Allahabad High Court
Giriraj Rai vs State Of U.P. & Others on 10 December, 2013
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 AFR Reserved Court No. - 44 Case :- CRIMINAL MISC. WRIT PETITION No. - 14275 of 2012 Petitioner :- Giriraj Rai Respondent :- State Of U.P. & Others Counsel for Petitioner :- Mohan Yadav Counsel for Respondent :- Govt. Advocate Hon'ble Karuna Nand Bajpayee,J.
The present writ petition has been filed seeking the quashing of the order dated 03.09.2012 passed by the Chief Judicial Magistrate, Varanasi in Misc. Application No.2980 of 2012 u/s 156 (3) Cr.P.C., Giriraj Rai Vs. Angad Tiwari as well as the order dated 10.09.2012 passed by the I/C Session Judge, Varanasi in Criminal Revision No.330 of 2012 Giriraj Rai Vs. State whereby the revision filed by the petitioner was dismissed and the validity of the order passed by Chief Judicial Magistrate, Varanasi had been upheld.
Counter affidavits on behalf of all the respondents and the rejoinder in reply to them have been exchanged between the parties, and the same have been taken on record.
The respective counsels representing the petitioner as well as private respondents No.2, 3 and 4 have been heard at length along with the learned A.G.A. who too made his submissions to assist the Court on points of law. The record has been perused.
It appears that petitioner Giriraj Rai, who is a Sub-Inspector, moved an application u/s 156(3) Cr.P.C. before the Chief Judicial Magistrate, Varanasi in order to get a criminal case registered and investigated against the respondents no.2 to 4 and also against one unknown person with the allegation that a criminal assault was made on him by all of them. The perusal of the application moved by the petitioner reveals the use of vulgar invectives allegedly hurled by the respondents and also the 2 allegation that he was not only beaten by the respondents but attempt to strangulate him was also made and also that one of the respondents fired at him which missed the aim. According to the application the official attire of the petitioner was torn away and he was subjected to gross humiliation. It was further alleged that because respondent No.4 is Chief Development Officer, Varanasi, the petitioner could not succeed to get the FIR registered against him or the other respondents who are the members of his staff. After receiving the aforesaid application the Chief Judicial Magistrate, Varanasi vide its order dated 03.09.2012 sought a report from the concerned police station and after hearing the counsel for the petitioner, passed a speaking order whereby instead of directing the police to register the case he decided to take the cognizance himself. The application moved by the petitioner was registered as a complaint case and a date was fixed in order to record the statement u/s 200 Cr.P.C. Feeling aggrieved by the aforesaid order passed by the Chief Judicial Magistrate, Varanasi; the petitioner preferred a revision against the same but the I/C Sessions Judge, Varanasi after discussing the relevant law on the point, by a reasoned order found no error in the course adopted by the Chief Judicial Magistrate and consequently dismissed the revision. The aforesaid twin impugned orders are under challenge before this Court.
The contentions raised by the petitioner's counsel are manifold. According to him the application moved by the petitioner was with the prayer to give direction to the police to perform its statutory duty and investigate into the offence committed by the alleged accused persons. The application sought the invocation of police powers which were not being duly exercised. The application in question was not in the nature of a proper complaint as contemplated under Criminal Procedure Code and the petitioner/applicant neither desired nor intended to become the complainant of a complaint case. The submission is that the application under Section- 156(3) Cr.P.C., not being a proper complaint as defined under the statutory scheme, could not have been treated as a complaint. The Magistrate could treat the application as complaint only if it was in the proper format of a 3 complaint with the proper prayer to take cognizance seeking the invocation of powers under Chapter-XV of Criminal Procedure Code. Merely because the application contained some grievances of the applicant it would not acquire the legal status of a complaint under law. The dictionary meaning of complaint and the legal import of the same word are two different propositions. Every expression of grievance would not constitute 'complaint' as defined in Criminal Procedure Code and therefore, argues the petitioner's counsel, that the court fell in error when it took cognizance of the offence itself, instead of directing the police to perform its statutory duty as prayed in the application. The Magistrate by taking cognizance on it not only transmuted the nature of application but also transgressed its jurisdiction. Another limb of petitioner's argument is to the effect that the facts of the present case were such that they could only be investigated through a proper police investigation and the decision of the Magistrate to take cognizance himself and to proceed in the matter as a complaint case is wholly inapt and ill-suited. It has also been submitted that taking cognizance of the offence and treating the application moved under Section-156(3) Cr.P.C. as a complaint is a clear act of exercising a jurisdiction not vested in it and by indulging into such an exercise the learned Magistrate has committed gross error of law.
In order to buttress the aforesaid submission, learned counsel for the petitioner has placed reliance on certain observations made by Hon'ble R.K. Dash, J. in the Full Bench decision of Ram Babu Gupta Vs. State of U.P. and others 2001(43) ACC 50 which are to the following effect:-
"40. ..........................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 provide 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."
Per contra the respondents' counsel while rebutting the contentions raised on behalf of petitioner has submitted that the petitioner is 4 a Police Inspector while the opposite parties against whom the petitioner seeks the registration of a police case include the Chief Development Officer and some other members of his staff. The application u/s 156(3) Cr.P.C. is a covert and calculated attempt made by the applicant to somehow get a police case registered and bring the whole matter in the flank of his own, where he being a police officer would himself be in a predominant position to influence the result of the investigation. The real object of the petitioner is to harass and humiliate the respondents as he has an axe to grind against them. Wholly false and motivated allegations have been made by the applicant because of some oblique reasons emanating from the criminal proclivities of his son. According to the submission the real story is entirely different from what meets the eye. It has been contended that in fact respondent No.2 is the Driver of respondent No.4 while respondent No.3 is a Homeguard. The counsel for the respondent submits that actually respondent No.2 and 3 themselves were brutally assaulted by three unknown persons on dated 15.08.2012 resulting into grievious injuries to respondent No.2 and a FIR regarding this criminal assault was also lodged in Police Station-Cantt as Case Crime No.509 of 2012 u/s 323/504/506/307/337 I.P.C. Thereafter during the course of investigation the complicity of petitioner's son Avnish Kumar Rai came to the fore and it also surfaced that his son was involved in a number of other criminal cases. On the charge of making the aforesaid criminal assault on respondents, the son of petitioner was arrested and sent to jail and could come out of it only after a fortnight. The contention is that it is for this reason that the petitioner in order to wreak vengeance has concocted all the aforesaid allegations against the respondents which are nothing but a vicious tissue of lies. The counsel also has drawn my attention to the averments made in the counter affidavits filed on behalf of respondents No.2 and 3 in this regard. According to the contention raised on behalf of respondents the Magistrate has acted well within his jurisdiction and there is neither any error of law nor that of fact in the order passed by the lower court whereby it took cognizance itself and proceeded in the matter as a complaint case. 5 I have carefully cogitated upon the rival submissions pressed before the court and have also gone through the record including affidavits and counter affidavit filed on behalf of parties.
To me the controversy raised on behalf of the applicant appears to be a laboured controversy. The Hon'ble Supreme Court as well as this High Court through benches of different strengths have expatiated upon this matter authoritatively and the matter is res-integra no more. So far as the question whether in a given case an application u/s 156 (3) Cr.P.C. can also be termed as a 'complaint' as defined under Criminal Procedure Code is concerned, the Full Bench decision of Ram Babu Gupta itself has delved into this issue and concluded the same. It may also be recalled that at one point of time a Devision Bench of this Court in the case of Suraj Mal, ACC 1993, 81 had taken a view similar to the contention of the petitioner's counsel that where the Magistrate has been requested by the applicant only to exercise the powers u/s 156(3) Cr.P.C., such an application cannot be termed as 'complaint' in legal parlance within the meaning of Section-2 of Criminal Procedure Code. The relevant extract of Suraj Mal's case may be usefully quoted herein below:-
"a perusal of the application moved by the respondent No.2 clearly shows that his grievance before the learned Magistrate was against the police as on being approached his report was not recorded under Section 154 of the Code. After stating the injustice caused to him he prayed before the learned Magistrate that police be directed to register his case and investigate the same. The contention of the learned Counsel for the petitioners that the application moved by respondents No.2 was a complaint thus is not correct. As it was not a complaint, there was no occasion for the learned Magistrate to adopt the procedure provided under Chapter XV of the Code."
Subsequently it so happened that the aforesaid Suraj Mal's case came up before the Full Bench in Ram Babu Gupta's case and Their Lordships presiding in the Full Bench after delving into this matter formulated the following legal issue :-
" Is the observation of the Division Bench in Suraj Mal (supra) correct when it says that when an applicant before a Magistrate prays only for registration and investigation of a case, such an 6 application will not become "complaint" as defined in Section 2 of the Cr.P.C.?"
After going through various case laws cited before it and expatiating on this issue at length what was observed by the Full Bench is as follows :-
"18. Coming to the second question noted above it is to be at once stated that a provision empowering a Court to act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155 sub-sections (1) and (2) of 156 Cr.P.C. confer right on an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) 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 complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint........................"
"19. In view of the aforesaid discussion, the observations in the two paragraphs noted above in Suraj Mal (supra), cannot be said to be laying down correct law, therefore, those observations shall remain confined to the decision in Suraj Mal. The second point formulated above stands answered thus."
(emphasis supplied) In the light of answer given by the Full Bench on the aforesaid legal question there is scarcely any scope left for this bench to reopen the issue and the contention of the applicant on this score stands completely negatived.
So far as the legality or the legal permissibility of taking cognizance on an application u/s 156(3) Cr.P.C. as a complaint case is concerned, once again the same Full Bench also deals with this issue 7 comprehensively and there does not seem to remain any scope to doubt the legal sanctity of such an order. I may again refer back to some of the observations made in Ram Babu Gupta's case which shall be pointedly germane to comprehend the issue involved and agitated before the court. The relevant extract is quoted herein below:-
"...................So when a report, either oral or written made to the officer in charge of a police station discloses commission of a cognizable offence, it is obligatory on him to register a case and proceed with the investigation. In the event, he refuses to receive the report and shows indifference to perform statutory duties, the only alternative course available to the aggrieved person is to approach the Court of law. He makes a complaint giving detail narration of the incident terming it either a petition under Section 156(3) of the Code or a regular complaint. On receiving of such complaint, different courses are open to the Magistrate, he may with the aid of power conferred by Section 156(3) direct the police to register a case and investigate in the manner as provided in Chapter XII or he may treat the same as a complaint and proceed in the manner contemplated in Chapter XV of the Code. While resorting to the first mode inasmuch as directing the police for investigation he should not pass order in a routine manner. he should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law. On the other hand, if he adopts the second mode in terms of Chapter XV, his decision cannot be faulted with for not acceding to the request of the complainant for an investigation by the Police.. ...................."
(emphasis supplied) Above mentioned observation is conclusive on the point involved and there is therefore again no question to doubt or to be skeptic about the legality or the legal permissibility of the course adopted by the learned Magistrate in the present case. The contention raised by the petitioner's counsel in this regard is in complete ignorance of the aforesaid view taken by the Full Bench in Ram Babu Gupta's case. In fact, if one scans through the history of judicial decisions given by our High Court in this regard one witnesses an important and notable phase that came subsequent to the Full Bench pronouncement when a Single Judge Bench of this Court expressed some such views which, when placed before another Single Judge Bench 8 appeared to it not in consonance with other binding authorities on this point. The aforesaid controversy arose in the case of Sukhwasi Vs. State of U.P. in which a Single Judge Bench once again referred some legal issues to the larger bench. The reference encompassed many aspects including the legal permissibility of taking cognizance on an application u/s 156(3) Cr.P.C. and treating it as a complaint case. It may be apt, therefore, to extract the question of reference formulated in Sukhwasi's case :-
"Whether the Magistrate is bound to pass an order on each and every application under section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases'? The Division Bench which was constituted to answer the aforesaid points of reference in Sukhwasi's case, discussed the issues comprehensively and took into account catena of judicial precedents on the points involved including the aforesaid Ram Babu Gupta's full bench decision and also the pronouncements given by the Apex Court in the case of Suresh Chandra Jain Vs. State of Madhya Pradesh 2001 (42) ACC 459 and Gopal Das Sindhi and others Vs. State of Assam- AIR 1961 SC 986. Thereafter, the Division Bench in Sukhwashi's case held as under :-
"23. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint."
The specific answer given on this issue by the Division Bench in Sukhwasi's case should in my view put a period to this controversy and there does not seem to be any valid reason or vindication to resurrect the same again only for the sake of argument. The learned A.G.A. has also cited many cases to elucidate the same aspects of law. Some of them are Chandrika Singh Vs. State of U.P. and others 2007 (58) ACC 777; 9 Swayam Prabha Vs. State of U.P. 2012 (1) ALJ 264; decision in Criminal Misc. Application No.7484 of 2004 Mohan Shukla and others Vs. State of U.P. and the decision in Misc. Application No.671 of 2007 Ram Shabad Vs. Sessions Judge, Behraich and others. I eschew any elaborate discussion on the aforesaid case laws as most of these single bench decisions have already been considered in Sukhwasi's case. I do not propose to enter any further into this issue as the same seems to be quite unnecessary in the backdrop of the Full Bench and also the Division Bench decisions of this Court. The third limb of the petitioner's argument is regarding the advisability or suitability of adopting the course of treating the application u/s 156(3) Cr.P.C. as a complaint. In order to persuade this Court about nonadvisability of the course adopted by the lower court whereby it chose to take cognizance itself and proceeded in the matter as a complaint case, learned counsel for the petitioner has pressed into service some observations made by Hon'ble R.K. Dash, J. in Ram Babu Gupta's case which have already been referred in earlier part of this order and is therefore not being repeated again.
To me this question is more a question of fact than a question of law. If a court has two courses of action open before it, both having the sanction of law, then how, when and under what circumstances shall it adopt which course must always depend upon the peculiar circumstances of that case. Magistrate or the court concerned has to apply its judicial mind and advert to the given set of circumstances revealed in the application or complaint and has to decide the feasibility and appropriateness of the course which ought to be adopted in that given case. No straight jacket formula valid for all times in all circumstances can be prescribed by the higher courts of law. It is a matter of judicial discretion which has to be exercised with utmost judicial care and perspicacity. The observations made in Ram Babu Gupta's case which have been relied upon by the petitioner's counsel, are in the nature of guiding principles to be kept in mind by the concerned courts while exercising their judicial discretion, and shall definitely help the 10 courts to arrive at correct decisions. But because it is the primary duty of the police to investigate into cognizable offences and because the powers vested in the Magistrates u/s 156(3) Cr.P.C. to direct the investigation in a given case are in the nature of a mandatory reminder to the police about their plenary powers to register and investigate into cognizable offences, it should not be construed to mean that whenever an application u/s 156(3) Cr.P.C. is moved by the complainant the Magistrates shall be under compulsion to order the registration of FIR or to order the police to investigate into the case. The right of an applicant to move an application u/s 156(3) Cr.P.C. does not denude the court from its power to exercise its discretion according to its judicial wisdom. If the observations made in Ram Babu Gupta's case are to be given such an extreme interpretation as suggested by the petitioners' counsel, it shall be tantamount to divesting the Judicial Magistrates of their power to exercise a judicial discretion conferred and vested in them by the statute.
It is perhaps because of the same reason that Hon'ble R.K. Dash, J. himself had held in Ram Babu Gupta's case that:
"if the Magistrate adopts the second mode in terms of Chapter-XV his decision cannot be faulted with for not acceding to the request of the complainant for an investigation by the police"
(emphasis supplied).
The concerned Magistrate has to take an over all view of the matter and while weighing the appropriateness of the postulated option it has to decide which course shall be more conducive to justice in the particular circumstances of that case. In this context the Hon'ble Apex Court's decision of Mona Panwar vs. High Court of Judicature at Allahabad through its Registrar and others (2011) 3 SCC 496 may be very usefully referred to.
In Mona Pawar's case an application u/s 156(3) Cr.P.C. was moved by a lady containing the allegations against her father-in-law that he entered her room, scratched her breasts, forcibly breeched cloth in her 11 mouth and committed rape on her. The concerned Magistrate instead of ordering the police to register and investigate into the offence, himself took cognizance and proceeded in the matter as a complaint case. The lady feeling aggrieved by the Magistrate's decision approached the High Court. After hearing the matter the High Court did not approve the course adopted by the concerned Magistrate, as in the view of the High Court such a matter ought to have been more appropriately investigated by the police. The concerned Magistrate was even censured by the High Court for her refusal to order investigation into the case. Feeling aggrieved by the stringent remarks the Magistrate approached the Hon'ble Apex Court. The Hon'ble Supreme Court while dealing with the grievance of the Magistrate also made certain observations which shall be relevant for the purpose of deciding the issue at hand. The Hon'ble Apex Court has observed as under :-
"........................................................................................................
6. The Appellant referred to the principles of law laid down by the Allahabad High Court in Gulab Chand v. State of U.P. MANU/UP/ 1350/2002 : 2002 Cr.L.J. 2907, Ram Babu Gupta v. State of U.P. 2001 (43) ACC 50, Chandrika Singh v. State of U.P. 2007 (50) ACC 777 and Sukhwasi S/o Hulasi v. State of U.P. 2007 (59) ACC 739 and after taking into consideration the principles laid down in the above referred to decisions the Appellant was of the view that this was not a fit case to be referred to the police for investigation under Section 156(3) of the Code and, therefore, directed that the application submitted by the Respondent under Section 156(3) of the Code be registered as complaint and further ordered the Registry to present the file before her on August 28, 2009 for recording the statement of the Respondent No. 3 i.e. the original complainant under Section 200 of the Code.
.......................................................................................................... ......................................................................................................... "18. When the complaint was presented before the Appellant, the Appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. ......................................"
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"22. The judicial discretion exercised by the Appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the Appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of High Court to substitute the judicial discretion exercised by the Appellant merely because another view is possible. The Appellant was the responsible judicial officer on the spot and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of Code."
23. ............................. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."
24. Here, in this case the Respondent 3 had averred in the application submitted before the Appellant that the Officer-incharge of the Nakur Police Station had refused to register her complaint against her father-in-law regarding alleged rape committed on her and that no action was taken by the Senior Superintendent of Police though necessary facts were brought to his notice. Under the circumstances, the judicial discretion exercised by the Appellant, to proceed under Section 200 of the Code in the light of principles of law laid down by the Allahabad High Court in various reported decisions could not have been faulted with nor the Appellant could have been subjected to severe criticism as was done by the learned Single Judge.
........................."
It is clearly deducible from the above quoted observations made by Hon'ble Supreme Court that like all other matters where the exercise of a judicial discretion is involved, the higher courts should always pay due regard to it and should not be quick to substitute the lower court's discretion by its own unless of course it is found that the same has been so exercised that it sounds perverse or that it is likely to defeat the ends of justice. Now reverting to the facts of the present case it transpires that there are allegations and counter allegations between the rival parties wherein on one side is the Sub-Inspector of Police while on another side is the Chief Development Officer, Varanasi, his official Driver and a Home 13 guard. The contents of the application u/s 156 (3) Cr.P.C. could not help the court to understand any comprehensible reason for the respondents to commit the alleged offences in such a weird manner. If the concerned Magistrate in order to move the criminal law into motion has chosen to take cognizance itself, I do not see anything erroneous, much less than perverse, in adopting such a course, specially keeping in view the submission placed before the court by the respondents that the application u/s 156 (3) Cr.P.C. had been moved only as a ploy to get an upper hand in the matter and to create an opportunity to humiliate and disgrace a high ranking executive officer of the district.
Be that as it may, I abstain to give any observation which might have a prejudicial effect on the merits of the case, but in the light of aforesaid discussions the petition seems to be meritless and deserves to be dismissed as such.
The impugned order passed in criminal revision upholding the validity of Judicial Magistrate's order too does not suffer from any illegality whatsoever and there is no reason to interfere with the same. There is nothing so erroneous or objectionable in either of the impugned orders which may persuade this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in order to set them aside. Petition therefore stands dismissed. Order Date : 10.12.2013 M. Kumar/