A Magistrate has discretion to direct a police investigation or proceed with pre-summoning evidence based on the sufficiency of available evidence in a complaint under Section 156(3) Cr.P.C.

JUDGMENT

Manoj Kumar Ohri, J. (Oral)--The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner/complainant assailing the order dated 18.01.2020 passed by the learned Metropolitan Magistrate, Shahdara, Karkardooma Courts, Delhi in CC No. 1866/16, whereby the petitioner's application filed under Section 156 (3) Cr.P.C. was dismissed, as well as the order dated 11.10.2021 passed by the learned Addl. Sessions Judge-04, Shahdara, Karkardooma Courts, Delhi in CR No. 34/2020, whereby the revision petition filed by the petitioner was dismissed and order dated 18.01.2020 upheld. The petitioner also seeks a direction to the learned Magistrate to send the complaint case to the concerned SHO/IO for registration of appropriate FIR, besides a stay of the proceedings pending before the learned Magistrate in the aforesaid complaint case.

2. Vide order dated 18.01.2020, the learned Metropolitan Magistrate, while dismissing the application of the petitioner filed under Section 156 (3) Cr.P.C., had taken cognizance of the offence under Section 190 (1)(a) Cr.P.C. and listed the matter for pre-summoning evidence.

3. Brief facts, as borne out from the material placed on record, are that the marriage between the petitioner and respondent No. 2 was solemnized on 01.05.1995. On account of matrimonial discord, respondent No. 2 left the matrimonial home on 22.02.2008 and started residing at her parental house. A dispute arose between the parties pertaining to property bearing No. Flat No.C-5, Gaurav Apartments, Plot No. 1, I.P. Extension, Patparganj, New Delhi (hereinafter referred to as `the said property'), which is stated to be owned by the present petitioner, along with his two brothers, namely Raj Bahadur Dohare and Ram Naresh Dohare.

One room of the said property was let out by the petitioner to one Ms. Parvati Nagle at monthly rent of Rs.4,500/- for the period commencing from 04.02.2015 to 04.12.2015. On 04.04.2015, a complaint came to be filed by the petitioner at Police Station Madhu Vihar, Delhi, which was registered vide DD No. 4B dated 04.04.2015. In the complaint, it was alleged that the petitioner's wife was trying to get the said property vacated by criminal means, in furtherance of which, two persons had come to the said property on 03.04.2015 in the petitioner's absence and broken the main lock as well as the locks of the rooms, with an intention to take forcible possession of the said property. It was further alleged that the said persons had also broken the lock of the tenant's room and committed theft of certain valuable items of the petitioner and his tenant. When the police did not take any action on his complaint, the petitioner filed a Criminal Complaint under Section 156 (3) Cr.P.C. read with Section 200 Cr.P.C. seeking direction for registration of the FIR under Sections 380 /406/452/506 IPC, on the allegation that respondent No. 2 and other accused persons had taken forcible possession of the said property in his absence.

On notice being issued, an Action Taken Report (ATR) was requisitioned. In the ATR, it was stated that during enquiry, respondent No. 2 claimed to be in continuous possession of the said property, alongwith the petitioner. She also claimed to have keys of the said property. After considering the material placed on record as well as the ATR submitted on behalf of the State, the learned Metropolitan Magistrate came to the conclusion that custodial interrogation of respondent No. 2 was not required, as the entire evidence was within the control of the petitioner. Since no investigation on the part of the police was required, the petitioner's application under Sec