Chanchal Joshi vs .

Rattan Lal Kaushik And Ors on 18 December, 2018

Delhi District Court

Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018
CR No: 440299/16
Chanchal Joshi Vs. Rattan Lal Kaushik and Ors

IN THE COURT OF SH. HARISH DUDANI

SPECIAL JUDGE, (PC ACT) CBI-1
DWARKA COURTS: NEW DELHI

Chanchal Joshi
W/o Sh. Anil Joshi @ Anil Kumar @ Anil Sharma
R/o RZ-202A, Street No. 14A/10, Sadh Nagar
Palam Colony, New Delhi- 110045.

............. Revisionist
VERSUS

1. Rattan Lal Kaushik S/o Lt. Sh. Maman Chand

2. Shakuntala Kaushik W/o Ratan Lal Kaushik
3. Deepak Kaushik @ Doli S/o Ratan Lal Kaushik
4. Tarun Kaushik @ Darpan @ Tarpan S/o Ratan Lal
Kaushik
5. Shashant Kaushik @ Minku S/o Deepak Kaushik

All R/o - WZ-207 C, Street No. 15E, Sadh nagar

Palam Colony, New Delhi- 110045.

6. Vinay Sharma, Advocate

7. Neeru Sharma W/o Vinay Sharma

I. Chamber No. 650, District Court Dwarka,

Sector-10, New Delhi- 75

ii. R/o WZ-500, Corner Wala Ghar, Adjoining

Mahinder Kumar House, Near Shri Vishwanath
Mandir Charitable Trust, Sadh Nagar, Palam
Colony, New Delhi- 110045.

8. The State (NCT of Delhi)

Through Public Prosecutor

........Respondents

CR No: 440299/16 Page1 of 30 D.O.J.18.12.2018

CR No: 440299/16
Chanchal Joshi Vs. Rattan Lal Kaushik and Ors

CR No. : 440299/16
Date of Institution : 27.03.2015

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

Police Station : Palam Village

Reserved for orders on : 10.12.2018
Order announced on : 18.12.2018

JUDGMENT

1. This is a revision petition under Section 397 r/w 401 Cr.PC. against the order dated 28.01.2015
passed by Ld. MM-01, Dwarka Courts, New Delhi whereby Ld. MM has been pleased to dismiss the
application under Section 156 (3) Cr.P.C. filed by the complainant (revisionist herein). Briefly stated
facts relevant for disposal of revision petition are as under:

2. The present revision petition arises out of Complaint Case No. 120/1/14 dated 25.11.2014 , titled
as Chanchal Joshi Vs. Rattan Lal Kaushik & Ors by the complainant Chanchal Joshi under Section
156(3) and /or Section 190(1)(a) Cr.P.C. for commission of offences under Sections
389/406/415/420/423/468/471/511 and 120 B of IPC.

3. In the complaint under Section 156(3) Cr.P.C. and /or 190 (1)(a) Cr.P.C. the complainant has
stated that the husband of the complainant had purchased 100 Sq. Yards plot from Sh. Manan
Chand , father of accused no. 1/ CR No: 440299/16 Page2 of 30 D.O.J.18.12.2018 CR No:
440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors respondent no. 1 in the year 1974 upon
execution of Power of Attorney with consideration in the name of father-in-law of the complainant
Sh. Ram Pratap which was duly registered with Sub Registrar. It is stated that after constructing the
house, father in law of the complainant resided in the property during his life time along with
husband of complainant. Father in law of complainant during his life time had executed power of
attorney of property in question in favour of husband of complainant which later on passed on the
title of the property to complainant having come to know that he is seriously ill. It is stated that
complainant was in financial stress and entered into agreement to sell 50 sq. yards out of the said
property under her possession with one Shobha Kumari W/o Sh. Mukul Mohan who was to arrange
the money by 11.10.2012. However, Shobha Kumari did not inform the complainant that she has not
been able to arrange the money and as such the deal was considered to be off. It is stated that
brother in law of the complainant approached the complainant and on the pretext of arranging
finance from PNB, he obtained all the original papers concerning the property of the complainant
but he did not return back the complete property papers and retained some documents. It is stated
that complainant and her family had been in continuous and uninterrupted possession and
enjoyment of property without any CR No: 440299/16 Page3 of 30 D.O.J.18.12.2018 CR No:
440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors obstruction or objection from any corner
till October, 2012 when the complainant was compelled to sell 50 sq. yards out of the property
owned and possessed by her family since 1974.

4. It is further stated in the complaint that accused no. 1 to 6 have filed two civil suits against the
complainant and her family members on the basis of false assertion of some Special Power of
Attorney which was alleged to be executed by father of accused no.1 and on the basis of purported
Power of Attorney of brothers and sisters etc. for which the affidavits are/were also executed making
accused no. 1 as a nominee on 17.10.2012. It is further stated that in order to build pressure on

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

complainant, accused no. 1 ( respondent no. 1 herein) made false complaint dated 29.10.2012
against the complainant and her family and in the said complaint, the accused no. 1 referred to one
Special Power of Attorney executed by his father and alleged that the same is/was revoked after the
death of his father but did not produce the document. The complainant has further stated that
accuseds in collusion with accused no. 6 who is practicing Advocate and son-in-law of accused no. 1
and 2 had made a private complaint under Section 420 IPC r/w Section 156(3) Cr.P.C. against all the
family members of complainant. It is stated that accused persons directly or indirectly started
sending demands of money ranging CR No: 440299/16 Page4 of 30 D.O.J.18.12.2018 CR No:
440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors more than Rs. 10 lacs to the complainant
and in this regard few conversation were recorded by sons of complainant on 25.12.2012,
05.02.2013, 13.02.2013, 15.02.2013, 17.02.2013, 18.02.2013 and 04.03.2013 besides some other
conversations. It is stated that accused no. 1 even made demand of money and sons of the
complainant got prepared a demand draft of Rs. 50,000/- in the name of accused no. 1 but accused
no. 1 to 6 refused to accept the same and sought cash. It is stated that accused no. 6 even highlighted
that he would withdraw the civil cases against family of the complainant and will also arrange for
quashing of FIR against the complainant and her family and on that pretext accused no. 1 to 6
demanded the amount. It is stated that accused no. 6 even demanded Rs. 40,000/- in the name of
court fee. It is further stated that the accused filed false complaint under Section 156(3) Cr.P.C. and
on the same Ld. MM has directed for registration of FIR and case vide FIR no. 22 dated 19.01.2013
was registered at PS Palam Village against the complainant and her family members. It is stated that
the sons of the complainant visited accused no. 1 and accused no. 6 on 17.02.2013 where accused
persons claimed that they had made complaint against the complainant and her family and
demanded Rs. 10 lacs in order to not to oppose the bail application on 18.02.2013 scheduled to be
listed before Ld. District & CR No: 440299/16 Page5 of 30 D.O.J.18.12.2018 CR No: 440299/16
Chanchal Joshi Vs. Rattan Lal Kaushik and Ors Sessions Judge besides settling all the cases initiated
by the accused persons. It is stated that sons of complainant got the audio visual recording of the
conversation that took place on different occasions and dates.

5. After calling for the action taken report from the police station concerned and after going through
the entire material record, Ld. MM was pleased to dismiss the application under Section 156(3)
Cr.P.C. vide impugned order dated 28.01.2015 and the case was directed to be listed for CE on
27.03.2015.

6. Aggrieved by the order dated 28.01.2015 whereby Ld. Trial Court has been pleased to dismiss the
application under Section 156(3) Cr.P.C. of the complainant (revisionist herein), the complainant
has filed the present revision petition.

7. In the revision petition, the revisionist (complainant) has stated that on the direction of Ld. Trial
Court, status report dated 18.12.2014 was filed by the police stating therein that the telephonic
conversation is pertaining to the settlement subsequent to registration of an FIR, whereas the
incidents are even of prior date and even the recordings are prior to the registration of alleged FIR
and police ignored that there was no telephone conversation in the compact disc submitted in the
court rather it was the audio visual footage got recorded by the revisionist or her sons on the
demanding of money by the CR No: 440299/16 Page6 of 30 D.O.J.18.12.2018 CR No: 440299/16

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Chanchal Joshi Vs. Rattan Lal Kaushik and Ors respondents. It is stated that Ld. Trial Court without
any justification concluded that the revisionist is in possession of the evidence. It is stated that Ld.
MM has ignored the allegations of the petitioner of extortion which are serious in nature and Ld.
MM has not passed speaking order and the impugned order dated 28.01.2015 is liable to be set
aside.

8. Respondents have filed reply to the revision petition and have contested the same. It is stated in
the reply that the criminal revision petition is not maintainable in the eyes of law and the revisionist
has not come with the clean hands before this court and has suppressed the material facts and the
reliefs sought by the revisionist are totally baseless and malafide and the Trial Court has after
applying his judicial mind ,rightly passed the impugned order without any bias. Respondents have
denied all the contents of the revision petition. It is stated that no power of attorney executed in the
name of Sh. Ram Pratap, father in law of the complainant is on record till date . It is stated that
revisionist in connivance with his brother in law and other family members had cheated the
respondents. It is stated in the reply that Shobha Kumari with whom the complainant entered in
Agreement to Sell has also filed a complaint of forgery against the revisionist. It is stated that all the
audio visual recording are edited ones. It is stated that revision petition is liable CR No: 440299/16
Page7 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors to
be dismissed.

9. I have heard Ld. Counsel for the parties and perused the records.

10. The contention of Ld. Counsel for the revisionist is that the complainant was in uninterrupted
possession of property in question till the year 2012 and the accused persons have filed two false and
frivolous civil suits against the complainant in order to pressurize the complainant to part with
possession of the property and the accused persons also got false FIR no. 22 dated 19.01.2013
registered against the complainant. Ld. Counsel for the revisionist has contended that the accused
persons(respondents herein) demanded a sum of Rs. 10 lacs from the complainant and her family
for settlement of civil suits and for quashing of FIR and the conversation was recorded by the
complainant. Ld. Counsel for the revisionist has contended that Ld. MM has ignored the allegations
of the petitioner of extortion which are serious in nature. The contention of Ld. Counsel for the
revisionist is that Ld. MM has not passed speaking order and the impugned order dated 28.01.2015
is liable to be set aside.

11. Ld. Counsel for the revisionist has relied upon the following judgments:

(i) Kailash Verma vs. Punjab State Civil Supplies, (2005) 2 SCC 671

(ii) Arun Saxena and ors Vs. Today Homes & CR No: 440299/16 Page8 of 30 D.O.J.18.12.2018 CR
No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors Infrastructure P. Ltd. And Ors.
,MANU/DE/3060/2018

(iii)Lalita Kumari v. Govt of UP & Ors. (2014) 2 SCC 1

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

12. Ld. Counsel for respondents no. 1 to 7 has contended that the order dated 28.01.2015- of Ld. MM
does not suffer from any infirmity and the revision petition is not maintainable.

13. Ld. Counsel for the revisionist has contended that in the impugned order dated 28.01.2015, Ld.
MM has referred to the conversations on which the complainant has relied and has reached the
conclusion that the case does not call for registration of FIR.

14. Ld. Counsel for the respondents no. 1 to 7 has contended that respondent no. 6 , who is a lawyer
was only guiding the parties regarding settlement of matter and he has been falsely named in the
case.

15. Ld. Counsel for respondents no. 1 to 7 has contended that the conversation on which the reliance
has been placed by the complainant would show that the same are regarding the talks of settlement
between the parties for settling the dispute regarding the property in question.

16. Ld. Counsel for respondent no. 1 to 7 has contended that the allegations as made by the
complainant (revisionist herein) do not disclose any cognizable offence and the complaint is liable to
be dismissed.

CR No: 440299/16 Page9 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors

17. Ld. Addl. PP for the State has contended that there is no infirmity in the impugned order dated
28.01.2015 and the revision petition is liable to be dismissed.

18. In the complaint under Section 156(3) and/or Section 190(1)(a) Cr.P.C. the complainant has
stated that she was in uninterrupted possession of property in question till October, 2012. However,
thereafter accused persons have filed two false and frivolous complaints and they also filed some
false application under Section 156(3) Cr.P.C. on the basis of which FIR no. 22/13 has been
registered at PS Palam Village against the complainant and her family members. The allegations of
complainant are that the civil suits and the FIR have been lodged by the accused against the
complainant to pressurize the complainant to part with sum of Rs. 10 lacs. The allegations of
complainant are that they have recorded the conversation which took place with the accused
persons whereby they demanded money from them. The plea of the respondent no. 1 to 7 is that the
conversation on which reliance has been placed by the complainant( revisionist herein) would show
that the same pertains to talk of settlement which have taken place between the parties.

19. Section 156 reads as :

156. Police officer's power to investigate cognizable case.

(1) Any officer in charge of a police station may, CR No: 440299/16 Page10 of 30 D.O.J.18.12.2018
CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

within the limits of such station would have power to inquire into or try under the provisions of
Chapter XIII. (2)No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not empowered under this
section to investigate.

(3)Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned.

20. In Lalita Kumari v. Govt. of UP & Ors. (2014) 2 SCC 1, Hon'ble Supreme Court of India has been
pleased to observe that:

91) In Madhu Bala (supra), this court held

6. ...............

9. ..............

10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation
on a complaint the police has to register a cognizable case on that complaint treating the same as the
FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension
as to how the direction of a Magistrate asking the police to register a CR No: 440299/16 Page11 of
30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors case makes
an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate
does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the
Code which empowers the police to investigate into a cognizable case and the Rules framed under
the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then
investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way
of a Magistrate to direct the police to register a case at the police station and then investigate into
the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be
made the proper direction to the police would be to register a case at the police station treating the
complaint as the first information report and investigate into the same.

.................................... .................................... ....................................

111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information
discloses commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for
an inquiry, a preliminary inquiry may be conducted CR No: 440299/16 Page12 of 30
D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors only to
ascertain whether cognizable offence is disclosed or not.

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iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In
cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and not later than one week. It must disclose
reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by
him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information
received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the
facts and circumstances of each case. The category of cases in which preliminary inquiry may be
made are as under:

a) Matrimonial disputes/family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, CR
No: 440299/16 Page13 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors over 3 months delay in reporting the matter without satisfactorily explaining the
reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant
preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary
inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such
delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a
police station, we direct that all information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the
said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned
above.

21. In Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 Supreme Court Cases
439, Hon'ble Supreme Court was pleased to hold:

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

12. It is further submitted that in the present case, the civil proceedings are pending
between the parties where the question of genuineness or otherwise of the
partnership deed is an issue. The process of CR No: 440299/16 Page14 of 30
D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors
criminal law cannot be used when a dispute is primarily of civil nature.
Simultaneously initiation of criminal proceedings may be permitted where an offence
is shown to have been committed. Thus, the Magistrate was entitled to satisfy himself
as to whether any cognizable offence had been committed before proceeding further.
The Magistrate was not satisfied from the material available that any cognizable
offence had been committed and he rightly decided to conduct further enquiry under
Section 202.

Having regard to the limited nature of inquiry under Section 202 which option had been rightly
chosen by the Magistrate, direction to the police to investigate and give a report was limited by the
very purpose for which the limited inquiry was to be held, as against procedure for investigation in
cases not covered under Section 202 of the Code. The purpose was to enable the Magistrate to
decide whether there was ground to proceed further. The Magistrate having taken cognizance of the
offence and the police having not registered a criminal case nor the Magistrate having directed
registration of criminal case, procedure and power of the police in the matter are different and in
such a situation CR No: 440299/16 Page15 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal
Joshi Vs. Rattan Lal Kaushik and Ors police did not have the power to arrest without permission of
the Magistrate as was the view of the Gujarat and other High Courts.

XXXXXXXXXXXX XXXXXXXXXXXX

20. It has been held, for the same reasons, that direction by the Magistrate for investigation under
Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, it was observed: (SCC
p.711 para

11) "11. The scope of Section 156 (3) Cr.P.C. came up for consideration before this Court in several
cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the
Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is
exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter
under Section 156(3) against a public servant without a valid sanction order. The application of
mind by the Magistrate should be reflected in the order. The mere statement that he has gone
through the complaint, documents and heard the CR No: 440299/16 Page16 of 30 D.O.J.18.12.2018
CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors complainant, as such, as
reflected in the order, will not be sufficient . After going through the complaint, documents and
hearing the complainant, what weighed with the Magistrate to order investigation under Section
156(3) CrPC , should be reflected in the order, though a detailed expression of his views is neither
required nor warranted. We have already extracted the order passed by the learned Special Judge
which , in our view, has stated no reasons for ordering investigation."

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

The above observations apply to category of cases mentioned in para 120.6 in Lalilta Kumari.

Xxxxxxxxxx xxxxxxxxxxx

22. Thus, we answer the first question by holding that:

22.1. The direction under Section 156(3) is to be issued, only after application of mind by the
Magistrate. When the Magistrate does not take cognizance and does not find it necessary to
postpone the issuance of process and finds a case made out to proceed forthwith, direction under
the said provision is issued. In other words, where on account of credibility of information available,
or weighing the interest of justice it is considered appropriate to straightaway CR No: 440299/16
Page17 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors
direct investigation, such a direction is issued.

22.2 The cases where Magistrate takes cognizance and postpones issuance of process are cases
where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of
cases falling under para 120.6 in Lalita Kumari may fall under Section 202.

22.3 Subject to these broad guidelines available from the scheme of the Code, exercise of discretion
by the Magistrate is guided by interest of justice from case to case.

Xxxxxxxxxxxxxx
xxxxxxxxxxxxxx
32. We now come to the last question

whether in the present case the Magistrate ought to have proceeded under Section 156(3) instead of
Section 202. Our answer is in the negative. The Magistrate has given reasons, which have been
upheld by the High Court. The case has been held to be primarily of civil nature. The accused is
alleged to have forged partnership.

Whether such forgery actually took place,

whether it caused any loss to the
complainant and whether there is the

requisite mens rea are the questions which are yet to be determined. The Magistrate CR No:
440299/16 Page18 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors has not found clear material to proceed against the accused. Even a case for
summoning has not yet been found. While a transaction giving rise to cause of action for a civil
action may also involve a crime in which case resort to criminal proceedings may be justified, there
is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a
purely commercial transaction. This Court has cautioned against such abuse.

33. In Indian Oil Corpn v. NEPC India Ltd., it was observed: ( SCC pp. 748-49,para 13) "13. While on
this issue, it is necessary to take notice of a growing tendency in business circles to convert purely
civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

law remedies are time consuming and do not adequately protect the interests of lenders/creditors.
Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of
marriages/families. There is also an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes
and claims, which do not involve any criminal offence, by applying pressure through criminal
prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of UP this CR No:
440299/16 Page19 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors Court observed: ( SCC p. 643, para 8) '8. ......It is to be seen if a matter, which is
essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not
a short cut of other remedies available in law. Before issuing process a criminal court has to exercise
a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles
on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or
otherwise to secure the ends of justice."

34. In Pepsi Foods Ltd. v. Judicial Magistrate, it was observed: ( SCC p. 760, para 28) "28.
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the complainant has to bring only two witnesses to
support his allegations in the complaint to have the criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine the nature of allegations made in the complaint
and the evidence both oral and documentary in support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary CR No: 440299/16 Page20 of 30
D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors evidence
before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought
on record and may even himself put questions to the complainant and his witnesses to elicit answers
to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima
facie committed by all or any of the accused."

22.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.

23. Even though Section 156 Cr.P.C. empowers the Magistrate to issue directions to the police to
register the FIR but this provision cannot be permitted to be misused by the complainant and the
Magistrate is to apply his mind to the facts of each case before passing orders under Section 156 (3)
Cr.P.C. and not to act in a mechanical manner.

24. In the revision petition the revisionist has stated that a false complaint under Section 156(3)
Cr.P.C. was filed by the accused and Ld. MM without going through the contents and transactions
directed for registration of FIR in pursuance of which case vide FIR No. 22/2013 was registered at
PS Palam Village against the complainant and her family members.

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Kaushik and Ors

25. The thrust of arguments of Ld. Counsel for the revisionist is that accused persons have registered
a false case vide FIR no. 22/2013 at PS Palam Village against the complainant for putting pressure
on the complainant and the same amounts to extortion as per section 383 IPC and on that account
the order was to be passed under Section 156(3) Cr.P.C. for registration of FIR.

26. The plea which has been raised by the revisionist/complainant is that they are in possession of
the audio video recordings which shows that accused persons demanded money for withdrawal of
the cases from them.

27. Vide order dated 26.11.2014 Ld. Trial Court was pleased to direct for calling the status report
from SHO concerned and report dated 18.12.2014 was filed by SI Krishan Gopal thereby stating:

".---- I have enquired the facts and it is revealed that the complainant and alleged
persons are relatives and a property dispute was arisen between the parties . Hence a
case FIR No. 22/13 u/s 420/423/448/468/471/120B IPC was registered by the order
of Hon'ble Court on the complaint of Sh. Rattan Lal Kaushik. After that both the
parties tried to settle the matter and all the conversations on phone calls related to
the settlement. There is no conversations related to extortion. No CR No: 440299/16
Page22 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors cognizable offence is made out in this matter".

28. In the impugned order dated 28.01.2015, Ld. Trial Court has been pleased to observe:

After going through the entire material on record which includes the conversation
details filed by the complainant, this Court is of considered view that complainant is
in possession of evidence and as such she can lead her pre summoning evidence and
for this reason, this Court is of firm opinion that field investigation by the police is
not required in this case and accordingly, application u/s 156(3) Cr.P.C. is hereby
dismissed. However, complainant is given a chance to lead pre summoning evidence.
List of witnesses be filed within a week from today.

Put up for CE on 27.03.2015.

29. In M/s Skipper Beverages Pvt. Ltd., Vs. State, 2001 IV AD Delhi 625, Hon'ble High Court of
Delhi was pleased to hold:

7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a
case and initiate investigations but this power has to be exercised judiciously on proper grounds and
not in a mechanical manner. In those CR No: 440299/16 Page23 of 30 D.O.J.18.12.2018 CR No:
440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors cases where the allegations are not very
serious and the complainant himself is in possession of evidence to prove his allegations there

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be
exercised after proper application of mind and only in those cases where the Magistrate is of the
view that the nature of the allegations is such that the complainant himself may not be in a position
to collect and produce evidence before the Court and interests of justice demand that the police
should step in to held the complainant. The police assistance can be taken by a Magistrate even
Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under
Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme Page 129 titled "Suresh Chand
Jain Vs. State of Madhya Pradesh & Ors."

8. In case Arvindbhai Rajivbhai Patel Vs. Dhirubhai Sambhubhai reported in 1998(1) Crimes 351, an
Hon'ble Judge of Gujarat High Court took strong exception to the growing tendency of asking the
police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass
orders mechanically. It was held that Magistrates should act under Section CR No: 440299/16
Page24 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors
156(3) of the Code only in those cases where the assistance of the police is essentially required and
the Magistrate is of the considered view that the complainant on his own may not be in a position to
collect and produce evidence in support of the accusations.

9. In the case in hand the allegations in regard to the theft of the cheque could be proved by oral or
other evidence. The allegations regarding the forging of the cheque by typing out certain portions
therein could also be proved by summoning the original cheque from the bankers and leading
required evidence. Therefore, it was not at all a case where the police assistance was required for
breaking the case and discovering some evidence which the complainant was unable to collect of his
own. This Court, therefore, is of the considered view that learned Trial Judge was justified in
declining the request of the complainant to issue directions to Police under Section 156(3) of the
code as prayed.

30. It is also to be noted that complainant has filed the complaint before Ld. Trial Court thereby
mentioning the provision as Section 156(3) and/or Section 190(1)(a) Cr.P.C. and in the prayer clause
of the said complaint, the CR No: 440299/16 Page25 of 30 D.O.J.18.12.2018 CR No: 440299/16
Chanchal Joshi Vs. Rattan Lal Kaushik and Ors complainant has prayed as under:-

It is therefore humbly prayed before your Honour to proceed under section 156(3) of the Code of
Criminal Procedure and direct the SHO P/S Village Palam, New Delhi to register a FIR against the
accused and investigate the same under law; OR to take cognizance under Section 190(a) of the
Code of Criminal Procedure against the accused for the commission of an offence u/ss
389,406,415,420,423,468,471,511 and 120B of IPC and maccoca and punish them under Law.

31. In the impugned order dated 28.01.2015, Ld. MM has been pleased to observe that the
complainant is in possession of evidence and as such she can lead her pre summoning evidence and
investigation by the police is not required under Section 156(3) Cr.P.C. and Ld. MM was pleased to
order for giving opportunity to the revisionist for leading pre summoning evidence, in terms of
prayer made by the complainant in the complaint under Section 156(3) and /or 190 (a) Cr.P.C.

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32. The scope of exercise of revisional jurisdiction has been considered by Hon'ble Supreme Court in
Chandra Babu alias Moses v. State and others (2015) 8 SCC CR No: 440299/16 Page26 of 30
D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors 774 and
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123.

33. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774, the Hon'ble Supreme Court
of India has been pleased to observe that:

11. First, we shall dwell upon the issue whether the High Court, in exercise of the
revisional jurisdiction, should have adverted to the merits of the case in extenso. As
the factual matrix would reveal, the learned Single Judge has dwelled upon in great
detail on the statements of the witnesses to arrive at the conclusion that there are
remarkable discrepancies with regard to the facts and there is nothing wrong with the
investigation. In fact, he has noted certain facts and deduced certain conclusions,
which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled
in law that inherent as well as revisional jurisdiction should be exercised cautiously.

Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual
appreciation is involved, then it must find place in the class of cases resulting in a perverse finding.
Basically, the power is required to be exercised so that justice is done and there is no abuse of CR
No: 440299/16 Page27 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal
Kaushik and Ors power by the Court. [see Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460].

34. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the
Hon'ble Supreme Court of India has been pleased to observe that:

14. In the case before us, the learned Magistrate went through the entire records of
the case, not limiting to the report filed by the police and has passed a reasoned order
holding that it is not a fit case to take cognizance for the purpose of issuing process to
the appellant. Unless the order passed by the Magistrate is perverse or the view taken
by the court is wholly unreasonable or there is non- consideration of any relevant
material or there is palpable misreading of records, the revisional court is not
justified in setting aside the order, merely because another view is possible. The
revisional court is not meant to act as an appellate court. The whole purpose of the
revisional jurisdiction is to preserve the power in the court to do justice in accordance
with the principles of criminal jurisprudence.

Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an
appeal. Unless the finding of the court, whose decision is sought to be revised, CR No: 440299/16
Page28 of 30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors is
shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where
the decision is based on no material or where the material facts are wholly ignored or where the
judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision
in exercise of their revisional jurisdiction.

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 Chanchal Joshi vs . Rattan Lal Kaushik And Ors on 18 December, 2018

35. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774 and Sanjaysinh Ramrao
Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the Hon'ble Supreme Court has
been pleased to hold that revisional jurisdiction should be exercised cautiously and normally, a
revisional jurisdiction should be exercised on a question of law and the finding of the court is not to
be interfered unless the same is shown to be perverse or untenable in law or is grossly erroneous or
glaringly unreasonable or where the decision is based on no material or where the material facts are
wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously.

36. In view of the above, the judgments as relied by Ld. Counsel for the revisionist are of no help to
him.

37. Looking at the nature of allegations as made in the complaint filed before Ld. MM, I am of the
view that judicial discretion has been exercised by Ld. MM properly CR No: 440299/16 Page29 of
30 D.O.J.18.12.2018 CR No: 440299/16 Chanchal Joshi Vs. Rattan Lal Kaushik and Ors and in
accordance with provisions of law. I find no infirmity in the impugned order dated 28.01.2015. The
revision petition is devoid of merits and same is dismissed.

38. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned
to record room. Digitally signed by HARISH HARISH DUDANI DUDANI Date: 2018.12.18 15:46:58
+0530 Announced in the open (HARISH DUDANI) Court on 18.12.2018 Special Judge, (PC Act)
CBI-I Dwarka Courts, New Delhi.

CR No: 440299/16 Page30 of 30 D.O.J.18.12.2018

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