The central legal point established in the judgment is the need for judicious exercise of power by the Magistrate under Section 156(3) CrPC, the discretion to take cognizance of the offense, and the cautious exercise of inherent powers under Section 482 CrPC.

M.L. MEHTA, J.

1. This petition is filed under Section 482 CrPC read with Article 227 of the Constitution of India challenging the order dated 8.9.2009 of learned ASJ in Crl.Rev.P. 254/2009 whereby the revision petition filed by the petitioner was dismissed and also challenging the order dated 10.7.2009 of learned Metropolitan Magistrate where the application of the petitioner filed under Section 156(3) CrPC was dismissed.

2. The petitioner herein had filed a complaint on 25.5.2008 with P.S. Kotla Mubarakpur alleging that the respondent No. 2 in connivance with respondent Nos. 3, 4 and 5 had conspired to misappropriate Flat No. 505, Ground Floor, Sunhari Bagh Apartments, Sector 13, Rohini, Delhi by applying for mutation of the said property in DDA. The petitioner had alleged that the property belonged to late Mrs. Swaran Kapoor (grandmother of the petitioner) and was bequeathed to the petitioner exclusively. The petitioner alleged that respondent No. 2 while applying for said mutation in DDA concealed the second page of the will wherein the fact of the property being bequeathed to the petitioner was mentioned. However, no FIR was registered by the police.

3. On 15.7.2008, the petitioner addressed a letter to the concerned DCP about non-registration of FIR by the police. On 24.3.2009, the petitioner filed before the Metropolitan Magistrate a complaint under Section 200 CrPC along with an application under Section 156(3) CrPC. The application of the petitioner was dismissed by the learned M.M., vide his order dated 10.7.2009 expressing the view that it was not a case where investigation was required by the police and asked the petitioner to lead pre-summoning evidence.

4. Aggrieved by the said order, the petitioner filed a criminal revision before the court of ASJ which came to be dismissed vide the impugned order dated 8.9.2009.

5. The impugned orders have been assailed by the petitioner on the ground that the application of the petitioner has been dismissed without assigning any reason as to why the case was not a fit case for investigation by the police and the evidence showing the commission of cognizable offences by respondent Nos. 2 to 5 are the part of the record maintained by DDA and Sub-Registrar, Amritsar which cannot be collected by the petitioner and can only be unearthed through the police investigation.

6. I have heard learned counsel for the petitioner and respondent and perused the record.

7. The main grievance of the petitioner is that learned M.M. ought to have issued directions under Section 156(3) CrPC for the registration of the FIR instead of taking cognizance of the complaint and adjourning the case for pre-summoning evidence.

8. In Mohd. Yusuf Vs. Afaq Jahan and Anr., AIR 2006 SC 705, the difference between investigation as envisaged under Section 156(3) CrPC and one under Section 202 CrPC are highlighted and it was also explained that the Magistrate need not order any such investigation under Section 156(3) CrPC if he proposes to take cognizance of the offence. Once he takes cognizance of the offence, he has to follow the procedure envisaged in Chapter XV CrPC.

9. In Meenakshi Anand Sootha Vs. State , 2007 (4) JCC 3230 Delhi, the learned M.M. dismissed the application under Section 156(3) CrPC for giving direction to SHO to investigate the matter and instead took cognizance of the case and proceeded with the complaint case of the complainant. On facts the following observations were made by this Court:

“10. It is well settled that under Section 156(3), CrPC, the Magistrate has not to pass the order mechanically and has to apply his judicial mind. On this point, decision of this Court, M/s. Skipper Beverages Pvt. Ltd. v. State 2001 IV AD (Delhi) 625, may be referred to in which it was held: „It is true that Section 156(3) of the Code empowers to Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on p