Delhi District Court
Criminal Revision/10/2007 on 5 March, 2007
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1.This revision petition has been preferred by SI of Delhi Police namely Sushil Kumar presently working as 2nd In charge, PP Tis Hazari Court against the impugned order dated 06.02.2007 passed by the Court of Link MM directing the SHO PS Subzi Mandi to register the FIR against two guilty police officials after their identification by the accused.
2. TCR was summoned and perused. It shows that one accused Contd...........2 2 namely Rakesh Nagender is facing trial in FIR no. 181/06 PS Bara Hindu Rao u/s 27 NDPS Act. On 06.02.2007 accused was to appear before the Court on which day the matter was fixed for the prosecution evidence. The Presiding Officer was on leave on that day. The matter was taken up by the Link MM. Accused as the record shows appeared before the Court of Link MM and made a statement of his beating by one SI in Lock Up along with other police officials. The Court of the Link MM recorded his statement on oath after which made the observation that 'from the allegations clearly a cognizable offence is made out'. Therefore, while exercising the power u/s 156 (3) CrPC, the Court of the Link MM directed the SHO to register the FIR. In the course of the same proceedings one application for producing the accused in handcuffs and fetters was moved by the 2nd In charge Lock Up and was rejected being afterthought to suppress the misdeeds.
3. Since Sushil Kumar was the only person working as SI in Lock Up, Tis Hazari Court, he has filed this revision petition and amongst others, has challenged the order, primarily, on the following two grounds:-
Contd...........3 3
1. That order as passed is illegal and Magistrate was not justified in sending the complaint in exercise of his power u/s 156 (3) CrPC once he had applied his mind to the facts of the case and made a tentative observation that cognizable offence is made out.
2. He has not been given a reasonable opportunity of hearing. According to him it was the accused who was guilty of the misdeeds and Court did not make a proper inquiry of the facts and did not hear him at all.
4. It has been stated by the counsel for the revisionist that the day on 06.02.2007 when accused was produced in J/C before the Court, one DD No.4A was registered in Lock-up against the misbehavior of the accused with the police officers at 8.50 am after his demand for 'bidi' was declined, after which he picked up a scuffle and abused the staff. Against this conduct same time when accused was produced in the Court, an application was filed for his production in handcuffs and fetters and in the course of the inquiry in the matter the Court of the Link MM first recorded the statement of the accused upon which the directions to register a case were given without even giving an opportunity of hearing to the revisionist to explain the correct position of his moving the Contd...........4 4 application for producing the accused in handcuffs and fetters which was summarily rejected observing that it is an afterthought to suppress the misdeeds.
5. So far as first ground of challenge is concerned, it may be seen that in Code of Criminal Procedure Magistrate may take cognizance of an offence u/s 190 CrPC :-
(a) Upon receiving a complaint ,
(b) Upon a police report,
(C) Upon information received from any
person, other than a police officer or
upon his own knowledge.
6. Section 156 CrPC deals with the power of the police officers to investigate cognizable cases. Sub Section (3) of Section 156 CrPC provide that any Magistrate empowered u/s 190 CrPC may order such an investigation. This power u/s 156 (3) CrPC may be exercised by the Magistrate before his taking the cognizance of an offence. Once the Magistrate has taken the cognizance in the matter of a Contd...........5 5 complaint made to him then he is required to follow the procedure of complaint case given in Section 200 CrPC.
7. Once the Magistrate after making the scrutiny of the statement of the complainant, as done in the present case comes to the opinion that it makes out a cognizable offence, then there is no need to take recourse of Section 156 (3) CrPC. In AIR 1955 SC 196 and also in AIR 1964 SC 154 it was held that where the Magistrate take the cognizance of a complaint made to him and considers, before the issue of process to the accused, that the matter should be investigated, he should order such investigation under the provisions of Section 202 CrPC and not under Sub Section (3) of Section 156 (3) CrPC. In 1979 Crl.L.J 2462 it was held that there is a difference between investigation conducted by the police u/s 156 (3) CrPC and the investigation by the police officer as directed by the Magistrate u/s 202 CrPC. The investigation u/s 156 (3) CrPC is not of the complaint which had already been taken cognizance of by the Magistrate whereas investigation u/s 202 CrPC is one in a case which had already been taken cognizance of by the Magistrate. The formal case should be treated as one instituted by the police and later is on instituted Contd...........6 6 by the complainant. In AIR 1949 Calcutta 197 it was held that Sub Section (3) of Section 156 CrPC does not provide an alternative procedure to that laid down in Section 202 CrPC.
8. Accordingly the impugned order on the face of it suffers from illegality. In the present case the exercise of the power u/s 156 (3) CrPC after his taking cognizance of the offence was not on the right side of Law.
9. Even on the factual aspect nothing emerges to show from records of the Court itself that the application of the revisionist filed before the Link MM for producing the accused in handcuffs and fetters was prepared and produced as a cover up defence to the statement of the accused on oath made before the court on that day. Rather the order sheet itself shows that at the time of recording of the proceedings itself, this application was produced before the Court concerned without any time gap.
10. Counsel for the petitioner submits that this application for Contd...........7 7 production of the accused in handcuffs and fetter was filed immediately after the accused was produced in the Court and in the course of inquiry from the accused regarding the allegations against him, the Court ignored this application of the revisionist and passed the impugned order.
11. Without going into this aspect of the matter it would be sufficient to observe in the light of the fact situation coming on record that this application for handcuffing and putting the accused in fetters was at least not an after thought. This was placed before the court in the course of the same proceedings. It would have been more appropriate in the court concerned to hold a proper inquiry before passing the impugned order against the concerned police officers for registration of the case against him. He is a Government employee. It cannot be ignored that registration of the case against a Government employee/officer may have serious effects on his service prospects. The impugned order straightway directing to register a case without a semblance of inquiry, appears to be more harsh and not in proportionate to the allegations made by the accused in his statement against him, even if the same is accepted as a gospel truth. It may be seen from the statement of the accused recorded Contd...........8 8 by the Court of Link MM, that even accused has admitted of his having recovery of one white paper from pocket of his pant and states of giving one slap by one SI. He does not give any reason why he was slapped.
12. Keeping in view the overall fact situation the revision succeeds on both the aforesaid points and is thus allowed. The impugned order is recalled and set aside. TCR be sent back along with copy of this order for information and compliance. Revision petition file be consigned to the Record-Room.
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