The Magistrate has discretion to treat a complaint as a private complaint under Section 200 Cr.P.C. instead of mandatorily forwarding it for FIR registration under Section 156(3) Cr.P.C.

JUDGMENT

Mr. Jasjit Singh Bedi, J.

The prayer in the present petition under Section 482 Cr.P.C. is for setting aside the order dated 29.04.2023 (Annexure P-3) passed by the JMIC, 1st Class, Gurugram vide which the prayer of the petitioner to treat his complaint under Section 156(3) Cr.P.C. and direct the concerned SHO to register an FIR against respondent No.4 was declined and the complaint was ordered to be proceeded with under Section 200 Cr.P.C. as well as the order dated 04.11.2023 (Annexure P-6) passed by the Addl. Sessions Judge, Gurugram vide which the order dated 29.04.2023 (Annexure P-3) has been upheld.

2. The brief facts of the case are that the petitioner/complainant filed a complaint alleging that the accused/respondent No.4 was his close relative. In January, 2022, he (petitioner/complainant) had purchased a CELERIO Car bearing Registration No.HR-51-H-0011. The accused/respondent No.4 expressed his desire to use the said car as his parents had got operated and were required to be taken to various hospitals. Keeping in view the request, he (petitioner) handed over the car to the accused/respondent No.4 for a few months on 07.02.2022. Later, when he (petitioner/complainant) came to know about the recovery of the parents of the accused/respondent No.4 and requested him to return the car, he (accused/respondent No.4) refused to do so. A legal notice dated 02.07.2022 was sent to the accused/respondent No.4 but no reply thereto was received. A complaint was made to the SHO, P.S. Sector 50, Gurugram to register an FIR, However, no case was registered.

3. As the Investigating Agency did not register a case on the basis of the complaint of the petitioner/complainant, a complaint under Section 156(3) Cr.P.C. was instituted by the petitioner/complainant with a prayer for the registration of an FIR.

4. On consideration of the entire matter, the JMFC, Gurugram vide order dated 29.04.2023 declined to send the complaint for the registration of an FIR under Section 156(3) Cr.P.C. but decided to treat the said complaint as a private complaint under Section 200 Cr.P.C. and directed the complainant to produce his preliminary evidence on 20.07.2023. A copy of the order dated 29.04.2023 is attached as Annexure P-3 to the present petition.

5. Aggrieved with the aforementioned order, the petitioner/complainant preferred a revision petition before the Court of Sessions. Vide judgment dated 04.11.2023, the Court of Addl. Sessions Judge, Gurugram dismissed the revision petition and directed the petitioner/complainant to appear before the Trial Court on 16.11.2023 for further proceedings.

6. The aforementioned orders dated 29.04.2023 and 04.11.2023 (Annexures P-3 and P-6) are under challenge in the present petition.

7. The learned counsel for the petitioner contends that the Magistrate was bound to send the complaint under the provisions of Section 156(3) Cr.P.C. for the purposes of registration of an FIR once he came to the to the conclusion that a cognizable offence was made out. It was apparent, that prima facie, accused/respondent No.4 had committed the offences under Sections 406, 420 and 427 IPC etc. as he had taken the car on the pretext of usage and had thereafter retained the same. The accused/respondent No.4 had an intention to cheat from the very inception. Further, the order dated 29.04.2023 (Annexure P-3) would reveal that the Court had already given its mind that the accused/respondent No.4 had no intention to deceive at the inception thereby, effectively closing the doors on the petitioner/complainant inasmuch as there was hardly any possibility of the Court summoning the accused to face Trial having observed thus. He, therefore, contends that the impugned orders were liable to be set aside and directions be issued to send the complaint of the petitioner for registration of an FIR.

8. I have heard the learned counsel for the petitioner.

9. Before proceeding further with the matter, it would be useful to refer to the relevant