongwith his mother in my closet room where they were emptying my jewellery box and gold and silver articles. I was shocked and questioned them, my sister-in-law Mukta said that all the stuff belonged to Vikaas and since my parents did not give them expensive gifts at the time of marriage they took all my and Avnija’s gold and silver articles and other jewellery articles. Till today, despite repeated demands I have not received my jewellery.” 11. Learned Trial Judge has also recorded that the complaint has not specified the date when she put her jewellery in the said locker. Even she has not disclosed the description of the jewellery in her complaint. The allegations regarding the wrongful loss to the petitioner is not substantiated in her complaint. 12. The glaring facts which learned Trial Judge has recorded are that the complaint has filed the list of witnesses and list of documents alongwith the record of handwriting expert Pt.Ashok Kashyap with her complaint. 13. Learned Trial Court while relying upon the judgment in M/s.Skipper Beverages Pvt Ltd. v. State 2001 AD (Delhi) 625 disposed of the application of the petitioner under Section 156 (3) Cr. P.C. and the complainant has been directed to lead her evidence to prove the complaint against the respondents. Therefore, learned Trial Court has not rejected the complaint.

14. In support of his contention, learned counsel for petitioner relied upon the decision rendered by Allahabad High Court in Ajai Malviya v. State of UP 2001 Crl.L.J.313 wherein it has been held as under:“5. The observations aforestated are decisive of an order under Section 156 being of judicial nature. Investigation under Section 156(3) of the Code albeit "embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173" Devarapath Lakshminarayana Reddy v. V. Narayana Reddy AIR 1976 SC 1672 but the discretion vested in the Magistrate to either take cognizance under Section 190 and follow the procedure prescribed under Sections 200 and 202 of the Code or direct police investigation under Section 156(3) and on receipt of the report proceed according to law, is a judicial discretion. The decision aforesaid has been quoted with approval in Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 : AIR 1997 SC 639. The Magistrate on receipt of a complaint is bound to apply his judicial mind and take a decision as to whether he should take cognizance of the offence under Section 190 of the Code or order for an investigation under Section 156(3) of the Code or in cases not falling under the proviso to Section 202, order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. The decision making process, in a sense, involves judicious approach and exercise of judicial discretion. The decision to direct police investigation in our opinion, cannot be termed executive in nature. To accept the contention of Sri Bhagwati Prasad that the power of the Magistrate to direct police investigation under Section 156(3) of the Code is an executive power, will be tantamount to negation of separation of executive power from judicial power. In such view of the matter, we are of the considered view that the order under Section 156(3) of the Code directing the police to register and investigate the case, has the complexion of a judicial order which is open to challenge under the Code itself. Section 2(i) of the Code, reliance on which was placed by Sri Bhagwati Prasad does not support the contention that the order under Section 156 of the Code is not a judicial order. The inclusive detention of the expression "judicial proceeding" contained in Section 2(i) shows that the definition is not exhaustive. Mere fact that the order under Section 156(3) of the Code directing police investigation is passed before taking any evidence on oath is no ground to hold that such order is in the nature of an executive order. Once a complaint is filed the Court of a Magistrate has power to take cognizance under Section 190 of the Code and it is the duty of the Magistrate to apply his judicial mind and decide as to which of the courses open to him in law he

is going to follow. In the course of the proceeding evidence may be legally taken on oath" if the Magistrate ultimately decides to take cognizance and issue process on receipt of the report called for under Section 156(3) of the Code. Since the order under Section 156(3) of the Code passed by the Magistrate directing the police to register and investigate the case is not under challenge, it would not be apt and proper for us to interfere with the process of investigation being conducted pursuant to a judicial order passed by the Magistrate under Section 156(3) of the Code.” 15. Further relied upon Radha v. State (Delhi) 2011(2) JCC 1414 wherein coordinate bench of this Court observed as under:“19. Another unfortunate wounding fact is that even the concerned Magistrates also showed their soulless approach in not taking prompt steps to direct the police to register an FIR, once an application was moved by the petitioner under Section 156(3) Cr.P.C. and kept on calling for one status report after the other. The Apex Court has categorically held that the Magistrate while ordering an investigation under section 156(3) should order the registration of FIR to set the investigation by the police in motion (Madhu Bala vs. Suresh Kumar & Ors 1997(8) SCC 476.). It is also has also been held that even if the Magistrate orders investigation under section 156 (3) for investigation and does not in so many words order the registration of an FIR, it is the duty of the police officer in charge to register an FIR, after all it sets in motion the investigative machinery (Mohammed Yousuf vs. Afaq Jahan 2006(1) SCC 627). However, this would not culminate to mean that the Magistrate would not make any effective order once an application under section 156(3) is filed before him. He has to either direct the police to start investigation or proceed to examine the complainant on oath. There is not contemplated in the Code any middle path to shirk from the duty; he has to set the ball rolling for the case to proceed and cannot leave the complainant high and dry in a case where there is sufficient material at least to direct the police to register an FIR. Hence, in a case like this where prima facie material was laid by the complainant disclosing commission of a cognizable offence, that too an offence of such a heinous nature which does not involve probing any document or some kind of rival claims of the parties, the Magistrates are equally expected to act with all promptitude to pass the necessary directions under Section 156(3) Cr.P.C. instead of granting long adjournments in the matter. One cannot lose sight of the fact that right to speedy investigation and right to speedy trial are not only mandated by provisions of Cr.P.C. but are the fundamental rights guaranteed to every person under Article 21 of the Constitution of India, as held by the Hon?ble Supreme Court in the case

of Raghubir Singh Vs. State of Bihar AIR 1987 SC 149. It would also be pertinent to refer, while on the issue, the judgment of the Full Bench of the Patna High Court in the case of Madheshwardhari Singh & Anr. Vs. State of Bihar AIR 1986 Pat 324 which is to the same effect and where it was held that the right to speedy trial is applicable not only to actual proceedings in court but includes within its sweep the preceding police investigation in a criminal prosecution as well. It was also held that a speedy investigation and trial are equally mandated both by the letter and spirit of the Code of Criminal Procedure. The right to a speedy trial is the polestar of the justice dispensation system of our country and we cannot let any malfunctioning of any aegis of the forces be an impediment for securing it.” 16. While refuting the submission of petitioner, Mr.Y. P. Narula, learned Senior Advocate appearing on behalf of respondent Nos.2 & 3 raised the issue on maintainability of instant petition and submitted that the petitioner has straightway approached this Court; whereas the remedies are available before the Court of Sessions. 17. In support of his contention, he relied upon the decision of M/s.Skipper Beverages(supra) wherein it has been observed by this Court as under:“10. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore a Magistrate, must apply his mind before passing an order under Section 156(3) of the Code 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 complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.” 18. Another decision in Gulab Chand Upadhyaya v. State of UP & Ors 2002 (2) Crimes 488 also relied upon by him wherein it has been held as under:-

“5. Although it may not be strictly necessary for a complainant to approach the police before filing an application under Section 156(3) Cr.P.C. (see para 7 of the Constitution Bench decision of the Supreme Court reported in AIR 1984 SC 718 A.R. Antulay v. R.S. Nayak), but as a matter of convenience and expedition, normally every genuine complainant first attempts to lodge an FIR at the police station. Thus most applications invoking Section 156(3) contain the averment that the police have (wrongly) refused to register the FIR of the cognizable offence. Section 154(1) makes it obligatory for officers in charge of police stations to register FIRs of cognizable offences. If the officer in charge of police station refused to do so, the complainant has the remedy under Section 154(1) Cr.P.C. to send the substance of the FIR to the Superintendent of Police by post who has the power to investigate the offence himself or depute a subordinate officer to investigate. Experience shows that very few complainants avail of this right under Section 154(1) Cr.P.C., apparently due to lack of knowledge. 12. In the decision dated 6-12-2001 in Criminal Misc. Application No. 6193 of 2001 'Masuriyadin and Ors. v. Addl. District Judge and Ors.', (reported in 2002 Current Bail Cases 36) a single Judge of this Court suggested as follows: ‘Orders under Section 156(3) merely mean that an alleged cognizable offence should be investigated. It should not normally be open to the accused to say before the revisional or High Court that the allegation about a cognizable offence should not even be investigated. Thus interference by superior Courts with an order of a Magistrate Under Section 156(3) should normally be confined to cases in which there are some very exceptional circumstances. However, the major problem faced by the accused persons in such cases is the apprehension of arrest pending investigation by the police, and more importantly the apprehension about misuse by the police of this power of arrest. It is this apprehension which is causing the accused to file revisions and thereafter applications Under Section 482 Cr.P.C. or writ petitions. Much of this litigation in superior Courts can be curtailed if every Magistrate while passing an order under Section 156(3) Cr.P.C. also examines. having regard to the peculiar facts and circumstances of each case, the advisability of including in his order an incidental direction as to whether the power of arrest by the police [Under Section 41 Cr.P.C. ?) for the purpose of investigation should be controlled by saying that the police will not make arrest for the purpose of investigation without first obtaining a warrant for the arrest from the Magistrate.’

In those cases where such a restriction is placed by the Magistrate, if the police, after preliminary investigation, discover some reliable evidence of the involvement of accused in the offence and if the police require his for the purpose of (completing ?) investigation, it would be open to the police the facts and material before the Magistrate, who will consider whether arrest on those facts and material would be necessary for the purpose of investigation or not, and accordingly issue or refuse to issue warrant of arrest.” 19. By summing up learned counsel for respondent Nos.2 & 3 relied upon Sakiri Vasu v. State of Uttar Pradesh & Ors (2008) 2 SCC 409 wherein the Apex Court has under as under:“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?”

20. Keeping the above facts and circumstances of the case at hand, in revision, the scope is very limited. Moreover, the observations made by the Apex Court in Sakiri Vasu (supra) are squarely applicable to instant case. There is no ground to deviate from the remedy available to petitioner under Section 200 Cr. P.C. 21. Undisputedly, the Magistrate can exercise his power under Section 156 (3) of the Code, however must not exercise and pass the order mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious and evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery or article or discovery of fact, which is not in the present case. 22. Even otherwise, the trial court has not dismissed the complaint, rather directed to lead evidence. Therefore, the petitioner has all liberty to prove her complaint by leading evidence thereto. 23. Accordingly, I find no discrepancy or procedural irregularities in the impugned order passed by learned Trial Court. The petitioner has also failed to establish any illegality in the impugned order. Therefore, I conquer with the same. 24.

Consequently, Crl. Revision Petition No.145/2010 dismissed.

25. In view of above order, Criminal M.A.No.10905/2011 is also dismissed. 26.

No order as to costs.

Sd/SURESH KAIT, J