Allahabad High Court
Natthu Lal vs State Of U.P. And 2 Others on 10 January, 2020
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 76 Case :- CRIMINAL REVISION No. - 122 of 2020 Revisionist :- Natthu Lal Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Kharag Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Kharag Singh, learned counsel for the revisionist and Mr. Amit Singh, Chauhan, learned A.G.A. for the State.
2. The present criminal revision under Section 397/401 Cr.P.C. has been filed to quash the impugned order dated 26th January, 2019 passed by the Chief Judicial Magistrate, Rampur in Criminal Misc. Case No. 737 of 2019 (Natthu Lal Vs. Constable Vivek & Others), Registration No. 1814 of 2019, whereby the application made by the revisionist under Section 156 (3) Cr.P.C. has been rejected.
3. Learned counsel for the revisionist submits that the case of revisionist is that opposite party no.2 and wife of opposite party no.3 had kept enmity with the deceased Chandrabhan due to their illegal relationship as the deceased Chandrabhan was well acquainted with the illegal relationship between them and one day, he told to opposite party no.2 that he would disclose about the same to opposite party no.3 qua his illegal relationship with the wife of opposite party no.3. The wife of the deceased, namely, Sm. Asmita had also seen the illegal relationship of opposite party nos. 2 and wife of opposite party no.3. Two independent witnesses, namely, Rajpal and Rampal had also seen the said illegal relationship. They had also seen that opposite party nos. 2 and 3 were throwing the dead body of the deceased. Therefore, the revisionist has strong suspicion that the death of the deceased Chandrabhan did not take place due to electric shock, he was murdered by opposite party no.2 and opposite party no.3. It is further submitted that the Police of the concerned Police Station had taken the signatures of the son of revisionist, namely, Surajbhan on a blank paper forcibly upon which the first information report dated 10th September, 2019 has been lodged by the Police of concerned Police Station in which the cause of death has been mentioned as a result of electric shock. . It is further submitted that photographs of the body of the deceased also indicate that cause of death of the deceased was not due to electric shock, as stated in the first information report lodged by the Police. The revisionist has made complaint to the Superintendent of Police, Rampur but he has not taken any steps in that regard. After moving various applications before the various authorities, he moved an application under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Rampur on 23rd October, 2019 for lodging of the first information report against opposite party nos. 2 and 3. However, without considering the contents of the application and statements of the witnesses, the concerned Magistrate has illegally rejected the application of the revisionist under Section 156 (3) Cr.PC. Only on the basis of enquiry and post mortem reports submitted by the Police. It is vehemently contended by the learned counsel for the revisionist that a Magistrate, was bound to pass an order for registration of the FIR and its investigation by the police on the application under section 156 (3) Cr.P.C. as a cognizable offence of serious nature requiring investigation is made out on the basis of averments made in that application.
4. Per contra, Mr. Amit Singh Chauhan, learned A.G.A. for the State submits that if the application under section 156 (3) Cr.P.C. contains the allegations of commission of a cognizable offence, then the Magistrate is under obligation to direct investigation after registration of the FIR in each and every case. However, in the application made by the revisionist under Section 156 (3), court below has not found any substance and he has rightly rejected the application of the revisionist on the basis of enquiry and post-mortem reports submitted by the Police wherein it has been mentioned the cause of death of deceased is due to electric shock. The court below has not committed any error while passing the impugned order. The court below has recorded pure finding of fact. He, therefore, submits that the impugned order passed by the court below is legal and just and the same does not warrant any interference by this Court.
5. I have considered the submissions made by the learned counsel for the parties and have gone through the record of the present criminal revision.
6. Before coming to the merits of the case, it would be worthwhile to peruse certain Sections of the Code of Criminal Procedure. Information under section 154 of Cr.P.C is generally known as F.I.R. It is pertinent to see that the word '' first'' is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who is a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under sub-section 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it is discussed with relevant case law as to the powers of Magistrate under section of 156 (3) of Cr.P.C. Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not.
7. The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is not 'res-integra' now, as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. reported in 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others reported in 2007 (1) ALJ 221 and some other cases, the single judges of the Court had taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi (Supra):-
"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 appear to be genuine and 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"?
8. After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. reported in 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. has answered the question in paragraph 23 of the report as under:-
"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."
9. Therefore, in view of the law laid down by the Division Bench in the aforesaid case, the above mentioned contention of the learned counsel for the revisionist has got no force. In the case of Rajendra Singh Katoch vs. Chandigarh Administration & others reported in 2008 (60) ACC 347, the Apex Court has made the following observation in para 8 of the report at page 348:-
"Although the officer-in-charge of a police station is legally bound to register a first information report in terms of section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not."
10. From the aforesaid observations made by the Hon'ble Apex Court, this fact is borne out that before lodging the FIR, the competent police officer can make a preliminary enquiry in order to find out as to whether the first information sought to be lodged had any substance or not. If the police officer is competent to make a preliminary enquiry in a given case in order to find out as to whether the first information sought to be lodged had any substance or not, then how the Magistrate can be bound to direct registration of FIR and its investigation on each and every application under section 156 (3) Cr.P.C. containing allegations of commission of a cognizable offence without applying its mind to find out whether the allegations made on the application have any substance or not. In my considered opinion, the Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi (supra).
11. The Magistrates should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under section 156 (3) Cr.P.C. in the cases where on the basis of the averments made therein and the material, if any, brought on record in support thereof, prima facie cognizable offence of serious nature requiring police investigation is made out and in such cases the aggrieved person should not be compelled to collect and produce the evidence at his cost to bring home the charges to the accused by passing an order to treat the application under section 156 (3) Cr.P.C. as complaint thereby forcing the aggrieved person to proceed in the manner provided by chapter XV Cr.P.C.
12. In the case of Father Thomas Vs. State of U.P and Anr. reported in 2011 Crl. Law Journal 2278 though the matter was that an application under Section 156(3) Cr.P.C. was allowed and when revision came before court for decision, the court was of the view that the accused has no locus standi to challenge an order passed, and an order directing investigation is purely interlocutory in nature in view of statutory bar contain under section 397(2) of the Code.
13. In the case of Aleque Padamsee and Ors. Vs. Union of India (U0I) and Ors. 2007 reported in Criminal Law Journal 3729; the Apex Court has held that Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether an order can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code.
14. In the case of All Institute of Medical Sciences Employees Union Vs. Union of India reported in 1996 (4) Crimes 189 (Supreme Court), the Apex Court has held Para 4:
"4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/ evidence recorded prima facie discloses offence, he is empowered to take cognisance of the offence and would issue process to the accused."
15. Similarly, the Apex Court has again in the Case of Hari Singh Vs. State of U.P reported in 2006 Criminal Law Journal 3283 held that para 4:
"4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors. MANU/SC/1769/1996 : (1996)115CC582 . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted recently in Gangadhar Janardan Mhatre v. State of Maharashtra MANU/SC/0830/2004 : 2004CriLJ4623 and in Minu Kumari and Ant v. State of Bihar and Ors. MANU/SC/8098/2006: 2006CriLJ2468."
16. Perusal of the certain provisions of Code of Criminal Procedure and the law laid down herein above, this Court is of the firm opinion that it is for the satisfaction of the Magistrate concerned and if after calling the report or collecting the material evidence from the police station concerned, he is of the satisfaction that no prima facie case is made out against the opposite parties, Magistrate is not bound to order for registration of the case. The court below after appreciating the contents of the application made under Section 156 (3) as well as other evidence on record has also found any substance in the contents of the revisionist that he has made several applications before the Station House Officer concerned and Senior Superintendent of Police, Bareilly, as the revisionist has failed to produce any receipt or other documents in support thereof.
17. In light of the above facts and above proposition of law, this Court is of the view that there is no illegality or irregularity in the order impugned and after collecting the enquiry and post mortem reports of the deceased, wherein it has been clearly mentioned that the cause of death of the deceased is due to electric shock, from the police station concerned or the report otherwise, the Magistrate is of the view that no prima facie case was made out. Thus, the application has rightly been rejected by the court below under the order impugned.
18. In light of above facts, this Court is of the view that no interference is required in the order impugned. The present criminal revision lacks merit and deserves to be dismissed. It is accordingly dismissed.
(Manju Rani Chauhan, J.) Order Date :- 10.1.2020 Sushil/-