Procedure to be followed while dealing with an application under Section 156(3) of the Code – Private Complaint

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:-

[Crl.M.C.Nos.6122-23/2005 & Crl.M.C.Nos.6133-34/2005 Page 42 of 69] (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 circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders. 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 evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a 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-

[Crl.M.C.Nos.6122-23/2005 & Crl.M.C.Nos.6133-34/2005 Page 43 of 69] 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.

….

93. A copy of this judgment be sent to the Chairman, Delhi Judicial Academy. Further, as this problem arises often, and to prevent parties from misusing the process of law (section 156(3) Cr.P.C), the Registrar General of this court will ensure that a copy of paragraph 52A (containing the guidelines) is circulated as an excerpt to all subordinate judicial officers in Delhi.

full txt available @http://lobis.nic.in/dhc/MCG/judgement/09-07-2010/MCG09072010CRLMM61222005.pdf

Delhi HC- Lodging verbal oral Complaint (definition u/s 2(d) crpc)-cognizance u/s 200 crpc-156 crpc- directions for lower courts and police- Amit Khera V Govt. of NCT of Delhi

Writ Petition (Crl.) 804 of 2008  Amit Khera  V Govt. of NCT of Delhi & Ors.     

*              IN THE HIGH COURT OF DELHI AT NEW DELHI      
             Date of Reserve: 15th July, 2010
Date of Order:  August, 11th  2010

Writ Petition(Crl.) No.804 of 2008   11.08.2010

  Mr. Amit Khera            ...Petitioner         
Through: Mr. Subhash Gulati, Advocate     

  Versus  

  Govt. of NCT of Delhi & Ors.         ...Respondents   
Through: Mr. Pawan Sharma, Standing Counsel for State
     Mr. Asim Naeem, Advocate for R-6 to 8 

JUSTICE SHIV NARAYAN DHINGRA

1.  Whether reporters of local papers may be allowed to see the judgment?  Yes.

2.  To be referred to the reporter or not?          Yes.

3.  Whether judgment should be reported in Digest?        Yes.

JUDGMENT 

1.   By the present petition,  the petitioner has assailed an order passed by learned ASJ dismissing the revision petition of the petitioner against an order of learned MM dismissing an application for the petitioner under Section 156(3) Cr.P.C. 

2.  Brief facts relevant for purposes of deciding the present petition are that the petitioner made a complaint to SHO that he received threats on his mobile phone from another mobile phone whose phone number petitioner disclosed. The petitioner had recorded the conversation of the caller and himself and gave this conversation to the police and wanted police to  initiate action. The police, however, did not register an FIR. The petitioner thereafter approached the learned MM. The learned MM  in his  order observed that  in his opinion the allegations made in the application by the petitioner do not  warrant registration of an FIR as the petitioner had failed to explain why involvement of police machinery was required  since  no recovery was to be made by the police officials and the allegations of illegal demand of money and giving threats could very well be established before the Court on leading proper evidence. He further observed that no technical or scientific investigation was required, therefore, he refused to give directions under Section 156(3) Cr.P.C for registration of FIR and dismissed the application of the petitioner. He went on observing  that since the applicant had not approached the Court with a complaint under Section 200 Cr.P.C and only sought directions for registration of FIR, no further action was needed on his application. He gave liberty to the applicant to file a complaint under Section 200 Cr.P.C. The learned ASJ before whom the revision was preferred observed that though no form of complaint under Section 200 Cr.P.C was prescribed, the application made by the petitioner could not be treated as a complaint under Section 200 Cr.P.C and the petitioner was at liberty to file a regular complaint under Section 200 Cr.P.C. He found no infirmity in the order of trial court. 

3.  Both the orders above show insensitiveness of the courts to the poor litigants and apathy to the common man.  Both the courts below acted in an arbitrary manner contrary to the settled legal position. Section 2(d) Cr.P.C. defines complaint as under:

(d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that  some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.A report made by a police officer in a case, which discloses, after investigation, the  commission of a non-cognizable offence shall be deemed a complaints and the police officer by whom such report is made shall be deemed to be the complainant.

4.  Section 200 Cr.P.C requires a Magistrate to take cognizance of an offence on a complaint. When a complaint is made before the Magistrate, the Magistrate has to examine complainant and other witnesses present,  on oath and he has to record substance of such examination and ask the complainant and witnesses to sign the same. However, a complaint can be made before the learned MM orally as well as  in writing. Thus, when a complainant approached the Court with an application under Section 156(3) Cr.P.C with specific allegations that his report was not being registered by the police and the police was not acting, the Magistrate could not have sent back the person, unless the Magistrate had come to the conclusion that from the complaint, no cognizable  offence was made out. The reasons given by the Court of MM and upheld by the Court of ASJ for not acting on the application of the petitioner are bereft of any logic. On receipt of a complaint, the duty of the police is not only to do scientific investigation and make recoveries, it  has to take action against the offenders as per law. The investigation is done by police even by the recording statements of witnesses. Moreover, in the present case,  the petitioner was having only phone number of the caller and police  had resources to find out the name of the caller and other particulars of the caller by approaching service providers,  which the petitioner  himself  could not have done. I, therefore, consider that the learned MM went  wrong in observing that no FIR was required to be registered since no scientific investigation/ recovery needed to be done. 

5.  The learned MM and learned ASJ both went wrong in observing that a formal complaint was required to be made by the complainant under Section 200 Cr.P.C. Section 200 Cr.P.C does not require making of a written formal written complaint by a complainant. A complainant can  just  appear before the Court  of MM  and  request the Court to take his oral complaint on record. The Court of MM, under Section 200 Cr.P.C, is obliged to record the statement of complainant and his witness, if any, appearing with him, and the learned MM has to act on such a statement, if commission of a cognizable offence is disclosed. The Court cannot refuse to entertain a complainant who appears in person before the Court and wants to make an oral complaint. In the present case, the complainant had made an application under Section 156(3) wherein he had made specific allegations against respondent. The Court was duty bound to take cognizance of this complaint  as a complaint of the petitioner and was bound to act upon it. The petition is hereby allowed and the order passed by learned MM and learned ASJ both  being illegal orders are hereby set aside. The application of the petitioner under Section 156(3) is allowed. The police of police station Delhi Cantt. is hereby directed to register an FIR on the complaint of the petitioner. The concerned SHO shall register a case and bring it to a logical conclusion, after proper investigation. 

6.  The petition stands allowed.  

August 11, 2010                               SHIV NARAYAN DHINGRA J.
rd

http://lobis.nic.in/dhc/SND/judgement/12-08-2010/SND11082010CRLW8042008.pdf