Document Fragment View

Matching Fragments

2. Before coming to the contentions raised a narration of the facts are inked below.

Criminal Misc. Application No. 6152 of 2006 Smt. Masuman v. State of UP and Ors.

The applicant Smt. Masuman wife of Faiz Mohmmad resident of village Rasoolpur police station Billhor district Kanpur Dehat invoked the power of the Chief Judicial Magistrate, Kanpur Dehat on 20.9.2005,through an application under Section 156(3) Cr.P.C. with the allegations that Kallu Pal, Ram Pal, Raju, Munshi Lal, Vipin, Suresh, Jaggi Lal Kushwaha, and Chunna, alleged accused persons are her co-villagers. Her's is the only Mohammadan family in the village. Her husband is old, and fragile. The family earns it's livelyhood by labouring. In the village Pradhan election in the recent past her family had supported the candidature of one Rajjan Singh who had defeated Sanjai in the said election. This had generated a feeling of revenge in the minds of alleged malefactors Kallu Pal, Ram Pal, Raju, Munshi Lal, Vipin, Suresh, Jaggi Lal Kushwaha, and Chunna who all are either relatives or well wishers of aforesaid Sanjai. Bubbling with feeling of revenge, on 7.9.2005 at 8 P.M when all the family members of the applicant except Iqrar, the younger son, were present in the house the aforesaid persons surrounded the house of the applicant vituperising the family. Faiz Mohd. and Mister, husband and elder son of the applicant Masuman were belaboured by raiders when they protested against the hurled abuses. Masuman, the applicant, her daughter Iskiman and grand daughter Afsana tried to save them but Iskiman was thrown on the ground by the alleged accused Kallu, Raju and Chunna caught hold of her hands and Juggi Lai by sliding her clothes above her waist attempted to rape her. Iskiman was also sexually assaulted and molested by Munshi Lal who pressed her breasts and after putting his hands on her private parts tried to lift her. On hue and cry being raised by the victim's family they were saved by the co-villagers who had collected there. The accused left the place of the incident threatening the family with dire consequences. Masuman could not get her FIR registered as she was surrounded in the way by the malefactors and was threatened for her life. Next day morning her husband and son were picked up by the alleged accused persons and were got implicated in a false case of theft. Injured Iskiman and Kumari Afsana got themselves medically examined in Ursala hospital, district Kanpur Nagar. The application of the applicant to the Senior Superintendent of Police, Kanpur Nagar, dated 13.9.2005 yielded no results and therefore the applicant approached the Chief Judicial Magistrate, Kanpur Dehat, through an application under Section 156(3) Cr.P.C. against the respondents alleged accused to get her FIR registered for offences under Sections 376/511/354/323/504/506 IPC and get it investigated by the police. She appended the injury reports of the two injured, her own affidavit and a copy of her application to SSP, Kanpur Nagar along with her application which are filed as annexure No. 1, 2 and 3 to the affidavit filed in support of this application. The aforesaid application of the applicant under Section 156(3) Cr.P.C. was however rejected by the Chief Judicial Magistrate, Kanpur Dehat by the impugned order dated 9.11.2005 (Annexure No. 4) by passing an order as if, he was deciding the case finally. The revision preferred by Masuman being Criminal Revision No. 145 of 2005, too alsb rejected by the lower revisional court vide it's impugned order dated 24.2.2006 (Annexure No. 6) Hence this application to this court under Section 482 Cr.P.C. by the applicant for quashing both the impugned orders and for a direction for fresh consideration of her application under Section 156(3) Cr.P.C. by the Chief Judicial Magistrate, Kanpur Dehat.

26. I have heard respective counsels for the applicants in all these applications in support of their case as well as learned A.G.A. in opposition.

27. Learned Counsels for the applicants in all these cases contended with force that the order passed by the Magistrate is wholly illegal without jurisdiction and de horse the law. They contended that the application under Section 156(3) Cr.P.C. disclosed commission of cognizable offences and hence the Magistrate had no jurisdiction to refuse passing of an order for registration and investigation of the FIR. The counsels contended that the Magistrate has to act in accordance with law and he cannot travel beyond the scope of the power, which has been conferred on him under Section 156(3) Cr.P.C. They harangued that once a cognizable offence is disclosed in the application filed under Section 156(3) Cr.P.C. the Magistrate is left with no other option but to order for investigation as the applicants had invoked the administrative jurisdiction of the Magistrate for a direction to the police to register the FIR under chapter XII of the code and the Magistrate acted illegally in not granting the said relief. They further argued that the Magistrate who is not in a position to deal with the cases already pending before him further saddled himself to inquire into the matter under chapter XV Cr.P.C. when the applicants never wanted it from him under chapter XII of the code. They urged that the Magistrate has acted on his own by passing the impugned orders and it is he who has started the lis by taking cognizance under chapter XV which was never prayed for by the applicants and which is not permissible under the law. According to their submission the power of investigation lies with the police and not with the Magistrate and hence he is incompetent to decide as to whether a cognizable offence is investigable or not and it is only the police who can decide it under Section 157(1) &(2) Cr.P.C. and if the police decides not to investigate the FIR then it has to record it's reasons for the same and communicate it to the informant. They contended that the Magistrate by usurping the power of the police has acted de-hors the law and without jurisdiction. They further submitted that it was choice of the applicants to decide as to under which forum he wants the redressal of his grievances and start the lis. They further contended that the Magistrate cannot be a party to a lis and he can not decide the forum for it which is the right of the victim. The Magistrate does not have the advisory jurisdiction to direct them to file a complaint they harangued. In some cases the counsels even went on to argue that the Magistrate by directing the applicants to file a complaint has sided with the accused as they will never be arrested for committing the cognizable offences and there by the Magistrate has circumvented the power of the police under Section 41 of the code and thus the applicants can bring the culprits before the court only after a gap of many days when the summoning order is issued against them and even after that the accused will be released on bail under the normal procedure. The counsels further submitted that no justice has been done by the Magistrates, by passing the impugned orders and he has given a further blow to victim, the injured and aggrieved which is nothing but adding insult to injury. The counsels further contended that the Magistrate in fact has made himself a party to the litigation by starting the litigation under chapter XV against the mandate of law ignoring the definition clause of the "complaint" under Section 2(d) Cr.P.C. With other collateral submissions the counsels in chorus in all theses cases concluded their arguments by submitting that the impugned orders passed by the concerned Magistrate is illegal and deserves to be set aside and they - the Magistrate in all these cases deserves a direction from this court to reconsider the application of the applicants under Section 156(3) Cr.P.C. afresh in accordance with the law and decide the same within a stipulated period of time. They seriously questioned the correctness of the law laid down in Gulab Chand Upadhyay v. State of U.P 2002(44) ACC page 670 and contended that it is per- incurium and should be declared as such. They further contended that in full Bench decision of this Court reported in Ram Babu Gupta v. State of U.P. 2001(43) ACC 50, it is no where laid down that if a cognizable offence is disclosed the Magistrate even then can refuse to direct registration of FIR and follow up investigation and further that the Magistrate can suo motu on his own convert an application under Section 156(3) Cr.P.C. into one as "complaint". In support of their contentions, the learned Counsels relied upon many judgments of apex court as well as of this Court which will be 'referred to at the appropriate stage subsequently in this judgment.

31. It has been held in the case of Mahboob Ali v. State of U.P. and Ors. 2001 ACO(suppl.) 277 that -

The scope and procedure of application under Section 156(3) Cr.P.C. and the complaint are totally different. The provisions of 156(3) Cr.P.C. are contained in Chapter XI1 of Code of Criminal Procedure which deals with (he information to the police officers and their powers to investigate. Sub-section (1) of Section 156 Cr.P.C. empowers Officer In-Charge of a police station to investigate any cognizable case without the order of the Magistrate. Section 156(3) empowers a Magistrate to order investigation of a cognizance offence. Therefore, the provisions of Section 156 are concerned with the investigation of a case and since there can be no investigation without registering of a case, it may be said that the above provisions of Section 156(3) relate to the registration and investigation of a case. In case, any order is passed under Section 156(3) Cr.P.C, the police will follow the procedure contained under Section 156(1) Cr.P.C. and after investigation submit a report under Section 173 Cr.P.C. The procedure for taking cognizance on the report submitted under Section 173 Cr.P.C. shall be separated i.e. cognizance on a police report under Section 190(b) Cr.P.C. Separate procedure for trial of such cases is also provided in the Cr P.C. While on a filing a complaint the Magistrate had to adopt a procedure under Chapter XIV of Cr.P.C. If the Magistrate takes cognizance on a complaint, it would be under Seclior 190(a) Cr.P.C. and separate procedure is alsc provided for trial of a complaint case. Thus, the legislature had intentionally made to separate procedures to be followed and therefore, the Magistrate cannot convert one procedure into other. It has also been held in several cases of this Court that Magistrate has no power to register an application under Section 156(3) Cr.P.C. as complaint. Moreover, the definition of complaint given in Section 2(d) says that 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Thus, the scope of application under Section 156(3) Cr.P.C. and that of a complaint are also different.

(Emphasis mine) Nothing can depict the scope of the power of the Magistrate under the Section 156(3) of the code more clearly than the words of the apex court in Devarapalli Lakshaminaravana Reddy and Ors. v. V. Naravana Reddy and Ors. 1976 ACC 230 where the apex court has observed thus:
Peremptory reminder or intimation to the police to exercise their plenary powers of investisation under Section 156(1) (Emphasis mine) Thus if an application is filed by an aggrieved person under Section 156(3) Cr.P.C, his prayer is to be decided within the ambit of the aforesaid section by the Magistrate as is mentioned above. Magistrate cannot travel beyond the scope of the said section on his own. The Magistrate under that section cannot transform an application to one under Section 2(d) CrP.C. as a "complaint". There is yet another difficulty in allowing the Magistrate take cognizance suo motu by transforming application under Section 156(3) Cr.P.C to one under Section 2(d) and 190(1)(a) Cr.P.C. and that is that the Magistrate cannot start the lis on his own. It is for the aggrieved person to engineer it and that too in the form and forum he deems fit and proper. I may note a word caution here. It has been noticed by this Court that in some cases where the cognizable offences are disclosed the Magistrates does order for registration and investigation but in some cases they refuses it. The learned A.G.A. has pointed out that this gives a dis-advantage to the accused and fosters arbitrariness at the hands of the Magistrate. In my view if a cognizable offence is disclosed through an application under Section 156(3) Cr.P.C. the Magistrate has no option but to order for registration and investigation of the case. So far as injustice to accused is concerned if he is aggrieved by the registration of F.I.R. he can challenge the same by filing a writ petition under Article 226 of the Constitution of India with in the ambit of the guidelines laid down by the apex court in the case of Bhajan Lal (Supra). Moreover, the Apex Court has taken a good care in cases of arbitrary exercise of power by the police through judgments in cases of Joginder Kumar v. State of Uttar Pradesh ; D.K. Basu v. State of W.B. ; State of Maharastra v. Christian Community Welfare Council : ; Smt Nilabati Behera v. State of Orissa ;and also in State of Haryana V. Bhajan Lal (Supra) where it has been held as such: