Allahabad High Court
Arun Kumar Singh @ Pappu Singh And 5 Ors. ... vs State Of U.P. Thru ... on 2 February, 2016
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 18 Case :- MISC. SINGLE No. - 2173 of 2016 Petitioner :- Arun Kumar Singh @ Pappu Singh And 5 Ors. [U/A-227] Respondent :- State Of U.P. Thru Prin.Secy.(Home)Civil Sectt.Lko. & Ors. Counsel for Petitioner :- Rajesh Bahadur Singh Rath Counsel for Respondent :- Govt. Advocate Hon'ble Anil Kumar,J.
Heard Sri R.B.S. Rathaur, learned counsel for the petitioners, Sri Anurag Verma, learned Additional Government Advocate for opposite parties no. 1 and 2 and perused the record.
Facts, in brief, of the present case are that on 9.12.2015 an election for the post of Gram Pradhan in Gram Panchayat Rai Askaranpur, Block Babaganj, District Pratahpgarh was held in which 'Bhabhi' of petitioner no.1, namely, Smt. Pushpa Singh contested for the said post . In the said matter certain controversy has taken place so opposite party no.3 moved an application under Section 156(3) Cr.P.C. in the Court of Additional Chief Judicial Magistrate, Kunda, Pratapgarh, registered as Criminal Case no.6 of 2016 ( Ajai Pratap Singh Vs. Pappu and others), allowed by order dated 23.1.2016 under challenge in the present writ petition.
Sri Anuraj Verma , learned Additional Government Advocate appearing on behalf of opposite parties no.1 and 2 raised a preliminary objection that as in the present case by an order dated 23.1.2016 Additional Chief Magistrate Kunda Pratapgarh on the application under Section 156(3) Cr.P.C. has directed the police authorities to register and investigate the case, so keeping in view of the law laid down by this Court in the case of Gurbachan Singh and others Vs. State of U.P. and others, 2008(2) ACR 1950 petitioners being prospective accused have no right to challenge the said order as such the present writ petition liable to be dismissed.
Sri R.B.S Rathaur, learned counsel for the petitioners, while rebutting the said contention, submits that against the order dated 23.1.2016 passed under Section 156(3) Cr.P.C. it is not open for petitioners to raised their grievance by filing revision hence the writ petition is maintainable.
In support of his contention, he placed reliance on a Full Bench decision of this Court in the case of Father Thomas Vs. State of U.P. and others, 2011 (72) ACC 564 the relevant paragraph is quoted as under:-
"65.A. The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
B. An order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973.
C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct."
Next arguments raised by learned counsel for the petitioners are that from the bare perusal of the material on record, the position which emerge out is that no allegation has been made out against the petitioners, so there is no justification or reason to pass an order dated 23.1.2016 directing the police authorities to register and investigate the case against the petitioners on an application moved under Section 156(3) Cr.P.C. and also placed reliance on the decision given by Hon'ble teh Apex Court in the case of Shambu Das @ Bijoy Das and another Vs. State of Assam, 2010(71) ACC 367 in which it has been held as under:-
" Section 157 of the Code says that if, from the information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case, if he does not send a report to the Magistrate, that does not mean that his proceedings to the spot, is not for investigation. In order to bring such proceedings within the ambit of investigation, it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards detention etc., of the said offence, would be part of investigation under the Code.
The principles now well settled is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later."
Last arguments raised by learned counsel for the petitioners are that in view of the law laid by Hon'ble the Apex Court in the case of Priyanka Srivastava and another Vs. State of U.P. And others, (2015 6 Supreme Court Cases 287 an application under Section 156(3) Cr.P.C. seeking directions for registering the First Information Report should be accompanied by an affidavit. The said position does not exits in the present case so the order dated 23.1.2016 passed by Additional Chief Judicial Magistrate Kunda, Pratapgarh, liable to be set aside.
After hearing learned counsel for the parties and going through the record, the first and foremost question which to be considered is that if an application has been moved under Section 156(3) Cr.P.C. and the order has been passed for registering the case and investigate the matter in that circumstances petitioners, who are prospective accused have any right to challenge the same.
Answer to the said question find place in the case of Gurbachan Singh and others( Supra) wherein it has been held as under :-
"If information regarding the cognizable offence is not registered by the concerned police, the application should have been made regarding the alleged incident to the Superintendent of Police or higher authorities of the police according to the provision of Section 154(3) Cr.P.C. and even then the case is not registered, in such circumstances remedy is also available under Section 156(3) Cr.P.C. wherein the Magistrate concerned may pass orders upon the said application for registering and investigating the case regarding the cognizable offence. The same view has been reiterated in Sakiri Vasu Vs. State of U.P. (Crl. Appeal No.1685 of 2007) decided on 7.12.2007 by Hon'ble Markandey Katju, J. In the present case, it has been alleged in the said application that deceased was subjected to cruelty due to non-fulfillment of dowry of Rs.50,000/- and she died at the house of the petitioners. The post mortem was conducted and viscera was preserved therefore, there is no dispute that she died within seven years of her marriage. Unless the until the viscera report is received in negative, the presumption would be that it is a case of unnatural death within seven years of the marriage. The information was also given regarding her death by her 'Devar' but the same was not registered. Then a complaint was also made to the concerned Superintendent of Police. Thereafter, the application 156(3) Cr.P.C. was moved by the opposite party. Therefore, the concerned Magistrate has not committed any illegality in passing the impugned order and the same has been passed according to law.
It is worthwhile to mention here that the application moved under Section 156(3) Cr.P.C. has been allowed and the order for registering and investigating the case has been passed against the petitioners. In such circumstances, the prospective accused, who are petitioners, do not have any right to say that the Magistrate does not have any power to direct the police to lodge the F.I.R. for cognizable offence as has been held in the case of Ram Kishore Purohit vs. State of U.P. and Ors. Reported in 2007(2) JIC-194(Allahabad H.C.). and in the case of Rakesh Kumar and Ors. vs. State of U.P. and Ors. reported in 2007(2) 191 (Alld.), The same view has also been taken by me in my judgment dated Sept.10, 2007 passed in Criminal Revision No. 2549 of 2007 Smt. Gulistan and others vs. State of U.P. and others.
So far as the arguments advanced by learned counsel for the petitioners that the present writ petition has been filed because of the fact that in view of the Full Bench decision rendered by this Court in the case of Father Thomos (supra), in the said matter it has been held that revision against the order passed on the application under Section 156(3) Cr.P.C. is not maintainable as the order is interlocutory in nature which is barred under Section 397 (2) Cr.P.C., even the application under Section 482 Cr.P.C. against the order passed on the application under Section 156(3) Cr.P.C. is not maintainable, so no alternative, equally efficacious remedy is available to them except to invoke the jurisdiction of this Court under Article 227 of the Constitution of India, has got no force because the stage of the disposal of application under Section 156(3) Cr.P.C. is a pre-cognizance stage.
And by directing the police to register and investigate, the Magistrate does not take cognizance of the offence. He simply sets the machinery into motion so that the police may perform his duty, in case, the police has refused to register First Information Report on the written application of the complainant. It has also been held in several decisions that a prospective accused has no right to be heard before the any court unless the court takes cognizance. The prospective accused at the most can watch the proceeding going on against him but he can not have a right to either oppose or say anything unless the court takes cognizance and issue process against the accused person. Since by the impugned order, the Additional Chief Judicial Magistrate, Kunda Pratapgarh has only directed the police to register and investigate, the petitioners being prospective accused have no locus standi to challenge the said order passed on the application of the opposite party no.3.
Further, a perusal of the Full Bench decision of this Court in the case of Father Thomas (supra) reveals that three questions for consideration were framed. The question no.2 was framed as to whether whether an order made under Section 156(3) Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under Sub-Section (2) of Section 397 of the Code of Criminal Procedure. This question was answered by the Full Bench in negative and it was held that the order under Section 156(3) Cr.P.C. is not amenable to challenge in a criminal revision or an application under Section 482 Cr.P.C. The Full bench has also gone to observe that the initial order for registration is not opened to challenge in a writ petition and it is beyond controversy that the Province of investigation by the police and the judiciary are not overlapping but complimentary. Since in view of the Full Bench decision the remedy of filing a revision or invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. is completely barred, I am of the view that writ jurisdiction also can not be invoked in such matters where the matter is still in the pre-cognizance stage and the prospective accused has no right to be heard unless the court takes cognizance or issues process against the accused person.
In the instant matter on the application moved by opposite party no.3 under Section 156(3) Cr.P.C. order has been passed by Additional Chief Judicial Magistrate, Kunda, Pratapgarh for registering and investigating the case against the petitioners so they are prospective accused have no right to say that Magistrate does not have any power to direct the police authorities to lodge F.I.R. for cognizable offence. Further if the F.I.R. is registered in compliance of the order passed under Section 156(3) Cr.P.C. against the petitioners, the proper remedy available to them to invoke the jurisdiction under Article 226 of the Constitution of India for quashing of the F.I.R. as well as for staying the arrest. In view of the said facts at this stage, petitioners cannot derive any benefit from the law as cited on their behalf as laid down in cases of Shambu Das @ Bijoy Das ( Supra) as well as Priyanka Srivastava (Supra) in order to challenge the order dated 23.1.2016, thus I do not find any illegality or infirmity in the order dated 23.1.2016 passed by Additional Chief Judicial Magistrate, Kunda, Pratapgarh.
For the forgoing reason, the writ petition lacks merit and is dismissed.
Order Date :- 2.2.2016 dk/