Tabbasum vs State Of Uttarakhand And Another on 30 May, 2017

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Uttarakhand High Court

Tabbasum vs State Of Uttarakhand And Another on 30 May, 2017

2. This criminal revision is directed against the judgment and order 07.04.2017 passed by the learned IInd Additional District Judge, Roorkee, Haridwar, in Criminal Revision No. 499 of 2015 "Majahid Vs. State of Uttarakhand", whereby the criminal revision filed by the respondent no. 2, against the order dated 25.08.2015, has been allowed by the learned IInd Additional Sessions Judge, Roorkee, Haridwar. The learned IInd Additional Sessions Judge, Roorkee remanded the matter back to the Magistrate and directed him to decide the application afresh.

3. Heard learned counsel for the parties and perused the lower court's record.

4. Facts, in brief, are that, on 19.08.2015, an application, under Section 156 (3) Cr.P.C., was moved by the respondent no. 2 (Majahid) in the Court of A.C.J.M., Roorkee, alleging therein that he is working for about last six months with Devpal @ Chuttan, 2 resident of Ruhalki Bhagwanpur, Police Station Bhagwanpur, District Haridwar. Devpal @ Chuttan had married with Trishna @ Tabbusam against the will of their parents and, therefore, he was residing in a separate room of Majahid alongwith his wife. Family members of both of them and their relatives were visiting the village to meet both of them; hence, Majahid was known to them. On 30.06.2015, father of Tabbusam, namely, Rijwan and cousin brother, namely, Shoaib Danish went to the home of Majahid and told him that they have organized the Roja Iftihaar party in Village Mohitpur. Tabbusam is going with them and he should also accompany them. When Majahid showed his inability, Rijwan, Shoaib and Tabbusam forced him to accompany. He went with them on his motorcycle to the house of Rijwan situated at Village Mohitpur. In the evening, all the family members did Roja Iftihaar. There was no person from outside and only one or two relatives were there. So, he asked Rijwan about this. Rijwan told him that as Tabbusam had married to a Hindu boy and has become a Hindu and, after a lapse of several months, has come to her home, therefore, only some special relatives have been invited. After the Roja Iftihaar party, on 30.06.2015, when Majahid was about to go, then Tabbusam, Rijwan, Shaian Bano, Irfan, Ruksana Begam, Shoaib Danish offered him tea. It is stated that they gave him intoxicated tea and, after having the same, he became unconscious. After coming into senses in the morning, he found himself fastend with a rope on a cot and saw that they have also kidnapped his two minor daughters from his home situated at Rahimpur. They threatened him that in case he does 3 not execute the power of attorney in their favour, in that event, they will kill him and his daughters. The petitioner got frightened. Thereafter, they took him to Haridwar and, after giving him threat, they forcefully got [executed] power [of attorney] in favour of Trishna @ Tabbusam on 01.07.2015. Thereafter, the applicant told them that power [of attorney] has already been [executed], his both daughters be released. Then, they told him that after going to village, his daughters will be handed over to him. They put him and his daughters in confinement at an unknown place. After knowing about this, his brother and relatives went to Village Mohitpur alongwith the Police of Bhagwanpur Police Station on 07.08.2015 and got released him and his one daughter from them. His one daughter, namely, Shafia, aged two years, is still in their custody. It is further stated that now he came to know that on the basis of power [of attorney] which they got forcefully executed, Tabbusam has executed a sale deed of the said property on 09.07.2015 in favour of her mother, namely, Shain Bano and, maami, Ruksana. It is stated in the application that Irfan is a hardcore criminal and, as many as, 35 cases in different police stations in different districts are registered against him. They have threatened him that they will kill the complainant and his daughters in case they initiate any action and disclose anything to anyone. His one daughter, namely, Shafia, aged two years, is still in their custody and his motorcycle is still lying with them. It was also mentioned in the said application that deceptively, fraudulently and, after abducting the daughters of the applicant, and also by threatening the applicant with dire consequences, they 4 got the power [of attorney]. In every police station of Saharanpur, Dehradun, Haridwar, Deoband, Roorkee, Kotdwar, Pauri etc. cases of Robbery, Dacoity & under Gangster Act are registered against Irfan and every person of the locality, is under his threat. His one daughter, namely, Shafia, aged two years, is still in their custody and they can kill her and can cause harm to her. It is also stated that, on 07.08.2015, he gave a written report against them in Police Station Bhagwanpur; but when no action was taken, thereafter, on 14.08.2015, he gave an application to the Senior Superintendent of Police, Haridwar; but, no action has yet been taken on the said application. He prayed that a case may be registered against them under Section 328, 342, 386, 420, 364, 506, 467, 468 & 471 I.P.C. and legal action be taken against them and an order may be passed for getting his minor daughter released from their possession. Learned A.C.J.M., Roorkee, Haridwar considered the said application of the respondent no. 2 and, on 25.08.2015, dismissed the same. Respondent no. 2 challenged the order dated 25.08.2015 by way of filing Criminal Revision No. 499 of 2015 before the Court of IInd Additional Sessions Judge, Roorkee, Haridwar. The learned IInd Additional Sessions Judge, Roorkee, Haridwar, vide judgment & order dated 07.04.2017, set-aside the order dated 25.08.2015 and remanded the matter back to the Magistrate to hear the application afresh and pass order. Hence, this criminal revision.

5. Learned counsel for the revisionist submitted that the criminal revision filed by the 5 respondent no. 2 has been allowed by the learned IInd Additional Sessions Judge, Roorkee, Haridwar vide order dated 07.04.2017 without considering the evidence led by the police. He submitted that the respondent no.2 filed a civil suit for cancellation of sale deed executed by revisionist and also for the cancellation of power of attorney, which has been compromised between the parties. He submitted that, on the day of compromise in civil suit, the respondent no. 2 gave divorce to the revisionist as per the Muslim customs and, now, few months back revisionist has got married with one Sajnajar son of Naseem. He submitted that the revisionist also moved an application under Section 156(3) of Cr.P.C. against her brother-in-law and other relatives for kidnapping her husband; but, later on, complaint case was never pressed by the revisionist after compromise in civil suit. He contended that the learned Additional Sessions Judge, Roorkee, Haridwar has allowed the criminal revision without considering all these facts. He submitted that, in fact, the learned Magistrate has given the proper reason for his conclusion that there is no ground to order investigation under Section 156(3) of Cr.P.C on the facts, which are alleged in an application. He argued that the learned Additional Sessions Judge did not consider the police report and statement of respondent no.2. He contended that the learned Revisional Court has failed to consider that it is well settled that mere allegation, without any material, would not suffice to hold that it is a matter for investigation by the police. If the Court concerned feels that the said application filed with oblique motive and is without any material, the same must be rejected 6 at the threshold. He submitted that the learned Additional Sessions Judge did not consider this aspect that the application filed by the informant under Section 156(3) Cr.P.C. was with oblique motive, without any material, and the same was filed by concealing the material fact. He submitted that the learned Judicial Magistrate, after perusal of evidence produced with application filed under Section 156(3) Cr.P.C. has rightly passed the order dated 25.08.2015; but, the first Revisional Court, without careful perusal of the evidence, has wrongly passed the impugned order in an arbitrary manner. The findings recorded by the learned Additional Sessions Judge, Roorkee, Haridwar are arbitrary, illegal and perverse and the impugned order dated 07.04.2017 passed by the learned Additional Sessions Judge, Roorkee, Haridwar is liable to be set- aside.

6. Learned counsel for the revisionist to buttress his argument relied upon the judgment of the Hon'ble Apex Court in the matter of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, reported in (2015) 6 SCC 287. He referred to paragraph nos. 20, 27, 28, 29, 30 & 31 of the judgment, which are as follows:

"20. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To 7 understand the real purport of the same, we think it apt to reproduce the said provision:

"156. Police officer's power to investigate congnizable case. - (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-

mentioned.

27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the 8 financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.

28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum.

As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an 9 application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of police concerned.

29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be 10 done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

7. Learned counsel for the revisionist also placed reliance upon paragraph nos. 115 & 119 of the judgment of the Hon'ble Supreme Court in the matter of Lalita Kumari vs. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1. Therein, the Hon'ble Supreme Court, inter alia, has held as follows:

"115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an 12 option to prosecute the complainant for filing a false FIR."

8. Considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. Respondent no. 2 moved an application under Section 156 (3) Cr.P.C. In his application, he levelled various allegations against six persons, namely, Tabbasum (revisionist), Rijwan, Shayana Bano, Shoaib Danish, Irfan and Ruksana, which have already been averred in earlier part of this judgment. Some of the allegations made in the complaint are of serious nature. Allegation made in the compliant may be true or false; but, by reading the complaint, it is clear that alleged offence is cognizable offence. The Magistrate relied on the letter written by the complainant to the police officer, stating therein that nobody abducted him and further there is a case pending regarding land dispute between the parties. On the basis of this statement, the learned Magistrate reached to the conclusion that complainant was not abducted. Rather, civil case regarding land is pending between the parties. The Magistrate concluded that there is no justification in getting the matter investigated. The Magistrate before exercising jurisdiction under Section 156 (3) Cr.P.C. is required to apply his judicious mind. Such application of mind should be reflected in the order. In the present case, the Magistrate totally relied on the report of the concerned police station and, in fact, on the letter of the complainant, which he gave in the police station in favour of accused. Same should have been carefully considered. One should bear in mind that even 13 confession made by any person in custody of police cannot be proved against him. Possibility of police influence cannot be ruled out. The Magistrate did not say anything in his order about the other serious allegations levelled against the accused. It can safely be said that the Magistrate did not apply his mind to the allegations made in the complaint, few of which were serious in nature and constitute cognizable offence. He has not exercised jurisdiction in the manner, he should have exercised. Order under Section 156 (3) of Cr.P.C. should not be passed merely on the basis of police report. The police report should always be considered by the Magistrate; but, while deciding the application under Section 156 (3) Cr.P.C., he should apply his judicious mind. By simply accepting the police version and rejecting the application may amount to injustice to a party. A right of a person (complainant) to get his complaint investigated in accordance with law is behind the spirit of Section 156 Cr.P.C. At the stage of registration of F.I.R., it is to be seen, whether the information given ex-facie discloses the commission of cognizable offence. After investigation, if the information given is not found true, it is always open for the investigating officer to file final report.

9. Learned counsel for the revisionist relied on paragraph nos. 20, 27, 28, 29, 30 & 31 of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, reported in (2015) 6 SCC 287. I find the facts of that case and present case entirely different. In that case, the complainant and his wife took loan from financial institution i.e. P.N.B. On default in 14 consecutive payment of the installment, the loan account was treated as a non-performing asset. Consequently, proceedings were initiated under the SARFAESI Act. Writ petition filed by the complainant was dismissed and he was asked to avail remedy under the SARFAESI Act. Thereafter, the complainant filed a criminal compliant under Section 200 Cr.P.C. against the officials of the bank for offences punishable under Section 163, 193 & 506 I.P.C.; but, same was dismissed. Revision was filed by the complainant. Revisional Court set aside the order and remanded the matter. After remand, the trial Magistrate took cognizance and issued summons to the concerned official. Against that order, they approached the High Court. The High Court quashed the criminal complaint. He filed another application under Section 156 (3) Cr.P.C. against the official concerned of the financial institution. Order was passed by the Magistrate and F.I.R. was registered under Sections 465, 467, 468, 471, 386, 506, 34 and 120-B I.P.C. Being not satisfied with the same, he filed another application under Section 156 (3) Cr.P.C. against the official concerned with the allegation of undervaluation of the property. Order passed on the said application led to registration of F.I.R. against the official concerned. Against the order of Magistrate, concerned official moved to the High Court; but, the High Court declined to interfere with the order of the Magistrate. Thereafter, the official concerned moved to the Hon'ble Supreme Court and filed S.L.P. The Hon'ble Supreme Court, while allowing the appeal and quashing the High Court's order and F.I.R., observed that it is clearly noticeable that the statutory remedies had cleverly 15 been bypassed and prosecution route had been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one time settlement which the financial institution might not have acceded. Another judgment Lalita Kumari Vs. Government of Uttar Pradesh and others, reported in (2014) 1 SCC 1, does not help the revisionist. In the said judgment, the Hon'ble Supreme Court has held that registration of F.I.R. is mandatory, if the information discloses commission of a cognizable offence.

10. The Hon'ble Supreme Court in the matter of Lalita Kumari Vs. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1, (this case has been relied by the revisionist) has held that the registration of F.I.R. is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence. The Hon'ble Supreme Court also observed that the reasonableness or credibility of the information is not a condition precedent for the registration of case. Few paragraphs are being reproduced hereinafter:

"78. In Lallan Chaudhary, this Court held as under:

"8. Section 154 of the Code thus casts a statutory duty upon the police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information.

9. In Ramesh Kumari v. State (NCT of Delhi) this Court has held that the provision of Section 154 is mandatory. Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case.

10. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code."

79. A perusal of the abovereferred judgments clarify that the reasonableness or credibility of the information is not a condition precedent for the registration of a case.

120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted 17 only to ascertain whether cognizable offence is disclosed or not.

120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

11. In view of above discussion, the revision is dismissed.

(V.K. Bist, J.) 30.05.2017 Arpan

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