Allahabad High Court
Rakesh vs State Of U.P. And Another on 9 December, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 41 Case :- APPLICATION U/S 482 No. - 44622 of 2019 Applicant :- Rakesh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Om Prakash Vishwakarma Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sunita Agarwal,J.
Heard Mr. Om Prakash Vishwakarma, learned counsel for the applicant and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 10.10.2019 passed by the Sessions Judge, Jaunpur dismissing Criminal Revision No. NIL/2019 filed by the applicant arising out of the order dated 13.09.2019 passed by the Judicial Magistrate Ist, Jaunpur in the application u/s 156(3) Cr.P.C., P.S.-Gaura Badshahpur, District-Jaunpur, whereby the application has been directed to be treated as a complaint.
Learned counsel for the applicant submits that a perusal of the complaint filed by the applicant clearly discloses the commission of a cognizable offence. The Magistrate has erred in law in directing to proceed to treat it as a complaint case instead of directing police to lodge First Information Report. The recovery of looted property is necessary so as to complete the investigation/inquiry. The learned counsel for the applicant has contended with vehemence that the court below has passed the impugned order in a mechanical manner completely ignoring the judgement of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others1.
Learned A.G.A., on the other hand, has supported the impugned order and has pointed out that the grievance of the applicant has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly concluded to treat the application filed by the applicant under Section 156 (3) Cr.P.C., as a complaint. The applicant shall still have an opportunity to prove his case before the court below. No material injustice has been caused to the applicant. The allegations of abuse of process of the Court are baseless.
Considered the rival submissions made by the learned counsel for the parties.
A perusal of the impugned order shows that no reason whatsoever has been disclosed by the Magistrate to treat the application under section 156(3) Cr.P.C. as a complaint.
From the record, it transpires that in the present case, the recovery of looted property of the applicant is necessary for which arrest of the accused persons may be required. The allegations made in the application filed under section 156 (3) Cr. P. C. disclose commission of a cognizable offence. A perusal of the order impugned passed by the Magistrate shows that the Magistrate was of the view that since all the evidence required in respect of the incident which occurred on the alleged date can be given by the applicant, there is no necessity of police investigation in the matter.
Looking to the nature of the allegations made by the applicant, this Court is of the view that the Judicial Magistrate Ist, Jaunpur and Session Judge, Jaunpur ought to have allowed the application to direct the police of the Police Station-Gaura Badshahpur, Jaunpur to register an F.I.R and investigate into the allegations of commission of offence.
Sections 154 and 156 Cr.P.C. provide procedure for registration and investigation of the information of a criminal case. The same are quoted herein under:-
"154. Information in cognizable cases- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.:
[Provided that if the information is given by the woman against whom an offence under section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that -
(a) in the event that the person against whom an offence under section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible].
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
156. Police officer' s power to investigate cognizable 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."
From the perusal of the aforesaid provisions, it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of the police station has power to investigate U/S 156(1) in such case under Section 156(3) Cr.P.C, however, the Magistrate is empowered to order registration of F.I.R and investigation on receipt of the information of commission of an offence. The word "investigation" contained in Section 156(3) Cr.P.C contemplates investigation by the officer Incharge of the Police station.
The question of power of the Magistrate to order investigation on an application filed under Section 156(3) Cr.P.C came up for consideration before the Court in Mohd Yousuf vs. Smt. Afaq Jahan & Anr2 wherein it is observed that the investigation under the directions of the Magistrate under Section 156(3) Cr.P.C falling within Chapter XII contemplates investigation by the police authorities. Whether the investigation is started by the police by the registration of F.I.R on the information received by it or under the order of Magistrate under Section 156(3) Cr.P.C, it would be same kind of investigation which would end up only with the report contemplated under Section 173 of the Code.
The five judges Bench in Lalita Kumari1 (supra) taking note of the provisions contained in Section 154, 156 & 157 in Chapter XII of the Code of Criminal Procedure has held in para '120' to '120.8' as under:-
"120. In viwe 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 commission of a cognizable offence but indicates that the necessity for an inquiry, a preliminary inquiry may be conducted 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 (not later than one week) disclosing reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering an offence if cognizable is disclosed. Action must be taken against an erring officer 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 by the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases the 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 identified 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."
Having noticed the definition of "investigation", "inquiry" and "judicial proceedings" under Section 2(g), Section 2(h) and Section 2(i) of the Code of Criminal Procedure as also the decision of the Apex Court in Lalita Kumari1 (supra), it has been found by this Court in Criminal Revision No.4629 of 2019 (Vishwanath vs State of U.P and others) decided on 9.12.2019 that though there is no embargo on the power of the Magistrate to treat an application under Section 156(3) as a complaint and to proceed under Chapter XV for enquiry under Section 200 read with Section 202 Cr.P.C. and it is not necessary for the Magistrate to direct investigation under Chapter XII if he proposes to take cognizance of the offence, and once he takes cognizance he has to follow the procedure envisaged in Chapter XV of the Code. But it is held that the judicial discretion conferred on the Magistrate has to be exercised carefully and within judicial limits, as the emphasis is to find out the truth of the allegations made before it.
The relevant paragraph nos.9, 10 and 11 of the report in Mohd. Yusuf 2(supra) noticed therein are quoted hereunder:-
"9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.
11. The clear position therefore is that 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."
The decision of the Apex Court Sakiri Vasu vs State of U.P & Ors3 has also been considered to note that Section 156(3) Cr.P.C provides for a check by the Magistrate on the police performing its duty under Chapter XII of the Code. In case, the Magistrate finds that the police has not done its duties of, investigating the case at all or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly and can also monitor the same.
The relevant observations in Sakiri Vasu (supra) noted by this Court in Criminal Revision no.4629 of 2019 (Vishwanath vs State of U.P. And ors) are as under:-
"It was held therein that although Section 156(3) is very briefly worded but there is an implied power with the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal case and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same.
It was further held in Sakiri Vasu (supra) that even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., they are implied in the said provision."
The above noted view has been noted in recent decision Vinubhai Haribhai and Malviya & Ors vs State of Gujarat & Anr4. It was observed therein that the power of Magistrate under Section 156(3) of the Code is very wide for this judicial authority that must be satisfied that a proper investigation by the police takes place. Relevant observations in paragraph no.'23' of the report in Vinubhai Haribhai and Malviya & Ors noted in Vishwanath (supra) is quoted hereunder:-
"23. It is thus clear that the Magistrates power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 Indian Kanoon continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the investigation referred to in Section 156(1) of the CrPC would, as per the definition of investigation under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC."
It is also pertinent to note the following observations of the Apex Court in Vinay Tyagi vs Irshad Ali @ Deepak & others5 following paragraphs:-
"40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and thus in conformity with the doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge- sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case." xxx xxx xxx
48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons."
It is, thus, observed that in the whole scheme of the Code of Criminal Procedure, if a person has a grievance that his F.I.R has not been registered by the police, his remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If his grievance still persist, then he can approach the Magistrate under Section 156(3) Cr.P.C, he has a further remedy of filing a Criminal Complaint under Section 200 Cr.P.C. It was further noted that the power conferred upon the Magistrate under Section 156(3) Cr.P.C being discretionary has to be exercised within the limits of the judicial discretion. All efforts shall be made in one direction, only to find the truth of the allegations made in the Criminal complaint/application. Each case has to be examined by the Magistrate with due care so as to advance the cause of justice.
In view of the above discussion, in the facts and circumstances of the present case, it is found that the application under Section 156(3) Cr.P.C has been filed on 22.8.2019 with the categorical averment that at about 6.30 p.m on 16.8.2019, while the applicant was returning from the hospital with his sister-in-law, two unknown persons alongwith one Chandrajeet Yadav @ Chandan Singh, son of Rajendra Prasad, resident of village Bhadewara, P.S-Gaura Badshahpur District-Jaunpur came on a motorcycle (of Apachi make) and while threatening the applicant, they snatched a gold chain of his sister-in-law and Rs.5000/- from his pocket.
On the information given to the police, report under section 154 of the Code was not lodged rather assurance was given on 17.8.2019 by the police officer that his money and gold chain would be recovered soon. The information of commission of crime was, thereafter, given to the Superintendent of Police, Jaunpur through registered post. Till the date of filing of application under Section 156(3) Cr.P.C, no recovery had been made. In the facts of the case, the Police has to find out and ascertain the identity of the unknown persons as indicated in the report.
Further, the application under Section 156(3) was filed within few days from the date of incident. The recovery of money and gold chain and identification of accused persons (unknown in the report) is to be made to find out the truth of the allegations. Such a course may not be possible, in case, the crime reported is treated as a complaint as there may not be sufficient evidence before the applicant to bring home the guilty persons.
Moreover, both the orders impugned have been passed in a casual manner. Neither the Magistrate nor the Revisional Court had examined this aspect of the matter.
In view of the aforesaid, the order dated 13.9.2019 passed by Judicial Magistrate Ist, Jaunpur and order dated 10.10.2019 passed by the Sessions Judge, Jaunpur cannot be sustained.
Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective accused persons as they have no right to be heard at the pre-cognizance stage. The orders dated 13.9.2019 and 10.10.2019 are, consequently set aside.
The Judicial Magistrate Ist, Jaunpur is directed to have a fresh look into the matter to exercise his discretionary powers and decide the application under section 156(3) Cr.P.C. moved by the applicant afresh and pass appropriate order, in accordance with law, keeping in view the observations made by this court, within a period of one month from the date of production of a certified copy of this order.
With the aforesaid directions, the present application is allowed.
Order Date :- 9.12.2019/Harshita