Allahabad High Court
Vijay Bahadur Pandey Son Of Deobi Pandey vs The State Of U.P. Through Secretary ... on 18 March, 2005
Author: Ravindra Singh
Bench: Ravindra Singh
JUDGMENT Ravindra Singh, J.
1. Heard Sri Awdhesh Rai learned counsel for the petitioner and learned A.G.A
2. This petition has been filed against the order-dated 28.2.2005 passed by the learned C.J.M., Mau, whereby the application filed by the respondent No. 4 was allowed and N.B.W, was issued against the petitioner.
3. The facts in brief of this writ petition are that an application under Section 156(3) Cr. P. C. was filed by respondent No. 4 Jai Nath Singh in the court of learned C.J.M., Mau with a prayer to issue a direction to police station concerned to register the case and investigate the same. On that application, the learned C.J.M., Mau passed order dated 1.9.2003 observing that it is a liability of the police department to register the case. Therefore, the application was sent to the Superintendent of Police, Mau for taking necessary action. Thereafter, the F.I.R. was registered at the police station Sarain Lakhansi in Case Crime No. 519-A Of 2003 under Sections 147, 148, 149, 307 323, 336 I.P.C. and Section 7 of the Criminal Law Amendment Act. The matter was investigated and the charge sheet was submitted by the I.O. against the petitioner in the court of the learned C.J.M., Mau on which the cognizance was taken by the learned C.J.M., Mau on 30.7.2004 and the petitioner was summoned to face the trial. The petitioner challenged the order-dated 1.9.2003 passed by the learned C.J.M., Mau by way of filling of Criminal Revision No. 01 of 2003. The same was allowed on 10.12.2004 by the learned Additional Sessions Judge, Court No. 1, Mau and the order dated 1.9.2003 was set aside and the learned C.J.M., Mau was directed to pass a fresh order on the application under Section, 156(3) Cr. P. C. filed by the respondent No. 4, in accordance with the provisions of law.
4. Thereafter the petitioner challenged the F.I.R. lodged by the respondent No. 4 in Case Crime No. 519-A of 2003 by way of filling Criminal Misc. Writ Petition No. 5357 of 2003 before this court. The same was finally disposed of by the Division Bench of this court on 15.9.2003, whereby the prayer to quash the F.I.R. was refused, but the direction was issued to the courts below that in case the petitioner appears before the court and applies for bail, the prayer for bail shall be considered expeditiously, if possible on the same day.
5. The F.I.R. was registered against the petitioner was investigated by the I.O. who submitted the charge sheet and on the basis of that charge sheet the learned C.J.M., Mau took the cognizance and summoned the petitioner on 30.7.2004, Thereafter, the petitioner and other co-accused persons challenged the charge sheet before this court by way of filling Criminal Misc. Application No. 8086 of 2004. The same was finally disposed of on 3.8.2004, whereby the prayer to quash the charge sheet was refused, but again the observation was made by this court that in case the petitioner appears before the lower court and moves bail application the same shall be considered expeditiously, if possible on the same day.
6. The respondent No. 4 Jai Nath Singh moved Criminal Misc. Application. No. 01 of 2005 in the court of learned Additional Sessions Judge, Court No. 1, Mau with a prayer to review the order dated 10.12.2004 passed in Criminal Revision No. 01 of 2003. That application was disposed of on 19.2.2005 by the learned Additional Sessions Judge, Court No. 1, Mau, whereby it was observed that there was no need to review the order dated 10.12.2004 but it was clearly observed that the judgment and the order dated 10.12.2004 will not affect the charge sheet submitted by the police and the cognizance taken by the learned Magistrate and the order passed by this Court shall have a binding-effect on the lower court. Thereafter, in pursuance of the order dated 19.2.2005 the respondent No. 4 moved an application in the court of learned C.J.M., Mau with a prayer that the accused persons, who have not been released on bail, N.B.W. may be issued against them and others may be summoned. On that application the objection was filed by the petitioner and accused Ram Badan. After considering the same the learned C.J.M., Mau passed the order dated 28.2.2005 and issued the N.B.W. against the accused persons, who have not been released on bail and issued summons against the remaining co-accused persons, who have obtained the bail, for their appearance in the court.
7. It is contended by the learned counsel for the petitioner, that the order dated 1.9.2003 passed by the learned C.J.M. Mau, whereby no direction was issued to the police station concerned to register the case and investigate the same, but the copy of that application was sent to the S.P., Mau for taking necessary action, was set aside by the revisional court on 10.12.2004, so the further proceedings, which have been taken place in pursuance of the order dated 1.9.2003, have become null and void. In such circumstances the impugned order dated 28.2.2005 is illegal and is liable to be set aside.
8. It is opposed by the learned A.G.A. by submitting that there is no illegality or irregularity in the impugned order dated 28-02-2005 because the revisional court itself has clarified the position in its judgment on 19.2.2005 that the order dated 10.12.2004, by which the order dated, (Sic) 9.2003 was set aside, will have no effect on the charge sheet and the cognizance taken by the Magistrate, so the impugned order dated 28.2.2005 is perfect order, which requires no interference and the learned C.J.M., Mau has rightly issued the N.B.W. against the petitioner and other co-accused persons, who have not obtained the bail and issued the summons to the remaining accused persons, who have obtained the bail, for their appearance in the court.
9. From the perusal of the record, it appears that in the present case no direction was given by the learned Magistrate to the police station concerned to register the case and investigate the same vide order dated 1.9.2003. He has sent an application under Section 156(3) Cr.P.C to the S.P., Mau for taking necessary action. This order was rightly set aside on 10-12-2004 by the revisional court but the direction issued to the C.J.M. to pass a fresh order on application under Section 156(3) Cr.P.C. was illegal because F.I.R. was already registered and the charge sheet was submitted. The F.I.R. was registered at the police station concerned on the direction of the S.P., Mau, and after its investigation the charge sheet was submitted in the Court. There after the order dated 01-09-2003 passed by learned C.J.M. was set aside on 10-02-2004, it will not affect the F.I.R., its investigation and charge sheet etc. In the present case the F.I.R. was not registered in pursuance of any order under Section 156(3) Cr.P.C. In case any F.I.R. is registered by the order of the learned Magistrate under Section 156(3) Cr. P. C. and subsequently, that order is set aside by the higher court, it will not affect the F.I.R., its investigation and charge sheet, because under Section 154 Cr. P. C. an Officer In-charge of a police station concerned is under obligation to register the case on every information either oral or in writing, relating to the commission of the cognizable offence. The provisions of Section 156(3) Cr. P. C. are embodied in the Code for the purpose of checking the arbitrariness of the Officer In-charge of the police station concerned. For registering the F.I.R. the order under Section 156(3) Cr. P. C. is not a necessary requirement. If the F.I.R. is registered at the police station concerned on the basis of the order passed under Section 156(3) Cr. P. C. the purpose of the legislation to check the arbitrariness of Officer-in- charge of a police station concerned is fulfilled. The order directing the Officer-in-charge to register the case and investigate the same is not a necessary requirement for the F.I.R. in cognizable offence, if any F.I.R. is registered in pursuance of such order and if that order is set aside by any higher court it will not affect the F.I.R. and its investigation because without such order also the officer-in-charge was under obligation to register the F.I.R. in cognizable offence.
10. In the present case also the petitioner challenged the F.I.R. with a prayer to quash the same. Subsequently the charge sheet was challenged with a prayer to quash the same after considering all the facts and circumstances of the case and legality and illegality if any, this court has refused to quash the F.I.R. and charge sheet submitted by The I.O. against the petitioner and other co-accused persons. In such circumstances the petitioner and other co-accused persons have no option but to face the trial so the impugned order dated 28.2.2005 passed by the C.J.M., Mau is a perfect order by which N.B.W. has been issued against the accused persons, who have not obtained their bail and the summons were issued against the remaining accused persons is, who have obtained their bail, for their appearance in the court. The impugned order is well-reasoned order. It requires no interference, therefore, it is affirmed.
11. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the petitioner and learned A.G.A. and the reasons given above the prayer for quashing the abovementioned impugned order dated 28.2.2005 passed by the learned C.J.M., Mau in Criminal Misc. Case No. 2650 of 2004 is refused.
12. Accordingly the petition is dismissed.