Satish Sharma vs State & Anr. on 25 May, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON : MAY 25, 2017

+ CRL.M.C.1519/2017 CRL.M.A.7149/2017

SATISH SHARMA ….. Petitioner
Through : Mr.V.K.Jain, Advocate.

versus

STATE ANR. ….. Respondents
Through : Mr.Amit Gupta, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. Present petition under Section 482 Cr.P.C. has been filed by
the petitioner to challenge the legality and correctness of a judgment dated
16.2.2017 of learned Additional Sessions Judge in Criminal Revision
No.112A/16 (New Criminal Revision No.204418/2016) by which the order
of the learned Metropolitan Magistrate dated 8.10.2015 dismissing the
petitioner’s application under Section 156(3) Cr.P.C. was upheld.

2. I have heard the learned counsel for the parties and have
examined the file. Learned counsel for the petitioner urged that the
impugned orders of the court below cannot be sustained. The petitioner was
abducted by respondents No.2 to 6 in broad day light on 4.6.2014. The
incident was captured in CCTV footage. The petitioner was falsely

Crl.M.C.1519/2017 Page 1 of 5
implicated in case FIR No.125/2014 registered under Section 376 IPC at
Police Station Pul Prahlad Pur with the connivance with respondents No.2 to

7. After abduction, he was taken to a unknown place in a car and was asked
to pay `50,00,000/- to settle his son’s matrimonial dispute. He was made to
sign certain blank papers. At 6.43 p.m., a complaint was lodged on e-mail
about his abduction which was not acted upon. At 11.00 p.m. he was
arrested in case FIR No.125/2014. Learned counsel for the petitioner further
urged that the complaint lodged with the police disclosed commission of
cognizable offence. The police was under legal obligation to lodge the FIR.

3. Undisputedly, the petitioner is facing trial in case FIR
No.125/2014 registered under Section 376 IPC at Police Station Pul Prahlad
Pur. The said case has been lodged on the complaint of respondent No.5,
(petitioner’s daughter-in-law). Upon completion of investigation, a charge-
sheet has already been submitted in the court. It is not in dispute that the
petitioner was arrested in the said proceedings at 11.00 p.m. on 4.6.2014.
It is informed that after the lodging of the FIR, the petitioner was taken to
the Police Station for interrogation and subsequently was arrested in the FIR
No.125/2014.

4. It is relevant to note that in the case filed under Section 200
Cr.P.C. the learned Metropolitan Magistrate had sought Status Report /
Action Taken Report from the concerned police station before deciding the
application under Section 156(3) Cr.P.C. In the Status Report filed by the
office of DCP (south-east) it was informed that the matter was investigated
but the allegations could not be substantiated.

5. Seemingly, soon after his alleged abduction, the petitioner did
not move the police machinery to lodge any complaint. The present

Crl.M.C.1519/2017 Page 2 of 5
complaint case under Section 200 Cr.P.C. was filed along with application
under Section 156(3) Cr.P.C. in April, 2015. The delay in lodging the
complaint case has remained unexplained.

6. The courts below have observed that the petitioner himself was
in possession of all the evidence and could prove his case by leading
evidence on his own. There was no suggestion by the complainant as to
what evidence was required to be collected through police investigation or in
what manner assistance of the State machinery was required. These
observations have been endorsed by the Revisional Court. This Court finds
no valid reasons to take different view. It is to be seen during trial if the
petitioner’s arrest in case FIR No. 125/2014 was in violation of the due
procedure. The police officials were under legal obligation to interrogate the
petitioner in the FIR where serious allegations under Section 376 IPC were
leveled against him.

7. It is pertinent to note that the petitioner had filed another
Complaint Case No.106/2013 against her daughter-in-law and others. In the
said case not only the application under Section 156(3) Cr.P.C. was
dismissed but the court also declined to take cognizance and it was
dismissed by an order dated 24.2.2015. Order dated 24.4.2015 in Criminal
Revision No.90/2015 filed by the petitioner reveals that an application under
Section 340 read with Section 195(1)(b)(i) Cr.P.C. to seek redressal at
appropriate forum was withdrawn by him. By an order dated 18.4.2017, the
petition was dismissed as withdrawn. Subsequently, Crl.M.A.7149/2017 was
filed stating the petition be disposed of on merits. Without delving into any
controversy, arguments were heard on merits on 1.5.2017.

Crl.M.C.1519/2017 Page 3 of 5

8. Well settled law is that the petitioner cannot seek investigation
under Section 156(3) Cr.P.C. by the police as a matter of right. Directions
under Section 156(3) Cr.P.C. are to be issued only after application of mind
by the Magistrate. It is not to be passed mechanically on the mere asking of
the complainant. In M/s Skipper Beverages Pvt.Ltd. vs.State 2002 Crl.L.J.
NOC 333 (Delhi) the Supreme Court observed that these powers are 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 recovery of some articles or discovery of facts.

9. The courts below have relied upon various cases including
Mrs.Priyanka Srivastav Anr.Vs.State of U.P. Ors., Criminal Appeal
No.781/2012 decided on 19.3.2015 where the Supreme Court observed:

“It needs to be reiterated that learned Magistrate has to
remain vigilant with regard to the allegations made and the
nature of allegations and not to issue directions without
proper application of mind and he has also to bear in mind
that sending the matter would be conducive to justice and
then he may pass the requisite order and further the learned
Magistrate should take the note of the allegations in
entirety, the date of incident and whether any cognizable
case is remotely made out. It was further observed that the
power under Section 156(3) warrants application of judicial
mind and a court of law is involved. It was also observed
that it is not the police taking steps at the stage of Section
154 of the Code of Criminal Procedure and in a litigant at
his own whim cannot invoked the authority of the
Magistrate. It was also observed that there has to be prior
application under Section 154(1) and 1564(3) while filing a
petition under Section 156(3) and both the aspects should be
clearly spelt out in the application and necessary documents
to that effect shall be filed. It was also observed that an
application under Section 156(3) be supported by an

Crl.M.C.1519/2017 Page 4 of 5
affidavit and the veracity of the complaint can also be
verified by the learned Magistrate, regarding being had to
the nature of the allegations of the case.”

10. The concurrent findings of the courts below based upon fair
appreciation of facts and law warrant no intervention.

11. The petition lacks in merits and is dismissed.

12. All pending application(s) stand disposed of.

13. Observations in the order shall have no impact on the merits of
the case.

(S.P.GARG)
JUDGE
MAY 25, 2017
sa

Crl.M.C.1519/2017 Page 5 of 5

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