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Kusum Lata Vs. State of NCT of Delhi and Ors. - (High Court of Delhi) (19 Apr 2021)

Where the police fails in its duty to register and investigate a cognizable offence, the aggrieved person may file a complaint before concerned Magistrate

MANU/DE/0745/2021

Criminal

The present petition has been preferred under Article 227 of the Constitution of India, 1950 read with Section 482 of Code of Criminal Procedure, 1973 (CrPC) seeking setting aside of the order passed by learned Special Judge, NDPS Act, dismissing the revision petition of the Petitioner and upholding the order passed by learned Metropolitan Magistrate (MM) rejecting the application of the Petitioner filed under Section 156(3) of CrPC. Petitioner further seeks directions to be issued to Respondent no. 1 for registration of FIR against Respondent nos. 2 to 12.

Learned Metropolitan Magistrate has dismissed the application of the Petitioner under Section 156(3) of CrPC by observing that, all the facts leading to the complaint are within the knowledge of the complainant. Even identity of the accused is known to the complainant, evidence is within reach and no custodial interrogation is required.

It is clear from the scheme of Section 156 of CrPC, where the police fail in its duty to register and investigate a cognizable offence, the aggrieved person may file a complaint before the concerned Magistrate. Where the Magistrate receives a complaint the word 'may' give discretion to the Magistrate in the matter. Two courses are open to the Court; either takes cognizance under Section 190 or may forward the complaint to the police under Section 156(3) of CrPC for investigation.

Likewise, in the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under Sections 200, 202 of CrPC and if there is no substance in the prima-facie evidence adduced by the complainant, the complaint may be dismissed under Section 203 of CrPC.

The material facts of the present case are well within the knowledge of the Petitioner including the identity of the accused persons. Hence, she can establish her case while leading evidence before the trial court under Section 200 of CrPC. Therefore, there is no illegality or perversity in the orders passed by the Trial Court and Appellate Court. Petition dismissed.

Tags : FIR   COGNIZANCE   LEGALITY  

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