Allahabad High Court
Smt. Seema Wife Of Sri Manoj, D/O Motiram ... vs State Of U.P. And Ors. on 10 October, 2007
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. Smt. Seema Verma a tortured wife has approached this Court in its inherent jurisdiction under Section 482 Cr.P.C. praying to quash the order dated 13.9.2007 passed by Additional Chief Judicial Magistrate, Baghpat in Application No. 440 of 2007, Smt. Seema v. Manoj and Ors. under Section 156(3) Cr.P.C, police station Chhaprauli, district Baghpat. By the impugned order learned Magistrate has refused to direct the police to register the FIR and investigate the offence of cognizable nature disclose in the application under Section 156(3) Cr.P.C. filed by the present applicant.
2.1 Before coming to the contentions raised by learned Counsel for the applicant a resume of facts is sketched below.
Smt. Seema Verma is the daughter of Motiram Verma, resident of Village Shabaga, police station Chhaprauli, district Baghpat. She was married with Manoj son of Brajbhan, resident of Binauli, police station Binauli, district Baghpat on 6.5.2006 according to the Hindu customs and rites in her village Shabaga. The in-laws and other relatives of the husband were not satisfied with the dowry given in the marriage and resultantly they started torturing the wife Seema Verma, the present applicant. The demand of motorcycle plus Rs. 50000/- (Rs. fifty thousand) was putforth by the aforesaid persons. On 3rd November 2006 Mukesh and his wife Smt. Babli, who are jeth and jethani of Seema Verma badly assaulted her. On 8th December 2006 her mother-in-law Smt. Roshni wife of Brajbhan and her husband Manoj also bet her and locked her inside a room and kept her starving. On 8th January 2007 her jeth Mukesh and Rakesh and father-in-law Brajbhan repeated the assault on her and on 16.1.2007 her mother-in-law Roshni, jethani Babli and her husband Manoj even endeavoured to burnt her alive. Seema Verma saving herself from the clutches of in-laws and her husband went to the police station Binauli to lodge the complaint. She also informed her mother Smt. Kunti wife of Motiram and her brother Krishna. The aforesaid two persons in the company of other relatives Narendra, Yogendra and Rakesh endeavoured to pacify the in-laws and the husband of Seema Verma but they refuse to take back the applicant without a motorcycle and Rs. 50000/-. They also did not allow the applicant to remain in their house and she was turned out along with her mother and brother. Since 16.1.2007 Seema Verma is residing with her parental relatives. It is alleged that repeated applications by the applicant to police station Binauli, district Baghpat fell on deaf ears and her report for cognizable offence was not registered. When the in-laws and other relatives of the husband came to know of the applications filed by Seema Verma then on 16.8.2007 at 10.00 a.m. her husband Manoj, jeth Mukesh and Rakesh and father-in-law Brajbhan came to the parental house of the applicant and threatened her to be annihilate if their demand is not fulfilled. Her brother was also threatened for life. Police of police station Chhaprauli, district Baghpat refused to pen down of her FIR and therefore, the applicant dispatched an application on 18.8.2007 to S.P. Baghpat but of no use. Ultimately on 21.8.2007 she invoked the jurisdiction of the Magistrate under Section 156(3) Cr.P.C. praying therein that the police be directed to register her FIR and investigate the offence.
2.2 From the perusal of record of this criminal miscellaneous application it transpires that the Magistrate directed her application to be registered as a complaint case and fixed 27.9.2007 for recording of her statement under Section 200 Cr.P.C. vide impugned order dated 13.9.2007 which application was registered as Criminal Miscellaneous Application No. 404 of 2007, Seema Verma v. Manoj and Ors.. The order dated 13.9.2007 is impugned in the instant application.
3. Learned Counsel for the applicant contended that the application of the applicant was filed at a pre-cognizance stage seeking a direction form the Magistrate to direct the police to follow the mandate of law and register the FIR of cognizable offence committed by the accused and investigate the offence. This was of pre-cognizance stage and the Magistrate has refused the prayer to direct the police to register the FIR by referring to the decisions of this Court reported in Ram Babu Gupta v. State of U.P. 2000(2) J.I.C. page 23 and also judgement in Josef Mathuri v. Swami Sachidanand Hari Saakchi 2001 (Suppl.) ACC 957. Learned Counsel for the applicant contended that the full Bench judgement of the this Court in Ram Babu Gupta is misinterpreted and misutilized.
4. Learned AGA on the other hand contended that the impugned order does not suffer from any infirmity.
5. I have pondered over the contentions raised by both the counsels.
6. It is the intention of legislature that FIR of all cognizable offence must be registered and offences must be investigated. It is the duty of police to register the FIR of all cognizable offence under Section 154(1) Cr.P.C. and investigate the same under Section 156(1) Cr.P.C. subject to exception under Section 157(1) thereof. The apex court in the case of State of Haryana v. Bhajan Lal 1992 SC (criminal) page 426 and Union of India v. W.N. Chadha 1993 SCC (Cr.) 1171 and many other judgements have categorically held that if the police does not register the FIR of cognizable offence, it flouts the mandate of law. Magistrate was approached by the applicant only for this purpose and no other. The grievance of the applicant was that the police has not followed the mandate of law as has been laid down by the Apex Court and is flouting the same. ACJM Baghpat was under the boundant duty to preserve the sanctity of law laid down by the Apex Court and not to allow the police to flout it. The applicant wanted the Magistrate to direct the police to follow the mandate of law. Magistrate was not approached to start the litigation of his own. ACJM Baghpat should have considered the application from the point of view of the prayer made therein. He was not accepted to travel beyond the scope of the prayer made therein. The applicant never wanted to start litigation. She wanted her FIR to be registered of cognizable offence under Section 498A and 3/4 D.P. Act and she wanted all the ingredients of the offence to be surfaced. The Magistrate, who lack the jurisdiction to investigate into the offence cannot decide whether the cognizable offence requires investigation or not? It is for the police to decide whether the cognizable offence is to be investigated or not under Section 157(1) Cr.P.C. When the law declared by the Apex Court is that all cognizable offence must be registered it was the duty of the Magistrate to direct the police to register the FIR of cognizable offence. The law laid down by the Apex Court is above all law laid down by various High Courts of this country. No High Court can laid down the law against the view expressed by the Supreme Court.
7. Coming to the ruling of Ram Babu Gupta's case (supra). It has become tool in the hands of the Magistrate to get the law laid down by the Apex Court flouted at the hand of the police. In the case of Ram Babu Gupta (supra) full Bench of this Court has no where said that the Magistrate can suo moto convert an application under Section 156(3) Cr.P.C into a complaint. The ruling and the law laid down by this Court as well as by Apex Court has to be read in what it actually says and not what it could have said. The cordinal principle of interpretation of statute and the law is that nothing has to be read in a judgement what it has not said. By allowing the police to flout the law laid down by the Apex Court is to bring ignominy to the rule of law. No High Court can laid down a law against the view expressed by the Apex Court and if such a view has been laid down then that view and the opinion of the High Court is per incurrium and I say no more.
8. In Ram Babu Gupta (supra) full Bench of the Court has only said that if an application under Section 156(3) Cr.P.C. is filed and it is prayed to be treated as a complaint by the aggrieved person then merely because the application has been filed under Section 156(3) Cr.P.C. the Magistrate cannot refuse to treat the application under Section 156(3) Cr.P.C as a complaint. What has been laid down in Ram Babu Gupta is that if the victim filed an application under Section 156(3) Cr.P.C. and prayed the Magistrate to treat the application as a complaint then the Magistrate cannot refuse such a prayer merely because the application under Section 156(3) Cr.P.C. was filed by the victim at a pre cognizance stage. To allow the Magistrate to take cognizance lies within the realm of the victim. Magistrate cannot on his own whimsical and arbitrarily exercise against the prayer made by the victim, suo moto start the litigation. The following observation in Ram Babu Gupta (supra) completely interdicts the view as has been often expressed by the Magistrate that the aforesaid ruling Ram Babu Gupta (supra) allows them to suo moto convert the application under Section 156(3) Cr.P.C. into one as compliant under Section 190(1) (a) Cr.P.C.:
In this connection it may be immediately added that where in an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused.
In the same judgement Hon'ble R.K. Dash, J. has been please to held as under:
However, it is always to be kept in mind that it is the primary duty of the police to investigate in cases involving cognizable offences and aggrieved person cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost to bring home the charge to the accused. It is the duty of the State to provide safeguards to the life and property of a citizen. If any intrusion is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved.
Hon'ble J.C. Gupta, J. while answering the question has been pleased to observe as follows:
It is obvious that power to order investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The power under Section 156(3) is exercisable at a pre-cognizance stage while the other at post-cognizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert back to pre-cognizance stage and invoke Section 156(3) Cr. P.C. The above quoted passage leaves no room for doubt that the full Bench decision of this Court has no where said that Magistrate can start their litigation by suo moto converting an application under Section 156(3) Cr.P.C. into a complaint against the wishes of the victim, who by suo moto conversion of his application becomes the complainant. The aforesaid ruling of Ram Babu Gupta is being utilized by the lower court Magistrate for passing illegal orders if not for ulterior motives. The judgement of Ram Babu Gupta (supra) is being misinterpreted and misquoted only to thwart the legitimate registration of FIR of cognizable offence as is disclose in the application under Section 156(3) Cr.P.C. The Magistrate should have looked into the law laid down by the apex Court in various pronouncements on the subject and then pass an order in accordance with law.
From the perusal of the impugned order it seems that the Magistrate has refused to direct the police to register the FIR on the ground that the victim is a knowledge of all the facts and the matter does not require any investigation. This view of the Magistrate is wholly un-sanctified and is against the very spirit of Section 154(1) in conjunction with 156(3) Cr.P.C. and the law laid down by the Apex Court. Criminal Procedure Code no where provides that if the facts of a cognizable offence is known to the victim then his FIR should not be registered. From where the Magistrate is getting this law is not understandable. On the contrary Criminal Procedure Code as well as various rulings referred to above by the Apex Court clearly speaks that FIR of all cognizable offence must be registered. This naturally follows from the aforesaid judgement of the apex court that if the police fails to follow the mandate of law and the Magistrate is approached to directed the police to obey the law laid down by the Supreme Court the Magistrate is under boundant duty to see that the law laid down by the Apex Court is observed.
9. In view of the what I have stated above I find force in the contentions raised by the learned Counsel for the applicant and the impugned order is wholly unsustainable in law.
10. This Criminal Miscellaneous Application is allowed. The impugned order dated 13.9.2007 passed by Additional Chief Judicial Magistrate, Baghpat in Application No. 440 of 2007, Smt. Seema v. Manoj and Ors. under Section 156(3) Cr.P.C, police station Chhaprauli, district Baghpat is hereby quashed. The matter is remanded back to ACJM, Baghpat to rehear and decide the application of the applicant strictly in accordance with law keeping the law laid down the by Apex Court and pass order thereon.