BHANWAR SINGH SAINI vs STATE (GNCTD) ORS
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08.01.2024
+ CRL.M.C. 1473/2022 & CRL.M.A. 6371/2022
BHANWAR SINGH SAINI ….. Petitioner
Through: Mr.Ajit Kumar Gola, Adv.
versus
STATE (GNCTD) ORS ….. Respondents
Through: Mr.Shoaib Haider, APP.
CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed by the petitioner, who is the complainant, challenging the order dated 12.11.2021 passed by the learned Metropolitan Magistrate-01, South-West District, Dwarka Courts, New Delhi (hereinafter referred to as MM) in CC No.1173/2021, titled Bhanwar Singh Saini v. Ishwar Das Saini & Ors.; and the order dated 18.12.2021 passed by the learned Principal District and Sessions Judge (South-West/Dwarka), New Delhi (hereinafter referred to as District Judge) in CR no.262/2021 titled Bhanwar Singh Saini v. State & Ors..
2. By way of the impugned order, the learned MM has been pleased to dismiss the application filed by the petitioner under Section 156(3) of the Code of Criminal Procedure, 1973 (in short Cr.P.C);
3. By way of the impugned order dated 18.12.2021, the learned District Judge has been pleased to dismiss the Revision Petition filed by the petitioner challenging the above mentioned order dated 12.11.2021.
4. The facts in brief giving rise to the present petition are that the petitioner and the respondent nos.2 to 12 are all family members. The dispute is with respect to the property bearing H. No. WZ-146, Palam Village, New Delhi (hereinafter referred to as Property). The petitioner claiming that he along with his family has been residing in the said property for the last 40 years, filed a complaint under Section 200 of the Cr.P.C. before the Court of the learned MM, complaining of various instances where he was threatened by the respondent nos.2 to 12. He further complained that on 12.05.2021, the respondent no.2, respondent no.4, and respondent no.6 demolished the roof of the first floor of the said property and threatened the petitioner. On 26.05.2021, the respondent nos.10, 11 and 12 forcibly entered the petitioners portion of the property by breaking the lock and started demolishing the same. The petitioner alleged that the respondent no. 2 to 12 also committed other offences, by removing the petitioners household articles, furnishings, fixtures, ACs, coolers, fans alongwith other valuable and general items. The petitioner claimed that in spite of the repeated complaints to the police, no further action was taken against the said respondents. The petitioner claimed that the respondents had committed offences punishable under Sections 379/380/448/452/420/506/120B/34 of the Indian Penal Code, 1860 (in short, IPC) and other relevant Sections of the Delhi Disaster Management Act.
5. The petitioner also filed an application under Section 156(3) of the Cr.P.C., praying for a direction to be issued to the police to carry out the investigation qua the complaint of the petitioner. The said application was however, dismissed by the learned MM by the Impugned order dated 12.11.2021, inter alia observing as under:
5. Now, from the bare perusal of the complaint it is clear that the complainant and the respondents are family member living on a joint property and since dispute has arisen, the complainant has objected to the construction being carried out by the respondents which is subject matter of a civil suit and further the complainant himself admits that partition suit is also pending. In the complaints of April 2021, there is no allegation of theft and it was only in June 2021 that the complainant alleged theft of various articles, yet there is no invoice/bill and considering the strained relations between the parties, the possibility of motivated allegations at a later stage cannot be ruled out. However, the same does not preclude this court to undertake limited inquiry u/S.202 CrPC at a later stage. Therefore, application U/s156(3) CrPC stands dismissed on the following grounds
i. The identity of the accused persons is already know to the complainant
ii. All the incriminating facts are within the knowledge of the complainant.
iii. No facts are to be unearthed so as to require aid of police and it is also not the case where the collection of evidence is required.
iv Custodial interrogation of the accused is not necessary.
v The evidence required in the case is within the reach of the complainant.
6. The petitioner, being aggrieved of the said order, challenged the same by way of a revision petition before the learned District Judge. The same has been dismissed by the Impugned Order dated 18.12.2021, observing as under:
7. A study of complaint dated 28.04.2021, 7.06.2021 and 28.08.2021 reveals that there are drastic improvements and padding in the allegations against the respondent party with each successive complaint. Complaint dated 28.04.2021 mentions the incident to have taken place on that day. Complaint dated 07.06.2021 mentions the incident to have taken place on 25.04.2021. The complaint dated 07.06.2021 does not mention any incident to have taken place on 3.08.2021, 12.05.2021, 17.05.2021 or 21.05.2021 which have been stated in the complaint dated 28.08.2021. The incidents of May would not have been reflected in the complaint dated 28.04.2021 but they could certainly have been reflected in complaint dated 07.06.2021. The articles of alleged theft mentioned in the complaint dated 28.08.2021 are much more in number and description than the ones stated in complaint dated 07.06.2021. This court is, therefore, of the prima facie opinion that petitioner/complainant is only seeking to implead her brother-in-law (Jeth) and his family by hook or crook.
8. I find that Trial court has committed no error in observing that the entire evidence is in the possession of complainant party and no police investigation is required. The argument of Sh. Gola that the stolen articles are yet to be recovered and therefore, police investigation is necessary does not impress this court. For the offence of theft to be established, recovery of stolen articles is not necessary. Theft can be proved by other evidence, which in the present case, is stated to be a video recording in possession of complainant party.
7. The petitioner has now filed the present petition challenging the above orders.
8. The learned counsel for the petitioner vehemently submits that the learned MM and the learned District Judge have erred in not appreciating that once the complaint filed by the petitioner disclosed cognizable offence having been committed by the respondents, the police was duty bound to register an FIR against the respondent nos.2 to 12. In support, he places reliance on the judgment of the Supreme Court in XYZ v. State of Madhya Pradesh and Ors., (2023) 9 SCC 705, which in turn, relied upon the earlier judgment in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1.
9. He submits that even the stolen property needs to be recovered by the police for which investigation would be required to ascertain their whereabouts. He submits that the learned District Judge has erred in observing that the recovery of the stolen articles is not necessary for the offence of theft to be established.
10. He submits that the petitioner also has in his possession a video message received by him, which also requires to be investigated by the police. He submits that therefore, an order of investigation under Section 156 (3) of the Cr.P.C. should have been issued.
11. I have considered the submissions made by the learned counsel for the petitioner, however, find no merit in the present petition.
12. As noted hereinabove, the dispute is between family members and is in relation to the claim of the petitioner to the property, which he claims to be jointly owned and of which he claims to be in part-possession. Suit claiming partition of the said property is already pending adjudication.
13. As held by the Supreme Court, ordering an investigation under Section 156(3) of the Cr.P.C. is a discretionary power of the learned Magistrate. The same is to be exercised depending on the facts of each case.
14. It is settled law that the petitioner cannot, in form of a petition under Section 482 of the Cr.P.C., take recourse to a second revision, which is otherwise prohibited under Section 397 (3) of the Cr.P.C. Reference in this regard may be made to the judgment of the Supreme Court in Rajan Kumar Manchanda v. State of Karnataka, 1990 Supp SCC 132.
15. In the facts of the present case and having considered the reasons given in the impugned orders, I find no infirmity in the impugned orders.
16. In view of the above, I find no merit in the present petition. The same is accordingly dismissed.
17. It is made clear that any observation made by this Court in the present order shall not in any manner influence the proceedings that are pending before the learned MM.
18. The petition and the pending application are disposed of in the above terms.
NAVIN CHAWLA, J
JANUARY 8, 2024/RN/RP
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