Allahabad High Court
Smt. Rekha Verma Wife Of Shri Subhash ... vs State Of U.P. And Munna Lal Son Of Ramdhan on 10 October, 2006
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. Heard Sri Viresh Misra learned Senior counsel assisted by Sri Sudhanshu Srivastava and Smt. Nayan Sri advocates in support of this application and the learned AGA in opposition.
2. The applicants are aggrieved by an order dated 6.9.2006 by which the Chief Judicial Magistrate, Saharanpur has ordered for registration of the FIR and investigation of the same against the revisionists exercising his powers under Section 156(3) Cr.P.C. in Misc. Case No. 624 of 2006 Munna Lal v. Subhash Chand, as the said application filed by the applicant Munna Lal disclosed commission of cognizable offence against the applicants.
3. At the very outset the question of maintainability of this application at the instance of the revisionists came up for consideration since it transpired that this application at the instance of the applicants is not maintainable.
4. Section 156(3) Cr.P.C. finds it's placement under chapter XII of Code Criminal Procedure 1974 ( hereinafter referred to as Code) which deals with the power of police to investigate. The Heading of the chapter reads INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE. The police under Section 154(1) of the code is mandated by law to register every information of a cognizable offence which is given to it whether orally or in writing. It has to register such an information of cognizable offence in the form prescribed by the respective State Governments which is called First Information report commonly known as FIR. The apex court has held in State of Haryana v. Bhajan Lal 1992 SCC (Cr.) 426 in para 30, 31, and 33 that if the officer- in - charge of the police station does not register the information of a cognizable offence given to it then he eschews it's statutory responsibility. It has been held by the apex court as follows:
30. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of a Section 154(1) of the Code, the concerned police officer 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 reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgement, we do not propose to deal with those sections in extenso in the present context.) In case. an officer in charge of a police station refuses to exercise the jurisdiction vested on him and to register a case on the information of a cognizable offence, reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code.
31. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the 'word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced into writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 11 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.
32. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
5. The same view was expressed by the apex court in the case of Janta Dal v. H.S. Chowdhari 1993 SCC (Cr.) 36. The apex court in the case of Union of India v. W.N. Chadha 1993 SCC (Cr.) 1171 has held that the investigating officer is free to conduct the investigation in the manner it deems fit and the accused can not be heard regarding the manner of investigation and he has got no right to say or object to such a power of the investigating officer. It has been laid down by the apex court in the said case of W.N. Chadha (supra) as follows;-
91. In State of Haryana v. Bhajan Lal , this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 and the decision of this Court in State of Bihar v. J.A.C. Saldanha has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation...
92.. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
93. It may be noted that under Section 227 of the Code dealing with discharge of an accused in a trial before a Court of Session under Chap. XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under Section 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted therewith but also the submissions of the accused and the prosecution made under Section 227. Similarly, under Section 239 falling under Chapter XIX dealing with the trial of warrant cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and discharge the accused for the reasons to be recorded in case the Magistrate considers the charge against the accused to be groundless. Section 240 of the Code dealing with framing of charge also reaffirms the consideration of the examination of an accused under Section 239 before the charge is framed.
94. Under Section 235(2), in a trial before a Court of Sessions and under Section 248(2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.
95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected with the crime unless otherwise provided under the law.
96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the 'Right to Life' and 'Personal Liberty' enshrined in Art. 21 of the Constitution and the valuable safeguards ingrained in Art. 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be. in accordance with the provisions of the Code of Criminal Procedure.
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
(Emphasis supplied and mine)
6. The apex court has further held in the case of Amar Nath and Ors. v. State of Haryana and Anr. 1977 SCC (Cr.) 585 that so long as the accused is not summoned no proceeding has taken place in his respect. It has been held by the apex court as follows:
The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time.
(emphasis supplied and mine)
7. Thus till the stage of summoning there is no proceeding so far as the accused is concerned. Thus it is clear that so far accused is concerned he is not a party to any "proceeding" till the stage of summoning and he cannot be heard. Section 397 Cr.P.C. deals with "Proceedings". Thus applying the law laid down by the apex court so far as accused is concerned no "Proceeding" has taken place at the stage of Section 156(3) of the code. More over order under Section 156(3) of the code is in the nature of an administrative order because empowers the Magistrate only to issue a direction to the police to exercise their plenary power of investigation and nothing more. The power which has been conferred on the Superintendent of police under Section 154(3) of the code has been conferred on the Magistrate under Section 156(3) Cr.P.C. to check the arbitrary exercise of power by the police echelons and to get the law observed by it and not to flout it. So far as the accused is concerned he has got no right to object to the registration of FIR against him. He has got no right under any law to appear and say that the Magistrate does not possess the power to order for registration of FIR against him. There is no provision in the Code which confers such a right to accused. Conferring such a right through judicial pronouncements will amount to legislation which power the courts do not possess. The Code Of Criminal Procedure (Code) does not confer pre FIR registration hearing on a prospective accused. It has been held by the apex court in the case of Nagawwa v. Veeranna Shivlingappa Konjalgi as follows:
At any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Section 202 would have to be converted into a full-dress trial defeating the very object for which this section has been en grafted. The High Court in quashing the order of the Magistrate completely failed to consider the limited scope of an inquiry under Section 202. Having gone through the order of the Magistrate we do not find any error of law committed by him. The Magistrate has exercised his discretion and has given cogent reasons for his conclusion. Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision. We are constrained to observe that the High Court went out of its way to write a laboured judgement highlighting certain aspects of the case of the accused as appearing from the documents filed by them which they were not entitled to file and which were not entitled in law to be considered.
(Emphasis mine)
8. It has farther been held by the apex court in the case of V. Panchal v. D.D. Ghandigaonkar as follows:
The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage . for such a person can be called upon to answer the allegation made against him only when a process has been issued.
9. It has further been held by the apex court in the case of Chandra Deo Singh v. Prakash Chandra Bose AIR 1963 ISCR 202 as follows -
Permitting the accused person to intervene during the inquiry would frustrate its very object and that is why legislature has made no specific provision permitting an accused person to take part in the inquiry.
10. Thus from the above it is clear that an accused does not have any right to agitate his defence before he is summoned or before the FIR is registered against him. What ever the grievance the person has he can raise it under Article 226 of The Constitution Of India after the FIR is registered within the the periphery of the guidelines laid down by the apex court in the Case of Bhajan Lal (Supra).Dealing with the scope of power of police under Section 156 Cr.P.C. the apex court has further laid down in the case of Superintendent Of Police, C.B.I. and Ors. v. Tapan Kumar Singh 2003 SCC (Cr.) 1305 as follows:
20. It is well settled that a First Information Report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye-witness so as to be able to disclose in great, details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police offtcer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence. whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.
11. Another aspect of the matter is that an order under Section 156(3) is a pre cognizance order as has been held by the apex court in the case of Suresh Chand Jain v. State of Madhya Pradesh where it has held as follows:
10. The position is thus clear. Any judicial Magistrate, before, taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
(Emphasis Supplied)
12. This law was laid down by the apex court earlier also in it's full bench decision in the case of Devarapallai Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230 as follows:
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV. he is not competent to switch back to the pre-cognizance stage and avail of Sect. 156(3). It may be noted further that an order made under Sub-section (3) of Section 156. is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173.
(Emphasis mine)
13. Thus form the above two decisions of the apex court it is clear that the order under Section 156(3) of the code is a pre-cognizance order and hence the question of any body being an accused at that stage does not arise at all. It is only after the FIR is registered by the police under the orders of the Magistrate that the person mentioned in the FIR as the culprit becomes an accused. In such a situations the order passed under Sections 156(3) does not affect the right of any persons, (sic) for the (sic) in the event of rejection of his such an application, and hence the person against whom such an application is filed does not have any right to challenge such an order by filing a revision or even an application under Section 482 Cr.P.C. for the reason that no "Proceeding" is pending against him at that stage in any court of law which condition is sine - qua - non for exercising power under Section 482 Cr.P.C.
14. Another reason on the basis of which an order under Section 156(3) Cr.P.C. can not be challenged under revision or 482 is that the said order is interlocutory order against which revision is barred under Section 397(2) Cr.P.C. The nature of order is only a reminder to the police to exercise their legal duty of registration of cognizable offences and investigate the same. Explaining the scope of the said section it has been held by the apex court in the case of Central Bureau of Investigation, Through S.P. Jaipur v. State of Rajasthan 2001 SCC (Cr.) 524 as follows-
6. If the power of a Magistrate to order investigation by the CBI in non-cognizable cases cannot be traced in the above provision, it is not possible to trace such power in any other provision of the Code. What is contained in Sub-section (3) of Section 156 is the power to order the investigation referred to in Sub-section (1) because the words "order such an investigation as above-mentioned" in Sub-section (3) are unmistakably clear as referring to the other sub-section. Thus the power is to order an "officer-in-charge of a police station" to conduct investigation.
It has been further held in the same judgement in para 15:
15. As the present discussion is restricted to the question whether a Magistrate can direct the CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial power cannot he stretched under the said sub-section beyond directing the officer-in-charge of a police station to conduct the investigation.
(Emphasis mine) More over in the case of Devarapallai Lakshaminaravana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230 the apex court has said as follows:
It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173.
(Emphasis mine)
15. Thus from the discussions made above it is clear that the applicants who are named in an application under Section 156(3) Cr.P.C. does not have the power to challenge an order passed under that section for registration of F.I.R. and investigation of cognizable offences by filing this application nor they have any right to challenge the said order under Section 397/401 Cr.P.C.
16. Resultantly this application is not maintainable and is dismissed as such.