Bharam Prakash Yadav vs State NCT of Delhi & Ors.

MADHU JAIN, J.

The present petition has been filed by the Petitioner under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘CrPC'), assailing the order dated 05.12.2024 passed by the Ld. ASJ-IV, North District, Rohini Courts, Delhi, in Crl. Revision No. 354/2023, whereby the order dated 19.08.2023 passed by the Ld. MM, Rohini Courts, Delhi, in Ct. Case No. 495/2023 was upheld.

The Petitioner is a senior citizen aged about 73 years. He alleges that he and his family were subjected to prolonged pressure and intimidation by Respondent No. 2, his daughter-in-law, and her family members, some of whom were serving or retired personnel of the Delhi Police. The matrimonial dispute between Respondent No. 2 and the Petitioner's deceased son had continued for several years and was allegedly accompanied by repeated demands for partition and transfer of property in favour of Respondent No. 2.

The Petitioner alleges that Respondents No. 5, 6 and 7, who held influential positions in the Delhi Police, repeatedly interfered in the family dispute and threatened him and his family with false and serious criminal cases if their demands were not fulfilled.

On 13.11.2022, while the Petitioner and his wife were in Gurugram, Respondent No. 6 allegedly called the Petitioner's wife and directed them to return home immediately, threatening that otherwise false criminal cases would be initiated against them. They consequently returned home at about 8:00–8:30 PM, where Respondent No. 2 and several of her family members were allegedly present.

The Petitioner alleges that the Respondents thereafter demanded transfer of his residential property measuring approximately 350 sq. yds., forming part of Khasra No. 29/34, situated in the abadi of Old Lal Dora, Village Libaspur, Delhi-110042, in favour of Respondent No. 2. He alleges that he and his family were threatened with false allegations of rape and other serious offences if the property was not transferred. Respondents No. 5, 6 and 7 allegedly remained at his residence overnight and the original Lal Dora Certificate relating to the property was taken from him.

On 14.11.2022, the Petitioner's brother, brother-in-law and a common acquaintance were allegedly called to his residence, where Respondents No. 5, 6 and 8 again threatened him and demanded transfer of the entire property. The Petitioner further alleges that Respondent No. 7 forcibly took him to the office of the Sub-Registrar and, under threats of false criminal prosecution, compelled him to execute various documents in favour of Respondent No. 2, including a notarised GPA, Gift Deed, Possession Letter, Settlement/Partition Deed and affidavits. Three cheques of ₹50 lakhs each, totalling ₹1.50 crores, were also allegedly obtained from him under the same circumstances. The Petitioner thereafter approached the Delhi State Cooperative Bank on 03.12.2022 and requested that payment of the said cheques be stopped.

In the meantime, FIR No. 850/2022 dated 17.11.2022 was registered at P.S. Samaypur Badli under Section 376 IPC and Section 6 of the POCSO Act against the Petitioner's deceased son. The Petitioner alleges that the FIR was lodged shortly after the alleged coercive property transaction and was used to prevent him and his family from raising any complaint regarding the alleged extortion and forcible transfer of property. He has also raised a dispute regarding the age of Respondent No. 3.

According to the Petitioner, the alleged coercion, threats and subsequent criminal proceedings caused severe mental trauma to his deceased son, resulting in a serious deterioration in his mental condition and ultimately contributing to his untimely demise.

The Petitioner thereafter approached the competent authorities by making a complaint before the SHO, P.S. Samaypur Badli on 23.11.2022 and another complaint before the DCP, North District on 15.03.2023.

Alleging that no effective investigation was conducted, the Petitioner approached the learned Metropolitan Magistrate under Section 156(3) CrPC and also pursued proceedings under Section 200 CrPC. The application under Section 156(3) CrPC was dismissed vide order dated 19.08.2023. Relevant portion of the order is quoted hereinbelow:

The Petitioner thereafter preferred a criminal revision under Sections 397/399 CrPC before the learned ASJ, which was dismissed vide order dated 05.12.2024.Relevant portion of the impugned order is quoted hereinbelow:

Learned counsel for the Petitioner submits that the allegations disclose cognizable offences and that investigation by the police is necessary for collection and preservation of evidence which is beyond the effective reach of a private complainant. It is submitted that the Petitioner relies upon call records, audio recordings, property documents, bank records, the three cheques, documentary evidence concerning the property, witness statements and records relating to the FIR, which require forensic examination, seizure, verification and investigation by an independent agency, particularly since some of the persons against whom allegations have been made are connected with the police force.

It is further submitted that the allegations include offences of coercion, illegal confinement, criminal intimidation and extortion, and that the material evidence, including financial records, electronic evidence, original documents and other relevant material, may require police seizure, forensic examination and independent verification.

Learned counsel further submits that the delay of nine days in approaching the authorities occurred on account of continuous threats and intimidation and the apprehension of false criminal cases, particularly in view of the alleged influence of the private Respondents within the police department. It is submitted that the Petitioner had, at the earliest available opportunity, taken steps to safeguard his interests by instructing the bank to stop payment of the cheques on 03.12.2022.

Learned counsel further relies upon the proceedings before this Court in W.P. (CRL.) 1027/2023, including the order dated 07.10.2024 in CRL.M.A. 30173/2024, wherein it was recorded that an enquiry had been conducted and disciplinary action had been proposed against Sub-Inspector Balwan Yadav, while the allegation against Head Constable Virender Yadav was stated not to have been substantiated.

Reliance is also placed upon Amit Khera v. Govt. of NCT of Delhi & Ors., ILR (2010) VI DELHI 725 WP. It is submitted that the impugned orders have misapplied the settled legal position that where a cognizable offence is disclosed and the evidence requires forensic and technical verification, including tracing of call records, forensic examination of documents and examination of the financial trail, investigation by the police is warranted. It is submitted that the Magistrate is duty-bound to act upon a complaint disclosing a cognizable offence in accordance with law.

The issue for consideration is whether, in the facts and circumstances of the case, the learned Trial Court was justified in declining investigation under Section 156(3) Cr.P.C. and whether the learned ASJ erred in upholding the said order.

Before examining the facts of the present case, it would be apposite to reiterate that the power under Section 156(3) Cr.P.C. is discretionary in nature. The mere disclosure of a cognizable offence in a complaint does not, by itself, confer an indefeasible right upon the complainant to seek an investigation by the police. The Magistrate is required to apply his mind to the nature of the allegations, the material sought to be collected and the necessity of police assistance for collection of such material.

The distinction between a case where police investigation is necessary and one where the complainant can lead evidence himself is well recognised. Where the allegations are of such a nature that the evidence is within the possession or reach of the complainant, or can be produced by examining witnesses and summoning the relevant documents, the Magistrate may legitimately decline to invoke Section 156(3) Cr.P.C. and proceed with the complaint in accordance with the procedure prescribed under Chapter XV of the Code. On the other hand, where the nature of the allegations or the evidence sought to be collected requires active assistance of the investigating agency, the Magistrate may direct investigation.

In the present case, the allegations of the Petitioner essentially arise out of the alleged coercive execution of property documents and obtaining of three cheques of ₹50 lakhs each. The Petitioner is admittedly aware of the identity and role attributed to each of the persons against whom allegations have been made. He has also identified the witnesses whom he seeks to rely upon and has placed on record material including an audio recording of the alleged incident.

The contention of learned counsel for the Petitioner that investigation is necessary for collection and forensic examination of call records, audio recordings, bank records, property documents and cheques, in the considered view of this Court, does not by itself warrant a direction under Section 156(3) Cr.P.C. The relevant question is whether such material is beyond the reach of the complainant and cannot effectively be produced before the Court except through police investigation.

The Petitioner has not demonstrated any specific investigative requirement which necessarily requires the intervention of the police. The bank records and other documentary material, if required, can be summoned in accordance with law. The witnesses are admittedly known to the Petitioner and can be examined by him. The audio recording relied upon by the Petitioner is already stated to be in his possession. Likewise, the property documents and cheques forming the basis of the allegations are specifically identified by the Petitioner. The mere possibility that some of this material may subsequently require verification or forensic examination cannot, in the absence of a demonstrated necessity, be treated as sufficient ground for directing registration of an FIR.

This Court is also conscious of the allegation that certain accused persons are connected with the police force and that police powers were allegedly misused. The said allegation is serious. However, the seriousness of an allegation cannot, by itself, determine the necessity of investigation under Section 156(3) Cr.P.C. The material relied upon by the Petitioner regarding the enquiry conducted in the proceedings before this Court may be relevant to the Petitioner's grievance, but it does not, at this stage, establish the commission of the offences alleged in the complaint or demonstrate that the evidence necessary for adjudication of the complaint is beyond his reach.

The Petitioner has also sought to explain the delay in approaching the police by referring to the alleged threats and the apprehension of false criminal proceedings. The explanation furnished by the Petitioner may be considered by the learned Trial Court at the appropriate stage while assessing the evidence. However, for the limited purpose of determining whether police investigation was necessary under Section 156(3) Cr.P.C., the delay, coupled with the fact that the Petitioner has himself identified the accused, witnesses and documentary material, constitutes a relevant circumstance which the learned Trial Court was entitled to take into consideration. The said circumstance cannot, however, be treated as a finding on the truthfulness of the allegations.

It is significant that the learned Trial Court did not terminate the Petitioner's complaint proceedings. The application under Section 156(3) Cr.P.C. was declined and the matter was directed to proceed by way of pre-summoning evidence. Thus, the Petitioner continues to have the remedy of leading evidence in support of the allegations and of seeking appropriate assistance of the Court for securing such evidence as may be permissible in law.

The learned ASJ, while exercising revisional jurisdiction, has considered the material available on the Trial Court Record and has specifically noticed the allegations regarding forcible transfer of the property, obtaining of the three cheques, the audio recording and the alleged misuse of police powers. After considering the applicable legal principles, the learned ASJ has concurred with the finding of the learned Magistrate that the complainant is aware of the witnesses and the relevant documents and that the allegations can be proved by leading evidence before the Court.

This Court, while exercising jurisdiction under Section 482 Cr.P.C., is not sitting as a Court of appeal over the aforesaid orders. Interference would be warranted only where the orders suffer from manifest illegality, perversity, patent error of jurisdiction or such infirmity as results in failure of justice. A mere possibility of another view being taken on the question whether investigation would be desirable is not sufficient to warrant interference.

In the present case, both the learned Magistrate and the learned ASJ have applied the settled principles governing exercise of power under Section 156(3) Cr.P.C. The conclusion that the Petitioner can substantiate his allegations by leading evidence, with recourse to the process of the Court wherever required, cannot be said to be perverse or legally unsustainable.

It is also necessary to clarify that this Court has not examined the truth or otherwise of the allegations relating to coercion, intimidation, illegal confinement, extortion or the alleged misuse of police powers. No opinion is being expressed on the merits of the complaint or on the defence of the proposed accused persons. The only question examined is whether the refusal to direct investigation under Section 156(3) Cr.P.C. calls for interference by this Court. For the reasons discussed hereinabove, the answer is in the negative.

Accordingly, this Court finds no illegality, infirmity or perversity in the order dated 19.08.2023 passed by the learned Metropolitan Magistrate or the order dated 05.12.2024 passed by the learned ASJ-IV, North District, Rohini Courts, Delhi, warranting interference in exercise of jurisdiction under Section 482 Cr.P.C.

The present petition is, accordingly, dismissed. Pending application(s), if any, also stand disposed of in the above terms.

A copy of this order be sent to the learned Trial Court for necessary compliance and information.

It is clarified that nothing contained in the present judgment shall be construed as an expression of opinion on the merits of the complaint or the truthfulness of the allegations made therein.